Covenants by Developers. Each of the Developers covenants and agrees: (i) to keep the Board of Directors of the Project Company informed of all material events relating to the Project known by it, including defaults or violations by Project Company or its members under any applicable Project Documents, Permits or Laws, any litigation relating to Project Company or the Project, receipt of any material notices or reports relating to the Project, termination, suspension or impairment of any applicable Permit relating to the Project or Material Changes that could adversely affect the development and construction of the Project or Commercial Operation of the Project; (ii) to timely transfer to the other Developer such information regarding Project Company and the Project given to it, including the revisions to the Project Schedule and Project Budget, including but not limited to monthly progress and budgetary reports of the Project, in all cases as provided by the Project Company; (iii) use best commercial endeavors to assist the Project Company so that as soon as available and in any event within ten days (10) days after the end of each quarterly fiscal period of each fiscal year of Project Company, the Project Company delivers to each Developer unaudited (and if available, audited) statements of income, members’ equity and cash flows of Project Company for such period and for the period from the beginning of the respective fiscal year to the end of such period, and the related balance sheet and profit and loss account statement as at the end of each such period, setting forth (to the extent applicable) in each case in comparative form the corresponding figures for the corresponding period in the preceding fiscal year, accompanied by a certificate of an authorized officer of Project Company, which certificate shall state that such financial statements fairly present in all material respects the financial condition and (to the extent applicable) results of operations of Project Company in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments); (iv) assist the Project Company so that it preserves, protects and defends all of its material rights and remedies under the Project Documents and complies with its obligations under the Project Documents; (v) promptly notify the Board of Directors of the Project Company of all known defects in the Project, and if requested by the Board of Directors of the Project Company, liaise with the EPC Contractor to ensure that all such defects appearing during the applicable defect correction period or other warranty period are corrected to the reasonable satisfaction of Project Company, but shall not agree to any course of action without the consent of Project Company; (vi) that Project Company will keep and maintain its books of account and financial records at its address identified in Section 12.8 and that each Developer, on notice to the Project Company, at all reasonable times, may audit, examine and make copies of the books of account and other records of the Project Company, and for this purpose, the Project Company will provide access to their premises to the authorized representatives of each Developer and furnish such records, documents and information as may be reasonably required by such representative; (vii) that Project Company preserves, protects and defends all of its material rights and remedies under the Project Documents and uses its best efforts to complies with its obligations under the Project Documents, and that Project Company will not terminate, cancel or amend any Project Document, or waive any obligation under a Project Document, without the consent of the Board of Directors of the Project Company; (viii) that Project Company will use best efforts to obtain and maintain insurance policies in accordance with Prudent Industry Practice and the requirements of the Project Documents or any Permits, (ix) that Project Company use best efforts to comply with all applicable Laws and Permits; (x) that the Project Company will not directly or indirectly create, incur, assume, suffer to exist or otherwise be or become liable with respect to any material indebtedness or guarantees, without the consent of the Board of Directors of the Project Company, (xi) that Project Company will not convey, sell, lease, assign, transfer or otherwise dispose of, in one transaction or a series of transactions, any material assets, including its rights under any Project Document, without the approval of the Board of Directors of the Project Company; (xii) that Project Company will not purchase or acquire any material assets or enter into any material agreement (i.e., assets or agreements which have a value of U.S.$50,000 or less will not be deemed material for purposes of this Agreement), without the consent of the Board of Directors of the Project Company; and (ix) that Project Company will not create, incur, assume or suffer to exist any Liens on any of its assets except Permitted Liens without the consent of Board of Directors of the Project Company.
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Covenants by Developers. Each of the Developers covenants and agrees: (i) to keep the Board of Directors of the Project Company informed of all material events relating to the Project known by it, including defaults or violations by Project Company or its members under any applicable Project Documents, Permits or Laws, any litigation relating to Project Company or the Project, receipt of any material notices or reports relating to the Project, termination, suspension or impairment of any applicable Permit relating to the Project or Material Changes that could adversely affect the development and construction of the Project or Commercial Operation of the Project; (ii) to timely transfer to the other Developer such information regarding Project Company and the Project given to it, including the revisions to the Project Schedule and Project Budget, including but not limited to monthly progress and budgetary reports of the Project, in all cases as provided by the Project Company; (iii) use best commercial endeavors to assist the Project Company so that as soon as available and in any event within ten days (10) days after the end of each quarterly fiscal period of each fiscal year of Project Company, the Project Company delivers to each Developer unaudited (and if available, audited) statements of income, members’ equity and cash flows of Project Company for such period and for the period from the beginning of the respective fiscal year to the end of such period, and the related balance sheet and profit and loss account statement as at the end of each such period, setting forth (to the extent applicable) in each case in comparative form the corresponding figures for the corresponding period in the preceding fiscal year, accompanied by a certificate of an authorized officer of Project Company, which certificate shall state that such financial statements fairly present in all material respects the financial condition and (to the extent applicable) results of operations of Project Company in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments); (iv) assist the Project Company so that it preserves, protects and defends all of its material rights and remedies under the Project Documents and complies with its obligations under the Project Documents; (v) promptly notify the Board of Directors of the Project Company of all known defects in the Project, and if requested by the Board of Directors of the Project Company, liaise with the EPC Contractor to ensure that all such defects appearing during the applicable defect correction period or other warranty period are corrected to the reasonable satisfaction of Project Company, but shall not agree to any course of action without the consent of Project Company; (vi) that Project Company will keep and maintain its books of account and financial records at its address identified in Section 12.8 and that each Developer, on notice to the Project Company, at all reasonable times, may audit, examine and make copies of the books of account and other records of the Project Company, and for this purpose, the Project Company will provide access to their premises to the authorized representatives of each Developer and furnish such records, documents and information as may be reasonably required by such representative; (vii) that Project Company preserves, protects and defends all of its material rights and remedies under the Project Documents and uses its best efforts to complies with its obligations under the Project Documents, and that Project Company will not terminate, cancel or amend any Project Document, or waive any obligation under a Project Document, without the consent of the Board of Directors of the Project Company; (viii) that Project Company will use best efforts to obtain and maintain insurance policies in accordance with Prudent Industry Practice and the requirements of the Project Documents or any Permits, (ix) that Project Company use best efforts to comply with all applicable Laws and Permits; (x) that the Project Company will not directly or indirectly create, incur, assume, suffer to exist or otherwise be or become liable with respect to any material indebtedness or guarantees, without the consent of the Board of Directors of the Project Company, (xi) that Project Company will not convey, sell, lease, assign, transfer or otherwise dispose of, in one transaction or a series of transactions, any material assets, including its rights under any Project Document, without the approval of the Board of Directors of the Project Company; (xii) that Project Company will not purchase or acquire any material assets or enter into any material agreement (i.e., assets or agreements which have a value of U.S.$50,000 or less will not be deemed material for purposes of this Agreement), without the consent of the Board of Directors of the Project Company; and (ix) that Project Company will not create, incur, assume or suffer to exist any Liens on any of its assets except Permitted Liens without the consent of Board of Directors of the Project Company.. - 12 - ARTICLE 5
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Sources: Joint Development Agreement