of property in kind shall be valued at fair market
value; provided that any valuation under this Section 5.6 shall be determined by
an independent appraiser selected by the Board if so requested by any Founding
Member.
ARTICLE 6
BOOKS AND RECORDS; TAX; CAPITAL ACCOUNTS; ALLOCATIONS
6.1
General Accounting Matters.
(A)
THE NET PROFITS, NET LOSS AND/OR OTHER TAX ITEMS OF THE COMPANY
SHALL BE ALLOCATED FOR FEDERAL INCOME TAX AND APPLICABLE STATE AND LOCAL INCOME
TAX PURPOSES PURSUANT TO THE PROVISIONS OF THE ALLOCATIONS EXHIBIT, AND SUCH
ALLOCATIONS SHALL BE MADE AT THE END OF EACH FISCAL PERIOD, AT SUCH TIMES AS THE
GROSS ASSET VALUE OF COMPANY ASSETS IS ADJUSTED PURSUANT TO SECTION 1.2 OF THE
ALLOCATIONS EXHIBIT AND AT SUCH OTHER TIMES AS REQUIRED BY THIS AGREEMENT.
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(B)
EACH MEMBER SHALL BE SUPPLIED WITH THE INFORMATION OF THE COMPANY
NECESSARY TO ENABLE SUCH MEMBER TO PREPARE IN A TIMELY MANNER (AND IN ANY EVENT
WITHIN 120 DAYS AFTER THE END OF THE COMPANY FISCAL YEAR) ITS FEDERAL, STATE AND
LOCAL INCOME TAX RETURNS AND SUCH OTHER FINANCIAL OR OTHER STATEMENTS AND
REPORTS THAT THE BOARD DEEMS APPROPRIATE.
(C)
THE BOARD SHALL KEEP OR CAUSE TO BE KEPT BOOKS AND RECORDS
PERTAINING TO THE COMPANY'S BUSINESS SHOWING ALL OF ITS ASSETS AND LIABILITIES,
RECEIPTS AND DISBURSEMENTS, NET INCOME AND NET LOSSES, MEMBERS' CAPITAL ACCOUNTS
AND ALL TRANSACTIONS ENTERED INTO BY THE COMPANY.
SUCH BOOKS AND RECORDS OF THE
COMPANY SHALL BE KEPT AT THE OFFICE OF THE COMPANY AND THE MEMBERS AND THEIR
REPRESENTATIVES SHALL AT ALL REASONABLE TIMES HAVE FREE ACCESS THERETO FOR THE
PURPOSE OF INSPECTING OR COPYING THE SAME.
(D)
THE COMPANY SHALL MAINTAIN SEPARATE BOOKS OF ACCOUNT FOR THE
COMPANY, KEPT ON AN ACCRUAL BASIS OR AS OTHERWISE PROVIDED BY THE BOARD AND
OTHERWISE IN ACCORDANCE WITH GAAP, EXCEPT THAT FOR INCOME TAX PURPOSES SUCH
BOOKS SHALL BE KEPT IN ACCORDANCE WITH APPLICABLE TAX ACCOUNTING PRINCIPLES.
(E)
THE COMPANY SHALL, AND SHALL INSTRUCT ALL DESIGNEES ON THE BOARD
OF DIRECTORS OR COMPARABLE MANAGING BODY OF ITS SUBSIDIARIES TO CAUSE SUCH
SUBSIDIARIES TO, (I) MAINTAIN ACCURATE BOOKS AND RECORDS REFLECTING ITS ASSETS
AND LIABILITIES AND MAINTAIN PROPER AND ADEQUATE "INTERNAL CONTROL OVER
FINANCIAL REPORTING" (AS SUCH TERM IS DEFINED IN RULES 13A-15(F) AND
15D-15(F) PROMULGATED UNDER THE EXCHANGE ACT, AND AS SUCH RULES MAY BE AMENDED
AND SUPPLEMENTED FROM TIME TO TIME); AND (II) DELIVER TO ANY FOUNDING MEMBER,
IMMEDIATELY UPON REQUEST, CERTIFICATIONS AND STATEMENTS WITH RESPECT TO THE
COMPANY AND ITS SUBSIDIARIES SATISFYING THE REQUIREMENTS OF RULE 13A-L4(A) OR
15D-14(A) UNDER THE EXCHANGE ACT, AND 18 U.S.C. § 1350 (SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002).
(F)
SUBJECT TO THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT, THE
COMPANY WILL PERMIT REPRESENTATIVES OF A FOUNDING MEMBER AND ITS AFFILIATES, AT
THEIR EXPENSE, TO OBTAIN ALL BOOKS AND ACCOUNTS, DOCUMENTS AND OTHER INFORMATION
(OTHER THAN DOCUMENTS AND INFORMATION RELATING TO PRICING OR OTHER PROPRIETARY
INFORMATION OF ANY MEMBER OR ITS AFFILIATES) IN THE POSSESSION