25.1 The Concessionaire shall within 60 days from the date of this Agreement open and establish the Escrow Account with a Bank (the "Escrow Bank") and all funds constituting the Financing Package for meeting the Total Project Cost shall be credited to such Escrow Account. During Operations Period all Fees collected by the Concessionaire from the users of the Project Highway shall be exclusively deposited therein. In addition, all Fees collected by NHAI in exercise of its rights under this Agreement during the Concession Period and all disbursements or payments by NHAI pursuant hereto shall also, subject to the rights of deductions and appropriations there from of NHAI under this Agreement, be deposited by NHAI in the Escrow Account.
25.2 Disbursements from Escrow Account
25.2.1 The Concessionaire shall give, at the time of the opening of the Escrow Account, irrevocable instructions by way of an Escrow Agreement substantially in form set forth in Schedule 'Q' (the "Escrow Agreement") to the Escrow Bank instructing, inter alia, that the deposits into the Escrow Account shall subject to Clause 25.2.3, be appropriated in the following order every month and if not due in a month then appropriated proportionately in such month and retained in the Escrow Account and paid out therefrom in the month when due unless otherwise expressly provided in the instruction letter:
(a) All taxes due and payable by the Concessionaire;
(b) All expenses in connection with and relevant to the Construction of Project Highway by way of payment to the EPC Contractor and such other persons as may be specified in the Financing Documents;
(c) O&M Expenses including Fees collection expenses incurred by the Concessionaire directly or through O&M Contractor and/or Tolling Contractor, if any, subject to the items and ceiling in respect thereof as set forth in the Financing Documents but not exceeding 1/12 (one twelth) of the annual liability on this account;
(d) The whole or part of the expense on repair work or O&M Expense including Fees collection expenses incurred by NHAI on account of exercise of any of its rights under this Agreement provided NHAI certifies to the Escrow Bank that NHAI had incurred such expenses in accordance with the provisions of this Agreement;
(e) All Concession Fees and any Negative Grant due to NHAI from the Concessionaire under this Agreement;
(f) Monthly proportionate provision of Debt Service Payments due in an Accounting Year and payment of Debt Service Payments in the month when due;
(g) Any payments and Damages due and payable by the Concessionaire to NHAI pursuant to this Agreement, including repayment of Revenue Shortfall Loans; and
(h) Balance in accordance with the instructions of the Concessionaire.
25.2.2 The Concessionaire shall not in any manner modify the order of payment specified in this clause 25.2 except with the prior written approval of NHAI.
25.2.3 In the event the Grant, if any, to the Concessionaire shall exceed 10% of the Total Project Cost, all disbursements on account of Total Project Cost other than those to the EPC Contractor in accordance with the EPC Agreement, shall be made in accordance with the express provisions contained in that behalf in the Financing Documents. Provided, however, that if the total of such disbursements exceed 10% of the Total Project Cost, prior written consent of NHAI shall be required in respect of the disbursement arrangements for such excess amounts, and such consent shall not be unreasonably withheld by NHAI.
(a) all Taxes due and payable by the Concessionaire;
(b) all Concession Fees (including Negative Grant) due and payable to NHAI under this Agreement;
(c) all accrued Debt Service Payment;
(d) any payments and Damages due and payable by the Concessionaire to NHAI pursuant to this Agreement, including Termination claims and repayment of Revenue Shortfall Loans;
(e) all accrued O&M Expenses;
(f) any other payments required to be made under this Agreement; and
(g) balance, if any, on the instructions of the Concessionaire.
25.4 The instructions contained in the Escrow Agreement shall remain in full force and effect until the obligations set forth in Clause 25.3 have been discharged.