INFORMATION REQUESTED BY BOARD OF DIRECTORS LIFE COMPANY and AVIF (or its investment adviser) will at least annually submit to the Board of Directors of AVIF such reports, materials or data as the Board of Directors may reasonably request so that the Board of Directors may fully carry out the obligations imposed upon it by the provisions hereof or any exemptive order granted by the SEC to permit Mixed and Shared Funding, and said reports, materials and data will be submitted at any reasonable time deemed appropriate by the Board of Directors. All reports received by the Board of Directors of potential or existing conflicts, and all Board of Directors actions with regard to determining the existence of a conflict, notifying Participating Insurance Companies and Participating Plans of a conflict, and determining whether any proposed action adequately remedies a conflict, will be properly recorded in the minutes of the Board of Directors or other appropriate records, and such minutes or other records will be made available to the SEC upon request.
Affirmative Action Requirements The State intends to carry out its responsibility for requiring affirmative action by its contractors.
Unanimous Consent Notwithstanding the foregoing, no amendment, waiver or consent shall, unless in writing, and signed by all of the Lenders (or the Administrative Agent at the written direction of the Lenders), do any of the following: (i) subject the Lenders to any additional obligations or increase the commitment of any Lender; (ii) reduce the principal of, or interest rates that have accrued or that will be charged on the outstanding principal amount of, the Loan; (iii) reduce the amount of any fees payable to the Lenders hereunder; (iv) postpone any date fixed for any payment of principal of, or interest on, the Loan (including, without limitation, the Maturity Date) or for the payment of fees or any other monetary Obligations of Borrower or Guarantor; (v) modify or amend the organizational documents of Borrower in any manner that could be reasonably expected to have a Material Adverse Effect; (vi) change the Pro Rata Shares; (vii) amend this Section or amend the definitions of the terms used in this Agreement or the other Loan Documents insofar as such definitions affect the substance of this Section; (viii) modify the definition of the term “Requisite Lenders” or modify in any other manner the number or percentage of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision hereof; (ix) release any Guarantor from its obligations under the Guaranty except as permitted, and in accordance with, the Loan Documents; (x) waive a Default under Section 11.1(a) or (b); (xi) release or dispose of any Collateral unless released or disposed of as permitted by, and in accordance with, the Loan Documents; or (xii) subordinate the lien of the Deed of Trust other than to a Permitted Easement. For the avoidance of doubt, the Administrative Agent shall have the sole right to approve, in its reasonable discretion, the subordination of the lien of any Deed of Trust to any Permitted Easement.
Major Decisions (A) Subject to Sections 7.3(C) and 7.3(D) with respect to the Company, all major decisions of the Company set forth below in clauses (A)(1) through (A)(6) (“Major Decisions”) shall be subject to the Company’s Articles of Incorporation and joint approval by the Advisor and Sub-advisor. For the avoidance of doubt, Major Decisions specifically exclude any decisions regarding the day-to-day operations of the Company, the decision-making authority for which has been delegated to the Sub-advisor pursuant to this Agreement. Major Decisions shall consist of the following: (1) Decisions to recommend to the Board of Directors that the Company acquire or sell Properties, Loans and other Permitted Investments; (2) Retention of investment banks for the Company; (3) Marketing methods for the Company’s sale of Shares; (4) Extending, initiating or terminating the Initial Public Offering or any subsequent Offering of the Shares; (5) Issuing press releases involving the major decisions of the Company or the Advisor or Sub-advisor or their Affiliates with respect to the business or operations of the Company; provided, that the Sub-advisor need not obtain consent to any press releases regarding acquisitions or dispositions of Properties, Loans or other Permitted Investments; and provided further, however, that notwithstanding the immediately preceding proviso, any mention of the Advisor or its Affiliates in such press releases regarding acquisitions or dispositions shall be pre-approved by the Advisor; and (6) Merging or otherwise engaging in any change of control transaction for the Company. (B) Notwithstanding anything in this Agreement to the contrary, if the Parties do not agree to any action constituting a Major Decision that is described in any of clauses (A)(2) through (A)(6) above and that has been proposed by either Party, the Parties shall meet (in person or by phone) to discuss the issue in dispute in good faith over the five-business day period beginning with the delivery of notice of the proposed action to the other Party. (C) Notwithstanding anything in this Agreement to the contrary, with respect to Major Decisions described in clause (A)(1) above (but subject to Section 7.3(D)), (1) joint approval shall not be required, (2) the Sub-advisor and the Advisor shall discuss the proposed transaction (either in person or by phone) prior to either Party making any recommendation of the proposed transaction to the Board of Directors, and (3) the Sub-Advisor and the Advisor shall each give due consideration to the opinions of the other Party. Ordinarily, such discussions shall begin at least five business days before a recommendation is made to the Board of Directors; however, if in the sole discretion of the Sub-advisor it is in the best interest of the Company to make a recommendation to the Board of Directors more promptly, then the Sub-advisor may do so. In the event the Parties do not agree as to whether to recommend the proposed transaction to the Board of Directors, the Sub-advisor’s decision shall govern. (D) Notwithstanding the provisions of this Section 7.3 or any other provision in this Agreement to the contrary, in all events, including Major Decisions, the Company will be managed under the direction of the Board of Directors. (E) Notwithstanding anything in this Agreement to the contrary (but subject to Section 7.3(D)), the Sub-advisor shall have sole authority to act on behalf of the Company regarding amending the Advisory Agreement.
Quorum; Required Vote At any meeting of the Members, the holders of a majority of the Voting Shares entitled to vote represented in person or by proxy shall constitute a quorum unless any such action by the Members requires approval by holders of a greater percentage of Voting Shares entitled to vote, in which case the quorum shall be such greater percentage. The submission of matters to Members for approval shall occur only at a meeting of the Members duly called and held in accordance with this Agreement at which a quorum is present; provided, however, that the Members present at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough Members to leave less than a quorum, if any action taken (other than adjournment) is approved by the required percentage of Shares entitled to vote specified in this Agreement. Any meeting of Members may be adjourned from time to time by the chairman of the meeting to another place or time, without regard to the presence of a quorum.
Shareholder Action by Written Consent without a Meeting Any action which may be taken at any meeting of Shareholders may be taken without a meeting and without prior notice if a consent in writing setting forth the action so taken is signed by the holders of Shares having not less than the minimum number of votes that would be necessary to authorize or take that action at a meeting at which all Shares entitled to vote on that action were present and voted. All such consents shall be filed with the secretary of the Trust and shall be maintained in the Trust’s records. Any Shareholder giving a written consent or the Shareholder’s proxy holders or a transferee of the Shares or a personal representative of the Shareholder or its respective proxy-holder may revoke the consent by a writing received by the secretary of the Trust before written consents of the number of Shares required to authorize the proposed action have been filed with the secretary. If the consents of all Shareholders entitled to vote have not been solicited in writing and if the unanimous written consent of all such Shareholders shall not have been received, the secretary shall give prompt notice of the action taken without a meeting to such Shareholders. This notice shall be given in the manner specified in the By-Laws.
Matters Requiring Investor Director Approval So long as either (x) the holders of Series A Preferred Stock are entitled to elect one or more Series A Directors or (y) the holders of the Series B Preferred Stock are entitled to elect one or more Series B Directors, the Company hereby covenants and agrees with each of the Investors that it shall not, nor shall it permit any subsidiary of the Company to, without approval of the Board, which approval must include the affirmative vote of a majority of the Preferred Directors (which majority shall include a Series B Director), or the approval of the Requisite Holders: (a) make, or permit any subsidiary to make, any loan or advance to, or own any stock or other securities of, any subsidiary or other corporation, partnership, or other entity unless it is wholly owned by the Company; (b) make, or permit any subsidiary to make, any loan or advance to any Person, including, without limitation, any employee or director of the Company or any subsidiary, in excess of $100,000 (in the case of individuals) or $500,000 (in the case of Persons that are not individuals), except advances and similar expenditures in the ordinary course of business or under the terms of an employee stock or option plan approved by the Board; (c) guarantee, directly or indirectly, or permit any subsidiary to guarantee, directly or indirectly, any indebtedness of any third party, except for trade accounts of the Company or any subsidiary arising in the ordinary course of business; (d) make any investment inconsistent with any investment policy approved by the Board; (e) incur any aggregate indebtedness in excess of $500,000 that is not already included in a budget approved by the Board, other than trade credit incurred in the ordinary course of business; (f) enter into or be a party to any transaction with any stockholder, director or officer of the Company or any “associate” (as defined in Rule 12b-2 promulgated under the Exchange Act) of any such Person, except for transactions contemplated by this Agreement and the Purchase Agreement or transactions (including agreements related to the compensation of the Company’s executive officers) made in the ordinary course of business upon fair and reasonable terms that are approved by a majority of the disinterested members of the Board; (g) increase the shares of Common Stock reserved for issuance under the Company’s equity incentive plan or adopt any other equity incentive plan; (h) hire or terminate the chief executive officer; (i) enter into any corporate strategic relationship involving the payment, contribution, or assignment of money or assets which exceeds $5,000,000 in any single transaction or in the aggregate ten percent (10%) of the aggregate value of the Company’s net assets on a consolidated basis in any consecutive twelve-month period; (j) sell, lease, transfer, exclusively license or otherwise dispose of material assets and/or intellectual property of the Company or its subsidiaries, in one or a series of related transactions, the aggregate value of which exceeds $5,000,000 in any single transaction or in the aggregate ten percent (10%) of the aggregate value of the Company’s net assets on a consolidated basis in any consecutive twelve-month period; (k) acquire (by merger or stock or asset purchase or otherwise) any Person, business or asset in one or a series of related transactions, the aggregate value of which exceeds $5,000,0000 in any such one or series of related transactions or in the aggregate ten percent (10%) of the aggregate value of the Company’s net assets on a consolidated basis in any consecutive twelve-month period; (l) make any material change in the business plan or business scope; (m) settle any material litigation, arbitration or legal disputes; (n) appoint or remove the Company’s auditor or change materially in accounting policies and standards, including financial year or tax year of the Company; (o) effect any single capital expenditure, the value of which exceeds $5,000,000 in any single transaction or in the aggregate ten percent (10%) of the aggregate value of the Company’s net assets in any fiscal year; or (p) enter into an agreement to do any of the foregoing. For purposes of this Section 5.4, the value of any net assets shall be the value as determined by the Company in good faith. Upon the request of any Investor, the Company shall provide such Investor with reasonable written documentation supporting the basis of such determination of value, and provide such Investor with reasonable access to the personnel, properties, books and records of the Company for the purpose of evaluating the foregoing determination. If such Investor raises any reasonable objections to the foregoing determination, the Company shall consider in good faith such objections and make such revisions to the final determination of value as may be mutually agreed between the Company and such Investor. Notwithstanding anything to the contrary in this Section 5.4, such approval of the Board or the Requisite Holders shall not be required with respect to actions contemplated by any agreements entered into between the Company and its stockholder(s) on or prior to the date hereof.
Disinterested Directors AVIF agrees that its Board of Directors shall at all times consist of directors a majority of whom (the "Disinterested Directors") are not interested persons of AVIF within the meaning of Section 2(a)(19) of the 1940 Act and the rules thereunder and as modified by any applicable orders of the SEC, except that if this condition is not met by reason of the death, disqualification, or bona fide resignation of any director, then the operation of this condition shall be suspended (a) for a period of forty-five (45) days if the vacancy or vacancies may be filled by the Board;(b) for a period of sixty (60) days if a vote of shareholders is required to fill the vacancy or vacancies; or (c) for such longer period as the SEC may prescribe by order upon application.
Shareholder Action by Written Consent Any action which may be taken by Shareholders by vote may be taken without a meeting if the holders entitled to vote thereon of the proportion of Shares required for approval of such action at a meeting of Shareholders pursuant to Section 10.4 consent to the action in writing and the written consents are filed with the records of the meetings of Shareholders. Such consent shall be treated for all purposes as a vote taken at a meeting of Shareholders.
Quorum and Required Vote (a) Forty percent (40%) of the outstanding Shares entitled to vote at a Shareholders' meeting, which are present in person or represented by proxy, shall constitute a quorum at the Shareholders' meeting, except when a larger quorum is required by this Declaration of Trust, the By-Laws, applicable law or the requirements of any securities exchange on which Shares are listed for trading, in which case such quorum shall comply with such requirements. When a separate vote by one or more Series or Classes is required, forty percent (40%) of the outstanding Shares of each such Series or Class entitled to vote at a Shareholders' meeting of such Series or Class, which are present in person or represented by proxy, shall constitute a quorum at the Shareholders' meeting of such Series or Class, except when a larger quorum is required by this Declaration of Trust, the By-Laws, applicable law or the requirements of any securities exchange on which Shares of such Series or Class are listed for trading, in which case such quorum shall comply with such requirements. (b) Subject to the provisions of Article III, Section 6(d), when a quorum is present at any meeting, a majority of the votes cast shall decide any questions and a plurality shall elect a Trustee, except when a larger vote is required by any provision of this Declaration of Trust or the By-Laws or by applicable law. Pursuant to Article III, Section 6(d) hereof, where a separate vote by Series and, if applicable, by Class is required, the preceding sentence shall apply to such separate votes by Series and Classes. (c) Abstentions and broker non-votes will be treated as votes present at a Shareholders' meeting; abstentions and broker non-votes will not be treated as votes cast at such meeting. Abstentions and broker non-votes, therefore (i) will be included for purposes of determining whether a quorum is present; and (ii) will have no effect on proposals that require a plurality for approval, or on proposals requiring an affirmative vote of a majority of votes cast for approval.
