sree asia usrart ofeecr => (Fee ORews ste came sare, ere sce) National Highways Authority of India ee aon (Minisity of Road Transport and Highways, Government of India) ALS et 6, MHETAO, aTe, WE Re - 110 0756-56 9, Seciort0, Dwar, New Dah-110075 ERI /Phone : 97-41-25074100 / 25074200 NHAL/Policy Guidelines/ Standard Document/2023 Policy Circular No. 11.47/ 2023 dated 19" April, 2023 [Drcsion taken on Office File No, MAI /CMD/ROT-TOLLE2020 (Comp, No. $14) Sub.? Changes in the Model Concession Agreement of BOT (Toll) project permitting the change of ownership from existing 2 years to 1 year after Commercial Operation Date (COD)- reg. MORTH vide OM No. NH-24028/14/2014-H (Wol-If) (E-134863) dated 23.05.2022 issued amendments in the Model Concession Agreement of BOT (Tall) projects permitting the change of ownership from existing 2 years to 1 year after Commercial Operation Date (COD) and subsequently, NHAl vide its Policy Circular dated 03.06.2022 (Annexure |) circulated the above amendments to all cancerned at NHAI. 2. Now, MORTH vide its circular dated 21.03.2023 {Annexure Il) has clarified that bidders/consortium members of subsisting BOT(Toll) contracts may alsa be allowed far the change of ownership after a period of 1 year and the relevant clause of the amended MCA as applicable presently will be applicable for those projects as well. 3, This issues with the approval of Competent Authority, Encl.: AS stated above 19] 04] 23 (Sanjay Kumar Patel) General Manager (Coord.) To: All Officers of NHAI HQ/ ROsf PIUs/ CMUs/ Site Offices Copy ta: 1. Hindi Officer for translation in Hindi. 2. Library for hosting the circular on library site. 3. Web Admin for circulation,oO DFA/78272 Attachment:Annexure | - NHAI circular dated 03-06-2022.pdf ‘arci aah National Highways Authority of India (Miniotry of load Transpert and Highways, Goverment of india) eS 8, BE0, aR, ME Tee - 110 0750068 6, Soctor-10, Cmte. Hew Delhi 0005) 04 Phone : 1-18-2574 300 / 2674000 ar Tee TTT fear ay (ere weet a raed Sees acu teed) NHAI/Policy Guidelines/ Standard Document/2022 Policy Circular Mo. 11.37 /2022 dated 3“June, 2022 Wecision taken on E-Offico Fila No. NMALCHID/E0T-TOLL, 2020 (Computer No, 5194)) Sub.: Changes in the Mode! Concession Agreement of BOT (Toll) project permitting the change of ownership from existing 2 years to 1 year after Commercial Operation Date (COD)- Reg. MORTH vide OM No. NH-24028/14/2014-H (Voll) (E-134883) dated 23.05.2027 feopy. enclosed) has issued following changes in the Model Concession Agreement of BOT (Tall) project Permitting the change of ownership from existing 2 years to | year after Commercial Operation Date (COD): (Sl, No.[Clause no [Existing clause a ==] 1 Bo [The Concessicnaire shall not stonaire shall rat undertake or permit any Change [undertake or permit any Change in in Ownership, except with the |Ownership, except with the prior Prior approval ef the Authority. | approval of the Authority and subject 0 following conditions; §. No objections. from the Senior Lenders, | ‘The Eligibility condition for | change of ownership request rill be issuance of COD/ Issuance of Completion certificate and completion of punch list ters, Wil. The concessionaire shall not be in default of a. Paying premium to NHAl i applicable b. OEM obligations [it shall at no time undertake or [TE shall at no time undertake af permit permit any Chonge in Ownership | any Change ln Ownership except In except in accordance with the |accardanee with the provisions of provisions of Clause5.2andthat |Clause 5,3 and that the [selected the feetected igen Bidder Consortium Members}, | Consortium Members), together | together with {its their} Associates, with {tsF their) Assocrates, hold |nald not less than 51% (fifty-one tot less than S13 (fifty-one | percent) of its issued and paid up percent) of its Issued and paid |Equity as on the date of this | up Equity asin the date of this | Agrcements and that no member ofDraft No. DFA/78272 Attachment:Annexure | - NHAI circular dated 03-06-2022.pdt nd thatng member of | the Consortium whose technical the Consortium whose technical | and financial capacity was | and financial capacity was | evaluated far the purpases of pre: ‘evaluated for the purpases of pre- | qualification ond shorttisting in qualification and shorttisting. in | respame to the Request for Tesporise to the Request for | Proposal shall hold less than 26% Proposal shail hold less than 26%: | (rwenty six per cent} of Equity (owemy six per cent) ot Equity | during the Construction Period and during the Construction Period! and | one years thereafter. The period two years thereafter. The perlod | of 1 year will be reckoned from af 2 year will be reckoned tram | date of completion of punch list date of completion of punch ist. 3.|Detitional Change In” Ownership® meant a | Change in Ownenmip™ reais a transfer of the direct and/ar | transfer of the direct and/or Indirect legal or beneficial | indirect legal or beneficial ownership of any shares, or | ownership of any shares, of | securities convertible into shares, | securitios conwertible onto shares, that causes the aggregate holding | that causes the aggregate holding of the {selected | of the (selected bidder/Consortium Members}, | bidder! Consortium Members], together with —_ts/tnetr} | together sith —_{its/thelr} Associates, in the total Equity 10 | Associates, in the total Equity te decline below 51% (fifty ene per | decline below 5f% (fifty one per cent) thereof during Construction | cent) thereof during Construction Period and two years tnereafter; | Period and one years thereafter: | provided that any material | provided that any material. varlatica (2s compared tothe | ‘variation (a5 compared to. the representations made by the | representations inade by the Concessionaire during the bidding | Concessionaire during the bidding process for the purposes of | process for tho purpoces ‘esting the minimum conditions | meeting the. minimurn conditions of eligibility or for evaluation ofits | of etigibiity or for evaluation of te application or Bid, as the case may | application or Bid, as the case may be, } in the proportion of the equity | be,) in the proportion af the equity holding of {the selected | nolding of {the = selected bidderfany Consortium Member) | bidder/any Cansortive Member} to to the totat Equity, if ft occurs | the total Equity, if it occurs prior prior to Completion of a period two | to completion of a | years after COD, shall constitute | period one years after COD, shall Change in Ownership; constitute Change ia Ownership ComDraft No. DFA/78272 2 Attachment:Annexure I - NHAI circular dated 03-06-2022. pdf 3 Further, based on above amendments Model RFP for BOTIToll) and McA BOT (Toll) for capacity augmentation dated 09, 12.2020 is alsa amended 26 under: Ie (Clause isting clause Proposed Clause. mower ‘for HAM dated 25.08.2070 T E26) financial Kapacity In case of a Consortium, the combined technical capability end het worth of those: sembers, who hhave and shall continue to have an eauity share of at least 26x {twenty six per cent} each in the SPV, should satisfy the above conditions of eligibiitys provided that each such Member Shall, for a period of 2 {twa} years from the date of cammmerciai operation, of the Project, hold equity share Capital not less than: (1) 26% (twenty six pec cent} of the subseribed and paid up equity of the 5945 and (1 5 (five per cent) of the Total Project Cost specitied tn the Concession Agreement. Provided further that each member of the Conscrtium shall have a minimum Net Worth of 42.5% of Estimated Project Cast in the immediately "preceding financial year. Ta casé ot a Consortium, the combined technical capability and net worth of those Members, who ‘have and shall continue to have an ‘equity share of al least 26% (twenty Sik percent) each in the SEV, should satisfy the above conditions of eligibility: provided that each such Member shall, fora nerind of 1 (ane) years from the date of (eommercial eperation)!" of the Project, hold ‘pQuity share capital not less than: (f) 266 (twenty six per cent) of the subscribed and paid up equity of the SPAS tind (i) 5% [five per cent) of the Total Praject Cost specified in the Concession Agreement!, Provided further that each member of the Consortium shall have a minimum Net Worth of 12.5% of Estimated Project Cost in the immediately preceding financial year, Paint No 6 of Appendix A Tie acknowledge and undertake that cur Consartium i; qualified on the basis of | Technical Capacity and Financial. Capacity Of those af its Membersvho shall, for the perid of 2 (two) yeorsfram the date of Commercial operation af the Project, hold equity share capital hot less than: (I) 28% (twenty six percent) of the subscribed and paid up equity ofthe Concessionaire; and (Ii) 9% (Five percent) of the Totat Project Cost specified in the Concession Agreement. We further agree and acknowledge that the aforesaid Obligation shall be: In addition to the obligations contained In the Concession agreement in respect of Change In Ownership WoWe acknowledge and undertake that cur Consortium is quatitied on the basis of Technical Capacity and Financial Capacity of thas of its Members who shall, for the Period of 1 (one) years from the date of (commercial ‘operation)af the Project, hold equity share capital not les than UG) 26% (twenty six percent) of the subscribed and paid up equity of the Concessionaire; and (ii) 5% (five Percent) of the Total Project Cost Specified in the Concession Agreement. We further agree: and acknawiedge that the aforesaid obligation shall be tn addition to the obligations contained inthe Concession Agreement in respect of Change in Onnership b b ContDraft No. DFA/T8272 Attachment:Annexure | -NHAI circular dated 03-06-2022. pdt 3 PENDIX ‘The Parties undertake that a minimum of 26% (twenty sik per Format for} per cent) of the subscribed and | cent) of the sulbseribed and paid up joint Paicl up equity share capital of | equity share capital of the SPY Bicding | the SPV shail, at all mes till | shall, at all Umes till the first ment| the second anniversary of the | anniversary of the date of date of commercial operation | (commercial operation}! of the of the Project, be held by the | Froject, be held by the Parties of | Parties of the First, (Second | the First, {Second and Third} Part | and Third} Part whose | whose experience and net warth | experience and net worth have | have been reckoned for the been reckoned for the purposes | putposes of qualification of the of qualification of the Bidder | Bidder for the Project in terms of for the Project in terms af the | the RFP. P. ie Parties undertake that | The Parties undertake that each of | each af the Parties specified in | the Partles specified in Clause 6.2 ‘ormat for Clause 6.2 above shall, at all | above shall, at all times between 4, APPENDI: joint times between the commercial | the — (commerclal operation jidding | operation date of the Project | date)! of the Project and the first lagreement| and the second | anniversary thereat, hold (or annivorsary thereat, hot | subscribed and paid up equity onsortivm) subscribed and paid wp equity | share capital of SPY equivalent to share capital of SPY equivalent | al least 5% (five per cent} of the to at least 54 (five per cent) af | Total Project Cost. the Tatal Project Cost. 5. [APPENDIX | ‘The Parties underiake that | The Parties undertake that they they shal collectively hold at | shall collectively ald at teast 51% [Format for} least S14 (fifty.onepercent}af | (fifty ane per cent) of the aint the subscribed and paid up | subscribed and paid up equity Bidding | equity share capital of the SPV | share capital of the SPY at all \agteement| at all times until the second | times until the first: for anniversary of the commercial | anniversary of the (commeraiat Konsortiony operation date of the Project. | operation date/t! of the Project, [REA BOT (Toll) fer Capacity Augmentation of projects a _ 6 Bd [The Coneesstaraine shall not | The Conesstonsire — sholl nat undertake or permit eny Change | undertake of perrnit any Change in in Owsership, except with the | Gwnership, except with the prior prior approval of the Authority. | approval of the Authority and subject te-fellawing conditions; i. No objections from the Senlor Lenders. i. The Eligibitity condition for change af owinarship request will be issuance of completion Certificate and completion of punch List items. Conte | +,Draft No. DFA/78272 Attachment:Annexure | - NHAI circular dated 03-06-2022. pdf iii. The concessionaire shall notbe in default af ©. Paying premium to NHAD if ‘applicable b. 8M abtigations FA It shall at no time undertake or permit any Change in Ownership except in accordance with the provisions of Clause 5.3 and that the Gelected blader! Consortium Members], together with fits) their} Associates, nold pot less than 51 (fifty-one percent) of Its Issued and paid tp Equity as on the date af this ‘Agreement; and that no member of the "Consortium whose technical and financial capacity wes evaluated for the purposes of pre-qualification and shart- Uisting “in response to. the Request for Proposal shall hold less than 26% (twenty six per cent) of Equity during the Construction — Period and two years thereafter. The geriad of 2 year wil be reckoned from date of campletion of punch list. — %, Definitions ‘Change in Ownership” means a Warsfer of the direct andor indirect legal or beneficial eenership of any shares, ar securities convertible into shares, thal causes the aggregate holding of the {selected bidder/Cansortium Members), together with {its/theie) Associates, inthe total Equity to decline below 51% (Fifty one per com) thereot during Construstion Period and {wo years thereafter; provided that any matéfial variation(as compared to the representations it shall at no time undertake or permit any Change in Ownership excep in accordance with the Provisions ef Clause §.3 and that the (selected bidder! Consort soembers), together with fits) their} Associates, hold not less than 51% (fifty-one percent) of its issued ang ppald up Equity as on the date of this ‘Agreement; and that na member of the Consertium whose technical and financial capacity was evaluated for the purposes of pre- qualification and shert-listing tn esponse to the Request” for Proposal. shall hold lass than 26% Qiwenty six per cent) of Equity during the Construction Period and one years thereafter. The period of 1 year will be reckoned from date of completion of punch list, | “change in Ownesnnp™ means a transfer of the direct and/or indirect legal or beneficial ownership of any. shares, or securities convertible jnto shares, that causes the aggregate holding Of the (selected midder? Congorsium Members}, together with fits’ their) Associates, 19 the tatat Equity £6 decline bela 51 (Filty oo per cent) thereat during Construction | Peried and one. year thereafter Provided that any material Variation (as compared to the epresentations made by the Concessionaire during the bidding LhDraft No. DFA/78272 Attachment;Annexure | - NHAI circular dated 03-06-2022.pat es T ~~ | made by the Concesstonaire during | process for the purposes of | | the bidding process for the | mesting the minimum conditions | purposes of meeting the minimum | of eligibility or for evaluation of Its conditions of elighitity or for | application or bid, as the case may evaluation of isapplication or Bid, | be) in the propartion af the equity as the cai may be) in the | holding of {the selected bidder! propertion of the equity holding of | any Consortium Member} to the {the selected bidder/any | total Equity, if it occurs pricr to. 2 of Consortium Member} tn the total | completion Equity, if it occurs prior. to | period one years from the date completion of a period two years | the project achieves 1s granted after COD, shall constitute Change | completion certificate, shall n ‘in Ownership: constitute Change in Gwnership; 3. Thic iesues with the approval of Compotient Authority. Enel: As above, \ ‘3 06 [102 * (Sanjay Kumer Patel) General Manager (Coerd.) To: All Officers of NHAI HOY ROW PIUS/ CHUSY Ste Offtees Copy to: 4. Hindi Officer far translation dn Flnd 2. Library for hosting the cireular on Ubrary site. 3, Web Admin tor circlation Te Celi Acuna [ST Uma Pa ny be oe ag Stlrws~Prafct Crp ' The Ausherity may, 1 ie discreion. impare nih obligations ithe Censossiea Agresient bat fh oBYEKiens shoul provide sufticient moobithy Rox poral civesimens of equity whoa snnyromising the Interests of the raj. I Por Capweity Augmentation [Siniig Lanins} Projoss nay be madi feds folows -Projeet Campletn > For Capacity Augmentation [Sint Laning] Projects may be modified as follows - Prjeet Cornpletion Foe Capasiey Augmentation [Siving Caning] Projects may he made folais - Project Completion dts Foc Capacity Augmereution [Sising Laning] Projeets may be modified as (oles - Project Completion DateDraft No. DFAJ78272 ‘No, NH-26008/14/2014-0 (Vol I) (E-124863) Gavenment of India Ministry of Road Transport & Highly ‘lghaays Section i Parttament street, Mew Deim-1i9gg!°.° Traraport Bhawan, Office Mermorandum Subject: Changes in the Modei Cenozssion Agreement Of BOT[Tel) pratect permitting the change of ownership from existing 2 years to | year afler Commercial Operation Date (COD) reg The undersigned is directed to say that propesal regarding amendment in the provisions relating to change (9 ewnership clauses fn the MCA of BOTITOW project was cmnsidered by ‘the Imterainistertal Committee (WMC) in the meetsng hel on OF.04, 20122. IMC concurred with the propose! permitting change of ownership from 7 years to 1 year after COD. Subsequent, ‘the proposal has been approved by the Hon'ble Ninister (RTH) suiject to the folowing ‘conditions: [a} The eligibality condition for change of cwnsrihip request will be issuance of CODyauimnce ‘of completion certificate and campletion of punch list items. The petlod of | year will be reckoned (roan date ef campleticn of punch fst Ib}. The concessionaire shovdd nat be in defautt of Lil, payment of promiuim to HHA, if anclicable UN) 08M obligations 2, Accordingly, necessary clowses im the MCA of BOF (Tall) project have been amended and are attached herewith) as Annexure (Sushacit Sudan Deputy Secretary to the Government a india Tolophone No. 041:23726515 To 1, Chairperson, NHAd AUG ingen), Road wing, #ecRTH 2D Cony to 1. Secretary, Bepariment of Economic Affairs 2, Secretary, Bepartenent of Finanatal Servic 4 Secretary, Gepartment of Legal Affairs 4. GEO, HIM AayouDraft No. OFA/78272 Attachment: Annexure I - NHAI circular dated 03-06-2022.pdt Copy alsa to PS up Hontble Minister (RTEH} Sf. PPS to Secretary (RTE) 95 ta Ackftional Secretary (Highways) Director Clechnicaly, WIC, MORTH to upload &vé OM on the website of WaftTH 2 iDraft No. DFA/T8272 Ainendrmant in the MCA of of BOT(Toll) preject permitting the change of ‘(Atlachment:Annexure I - NHAI circular dated 03-06-2022.pdf Annexure Ovmership trom existing 2 years té 1 year after COD $.5.7 The Concessionaire shall not ‘undertake or permit any Change in ‘Oeenership, except wath the prior approval cf the Authority , | } He shall at no. time undertake or | penmit any Change in Ownership except fn accordance with the provisions of Clause 5.3 and that the frelected bidder/ Consortium Menibers}, together with [its/theie] ‘Associates, ald not less than 51% (fifty ane percent} of its fssued and patd up Equity as on the date of this Agreement, and that na member of tthe Consortiuin who terhedeat and ‘inancial capacity als evalusied fo! the nurposes of the pre-qualiieation | and short-tisting in response to. Use Request for Qualification shall hold | less than 26K(twenty si percent) of Equity during the Construction Peviad and two Years thereafter AGL undertake or permit any change in. Ownership, except with the: prey approval of the Authority and “subject ta following conditions: (i) ne objections frem the Senior Lenders, (Hi) The elisibitity condition for change of ownersiip request will be issuance of Cabs issuance of completion cortificate and completion of Punch list items. (ii) The concessionaire. shail othe In default of (i paying premium to NHAT if applicable i) OB obligations shall aE no time ungeriake ar permit ary Change in Ownership except in accensance with the provisions of Clause 5.3. end that the (solected bleder Consersiam Rembers], together with flts/thelr} Aesociates, oid ot less than S18 fity one percent) of fts faved ard paid up Equity as.on the date of this Agrooivint, arc ist 0 member nf the Consortium whose technical and fToancial Gepaclty 0s eveluated for the purposes ofthe pre- qualification 260. shavtlisting in response to the Reauest far Qualification shall hole less than dé(twenty-six. percent) of Equlty dure the Constructies Period and one ADraft No. DFA/T8272 nanwinene "Change, in Ghneship” ine 4 | vransfer af the difect ang/ar | treet teyel oF beretital | ownership of any sires, of |fecuritics convertible holdin. of | the (eicctad bidder? Consortom embers tagethor with ifthe] eoocaten, 11 the total Equity be | opetlae below STR (fiteyone: | percent) thereof During | Eqnutruction Peri and two years eeveniter) provides that any tmatoial variation fas canpered} to {he representation mace by the Concessionalee during the bidding |_| Froeess tar the purposas of meeting the minimurncorsittoss of | ‘Aigibitity ar for evaluation of tts | Spelicaton cr Bid, 2 the case oy [tea in he. propartion of the Zquityneiding af (the selected fitter tomy Consortia Member) We / the toxat Equity, itt occurs priat [ta completion of a period. two [yearn ee) Com, sll const Change ia Dernerthip: Attachment: Annexure | - NHAI circular dated 03-06-2022.pdf | eesceteaner. The period of | 1 year will be rockened trom date of campietion of punch ey Defimitaa ns! =| | Change ae Ownership” means 2 tietwter of the direct andar frdvect Wegat of beneficial |Seneship at any sore or securities convertible holding of jhe (elected bidder? [Consort Members, tegotier sth sfthelrAxzectees, tn the Tota eauity to decline below 51%, (ntty-one percen thereof | tuning. Consunaction Period and | ane_weae ‘thereafter; provided | int-amy materiel variation as | compared) te the representation trade by tho. Concessionaire |auere te Bisang process for the purposes of meoting the | minum concitions of eligibility Vr for evalyation of ts apotlcation oF Bid, os the case feay be | 10 the propattion of the, equity holding of (the | | salected’ acer fay Cormortium |dember| to Uve votal Equi, if es ‘rior to completion of a perio! one year ofter COD, shall ‘constitute chang in Quemarshipt beDraft No. DFA/78272 Attachment:Annexure Il -MoRTH letter dated.21-03-2023.pdf NH-04028 (420144 (Val ity (©-134863) Government of lndia Ministry of Road Transport & Highways (Highways Section) __ Transport Bhawan, 1, Parliament 5 CIRCULAR, Subject: “Changes in Medel Concesslon agreement of BOT (Toll) project permitting E™ change at ownership from 2 years'to 1 year after Commerciat Operation Date ae fe ae This Ministry vide Office Memorandum of ever nuenber dated 23.05.2023 amended the relevant clauses of Model Concessian Agreement Of BOT {Folly orajects to allow the change of oernershin from? years (0.1 year of Commerciat Operation Dave (COD) with certain canditinns. However, few representations wele. received in the Ministry requesting that given the financial downturn, this provision of change of ownership to | year may be allowed tor subsisting BOT (Toll) Projects aa well. Earlier, avintst fy had alloyed a similar provision for subsisting RAM projects when the change in ownership was allowed after six months the case of HAM projects 2 lo view of the above and to alleviate the situati of financial distress caused to the developers in the road sector in recent times, it has Deen decided that bidders/consertiun: members of subsisting BOT (Toll) contracts may als be ellowed for the change of ouneenlp aftera period of 1 year and the relevant clause of the emended MCA as applicable presently swil be spphicable for those protects os well 3. This fasues with the approval of the Hanbig Minister (RTEH), ep (Sangita Toppo} Under Secretary to the Government of india ‘elaptone No. O11 29719074 To {Director General Roads) 4 Speciat Sourotary, MeRTH 2. The Chairman, National Highways Authority of India, G5 & 4, Sector 19, Qwarka, New Beth” 110079, 3. Managing Director, Hatloral Highways f Infrastructure Devetopment Corporation Limited Cony ta: We PS ta Hon ble Ainister (RTH)! PS ta Honble minister af ‘States (RT@H) 2. Sr. PPS to Secretary (RFAH) 3. Sf. PPS to Additional Secretary (Highways & LAy/ PPS te OS (H)