(including, without limitation, any interest, penalties and expenses
associated with such payments).
The amount to be indemnified shall be charged
against the Capital Account of the Indemnifying Holder, and, at the option of
the Board, either:
(A)
PROMPTLY UPON NOTIFICATION OF AN OBLIGATION
TO INDEMNIFY THE COMPANY, THE INDEMNIFYING HOLDER SHALL MAKE A CASH PAYMENT TO
THE COMPANY EQUAL TO THE FULL AMOUNT TO BE INDEMNIFIED (AND THE AMOUNT PAID
SHALL BE ADDED TO THE INDEMNIFYING HOLDER'S CAPITAL ACCOUNT BUT SHALL NOT BE
TREATED AS A CAPITAL CONTRIBUTION), OR
(B)
THE COMPANY SHALL REDUCE DISTRIBUTIONS WHICH
WOULD OTHERWISE BE MADE TO THE INDEMNIFYING HOLDER, UNTIL THE COMPANY HAS
RECOVERED THE AMOUNT TO BE INDEMNIFIED (AND, NOTWITHSTANDING SECTION 3.1, THE
AMOUNT WITHHELD SHALL NOT BE TREATED AS A CAPITAL CONTRIBUTION).
A Holder's obligation to make contributions to the Company under this
Section 8.3 shall survive the termination, dissolution, liquidation and winding
up of the Company, and for purposes of this Section 8.3, the Company shall be
treated as continuing in existence.
The Company may pursue and enforce all
rights and remedies it may have against each Holder under this Section 8.3,
including instituting a lawsuit to collect such contribution with interest
calculated at a rate equal to the Base Rate plus three percentage points per
annum (but not in excess of the highest rate per annum permitted by law).
24
ARTICLE IX
BOOKS AND RECORDS, REPORTS, AND CONFIDENTIALITY
9.1
Maintenance of Books.
(A)
BOOKS AND RECORDS.
THE COMPANY SHALL KEEP
BOOKS AND RECORDS OF ACCOUNT AND SHALL KEEP MINUTES OF THE PROCEEDINGS OF, OR
MAINTAIN WRITTEN CONSENTS EXECUTED BY, ITS MEMBERS, THE BOARD AND EACH COMMITTEE
OF THE BOARD.
THE CALENDAR YEAR SHALL BE THE ACCOUNTING YEAR OF THE COMPANY.
(B)
SCHEDULE OF MEMBERS.
THE COMPANY WILL
MAINTAIN, AND AS REQUIRED UPDATE, THE ATTACHED SCHEDULE OF MEMBERS, WHICH SETS
FORTH WITH RESPECT TO EACH MEMBER THEIR RESPECTIVE NAME, ADDRESS, NUMBER AND
CLASS OF UNITS OWNED BY SUCH MEMBER AND THE AMOUNT OF CAPITAL CONTRIBUTIONS MADE
BY SUCH MEMBER WITH RESPECT THERETO.
UNLESS OTHERWISE DETERMINED BY THE BOARD,
THE SCHEDULE OF MEMBERS WILL BE AND REMAIN CONFIDENTIAL, AND EACH MEMBER HEREBY
ACCEPTS, ACKNOWLEDGES AND AGREES THAT, NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, IT WILL HAVE NO RIGHT TO VIEW OR OBTAIN THE SCHEDULE OF MEMBERS OR
OTHERWISE OBTAIN ANY SUCH INFORMATION RELATING TO ANY MEMBER OTHER THAN ITSELF.
9.2
Reports.
(A)
TAX INFORMATION.
TO THE EXTENT REASONABLY
PRACTICABLE, WITHIN 90 DAYS AFTER THE END OF EACH TAXABLE YEAR, THE COMPANY
SHALL PREPARE AND MAIL TO EACH HOLDER AND, TO THE EXTENT NECESSARY, TO EACH
FORMER HOLDER (OR SUCH HOLDER'S LEGAL REPRESENTATIVES), A REPORT SETTING FORTH
IN SUFFICIENT DETAIL SUCH INFORMATION AS SHALL ENABLE SUCH HOLDER OR FORMER
HOLDER (OR SUCH HOLDER'S LEGAL REPRESENTATIVES) TO PREPARE ITS RESPECTIVE
FEDERAL, STATE, AND LOCAL INCOME TAX RETURNS IN ACCORDANCE WITH THE LAWS, RULES,
AND REGULATIONS THEN PREVAILING.
THE COMPANY SHALL ALSO PROVIDE FORM K-1S TO
EACH OF THE HOLDERS AS SOON AS REASONABLY PRACTICABLE