Electricity Act, 2003) : RFP For Long-Term Power Procurement From A Specified Location and Fuel Source (17.08.15)

RFP for Long-Term Power Procurement from a Specified location and fuel source
(17.08.15)
STANDARD
REQUEST FOR PROPOSAL
For
Procurement of Power on a Long-Term basis from the [insert capacity in MW] Ultra Mega
Power Project to be set up at [specify location, district and State] sourcing coal from the
[insert the name of allocated domestic Captive Coal Blocks]
(As per the Guidelines issued by the Ministry of Power in terms of Section 63 of the
Electricity Act, 2003)
Issued by [Name of the Lead Procurer]

Through
Project Incharge, [Name of UMPP]
[address]
[Phone No.]
[Fax No.]
[Email id]
ON BEHALF OF PROCURERS
[Date of issuance(dd-mm-yyyy)]
Ministry of Power
Government of India
(17.08.15)
TABLE OF CONTENTS
S. No.
Contents
Page No.
Letter of Invitation
Disclaimer
Glossary
iv
v
vii
Introduction
1.1
Background
1.2
Brief description of Bidding Process
1.3
Schedule of Bidding Process
1.4
Phased Implementation
1.5
Price of the Power Station Land, Captive Coal Block
Land and R&R Cost
1
1
2
3
5
5
Instructions to Bidders
A
General
2.1
General terms of Bidding
2.2
Change in composition of the Consortium
2.3
Change in Ownership
2.4
Cost of Bidding
2.5
Visit to the Power Station Land and the Captive Coal
Block Land
2.6
Request for Information
7
7
7
11
12
13
13
B
2.7
2.8
Documents
Contents of the RFP
Clarifications
15
2.9
C
2.10
2.11
Amendment of RFP
Preparation and Submission of Bids
Format and Signing of Bid
Bid Due Date
16
17
2.12
2.13
2.14
Late Bids
Contents of the Bid
Modifications/ Substitution/ Withdrawal of Bids
18
18
19
2.15
2.16
2.17
Rejection of Bids
Bid Validity
Confidentiality
19
19
19
2.18
Correspondence with the Bidder
20
14
15
16
17
18
ii
(17.08.15)
D
2.19
Bid Security
Bid Security
20
20
2.20
Performance Guarantee
21
E
BID PARAMETERS
2.21
Bid Parameters
Evaluation of Bids
3.1
Evaluation of Bids
3.2
Opening and Evaluation of Non-Financial Bids
22
22
23
23
23
3.3
3.4
3.5
Step I - Responsiveness check of Non-Financial Bids

Step II - Evaluation of Bids
Step III Successful Bidder Selection
23
24
25
3.6
3.7
Selection of Bidder
Contacts during Bid Evaluation
25
26
Fraud and Corrupt Practices
27
5
6
Pre-Bid Conference
Miscellaneous
29
30
31
Appendices
Letter comprising the Bid
II Bank Guarantee for Bid Security

III Power of Attorney for signing of Bid
IV Power of Attorney for Lead Member of Consortium
V Format for the Bid
VI Performance Guarantee Format
VII Draft Share Purchase Agreement
VIII Draft Default Escrow Agreement
IX Draft Agreement to Hypothecate cum Deed of Hypothecation
X Draft Land Lease Agreement I
XI Draft Allocated Coal Block Land Lease Agreement
XII Methodology of computation of Levelised Tariff and Levelised
Fixed Charge
XIII Draft Power Purchase Agreement
XIV List of Bid-specific Clauses
XV List of Project-specific Clauses
31
36
39
41
43
45
48
49
70
71
72
73
74
75
76
iii
(17.08.15)
[NAME AND ADDRESS OF THE LEAD PROCURER/AUTHORISED REPRESENTATIVE]

LETTER OF INVITATION
Dated .
To,
Sub: RFP for *** Project

Dear Sir,
Pursuant to your application in response to our Request for Qualification for the
aforesaid project ("RFQ"), you were qualified as a Bidder, and asked vide our letter dated
. to remit the fee for Bidding Documents. We acknowledge your remittance of
[Rs. *** (Rs. ***)]1 as the cost of procuring the Bidding Documents, which are enclosed.
You are requested to participate in the Bid Stage and submit your financial
proposal ("Bid) for the aforesaid project in accordance with the Request for Proposal
(RFP).
Please note that the Procurers reserve the right to accept or reject all or any of the
Bids without assigning any reason whatsoever.
Thanking you,
Yours faithfully,
(Signature, name and designation of the Signatory)
Rs20,000 (Rupees twenty thousand) for every Rs. 100 crore (Rupees hundred crores) of the Estimated
Project Cost.
iv
(17.08.15)
DISCLAIMER
The information contained in this Request for Proposal document (the RFP) or
subsequently provided to Bidder(s), whether verbally or in documentary or any other
form by or on behalf of the Procurers or any of its employees or advisors, is provided to
Bidder(s) on the terms and conditions set out in this RFP and such other terms and
conditions subject to which such information is provided.
This RFP is not an agreement and is neither an offer nor invitation by the Procurers to the
prospective Bidders or any other person. The purpose of this RFP is to provide interested
parties with information that may be useful to them in making their financial offers (Bids)
pursuant to this RFP. This RFP includes statements, which reflect various assumptions
and assessments arrived at by the Procurers in relation to the Project. Such assumptions,
assessments and statements do not purport to contain all the information that each Bidder
may require. This RFP may not be appropriate for all persons, and it is not possible for
the Procurers, its employees or advisors to consider the investment objectives, financial
situation and particular needs of each party who reads or uses this RFP. The assumptions,
assessments, statements and information contained in the Bidding Documents, especially
the Feasibility Report, may not be complete, accurate, adequate or correct.
Information provided in this RFP to the Bidder(s) is on a wide range of matters, some of
which may depend upon interpretation of law. The information given is not intended to
be an exhaustive account of statutory requirements and should not be regarded as a
complete or authoritative statement of law. The Procurers accepts no responsibility for
the accuracy or otherwise for any interpretation or opinion on law expressed herein.
The Procurers, its employees and advisors make no representation or warranty and shall
have no liability to any person, including any Applicant or Bidder under any law, statute,
rules or regulations or tort, principles of restitution or unjust enrichment or otherwise for
any loss, damages, cost or expense which may arise from or be incurred or suffered on
account of anything contained in this RFP or otherwise, including the accuracy,
adequacy, correctness, completeness or reliability of the RFP and any assessment,
assumption, statement or information contained therein or deemed to form part of this
RFP or arising in any way for participation in this Bid Stage.
The Procurers also accepts no liability of any nature whether resulting from negligence or
otherwise howsoever caused arising from reliance of any Bidder upon the statements
contained in this RFP.
The Procurers may in its absolute discretion, but without being under any obligation to do
so, update, amend or supplement the information, assessment or assumptions contained in
this RFP.
The issue of this RFP does not imply that the Procurers is bound to select a Bidder or to
appoint the Successful Bidder, for the Project and the Procurers reserve the right to reject
all or any of the Bidders or Bids without assigning any reason whatsoever.
(17.08.15)
The Bidder shall bear all its costs associated with or relating to the preparation and
submission of its Bid including but not limited to preparation, copying, postage, delivery
fees, expenses associated with any demonstrations or presentations which may be
required by the Procurers or any other costs incurred in connection with or relating to its
Bid. All such costs and expenses will remain with the Bidder and the Procurers shall not
be liable in any manner whatsoever for the same or for any other costs or other expenses
incurred by a Bidder in preparation or submission of the Bid, regardless of the conduct or
outcome of the Bidding Process.
vi
(17.08.15)
GLOSSARY2
Associate
Bank Guarantee
Bid(s)
Bidders
Bidding Documents
Bid Due Date
Bidding Process
Bid Security
Bid Stage
BOO
Conflict of Interest
Damages
Envelope I
Envelope II
Estimated Project Cost
Feasibility Report
Lowest Bidder
LOA
Member
Non-Financial Bid
PPA
Procurers
Project
Qualification Stage
Re. or Rs. or INR
RFP or Request for Proposal
RFQ
Seller
Successful Bidder
Tariff
As defined in Clause 2.1.12

Member of a Consortium
As defined in 2.10.3
Indian Rupee
As defined in the Disclaimer
The words and expressions beginning with capital letters and defined in this
document shall, unless repugnant to the context, have the meaning ascribed thereto
herein. The words and expressions beginning with capital letters and not defined
herein, shall have the meaning ascribed to them in the RFQ.
Serially numbered footnotes are for guidance of the Procurers and should be omitted prior to issue of RFP.
Footnotes marked in non-numerical characters shall be retained in the RFP.
vii
(17.08.15)
viii
(17.08.15)
[Name of the Procurers]3

(Collectively referred to as the Procurers)
1. INTRODUCTION
1.1
Background
1.1.1
The Procurers have decided to procure the entire power from the Power Station
with an Installed Capacity of about [***] MW located at [***]4 to be developed
on a Build, Own, and Operate (BOO) on Supercritical Technology through
Public-Private Partnership ( PPP) basis on the Power Station Land located at
[***]; by sourcing coal from the domestic Captive Coal Blocks to be developed
by the Seller (Project) , and have decided to carry out the Bidding Process for
selection of a corporate entity or Consortium as the Bidder to whom the Project
may be awarded.
The Procurers have qualified the suitable Applicants (Bidders) who are eligible
for participation in the Bid Stage, for awarding the Project through an open
competitive bidding process in accordance with the procedure set out herein.
1.1.2 The Successful Bidder shall acquire the entire shares of the [***]5(Seller)
which has been incorporated by [***]6 on behalf of the Procurers, by executing
the Share Purchase Agreement. Pursuant to the acquisition, the Seller shall be
responsible for developing, managing, operating and maintaining the Project and
supplying the power to the Procurers under and in accordance with the provisions
of a long term agreement for purchase of power (Power Purchase Agreement
or the PPA, in the form attached herein as Appendix XIII as amended or
modified prior to the Bid Due Date) to be entered into between the Seller and the
Procurers in the form provided by the Procurers as part of the Bidding Documents
pursuant hereto.
1.1.3
The estimated cost of the Project is [***]7(Estimated Project Cost). The

assessment of actual costs, however, will have to be made by the Bidders.
1.1.4
The statements and explanations contained in this RFP are intended to provide a
better understanding to the Bidders about the subject matter of this RFP and
should not be construed or interpreted as limiting in any way or manner the scope
of services and obligations of the Successful Bidder/Seller set forth in the PPA or
the Procurers rights to amend, alter, change, supplement or clarify the scope of
Insert the name of the Procurers

Specify the location, District and State
5
Insert the name of the Operating SPV
6
Insert the name of the entity authorised by the Procurers
7
This amount shall be determined by the CEA and should be obtained by the Procurers from the CEA prior
to initiating the Bidding Process.
4
(17.08.15)
work, the Project to be awarded pursuant to this RFP or the terms thereof or
herein contained. Consequently, any omissions, conflicts or contradictions in the
Bidding Documents including this RFP are to be noted, interpreted and applied
appropriately to give effect to this intent, and no claims on that account shall be
entertained by the Procurers.
1.1.5
The Procurers shall receive Bids pursuant to this RFP in accordance with the
terms set forth in this RFP and other documents to be provided by the Procurers
pursuant to this RFP, as modified, altered, amended and clarified from time to
time by the Procurers (collectively "Bidding Documents"), and all Bids shall be
prepared and submitted in accordance with such terms on or before the date
specified in Clause 1.3 for submission of Bids (Bid Due Date).
1.2
Brief description of Bidding Process
1.2.1
The bidding shall be conducted by adopting a two-stage process (collectively

referred to as "Bidding Process") for selection of the Successful Bidder for award
of the Project. The first stage ("Qualification Stage") of the process involved
qualification of interested parties/ Consortia in accordance with the provisions of
the RFQ. At the end of the Qualification Stage, the Procurers announced the list
of qualified Applicants who are eligible for participation in this second stage of
the Bidding Process (Bid Stage) comprising Request for Proposals.
1.2.2
In the Bid Stage, the aforesaid qualified Applicants, including their successors,
("Bidders,which expression shall, unless repugnant to the context, include the
Members of the Consortium) are being called upon to submit their financial offers
(Bids) in accordance with the terms specified in the Bidding Documents. The
Bid shall be valid for a period of not less than 120 days from the Bid Due Date.
1.2.3
The PPA had been enclosed alongwith the RFQ. The draft/approved R&R
Package, Feasibility Report prepared by the Procurers/consultants of the Procurers
("Feasibility Report") and other study reports has been enclosed/ will be
provided to the Bidders at least 45 days prior to the Bid Due Date. Subject to the
provisions of Clause 2.1.3, the aforesaid documents and any addenda issued
subsequent to this RFP, will be deemed to form part of the Bidding Documents.
1.2.4 A Bidder is required to deposit, along with its Bid, a bid security of Rs ***8 ("Bid
Security")in the form of a bank guarantee as per format at Appendix-II,
refundable not later than 60(sixty) days from the Bid Due Date, except in the case
of the Successful Bidder whose Bid Security shall be retained till it has provided a
Performance Guarantee in the format annexed hereto as Appendix-VI and
executed the PPA. The validity period of the Bid Security shall not be less than
180 (one hundred and eighty) days from the Bid Due Date, inclusive of a claim
period of 60 (sixty) days, and may be extended as may be mutually agreed
8
The Bid Security shall be an amount equivalent to 0.5% of the Estimated Project Cost.
2
(17.08.15)
between the Procurers and the Bidder from time to time. The Bid shall be
summarily rejected if it is not accompanied by the Bid Security.
1.2.5 During the Bid Stage, Bidders are invited to examine the Project in greater detail,
and to carry out, at their cost, such studies as may be required for submitting their
respective Bids for award and implementation of the Project.
1.2.6
Bids are invited for the Project on the basis of a tariff to be offered by a Bidder for
and in respect of the Project. For the purposes of bidding hereunder, the Fixed
Charge and Variable Charge will constitute the tariff for the Power Station
(Tariff). The Term of the PPA shall be pre-determined and specified in the
Bidding Documents.
In this RFP, the term Lowest Bidder shall mean the Bidder who is offering the
lowest Tariff.
1.2.7
Generally, the Lowest Bidder shall be the Successful Bidder. The remaining
Bidders shall be kept in reserve and may, in accordance with the process specified
in Clause 3 of this RFP, be invited to match the Bid submitted by the Lowest
Bidder in case such Lowest Bidder withdraws or is not selected for any reason. In
the event that none of the other Bidders match the Bid of the Lowest Bidder, the
Procurers may, in its discretion, either invite fresh Bids from the remaining
Bidders or annul the Bidding Process.
1.2.8 Other details of the process to be followed at the Bid Stage and the terms thereof
are spelt out in this RFP.
1.2.9 Any queries or request for additional information concerning this RFP shall be
submitted in writing or by fax and e-mail to the officer designated in Clause
2.10.7below.The envelopes/ communication shall clearly bear the following
identification/ title:
"Queries/Request for Additional Information: RFP for ***UMPP".
1.3
Schedule of Bidding Process

The Procurers shall endeavour to adhere to the following schedule:
1
2
3
4
Event Description
Last date for receiving queries
Pre-Bid conference-1
Procurers response to queries
latest by
(Pre-Bid conference -2)10
Date
(25 days from the date of RFP)
(To be specified)
(35 days from the date of RFP)9
(To be specified)
Insert a date that is atleast 10 days prior to the Bid Due Date
In case of complex projects, the number of pre-bid meetings could be more than two.
10
(17.08.15)
5
6
7
Bid Due Date

Opening of Non-Financial
Bids
Opening of Bids
8
9
1
0
Letter of Award (LOA)

Bid Validity
Execution of the following
documents:
(i)
(ii)
(iii)
(iv)
(v)
11
(To be specified)
On Bid Due Date (at least 45 days
from the date of RFP)
(Within 15 days of the Bid Due
Date)
Within 30 days of Bid Due Date
120 days of Bid Due Date
Within 60 days of award of LOA
Share
Purchase
Agreement
and
acquisition of 100%
Equity in the Seller as
per the format attached
herein as AppendixVII;
as per the format
attached herein as
Appendix-VI;
Execution
of
the
Default
Escrow
Agreement and the
Agreement
to
Hypothecate cum Deed
of Hypothecation by
the Procurers with the
concerned parties as
per
the
formats
attached herein as
Appendix-VIII
and
AppendixIX
respectively, if not
already executed;
Execution of the Land
Lease
Agreement-1
between the [***]11and
the Seller as per the
format attached herein
as Appendix-X, if not
already executed;
Execution
of
the
Allocated Captive Coal
Insert name of Infrastructure SPV

4
(17.08.15)
(vi)
Block Land Lease

Agreement between the
[***]12 and the Seller
in the format attached
herein as AppendixXI, if not already
executed; and
Execution of the PPA.
1.4 Phased Implementation

The Bidders may, at their option, undertake the financing and construction of the
Project in two phases, in accordance with the terms specified in the PPA with the
first phase comprising of atleast50% of the Installed Capacity.
1.5
Price of the Power Station Land, Captive Coal Block Land and R&R Cost
The cost of the following shall be made known to the bidders At least thirty (30)
days prior to Bid Due Date:
1.5.1 Power Station Land: The estimated cost of the Power Station Land (Declared
Price of the Power Station Land), comprising of the cost of Land -1 which shall
be paid in the form of lease rent by the Seller to the [***]13 in terms of the Land
Lease Agreement-1 and the estimated price for the acquisition of Land -2
(Declared Price of the Power Station Land-2). Any amount expended by the
Seller over and above the Declared Price of Land-2 shall be dealt with in
accordance with the provisions of the PPA.
1.5.2 Captive Coal Block Land: The estimated cost of the Captive Coal Block Land
alongwith the mining rights therein (Declared Price of the Captive Coal Block
Land), comprising of the cost of Allocated Captive Coal Block Land, which shall
be paid in the form of lease rent by the Seller to the [***]14 in terms of the Captive
Coal Block Lease Agreement and the estimated price for the acquisition of the
Remaining Captive Coal Block Land (Declared Price of the Remaining Captive
Coal Block Land). Any amount expended by the Seller over and above the
Declared Price of the Remaining Captive Coal Block Land shall be dealt with in
1.5.3 R&R Cost-The estimated cost of the R&R package as furnished to the Bidders
with regard to the Power Station Land and the Captive Coal Block Land
(Declared Price of the R&R Package). Any amount expended by the Seller
over and above the Declared Price of the R&R Package shall be dealt with in
12

14
13
(17.08.15)
1.5.4 Acquisition of the 100% Equity in the Seller-The acquisition price of the
100%Equity in the Seller.
(17.08.15)
2.
INSTRUCTIONS TO BIDDERS
A.
GENERAL
2.1.
General terms of Bidding
2.1.1
No Bidder shall submit more than one Bid for the Project. A Bidder bidding
individually or as a member of a Consortium shall not be entitled to submit
another bid either individually or as a member of any Consortium, as the case may
be.
2.1.2
Unless the context otherwise requires, the terms not defined in this RFP, but
defined in the Request for Qualification document for the Project (the RFQ)
shall have the meaning assigned thereto in the RFQ.
2.1.3
The Feasibility Report and other study reports of the Project are being provided
only as a preliminary reference document by way of assistance to the Bidders who
are expected to carry out their own surveys, investigations and other detailed
examination of the Project before submitting their Bids. Nothing contained in the
Feasibility Report and other study reports shall be binding on the Procurers nor
confer any right on the Bidders, and the Procurers shall have no liability
whatsoever in relation to or arising out of any or all contents of the Feasibility
Report and other study reports.
2.1.4
Notwithstanding anything to the contrary contained in this RFP, the detailed terms
specified in the PPA shall have overriding effect; provided, however, that any
conditions or obligations imposed on the Bidder hereunder shall continue to have
effect in addition to its obligations under the PPA.
2.1.5
The Bid should be furnished in the format at Appendix -V, clearly indicating the
bid amount in figures, in Rupees/kWh upto three decimals, and signed by the
Bidders authorised signatory.
2.1.6
The Bid shall consist of a Tariff to be quoted by the Bidder, as per the terms and
conditions of this RFP and the provisions of the PPA.
2.1.7
The Bidder should submit a Power of Attorney as per the format at Appendix
III, authorising the signatory of the Bid to commit the Bidder.
2.1.8
In case the Bidder is a Consortium, the Members thereof should furnish a Power
of Attorney in favour of the Lead Member in the format at AppendixIV.
2.1.9
Any condition or qualification or any other stipulation contained in the Bid shall
render the Bid liable to rejection as a non-responsive Bid.
(17.08.15)
2.1.10 The Bid and all communications in relation to or concerning the Bidding
Documents and the Bid shall be in English language.
2.1.11 The documents including this RFP and all attached documents, provided by the
Procurers are and shall remain or become the property of the Procurers and are
transmitted to the Bidders solely for the purpose of preparation and the
submission of a Bid in accordance herewith. Bidders are to treat all information as
strictly confidential and shall not use it for any purpose other than for preparation
and submission of their Bid. The provisions of this Clause 2.1.11 shall also apply
mutatis mutandis to Bids and all other documents submitted by the Bidders, and
the Procurers will not return to the Bidders any Bid, document or any information
provided along therewith.
2.1.12 A Bidder shall not have a conflict of interest (the Conflict of Interest) that
affects the Bidding Process. Any Bidder found to have a Conflict of Interest shall
be disqualified. In the event of disqualification, the Procurers shall be entitled to
forfeit and appropriate the Bid Security or Performance Guarantee, as the case
may be, as mutually agreed genuine pre-estimated loss and damage likely to be
suffered and incurred by the Procurers and not by way of penalty for, inter alia,
the time, cost and effort of the Procurers, including consideration of such Bidders
proposal (the Damages), without prejudice to any other right or remedy that
may be available to the Procurers under the Bidding Documents and/ or the PPA
or otherwise.
(i)
the Bidder, its Member or Associate (or any constituent thereof) and any
other Bidder, its Member or any Associate thereof (or any constituent
thereof) have common controlling shareholders or other ownership
interest;
Provided that this disqualification shall not apply in cases where
(a) the direct or indirect shareholding of a Bidder, its Member or an
Associate thereof (or any shareholder thereof) in the other Bidder, its
Member or Associate, is less than 5% (five per cent) of the subscribed
and paid up equity share capital thereof;
(b) the ownership is by a bank, insurance company, pension fund or a
public financial institution as defined in section 2(72) of the
Companies Act, 2013.
The provisions of Clause 2.1.12 (i), (iii) and (v) shall not apply to government entities.
Shareholder for the purposes of clause 2.1.12 (i) shall be the shareholder having a shareholding of more
than5% (five percent) of the paid up and subscribed share capital of such Bidder, Member or Associate, as
the case may be.
(17.08.15)
Computation of Indirect Shareholding - For the purposes of this Clause

2.1.12, indirect shareholding held through one or more intermediate
persons shall be computed as follows:
(aa) where any intermediary (for example entity B) is controlled by a
person (for example entity A) through management control or otherwise,
the entire shareholding held by such controlled intermediary, i.e. entity B
in any other person for example entity C shall be taken into account for
computing the shareholding of such controlling person i.e. entity A in
entity C; and
(bb) where a person i.e. entity A does not exercise control over an
intermediary i.e. entity B, which has shareholding in another entity i.e.
entity C , the computation of indirect shareholding of such person in the
Subject Person shall be undertaken on a proportionate basis; provided,
however, that no such shareholding shall be reckoned under this subclause (bb) if the shareholding of such person in the intermediary is less
than 26% of the subscribed and paid up equity shareholding of such
intermediary; or
(ii)
a constituent of such Bidder is also a constituent of another Bidder; or
(iii)
such Bidder, its Member or any Associate thereof receives or has received
any direct or indirect subsidy,grant, concessional loan or subordinated debt
from any other Bidder, its Member or Associate, or has provided any such
subsidy, grant, concessional loan or subordinated debt to any other Bidder,
its Member or any Associate thereof; or
(iv)
such Bidder has the same legal representative for purposes of this Bid as
any other Bidder; or
(v)
such Bidder, or any Associate thereof, has a relationship with another

Bidder, or any Associate thereof, directly or through common third party/
parties, that puts either or both of them in a position to have access to each
others information about, or to influence the Bid of either or each other;
or
(vi)
such Bidder or any Associate thereof has participated as a consultant to the

Procurers in the preparation of any documents, design or technical
specifications of the Project.
Explanation:
In case a Bidder is a Consortium, then the term Bidder as used in this Clause
2.1.12, shall include each Member of such Consortium.
(17.08.15)
For purposes of this RFP, Associate means, in relation to the Bidder/ Consortium
Member, a person who controls, is controlled by, or is under the common control
with such Bidder/ Consortium Member (the Associate). The expression
control means, with respect to a person which is a company or corporation, the
ownership, directly or indirectly, of more than 50% (fifty per cent) of the voting
shares of such person, and with respect to a person which is not a company or
corporation, the power to direct the management and policies of such person by
operation of law.
2.1.13 A Bidder shall be liable for disqualification and forfeiture of Bid Security if any
legal, financial or technical adviser of the Procurers in relation to the Project is
engaged by the Bidder, its Members or any Associate thereof, as the case may be,
in any manner for matters related to or incidental to such Project during the
Bidding Process or subsequent to the (i) issue of the LOA or (ii) execution of the
PPA. In the event any such adviser is engaged by the Successful Bidder or Seller,
as the case may be, after issue of the LOA or execution of the PPA for matters
related or incidental to the Project, then notwithstanding anything to the contrary
contained herein or in the LOA or the PPA and without prejudice to any other
right or remedy of the Procurers, including the forfeiture and appropriation of the
Bid Security or Performance Guarantee, as the case may be, which the Procurers
may have thereunder or otherwise, the LOA or the PPA, as the case may be, shall
be liable to be terminated without the Procurers being liable in any manner
whatsoever to the Successful Bidder or Seller for the same.For the avoidance of
doubt, this disqualification shall not apply in cases as provided in the RFQ.
2.1.14 This RFP is not transferable.
2.1.15 The award of the Project pursuant to this RFP shall be subject to the terms of
Bidding Documents.
2.1.16 The Bidder, its Members or Associate (or any constituent thereof) or any Group
Company of all or any of the aboveshall not have 3 (three) or more Ultra Mega
Power Projects, which have not achieved COD of the power plant on the
Application Due Date.
As used in this definition, the expression Group Company of a company means
(i) a company which, directly or indirectly, holds 10% (ten percent) or more of the
share capital of the company or
(ii) a company in which the company, directly or indirectly, holds 10% (ten
percent) or more of the share capital of such company or
(iii) a company in which the company, directly or indirectly, has the power to
direct or cause to be directed the management and policies of such company
whether through the ownership of securities or agreement or any other
arrangement or otherwise or
10
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(iv) a company which, directly or indirectly, has the power to direct or cause to be
directed the management and policies of the Company whether through the
ownership of securities or agreement or any other arrangement or otherwise or
(v) a company which is under common control with the company, and
notwithstanding anything else contained in this RFP, control for the purposes of
this clause 2.1.16 means ownership by one company of at least 10% (ten percent)
of the share capital of the other company or power to direct or cause to be directed
the management and policies of such company whether through the ownership of
securities or agreement or any other arrangement or otherwise.
Provided that a financial institution, scheduled bank, foreign institutional investor,
non-banking financial company, and any mutual fund shall not be deemed to be
Group Company, and its shareholding and the power to direct or cause to be
directed the management and policies of a company shall not be considered for
the purposes of this definition unless it is the Bidding Company or a Member of
the Bidding Consortium.
Further, as used in this definition, the expression UMPP shall mean an ultra
mega power project based on super critical coal thermal technology, with installed
capacity of 3960 MW or above or such other capacity as may be stipulated by the
Central Government, from which power procurement has been tied through tariff
based competitive bidding initiated through a Central Government initiative.
2.1.17 Only Bidders who agree and undertake to procure the boilers, turbines, and
generators of their Projects from manufacturing facilities situated in India and
owned and operated in India by an Indian company, a foreign company or a joint
venture between an Indian and foreign company shall be eligible hereunder.
2.2.18 The Bidder who is the Successful Bidder shall ensure that the Associate whose
credentials the Successful Bidder has relied upon during the bidding process shall
continue to remain an Associate till the actual COD of the Power Station.
2.2
Change in composition of the Consortium
2.2.1
Where the Bidder is a Consortium, change in composition of the Consortium may

be permitted by the Procurers during the Bid Stage, only where:
(a)
(b)
(c)
the Lead Member continues to be the Lead Member of the Consortium;

the substitute is at least equal, in terms of Technical Capacity or Financial
Capacity, to the Consortium Member who is sought to be substituted and
the modified Consortium shall continue to meet the qualification criteria
for Bidders; and
the new Member(s) expressly adopt(s) the Application already made on
behalf of the Consortium as if it were a party to it originally, and is not an
Applicant/Member/ Associate of any other Consortium bidding for this
Project.
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(17.08.15)
The option of change in composition of the Consortium which is available under

Clause 2.2.1 may be exercised by a Bidder who is qualified either as a Consortium
or as a single entity. In the case of a single entity Bidder adding a Consortium
Member at the Bid Stage, the single entity Bidder shall be the Lead Member of
the Consortium. Provided, however, that no member of such Consortium shall be
a Bidder or the member of a Consortium which has been qualified.
2.2.2
Approval for change in the composition of a Consortium shall be at the sole

discretion of the Procurers and must be approved by the Procurers in writing. The
Bidder must submit its application for change in composition of the Consortium
no later than 15 (fifteen) days prior to the Bid Due Date.
2.2.3
The modified/ reconstituted Consortium shall submit a revised Jt. Bidding

Agreement and a Power of Attorney, substantially in the form at Appendix-IV,
prior to the Bid Due Date.
2.3
Change in Ownership
2.3.1
The Bidder shall ensure that, if it is the Successful Bidder, its Equity holding in
the Seller shall not decline below (a) 51% (fifty one per cent) during the
Construction Period, (b) 33% (thirty three per cent) during a period of 3 (three)
years following COD of the Power Station and (c) 26% (twenty six per cent)
thereof, or such lower proportion as may be permitted by the Lead Procurer
during a period of 10 (ten) years following the COD of the Power Station.
Further, The Bidder shall also ensure that till end of the Construction Period there
shall not be any change in control, directly or indirectly of the Board of Directors
of the Seller by any person either by himself or together with any person or
persons acting in concert with him, except with the prior written approval of the
Procurers.
2.3.2
In case of a Consortium, by submitting the Bid, the Bidder acknowledges that it

was qualified on the basis of Technical Capacity and Financial Capacity of those
of its Consortium Members who shall, each hold at least 26% (twenty six per
cent) Equity in the Seller until the COD of the Power Station specified in the PPA
and shall further commit that the combined Equity holding of all the Member(s)
whose Technical Capacity and Financial Capacity has been evaluated for the
purposes of this RFQ shall be at least (a) 51% till the COD of the Power Station
specified in the PPA (b) 33% (thirty percent) till 3 (three) years following the
COD of the Power Station specified in the PPA and (c) 26% (twenty six percent)
or such lower proportion as may be permitted by the Procurers during a period of
10 (ten) years of the COD of the Power Station specified in the PPA; The Bidder
further acknowledges and agrees that the aforesaid obligation shall be the
minimum, and shall be in addition to such other obligations as may be contained
in the PPA, and a breach hereof shall, notwithstanding anything to the contrary
12
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contained in the PPA, be deemed to be a breach of the PPA and dealt with as such
thereunder.
2.3.3
The Bidder shall ensure that, if it is the Successful Bidder, the Successful
Bidder/Consortium Members shall continue to hold 100% Equity in the Seller
uptil the satisfaction of the Conditions Subsequent by both the Seller and the
Procurers in terms of the PPA.
2.3.4
By submitting the Bid, the Bidder shall also be deemed to have acknowledged and
agreed that in the event of a change in control of an Associate whose Technical
Capacity and/ or Financial Capacity was taken into consideration for the purposes
of qualification under and in accordance with the RFQ, the Bidder shall be
deemed to have knowledge of the same and shall be required to inform the
Procurers forthwith along with all relevant particulars about the same and the
Procurers may, in its sole discretion, disqualify the Bidder or withdraw the LOA
from the Successful Bidder, as the case may be. In the event such change in
control occurs after Effective Date but prior to the COD of the Power Station, it
would, notwithstanding anything to the contrary contained in the PPA, be deemed
to be a breach of the PPA, and the same shall be liable to be terminated without
the Procurers being liable in any manner whatsoever to the Successful
Bidder/Seller. In such an event, notwithstanding anything to the contrary
contained in the PPA, the Procurers shall be entitled to forfeit and appropriate the
Bid Security or Performance Guarantee, as the case may be, as Damages, without
prejudice to any other right or remedy that may be available to the Procurers
under the Bidding Documents and/ or the PPA or otherwise.
2.4
Cost of Bidding
The Bidders shall be responsible for all of the costs associated with the
preparation of their Bids and their participation in the Bidding Process. The
Procurers will not be responsible or in any way liable for such costs, regardless of
the conduct or outcome of the Bidding Process.
2.5
Visit to the Power Station Land and the Captive Coal Block Land and
verification of information
2.5.1
Bidders are encouraged to submit their respective Bids after visiting thePower
Station Land and the Captive Coal Block Land and ascertaining for themselves
the site conditions, traffic, location, surroundings, climate, availability of power,
water and other utilities for construction, access to site, handling and storage of
materials, weather data, applicable laws and regulations, and any other matter
considered relevant by them.
2.5.2 It shall be deemed that by submitting a Bid, the Bidder has:

(a)
made a complete and careful examination of the Bidding Documents;

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(b)
(c)
(d)
(e)
(f)
(g)
received all relevant information requested from the Procurers;

accepted the risk of inadequacy, error or mistake in the information
provided in the Bidding Documents or furnished by or on behalf of the
Procurers relating to any of the matters referred to in Clause 2.5.1 above;
satisfied itself about all matters, things and information including matters
referred to in Clause 2.5.1 hereinabove necessary and required for
submitting an informed Bid, execution of the Project in accordance with
the Bidding Documents and performance of all of its obligations
thereunder;
acknowledged and agreed that inadequacy, lack of completeness or
incorrectness of information provided in the Bidding Documents or
ignorance of any of the matters referred to in Clause 2.5.1 hereinabove
shall not be a basis for any claim for compensation, damages, extension of
time for performance of its obligations, loss of profits etc. from the
Procurers, or a ground for termination of the PPA by the Bidder/Seller;
acknowledged that it does not have a Conflict of Interest; and
agreed to be bound by the undertakings provided by it under and in terms
hereof.
2.5.3
The Procurers shall not be liable for any omission, mistake or error in respect of
any of the above or on account of any matter or thing arising out of or concerning
or relating to RFP, RFQ, the Bidding Documents or the Bidding Process,
including any error or mistake therein or in any information or data given by the
Procurers.
2.6
Request for Information
2.6.1
The Bidder shall, as and when required by the Procurers, make available all such
information, evidence and documents as may be necessary for evaluation..
2.6.2
The Procurers reserves the right to reject any Bid and appropriate the Bid Security
if:
(a) at any time, a material misrepresentation is made or uncovered, or
(b) the Bidder does not provide, within the time specified by the Procurers, the
supplemental information sought by the Procurers for evaluation of the Bid.
Such misrepresentation/ improper response shall lead to the disqualification of the
Bidder. If the Bidder is a Consortium, then the entire Consortium and each
Member may be disqualified / rejected. If such disqualification / rejection occurs
after the Bids have been opened and the Lowest Bidder gets disqualified /
rejected, then the Procurers reserves the right to:
(i) invite the remaining Bidders to submit their Bids in accordance with
Clauses 3.6.3and 3.6.4; or
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(ii) take any such measure as may be deemed fit in the sole discretion of
the Procurers, including annulment of the Bidding Process.
2.6.3
In case it is found during the evaluation or at any time before the signing of the
Share Purchase Agreement, that one or more of the qualification conditions have
not been met by the Bidder, or the Bidder has made material misrepresentation or
has given any materially incorrect or false information, the Bidder shall be
disqualified forthwith whether or not the LOA has been issued, by a
communication in writing by the Procurers to the Bidder, without the Procurers
being liable in any manner whatsoever to the Bidder and without prejudice to any
other right or remedy which the Procurers may have under this RFQ, the Bidding
Documents, or under applicable law.
In the event it is found after the execution of the Share Purchase Agreement
and/or the execution of the PPA, that one or more of the qualification conditions
have not been met by the Bidder or that the Bidder has made material
misrepresentation or has given any materially incorrect or false information, the
consequences shall be as laid down in the Share Purchase Agreement and/or the
PPA.
B.
DOCUMENTS
2.7
Contents of the RFP
2.7.1
This RFP comprises the Disclaimer set forth hereinabove, the contents as listed
below, and will additionally include any Addenda issued in accordance with
Clause 2.9.
Invitation for Bids
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Introduction
Instructions to Bidders
Evaluation of Bids
Fraud and Corrupt Practices
Pre-Bid Conference
Miscellaneous
Appendices
I. Letter comprising the Bid
II. Bank Guarantee for Bid Security
III. Power of Attorney for signing of Bid
IV. Power of Attorney for Lead Member of Consortium
V. Format for the Bid
VI. Performance Guarantee Format
VII. Draft Share Purchase Agreement
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VIII. Draft Default Escrow Agreement

IX. Draft Agreement to Hypothecate cum Deed of Hypothecation
X. Draft Land Lease Agreement I
XI. Draft Allocated Coal Block Land Lease Agreement
XII. Methodology of computation of Levelised Tariff and Levelised Fixed
Charge
XIII. Draft Power Purchase Agreement
2.7.2 The Feasibility Report and other study reports provided by the Procurers as part of
the Bidding Documents shall be deemed to be part of this RFP.
2.8
Clarifications
2.8.1
Bidders requiring any clarification on the RFP may notify the Procurers in writing
or by fax and e-mail attaching the queries in microsoft word format in accordance
with Clause 1.2.9. They should send in their queries on or before the date
mentioned in the Schedule of Bidding Process specified in Clause 1.3. The
Procurers shall endeavour to respond to the queries within the period specified
therein, but no later than 15 (fifteen) days prior to the Bid Due Date. The
responses will be sent by fax or e-mail. The Procurers will forward all the queries
and its responses thereto, to all Bidders without identifying the source of queries.
2.8.2
The Procurers shall endeavour to respond to the questions raised or clarifications

sought by the Bidders. However, the Procurers reserves the right not to respond to
any question or provide any clarification, in its sole discretion, and nothing in this
Clause shall be taken or read as compelling or requiring the Procurers to respond
to any question or to provide any clarification.
2.8.3
The Procurers may also on its own motion, if deemed necessary, issue
interpretations and clarifications to all Bidders. All clarifications and
interpretations issued by the Procurers shall be deemed to be part of the Bidding
Documents. Verbal clarifications and information given by Procurers or its
employees or representatives shall not in any way or manner be binding on the
Procurers.
2.9
Amendment of RFP
2.9.1
At any time prior to the Bid Due Date, the Procurers may, for any reason, whether
at its own initiative or in response to clarifications requested by a Bidder, modify
the RFP by the issuance of Addenda.
2.9.2
Any Addendum issued hereunder will be in writing and shall be sent to all the
Bidders.
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2.9.3
In order to afford the Bidders a reasonable time for taking an Addendum into
account, or for any other reason, the Procurers may, in its sole discretion, extend
the Bid Due Date.
C.
PREPARATION AND SUBMISSION OF BIDS
2.10
Format and Signing of Bid
2.10.1 The Bidder shall provide all the information sought under this RFP. The Procurers
will evaluate only those Bids that are received in the required formats and
complete in all respects.
2.10.2 The Bid and its copy shall be typed or written in indelible ink and signed by the
authorised signatory of the Bidder who shall also initial each page, in blue ink.In
case of printed and published documents, only the cover shall be initialled. All the
alterations, omissions, additions or any other amendments made to the Bid shall
be initialled by the person(s) signing the Bid.
2.10.3 The documents accompanying the Bid (Non-Financial Bid) shall be placed in
a separate envelope (Envelope-I) and marked as Non-Financial Bid. The
documents shall include:
(a)
(b)
(c)
(d)
Letter comprising the Bid at Appendix I

Bid Security in the format at AppendixII;
Power of Attorney for signing of Bid in the format at AppendixIII;
If applicable, the Power of Attorney for Lead Member of Consortium in
the format at AppendixIV; and
2.10.4 The Bid shall be placed in a separate envelope (Envelope-II) and marked as
Financial Bid.
2.10.5 A true copy of the Non-Financial Bid, shall be bound together in hard cover. The
pages in the hard cover shall be numbered serially and every page shall be
initialled in blue ink by the authorised signatory of the Bidder. This copy of the
documents shall be placed in a separate envelope and marked Copy of
Documents. This Envelope shall not contain the copy of the Bid.
2.10.6 The two envelopes (along with the envelope marked Copy of Documents) shall
be placed in an outer envelope, which shall be sealed. Each of the three envelopes
shall clearly bear the following identification:
Bid for the *** UMPP
While extending the Bid Due Date on account of an addendum, the Procurers shall have due regard for
the time required by Bidders to address the amendments specified therein. In the case of amendments, at
least 15 (fifteen) days shall be provided between the date of amendment and the Bid Due Date.
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and shall clearly indicate the name and address of the Bidder. In addition, the Bid
Due Date should be indicated on the right hand top corner of each of the
envelopes.
2.10.7 Each of the envelopes shall be addressed to:
ATTN. OF:
Mr. ***
DESIGNATION:
***
ADDRESS:
***
FAX NO:
***
E-MAIL ADDRESS:
***
2.10.8 If the envelopes are not sealed and marked as instructed above, the Procurers
assumes no responsibility for the misplacement or premature opening of the
contents of the Bid submitted and consequent losses, if any, suffered by the
Bidder.
2.10.9 Bids submitted by fax, telex, or e-mail shall not be entertained and shall be
rejected.
2.11
Bid Due Date
2.11.1 Bids should be submitted latest by[***]15 hours IST on the Bid Due Date at the
address provided in Clause 2.10.7 in the manner and form as detailed in this RFP.
A receipt thereof should be obtained from the person specified at Clause 2.10.7.
2.11.2 The Procurers may, in its sole discretion, extend the Bid Due Date by issuing an
Addendum in accordance with Clause 2.9 uniformly for all Bidders.
2.12
Late Bids
Bids received by the Procurers after the specified time on the Bid Due Date shall
not be eligible for consideration and shall be summarily rejected.
2.13
Contents of the Bid
2.13.1 The Bid shall be furnished in the format at AppendixV and shall consist of the
Tariff to be quoted by the Bidder. The Bidder shall specify in Rupees/kWh, up to
three decimals, the Tariff to undertake the Project in accordance with this RFP
and the provisions of the PPA.
2.13.2 Generally, the Project will be awarded to the Lowest Bidder.
15
Insert Time
18
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2.13.3 The opening of Bids and acceptance thereof shall be substantially in accordance
with this RFP.
2.13.4 The PPA shall be deemed to be a part of the Bid.
2.14
Modifications/ Substitution/ Withdrawal of Bids
2.14.1 The Bidder may modify, substitute or withdraw its Bid after submission, provided
that written notice of the modification, substitution or withdrawal is received by
the Procurers prior to the Bid Due Date. No Bid shall be modified, substituted or
withdrawn by the Bidder on or after the Bid Due Date.
2.14.2 The modification, substitution or withdrawal notice shall be prepared, sealed,
marked, and delivered in accordance with Clause 2.10, with the envelopes being
additionally
marked
MODIFICATION,
SUBSTITUTION
or
WITHDRAWAL, as appropriate.
2.14.3 Any alteration/ modification in the Bid or additional information supplied
subsequent to the Bid Due Date, unless the same has been expressly sought for by
the Procurers, shall be disregarded.
2.15
Rejection of Bids
2.15.1 Notwithstanding anything contained in this RFP, the Procurers reserves the right
to reject any Bid and to annul the Bidding Process and reject all Bids at any time
without any liability or any obligation for such acceptance, rejection or
annulment, and without assigning any reasons therefor. In the event that the
Procurers rejects or annuls all the Bids, it may, in its discretion, invite all eligible
Bidders to submit fresh Bids hereunder.
2.15.2 The Procurers reserves the right not to proceed with the Bidding Process at any
time, without notice or liability, and to reject any Bid without assigning any
reasons.
2.16 Bids Validity
The Bids shall be valid for a period of not less than 120 (one hundred and twenty)
days from the Bid Due Date. The Bid Validity may be extended by mutual
consent of the respective Bidders and the Procurers.
2.17
Confidentiality
Information relating to the examination, clarification, evaluation and
recommendation for the Bidders shall not be disclosed to any person who is not
officially concerned with the process or is not a retained professional advisor
advising the Procurers in relation to, or matters arising out of, or concerning the
19
(17.08.15)
Bidding Process. The Procurers will treat all information, submitted as part of the
Bid, in confidence and will require all those who have access to such material to
treat the same in confidence. The Procurers may not divulge any such information
unless it is directed to do so by any statutory entity that has the power under law
to require its disclosure or is to enforce or assert any right or privilege of the
statutory entity and/ or the Procurers or as may be required by law or in
connection with any legal process.
2.18
Correspondence with the Bidder

Save and except as provided in this RFP, the Procurers shall not entertain any
correspondence with any Bidder in relation to acceptance or rejection of any Bid.
D.
BID SECURITY
2.19
Bid Security
2.19.1 The Bidder shall furnish as part of its Bid, a Bid Security referred to in Clause
1.2.4hereinabove in the form of a bank guarantee issued by a nationalised bank, or
a Scheduled Bank in India having a net worth of at least Rs. 1,000 crore (Rs. one
thousand crore), in favour of the Procurers in the format at AppendixII (the
Bank Guarantee) and having a validity period of not less than 180 (one
hundred eighty) days from the Bid Due Date, inclusive of a claim period of 60
(sixty) days, and may be extended as may be mutually agreed between the
Procurers and the Bidder from time to time. In case the Bank Guarantee is issued
by a foreign bank outside India, confirmation of the same by any nationalised
bank in India is required. For the avoidance of doubt, Scheduled Bank shall mean
a bank as defined under Section 2(e) of the Reserve Bank of India Act, 1934.
2.19.2 Any Bid not accompanied by the Bid Security shall be summarily rejected by the
Procurers as non-responsive.
2.19.3 Save and except as provided in Clauses 1.2.4, the Bid Security of unsuccessful
Bidders will be returned by the Procurers, without any interest, as promptly as
possible on acceptance of the Bid of the Successful Bidder or when the Bidding
process is cancelled by the Procurers, and in any case within 60 (sixty) days from
the Bid Due Date.
2.19.4 The Successful Bidders Bid Security will be retained, without any interest, till it
has provided a Performance Guarantee and executed the PPA.
2.19.5 The Procurers shall be entitled to forfeit and appropriate the Bid Security as
Damages inter alia in any of the events specified in Clause 2.19.6 herein below.
The Bidder, by submitting its Bid pursuant to this RFP, shall be deemed to have
acknowledged and confirmed that the Procurers will suffer loss and damage on
account of withdrawal of its Bid or for any other default by the Bidder during the
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(17.08.15)
period of Bid validity as specified in this RFP. No relaxation of any kind on Bid
Security shall be given to any Bidder.
2.19.6 The Bid Security shall be forfeited as Damages without prejudice to any other
right or remedy that may be available to the Procurers under the Bidding
Documents and/ or under the PPA, or otherwise, if
(a)
(b)
(c)
(d)
(e)
2.20
a Bidder submits a non-responsive Bid;

a Bidder engages in a corrupt practice, fraudulent practice, coercive
practice, undesirable practice or restrictive practice as specified in Clause
4 of this RFP;
a Bidder withdraws its Bid during the period of Bid validity as specified in
this RFP and as extended by mutual consent of the respective Bidder(s)
and the Procurers;
the Successful Bidder fails within the specified time limit (i) to sign and return the duplicate copy of LOA;
(ii) to sign the SPA and acquire the shares of the Seller; or
(iii) to sign the Default Escrow Agreement, Agreement to Hypothecate
cum Deed of Hypothecation, if applicable; or
(iii) to sign the PPA; or
(iii) to furnish the Performance Guarantee;
A material misrepresentation is made ore convered;
2.20.1 The Successful Bidder shall, furnish a Performance Guarantee within the time line
mentioned under Clause 1.3, in the form of a bank guarantee issued by a
nationalised bank, or a Scheduled Bank in India having a net worth of at least Rs.
1,000 crore (Rs. one thousand crore), in favour of the Procurers in the format at
AppendixVI (the Performance Guarantee) and having a validity period as per
the PPA. In case the Performance Guarantee is issued by a foreign bank outside
India, confirmation of the same by any nationalised bank in India is required. For
the avoidance of doubt, Scheduled Bank shall mean a bank as defined under
Section 2(e) of the Reserve Bank of India Act, 1934. The amount of the
Performance Guarantee shall be calculated as follows:
Rs. (***)16x (l + 0.5n).
Where "n" is calculated as follows:
(a)
In case Successful Bidder is a Bidding Company,
"n" is number of other pre-commissioned UMPPs for which the LOA has
been issued to the following:
(i)
a company (or its Parent/Affiliate/Ultimate Parent) and such company
being the Successful Bidder (or its Parent/Affiliate/ Ultimate Parent), or
(ii)
a consortium of which the Successful Bidder (or its Parent/Affiliate/
Ultimate Parent) was a member (or Parent/Affiliate/Ultimate Parent of
such member) having 26% or more equity share of such consortium,
16
Insert an amount equivalent to 2% (two percent) of the estimated Project Cost

21
(17.08.15)
(b)
(i)
(ii)
In case Successful Bidder is a Bidding Consortium,

"n" is number(s) of other pre-commissioned UMPPs for which the LOA
has been issued to the following:
a consortium, having a member (or Parent/Affiliate/Ultimate Parent of
such member) with 26% or more equity share of such consortium, who is
also a Member (or its Parent/Affiliate/Ultimate Parent) having 26% or
more equity share of the Successful Bidder, or
a company (or its Parent/Affiliate/Ultimate Parent) and such company
being a Member (or their Parent/Affiliate/Ultimate Parent) having 26% or
more equity share of the Successful Bidder.
2.20.2 The Performance Guarantee shall be provided separately to each of the Procurers
for the amount calculated pro-rata in the ratio of the Allocated Contracted
Capacity and rounded off to the nearest Rs. 1,00,000 (Rupees One Lakh) with the
principle that amounts below Rs. 50,000 (Rupees Fifty Thousand) shall be
rounded down and amounts of Rs. 50,000 (Rupees Fifty Thousand) and above
shall be rounded up
E.
BID PARAMETERS
2.21
Bid Parameters
2.21.1 The Bid shall consist of the Tariff offered by the Bidder for production and supply
of electricity to the Procurers in accordance with the provisions of the PPA. The
Tariff comprising the Bid shall be offered in accordance with the provisions of
this Clause 2.21.
2.21.2 The Tariff shall be as specified in the PPA and shall be payable in Indian Rupees
only.The Bid for the Project shall be the Tariff consisting the Fixed Charge, for
each Contract Year commencing from the COD of the first Unit of the Power
Station until 25 (twenty five) years from COD of the Power Station, and the
Variable Charge, as per the format attached in Appendix-V. The quoted Fixed
Charge for the first Contract Year shall be paid from the COD of the first Unit till
the COD of the Power Station. For the purpose of the Tariff payment, the Variable
Charge shall be escalated from the Bid Due Date as per the provisions of the PPA.
2.21.3 This Quoted Tariff of the Selected Bidder shall be inserted in Schedule 17 of
PPA.
2.21.4 The Levelised Fixed Charge shall not be more than 90% of the Levelised Tariff
and the Levelised Variable Charge shall not be more than 30% of the Levelised
Tariff. The Levelised Fixed Charge & Levelised Variable Charge shall be
calculated in accordance with Clause 3.4.3. The ratio of minimum and maximum
Fixed Charge during the term of the PPA shall not be less than 0.7 (zero point
seven).
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3. EVALUATION OF BIDS
3.1
Evaluation of Bids
The Bid evaluation process comprises of the following three steps:
1.
2.
3.
3.2
Step I Opening and Responsiveness check of Non-Financial Bids

(Envelope I)
Step II Opening and evaluation of Bids (Envelope II)
Step III Successful Bidder selection
Opening and Evaluation of Non-Financial Bids
3.2.1 The Procurers shall open the Non-Financial Bids at ***17 hours on the Bid Due
Date, at the place specified in Clause 2.10.7 and in the presence of the Bidders
who wish to be present.Provided however, in case there is only one Bidder, then
the Bid of such Bidder may be opened if Procurers who procure at least 75% of
the total allocated capacity give their consent to the opening of the Bid.
3.2.2 The Procurers will subsequently examine the Non-Financial Bids in accordance
with the provisions set out in this Section 3.
3.2.3 The Procurers may, at their sole discretion, ask for additional information and/or
seek clarifications from a Bidder after the Bid Due Date, inter alia, for the
purposes of removal of inconsistencies or infirmities in its Bid.
3.3
Step I - Responsiveness check of Non-Financial Bids

The Non-Financial Bids submitted by Bidders shall be initially scrutinized to
establish Responsiveness. Subject to Clause 3.2,3, any of the following
conditions may cause the Bid to be considered Non-responsive, at the sole
discretion of the Procurers in the event:
(a)
it is not received as per the format at AppendixI;
(b)
it is not received by the Bid Due Date including any extension thereof
pursuant to Clause 2.11.2;
(c)
it is not signed, sealed, bound together in hard cover and marked as
stipulated in Clause 2.10;
(d)
it is not accompanied by the Bid Security as specified in Clause 1.2.4;
(e)
it is not accompanied by the Power(s) of Attorney as specified in Clauses
2.1.7 and 2.1.8, as the case may be;
(f)
it does not contain the copies of the Non-Financial Bid as per Clause
2.10.5;
(g)
it contains any condition or qualification; and
(h)
it is non-responsive in terms hereof.
17
Insert time
23
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The Procurers reserves the right to reject any Bid which is non-responsive and no
request for alteration, modification, substitution or withdrawal shall be entertained
by the Procurers in respect of such Bid. The Bids of the Bidders whose NonFinancial Bid is non-responsive shall be returned unopened.
3.4
Step II - Evaluation of Bids
3.4.1
The Bid(Envelope II) which have been accepted for opening by the Procurers,
based on the responsiveness check as specified above in Clause 3.3, shall be
opened in presence of the representatives of the Bidders, who wish to be present,
as per the timelines indicated in Clause 1.3. The financial evaluation of the Bids
will be carried out based on information furnished in Envelope II. Provided
however, in case Envelope II of only one Bidder remains after the responsiveness
check (Step I) under Clause 3.3 then the Bid of such Bidder may be opened if
Procurers who procure at least 75% of the total allocated capacity give their
consent to the opening of the Bid.
3.4.2 For the purposes of comparison of Financial Bids, the Quoted Variable Charge of
each Bidder shall be uniformly escalated from the Bid Due Date by applying
escalation rate notified by the Commission applicable on the day which is 7
(seven) days prior to the Bid Due Date and the escalated Quoted Tariff shall be
computed by adding the quoted Fixed Charge and escalated Variable charge for
each year. Further, the said escalation factors shall be applied as at the mid-point
of each Contract Year. For the actual Tariff payment, however, such factors shall
be applied as per the provisions of the PPA.
3.4.3
Computing levelised tariffs and Levelised Fixed Charge

(i)
The escalated Quoted Tariffs (Rs/kWh) of each of the Bidders for each
Contract Year for the term of PPA, calculated as per provisions of Clause
3.4.2, shall then be discounted upto the assumed commissioning date of the
entire Contracted Capacity mentioned in Clause 3.4.3(ii), by applying the
discount factors (based on the discount rate notified by the Commission
applicable on the day which is 7 (seven) days prior to the Bid Due Date)
and such aggregate discounted value for the Term of the PPA shall be
divided by the sum of such discount factors so as to calculate the Levelised
Tariff of each Bidder.
(ii)
The Levelised Tariff and Levelised Fixed Charge shall be calculated by

assuming uniformly for all Bidders that entire Contracted Capacity has
been Commissioned on the date which is [Insert date as COD of the first
Unit of the Power Station].
(iii)
The methodology of computation of Levelised Tariff and Levelised Fixed

Charge is explained in the example provided in Appendix XII.
24
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3.5
Step III Successful Bidder Selection
3.5.1
The Levelised Tariff calculated as per Clause 3.4.3 shall be ranked from the
lowest to the highest and the Bidder with lowest Levelised Tariff shall be declared
as the Successful Bidder and the Letter of Award shall be issued to such
Successful Bidder.
3.5.2 The Procurers, in their own discretion, have the right to reject any or all Bids if
the Quoted Tariffs are not aligned to the prevailing market prices.
3.6
Selection of Bidder
3.6.1 Subject to the provisions of Clause 2.15.1, the Bidder whose Non-Financial Bid is
adjudged as responsive in terms of Clause 3.3 and with the lowest Levelised
Tariff in conformity with the provisions of Clause 3.4.3shall be declared as the
successful Bidder (Successful Bidder). In the event that the Procurers rejects or
annuls all the Bids, it may, in its discretion, invite all eligible Bidders to submit
fresh Bids hereunder.
3.6.2 In the event that two or more Bidders have the same Levelised Tariff (the "Tie
Bidders"), the Procurers shall identify the Successful Bidder by draw of lots,
which shall be conducted, with prior notice, in the presence of the Tie Bidders
who wish to be present.
3.6.3 In the event that the Lowest Bidder withdraws or is not selected for any reason in
the first instance (the first round of bidding), the Procurers may invite all the
remaining Bidders to revalidate or extend their respective Bid Security, as
necessary, and match the Levelised Tariff(up to three decimals) of the aforesaid
Lowest Bidder (the second round of bidding). If in the second round of
bidding, only one Bidder matches the Levelised TariffLowest Bidder, it shall be
the Successful Bidder. If two or more Bidders match the said Levelised Tariff of
the Lowest Bidder in the second round of bidding, then the Bidder whose
Levelised Tariff was lower as compared to other Bidder(s) in the first round of
bidding shall be the Successful Bidder. For example, if the third and fifth lowest
Bidders in the first round of bidding offer to match the said Levelised Tariff of the
Lowest Bidder in the second round of bidding, the said third lowest Bidder shall
be the Successful Bidder.
3.6.4 In the event that no Bidder offers to match the Levelised Tariff of the Lowest
Bidder in the second round of bidding as specified in Clause 3.6.3, the Procurers
may, in its discretion, invite fresh Bids (the third round of bidding) from all
Bidders except the Lowest Bidder of the first round of bidding, or annul the
Bidding Process, as the case may be. In case the Bidders are invited in the third
round of bidding to revalidate or extend their Bid Security, as necessary, and offer
25
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fresh Bids, they shall be eligible for submission of fresh Bids provided, however,
that in such third round of bidding only such Bids shall be eligible for
consideration which are lower than the Levelised Tariff of the second lowest
Bidder in the first round of bidding.
3.6.5 After selection, a Letter of Award (the LOA) shall be issued, in duplicate, by
the Procurers to the Successful Bidder and the Successful Bidder shall, within 7
(seven) days of the receipt of the LOA, sign and return the duplicate copy of the
LOA in acknowledgement thereof. In the event the duplicate copy of the LOA
duly signed by the Successful Bidder is not received by the stipulated date, the
Procurers may, unless it consents to extension of time for submission thereof,
appropriate the Bid Security of such Bidder as Damages on account of failure of
the Successful Bidder to acknowledge the LOA, and the next eligible Bidder may
be considered.
3.6.6 After acknowledgement of the LOA as aforesaid by the Successful Bidder, it shall
acquire the 100% Equity of the SPV/Seller, cause the SPV/Seller toexecute the
agreements mentioned under Clause 1.3, within the period prescribed therein. The
Successful Bidder shall not be entitled to seek any deviation, modification or
amendment in the PPA.
3.7
Contacts during Bid Evaluation

Bids shall be deemed to be under consideration immediately after they are opened
and until such time the Procurers make official intimation of award/ rejection to
the Bidders. While the Bids are under consideration, Bidders and/ or their
representatives or other interested parties are advised to refrain, save and except as
required under the Bidding Documents, from contacting by any means, the
Procurers and/ or their employees/ representatives on matters related to the Bids
under consideration.
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4. FRAUD AND CORRUPT PRACTICES

4.1
The Bidders and their respective officers, employees, agents and advisers shall
observe the highest standard of ethics during the Bidding Process and subsequent
to the issue of the LOA and during the subsistence of the PPA.
4.2
If it is determined by the Procurers that the Bidder or the Seller, as the case may
be, has directly or indirectly or through an agent, engaged or indulged in any
corrupt practice, fraudulent practice, Bidding Process or after the issuance of the
LOA or the execution of the PPA:
(i)
(ii)
(iii)
4.3
the Procurers may reject a Bid, withdraw the LOA, or terminate the PPA,
as the case may be, without being liable in any manner whatsoever to the
Bidder or Seller, as the case may be;
the Procurers shall be entitled to forfeit and appropriate the Bid Security
or Performance Guarantee, as the case may be, as damages, without
prejudice to any other right or remedy that may be available to the
Procurers under the Bidding Documents and/ or the PPA, or otherwise;
the Bidder or Seller, as the case may be, shall not be eligible to
participate in any tender or RFP issued by the Procurers during a period
of 2 (two) years from the date such Bidder or Seller, as the case may be,
is found by the Procurers to have directly or indirectly or through an
agent, engaged or indulged in any corrupt practice, fraudulent practice,
coercive practice, undesirable practice or restrictive practices, as the case
may be.
For the purposes of this Clause 4, the following terms shall have the meaning
hereinafter respectively assigned to them:
(a)
corrupt practice means

(i) the offering, giving, receiving, or soliciting, directly or indirectly, of
anything of value to influence the actions of any person connected with
the Bidding Process; or
(ii) save and except as permitted under the Clause 2.1.13 of this RFP,
engaging in any manner whatsoever, whether during the Bidding Process
orafter the issue of the LOA or after the execution of the PPA, as the case
may be, any person in respect of any matter relatingto the Project or the
LOA or the PPA, who at any time has been or is a legal, financial or
technical adviser of the Procurersin relation to any matter concerning the
Project;
For example, offering of employment to or employing or engaging in any manner whatsoever, directly or
indirectly, any official of the Procurers who is or has been associated in any manner, directly or indirectly,
with the Bidding Process or the LOA or has dealt with matters concerning the PPA or arising therefrom,
before or after the execution thereof, at any time prior to the expiry of one year from the date such official
resigns or retires from or otherwise ceases to be in the service of the Procurers.
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(b)
(c)
(d)
(e)
fraudulent practice means a misrepresentation or omission of facts or

suppression of facts or disclosure of incomplete facts, in order to influence
the Bidding Process;
coercive practice means impairing or harming, or threatening to impair
or harm, directly or indirectly, any person or property to influence any
persons participation or action in the Bidding Process;
undesirable practice means (i) establishing contact with any person
connected with or employed or engaged by the Procurers with the
objective of canvassing, lobbying or in any manner influencing or
attempting to influence the Bidding Process; or (ii) having a Conflict of
Interest; and
restrictive practice means forming a cartel or arriving at any
understanding or arrangement among Bidders with the objective of
restricting or manipulating a full and fair competition in the Bidding
Process.
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5.PRE-BID CONFERENCE
5.1
Pre-Bid conferences of the Bidders shall be convened at the designated date, time
and place. Only those persons who have purchased the RFP document shall be
allowed to participate in the Pre-Bid Conferences. A maximum of five
representatives of each Bidder shall be allowed to participate on production of
authority letter from the Bidder.
5.2
During the course of Pre-Bid conference(s), the Bidders will be free to seek
clarifications and make suggestions for consideration of the Procurers. The
Procurers shall endeavour to provide clarifications and such further information as
it may, in its sole discretion, consider appropriate for facilitating a fair, transparent
and competitive Bidding Process.
29
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6. MISCELLANEOUS
6.1
The Bidding Process shall be governed by, and construed in accordance with, the
laws of India and the Courts at ***18 shall have exclusive jurisdiction over all
disputes arising under, pursuant to and/ or in connection with the Bidding Process.
6.2
The Procurers, in its sole discretion and without incurring any obligation or
liability, reserves the right, at any time, to;
(a)
(b)
(c)
(d)
suspend and/ or cancel the Bidding Process and/ or amend and/ or

supplement the Bidding Process or modify the dates or other terms and
conditions relating thereto;
consult with any Bidder in order to receive clarification or further
information;
retain any information and/ or evidence submitted to the Procurers by, on
behalf of, and/ or in relation to any Bidder; and/ or
independently verify, disqualify, reject and/ or accept any and all
submissions or other information and/ or evidence submitted by or on
behalf of any Bidder.
6.3
It shall be deemed that by submitting the Bid, the Bidder agrees and releases the
Procurers, its employees, agents and advisers, irrevocably, unconditionally, fully
and finally from any and all liability for claims, losses, damages, costs, expenses
or liabilities in any way related to or arising from the exercise of any rights and/
or performance of any obligations hereunder, pursuant hereto and/ or in
connection with the Bidding Process and waives, to the fullest extent permitted by
applicable laws, any and all rights and/ or claims it may have in this respect,
whether actual or contingent, whether present or in future.
6.4
The Bidding Documents and RFQ are to be taken as mutually explanatory and,
unless otherwise expressly provided elsewhere in this RFP, in the event of any
conflict between them the priority shall be in the following order:
(a)
the Bidding Documents;
(b)
the RFQ.
i.e. the Bidding Documents at (a) above shall prevail over the RFQ at (b) above.
18
Insert name of the place

30
(17.08.15)
APPENDIX I
Letter comprising the Bid
(Refer Clauses 2.1.5 and 2.13)
Dated:
[The ***,
***********
***********]
Sub: Bid for *** Project
Dear Sir,
With reference to your RFP document dated ***, I/we, having examined the
Bidding Documents and understood their contents, hereby submit my/our Bid for the
aforesaid Project. The Bid is unconditional and unqualified.
2.
I/ We acknowledge that the Procurers will be relying on the information provided

in the Bid and the documents accompanying the Bid for selection of the
Successful Bidder for the aforesaid Project, and we certify that all information
provided therein is true and correct; nothing has been omitted which renders such
information misleading; and all documents accompanying the Bid are true copies
of their respective originals.
3.
This statement is made for the express purpose of our selection as Successful
Bidder for the development, construction, operation and maintenance of the
aforesaid Project and for sale of power to the Procurers.
4.
I/ We shall make available to the Procurers any additional information it may find
necessary or require to supplement or authenticate the Bid.
5.
I/ We acknowledge the right of the Procurers to reject our Bid without assigning
any reason or otherwise and hereby waive, to the fullest extent permitted by
applicable law, our right to challenge the same on any account whatsoever.
6.
I/ We declare that:
(a)
(b)
(c)
(d)
I/ We have examined and have no reservations to the Bidding Documents,

including any Addendum issued by the Procurers; and
I/ We do not have any conflict of interest in accordance with Clauses
2.1.12 and 2.1.13 of the RFP document; and
I/We have not directly or indirectly or through an agent engaged or
indulged in any corrupt practice, fraudulent practice, coercive practice,
undesirable practice or restrictive practice, as defined in Clause 4 of the
RFP document, in respect of any tender or request for proposal issued by
or any agreement entered into with the Procurers or any other public sector
enterprise or any government, Central or State; and
I/ We hereby certify that we have taken steps to ensure that in conformity
with the provisions of Section 4 of the RFP, no person acting for us or on
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(e)
our behalf has engaged or will engage in any corrupt practice, fraudulent
practice, coercive practice, undesirable practice or restrictive practice; and
the undertakings given by us along with the Application in response to the
RFQ for the Project were true and correct as on the date of making the
Application and are also true and correct as on the Bid Due Date and I/we
shall continue to abide by them.
7.
I/ We understand that you may cancel the Bidding Process at any time and that
you are neither bound to accept any Bid that you may receive nor to invite the
Bidders to Bid for the Project, without incurring any liability to the Bidders, in
accordance with Clause 2.15 of the RFP document.
8.
I/ We believe that we/ our Consortium satisfy(s) the Net Worth criteria and
meet(s) the requirements as specified in the RFQ document.
9.
I/ We declare that we/ any Member of the Consortium, or our/ its Associates are
not a Member of a/ any other Consortium submitting a Bid for the Project.
10.
I/ We certify that in regard to matters other than security and integrity of the
country, we/ any Member of the Consortium or any of our/ their Associates, our
CEO or any of our directors/ manager/key managerial personnel have not been
convicted by a Court of Law or indicted or adverse orders passed by a regulatory
authority.
11.
I/ We further certify that in regard to matters relating to security and integrity of

the country, we/ any Member of the Consortium or any of our/ their Associates
have not been charge-sheeted by any agency of the Government or convicted by a
Court of Law.
12.
I/ We undertake that in case due to any change in facts or circumstances during

the Bidding Process, we are attracted by the provisions of disqualification in terms
of the guidelines referred to above, we shall intimate the Procurers of the same
immediately.
13.
I/ We acknowledge and undertake that, if declared the Successful Bidder, our

Equity holding in the Seller shall not decline below (a) 51% (fifty one per cent)
during the Construction Period, (b) 33% (thirty three per cent) during a period of
3 (three) years following COD of the Power Station and (c) 26% (twenty six per
cent) thereof, or such lower proportion as may be permitted by the Lead Procurer
In case the Applicant is unable to provide the certification specified in paragraph 10, it may precede the
paragraph by the words, viz. Except as specified in Schedule *** hereto. The exceptions to the
certification or any disclosures relating thereto may be clearly stated in a Schedule to be attached to the
Application. The Procurers will consider the contents of such Schedule and determine whether or not the
exceptions/disclosures are of a nature that could cast a doubt on the ability or suitability of the Applicant to
undertake the Project.
32
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during a period of 10 (ten) years following the COD of the Power Station.
Further, Further, I/We acknowledge and undertake that till end of the
Construction Period there shall not be any change in control, directly or indirectly
of the Board of Directors of the Seller by any person either by himself or together
with any person or persons acting in concert with him, except with the prior
written approval of the Procurers.
14.
I/ We acknowledge and undertake that, if declared the Successful Bidder, we shall

continue to hold 100% Equity in the Seller uptil the satisfaction of the Conditions
Subsequent by both the Seller and the Procurers in terms of the PPA.
15.
I/ We acknowledge and undertake that our Consortium was qualified on the basis
of Technical Capacity and Financial Capacity of those of its Members who shall,
each hold at least 26% (twenty six per cent) Equity in the Seller uptil the COD of
the Power Station specified in the PPA and shall further commit that the
combined Equity holding of all the Member(s) whose Technical Capacity and
Financial Capacity has been evaluated for the purposes of this RFQ shall be at
least (a) 51% till the COD of the Power Station specified in the PPA (b) 33%
(thirty percent) till 3 (three) years following the COD of the Power Station
specified in the PPA and (c) 26% (twenty six percent) or such lower proportion as
may be permitted by the Procurers during a period of 10 (ten) years of the COD of
the Power Station specified in the PPA. We further agree and acknowledge that
the aforesaid obligation shall be in addition to the obligations contained in the
PPA in respect of Change in Ownership.
16.
I/We agree that the Bidder who is the Successful Bidder shall ensure that the
Associate whose credentials the Successful Bidder has relied upon during the
bidding process shall continue to remain an Associate till the actual COD of the
Power Station.
17.
I/We acknowledge and agree that in the event of a change in control of an

Associate whose Technical Capacity was taken into consideration for the
purposes of qualification under and in accordance with the RFQ, I/We shall
inform the Procurers forthwith along with all relevant particulars and the
Procurers may, in its sole discretion, disqualify our Consortium or withdraw the
Letter of Award, as the case may be. I/We further acknowledge and agree that in
the event such change in control occurs after signing of the PPA but prior to
Financial Close of the Project, it would, notwithstanding anything to the contrary
contained in the Agreement, be deemed a breach thereof, and the PPA shall be
liable to be terminated without the Procurers being liable to us in any manner
whatsoever.
18.
I/ We understand that the Successful Bidder is a Company incorporated under the

Indian Companies Act, 1956/Companies Act, 2013 and shall acquire the entire
equity of the SPV/Seller, established by the Procurers.
Omit if Bidder is single Applicant

33
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19.
I/We hereby irrevocably waive any right or remedy which we may have at any
stage at law or howsoever otherwise arising to challenge or question any decision
taken by the Procurers in connection with the selection of the Bidder, or in
connection with the Bidding Process itself, in respect of the above mentioned
Project and the terms and implementation thereof.
20.
In the event of my/ our being declared as the Successful Bidder, I/we agree to
enter into a PPA in accordance with the draft that has been provided to me/us
prior to the Bid Due Date. We agree not to seek any changes in the aforesaid draft
and agree to abide by the same.
21.
I/We have studied all the Bidding Documents carefully and also surveyed the
Power Station Land and the Captive Coal Block Land. We understand that except
to the extent as expressly set forth in the PPA, we shall have no claim, right or
title arising out of any documents or information provided to us by the Procurers
or in respect of any matter arising out of or relating to the Bidding Process
including the award of the Project.
22.
I/We offer a Bid Security of Rs.***(Rupees *** only) to the Procurers in

accordance with the RFP Document.
23.
The Bid Security in the form of a Bank Guarantee is attached.
24.
We have submitted the Bid strictly as per format provided in Appendix V of the
RFP, without any deviations, conditions and without mentioning any assumptions
or notes for the Bid in the said Appendix.
25.
I/We agree and understand that the Bid is subject to the provisions of the Bidding
Documents. In no case, I/we shall have any claim or right of whatsoever nature if
the Project is not awarded to me/us or our Bid is not opened or rejected.
26.
The Tariff has been quoted by me/us after taking into consideration all the terms
and conditions stated in the RFP, PPA, our own estimates of costs and revenues,
and after a careful assessment of the Power Station Land and the Captive Coal
Block Land and all the conditions that may affect the project cost and
implementation of the project.
27.
I/ We agree and undertake to abide by all the terms and conditions of the RFP
document.
28.
[We, the Consortium Members agree and undertake to be jointly and severally
liable for all the obligations of the Seller under the PPA.]
Delete if not applicable

34
(17.08.15)
29.
I/ We shall keep this offer valid for 120 (one hundred and twenty) days from the
Bid Due Date specified in the RFP.
In witness thereof, I/we submit this Bid under and in accordance with the terms of
the RFP document.
Yours faithfully,
Date:(Signature, name and designation of the Authorised signatory)

Place:
Name and seal of Bidder/Lead Member
35
(17.08.15)
APPENDIX II
Bank Guarantee for Bid Security
(Refer Clauses 1.2.4 and 2.19.1)
B.G. No. Dated:
1.
In consideration of you, ***, having its office at ***, (hereinafter referred to as

the Procurers, which expression shall unless it be repugnant to the subject or
context thereof include its, successors and assigns) having agreed to receive the
Bid of (a company registered under the Companies Act,
1956/Companies Act, 2013) and having its registered office at
(and acting on behalf of its Consortium) (hereinafter
referred to as the Bidder which expression shall unless it be repugnant to the
subject or context thereof include its/their executors, administrators, successors
and assigns), for the *** Project on BOO basis (hereinafter referred to as the
Project) pursuant to the RFQ Document dated [***] and the RFP Document
dated issued in respect of the Project and other related documents
thereto, including without limitation the PPA (hereinafter collectively referred to
as Bidding Documents), we (Name of the Bank) having our registered office at
and one of its branches at ..
(hereinafter referred to as the Bank), at the request of the Bidder, do hereby in
terms of Clause 1.2.4 of the RFP Document, irrevocably, unconditionally and
without reservation guarantee the due and faithful fulfilment and compliance of
the terms and conditions of the Bidding Documents by the said Bidder and
unconditionally and irrevocably undertake to pay forthwith to the Procurers an
amount of Rs.*** (Rupees *** only) (hereinafter referred to as the Guarantee)
as our primary obligation without any demur, reservation, recourse, contest or
protest and without reference to the Bidder if the Bidder shall fail to fulfil or
comply with all or any of the terms and conditions contained in the said Bidding
Documents.
2.
Any such written demand made by the Procurers stating that the Bidder is in
default of the due and faithful fulfilment and compliance with the terms and
conditions contained in the Bidding Documents shall be final, conclusive and
binding on the Bank.
3.
We, the Bank, do hereby unconditionally undertake to pay the amounts due and
payable under this Guarantee without any demur, reservation, recourse, contest or
The Bidder who is registered abroad may substitute the words, viz. a company registered under the
Companies Act, 1956/Companies Act, 2013 by the words, viz. a company duly organized and validly
existing under the laws of the jurisdiction of its incorporation.
Omit if the Bidder is not a Consortium.

36
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protest and without any reference to the Bidder or any other person and
irrespective of whether the claim of the Procurers is disputed by the Bidder or not,
merely on the first demand from the Procurers stating that the amount claimed is
due to the Procurers by reason of failure of the Bidder to fulfil and comply with
the terms and conditions contained in the Bidding Documents including failure of
the said Bidder to keep its Bid open during the Bid validity period as set forth in
the said Bidding Documents for any reason whatsoever. Any such demand made
on the Bank shall be conclusive as regards amount due and payable by the Bank
under this Guarantee. However, our liability under this Guarantee shall be
restricted to an amount not exceeding Rs. *** (Rupees *** only).
4.
This Guarantee shall be irrevocable and remain in full force for a period of 180
(one hundred and eighty) days from the Bid Due Date inclusive of a claim period
of 60 (sixty) days or for such extended period as may be mutually agreed between
the Procurers and the Bidder, and agreed to by the Bank, and shall continue to be
enforceable till all amounts under this Guarantee have been paid.
5.
We, the Bank, further agree that the Procurers shall be the sole judge to decide as
to whether the Bidder is in default of due and faithful fulfilment and compliance
with the terms and conditions contained in the Bidding Documents including,
inter alia, the failure of the Bidder to keep its Bid open during the Bid validity
period set forth in the said Bidding Documents, and the decision of the Procurers
that the Bidder is in default as aforesaid shall be final and binding on us,
notwithstanding any differences between the Procurers and the Bidder or any
dispute pending before any Court, Tribunal, Arbitrator or any other authority.
6.
The Guarantee shall not be affected by any change in the constitution or winding
up of the Bidder or the Bank or any absorption, merger or amalgamation of the
Bidder or the Bank with any other person.
7.
In order to give full effect to this Guarantee, the Procurers shall be entitled to treat
the Bank as the principal debtor. The Procurers shall have the fullest liberty
without affecting in any way the liability of the Bank under this Guarantee from
time to time to vary any of the terms and conditions contained in the said Bidding
Documents or to extend time for submission of the Bids or the Bid validity period
or the period for conveying acceptance of Letter of Award by the Bidder or the
period for fulfilment and compliance with all or any of the terms and conditions
contained in the said Bidding Documents by the said Bidder or to postpone for
any
time
and
from
time
to
time
any
of
the
powers
exercisable by it against the said Bidder and either to enforce or forbear from
enforcing any of the terms and conditions contained in the said Bidding
Documents or the securities available to the Procurers, and the Bank shall not be
released from its liability under these presents by any exercise by the Procurers of
the liberty with reference to the matters aforesaid or by reason of time being given
to the said Bidder or any other forbearance, act or omission on the part of the
37
(17.08.15)
Procurers or any indulgence by the Procurers to the said Bidder or by any change
in the constitution of the Procurers or its absorption, merger or amalgamation with
any other person or any other matter or thing whatsoever which under the law
relating to sureties would but for this provision have the effect of releasing the
Bank from its such liability.
8.
Any notice by way of request, demand or otherwise hereunder shall be

sufficiently given or made if addressed to the Bank and sent by courier or by
registered mail to the Bank at the address set forth herein.
9.
We undertake to make the payment on receipt of your notice of claim on us

addressed to [name of Bank along with branch address] and delivered at our
above branch which shall be deemed to have been duly authorised to receive the
said notice of claim.
10.
It shall not be necessary for the Procurers to proceed against the said Bidder
before proceeding against the Bank and the guarantee herein contained shall be
enforceable against the Bank, notwithstanding any other security which the
Procurers may have obtained from the said Bidder or any other person and which
shall, at the time when proceedings are taken against the Bank hereunder, be
outstanding or unrealised.
11.
We, the Bank, further undertake not to revoke this Guarantee during its currency
except with the previous express consent of the Procurers in writing.
12.
The Bank declares that it has power to issue this Guarantee and discharge the
obligations contemplated herein, the undersigned is duly authorised and has full
power to execute this Guarantee for and on behalf of the Bank.
13.
For the avoidance of doubt, the Banks liability under this Guarantee shall be
restricted to Rs. *** crore (Rupees *** crore only). The Bank shall be liable to
pay the said amount or any part thereof only if the Procurers serves a written
claim on the Bank in accordance with paragraph 9 hereof, on or before [***
(indicate date falling 180 days from the Bid Due Date)].
Signed and Delivered by .Bank

By the hand of Mr./Ms .., its ..and authorised
official.
(Signature of the Authorised Signatory)
(Official Seal)
38
(17.08.15)
APPENDIX III
Power of Attorney for signing of Bid
(Refer Clause 2.1.7)
Know all men by these presents, We,(name of the firm and address of the
registered office) do hereby irrevocably constitute, nominate, appoint and authorise Mr. /
Ms (Name), son/daughter/wife of and presently residing at , who is
presently employed with us/ the Lead Member of our Consortium and holding the
position of , as our true and lawful attorney (hereinafter referred to as the
Attorney) to do in our name and on our behalf, all such acts, deeds and things as are
necessary or required in connection with or incidental to submission of our bid for the
*** Project proposed or being developed by the ***(the Procurers) including but not
limited to signing and submission of all applications, bids and other documents and
writings, participate in bidders' and other conferences and providing information /
responses to the Procurers, representing us in all matters before the Procurers, signing and
execution of all contracts including the Power Purchase Agreement and undertakings
consequent to acceptance of our bid, and generally dealing with the Procurers in all
matters in connection with or relating to or arising out of our bid for the said Project
and/or upon award thereof to us and/or till the entering into of the Power Purchase
Agreement with the Procurers.
AND we hereby agree to ratify and confirm and do hereby ratify and confirm all acts,
deeds and things done or caused to be done by our said Attorney pursuant to and in
exercise of the powers conferred by this Power of Attorney and that all acts, deeds and
things done by our said Attorney in exercise of the powers hereby conferred shall and
shall always be deemed to have been done by us.
IN WITNESS WHEREOF WE, , THE ABOVE NAMED PRINCIPAL HAVE
EXECUTED THIS POWER OF ATTORNEY ON THIS DAY OF
,20...
For
(Signature, name, designation
and address)
Witnesses:
1.
2.
Accepted
Notarised
(Signature, name, designation and address

of the Attorney)
39
(17.08.15)
Notes:
The mode of execution of the Power of Attorney should be in accordance with the
procedure, if any, laid down by the applicable law and the charter documents of the
executant(s) and when it is so required, the same should be under common seal
affixed in accordance with the required procedure.
Wherever required, the Bidder should submit for verification the extract of the
charter documents and documents such as a board or shareholders resolution/power
of attorney in favour of the person executing this Power of Attorney for the delegation
of power hereunder on behalf of the Bidder.
For a Power of Attorney executed and issued overseas, the document will also have to
be legalised by the Indian Embassy and notarised in the jurisdiction where the Power
of Attorney is being issued. However, the Power of Attorney provided by Bidders from
countries that have signed the Hague Legislation Convention 1961 are not required
to be legalised by the Indian Embassy if it carries a conforming Appostille certificate.
40
(17.08.15)
APPENDIX IV
Power of Attorney for Lead Member of Consortium
Whereas the *** (the Procurers) has invited bids from qualified parties for the ***
Project(the Project).
Whereas, , and (collectively the Consortium) being
Members of the Consortium are interested in bidding for the Project in accordance with
the terms and conditions of the Request for Proposal and other connected documents in
respect of the Project, and
Whereas, it is necessary for the Members of the Consortium to designate one of them as
the Lead Member with all necessary power and authority to do for and on behalf of the
Consortium, all acts, deeds and things as may be necessary in connection with the
Consortiums bid for the Project and its execution.
NOW THEREFORE KNOW ALL MEN BY THESE PRESENTS
We, having our registered office at , M/s. ,
having our registered office at , and M/s. , having our
registered office at ,(hereinafter collectively referred to as the
Principals) do hereby irrevocably designate, nominate, constitute, appoint and authorise
M/s , having its registered office at , being one of
the Members of the Consortium, as the Lead Member and true and lawful attorney of the
Consortium (hereinafter referred to as the Attorney) and hereby irrevocably authorise
the Attorney (with power to sub-delegate) to conduct all business for and on behalf of the
Consortium and any one of us during the bidding process and, in the event the
Consortium is awarded the Project, during the execution of the Project, and in this regard,
to do on our behalf and on behalf of the Consortium, all or any of such acts, deeds or
things as are necessary or required or incidental to the submission of its bid for the
Project, including but not limited to signing and submission of all applications, bids and
other documents and writings, accept the Letter of Award, participate in bidders and
other conferences, respond to queries, submit information/ documents, sign and execute
contracts and undertakings consequent to acceptance of the bid of the Consortium and
generally to represent the Consortium in all its dealings with the Procurers, and/ or any
other Government Agency or any person, in all matters in connection with or relating to
or arising out of the Consortiums bid for the Project and/ or upon award thereof till the
Power Purchase Agreement is entered into with the Procurers.
AND hereby agree to ratify and confirm and do hereby ratify and confirm all acts, deeds
and things done or caused to be done by our said Attorney pursuant to and in exercise of
the powers conferred by this Power of Attorney and that all acts, deeds and things doneby
our said Attorney in exercise of the powers hereby conferred shall and shall always be
deemed to have been done by us/ Consortium.
41
(17.08.15)
IN WITNESS WHEREOF WE THE PRINCIPALS ABOVE NAMED HAVE

EXECUTED THIS POWER OF ATTORNEY ON THIS DAY OF
.., 20.
For ...
(Signature, Name & Title)
For ...................
For
(Executants)
(To be executed by all the Members of the Consortium)
Witnesses:
1.
2.
Notes:
The mode of execution of the Power of Attorney should be in accordance with the
procedure, if any, laid down by the applicable law and the charter documents of the
executant(s) and when it is so required, the same should be under common seal
affixed in accordance with the required procedure.
Wherever required, the Bidder should submit for verification the extract of the
charter documents and documents such as a board or shareholders resolution/ power
of attorney in favour of the person executing this Power of Attorney for the delegation
of power hereunder on behalf of the Bidder.
For a Power of Attorney executed and issued overseas, the document will also have to
be legalised by the Indian Embassy and notarised in the jurisdiction where the Power
of Attorney is being issued. However, the Power of Attorney provided by Bidders from
countries that have signed the Hague Legislation Convention 1961 are not required
to be legalised by the Indian Embassy if it carries a conforming Appostille certificate.
42
(17.08.15)
APPENDIX - V
FORMAT FOR THE BID
Dated:
[The ***,
***********
***********]
Sub: Bid for supply of power to Procurers from *** Project
Quoted Tariff
Contract Year Quoted Fixed Charge Quoted
Variable
from COD of (Rs./kwh)
Charge as on Bid Due
the
Power
Date (Rs./kWh)
Station
From COD of
1st Unit to
COD of Power
Station
1(COD of the
Power Station)
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
43
(17.08.15)
25
26
(25th
anniversary of
the COD of the
Power Station)
Notes:
1)
2)
3)
4)
The Quoted Tariff in Rs./kWh shall be provided up to three (3) decimal points.
The contents of this format shall be clearly typed.
All pages of this format shall be signed by the authorised signatory in whose name Power of
Attorney as per Clause 2.1.7 or 2.1.8, as the case may be is issued.
Ensure 27 values of Fixed Charge and only 1 value for Variable Charge.
Signature of authorised signatory in whose name Power of Attorney is issued

Name
44
(15.05.15)
APPENDIX- VI
Performance Guarantee Format
The ............,
Procurer
State of ............
WHEREAS:
(A) Following the Bidding Process for the development of the Project on Build, Own Operate
Basis, [***]has been identified as the Successful Bidder and has been issued the Letter
of Award dated [***] (LOA) by the Procurers;
(B) In consonance with the requirement of the LOA, the Successful Bidder shall/has acquired
the entire Equity in the [***](Seller).
(C) The LOA further requires the Successful Bidder to furnish to the [***]having its
principal offices at .................. (Procurer) on behalf of the Seller, a Performance
Guarantee for a sum of Rs [***] cr (Rupees [***] Crores) (Guarantee Amount) as a
security for the due and faithful performance of the obligations of the Seller, under and in
accordance with the terms and conditions of the Power Purchase Agreement (the
Agreement) to be executed between the Seller and the Procurer for the development of
the Project.
(D) We, through our Branch at (the Bank) have agreed to furnish this
Bank Guarantee by way of Performance Guarantee.
NOW, THEREFORE, the Bank hereby, unconditionally and irrevocably, guarantees and affirms
as follows:
1.
The Bank hereby unconditionally and irrevocably guarantees and undertakes to pay to the
Procurer upon occurrence of any failure or default in due and faithful performance of all
or any of the Sellers obligations, under and in accordance with the provisions of the
Agreement, on its mere first written demand, and without any demur, reservation,
recourse, contest or protest, and without any reference to the Seller, such sum or sums
upto an aggregate sum of the Guarantee Amount as the Procurer shall claim, without the
Procurer being required to prove or to show grounds or reasons for its demand and/or for
the sum specified therein.
Insert the name of the Selected Bidder

Insert the name of the Seller
Insert the name of the Procurer
45
(15.05.15)
2. A letter from the Procurer, under the hand of an Officer not below the rank of a
Superintending Engineer or equivalent, that the Seller has committed default in the due
and faithful performance of all or any of its obligations under and in accordance with the
Agreement shall be conclusive, final and binding on the Bank. The Bank further agrees
that the Procurer shall be the sole judge as to whether the Seller is in default in due and
faithful performance of its obligations from the Effective Date until 3 (three) months of
the COD of the Power Station in terms of the Agreement and its decision that the Seller is
in default shall be final, and binding on the Bank, notwithstanding any differences
between the Procurer and the Procurer, or any dispute between them pending before any
court, tribunal, arbitrators or any other authority or body, or by the discharge of the Seller
for any reason whatsoever.
3. In order to give effect to this Guarantee, the Procurer shall be entitled to act as if the
Bank were the principal debtor and any change in the constitution of the Seller and/or the
Bank, whether by their absorption with any other body or corporation or otherwise, shall
not in any way or manner affect the liability or obligation of the Bank under this
Guarantee.
4.
It shall not be necessary, and the Bank hereby waives any necessity, for the Procurer to
proceed against the Seller before presenting to the Bank its demand under this Guarantee.
5.
The Procurer shall have the liberty, without affecting in any manner the liability of the
Bank under this Guarantee, to vary at any time, the terms and conditions of the
Agreement or to extend the time or period for the compliance with, fulfilment and/or
performance of all or any of the obligations of the Seller contained in the Agreement or to
postpone for any time, and from time to time, any of the rights and powers exercisable by
the Procurer against the Seller, and either to enforce or forbear from enforcing any of the
terms and conditions contained in the Agreement and/or the securities available tothe
Procurer, and the Bank shall not be released from its liability and obligation under these
presents by any exercise by the Procurer of the liberty with reference to the matters
aforesaid or by reason of time being given to the Seller or any other forbearance,
indulgence, act or omission on the part of the Procurer or of any other matter or thing
whatsoever which under any law relating to sureties and guarantors would but for this
provision have the effect of releasing the Bank from its liability and obligation under this
Guarantee and the Bank hereby waives all of its rights under any such law.
6.
This Guarantee is in addition to and not in substitution of any other guarantee or security
now or which may hereafter be held by the Procurer in respect of or relating to the
Agreement or for the fulfilment, compliance and/or performance of all or any of the
obligations of the Seller under the Agreement.
7.
Notwithstanding anything contained hereinbefore, the liability of the Bank under this
Guarantee is restricted to the Guarantee Amount and this Guarantee will remain in force
for the period specified in paragraph 8 below and unless a demand or claim in writing is
made by the Procurer on the Bank under this Guarantee, no later than 6 (six) months from
46
(15.05.15)
the date of expiry of this Guarantee, all rights of the Procurer under this Guarantee shall
be forfeited and the Bank shall be relieved from its liabilities hereunder.
8.
The Performance Guarantee shall come into force with effect from the Effective Date and
shall cease to be effective following the expiry of a period of 3 (three) months from the
COD of the Power Station (Validity Period). The Performance Guarantee shall be
released by the Procurers within 30 (thirty) days of the expiry of the Validity Period after
adjusting the Liquidated Damages, if any, payable by the Seller in accordance with the
Agreement.
9.
The Bank undertakes not to revoke this Guarantee during its currency, except with the
previous express consent of the Procurer in writing, and declares and warrants that it has
the power to issue this Guarantee and the undersigned has full powers to do so on behalf
of the Bank.
10.
Any notice by way of request, demand or otherwise hereunder may be sent by post
addressed to the Bank at its above referred Branch, which shall be deemed to have been
duly authorised to receive such notice and to effect payment thereof forthwith, and if sent
by post it shall be deemed to have been given at the time when it ought to have been
delivered in due course of post and in proving such notice, when given by post, it shall be
sufficient to prove that the envelope containing the notice was posted and a certificate
signed by an officer of the Procurer that the envelope was so posted shall be conclusive.
11.
All terms used in capital letters but not defined herein shall have the meaning ascribed to
it in the Power Purchase Agreement.
Signed and sealed this day of , 20.. at ..

SIGNED, SEALED AND DELIVERED
For and on behalf of
the BANK by:
(Signature)
(Name)
(Designation)
(Code Number)
(Address)
47
(15.05.15)
APPENDIX- VII
Draft Share Purchase Agreement
48
(15.05.15)
APPENDIX- VIII
Draft Default Escrow Agreement
This Default Escrow Agreement is entered into on this the [*] day of [*] 20[*]
By &Amongst
1.
[*] Limited, a company incorporated under the provisions of the Companies Act, 2013
and having its registered office at [*] (hereinafter referred to as the Seller which
expression shall, unless repugnant to the context or meaning thereof, include its
successors, substitutes and permitted assigns);
4.
[*], through its [*] branch, and having its registered office at [*] (hereinafter referred to
as the Default Escrow Bank which expression shall, unless repugnant to the context or
meaning thereof, include its successors, substitutes and permitted assigns); and
3.
The [*] Distribution Company represented by [*]and having its principal offices at [*]
(hereinafter referred to as the Procurer which expression shall, unless repugnant to the
context or meaning thereof, include its administrators, successors and permitted assigns).
WHEREAS:
(A)
The Procurer has entered into a power purchase agreement dated [*] with the Seller for a
[*] MW Power Station at [*] in the State of [*] on a build, own and operate (BOO) basis
(the Power Purchase Agreement), and a copy of which is annexed hereto and marked
as Annex-A to form part of this Agreement.
(B)
To secure the Procurers payment obligations to the Seller under the Power Purchase
Agreement, the Procurer is required to establish a default escrow account on the terms
and conditions stated therein (the Default Escrow Account).
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and
agreements set forth in this Agreement, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
1
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement, the following words and expressions shall, unless repugnant to the
context or meaning thereof, have the meaning hereinafter respectively assigned to them:
(i) Agreement means this Default Escrow Agreement and any amendment thereto
made in accordance with the provisions contained herein;
name and particulars of the Default Escrow Bank

49
(15.05.15)
(ii) Cure Period means the period specified in this Agreement for curing any breach
or default of any provision of this Agreement by the Procurer, and shall commence
from the date on which a notice is delivered by the Seller to the Procurer asking the
latter to cure the breach or default specified in such notice;
(iii) Default Escrow Account shall have the meaning set forth in Recital B of this
Agreement;
(iv) Parties means the parties to this Agreement collectively and Party shall mean
any of the Parties to this Agreement individually;
(v) Procurer Account shall have the meaning set forth in Clause 2.4;
(vi) Procurer Escrow Default shall have the meaning set forth in Clause 8;
(vii) Procurers Lenders means the banks and/or financial institutions, which have
provided or propose to provide financial assistance and/or other facilities and
guarantees to the Procurer and who have, for the repayment and/or discharge of
obligations of the Procurer been provided security by way of a charge on the
revenues of the Procurer, as specified in Annex-I hereto.
(viii) Power Purchase Agreement shall have the meaning set forth in Recital A of
this Agreement; and
(ix) Revenue shall have the meaning as set forth in Article 17.2.1 of the Power
Purchase Agreement;
(x) Security shall have the meaning set forth in Clause 3.1.
1.4
Interpretation
1.4.1
The words and expressions beginning with capital letters and defined in this Agreement
shall have the meaning ascribed thereto herein, and the words and expressions used in
this Agreement and not defined herein but defined in the Power Purchase Agreement
shall, unless repugnant to the context, have the meaning ascribed thereto in the Power
Purchase Agreement.
1.4.2
References to Clauses and Annexes are, unless stated otherwise, references to Clauses
and Annexes of this Agreement.
1.2.3 The rules of interpretation stated in Clauses 1.2, 1.3 and 1.4 of the Power Purchase
Agreement shall apply, mutatis mutandis, to this Agreement.
2
DEFAULT ESCROW ACCOUNT
2.1
Default Escrow Bank to act as trustee

50
(15.05.15)
2.1.1
The Procurer hereby appoints the Default Escrow Bank to act as trustee for the Seller and
the Procurer in connection herewith and authorises the Default Escrow Bank to exercise
such rights, powers, authorities and discretion as are specifically delegated to the Default
Escrow Bank by the terms hereof together with all such rights, powers, authorities and
discretion as are reasonably incidental hereto, and the Default Escrow Bank accepts such
appointment pursuant to the terms hereof.
2.1.2
The Procurer hereby declares that all rights, title and interest in and to the Default Escrow
Account shall be vested in the Default Escrow Bank and held in trust for the Seller and
the Procurer, and applied in accordance with the terms of this Agreement. No person
other than the Seller and the Procurer shall have any rights hereunder as the beneficiaries
of or as third party beneficiaries under this Agreement.
2.2
Acceptance of Default Escrow Bank

The Default Escrow Bank hereby agrees to act as such and to accept the deposits of the
Procurer pursuant to the provisions of this Agreement and the Power Purchase
Agreement. The Default Escrow Bank shall hold and safeguard the Default Escrow
Account during the term of this Agreement and shall treat the amount in the Default
Escrow Account as monies deposited by the Procurer with the Default Escrow Bank. In
performing its functions and duties under this Agreement, the Default Escrow Bank shall
act in trust for the benefit of, and as agent for, the Seller and the Procurer, or their
nominees, successors or permitted assigns, in accordance with the provisions of this
Agreement.
2.3
Establishment of Accounts
2.3.1
Within 30 (thirty) days from the date of this Agreement, and in any case prior to the
Financial Closure, the Procurer shall open and establish the Default Escrow Account with
the [*](Branch) of the Default Escrow Bank, and such account shall be maintained at
all times until the termination of this Agreement under Clause 9 hereof. The Default
Escrow Account shall be denominated in Rupees.
2.3.2
The Default Escrow Bank shall maintain the Default Escrow Account in accordance with
the terms of this Agreement and its usual practices and applicable regulations, and pay
the maximum rate of interest payable to similar customers on the balance in the said
account from time to time.
2.3.3
The Default Escrow Bank and the Procurer shall, in accordance with good industry
practice, agree on the detailed mandates, terms and conditions, and operating procedures
for the Default Escrow Account, but in the event of any conflict or inconsistency between
this Agreement and such mandates, terms and conditions, or procedures, this Agreement
shall prevail.
Insert the name of Branch

51
(15.05.15)
2.4
Procurer Account
The Procurer undertakes to maintain the Procurer Account and continue to deposit therein
at least an amount equal to the amount of Revenue till the termination of this Agreement
under Clause 9 hereof.
2.5
Default Escrow Banks fee

The Default Escrow Bank shall be entitled to receive its fee and expenses in an amount,
and at such times, as may be agreed between the Default Escrow Bank and the Procurer.
For the avoidance of doubt, the Default Escrow Bank shall be entitled to deduct such fee
and expenses from the monies deposited in the Default Escrow Account.
2.6
Rights of the Parties

Save and except as otherwise provided in the Power Purchase Agreement, the rights of
the Seller and the Procurer in the monies held in the Default Escrow Account are set forth
in their entirety in this Agreement and the Seller and the Procurer shall have no other
rights against or to the monies in the Default Escrow Account.
2.7
Substitution/Acquisition of the Seller

The Parties acknowledge and agree that upon substitution of the Seller with the Selectee
pursuant to the terms of the Power Purchase Agreement, it shall be deemed for the
purposes of this Agreement that the Selectee is a Party hereto and the Selectee shall
accordingly be deemed to have succeeded to the rights and obligations of the Seller under
this Agreement with effect from the date of substitution of the Seller with the Selectee.
OBLIGATIONS OF THE DEFAULT ESCROW BANK
3.1
Creation of Security Interest

The Procurers expressly agree that they shall, within 60(sixty) days of LOA, execute the
Deed of Hypothecation and create with effect from 45 (forty-five) days prior to the
Scheduled COD, a first priority charge/ security interest in favour of the Seller on the
Revenues deposited into the Default Escrow Account pursuant to this Agreement, but not
exceeding the Letter of Credit Amount for and in respect of each and every month until
termination of this Agreement (the Security).
3.2
Transfer to Default Escrow Account

The Default Escrow Bank shall procure and ensure transfer of Revenues deposited into
the Procurer Account from the Procurer Account to the Default Escrow Account to the
extent of and in the manner specified in this Agreement.
52
(15.05.15)
3.3
Statement of accounts
The Default Escrow Bank shall provide to the Procurer and the Seller, no later than the 15
(fifteen) days from the end of each month, a statement of accounts detailing all deposits
and withdrawals into and from the Default Escrow Bank during the previous month.
During any period, following the delivery of a notice of the occurrence of a Procurer
Escrow Default and until delivery of notice that the Procurer Escrow Default has been
cured and is no longer continuing, the Default Escrow Bank shall provide such statement
of accounts to the Procurer and the Seller on a daily basis.
3.4
Protection of the Sellers interest

The Default Escrow Bank shall, at all times, act and discharge its functions and
obligations under this Agreement in accordance with the principle of protecting and
enforcing the rights and interest of the Seller hereunder and the Security afforded to it
herein for the full and timely performance of the payment obligations of the Procurer in
the manner laid down under this Agreement and the Power Purchase Agreement.
3.5
Monies to be held in trust

Monies received by the Default Escrow Bank under this Agreement shall, until used or
applied in accordance with this Agreement, be held by the Default Escrow Bank in trust
for the purposes for which they were received, and shall be segregated from other funds
and property of the Default Escrow Bank.
3.6
Communications and notices

In discharge of its duties and obligations hereunder, the Default Escrow Bank:
3.7
(i)
may, in the absence of bad faith or gross negligence on its part, rely as to any
matters of fact which might reasonably be expected to be within the knowledge of
the Procurer upon a certificate signed by or on behalf of the Procurer;
(ii)
may, in the absence of bad faith or gross negligence on its part, rely upon the
authenticity of any communication or document believed by it to be authentic;
(iii)
shall within 5 (five) business days after receipt, deliver a copy to the Seller of any
notice or document received by it from the Procurer in connection herewith; and
(iv)
shall within 5 (five) business days after receipt, deliver a copy to the Procurer of
any notice or document received by it from the Seller in connection herewith.
No set off
53
(15.05.15)
The Default Escrow Bank agrees not to claim or exercise any right of set off, bankers
lien or other right or remedy with respect to amounts standing to the credit of the Default
Escrow Account. For the avoidance of doubt, it is hereby acknowledged and agreed by
the Default Escrow Bank that the monies held by the Default Escrow Bank in the Default
Escrow Account shall not be considered as part of the assets of the Default Escrow Bank,
shall in the case of bankruptcy or liquidation of the Default Escrow Bank, be wholly
excluded from the assets of the Default Escrow Bank in such bankruptcy or liquidation.
3.8
Regulatory approvals
The Default Escrow Bank shall use its best efforts to procure, and thereafter maintain and
comply with, all regulatory approvals required for it to establish and operate the Default
Escrow Account. The Default Escrow Bank represents and warrants that it is not aware of
any reason why such regulatory approvals will not ordinarily be granted to the Default
Escrow Bank.
OBLIGATIONS OF THE PROCURER
4.1
General
4.1.1
The Procurer covenants with the Seller and the Default Escrow Bank that it will
discharge all its payment obligations in accordance with the provisions of the Power
Purchase Agreement and this Agreement.
4.1.2
The Procurer hereby agrees and undertakes that until the termination of this Agreement,
the Letter of Credit Amount shall be routed through the Default Escrow Account in
accordance with the terms hereof.
4.1.3
The Procurer agrees and undertakes that it shall not take any actions inconsistent with
the instructions given under this Agreement or interfere in any manner with the transfer
of funds into the Default Escrow Account in accordance with the terms of this
Agreement, or deliver or cause to be delivered to the Default Escrow Bank any
amendment, modification or supplement to such instructions or any additional or new
instructions regarding routing, deposit or withdrawal of funds by the Default Escrow
Bank without the express written approval of the Seller, which amendment, modification
or supplement thereto or any such additional or new instructions shall be effective only if
consented to by a duly authorised representative of the Seller.
4.2
Creation of Charge
4.2.1
The Procurer hereby agrees and undertakes that it shall create, under and pursuant to the
Deed of Hypothecation, a first charge in favour of the Seller over the Revenues routed
through the Default Escrow Account in pursuance of this Agreement, which charge shall
remain in force and effect until payment and discharge of all the payment obligations of
the Procurer in terms of this Agreement. The Procurer further acknowledges and agrees
that commencing from the date of execution of the Agreement to Hypothecate Cum Deed
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of Hypothecation and until payment and discharge of the all the payment obligations of
the Procurer in terms of this Agreement, the Procurers Lenders or any other entity shall
not have any charge over any part of this Security, and that such charge, if created in
future, in favour of Procurers lenders or any other entity would be secondary and
subordinate to the first charge created in favour of the Seller pursuant to the Agreement
to Hypothecate cum Deed of Hypothecation. The Procurer expressly agrees that it shall
procure and ensure that the rights of the Seller hereunder are not prejudiced in any
manner whatsoever.
4.2.2
The Procurer agrees and undertakes to provide such other documents, certificates and
agreements as the Seller or the Default Escrow Bank may reasonably request in respect of
creating a first charge in favour of the Seller in accordance with Clause 4.2.1.
4.2.3
The Procurer may, subject to the provisions of this Agreement and the Deed of
Hypothecation, create any other security interest subordinate and secondary to (i) the first
charge created in favour of the Seller over the Revenues routed through the Default
Escrow Account or (ii) any part thereof, in favour of any person other than the Seller for
any reason whatsoever.
4.3
Changes in revenue collection

No change shall be made or permitted by the Procurer in its business operations or
revenue collection policies which would result in the reduction or diversion of Revenues
from the Procurer Account such that its level falls below 30% (thirty per cent) of the total
monthly Revenues of the Procurer from any and all sources.
OPERATION & MANAGEMENT OF DEFAULT ESCROW ACCOUNT
5.1
General
5.1.1
All amounts deposited in the Procurer Account shall be applied by the Default Escrow
Bank in accordance with this Clause 5. The parties expressly agree that all amounts
routed through the Default Escrow Account pursuant to this Agreement shall constitute a
part of the Security and shall not constitute discharge of the payment obligations of the
Procurer until applied to the payment thereof as hereinafter provided.
5.1.2 In the event of any dispute arising out of this Agreement, the Parties shall have recourse
to the dispute resolution mechanism specified in Clause 12:
Provided that pending the full and final resolution of such dispute, the Default Escrow
Bank shall retain the disputed amounts in the Default Escrow Account and shall not allow
transfer or withdrawal of funds from the Default Escrow Account to the extent of the
amount under dispute. Upon full and final settlement of the dispute, either the Procurer or
the Seller may bring the decision of the arbitrator, commission or court, as the case may
be, to the notice of the Default Escrow Bank who shall be bound by such decision and
shall carry out such actions as are specified in the decision.
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5.2
Deposits by the Procurer

The Procurer and the Default Escrow Bank agree and undertake that during the period
commencing from the 10th (tenth) day and ending on the 30th (thirtieth) day of every
month, the Default Escrow Bank shall deposit into the Default Escrow Account by daily
transfers from the Procurer Account, without any further authorisation or instructions
from the Procurer, funds aggregating an amount equal to the Letter of Credit Amount,
and shall continue to make such deposits every month until all the payment obligations of
the Procurer in terms of this Agreement are fully discharged.
5.3
Irrevocable instructions
The Procurer irrevocably directs the Default Escrow Bank, and the Default Escrow Bank
agrees to transfer from the Procurer Account to the Default Escrow Account on a
monthly basis, an amount equal to the Letter of Credit Amount, and further route and
transfer such amounts in the manner and to the extent specified in this Agreement.
5.4
Withdrawals during Operation Period

The Default Escrow Bank shall, during the Operation Period, procure and ensure that on
or before the 25th (twenty fifth) day of every month, an amount equal to the Letter of
Credit Amount is retained in the Default Escrow Account for payment in respect of the
Monthly Bill for the preceding month and/or the Supplementary Bill, and the balance
remaining may be withdrawn or transferred in accordance with the instructions of the
Procurer.
5.5
Drawal against Letter of Credit
5.5.1
If for any reason whatsoever, any amount due and payable in respect of the Monthly Bill
for and in respect of the preceding month is not paid in accordance with the provisions of
the Power Purchase Agreement, the Seller may, at any time after the Due Date shall have
occurred, draw on the Letter of Credit, to recover such amount.
5.5.2
Notwithstanding anything to the contrary contained in this Agreement, in the event that
the amount covered by the Letter of Credit is at any time less than the Letter of Credit
Amount or is insufficient for recovery of payment due against a Bill, and there is a failure
of the Procurer to replenish such shortfall and reinstate the Letter of Credit within a
period of 7 (seven) days, the Default Escrow Bank shall transfer or withhold funds from
the Default Escrow Account for the purpose of reinstating the Letter of Credit and shall
continue such transfer or withholding of funds until the Letter of Credit has been fully
replenished and reinstated for an amount equal to the Letter of Credit Amount.
5.6
Withdrawals upon Termination
5.6.1
In the event of a Procurers takeover upon termination of the Power Purchase Agreement,
if the Procurer fails to make the Termination Payment to the Seller within a period of 30
(thirty) days of the Procurers Takeover, the Seller may by notice, convey the necessary
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particulars and instruct the Default Escrow Bank to make the Termination Payment in
accordance with this Clause 5.6.
5.6.2
Notwithstanding anything to the contrary in this Agreement, upon receipt of a notice

from the Seller under and in accordance with the provisions of Clause 5.6.1, all amounts
standing to the credit of the Default Escrow Account and deposited therein from time to
time shall, subject to a monthly limit of the Letter of Credit Amount, be appropriated and
transferred to the Escrow Account during each and every month until the Termination
Payment and interest thereon are fully paid and discharged in accordance with the
provisions of the Power Purchase Agreement.
5.6.3
The Procurer expressly acknowledges and agrees that upon termination of the Power
Purchase Agreement, it shall continue to deposit Revenues equal to 30% (thirty per cent)
of its total monthly Revenues into the Procurer Account in accordance with Clauses 2.4
and 4.1.2, and such Revenues shall, subject to the provisions of Clause 5.6.2, be routed
and deposited into the Default Escrow Account by the Default Escrow Bank till the
Termination Payment and any interest thereon, have been paid in full. For the avoidance
of doubt, the Procurer agrees that it shall not take any actions inconsistent with the
instructions given hereunder by the Seller or interfere in any way with the transfer of
funds into the Default Escrow Account or with the further transfer of funds to the Escrow
Account in accordance with the provisions of this Clause 5.6.
REPRESENTATIONS AND WARRANTIES
6.1
Representations and Warranties of the Procurer

The Procurer hereby represents and warrants to the Seller and the Default Escrow Bank
as of the date of this Agreement and at all times that:
(i)
the Procurer is a duly constituted entity and is validly existing under the laws of
India and has all requisite legal power and authority to execute this Agreement
and to carry out the terms, conditions and provisions contained in this Agreement;
(ii)
this Agreement constitutes valid legal and binding obligations of the Procurer,
enforceable in accordance with the terms of this Agreement;
(iii)
to the best of the knowledge of the Procurer, there is no pending or threatened

action, suit or proceeding before any court, tribunal or judicial or quasi judicial
body or Government that could reasonably be expected to materially and
adversely affect the financial condition or operations of the Procurer or the ability
of the Procurer to perform its obligations under this Agreement or which purports
to affect the legality, validity or enforceability of this Agreement;
(iv)
the execution, delivery and performance of this Agreement by the Procurer have
been duly authorized by all requisite actions and will not constitute a violation of:
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(a) any statute, judgment, order, decree or regulation of any court,

Government Instrumentality or arbitral tribunal applicable or relating to
the Procurer, its assets or its business; or
(b) the Procurers constitution or other documents or any indenture, contract
or agreement to which it is Party or by which it or its property may be
bound;
(c) no hypothecation, lien, charge, security interest or other encumbrance
shall exist over or shall be created over the Revenues of the Procurer,
routed through the Default Escrow Account pursuant to this Agreement,
on and after the date of execution of the Deed of Hypothecation;
(d) on and after the date of execution of the Agreement to Hypothecate cum
the Deed of Hypothecation, the Procurer lenders do not and shall not have
any first ranking security charge, security interest or other encumbrance
over the Revenues of the Procurer routed through the Default Escrow
Account, except a second/and subordinate charge which may be created in
their favour in accordance with Clauses 4.2.1 and 4.2.3;
(e) the schedules, annexes and other attachments attached hereto do not and
will not contain any material misstatement of fact which is untrue or omit
to state any fact, the omission of which makes or will make any of the
statements therein, in the light of the circumstances under which they were
or will be made, misleading in any respect;
(f) all filings and other actions necessary to create, perfect and protect a first
priority security interest and charge with respect to the Security have been
duly made or taken or shall be duly made as soon as possible and as of the
said date, all such filings and actions shall be in full force and effect;
(g) the particulars relating to the Procurers lenders, as specified in Annex-I
of this Agreement, shall be complete and accurate in all material respects
and all such accounts are held and made in good faith; and
(h) at least 30% (thirty per cent) of the Procurers total monthly Revenues are
deposited in the Procurer Account every month and shall continue to be
deposited in the Procurer Account till the termination of this Agreement in
accordance with the terms herein.
6.2
Representations and Warranties of the Default Escrow Bank

The Default Escrow Bank represents and warrants to the Procurer and the Seller as of the
date of this Agreement and at all times that:
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6.3
(i)
the Default Escrow Bank is a scheduled commercial bank and duly constituted
under the [*] Act, having its head office at [*] and its branch among others, at [*]
and validly existing under the laws of India and has all requisite legal power and
authority to enter into this Agreement and to perform its duties and obligations
hereunder;
(ii)
this Agreement constitutes the valid legal and binding obligations of the Default
Escrow Bank enforceable in accordance with the terms of this Agreement;
(iii)
there are no actions, suits or proceedings pending or threatened, against or

affecting the Default Escrow Bank before any court or administrative body or
arbitral tribunal that could reasonably be expected to affect adversely and
materially the ability of the Default Escrow Bank to perform its duties and
obligations under this Agreement;
(iv)
the execution, delivery and performance of this Agreement has been duly
authorised by all requisite action, and will not constitute a violation of:
(a)
any statute, judgment, order, decree or regulation of any court, Indian

Government Instrumentality or arbitral tribunal applicable or relating to
the Default Escrow Bank, its assets or its business; or
(b)
the Default Escrow Banks constitution or other documents or any

indenture, contract or agreement to which it is a party or by which it or
its property may be bound; and
(c)
the Default Escrow Bank is not aware of any other charge or security
interest or encumbrance granted over the Revenues of the Procurer
routed through the Default Escrow Account in favour of any other person
other than the Seller, save and except those created in favour of the
Procurers Lenders as specified in Annex-I hereto.
Representations and Warranties of the Seller

The Seller hereby represents and warrants to the Default Escrow Bank and the Procurer
that:
(i)
it has been duly constituted under the Companies Act, 1956 as amended and is
validly existing under the laws of India and has all requisite legal power and
authority to enter into this Agreement and to perform its duties and obligations
hereunder;
(ii)
this Agreement constitutes the valid, legal and binding obligations of the Seller
enforceable in accordance with the terms of this Agreement;
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(iii)
7.
the execution, delivery and performance of this Agreement by the Seller has been
duly authorized by all requisite action, and will not constitute a violation of:
(a)
any statute, judgment, order, decree or regulation of any court,

Government Instrumentality or arbitration tribunal applicable or relating to
the Seller, its assets or its business; or
(b)
the Sellers constitution or other documents or any indenture, contract or

agreement to which it is Party or by which it is Party or by which it or its
property may be bound; and
(c)
there are no actions, suits or proceedings pending or threatened, against or

affecting the Seller before any court or administrative body or arbitral
tribunal that could reasonably be expected to affect adversely and
materially the ability of the Seller to perform its duties and obligations
under this Agreement.
PROCURERS COVENANTS
The Procurer covenants that:
(i)
It shall create and maintain valid, perfected and enforceable first priority and
ranking security interest and charge over all of the Security pursuant to the Deed
of Hypothecation;
(ii)
it shall procure all amendments, approvals, consents or waivers as may be

required from the Procurers Lenders and any other financing parties from whom
such amendments, approvals, consents or waivers are required, for the creation,
maintenance and enforcement of the security interest contemplated hereby or by
the Deed of Hypothecation;
(iii)
it shall not, on and after the date of the signing of the Deed of Hypothecation,
grant or create a first priority security interest, hypothecation, charge, lien,
security interest or other encumbrance over the Revenues of the Procurer routed
through the Default Escrow Account pursuant to this Agreement, throughout the
term of this Agreement other than the Security created under the Deed of
Hypothecation , in favour of the Seller, save and except in compliance with the
provisions of this Agreement or the Deed of Hypothecation;
(iv)
it shall obtain in a timely manner and maintain in full force and effect (or where
appropriate, renew) all authorisations that are necessary and that are required to
be in the name of the Procurer, in connection with:
(a)
the execution, delivery, performance and observance by the Procurer of this

Agreement;
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(b)
(c)
8.
the validity, binding effect and enforceability of this Agreement; and the
Agreement to Hypothecate cum Deed of Hypothecation; and
the creation and perfection of the charge over the Revenues routed through
the Default Escrow Account pursuant to this Agreement;
(v)
it shall effect all registrations, recordings, filings and notarisations, which are or
may become necessary to enable the performance by the Procurer of its
obligations under this Agreement and the Agreement to Hypothecate cum Deed
of Hypothecation;
(vi)
it shall execute such further documents, instruments and register or record the
same and take any other action necessary to give effect to this Agreement and the
Agreement to Hypothecate cum Deed of Hypothecation; and
(vii)
it shall inform the Seller of any receipt of notice, claim, legal proceedings
instituted against it which might affect the payment obligations as set out in the
Agreement.
PROCURER ESCROW DEFAULT

Procurer Escrow Default
Following events shall constitute an event of default by the Procurer (a Procurer
Escrow Default) unless such event of default has occurred as a result of Force Majeure
or any act or omission of the Seller:
(i)
the Procurer commits breach of this Agreement by failing to deposit its Revenues
equal to 30% (thirty per cent) of its total monthly Revenues in any month into the
Procurer Account as provided herein and fails to cure such breach by depositing
the same into the Procurer Account within a period of 5 (five) business days
thereof;
(ii)
the Procurer does not deposit or cause to be deposited an amount equal to the
Letter of Credit Amount into the Default Escrow Account as provided herein and
fails to cure such breach by depositing the same into the Default Escrow Account
within a period of 5 (five) business days thereof.
(iii)
the Procurer causes the Default Escrow Bank to withdraw or transfer funds in
breach of the terms of this Agreement and fails to cure such breach by depositing
the relevant funds into the Default Escrow Account within a Cure Period of 5
(five) business days;
(iv)
the Procurer commits or causes any other breach of the provisions of this
Agreement and fails to cure the same within a Cure Period of 5 (five) business
days;
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(v)
the Procurer fails to pay the amounts due under any Monthly Bill either through
the Default Escrow Account or the Letter of Credit;
(vi)
any representation or warranty made by the Procurer in this Agreement shall be

or shall have been incorrect in any material respect;
(vii)
the amount covered by the Letter of Credit is at any time less than the Letter of
Credit Amount or is insufficient for recovery of payment due against a Bill, and
there is failure on the part of the Procurer to replenish such shortfall and reinstate
the Letter of Credit within a period of 7 (seven) days;
(viii) the Seller is unable to draw on the Letter of Credit pursuant to the failure of the
Procurer to establish the Letter of Credit in accordance with the Power Purchase
Agreement; and
(ix)
the Procurer commits or causes any breach of the provisions of the Agreement to
Hypothecate cum Deed of Hypothecation and fails to cure the same within a
Cure Period of 5 (five) business days.
9.
TERMINATION OF DEFAULT ESCROW AGREEMENT
9.1
Duration of the Default Escrow Agreement

This Agreement shall remain in full force and effect so long as any sum remains
outstanding from the Procurer in respect of its payment obligations in terms of this
Agreement, unless terminated earlier by consent of all the Parties or otherwise in
accordance with the provisions of this Agreement.
9.2
Termination of the Agreement

The Procurer may, by no less than 60 (sixty) days prior notice to the Default Escrow
Bank and the Seller, terminate this Agreement and appoint a successor Default Escrow
Bank, provided that the successor Default Escrow Bank is acceptable to the Seller. The
termination of this Agreement shall take effect only upon coming into force of a Default
Escrow Agreement with the successor Default Escrow Bank and the completion of the
procedure set forth in Clause 9.4 to the satisfaction of the Seller.
9.3
Resignation by the Default Escrow Bank

The Default Escrow Bank may, after giving at least 180 (one hundred eighty) days notice
in writing to the Procurer and the Seller resign from acting as Default Escrow Bank for
the purposes of this Agreement. In the event of such notice of resignation, the Procurer
and the Seller shall forthwith appoint a successor bank as Default Escrow Bank and shall,
no later than 60 (sixty) days prior to the effectiveness of such resignation, execute and
cause such successor bank to execute a Default Escrow Agreement with the Procurer and
the Seller. Provided that if a successor bank acceptable to the Seller is found within a
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shorter period, the Procurer and the Seller may waive the notice period of 180 (one
hundred eighty) days. For the avoidance of doubt, the resignation of the Default Escrow
Bank hereunder shall be effective only upon coming into force of a Default Escrow
Agreement with the successor Default Escrow Bank and the completion of the procedure
set forth in Clause 9.4 to the satisfaction of the Seller.
9.4
Procedure for substitution

In the event that a successor Default Escrow Bank is appointed under the provisions of
Clause 9.2 or 9.3, as the case may be, the Default Escrow Bank shall:
9.5
(i)
cease therewith accepting any payments or deposits into the Default Escrow
Account;
(ii)
transfer all amounts standing to the credit for the Default Escrow Account to the
Default Escrow Account opened with the successor Default Escrow Bank to the
satisfaction of the Seller;
(iii)
when all such amounts have been transferred, close the Default Escrow Account;
and
(iv)
within 30 (thirty) days of such closing, provide to the Procurer and the Seller a
written report which shall fully reconcile all deposits to, and withdrawals from
the Default Escrow Account.
Default Escrow Bank to continue

Notwithstanding the termination of the Default Escrow Agreement or the resignation of
the Default Escrow Bank, as the case may be, the Default Escrow Agreement shall
remain in force and the Default Escrow Bank shall continue to discharge its obligations
thereunder until a successor Default Escrow Bank has been appointed and its Default
Escrow Agreement has become effective upon completion of the procedure set forth in
Clause 9.4 to the satisfaction of the Seller.
9.6
Closure of Default Escrow Account

The Default Escrow Bank shall, at the request of the Procurer and the Seller, made on or
after the payment by the Procurer of all its payment obligations in terms of this
Agreement, and upon confirmation of receipt of such payments, close the Default Escrow
Account and any sub-accounts thereunder and pay any amount standing to the credit
thereof to the Procurer. Upon closure of the Default Escrow Account hereunder, the
Default Escrow Agreement shall be deemed to be terminated.
10
SUPPLEMENTARY DEFAULT ESCROW AGREEMENT
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10.1
Supplementary default escrow agreement

The Procurer shall be entitled to enter into a supplementary default escrow agreement
with the Default Escrow Bank providing, inter alia, for detailed procedures and
documentation in relation to the Default Escrow Account; provided that such
supplementary default escrow agreement shall not contain any provision which is
inconsistent with this Agreement and in the event of any conflict or inconsistency
between provisions of this Agreement and such supplementary default escrow agreement,
the provisions of this Agreement shall prevail.
11
INDEMNITY
11.1
General indemnity
11.1.1 The Procurer will indemnify, defend and hold the Seller and the Default Escrow Bank
harmless against any and all proceedings, actions and third party claims for any loss,
damage, cost and expense arising out of any breach by the Procurer of any of its
obligations under this Agreement or on account of failure of the Procurer to comply with
Applicable Laws, Initial Consents and the Applicable Permits.
11.1.2 The Seller will indemnify, defend and hold the Procurer harmless against any and all
proceedings, actions and third party claims for any loss, damage, cost and expense arising
out of failure of the Seller to fulfil any of its obligations under this Agreement, which
materially and adversely affects the performance of the Procurers obligations under this
Agreement, other than any loss, damage, cost and expense arising out of acts done in
discharge of their lawful functions by the Seller, its officers, servants and agents.
11.1.3 The Default Escrow Bank will indemnify, defend and hold the Procurer and the Seller
harmless against any and all proceedings, actions and third party claims for any loss,
damage, cost and expense arising out of failure of the Default Escrow Bank to fulfil its
obligations under this Agreement, which materially and adversely affects the
performance of the Procurers and the Sellers obligations under this Agreement, other
than any loss, damage, cost and expense, arising out of acts done in discharge of their
lawful functions by the Default Escrow Bank, its officers, servants and agents.
11.2
Notice and contest of claims

In the event that any Party hereto receives a claim from a third party in respect of which it
is entitled to the benefit of an indemnity under Clause 11.1 or in respect of which it is
entitled to reimbursement (the Indemnified Party), it shall notify the other Party
responsible for indemnifying such claim hereunder (the Indemnifying Party) within
15 (fifteen) days of receipt of the claim and shall not settle or pay the claim without the
prior approval of the Indemnifying Party, which 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 the proceedings in the name of the Indemnified Party and shall
bear all costs involved in contesting the same. The Indemnified Party shall provide all
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cooperation and assistance in contesting any claim and shall sign all such writings and
documents as the Indemnifying Party may reasonably require.
12
DISPUTE RESOLUTION
12.1
Dispute resolution
12.1.1 Any dispute, difference or claim arising out of or in connection with this Agreement,
which is not resolved amicably, shall be decided finally by reference to arbitration to a
Board of Arbitrators comprising one nominee of each Party to the dispute, and where the
number of such nominees is an even number, the nominees shall elect another person to
such Board. Such arbitration shall be held in accordance with the Rules of Arbitration of
the International Centre for Alternate Dispute Resolution, New Delhi (the Rules) or
such other rules as may be mutually agreed by the Parties, and shall be subject to the
provisions of the Arbitration and Conciliation Act, 1996.
12.1.2 The Arbitrators shall issue a reasoned award and such award shall be final and binding on
the Parties. The place of arbitration shall be [*] and the language of arbitration shall be
English.
13.
MISCELLANEOUS PROVISIONS
13.1
Governing law and jurisdiction

This Agreement shall be construed and interpreted in accordance with and governed by
the laws of India, and the Courts at [*] shall have jurisdiction over all matters arising out
of or relating to this Agreement.
13.2
Waiver of sovereign immunity

The Procurer unconditionally and irrevocably:
(i)
agrees that the execution, delivery and performance by it of this Agreement

constitute commercial acts done and performed for commercial purpose;
(ii)
agrees that, should any proceedings be brought against it or its assets, property or
revenues in any jurisdiction in relation to this Agreement or any transaction
contemplated by this Agreement, no immunity (whether by reason of sovereignty
or otherwise) from such proceedings shall be claimed by or on behalf of the
Government or the Procurer with respect to its assets;
(iii)
waives any right of immunity which it or its assets, property or revenues now has,
may acquire in the future or which may be attributed to it in any jurisdiction; and
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(iv)
13.3
consents generally in respect of the enforcement of any judgement or award

against it in any such proceedings to the giving of any relief or the issue of any
process in any jurisdiction in connection with such proceedings (including the
making, enforcement or execution against it or in respect of any assets, property
or revenues whatsoever irrespective of their use or intended use of any order or
judgement that may be made or given in connection therewith).
Priority of agreements
In the event of any conflict between the Power Purchase Agreement and this Agreement,
the provisions contained in the Power Purchase Agreement shall prevail over this
Agreement.
13.4
Alteration of terms
All additions, amendments, modifications and variations to this Agreement shall be
effectual and binding only if in writing and signed by the duly authorised representatives
of the Parties.
13.5
Waiver
13.5.1 Waiver by any Party of a default by another Party in the observance and performance of
any provision of or obligations under this Agreement:
(i)
shall not operate or be construed as a waiver of any other or subsequent default

hereof or of other provisions of or obligations under this Agreement;
(ii)
shall not be effective unless it is in writing and executed by a duly authorised

representative of the Party; and
(iii)
shall not affect the validity or enforceability of this Agreement in any manner.
13.5.2 Neither the failure by any Party to insist on any occasion upon the performance of the
terms, conditions and provisions of this Agreement or any obligation thereunder nor time
or other indulgence granted by any Party to another Party shall be treated or deemed as
waiver of such breach or acceptance of any variation or the relinquishment of any such
right hereunder.
13.6
No third party beneficiaries

This Agreement is solely for the benefit of the Parties and no other person or entity shall
have any rights hereunder.
13.7
Survival
13.7.1 Termination of this Agreement:

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(i)
shall not relieve the Parties of any obligations hereunder which expressly or by
implication survive termination hereof; and
(ii)
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.
13.7.2 All obligations surviving the cancellation, expiration or termination of this Agreement
shall only survive for a period of 3 (three) years following the date of such termination or
expiry of this Agreement.
13.8
Severability
If for any reason whatever any provision of this Agreement is or becomes invalid, illegal
or unenforceable or is declared as such by any court or tribunal of competent jurisdiction
or any other instrumentality, 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 to one or more provisions which may be substituted for such
invalid, unenforceable or illegal provisions, as nearly as is practicable to such invalid,
illegal or unenforceable provision. Failure to agree upon any such provisions shall not be
subject to dispute resolution under Clause 12.1 of this Agreement or otherwise.
13.9 Successors and assigns

This Agreement shall be binding on and shall inure to the benefit of the Parties and their
respective successors and permitted assigns.
13.10 Continuation of Agreement

Any corporation or association into which the Default Escrow Bank may be converted or
merged, or with which it may be consolidated or to which it may sell or transfer its
business and assets as a whole or substantially as a whole or any corporation or
association resulting from any such conversion, sale, merger, consolidation or transfer to
which it is a party, shall be and become the successor Default Escrow Bank hereunder
without the execution or filing of any agreement, document or instrument of any further
act, deed or conveyance on the part of the Parties, anything herein to the contrary
notwithstanding.
13.11 Notices
67
(15.05.15)
All notices or other communications to be given or made under this Agreement shall be
in writing and shall either be delivered personally or sent by courier or registered post
with an additional copy to be sent by facsimile or e-mail. The address for service of each
Party, its facsimile number and e-mail address are set out under its name on the signing
pages hereto. A notice shall be effective upon actual receipt thereof, save that where it is
received after 5.30 (five thirty) p.m. on a business day, or on a day that is not a business
day, the notice shall be deemed to be received on the first business day following the date
of actual receipt. Without prejudice to the foregoing, a Party giving or making a notice or
communication by facsimile or e-mail shall promptly deliver a copy thereof personally,
or send it by courier or registered post to the addressee of such notice or communication.
It is hereby agreed and acknowledged that any Party may by notice change the address to
which such notices and communications to it are to be delivered or mailed. Such change
shall be effective when all the Parties have notice of it.
13.12 Specimen signatures
As soon as practicable but in no event later than 15 (fifteen) days from the date of this
Agreement, the Procurer and the Seller shall deliver to each other and to the Default
Escrow Bank, specimen signatures of their respective authorised officers duly attested by
their respective banks for the purposes of this Agreement. The Procurer and the Seller
shall have the right to change their respective authorised officers by delivering specimen
signatures of their new authorised officers.
13.13 Language
All notices, certificates, correspondence and proceedings under or in connection with this
Agreement shall be in English.
13.14 Authorised representatives
Each of the Parties shall, by notice in writing, designate their respective authorised
representatives through whom only all communications shall be made. A Party hereto
shall be entitled to remove and/or substitute or make fresh appointment of such
authorised representative by similar notice.
13.15 Original Document
This Agreement may be executed in 4 (four) 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.
68
(15.05.15)
THE COMMON SEAL

OF THE
SELLER has been affixed pursuant to the
resolution passed by the Board of
Directors of the Seller at its meeting held
on the day of 20 hereunto
affixed in the presence of ,
Director, who has signed these presents in
token thereof and , Company
Secretary / Authorised Officer who has
countersigned the same in token thereof:
(Signature)
(Name)
(Designation)
(Address)
(Fax No.)
(e-mail address)
SIGNED, SEALED AND
SIGNED, SEALED AND
DELIVERED
THE DEFAULT ESCROW
BANK by:
DELIVERED
THE PROCURER by:
(Signature)
(Name)
(Designation)
(Address)
(Fax No.)
(e-mail address)
(Signature)
(Name)
(Designation)
(Address)
(Fax No.)
(e-mail address)
In the presence of:

1.
2.
[To be affixed in accordance with the Articles of Association of the Seller and the resolution passed by its Board of
Directors]
69
(15.05.15)
APPENDIX- IX
Draft Agreement to Hypothecate cum Deed of Hypothecation
70
(15.05.15)
APPENDIX- X
Draft Land Lease Agreement I
71
(15.05.15)
APPENDIX- XI
Draft Allocated Coal Block Land Lease Agreement
72
(15.05.15)
73
(15.05.15)
APPENDIX- XII
Methodology of computation of Levelised Tariff and Levelised Fixed Charge
Illus tr a tion for e valuat ion of bids
Bid
Contr ac t Ye ar - ->
Qu oted fix ed ch arg e (Rs/kWh )
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
0.3
Bid Date
Sta rt o f firs t co ntrac t ye ar
1- Jun- 15
1- Jun- 21
3 1-Mar- 22
0 .83
1-A pr- 46
1- Jun- 46
0 .17
Eva lua tion

As s um ptions
An nua l e sc alatio n r ate for va ria ble
cha rge
Disco un t Rate fo r L ev ellis ed Ta riff
Time Per iod fr om Bid Da te to COD
(ye ars )
2 .10 2.10 2.15 2 .1 5 2 .15 2.15 2.15 2 .1 5 2.15 2.15 2.15 2.15 2.15 2.10 2 .1 2 2 .1 4 2 .1 6 2.19 2 .2 1 2.2 3 2 .2 5 2.27 2 .3 0 2.32 2 .34 2 .3 7 3 .0 0
Qu oted va riab le ch arg e (Rs/kWh )
End o f firs t co ntrac t y ear

Time per iod fo r 1st Contra ct y ea r
Sta rt o f last con trac t ye ar
End o f las t co ntrac t ye ar
Time per iod fo r las t Con tr act yea r
6.00%
13 .0 0%
6 .0 0
Contr ac t Ye ar - ->
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Pro jec te d Esc ala tio n fro m bid d ate

for V aria ble Cha rge a t 6%
1 .45 1.53 1.63 1 .7 2 1 .83 1.94 2.05 2 .1 7 2.31 2.44 2.59 2.75 2.91 3.08 3 .2 7 3 .4 7 3 .6 7 3.89 4 .1 3 4.3 8 4 .6 4 4.92 5 .2 1 5.52 5 .86 6 .2 1 6 .4 2
Qu oted Fix ed Ch arg e (Rs/kWh )
2 .10 2.10 2.15 2 .1 5 2 .15 2.15 2.15 2 .1 5 2.15 2.15 2.15 2.15 2.15 2.10 2 .1 2 2 .1 4 2 .1 6 2.19 2 .2 1 2.2 3 2 .2 5 2.27 2 .3 0 2.32 2 .34 2 .3 7 3 .0 0
Esc ala te d Va riab le Char ges

(Rs./kWh)
0 .44 0.46 0.49 0 .5 2 0 .55 0.58 0.62 0 .6 5 0.69 0.73 0.78 0.82 0.87 0.93 0 .9 8 1 .0 4 1 .1 0 1.17 1 .2 4 1.3 1 1 .3 9 1.48 1 .5 6 1.66 1 .76 1 .8 6 1 .9 3
Total Ta r if f ( Rs ./k Wh)
2 .54 2.56 2.64 2 .6 7 2 .70 2.73 2.77 2 .8 0 2.84 2.88 2.93 2.97 3.02 3.03 3 .1 0 3 .1 8 3 .2 7 3.35 3 .4 5 3.5 4 3 .6 4 3.75 3 .8 6 3.98 4 .10 4 .2 3 4 .9 3
Disco un t Fa ctor
Disco un te d to ta l ta riff
0 .95 0.85 0.75 0 .6 7 0 .59 0.52 0.46 0 .4 1 0.36 0.32 0.28 0.25 0.22 0.20 0 .1 7 0 .1 5 0 .1 4 0.12 0 .1 1 0.0 9 0 .0 8 0.07 0 .0 7 0.06 0 .05 0 .0 5 0 .0 4
2 .41 2.17 1.98 1 .7 7 1 .59 1.42 1.28 1 .1 4 1.03 0.92 0.83 0.74 0.67 0.59 0 .5 4 0 .4 9 0 .4 4 0.40 0 .3 7 0.3 3 0 .3 0 0.28 0 .2 5 0.23 0 .21 0 .1 9 0 .2 0
Le ve lis e d Tar if f (Rs ./k Wh)
2.8 39
Chec k
Lev elis ed Fixed Ch arg e (LFC)
2 .15
ratio o f L FC/LT
0.7 58
ok
min o f FC
ma x of FC
ratio o f min/ ma x FC
che ck
2 .10
3 .00
0.7 00
ok
74
(15.05.15)
APPENDIX- XIII
Draft Power Purchase Agreement
75
(15.05.15)
APPENDIX- XIV
LIST OF BID-SPECIFIC CLAUSES19
Clauses and appendices with non-numerical footnotes
1.
2.
3.
4.
5.
6.
7.
Clause 2.1.12(i)(a): General Terms of Bidding

Clause 4.3(a): Fraud and Corrupt Practises
Appendix-I: Letter comprising the Bid (Para 10 and 28)
Appendix-II: Bank Guarantee for Bid Security
Appendix-VI: Performance Guarantee Format
Appendix-VIII: Draft Escrow Agreement
Appendix XIV: List of Bid-specific clauses
19
This Appendix-XIV contains a list of clauses and appendices that would need to be suitably modified
for reflecting Bidder-specific provisions. This Appendix-XIV may, therefore, be included in the RFP
document to be issued to prospective Bidders. The blank spaces in Appendices may be filled up by the
Bidder and the footnotes may be deleted when it submits its proposal.
76
(15.05.15)
APPENDIX XV
LIST OF PROJECT-SPECIFIC CLAUSES20
Clauses and appendices with serially numbered footnotes
1. Letter of Invitation (Footnote No. 1)
2. Glossary: (Footnote No. 2)
3. Introduction: (Footnote No. 3)
4. Clause 1.1.1: Background (Footnote No. 4)
5. Clause 1.1.2: Background (Footnote No. 5 and 6)
6. Clause 1.1.2: Background (Footnote No. 7)
7. Clause 1.2.4: Brief description of Bidding Process (Footnote No. 8)
8. Clause 1.3: Schedule of Bidding Process (Footnote No. 9, 10, 11, 12 and 13)
9. Clause 1.5.1: Power Station Land (Footnote No. 14)
10. Clause 1.5.2: Captive Coal Block Land (Footnote No.15)
11. Clause 2.9.3: Amendment of RFP (Footnote No.16)
12. Clause 2.11.1: Bid Due Date (Footnote No.17)
13. Clause 2.20: Performance Guarantee (Footnote No.18)
14. Clause 3.2.1: Opening and Evaluation of Non-Financial Bids (Footnote No.19)
15. Clause 6.1: Miscellaneous (Footnote No.20)
16. Appendix-XIV: List of Bid Specific Clauses (Footnote No. 21)
17. Appendix-XV: List of Project Specific Clauses (Footnote No. 22)
20
This Appendix-XV contains a list of clauses and appendices that would need to be suitably modified,
prior to issue of the RFP document, for reflecting project-specific provisions. This Appendix-XV
should be omitted before issuing the RFP document to prospective Bidders.
77

Electricity Act, 2003) : RFP For Long-Term Power Procurement From A Specified Location and Fuel Source (17.08.15)

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Electricity Act, 2003) : RFP For Long-Term Power Procurement From A Specified Location and Fuel Source (17.08.15)

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RFP for Long-Term Power Procurement from a Specified location and fuel source

Issued by [Name of the Lead Procurer]

Correspondence with the Bidder

Step I - Responsiveness check of Non-Financial Bids

Fraud and Corrupt Practices

II Bank Guarantee for Bid Security

[NAME AND ADDRESS OF THE LEAD PROCURER/AUTHORISED REPRESENTATIVE]

Sub: RFP for *** Project

As defined in Clause 2.1.12

[Name of the Procurers]3

The estimated cost of the Project is [***]7(Estimated Project Cost). The

Insert the name of the Procurers

Brief description of Bidding Process

The bidding shall be conducted by adopting a two-stage process (collectively

Schedule of Bidding Process

Bid Due Date

Letter of Award (LOA)

Insert name of Infrastructure SPV

Block Land Lease

1.4 Phased Implementation

Insert name of Infrastructure SPV

General terms of Bidding

Computation of Indirect Shareholding - For the purposes of this Clause

a constituent of such Bidder is also a constituent of another Bidder; or

such Bidder, or any Associate thereof, has a relationship with another

such Bidder or any Associate thereof has participated as a consultant to the

Change in composition of the Consortium

Where the Bidder is a Consortium, change in composition of the Consortium may

the Lead Member continues to be the Lead Member of the Consortium;

The option of change in composition of the Consortium which is available under

Approval for change in the composition of a Consortium shall be at the sole

The modified/ reconstituted Consortium shall submit a revised Jt. Bidding

In case of a Consortium, by submitting the Bid, the Bidder acknowledges that it

2.5.2 It shall be deemed that by submitting a Bid, the Bidder has:

made a complete and careful examination of the Bidding Documents;

received all relevant information requested from the Procurers;

Request for Information

Contents of the RFP

VIII. Draft Default Escrow Agreement

The Procurers shall endeavour to respond to the questions raised or clarifications

PREPARATION AND SUBMISSION OF BIDS

Format and Signing of Bid

Letter comprising the Bid at Appendix I

Bid Due Date

Contents of the Bid

Modifications/ Substitution/ Withdrawal of Bids

Correspondence with the Bidder

a Bidder submits a non-responsive Bid;

Insert an amount equivalent to 2% (two percent) of the estimated Project Cost

In case Successful Bidder is a Bidding Consortium,

Step I Opening and Responsiveness check of Non-Financial Bids

Opening and Evaluation of Non-Financial Bids

Step I - Responsiveness check of Non-Financial Bids

Step II - Evaluation of Bids

Computing levelised tariffs and Levelised Fixed Charge

The Levelised Tariff and Levelised Fixed Charge shall be calculated by

The methodology of computation of Levelised Tariff and Levelised Fixed

Step III Successful Bidder Selection

Contacts during Bid Evaluation

4. FRAUD AND CORRUPT PRACTICES

corrupt practice means

fraudulent practice means a misrepresentation or omission of facts or

I/We offer a Bid Security of Rs.(Rupees only) to the Procurers in

In consideration of you, , having its office at , (hereinafter referred to as