CHAPTER 38. TREATMENT OF DELAWARE STATUTORY TRUSTS
Subchapter I. Domestic Statutory Trusts
§ 3801. Definitions.
(a) "Beneficial owner" means any owner of a beneficial interest in a statutory trust, the fact of ownership to be determined
and evidenced (whether by means of registration, the issuance of certificates or otherwise) in conformity to the applicable
provisions of the governing instrument of the statutory trust.
(b) "Foreign statutory trust" means a business trust or statutory trust formed under the laws of any state or under the laws
of any foreign country or other foreign jurisdiction and denominated as such under the laws of such state or foreign country
or other foreign jurisdiction.
(c) "Governing instrument" means any instrument (whether referred to as a trust agreement, declaration of trust or otherwise)
which creates a statutory trust or provides for the governance of the affairs of the statutory trust and the conduct of its
business. A governing instrument:
(1) May provide that a person shall become a beneficial owner or a trustee if such person (or, in the case of a beneficial
owner, a representative authorized by such person orally, in writing or by other action such as payment for a beneficial interest)
complies with the conditions for becoming a beneficial owner or a trustee set forth in the governing instrument or any other
writing and, in the case of a beneficial owner, acquires a beneficial interest;
(2) May consist of 1 or more agreements, instruments or other writings and may include or incorporate bylaws containing provisions
relating to the business of the statutory trust, the conduct of its affairs and its rights or powers or the rights or powers
of its trustees, beneficial owners, agents or employees; and
(3) May contain any provision that is not inconsistent with law or with the information contained in the certificate of trust.
A statutory trust is not required to execute its governing instrument. A statutory trust is bound by its governing instrument
whether or not it executes the governing instrument. A beneficial owner or a trustee is bound by the governing instrument
whether or not such beneficial owner or trustee executes the governing instrument.
(d) "Independent trustee" means, solely with respect to a statutory trust that is registered as an investment company under
the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), or any successor statute thereto (the "1940 Act"),
any trustee who is not an "interested person" (as such term is defined below) of the statutory trust; provided that the receipt
of compensation for service as an independent trustee of the statutory trust and also for service as an independent trustee
of 1 or more other investment companies managed by a single investment adviser (or an "affiliated person" (as such term is
defined below) of such investment adviser) shall not affect the status of a trustee as an independent trustee under this chapter.
An independent trustee as defined hereunder shall be deemed to be independent and disinterested for all purposes. For purposes
of this definition, the terms "affiliated person" and "interested person" have the meanings set forth in the 1940 Act or any
rule adopted thereunder.
(e) "Other business entity" means a corporation, a partnership (whether general or limited), a limited liability company,
a common-law trust, a foreign statutory trust or any other unincorporated business or entity, excluding a statutory trust.
(f) "Person" means a natural person, partnership (whether general or limited), limited liability company, trust, (including
a common law trust, business trust, statutory trust, voting trust or any other form of trust) estate, association (including
any group, organization, co-tenancy, plan, board, council or committee), corporation, government (including a country, state,
county or any other governmental subdivision, agency or instrumentality), custodian, nominee or any other individual or entity
(or series thereof) in its own or any representative capacity, in each case, whether domestic or foreign, and a statutory
trust or foreign statutory trust.
(g) "Statutory trust" means an unincorporated association which:
(1) Is created by a governing instrument under which property is or will be held, managed, administered, controlled, invested,
reinvested and/or operated, or business or professional activities for profit are carried on or will be carried on, by a trustee
or trustees or as otherwise provided in the governing instrument for the benefit of such person or persons as are or may become
beneficial owners or as otherwise provided in the governing instrument, including but not limited to a trust of the type known
at common law as a "business trust," or "Massachusetts trust," or a trust qualifying as a real estate investment trust under
§ 856 et seq. of the United States Internal Revenue Code of 1986 [26 U.S.C. § 856 et seq.], as amended, or under any successor
provision, or a trust qualifying as a real estate mortgage investment conduit under § 860D of the United States Internal Revenue
Code of 1986 [26 U.S.C. § 860D], as amended, or under any successor provision; and
(2) Files a certificate of trust pursuant to § 3810 of this title.
Any such association heretofore or hereafter organized shall be a statutory trust and a separate legal entity. The term "statutory
trust" shall be deemed to include each trust formed under this chapter prior to September 1, 2002, as a "business trust" (as
such term was then defined in this subsection). A statutory trust may be organized to carry on any lawful business or activity,
whether or not conducted for profit, and/or for any of the purposes referred to paragraph (g)(1) of this section (including,
without limitation, for the purpose of holding or otherwise taking title to property, whether in an active or custodial capacity).
Neither use of the designation "business trust" nor a statement in a certificate of trust or governing instrument executed
prior to September 1, 2002, to the effect that the trust formed thereby is or will qualify as a Delaware business trust within
the meaning of or pursuant to this chapter, shall create a presumption or an inference that the trust so formed is a "business
trust" for purposes of Title 11 of the United States Code.
(h) "Trustee" means the person or persons appointed as a trustee in accordance with the governing instrument of a statutory
trust, and may include the beneficial owners or any of them.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, §§ 3, 9, 16; 68 Del. Laws, c. 106, § 1; 68 Del. Laws, c. 404, §§ 2, 3; 70 Del. Laws, c. 548, §§ 1, 2; 71 Del. Laws, c. 335, § 1; 72 Del. Laws, c. 387, §§ 1-3; 73 Del. Laws, c. 328, §§ 1, 2, 3, 4, 5; 73 Del. Laws, c. 329, §§ 1, 2; 75 Del. Laws, c. 418, §§ 1-3; 77 Del. Laws, c. 403, §§ 1, 2.;
§ 3802. Contributions by beneficial owners.
(a) A contribution of a beneficial owner to the statutory trust may be in cash, property or services rendered, or a promissory
note or other obligation to contribute cash or property or to perform services; provided however, that a person may become
a beneficial owner of a statutory trust and may receive a beneficial interest in a statutory trust without making a contribution
or being obligated to make a contribution to the statutory trust.
(b) Except as provided in the governing instrument, a beneficial owner is obligated to the statutory trust to perform any
promise to contribute cash, property or to perform services, even if the beneficial owner is unable to perform because of
death, disability or any other reason. If a beneficial owner does not make the required contribution of property or services,
the beneficial owner is obligated at the option of the statutory trust to contribute cash equal to that portion of the agreed
value (as stated in the records of the statutory trust) of the contribution that has not been made. The foregoing option shall
be in addition to, and not in lieu of, any other rights, including the right to specific performance, that the statutory trust
may have against such beneficial owner under the governing instrument of applicable law.
(c) A governing instrument may provide that the interest of any beneficial owner who fails to make any contribution that the
beneficial owner is obligated to make shall be subject to specific penalties for, or specified consequences of, such failure.
Such penalty or consequence may take the form of reducing or eliminating the defaulting beneficial owner's proportionate interest
in the statutory trust, subordinating the beneficial interest to that of nondefaulting beneficial owners, a forced sale of
the beneficial interest, forfeiture of the beneficial interest, the lending by other beneficial owners of the amount necessary
to meet the beneficiary's commitment, a fixing of the value of the defaulting beneficial owner's beneficial interest by appraisal
or by formula and redemption or sale of the beneficial interest at such value, or any other penalty or consequence.
68 Del. Laws, c. 404, § 4; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 329, § 1.;
§ 3803. Liability of beneficial owners and trustees.
(a) Except to the extent otherwise provided in the governing instrument of the statutory trust, the beneficial owners shall
be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized
under the general corporation law of the State.
(b) Except to the extent otherwise provided in the governing instrument of a statutory trust, a trustee, when acting in such
capacity, shall not be personally liable to any person other than the statutory trust or a beneficial owner for any act, omission
or obligation of the statutory trust or any trustee thereof.
(c) Except to the extent otherwise provided in the governing instrument of a statutory trust, an officer, employee, manager
or other person acting pursuant to § 3806(b)(7) of this title, when acting in such capacity, shall not be personally liable
to any person other than the statutory trust or a beneficial owner for any act, omission or obligation of the statutory trust
or any trustee thereof.
(d) No obligation of a beneficial owner or trustee of a statutory trust to the statutory trust arising under the governing
instrument or a separate agreement in writing, and no note, instrument or other writing evidencing any such obligation of
a beneficial owner or trustee, shall be subject to the defense of usury, and no beneficial owner or trustee shall interpose
the defense of usury with respect to any such obligation in any action.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, §§ 1, 2; 68 Del. Laws, c. 404, § 5; 69 Del. Laws, c. 265, § 1; 70 Del. Laws, c. 548, § 3; 73 Del. Laws, c. 329, § 1.;
§ 3804. Legal proceedings.
(a) A statutory trust may sue and be sued, and service of process upon 1 of the trustees shall be sufficient. In furtherance
of the foregoing, a statutory trust may be sued for debts and other obligations or liabilities contracted or incurred by the
trustees, or by the duly authorized agents of such trustees, in the performance of their respective duties under the governing
instrument of the statutory trust, and for any damages to persons or property resulting from the negligence of such trustees
or agents acting in the performance of such respective duties. The property of a statutory trust shall be subject to attachment
and execution as if it were a corporation, subject to § 3502 of Title 10. Notwithstanding the foregoing provisions of this
section, in the event that the governing instrument of a statutory trust, including a statutory trust which is a registered
investment company under the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), creates 1 or more series
as provided in § 3806(b)(2) of this title, and if separate and distinct records are maintained for any such series and the
assets associated with any such series are held in such separate and distinct records (directly or indirectly, including through
a nominee or otherwise) and accounted for in such separate and distinct records separately from the other assets of the statutory
trust, or any other series thereof, and if the governing instrument so provides, and notice of the limitation on liabilities
of a series as referenced in this sentence is set forth in the certificate of trust of the statutory trust, then the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular series shall
be enforceable against the assets of such series only, and not against the assets of the statutory trust generally or any
other series thereof, and, unless otherwise provided in the governing instrument, none of the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to the statutory trust generally or any other series
thereof shall be enforceable against the assets of such series.
(b) A trustee of a statutory trust may be served with process in the manner prescribed in subsection (c) of this section in
all civil actions or proceedings brought in the State involving or relating to the activities of the statutory trust or a
violation by a trustee of a duty to the statutory trust, or any beneficial owner, whether or not the trustee is a trustee
at the time suit is commenced. Every resident or nonresident of the State who accepts election or appointment or serves as
a trustee of a statutory trust shall, by such acceptance or service, be deemed thereby to have consented to the appointment
of the Delaware trustee or registered agent of such statutory trust required by § 3807 of this title (or, if there is none,
the Secretary of State) as such person's agent upon whom service of process may be made as provided in this section. Such
acceptance or service shall signify the consent of such trustee that any process when so served shall be of the same legal
force and validity as if served upon such trustee within the State and such appointment of such Delaware trustee or registered
agent (or, if there is none, the Secretary of State) shall be irrevocable.
(c) Service of process shall be effected by serving the Delaware trustee or registered agent of such statutory trust required
by § 3807 of this title (or, if there is none, the Secretary of State) with 1 copy of such process in the manner provided
by law for service of writs of summons. In the event service is made under this subsection upon the Secretary of State, the
plaintiff shall pay to the Secretary of State the sum of $50 for the use of the State, which sum shall be taxed as part of
the costs of the proceeding if the plaintiff shall prevail therein. In addition, the Prothonotary or the Register in Chancery
of the court in which the civil action or proceeding is pending shall, within 7 days of such service, deposit in the United
States mails, by registered mail, postage prepaid, true and attested copies of the process, together with a statement that
service is being made pursuant to this section, addressed to the defendant at the defendant's address last known to and furnished
by the party desiring to make such service.
(d) In any action in which any such trustee has been served with process as hereinafter provided, the time in which a defendant
shall be required to appear and file a responsive pleading shall be computed from the date of mailing by the Prothonotary
or the Register in Chancery as provided in subsection (c) of this section; provided however, the court in which such action
has been commenced may order such continuance or continuances as may be necessary to afford such trustee reasonable opportunity
to defend the action.
(e) In the governing instrument of the statutory trust or other writing, a trustee or beneficial owner or other person may
consent to be subject to the nonexclusive jurisdiction of the courts of, or arbitration in, a specified jurisdiction, or the
exclusive jurisdiction of the courts of the State, or the exclusivity of arbitration in a specified jurisdiction or the State,
and to be served with legal process in the manner prescribed in such governing instrument of the statutory trust or other
writing. Except by agreeing to arbitrate any arbitrable matter in a specified jurisdiction or in the State, a beneficial owner
who is not a trustee may not waive its right to maintain a legal action or proceeding in the courts of the State with respect
to matters relating to the organization or internal affairs of a statutory trust.
(f) Nothing herein contained limits or affects the right to serve process in any other manner now or hereafter provided by
law. This section is an extension of and not a limitation upon the right otherwise existing of service of legal process upon
nonresidents.
(g) The Court of Chancery and the Superior Court may make all necessary rules respecting the form of process, the manner of
issuance and return thereof and such other rules which may be necessary to implement this section and are not inconsistent
with this section. The Court of Chancery shall have jurisdiction over statutory trusts to the same extent as it has jurisdiction
over common law trusts formed under the laws of the State.
(h) [Repealed.]
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 18; 68 Del. Laws, c. 106, § 2; 68 Del. Laws, c. 404, § 6; 69 Del. Laws, c. 265, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 548, § 4; 71 Del. Laws, c. 335, §§ 2, 3; 73 Del. Laws, c. 328, § 6; 73 Del. Laws, c. 329, § 1; 74 Del. Laws, c. 353, § 1; 75 Del. Laws, c. 418, § 4.;
§ 3805. Rights of beneficial owners and trustees in trust property.
(a) Except to the extent otherwise provided in the governing instrument of the statutory trust, a beneficial owner shall have
an undivided beneficial interest in the property of the statutory trust and shall share in the profits and losses of the statutory
trust in the proportion (expressed as a percentage) of the entire undivided beneficial interest in the statutory trust owned
by such beneficial owner. The governing instrument of a statutory trust may provide that the statutory trust or the trustees,
acting for and on behalf of the statutory trust, shall be deemed to hold beneficial ownership of any income earned on securities
of the statutory trust issued by any business entities formed, organized, or existing under the laws of any jurisdiction,
including the laws of any foreign country.
(b) No creditor of the beneficial owner shall have any right to obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the statutory trust.
(c) A beneficial owner's beneficial interest in the statutory trust is personal property notwithstanding the nature of the
property of the trust. Except to the extent otherwise provided in the governing instrument of a statutory trust, a beneficial
owner has no interest in specific statutory trust property.
(d) A beneficial owner's beneficial interest in the statutory trust is freely transferable except to the extent otherwise
provided in the governing instrument of the statutory trust.
(e) Except to the extent otherwise provided in the governing instrument of a statutory trust, at the time a beneficial owner
becomes entitled to receive a distribution, the beneficial owner has the status of, and is entitled to all remedies available
to, a creditor of the statutory trust with respect to the distribution. A governing instrument may provide for the establishment
of record dates with respect to allocations and distributions by a statutory trust.
(f) Except to the extent otherwise provided in the governing instrument of the statutory trust, legal title to the property
of the statutory trust or any part thereof may be held in the name of any trustee of the statutory trust, in its capacity
as such, with the same effect as if such property were held in the name of the statutory trust.
(g) No creditor of the trustee shall have any right to obtain possession of, or otherwise exercise legal or equitable remedies
with respect to, the property of the statutory trust with respect to any claim against, or obligation of, such trustee in
its individual capacity and not related to the statutory trust.
(h) Except to the extent otherwise provided in the governing instrument of the statutory trust, where the statutory trust
is a registered investment company under the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), any class,
group or series of beneficial interests established by the governing instrument with respect to such statutory trust shall
be a class, group or series preferred as to distribution of assets or payment of dividends over all other classes, groups
or series in respect to assets specifically allocated to the class, group or series as contemplated by § 18 (or any amendment
or successor provision) of the Investment Company Act of 1940 [15 U.S.C. § 80a-18], as amended, and any regulations issued
thereunder, provided that this section is not intended to affect in any respect the provisions of § 3804(a) of this title.
(i) Unless otherwise provided in the governing instrument of a statutory trust or another agreement, a beneficial owner shall
have no preemptive right to subscribe to any additional issue of beneficial interests or another interest in a statutory trust.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, §§ 6, 10, 17; 68 Del. Laws, c. 404, §§ 7, 8; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 387, § 4; 73 Del. Laws, c. 328, §§ 7, 8; 73 Del. Laws, c. 329, § 1.;
§ 3806. Management of statutory trust.
(a) Except to the extent otherwise provided in the governing instrument of a statutory trust, the business and affairs of
a statutory trust shall be managed by or under the direction of its trustees. To the extent provided in the governing instrument
of a statutory trust, any person (including a beneficial owner) shall be entitled to direct the trustees or other persons
in the management of the statutory trust. Except to the extent otherwise provided in the governing instrument of a statutory
trust, neither the power to give direction to a trustee or other persons nor the exercise thereof by any person (including
a beneficial owner) shall cause such person to be a trustee. To the extent provided in the governing instrument of a statutory
trust, neither the power to give direction to a trustee or other persons nor the exercise thereof by any person (including
a beneficial owner) shall cause such person to have duties (including fiduciary duties) or liabilities relating thereto to
the statutory trust or to a beneficial owner thereof.
(b) A governing instrument may contain any provision relating to the management of the business and affairs of the statutory
trust, and the rights, duties and obligations of the trustees, beneficial owners and other persons, which is not contrary
to any provision or requirement of this subchapter and, without limitation:
(1) May provide for classes, groups or series of trustees or beneficial owners, or classes, groups or series of beneficial
interests, having such relative rights, powers and duties as the governing instrument may provide, and may make provision
for the future creation in the manner provided in the governing instrument of additional classes, groups or series of trustees,
beneficial owners or beneficial interests, having such relative rights, powers and duties as may from time to time be established,
including rights, powers and duties senior or subordinate to existing classes, groups or series of trustees, beneficial owners
or beneficial interests;
(2) May establish or provide for the establishment of designated series of trustees, beneficial owners, assets or beneficial
interests having separate rights, powers or duties with respect to specified property or obligations of the statutory trust
or profits and losses associated with specified property or obligations, and, to the extent provided in the governing instrument,
any such series may have a separate business purpose or investment objective;
(3) May provide for the taking of any action, including the amendment of the governing instrument, the accomplishment of a
merger, conversion or consolidation, the appointment of one or more trustees, the sale, lease, exchange, transfer, pledge
or other disposition of all or any part of the assets of the statutory trust or the assets of any series, or the dissolution
of the statutory trust, or may provide for the taking of any action to create under the provisions of the governing instrument
a class, group or series of beneficial interests that was not previously outstanding, in any such case without the vote or
approval of any particular trustee or beneficial owner, or class, group or series of trustees or beneficial owners;
(4) May grant to (or withhold from) all or certain trustees or beneficial owners, or a specified class, group or series of
trustees or beneficial owners, the right to vote, separately or with any or all other classes, groups or series of the trustees
or beneficial owners, on any matter, such voting being on a per capita, number, financial interest, class, group, series or
any other basis;
(5) May, if and to the extent that voting rights are granted under the governing instrument, set forth provisions relating
to notice of the time, place or purpose of any meeting at which any matter is to be voted on, waiver of any such notice, action
by consent without a meeting, the establishment of record dates, quorum requirements, voting in person, by proxy or in any
other manner, or any other matter with respect to the exercise of any such right to vote;
(6) May provide for the present or future creation of more than 1 statutory trust, including the creation of a future statutory
trust to which all or any part of the assets, liabilities, profits or losses of any existing statutory trust will be transferred,
and for the conversion of beneficial interests in an existing statutory trust, or series thereof, into beneficial interests
in the separate statutory trust, or series thereof;
(7) May provide for the appointment, election or engagement, either as agents or independent contractors of the statutory
trust or as delegatees of the trustees, of officers, employees, managers or other persons who may manage the business and
affairs of the statutory trust and may have such titles and such relative rights, powers and duties as the governing instrument
shall provide. Except to the extent otherwise provided in the governing instrument of a statutory trust, the trustees shall
choose and supervise such officers, managers, employees and other persons;
(8) May provide rights to any person, including a person who is not a party to the governing instrument, to the extent set
forth therein; or
(9) May provide for the manner in which it may be amended, including by requiring the approval of a person who is not a party
to the governing instrument or the satisfaction of conditions, and to the extent the governing instrument provides for the
manner in which it may be amended such governing instrument may be amended only in that manner or as otherwise permitted by
law, including as permitted by § 3815(f) of this title (provided that the approval of any person may be waived by such person
and that any such conditions may be waived by all persons for whose benefit such conditions were intended).
(c) To the extent that, at law or in equity, a trustee or beneficial owner or other person has duties (including fiduciary
duties) to a statutory trust or to another trustee or beneficial owner or to another person that is a party to or is otherwise
bound by a governing instrument, the trustee's or beneficial owner's or other person's duties may be expanded or restricted
or eliminated by provisions in the governing instrument; provided, that the governing instrument may not eliminate the implied
contractual covenant of good faith and fair dealing.
(d) Unless otherwise provided in a governing instrument, a trustee or beneficial owner or other person shall not be liable
to a statutory trust or to another trustee or beneficial owner or to another person that is a party to or is otherwise bound
by a governing instrument for breach of fiduciary duty for the trustee's or beneficial owner's or other person's good faith
reliance on the provisions of the governing instrument.
(e) A governing instrument may provide for the limitation or elimination of any and all liabilities for breach of contract
and breach of duties (including fiduciary duties) of a trustee, beneficial owner or other person to a statutory trust or to
another trustee or beneficial owner or to another person that is a party to or is otherwise bound by a governing instrument;
provided, that a governing instrument may not limit or eliminate liability for any act or omission that constitutes a bad
faith violation of the implied contractual covenant of good faith and fair dealing.
(f) Unless otherwise provided in the governing instrument of a statutory trust, meetings of beneficial owners may be held
by means of conference telephone or other communications equipment by means of which all persons participating in the meeting
can hear each other, and participation in a meeting pursuant to this subsection shall constitute presence in person at the
meeting. Unless otherwise provided in the governing instrument of a statutory trust, on any matter that is to be voted on
by the beneficial owners,
(1) The beneficial owners may take such action without a meeting, without a prior notice and without a vote if a consent or
consents in writing, setting forth the action so taken, shall be signed by the beneficial owners having not less than the
minimum number of votes that would be necessary to authorize or take such action at a meeting at which all interests in the
statutory trust entitled to vote thereon were present and voted and
(2) The beneficial owners may vote in person or by proxy, and such proxy may be granted in writing, by means of electronic
transmission; or as otherwise permitted by applicable law.
Unless otherwise provided in a governing instrument, a consent transmitted by electronic transmission by a beneficial owner
or by a person or persons authorized to act for a beneficial owner shall be deemed to be written and signed for purposes of
this subsection. For purposes of this subsection, the term "electronic transmission" means any form of communication not directly
involving the physical transmission of paper that creates a record that may be retained, retrieved and reviewed by a recipient
thereof and that may be directly reproduced in paper form by such a recipient through an automated process.
(g) Unless otherwise provided in the governing instrument of a statutory trust, meetings of trustees may be held by means
of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this subsection shall constitute presence in person at the meeting.
Unless otherwise provided in the governing instrument of a statutory trust, on any matter that is to be voted on by the trustees,
(1) The trustees may take such action without a meeting, without a prior notice and without a vote if a consent or consents
in writing, setting forth the action so taken, shall be signed by the trustees having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at which all trustees entitled to vote thereon
were present and voted and
(2) The trustee may vote in person or by proxy, and such proxy may be granted in writing, by means of electronic transmission,
or as otherwise permitted by applicable law.
Unless otherwise provided in a governing instrument, a consent transmitted by electronic transmission by a trustee or by a
person or persons authorized to act for a trustee shall be deemed to be written and signed for purposes of this subsection.
For purposes of this subsection, the term "electronic transmission" means any form of communication not directly involving
the physical transmission of paper that creates a record that may be retained, retrieved and reviewed by a recipient thereof
and that may be directly reproduced in paper form by such a recipient through an automated process.
(h) Except to the extent otherwise provided in the governing instrument of a statutory trust, a beneficial owner, trustee,
officer, employee or manager may lend money to, borrow money from, act as a surety, guarantor or endorser for, guarantee or
assume 1 or more obligations of, provide collateral for, and transact other business with a statutory trust and, subject to
other applicable law, has the same rights and obligations with respect to any such matter as a person who is not a beneficial
owner, trustee, officer, employee or manager.
(i) Except to the extent otherwise provided in the governing instrument of a statutory trust, a trustee of a statutory trust
has the power and authority to delegate to 1 or more other persons the trustee's rights and powers to manage and control the
business and affairs of the statutory trust, including to delegate to agents, officers and employees of the trustee or the
statutory trust, and to delegate by management agreement or other agreement with, or otherwise to, other persons. Except to
the extent otherwise provided in the governing instrument of a statutory trust, such delegation by a trustee of a statutory
trust shall not cause the trustee to cease to be a trustee of the statutory trust or cause the person to whom any such rights
and powers have been delegated to be a trustee of the statutory trust.
(j) The governing instrument of a statutory trust may provide that:
(1) A beneficial owner who fails to perform in accordance with, or to comply with the terms and conditions of, the governing
instrument shall be subject to specified penalties or specified consequences;
(2) At the time or upon the happening of events specified in the governing instrument, a beneficial owner shall be subject
to specified penalties or specified consequences; and
(3) The specified penalties or specified consequences under paragraphs (j)(1) and (j)(2) of this section may include and take
the form of any penalty or consequence set forth in § 3802(c) of this title.
(k) A trustee, beneficial owner or an officer, employee, manager or other person designated in accordance with paragraph (b)(7)
of this section shall be fully protected in relying in good faith upon the records of the statutory trust and upon information,
opinions, reports or statements presented by another trustee, beneficial owner or officer, employee, manager or other person
designated in accordance with paragraph (b)(7) of this section, or by any other person as to matters the trustee, beneficial
owner or officer, employee, manager or other person designated in accordance with paragraph (b)(7) of this section reasonably
believes are within such other person's professional or expert competence, including information, opinions, reports or statements
as to the value and amount of the assets, liabilities, profits or losses of the statutory trust, or the value and amount of
assets or reserves or contracts, agreements or other undertakings that would be sufficient to pay claims and obligations of
the statutory trust or to make reasonable provision to pay such claims and obligations, or any other facts pertinent to the
existence and amount of assets from which distributions to beneficial owners or creditors might properly be paid.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 4; 68 Del. Laws, c. 404, § 9; 69 Del. Laws, c. 265, §§ 3-5; 71 Del. Laws, c. 335, § 5; 72 Del. Laws, c. 387, § 5; 73 Del. Laws, c. 328, §§ 9-12; 73 Del. Laws, c. 329, § 1; 74 Del. Laws, c. 353, §§ 2-4; 75 Del. Laws, c. 418, §§ 5-10; 77 Del. Laws, c. 403, §§ 3, 4.;
§ 3807. Trustee in State.
(a) Every statutory trust shall at all times have at least 1 trustee which, in the case of a natural person, shall be a person
who is a resident of this State or which, in all other cases, has its principal place of business in this State.
(b) Notwithstanding the provisions of subsection (a) of this section, if a statutory trust is, becomes, or will become prior
to or within 180 days following the first issuance of beneficial interests, a registered investment company under the Investment
Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), such statutory trust shall not be required to have a trustee
who is a resident of this State or who has a principal place of business in this State if notice that the statutory trust
is or will become an investment company as referenced in this sentence is set forth in the certificate of trust of the statutory
trust and if and for so long as such statutory trust shall have and maintain in this State:
(1) A registered office, which may but need not be a place of business in this State; and
(2) A registered agent for service of process on the statutory trust, which agent may be either an individual resident in
this State whose business office is identical with such statutory trust's registered office, or a domestic corporation, limited
partnership, limited liability company or statutory trust, or a foreign corporation, limited partnership, limited liability
company or statutory trust authorized to transact business in this State, having a business office identical with such registered
office.
(c) Any statutory trust maintaining a registered office and registered agent in this State under subsection (b) of this section
may change the location of its registered office in this State to any other place in this State, or may change the registered
agent to any other person or corporation (meeting the requirements contained in subsection (b) of this section), by filing
an amendment to its certificate of trust in accordance with the applicable provisions of this subchapter. If a statutory trust
which is an investment company registered as aforesaid maintains a registered office and registered agent in this State as
herein provided, then the reference in § 3810(a)(1)b. of this title to the "name and the business address of at least 1 of
the trustees meeting the requirements of § 3807 of this title" shall be deemed a reference to the name and the business address
of the registered agent and registered office maintained under this section, and the certificate of trust filed under § 3810
of this title shall reflect such information in lieu of the information otherwise required by § 3810(a)(1)b. of this title.
(d) Service of process upon a registered agent maintained by a statutory trust pursuant to subsection (b) of this section
shall be as effective as if served upon one of the trustees of the statutory trust pursuant to § 3804 of this title.
(e) A trustee or registered agent of a statutory trust whose address, as set forth in a certificate of trust pursuant to §
3810(a)(1)b. of this title, has changed may change such address in the certificates of trust of all statutory trusts for which
such trustee or registered agent is appointed to another address in the State by paying a fee as set forth in § 3813(a)(5)
of this title and filing with the Secretary of State a certificate, executed by such trustee or registered agent, setting
forth the address of such trustee or registered agent before it was changed, and further certifying as to the new address
of such trustee or registered agent for each of the statutory trusts for which it is trustee or registered agent. Upon the
filing of such certificate, the Secretary of State shall furnish to the trustee or registered agent a certified copy of the
same under the Secretary's hand and seal of office, and thereafter, or until further change of address, as authorized by law,
the address of such trustee or registered agent in the State for each of the statutory trusts for which it is trustee or registered
agent shall be located at the new address of the trustee or registered agent thereof as given in the certificate. A trustee
or registered agent of a statutory trust whose name, as set forth in a certificate of trust pursuant to § 3810(a)(1)b. of
this title, has changed may change such name in the certificates of trust of all statutory trusts for which such trustee or
registered agent is appointed to its new name by paying a fee as set forth in § 3813(a)(5) of this title and filing with the
Secretary of State a certificate, executed by such trustee or registered agent, setting forth the name of such trustee or
registered agent before it was changed and further certifying as to the new name of such trustee or registered agent for each
of the statutory trusts for which it is a trustee or registered agent. Upon the filing of such certificate and payment of
such fee, the Secretary of State shall furnish to the trustee or registered agent a certified copy of the certificate under
the Secretary's hand and seal of office. A change of name of any person acting as a trustee or registered agent of a statutory
trust as a result of a merger or consolidation of the trustee or registered agent with another person who succeeds to its
assets and liabilities by operation of law shall be deemed a change of name for purposes of this section. Filing a certificate
under this section shall be deemed to be an amendment of the certificate of trust of each statutory trust affected thereby,
and no further action with respect thereto to amend its certificate of trust under § 3810 of this title shall be required.
Any trustee or registered agent filing a certificate under this section shall promptly, upon such filing, deliver a copy of
any such certificate to each statutory trust affected thereby.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 5; 68 Del. Laws, c. 106, § 3; 68 Del. Laws, c. 404, § 10; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 335, § 6; 72 Del. Laws, c. 387, § 6; 73 Del. Laws, c. 328, § 13; 73 Del. Laws, c. 329, § 1; 75 Del. Laws, c. 418, § 11.;
§ 3808. Existence of statutory trust.
(a) Except to the extent otherwise provided in the governing instrument of the statutory trust, a statutory trust shall have
perpetual existence, and a statutory trust may not be terminated or revoked by a beneficial owner or other person except in
accordance with the terms of its governing instrument.
(b) Except to the extent otherwise provided in the governing instrument of a statutory trust, the death, incapacity, dissolution,
termination or bankruptcy of a beneficial owner or a trustee shall not result in the termination or dissolution of a statutory
trust.
(c) In the event that a statutory trust does not have perpetual existence, a statutory trust is dissolved and its affairs
shall be wound up at the time or upon the happening of events specified in the governing instrument. Notwithstanding the happening
of events specified in the governing instrument, the statutory trust shall not be dissolved and its affairs shall not be wound
up if, prior to the filing of a certificate of cancellation as provided in § 3810 of this title, the statutory trust is continued,
effective as of the happening of such event, pursuant to the affirmative vote or written consent of all remaining beneficial
owners of the statutory trust (and any other person whose approval is required under the governing instrument to revoke a
dissolution pursuant to this section), provided, however, if the dissolution was caused by a vote or written consent, the
dissolution shall not be revoked unless each beneficial owner and other person (or their respective personal representatives)
who voted in favor of, or consented to, the dissolution has voted or consented in writing to continue the statutory trust.
(d) Upon dissolution of a statutory trust and until the filing of a certificate of cancellation as provided in § 3810 of this
title, the persons who, under the governing instrument of the statutory trust, are responsible for winding up the statutory
trust's affairs may, in the name of and for and on behalf of the statutory trust, prosecute and defend suits, whether civil,
criminal or administrative, gradually settle and close the statutory trust business, dispose of and convey the statutory trust
property, discharge or make reasonable provision for the statutory trust liabilities and distribute to the beneficial owners
any remaining assets of the statutory trust.
(e) A statutory trust which has dissolved shall pay or make reasonable provision to pay all claims and obligations, including
all contingent, conditional or unmatured claims and obligations, known to the statutory trust and all claims and obligations
which are known to the statutory trust but for which the identity of the claimant is unknown and claims and obligations that
have not been made known to the statutory trust or that have not arisen but that, based on the facts known to the statutory
trust, are likely to arise or to become known to the statutory trust within 10 years after the date of dissolution. If there
are sufficient assets, such claims and obligations shall be paid in full and any such provision for payment shall be made
in full. If there are insufficient assets, such claims and obligations shall be paid or provided for according to their priority
and, among claims and obligations of equal priority, ratably to the extent of assets available therefor. Unless otherwise
provided in the governing instrument of a statutory trust, any remaining assets shall be distributed to the beneficial owners.
Any person, including any trustee, who under the governing instrument of the statutory trust is responsible for winding up
a statutory trust's affairs who has complied with this subsection shall not be personally liable to the claimants of the dissolved
statutory trust by reason of such person's actions in winding up the statutory trust.
(f) Except to the extent otherwise provided in the governing instrument of the statutory trust, a series established in accordance
with § 3804(a) of this title may be dissolved and its affairs wound up without causing the dissolution of the statutory trust
or any other series thereof. Unless otherwise provided in the governing instrument of the statutory trust, the dissolution,
winding up, liquidation or termination of the statutory trust or any series thereof shall not affect the limitation of liability
with respect to a series established in accordance with § 3804(a) of this title. A series established in accordance with §
3804(a) of this title is dissolved and its affairs shall be wound up at the time or upon the happening of events specified
in the governing instrument of the statutory trust. Except to the extent otherwise provided in the governing instrument of
a statutory trust, the death, incapacity, dissolution, termination or bankruptcy of a beneficial owner of such series shall
not result in the termination or dissolution of such series and such series may not be terminated or revoked by a beneficial
owner of such series or other person except in accordance with the terms of the governing instrument of the statutory trust.
(g) Upon dissolution of a series of a statutory trust, the persons who under the governing instrument of the statutory trust
are responsible for winding up such series" affairs may, in the name of the statutory trust and for and on behalf of the statutory
trust and such series, take all actions with respect to the series as are permitted under subsection (d) of this section and
shall provide for the claims and obligations of the series and distribute the assets of the series as provided under subsection
(e) of this section. Any person, including any trustee, who under the governing instrument is responsible for winding up such
series" affairs who has complied with subsection (e) of this section shall not be personally liable to the claimants of the
dissolved series by reason of such person's actions in winding up the series.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 7; 69 Del. Laws, c. 265, § 6; 70 Del. Laws, c. 548, § 5; 71 Del. Laws, c. 335, § 7; 73 Del. Laws, c. 329, § 1; 75 Del. Laws, c. 418, §§ 12, 13; 77 Del. Laws, c. 403, § 5.;
§ 3809. Applicability of trust law.
Except to the extent otherwise provided in the governing instrument of a statutory trust or in this subchapter, the laws of
this State pertaining to trusts are hereby made applicable to statutory trusts; provided however, that for purposes of any
tax imposed by this State or any instrumentality, agency or political subdivision of this State a statutory trust shall be
classified as a corporation, an association, a partnership, a trust or otherwise, as shall be determined under the United
States Internal Revenue Code of 1986 [26 U.S. Code § 1 et seq.], as amended, or under any successor provision.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 11; 70 Del. Laws, c. 548, § 7; 73 Del. Laws, c. 329, § 1.;
§ 3810. Certificate of trust; amendment; restatement; cancellation.
(a)(1) Every statutory trust shall file a certificate of trust in the office of the Secretary of State. The certificate of
trust shall set forth:
a. The name of the statutory trust;
b. The name and address in this State of at least 1 of the trustees meeting the requirements of § 3807 of this title;
c. The future effective date or time (which shall be a date or time certain) of effectiveness of the certificate if it is
not to be effective upon the filing of the certificate; and
d. Any other information the trustees determine to include therein.
(2) A statutory trust is formed at the time of the filing of the initial certificate of trust in the office of the Secretary
of State or at any later date or time specified in the certificate of trust if, in either case, there has been substantial
compliance with the requirements of this section. A statutory trust formed under this chapter shall be a separate legal entity,
the existence of which as a separate legal entity shall continue until cancellation of the statutory trust's certificate of
trust.
(3) The filing of a certificate of trust in the office of the Secretary of State shall make it unnecessary to file any other
documents under Chapter 31 of Title 6.
(b)(1) A certificate of trust may be amended by filing a certificate of amendment thereto in the office of the Secretary of
State. The certificate of amendment shall set forth:
a. The name of the statutory trust;
b. The amendment to the certificate; and
c. The future effective date or time (which shall be a date or time certain) of effectiveness of the certificate if it is
not to be effective upon the filing of the certificate.
(2) Except to the extent otherwise provided in the certificate of trust or in the governing instrument of a statutory trust,
a certificate of trust may be amended at any time for any purpose as the trustees may determine. A trustee who becomes aware
that any statement in a certificate of trust was false when made or that any matter described has changed making the certificate
false in any material respect shall promptly file a certificate of amendment.
(c)(1) A certificate of trust may be restated by integrating into a single instrument all of the provisions of the certificate
of trust which are then in effect and operative as a result of there having been theretofore filed 1 or more certificates
of amendment pursuant to subsection (b) of this section, and the certificate of trust may be amended or further amended by
the filing of a restated certificate of trust. The restated certificate of trust shall be specifically designated as such
in its heading and shall set forth:
a. The present name of the statutory trust, and if it has been changed, the name under which the statutory trust was originally
formed;
b. The date of filing of the original certificate of trust with the Secretary of State;
c. The information required to be included pursuant to subsection (a) of this section; and
d. Any other information the trustees determine to include therein.
(2) A certificate of trust may be restated at any time for any purpose as the trustees may determine. A trustee who becomes
aware that any statement in a restated certificate of trust was false when made or that any matter described has changed making
the restated certificate false in any material respect shall promptly file a certificate of amendment or a restated certificate
of trust.
(d) A certificate of trust shall be cancelled upon the dissolution and the completion of winding up of a statutory trust,
or upon the filing of a certificate of merger or consolidation if the statutory trust is not the surviving or resulting entity
in a merger or consolidation, or upon the future effective date or time of a certificate of merger or consolidation if the
trust is not the surviving or resulting entity in a merger or consolidation, or upon the filing of a certificate of transfer,
or upon the future effective date or time of a certificate of transfer, or upon the filing of a certificate of conversion
to non-Delaware other business entity or upon the future effective date or time of a certificate of conversion to non-Delaware
entity. A certificate of cancellation shall be filed in the office of the Secretary of State and set forth:
(1) The name of the statutory trust;
(2) The date of filing of its certificate of trust;
(3) The future effective date or time (which shall be a date or time certain) of cancellation if it is not to be effective
upon the filing of the certificate; and
(4) Any other information the trustee determines to include therein.
The Secretary of State shall not issue a certificate of good standing with respect to a statutory trust if its certificate
of trust is cancelled.
(e) Whenever any certificate authorized to be filed with the office of the Secretary of State under this subchapter has been
so filed and is an inaccurate record of the action therein referred to or was defectively or erroneously executed, such certificate
may be corrected by filing with the office of the Secretary of State a certificate of correction of such certificate. The
certificate of correction shall specify the inaccuracy or defect to be corrected, shall set forth the portion of the certificate
in corrected form and shall be executed and filed as required by this subchapter. The certificate of correction shall be effective
as of the date the original certificate was filed, except as to those persons who are substantially and adversely affected
by the correction, and as to those persons the certificate of correction shall be effective from the filing date. In lieu
of filing a certificate of correction, the certificate may be corrected by filing with the office of the Secretary of State
a corrected certificate which shall be executed and filed in accordance with this subchapter. The corrected certificate shall
be specifically designated as such in its heading, shall specify the inaccuracy or defect to be corrected and shall set forth
the entire certificate in corrected form. The corrected certificate shall be effective as of the date the original certificate
was filed, except as to those persons who are substantially and adversely affected by the corrections, and as to those persons
the corrected certificate shall be effective from the filing date.
(f) If any certificate filed in accordance with this subchapter provides for a future effective date or time and if the transaction
is terminated or amended to change the future effective date or time prior to the future effective date or time, the certificate
shall be terminated or amended by the filing, prior to the future effective date or time set forth in such original certificate,
of a certificate of termination or amendment of the original certificate, executed and filed in accordance with this subchapter,
which shall identify the original certificate which has been terminated or amended and shall state that the original certificate
has been terminated or amended.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 12; 69 Del. Laws, c. 265, §§ 7, 8; 70 Del. Laws, c. 548, §§ 6, 8, 9; 73 Del. Laws, c. 329, § 1; 74 Del. Laws, c. 353, § 5; 75 Del. Laws, c. 418, § 14; 77 Del. Laws, c. 403, §§ 6-8.;
§ 3811. Execution of certificate.
(a) Each certificate required by this subchapter to be filed in the office of the Secretary of State shall be executed in
the following manner:
(1) A certificate of trust must be signed by all of the trustees;
(2) A certificate of amendment, a certificate of correction, a corrected certificate, a certificate of termination or amendment,
and a restated certificate of trust must be signed by at least one of the trustees;
(3) A certificate of cancellation must be signed by all of the trustees or as otherwise provided in the governing instrument
of the statutory trust; and
(4) If a statutory trust is filing a certificate of merger or consolidation, certificate of conversion, certificate of transfer,
certificate of transfer and continuance, certificate of statutory trust domestication or certificate of termination or amendment
to any such certificate, the certificate of merger or consolidation, certificate of conversion, certificate of transfer, certificate
of transfer and continuance, certificate of statutory trust domestication or certificate of termination or amendment to any
such certificate must be signed by all of the trustees or as otherwise provided in the governing instrument of the statutory
trust, or if the certificate of merger or consolidation, certificate of conversion, certificate of statutory trust domestication
or certificate of termination or amendment to any such certificate is being filed by another business entity or non-United
States entity (as such term is defined in § 3822 of this title thereof), the certificate of merger or consolidation, certificate
of conversion, certificate of statutory trust domestication or certificate of termination or amendment to any such certificate
must be signed by a person authorized to execute the certificate on behalf of the other business entity or non-United States
entity (as such term is defined in § 3822 of this title hereof).
(b) Unless otherwise provided in the governing instrument, any person may sign any certificate or amendment thereof or enter
into a governing instrument or amendment thereof by any agent, including any attorney-in-fact. An authorization, including
a power of attorney, to sign any certificate or amendment thereof or to enter into a governing instrument or amendment thereof
need not be in writing, need not be sworn to, verified or acknowledged and need not be filed in the office of the Secretary
of State, but if in writing, must be retained by the statutory trust or a trustee or other person authorized to manage the
business and affairs of the statutory trust.
(c) The execution of a certificate by a trustee, or other person authorized pursuant to subsection (a) of this section above,
constitutes an oath or affirmation, under the penalties of perjury in the third degree, that, to the best of the trustee's,
or other person authorized pursuant to subsection (a) of this section above, knowledge and belief, the facts stated therein
are true.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 13; 70 Del. Laws, c. 548, §§ 10-12; 71 Del. Laws, c. 335, § 8; 73 Del. Laws, c. 329, § 1; 74 Del. Laws, c. 353, §§ 6-8; 77 Del. Laws, c. 403, §§ 9, 10.;
§ 3812. Filing of certificate.
(a) Any certificate authorized to be filed with the office of the Secretary of State under this subchapter (or any judicial
decree of amendment or cancellation) shall be delivered to the office of the Secretary of State for filing. A person who executes
a certificate as an agent or fiduciary need not exhibit evidence of the person's authority as a prerequisite to filing. Unless
CHAPTER 38. TREATMENT OF DELAWARE STATUTORY TRUSTS
Subchapter I. Domestic Statutory Trusts
§ 3801. Definitions.
(a) "Beneficial owner" means any owner of a beneficial interest in a statutory trust, the fact of ownership to be determined
and evidenced (whether by means of registration, the issuance of certificates or otherwise) in conformity to the applicable
provisions of the governing instrument of the statutory trust.
(b) "Foreign statutory trust" means a business trust or statutory trust formed under the laws of any state or under the laws
of any foreign country or other foreign jurisdiction and denominated as such under the laws of such state or foreign country
or other foreign jurisdiction.
(c) "Governing instrument" means any instrument (whether referred to as a trust agreement, declaration of trust or otherwise)
which creates a statutory trust or provides for the governance of the affairs of the statutory trust and the conduct of its
business. A governing instrument:
(1) May provide that a person shall become a beneficial owner or a trustee if such person (or, in the case of a beneficial
owner, a representative authorized by such person orally, in writing or by other action such as payment for a beneficial interest)
complies with the conditions for becoming a beneficial owner or a trustee set forth in the governing instrument or any other
writing and, in the case of a beneficial owner, acquires a beneficial interest;
(2) May consist of 1 or more agreements, instruments or other writings and may include or incorporate bylaws containing provisions
relating to the business of the statutory trust, the conduct of its affairs and its rights or powers or the rights or powers
of its trustees, beneficial owners, agents or employees; and
(3) May contain any provision that is not inconsistent with law or with the information contained in the certificate of trust.
A statutory trust is not required to execute its governing instrument. A statutory trust is bound by its governing instrument
whether or not it executes the governing instrument. A beneficial owner or a trustee is bound by the governing instrument
whether or not such beneficial owner or trustee executes the governing instrument.
(d) "Independent trustee" means, solely with respect to a statutory trust that is registered as an investment company under
the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), or any successor statute thereto (the "1940 Act"),
any trustee who is not an "interested person" (as such term is defined below) of the statutory trust; provided that the receipt
of compensation for service as an independent trustee of the statutory trust and also for service as an independent trustee
of 1 or more other investment companies managed by a single investment adviser (or an "affiliated person" (as such term is
defined below) of such investment adviser) shall not affect the status of a trustee as an independent trustee under this chapter.
An independent trustee as defined hereunder shall be deemed to be independent and disinterested for all purposes. For purposes
of this definition, the terms "affiliated person" and "interested person" have the meanings set forth in the 1940 Act or any
rule adopted thereunder.
(e) "Other business entity" means a corporation, a partnership (whether general or limited), a limited liability company,
a common-law trust, a foreign statutory trust or any other unincorporated business or entity, excluding a statutory trust.
(f) "Person" means a natural person, partnership (whether general or limited), limited liability company, trust, (including
a common law trust, business trust, statutory trust, voting trust or any other form of trust) estate, association (including
any group, organization, co-tenancy, plan, board, council or committee), corporation, government (including a country, state,
county or any other governmental subdivision, agency or instrumentality), custodian, nominee or any other individual or entity
(or series thereof) in its own or any representative capacity, in each case, whether domestic or foreign, and a statutory
trust or foreign statutory trust.
(g) "Statutory trust" means an unincorporated association which:
(1) Is created by a governing instrument under which property is or will be held, managed, administered, controlled, invested,
reinvested and/or operated, or business or professional activities for profit are carried on or will be carried on, by a trustee
or trustees or as otherwise provided in the governing instrument for the benefit of such person or persons as are or may become
beneficial owners or as otherwise provided in the governing instrument, including but not limited to a trust of the type known
at common law as a "business trust," or "Massachusetts trust," or a trust qualifying as a real estate investment trust under
§ 856 et seq. of the United States Internal Revenue Code of 1986 [26 U.S.C. § 856 et seq.], as amended, or under any successor
provision, or a trust qualifying as a real estate mortgage investment conduit under § 860D of the United States Internal Revenue
Code of 1986 [26 U.S.C. § 860D], as amended, or under any successor provision; and
(2) Files a certificate of trust pursuant to § 3810 of this title.
Any such association heretofore or hereafter organized shall be a statutory trust and a separate legal entity. The term "statutory
trust" shall be deemed to include each trust formed under this chapter prior to September 1, 2002, as a "business trust" (as
such term was then defined in this subsection). A statutory trust may be organized to carry on any lawful business or activity,
whether or not conducted for profit, and/or for any of the purposes referred to paragraph (g)(1) of this section (including,
without limitation, for the purpose of holding or otherwise taking title to property, whether in an active or custodial capacity).
Neither use of the designation "business trust" nor a statement in a certificate of trust or governing instrument executed
prior to September 1, 2002, to the effect that the trust formed thereby is or will qualify as a Delaware business trust within
the meaning of or pursuant to this chapter, shall create a presumption or an inference that the trust so formed is a "business
trust" for purposes of Title 11 of the United States Code.
(h) "Trustee" means the person or persons appointed as a trustee in accordance with the governing instrument of a statutory
trust, and may include the beneficial owners or any of them.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, §§ 3, 9, 16; 68 Del. Laws, c. 106, § 1; 68 Del. Laws, c. 404, §§ 2, 3; 70 Del. Laws, c. 548, §§ 1, 2; 71 Del. Laws, c. 335, § 1; 72 Del. Laws, c. 387, §§ 1-3; 73 Del. Laws, c. 328, §§ 1, 2, 3, 4, 5; 73 Del. Laws, c. 329, §§ 1, 2; 75 Del. Laws, c. 418, §§ 1-3; 77 Del. Laws, c. 403, §§ 1, 2.;
§ 3802. Contributions by beneficial owners.
(a) A contribution of a beneficial owner to the statutory trust may be in cash, property or services rendered, or a promissory
note or other obligation to contribute cash or property or to perform services; provided however, that a person may become
a beneficial owner of a statutory trust and may receive a beneficial interest in a statutory trust without making a contribution
or being obligated to make a contribution to the statutory trust.
(b) Except as provided in the governing instrument, a beneficial owner is obligated to the statutory trust to perform any
promise to contribute cash, property or to perform services, even if the beneficial owner is unable to perform because of
death, disability or any other reason. If a beneficial owner does not make the required contribution of property or services,
the beneficial owner is obligated at the option of the statutory trust to contribute cash equal to that portion of the agreed
value (as stated in the records of the statutory trust) of the contribution that has not been made. The foregoing option shall
be in addition to, and not in lieu of, any other rights, including the right to specific performance, that the statutory trust
may have against such beneficial owner under the governing instrument of applicable law.
(c) A governing instrument may provide that the interest of any beneficial owner who fails to make any contribution that the
beneficial owner is obligated to make shall be subject to specific penalties for, or specified consequences of, such failure.
Such penalty or consequence may take the form of reducing or eliminating the defaulting beneficial owner's proportionate interest
in the statutory trust, subordinating the beneficial interest to that of nondefaulting beneficial owners, a forced sale of
the beneficial interest, forfeiture of the beneficial interest, the lending by other beneficial owners of the amount necessary
to meet the beneficiary's commitment, a fixing of the value of the defaulting beneficial owner's beneficial interest by appraisal
or by formula and redemption or sale of the beneficial interest at such value, or any other penalty or consequence.
68 Del. Laws, c. 404, § 4; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 329, § 1.;
§ 3803. Liability of beneficial owners and trustees.
(a) Except to the extent otherwise provided in the governing instrument of the statutory trust, the beneficial owners shall
be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized
under the general corporation law of the State.
(b) Except to the extent otherwise provided in the governing instrument of a statutory trust, a trustee, when acting in such
capacity, shall not be personally liable to any person other than the statutory trust or a beneficial owner for any act, omission
or obligation of the statutory trust or any trustee thereof.
(c) Except to the extent otherwise provided in the governing instrument of a statutory trust, an officer, employee, manager
or other person acting pursuant to § 3806(b)(7) of this title, when acting in such capacity, shall not be personally liable
to any person other than the statutory trust or a beneficial owner for any act, omission or obligation of the statutory trust
or any trustee thereof.
(d) No obligation of a beneficial owner or trustee of a statutory trust to the statutory trust arising under the governing
instrument or a separate agreement in writing, and no note, instrument or other writing evidencing any such obligation of
a beneficial owner or trustee, shall be subject to the defense of usury, and no beneficial owner or trustee shall interpose
the defense of usury with respect to any such obligation in any action.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, §§ 1, 2; 68 Del. Laws, c. 404, § 5; 69 Del. Laws, c. 265, § 1; 70 Del. Laws, c. 548, § 3; 73 Del. Laws, c. 329, § 1.;
§ 3804. Legal proceedings.
(a) A statutory trust may sue and be sued, and service of process upon 1 of the trustees shall be sufficient. In furtherance
of the foregoing, a statutory trust may be sued for debts and other obligations or liabilities contracted or incurred by the
trustees, or by the duly authorized agents of such trustees, in the performance of their respective duties under the governing
instrument of the statutory trust, and for any damages to persons or property resulting from the negligence of such trustees
or agents acting in the performance of such respective duties. The property of a statutory trust shall be subject to attachment
and execution as if it were a corporation, subject to § 3502 of Title 10. Notwithstanding the foregoing provisions of this
section, in the event that the governing instrument of a statutory trust, including a statutory trust which is a registered
investment company under the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), creates 1 or more series
as provided in § 3806(b)(2) of this title, and if separate and distinct records are maintained for any such series and the
assets associated with any such series are held in such separate and distinct records (directly or indirectly, including through
a nominee or otherwise) and accounted for in such separate and distinct records separately from the other assets of the statutory
trust, or any other series thereof, and if the governing instrument so provides, and notice of the limitation on liabilities
of a series as referenced in this sentence is set forth in the certificate of trust of the statutory trust, then the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular series shall
be enforceable against the assets of such series only, and not against the assets of the statutory trust generally or any
other series thereof, and, unless otherwise provided in the governing instrument, none of the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to the statutory trust generally or any other series
thereof shall be enforceable against the assets of such series.
(b) A trustee of a statutory trust may be served with process in the manner prescribed in subsection (c) of this section in
all civil actions or proceedings brought in the State involving or relating to the activities of the statutory trust or a
violation by a trustee of a duty to the statutory trust, or any beneficial owner, whether or not the trustee is a trustee
at the time suit is commenced. Every resident or nonresident of the State who accepts election or appointment or serves as
a trustee of a statutory trust shall, by such acceptance or service, be deemed thereby to have consented to the appointment
of the Delaware trustee or registered agent of such statutory trust required by § 3807 of this title (or, if there is none,
the Secretary of State) as such person's agent upon whom service of process may be made as provided in this section. Such
acceptance or service shall signify the consent of such trustee that any process when so served shall be of the same legal
force and validity as if served upon such trustee within the State and such appointment of such Delaware trustee or registered
agent (or, if there is none, the Secretary of State) shall be irrevocable.
(c) Service of process shall be effected by serving the Delaware trustee or registered agent of such statutory trust required
by § 3807 of this title (or, if there is none, the Secretary of State) with 1 copy of such process in the manner provided
by law for service of writs of summons. In the event service is made under this subsection upon the Secretary of State, the
plaintiff shall pay to the Secretary of State the sum of $50 for the use of the State, which sum shall be taxed as part of
the costs of the proceeding if the plaintiff shall prevail therein. In addition, the Prothonotary or the Register in Chancery
of the court in which the civil action or proceeding is pending shall, within 7 days of such service, deposit in the United
States mails, by registered mail, postage prepaid, true and attested copies of the process, together with a statement that
service is being made pursuant to this section, addressed to the defendant at the defendant's address last known to and furnished
by the party desiring to make such service.
(d) In any action in which any such trustee has been served with process as hereinafter provided, the time in which a defendant
shall be required to appear and file a responsive pleading shall be computed from the date of mailing by the Prothonotary
or the Register in Chancery as provided in subsection (c) of this section; provided however, the court in which such action
has been commenced may order such continuance or continuances as may be necessary to afford such trustee reasonable opportunity
to defend the action.
(e) In the governing instrument of the statutory trust or other writing, a trustee or beneficial owner or other person may
consent to be subject to the nonexclusive jurisdiction of the courts of, or arbitration in, a specified jurisdiction, or the
exclusive jurisdiction of the courts of the State, or the exclusivity of arbitration in a specified jurisdiction or the State,
and to be served with legal process in the manner prescribed in such governing instrument of the statutory trust or other
writing. Except by agreeing to arbitrate any arbitrable matter in a specified jurisdiction or in the State, a beneficial owner
who is not a trustee may not waive its right to maintain a legal action or proceeding in the courts of the State with respect
to matters relating to the organization or internal affairs of a statutory trust.
(f) Nothing herein contained limits or affects the right to serve process in any other manner now or hereafter provided by
law. This section is an extension of and not a limitation upon the right otherwise existing of service of legal process upon
nonresidents.
(g) The Court of Chancery and the Superior Court may make all necessary rules respecting the form of process, the manner of
issuance and return thereof and such other rules which may be necessary to implement this section and are not inconsistent
with this section. The Court of Chancery shall have jurisdiction over statutory trusts to the same extent as it has jurisdiction
over common law trusts formed under the laws of the State.
(h) [Repealed.]
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 18; 68 Del. Laws, c. 106, § 2; 68 Del. Laws, c. 404, § 6; 69 Del. Laws, c. 265, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 548, § 4; 71 Del. Laws, c. 335, §§ 2, 3; 73 Del. Laws, c. 328, § 6; 73 Del. Laws, c. 329, § 1; 74 Del. Laws, c. 353, § 1; 75 Del. Laws, c. 418, § 4.;
§ 3805. Rights of beneficial owners and trustees in trust property.
(a) Except to the extent otherwise provided in the governing instrument of the statutory trust, a beneficial owner shall have
an undivided beneficial interest in the property of the statutory trust and shall share in the profits and losses of the statutory
trust in the proportion (expressed as a percentage) of the entire undivided beneficial interest in the statutory trust owned
by such beneficial owner. The governing instrument of a statutory trust may provide that the statutory trust or the trustees,
acting for and on behalf of the statutory trust, shall be deemed to hold beneficial ownership of any income earned on securities
of the statutory trust issued by any business entities formed, organized, or existing under the laws of any jurisdiction,
including the laws of any foreign country.
(b) No creditor of the beneficial owner shall have any right to obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the statutory trust.
(c) A beneficial owner's beneficial interest in the statutory trust is personal property notwithstanding the nature of the
property of the trust. Except to the extent otherwise provided in the governing instrument of a statutory trust, a beneficial
owner has no interest in specific statutory trust property.
(d) A beneficial owner's beneficial interest in the statutory trust is freely transferable except to the extent otherwise
provided in the governing instrument of the statutory trust.
(e) Except to the extent otherwise provided in the governing instrument of a statutory trust, at the time a beneficial owner
becomes entitled to receive a distribution, the beneficial owner has the status of, and is entitled to all remedies available
to, a creditor of the statutory trust with respect to the distribution. A governing instrument may provide for the establishment
of record dates with respect to allocations and distributions by a statutory trust.
(f) Except to the extent otherwise provided in the governing instrument of the statutory trust, legal title to the property
of the statutory trust or any part thereof may be held in the name of any trustee of the statutory trust, in its capacity
as such, with the same effect as if such property were held in the name of the statutory trust.
(g) No creditor of the trustee shall have any right to obtain possession of, or otherwise exercise legal or equitable remedies
with respect to, the property of the statutory trust with respect to any claim against, or obligation of, such trustee in
its individual capacity and not related to the statutory trust.
(h) Except to the extent otherwise provided in the governing instrument of the statutory trust, where the statutory trust
is a registered investment company under the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), any class,
group or series of beneficial interests established by the governing instrument with respect to such statutory trust shall
be a class, group or series preferred as to distribution of assets or payment of dividends over all other classes, groups
or series in respect to assets specifically allocated to the class, group or series as contemplated by § 18 (or any amendment
or successor provision) of the Investment Company Act of 1940 [15 U.S.C. § 80a-18], as amended, and any regulations issued
thereunder, provided that this section is not intended to affect in any respect the provisions of § 3804(a) of this title.
(i) Unless otherwise provided in the governing instrument of a statutory trust or another agreement, a beneficial owner shall
have no preemptive right to subscribe to any additional issue of beneficial interests or another interest in a statutory trust.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, §§ 6, 10, 17; 68 Del. Laws, c. 404, §§ 7, 8; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 387, § 4; 73 Del. Laws, c. 328, §§ 7, 8; 73 Del. Laws, c. 329, § 1.;
§ 3806. Management of statutory trust.
(a) Except to the extent otherwise provided in the governing instrument of a statutory trust, the business and affairs of
a statutory trust shall be managed by or under the direction of its trustees. To the extent provided in the governing instrument
of a statutory trust, any person (including a beneficial owner) shall be entitled to direct the trustees or other persons
in the management of the statutory trust. Except to the extent otherwise provided in the governing instrument of a statutory
trust, neither the power to give direction to a trustee or other persons nor the exercise thereof by any person (including
a beneficial owner) shall cause such person to be a trustee. To the extent provided in the governing instrument of a statutory
trust, neither the power to give direction to a trustee or other persons nor the exercise thereof by any person (including
a beneficial owner) shall cause such person to have duties (including fiduciary duties) or liabilities relating thereto to
the statutory trust or to a beneficial owner thereof.
(b) A governing instrument may contain any provision relating to the management of the business and affairs of the statutory
trust, and the rights, duties and obligations of the trustees, beneficial owners and other persons, which is not contrary
to any provision or requirement of this subchapter and, without limitation:
(1) May provide for classes, groups or series of trustees or beneficial owners, or classes, groups or series of beneficial
interests, having such relative rights, powers and duties as the governing instrument may provide, and may make provision
for the future creation in the manner provided in the governing instrument of additional classes, groups or series of trustees,
beneficial owners or beneficial interests, having such relative rights, powers and duties as may from time to time be established,
including rights, powers and duties senior or subordinate to existing classes, groups or series of trustees, beneficial owners
or beneficial interests;
(2) May establish or provide for the establishment of designated series of trustees, beneficial owners, assets or beneficial
interests having separate rights, powers or duties with respect to specified property or obligations of the statutory trust
or profits and losses associated with specified property or obligations, and, to the extent provided in the governing instrument,
any such series may have a separate business purpose or investment objective;
(3) May provide for the taking of any action, including the amendment of the governing instrument, the accomplishment of a
merger, conversion or consolidation, the appointment of one or more trustees, the sale, lease, exchange, transfer, pledge
or other disposition of all or any part of the assets of the statutory trust or the assets of any series, or the dissolution
of the statutory trust, or may provide for the taking of any action to create under the provisions of the governing instrument
a class, group or series of beneficial interests that was not previously outstanding, in any such case without the vote or
approval of any particular trustee or beneficial owner, or class, group or series of trustees or beneficial owners;
(4) May grant to (or withhold from) all or certain trustees or beneficial owners, or a specified class, group or series of
trustees or beneficial owners, the right to vote, separately or with any or all other classes, groups or series of the trustees
or beneficial owners, on any matter, such voting being on a per capita, number, financial interest, class, group, series or
any other basis;
(5) May, if and to the extent that voting rights are granted under the governing instrument, set forth provisions relating
to notice of the time, place or purpose of any meeting at which any matter is to be voted on, waiver of any such notice, action
by consent without a meeting, the establishment of record dates, quorum requirements, voting in person, by proxy or in any
other manner, or any other matter with respect to the exercise of any such right to vote;
(6) May provide for the present or future creation of more than 1 statutory trust, including the creation of a future statutory
trust to which all or any part of the assets, liabilities, profits or losses of any existing statutory trust will be transferred,
and for the conversion of beneficial interests in an existing statutory trust, or series thereof, into beneficial interests
in the separate statutory trust, or series thereof;
(7) May provide for the appointment, election or engagement, either as agents or independent contractors of the statutory
trust or as delegatees of the trustees, of officers, employees, managers or other persons who may manage the business and
affairs of the statutory trust and may have such titles and such relative rights, powers and duties as the governing instrument
shall provide. Except to the extent otherwise provided in the governing instrument of a statutory trust, the trustees shall
choose and supervise such officers, managers, employees and other persons;
(8) May provide rights to any person, including a person who is not a party to the governing instrument, to the extent set
forth therein; or
(9) May provide for the manner in which it may be amended, including by requiring the approval of a person who is not a party
to the governing instrument or the satisfaction of conditions, and to the extent the governing instrument provides for the
manner in which it may be amended such governing instrument may be amended only in that manner or as otherwise permitted by
law, including as permitted by § 3815(f) of this title (provided that the approval of any person may be waived by such person
and that any such conditions may be waived by all persons for whose benefit such conditions were intended).
(c) To the extent that, at law or in equity, a trustee or beneficial owner or other person has duties (including fiduciary
duties) to a statutory trust or to another trustee or beneficial owner or to another person that is a party to or is otherwise
bound by a governing instrument, the trustee's or beneficial owner's or other person's duties may be expanded or restricted
or eliminated by provisions in the governing instrument; provided, that the governing instrument may not eliminate the implied
contractual covenant of good faith and fair dealing.
(d) Unless otherwise provided in a governing instrument, a trustee or beneficial owner or other person shall not be liable
to a statutory trust or to another trustee or beneficial owner or to another person that is a party to or is otherwise bound
by a governing instrument for breach of fiduciary duty for the trustee's or beneficial owner's or other person's good faith
reliance on the provisions of the governing instrument.
(e) A governing instrument may provide for the limitation or elimination of any and all liabilities for breach of contract
and breach of duties (including fiduciary duties) of a trustee, beneficial owner or other person to a statutory trust or to
another trustee or beneficial owner or to another person that is a party to or is otherwise bound by a governing instrument;
provided, that a governing instrument may not limit or eliminate liability for any act or omission that constitutes a bad
faith violation of the implied contractual covenant of good faith and fair dealing.
(f) Unless otherwise provided in the governing instrument of a statutory trust, meetings of beneficial owners may be held
by means of conference telephone or other communications equipment by means of which all persons participating in the meeting
can hear each other, and participation in a meeting pursuant to this subsection shall constitute presence in person at the
meeting. Unless otherwise provided in the governing instrument of a statutory trust, on any matter that is to be voted on
by the beneficial owners,
(1) The beneficial owners may take such action without a meeting, without a prior notice and without a vote if a consent or
consents in writing, setting forth the action so taken, shall be signed by the beneficial owners having not less than the
minimum number of votes that would be necessary to authorize or take such action at a meeting at which all interests in the
statutory trust entitled to vote thereon were present and voted and
(2) The beneficial owners may vote in person or by proxy, and such proxy may be granted in writing, by means of electronic
transmission; or as otherwise permitted by applicable law.
Unless otherwise provided in a governing instrument, a consent transmitted by electronic transmission by a beneficial owner
or by a person or persons authorized to act for a beneficial owner shall be deemed to be written and signed for purposes of
this subsection. For purposes of this subsection, the term "electronic transmission" means any form of communication not directly
involving the physical transmission of paper that creates a record that may be retained, retrieved and reviewed by a recipient
thereof and that may be directly reproduced in paper form by such a recipient through an automated process.
(g) Unless otherwise provided in the governing instrument of a statutory trust, meetings of trustees may be held by means
of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this subsection shall constitute presence in person at the meeting.
Unless otherwise provided in the governing instrument of a statutory trust, on any matter that is to be voted on by the trustees,
(1) The trustees may take such action without a meeting, without a prior notice and without a vote if a consent or consents
in writing, setting forth the action so taken, shall be signed by the trustees having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at which all trustees entitled to vote thereon
were present and voted and
(2) The trustee may vote in person or by proxy, and such proxy may be granted in writing, by means of electronic transmission,
or as otherwise permitted by applicable law.
Unless otherwise provided in a governing instrument, a consent transmitted by electronic transmission by a trustee or by a
person or persons authorized to act for a trustee shall be deemed to be written and signed for purposes of this subsection.
For purposes of this subsection, the term "electronic transmission" means any form of communication not directly involving
the physical transmission of paper that creates a record that may be retained, retrieved and reviewed by a recipient thereof
and that may be directly reproduced in paper form by such a recipient through an automated process.
(h) Except to the extent otherwise provided in the governing instrument of a statutory trust, a beneficial owner, trustee,
officer, employee or manager may lend money to, borrow money from, act as a surety, guarantor or endorser for, guarantee or
assume 1 or more obligations of, provide collateral for, and transact other business with a statutory trust and, subject to
other applicable law, has the same rights and obligations with respect to any such matter as a person who is not a beneficial
owner, trustee, officer, employee or manager.
(i) Except to the extent otherwise provided in the governing instrument of a statutory trust, a trustee of a statutory trust
has the power and authority to delegate to 1 or more other persons the trustee's rights and powers to manage and control the
business and affairs of the statutory trust, including to delegate to agents, officers and employees of the trustee or the
statutory trust, and to delegate by management agreement or other agreement with, or otherwise to, other persons. Except to
the extent otherwise provided in the governing instrument of a statutory trust, such delegation by a trustee of a statutory
trust shall not cause the trustee to cease to be a trustee of the statutory trust or cause the person to whom any such rights
and powers have been delegated to be a trustee of the statutory trust.
(j) The governing instrument of a statutory trust may provide that:
(1) A beneficial owner who fails to perform in accordance with, or to comply with the terms and conditions of, the governing
instrument shall be subject to specified penalties or specified consequences;
(2) At the time or upon the happening of events specified in the governing instrument, a beneficial owner shall be subject
to specified penalties or specified consequences; and
(3) The specified penalties or specified consequences under paragraphs (j)(1) and (j)(2) of this section may include and take
the form of any penalty or consequence set forth in § 3802(c) of this title.
(k) A trustee, beneficial owner or an officer, employee, manager or other person designated in accordance with paragraph (b)(7)
of this section shall be fully protected in relying in good faith upon the records of the statutory trust and upon information,
opinions, reports or statements presented by another trustee, beneficial owner or officer, employee, manager or other person
designated in accordance with paragraph (b)(7) of this section, or by any other person as to matters the trustee, beneficial
owner or officer, employee, manager or other person designated in accordance with paragraph (b)(7) of this section reasonably
believes are within such other person's professional or expert competence, including information, opinions, reports or statements
as to the value and amount of the assets, liabilities, profits or losses of the statutory trust, or the value and amount of
assets or reserves or contracts, agreements or other undertakings that would be sufficient to pay claims and obligations of
the statutory trust or to make reasonable provision to pay such claims and obligations, or any other facts pertinent to the
existence and amount of assets from which distributions to beneficial owners or creditors might properly be paid.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 4; 68 Del. Laws, c. 404, § 9; 69 Del. Laws, c. 265, §§ 3-5; 71 Del. Laws, c. 335, § 5; 72 Del. Laws, c. 387, § 5; 73 Del. Laws, c. 328, §§ 9-12; 73 Del. Laws, c. 329, § 1; 74 Del. Laws, c. 353, §§ 2-4; 75 Del. Laws, c. 418, §§ 5-10; 77 Del. Laws, c. 403, §§ 3, 4.;
§ 3807. Trustee in State.
(a) Every statutory trust shall at all times have at least 1 trustee which, in the case of a natural person, shall be a person
who is a resident of this State or which, in all other cases, has its principal place of business in this State.
(b) Notwithstanding the provisions of subsection (a) of this section, if a statutory trust is, becomes, or will become prior
to or within 180 days following the first issuance of beneficial interests, a registered investment company under the Investment
Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), such statutory trust shall not be required to have a trustee
who is a resident of this State or who has a principal place of business in this State if notice that the statutory trust
is or will become an investment company as referenced in this sentence is set forth in the certificate of trust of the statutory
trust and if and for so long as such statutory trust shall have and maintain in this State:
(1) A registered office, which may but need not be a place of business in this State; and
(2) A registered agent for service of process on the statutory trust, which agent may be either an individual resident in
this State whose business office is identical with such statutory trust's registered office, or a domestic corporation, limited
partnership, limited liability company or statutory trust, or a foreign corporation, limited partnership, limited liability
company or statutory trust authorized to transact business in this State, having a business office identical with such registered
office.
(c) Any statutory trust maintaining a registered office and registered agent in this State under subsection (b) of this section
may change the location of its registered office in this State to any other place in this State, or may change the registered
agent to any other person or corporation (meeting the requirements contained in subsection (b) of this section), by filing
an amendment to its certificate of trust in accordance with the applicable provisions of this subchapter. If a statutory trust
which is an investment company registered as aforesaid maintains a registered office and registered agent in this State as
herein provided, then the reference in § 3810(a)(1)b. of this title to the "name and the business address of at least 1 of
the trustees meeting the requirements of § 3807 of this title" shall be deemed a reference to the name and the business address
of the registered agent and registered office maintained under this section, and the certificate of trust filed under § 3810
of this title shall reflect such information in lieu of the information otherwise required by § 3810(a)(1)b. of this title.
(d) Service of process upon a registered agent maintained by a statutory trust pursuant to subsection (b) of this section
shall be as effective as if served upon one of the trustees of the statutory trust pursuant to § 3804 of this title.
(e) A trustee or registered agent of a statutory trust whose address, as set forth in a certificate of trust pursuant to §
3810(a)(1)b. of this title, has changed may change such address in the certificates of trust of all statutory trusts for which
such trustee or registered agent is appointed to another address in the State by paying a fee as set forth in § 3813(a)(5)
of this title and filing with the Secretary of State a certificate, executed by such trustee or registered agent, setting
forth the address of such trustee or registered agent before it was changed, and further certifying as to the new address
of such trustee or registered agent for each of the statutory trusts for which it is trustee or registered agent. Upon the
filing of such certificate, the Secretary of State shall furnish to the trustee or registered agent a certified copy of the
same under the Secretary's hand and seal of office, and thereafter, or until further change of address, as authorized by law,
the address of such trustee or registered agent in the State for each of the statutory trusts for which it is trustee or registered
agent shall be located at the new address of the trustee or registered agent thereof as given in the certificate. A trustee
or registered agent of a statutory trust whose name, as set forth in a certificate of trust pursuant to § 3810(a)(1)b. of
this title, has changed may change such name in the certificates of trust of all statutory trusts for which such trustee or
registered agent is appointed to its new name by paying a fee as set forth in § 3813(a)(5) of this title and filing with the
Secretary of State a certificate, executed by such trustee or registered agent, setting forth the name of such trustee or
registered agent before it was changed and further certifying as to the new name of such trustee or registered agent for each
of the statutory trusts for which it is a trustee or registered agent. Upon the filing of such certificate and payment of
such fee, the Secretary of State shall furnish to the trustee or registered agent a certified copy of the certificate under
the Secretary's hand and seal of office. A change of name of any person acting as a trustee or registered agent of a statutory
trust as a result of a merger or consolidation of the trustee or registered agent with another person who succeeds to its
assets and liabilities by operation of law shall be deemed a change of name for purposes of this section. Filing a certificate
under this section shall be deemed to be an amendment of the certificate of trust of each statutory trust affected thereby,
and no further action with respect thereto to amend its certificate of trust under § 3810 of this title shall be required.
Any trustee or registered agent filing a certificate under this section shall promptly, upon such filing, deliver a copy of
any such certificate to each statutory trust affected thereby.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 5; 68 Del. Laws, c. 106, § 3; 68 Del. Laws, c. 404, § 10; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 335, § 6; 72 Del. Laws, c. 387, § 6; 73 Del. Laws, c. 328, § 13; 73 Del. Laws, c. 329, § 1; 75 Del. Laws, c. 418, § 11.;
§ 3808. Existence of statutory trust.
(a) Except to the extent otherwise provided in the governing instrument of the statutory trust, a statutory trust shall have
perpetual existence, and a statutory trust may not be terminated or revoked by a beneficial owner or other person except in
accordance with the terms of its governing instrument.
(b) Except to the extent otherwise provided in the governing instrument of a statutory trust, the death, incapacity, dissolution,
termination or bankruptcy of a beneficial owner or a trustee shall not result in the termination or dissolution of a statutory
trust.
(c) In the event that a statutory trust does not have perpetual existence, a statutory trust is dissolved and its affairs
shall be wound up at the time or upon the happening of events specified in the governing instrument. Notwithstanding the happening
of events specified in the governing instrument, the statutory trust shall not be dissolved and its affairs shall not be wound
up if, prior to the filing of a certificate of cancellation as provided in § 3810 of this title, the statutory trust is continued,
effective as of the happening of such event, pursuant to the affirmative vote or written consent of all remaining beneficial
owners of the statutory trust (and any other person whose approval is required under the governing instrument to revoke a
dissolution pursuant to this section), provided, however, if the dissolution was caused by a vote or written consent, the
dissolution shall not be revoked unless each beneficial owner and other person (or their respective personal representatives)
who voted in favor of, or consented to, the dissolution has voted or consented in writing to continue the statutory trust.
(d) Upon dissolution of a statutory trust and until the filing of a certificate of cancellation as provided in § 3810 of this
title, the persons who, under the governing instrument of the statutory trust, are responsible for winding up the statutory
trust's affairs may, in the name of and for and on behalf of the statutory trust, prosecute and defend suits, whether civil,
criminal or administrative, gradually settle and close the statutory trust business, dispose of and convey the statutory trust
property, discharge or make reasonable provision for the statutory trust liabilities and distribute to the beneficial owners
any remaining assets of the statutory trust.
(e) A statutory trust which has dissolved shall pay or make reasonable provision to pay all claims and obligations, including
all contingent, conditional or unmatured claims and obligations, known to the statutory trust and all claims and obligations
which are known to the statutory trust but for which the identity of the claimant is unknown and claims and obligations that
have not been made known to the statutory trust or that have not arisen but that, based on the facts known to the statutory
trust, are likely to arise or to become known to the statutory trust within 10 years after the date of dissolution. If there
are sufficient assets, such claims and obligations shall be paid in full and any such provision for payment shall be made
in full. If there are insufficient assets, such claims and obligations shall be paid or provided for according to their priority
and, among claims and obligations of equal priority, ratably to the extent of assets available therefor. Unless otherwise
provided in the governing instrument of a statutory trust, any remaining assets shall be distributed to the beneficial owners.
Any person, including any trustee, who under the governing instrument of the statutory trust is responsible for winding up
a statutory trust's affairs who has complied with this subsection shall not be personally liable to the claimants of the dissolved
statutory trust by reason of such person's actions in winding up the statutory trust.
(f) Except to the extent otherwise provided in the governing instrument of the statutory trust, a series established in accordance
with § 3804(a) of this title may be dissolved and its affairs wound up without causing the dissolution of the statutory trust
or any other series thereof. Unless otherwise provided in the governing instrument of the statutory trust, the dissolution,
winding up, liquidation or termination of the statutory trust or any series thereof shall not affect the limitation of liability
with respect to a series established in accordance with § 3804(a) of this title. A series established in accordance with §
3804(a) of this title is dissolved and its affairs shall be wound up at the time or upon the happening of events specified
in the governing instrument of the statutory trust. Except to the extent otherwise provided in the governing instrument of
a statutory trust, the death, incapacity, dissolution, termination or bankruptcy of a beneficial owner of such series shall
not result in the termination or dissolution of such series and such series may not be terminated or revoked by a beneficial
owner of such series or other person except in accordance with the terms of the governing instrument of the statutory trust.
(g) Upon dissolution of a series of a statutory trust, the persons who under the governing instrument of the statutory trust
are responsible for winding up such series" affairs may, in the name of the statutory trust and for and on behalf of the statutory
trust and such series, take all actions with respect to the series as are permitted under subsection (d) of this section and
shall provide for the claims and obligations of the series and distribute the assets of the series as provided under subsection
(e) of this section. Any person, including any trustee, who under the governing instrument is responsible for winding up such
series" affairs who has complied with subsection (e) of this section shall not be personally liable to the claimants of the
dissolved series by reason of such person's actions in winding up the series.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 7; 69 Del. Laws, c. 265, § 6; 70 Del. Laws, c. 548, § 5; 71 Del. Laws, c. 335, § 7; 73 Del. Laws, c. 329, § 1; 75 Del. Laws, c. 418, §§ 12, 13; 77 Del. Laws, c. 403, § 5.;
§ 3809. Applicability of trust law.
Except to the extent otherwise provided in the governing instrument of a statutory trust or in this subchapter, the laws of
this State pertaining to trusts are hereby made applicable to statutory trusts; provided however, that for purposes of any
tax imposed by this State or any instrumentality, agency or political subdivision of this State a statutory trust shall be
classified as a corporation, an association, a partnership, a trust or otherwise, as shall be determined under the United
States Internal Revenue Code of 1986 [26 U.S. Code § 1 et seq.], as amended, or under any successor provision.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 11; 70 Del. Laws, c. 548, § 7; 73 Del. Laws, c. 329, § 1.;
§ 3810. Certificate of trust; amendment; restatement; cancellation.
(a)(1) Every statutory trust shall file a certificate of trust in the office of the Secretary of State. The certificate of
trust shall set forth:
a. The name of the statutory trust;
b. The name and address in this State of at least 1 of the trustees meeting the requirements of § 3807 of this title;
c. The future effective date or time (which shall be a date or time certain) of effectiveness of the certificate if it is
not to be effective upon the filing of the certificate; and
d. Any other information the trustees determine to include therein.
(2) A statutory trust is formed at the time of the filing of the initial certificate of trust in the office of the Secretary
of State or at any later date or time specified in the certificate of trust if, in either case, there has been substantial
compliance with the requirements of this section. A statutory trust formed under this chapter shall be a separate legal entity,
the existence of which as a separate legal entity shall continue until cancellation of the statutory trust's certificate of
trust.
(3) The filing of a certificate of trust in the office of the Secretary of State shall make it unnecessary to file any other
documents under Chapter 31 of Title 6.
(b)(1) A certificate of trust may be amended by filing a certificate of amendment thereto in the office of the Secretary of
State. The certificate of amendment shall set forth:
a. The name of the statutory trust;
b. The amendment to the certificate; and
c. The future effective date or time (which shall be a date or time certain) of effectiveness of the certificate if it is
not to be effective upon the filing of the certificate.
(2) Except to the extent otherwise provided in the certificate of trust or in the governing instrument of a statutory trust,
a certificate of trust may be amended at any time for any purpose as the trustees may determine. A trustee who becomes aware
that any statement in a certificate of trust was false when made or that any matter described has changed making the certificate
false in any material respect shall promptly file a certificate of amendment.
(c)(1) A certificate of trust may be restated by integrating into a single instrument all of the provisions of the certificate
of trust which are then in effect and operative as a result of there having been theretofore filed 1 or more certificates
of amendment pursuant to subsection (b) of this section, and the certificate of trust may be amended or further amended by
the filing of a restated certificate of trust. The restated certificate of trust shall be specifically designated as such
in its heading and shall set forth:
a. The present name of the statutory trust, and if it has been changed, the name under which the statutory trust was originally
formed;
b. The date of filing of the original certificate of trust with the Secretary of State;
c. The information required to be included pursuant to subsection (a) of this section; and
d. Any other information the trustees determine to include therein.
(2) A certificate of trust may be restated at any time for any purpose as the trustees may determine. A trustee who becomes
aware that any statement in a restated certificate of trust was false when made or that any matter described has changed making
the restated certificate false in any material respect shall promptly file a certificate of amendment or a restated certificate
of trust.
(d) A certificate of trust shall be cancelled upon the dissolution and the completion of winding up of a statutory trust,
or upon the filing of a certificate of merger or consolidation if the statutory trust is not the surviving or resulting entity
in a merger or consolidation, or upon the future effective date or time of a certificate of merger or consolidation if the
trust is not the surviving or resulting entity in a merger or consolidation, or upon the filing of a certificate of transfer,
or upon the future effective date or time of a certificate of transfer, or upon the filing of a certificate of conversion
to non-Delaware other business entity or upon the future effective date or time of a certificate of conversion to non-Delaware
entity. A certificate of cancellation shall be filed in the office of the Secretary of State and set forth:
(1) The name of the statutory trust;
(2) The date of filing of its certificate of trust;
(3) The future effective date or time (which shall be a date or time certain) of cancellation if it is not to be effective
upon the filing of the certificate; and
(4) Any other information the trustee determines to include therein.
The Secretary of State shall not issue a certificate of good standing with respect to a statutory trust if its certificate
of trust is cancelled.
(e) Whenever any certificate authorized to be filed with the office of the Secretary of State under this subchapter has been
so filed and is an inaccurate record of the action therein referred to or was defectively or erroneously executed, such certificate
may be corrected by filing with the office of the Secretary of State a certificate of correction of such certificate. The
certificate of correction shall specify the inaccuracy or defect to be corrected, shall set forth the portion of the certificate
in corrected form and shall be executed and filed as required by this subchapter. The certificate of correction shall be effective
as of the date the original certificate was filed, except as to those persons who are substantially and adversely affected
by the correction, and as to those persons the certificate of correction shall be effective from the filing date. In lieu
of filing a certificate of correction, the certificate may be corrected by filing with the office of the Secretary of State
a corrected certificate which shall be executed and filed in accordance with this subchapter. The corrected certificate shall
be specifically designated as such in its heading, shall specify the inaccuracy or defect to be corrected and shall set forth
the entire certificate in corrected form. The corrected certificate shall be effective as of the date the original certificate
was filed, except as to those persons who are substantially and adversely affected by the corrections, and as to those persons
the corrected certificate shall be effective from the filing date.
(f) If any certificate filed in accordance with this subchapter provides for a future effective date or time and if the transaction
is terminated or amended to change the future effective date or time prior to the future effective date or time, the certificate
shall be terminated or amended by the filing, prior to the future effective date or time set forth in such original certificate,
of a certificate of termination or amendment of the original certificate, executed and filed in accordance with this subchapter,
which shall identify the original certificate which has been terminated or amended and shall state that the original certificate
has been terminated or amended.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 12; 69 Del. Laws, c. 265, §§ 7, 8; 70 Del. Laws, c. 548, §§ 6, 8, 9; 73 Del. Laws, c. 329, § 1; 74 Del. Laws, c. 353, § 5; 75 Del. Laws, c. 418, § 14; 77 Del. Laws, c. 403, §§ 6-8.;
§ 3811. Execution of certificate.
(a) Each certificate required by this subchapter to be filed in the office of the Secretary of State shall be executed in
the following manner:
(1) A certificate of trust must be signed by all of the trustees;
(2) A certificate of amendment, a certificate of correction, a corrected certificate, a certificate of termination or amendment,
and a restated certificate of trust must be signed by at least one of the trustees;
(3) A certificate of cancellation must be signed by all of the trustees or as otherwise provided in the governing instrument
of the statutory trust; and
(4) If a statutory trust is filing a certificate of merger or consolidation, certificate of conversion, certificate of transfer,
certificate of transfer and continuance, certificate of statutory trust domestication or certificate of termination or amendment
to any such certificate, the certificate of merger or consolidation, certificate of conversion, certificate of transfer, certificate
of transfer and continuance, certificate of statutory trust domestication or certificate of termination or amendment to any
such certificate must be signed by all of the trustees or as otherwise provided in the governing instrument of the statutory
trust, or if the certificate of merger or consolidation, certificate of conversion, certificate of statutory trust domestication
or certificate of termination or amendment to any such certificate is being filed by another business entity or non-United
States entity (as such term is defined in § 3822 of this title thereof), the certificate of merger or consolidation, certificate
of conversion, certificate of statutory trust domestication or certificate of termination or amendment to any such certificate
must be signed by a person authorized to execute the certificate on behalf of the other business entity or non-United States
entity (as such term is defined in § 3822 of this title hereof).
(b) Unless otherwise provided in the governing instrument, any person may sign any certificate or amendment thereof or enter
into a governing instrument or amendment thereof by any agent, including any attorney-in-fact. An authorization, including
a power of attorney, to sign any certificate or amendment thereof or to enter into a governing instrument or amendment thereof
need not be in writing, need not be sworn to, verified or acknowledged and need not be filed in the office of the Secretary
of State, but if in writing, must be retained by the statutory trust or a trustee or other person authorized to manage the
business and affairs of the statutory trust.
(c) The execution of a certificate by a trustee, or other person authorized pursuant to subsection (a) of this section above,
constitutes an oath or affirmation, under the penalties of perjury in the third degree, that, to the best of the trustee's,
or other person authorized pursuant to subsection (a) of this section above, knowledge and belief, the facts stated therein
are true.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 13; 70 Del. Laws, c. 548, §§ 10-12; 71 Del. Laws, c. 335, § 8; 73 Del. Laws, c. 329, § 1; 74 Del. Laws, c. 353, §§ 6-8; 77 Del. Laws, c. 403, §§ 9, 10.;
§ 3812. Filing of certificate.
(a) Any certificate authorized to be filed with the office of the Secretary of State under this subchapter (or any judicial
decree of amendment or cancellation) shall be delivered to the office of the Secretary of State for filing. A person who executes
a certificate as an agent or fiduciary need not exhibit evidence of the person's authority as a prerequisite to filing. Unless
CHAPTER 38. TREATMENT OF DELAWARE STATUTORY TRUSTS
Subchapter I. Domestic Statutory Trusts
§ 3801. Definitions.
(a) "Beneficial owner" means any owner of a beneficial interest in a statutory trust, the fact of ownership to be determined
and evidenced (whether by means of registration, the issuance of certificates or otherwise) in conformity to the applicable
provisions of the governing instrument of the statutory trust.
(b) "Foreign statutory trust" means a business trust or statutory trust formed under the laws of any state or under the laws
of any foreign country or other foreign jurisdiction and denominated as such under the laws of such state or foreign country
or other foreign jurisdiction.
(c) "Governing instrument" means any instrument (whether referred to as a trust agreement, declaration of trust or otherwise)
which creates a statutory trust or provides for the governance of the affairs of the statutory trust and the conduct of its
business. A governing instrument:
(1) May provide that a person shall become a beneficial owner or a trustee if such person (or, in the case of a beneficial
owner, a representative authorized by such person orally, in writing or by other action such as payment for a beneficial interest)
complies with the conditions for becoming a beneficial owner or a trustee set forth in the governing instrument or any other
writing and, in the case of a beneficial owner, acquires a beneficial interest;
(2) May consist of 1 or more agreements, instruments or other writings and may include or incorporate bylaws containing provisions
relating to the business of the statutory trust, the conduct of its affairs and its rights or powers or the rights or powers
of its trustees, beneficial owners, agents or employees; and
(3) May contain any provision that is not inconsistent with law or with the information contained in the certificate of trust.
A statutory trust is not required to execute its governing instrument. A statutory trust is bound by its governing instrument
whether or not it executes the governing instrument. A beneficial owner or a trustee is bound by the governing instrument
whether or not such beneficial owner or trustee executes the governing instrument.
(d) "Independent trustee" means, solely with respect to a statutory trust that is registered as an investment company under
the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), or any successor statute thereto (the "1940 Act"),
any trustee who is not an "interested person" (as such term is defined below) of the statutory trust; provided that the receipt
of compensation for service as an independent trustee of the statutory trust and also for service as an independent trustee
of 1 or more other investment companies managed by a single investment adviser (or an "affiliated person" (as such term is
defined below) of such investment adviser) shall not affect the status of a trustee as an independent trustee under this chapter.
An independent trustee as defined hereunder shall be deemed to be independent and disinterested for all purposes. For purposes
of this definition, the terms "affiliated person" and "interested person" have the meanings set forth in the 1940 Act or any
rule adopted thereunder.
(e) "Other business entity" means a corporation, a partnership (whether general or limited), a limited liability company,
a common-law trust, a foreign statutory trust or any other unincorporated business or entity, excluding a statutory trust.
(f) "Person" means a natural person, partnership (whether general or limited), limited liability company, trust, (including
a common law trust, business trust, statutory trust, voting trust or any other form of trust) estate, association (including
any group, organization, co-tenancy, plan, board, council or committee), corporation, government (including a country, state,
county or any other governmental subdivision, agency or instrumentality), custodian, nominee or any other individual or entity
(or series thereof) in its own or any representative capacity, in each case, whether domestic or foreign, and a statutory
trust or foreign statutory trust.
(g) "Statutory trust" means an unincorporated association which:
(1) Is created by a governing instrument under which property is or will be held, managed, administered, controlled, invested,
reinvested and/or operated, or business or professional activities for profit are carried on or will be carried on, by a trustee
or trustees or as otherwise provided in the governing instrument for the benefit of such person or persons as are or may become
beneficial owners or as otherwise provided in the governing instrument, including but not limited to a trust of the type known
at common law as a "business trust," or "Massachusetts trust," or a trust qualifying as a real estate investment trust under
§ 856 et seq. of the United States Internal Revenue Code of 1986 [26 U.S.C. § 856 et seq.], as amended, or under any successor
provision, or a trust qualifying as a real estate mortgage investment conduit under § 860D of the United States Internal Revenue
Code of 1986 [26 U.S.C. § 860D], as amended, or under any successor provision; and
(2) Files a certificate of trust pursuant to § 3810 of this title.
Any such association heretofore or hereafter organized shall be a statutory trust and a separate legal entity. The term "statutory
trust" shall be deemed to include each trust formed under this chapter prior to September 1, 2002, as a "business trust" (as
such term was then defined in this subsection). A statutory trust may be organized to carry on any lawful business or activity,
whether or not conducted for profit, and/or for any of the purposes referred to paragraph (g)(1) of this section (including,
without limitation, for the purpose of holding or otherwise taking title to property, whether in an active or custodial capacity).
Neither use of the designation "business trust" nor a statement in a certificate of trust or governing instrument executed
prior to September 1, 2002, to the effect that the trust formed thereby is or will qualify as a Delaware business trust within
the meaning of or pursuant to this chapter, shall create a presumption or an inference that the trust so formed is a "business
trust" for purposes of Title 11 of the United States Code.
(h) "Trustee" means the person or persons appointed as a trustee in accordance with the governing instrument of a statutory
trust, and may include the beneficial owners or any of them.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, §§ 3, 9, 16; 68 Del. Laws, c. 106, § 1; 68 Del. Laws, c. 404, §§ 2, 3; 70 Del. Laws, c. 548, §§ 1, 2; 71 Del. Laws, c. 335, § 1; 72 Del. Laws, c. 387, §§ 1-3; 73 Del. Laws, c. 328, §§ 1, 2, 3, 4, 5; 73 Del. Laws, c. 329, §§ 1, 2; 75 Del. Laws, c. 418, §§ 1-3; 77 Del. Laws, c. 403, §§ 1, 2.;
§ 3802. Contributions by beneficial owners.
(a) A contribution of a beneficial owner to the statutory trust may be in cash, property or services rendered, or a promissory
note or other obligation to contribute cash or property or to perform services; provided however, that a person may become
a beneficial owner of a statutory trust and may receive a beneficial interest in a statutory trust without making a contribution
or being obligated to make a contribution to the statutory trust.
(b) Except as provided in the governing instrument, a beneficial owner is obligated to the statutory trust to perform any
promise to contribute cash, property or to perform services, even if the beneficial owner is unable to perform because of
death, disability or any other reason. If a beneficial owner does not make the required contribution of property or services,
the beneficial owner is obligated at the option of the statutory trust to contribute cash equal to that portion of the agreed
value (as stated in the records of the statutory trust) of the contribution that has not been made. The foregoing option shall
be in addition to, and not in lieu of, any other rights, including the right to specific performance, that the statutory trust
may have against such beneficial owner under the governing instrument of applicable law.
(c) A governing instrument may provide that the interest of any beneficial owner who fails to make any contribution that the
beneficial owner is obligated to make shall be subject to specific penalties for, or specified consequences of, such failure.
Such penalty or consequence may take the form of reducing or eliminating the defaulting beneficial owner's proportionate interest
in the statutory trust, subordinating the beneficial interest to that of nondefaulting beneficial owners, a forced sale of
the beneficial interest, forfeiture of the beneficial interest, the lending by other beneficial owners of the amount necessary
to meet the beneficiary's commitment, a fixing of the value of the defaulting beneficial owner's beneficial interest by appraisal
or by formula and redemption or sale of the beneficial interest at such value, or any other penalty or consequence.
68 Del. Laws, c. 404, § 4; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 329, § 1.;
§ 3803. Liability of beneficial owners and trustees.
(a) Except to the extent otherwise provided in the governing instrument of the statutory trust, the beneficial owners shall
be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized
under the general corporation law of the State.
(b) Except to the extent otherwise provided in the governing instrument of a statutory trust, a trustee, when acting in such
capacity, shall not be personally liable to any person other than the statutory trust or a beneficial owner for any act, omission
or obligation of the statutory trust or any trustee thereof.
(c) Except to the extent otherwise provided in the governing instrument of a statutory trust, an officer, employee, manager
or other person acting pursuant to § 3806(b)(7) of this title, when acting in such capacity, shall not be personally liable
to any person other than the statutory trust or a beneficial owner for any act, omission or obligation of the statutory trust
or any trustee thereof.
(d) No obligation of a beneficial owner or trustee of a statutory trust to the statutory trust arising under the governing
instrument or a separate agreement in writing, and no note, instrument or other writing evidencing any such obligation of
a beneficial owner or trustee, shall be subject to the defense of usury, and no beneficial owner or trustee shall interpose
the defense of usury with respect to any such obligation in any action.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, §§ 1, 2; 68 Del. Laws, c. 404, § 5; 69 Del. Laws, c. 265, § 1; 70 Del. Laws, c. 548, § 3; 73 Del. Laws, c. 329, § 1.;
§ 3804. Legal proceedings.
(a) A statutory trust may sue and be sued, and service of process upon 1 of the trustees shall be sufficient. In furtherance
of the foregoing, a statutory trust may be sued for debts and other obligations or liabilities contracted or incurred by the
trustees, or by the duly authorized agents of such trustees, in the performance of their respective duties under the governing
instrument of the statutory trust, and for any damages to persons or property resulting from the negligence of such trustees
or agents acting in the performance of such respective duties. The property of a statutory trust shall be subject to attachment
and execution as if it were a corporation, subject to § 3502 of Title 10. Notwithstanding the foregoing provisions of this
section, in the event that the governing instrument of a statutory trust, including a statutory trust which is a registered
investment company under the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), creates 1 or more series
as provided in § 3806(b)(2) of this title, and if separate and distinct records are maintained for any such series and the
assets associated with any such series are held in such separate and distinct records (directly or indirectly, including through
a nominee or otherwise) and accounted for in such separate and distinct records separately from the other assets of the statutory
trust, or any other series thereof, and if the governing instrument so provides, and notice of the limitation on liabilities
of a series as referenced in this sentence is set forth in the certificate of trust of the statutory trust, then the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular series shall
be enforceable against the assets of such series only, and not against the assets of the statutory trust generally or any
other series thereof, and, unless otherwise provided in the governing instrument, none of the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to the statutory trust generally or any other series
thereof shall be enforceable against the assets of such series.
(b) A trustee of a statutory trust may be served with process in the manner prescribed in subsection (c) of this section in
all civil actions or proceedings brought in the State involving or relating to the activities of the statutory trust or a
violation by a trustee of a duty to the statutory trust, or any beneficial owner, whether or not the trustee is a trustee
at the time suit is commenced. Every resident or nonresident of the State who accepts election or appointment or serves as
a trustee of a statutory trust shall, by such acceptance or service, be deemed thereby to have consented to the appointment
of the Delaware trustee or registered agent of such statutory trust required by § 3807 of this title (or, if there is none,
the Secretary of State) as such person's agent upon whom service of process may be made as provided in this section. Such
acceptance or service shall signify the consent of such trustee that any process when so served shall be of the same legal
force and validity as if served upon such trustee within the State and such appointment of such Delaware trustee or registered
agent (or, if there is none, the Secretary of State) shall be irrevocable.
(c) Service of process shall be effected by serving the Delaware trustee or registered agent of such statutory trust required
by § 3807 of this title (or, if there is none, the Secretary of State) with 1 copy of such process in the manner provided
by law for service of writs of summons. In the event service is made under this subsection upon the Secretary of State, the
plaintiff shall pay to the Secretary of State the sum of $50 for the use of the State, which sum shall be taxed as part of
the costs of the proceeding if the plaintiff shall prevail therein. In addition, the Prothonotary or the Register in Chancery
of the court in which the civil action or proceeding is pending shall, within 7 days of such service, deposit in the United
States mails, by registered mail, postage prepaid, true and attested copies of the process, together with a statement that
service is being made pursuant to this section, addressed to the defendant at the defendant's address last known to and furnished
by the party desiring to make such service.
(d) In any action in which any such trustee has been served with process as hereinafter provided, the time in which a defendant
shall be required to appear and file a responsive pleading shall be computed from the date of mailing by the Prothonotary
or the Register in Chancery as provided in subsection (c) of this section; provided however, the court in which such action
has been commenced may order such continuance or continuances as may be necessary to afford such trustee reasonable opportunity
to defend the action.
(e) In the governing instrument of the statutory trust or other writing, a trustee or beneficial owner or other person may
consent to be subject to the nonexclusive jurisdiction of the courts of, or arbitration in, a specified jurisdiction, or the
exclusive jurisdiction of the courts of the State, or the exclusivity of arbitration in a specified jurisdiction or the State,
and to be served with legal process in the manner prescribed in such governing instrument of the statutory trust or other
writing. Except by agreeing to arbitrate any arbitrable matter in a specified jurisdiction or in the State, a beneficial owner
who is not a trustee may not waive its right to maintain a legal action or proceeding in the courts of the State with respect
to matters relating to the organization or internal affairs of a statutory trust.
(f) Nothing herein contained limits or affects the right to serve process in any other manner now or hereafter provided by
law. This section is an extension of and not a limitation upon the right otherwise existing of service of legal process upon
nonresidents.
(g) The Court of Chancery and the Superior Court may make all necessary rules respecting the form of process, the manner of
issuance and return thereof and such other rules which may be necessary to implement this section and are not inconsistent
with this section. The Court of Chancery shall have jurisdiction over statutory trusts to the same extent as it has jurisdiction
over common law trusts formed under the laws of the State.
(h) [Repealed.]
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 18; 68 Del. Laws, c. 106, § 2; 68 Del. Laws, c. 404, § 6; 69 Del. Laws, c. 265, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 548, § 4; 71 Del. Laws, c. 335, §§ 2, 3; 73 Del. Laws, c. 328, § 6; 73 Del. Laws, c. 329, § 1; 74 Del. Laws, c. 353, § 1; 75 Del. Laws, c. 418, § 4.;
§ 3805. Rights of beneficial owners and trustees in trust property.
(a) Except to the extent otherwise provided in the governing instrument of the statutory trust, a beneficial owner shall have
an undivided beneficial interest in the property of the statutory trust and shall share in the profits and losses of the statutory
trust in the proportion (expressed as a percentage) of the entire undivided beneficial interest in the statutory trust owned
by such beneficial owner. The governing instrument of a statutory trust may provide that the statutory trust or the trustees,
acting for and on behalf of the statutory trust, shall be deemed to hold beneficial ownership of any income earned on securities
of the statutory trust issued by any business entities formed, organized, or existing under the laws of any jurisdiction,
including the laws of any foreign country.
(b) No creditor of the beneficial owner shall have any right to obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the statutory trust.
(c) A beneficial owner's beneficial interest in the statutory trust is personal property notwithstanding the nature of the
property of the trust. Except to the extent otherwise provided in the governing instrument of a statutory trust, a beneficial
owner has no interest in specific statutory trust property.
(d) A beneficial owner's beneficial interest in the statutory trust is freely transferable except to the extent otherwise
provided in the governing instrument of the statutory trust.
(e) Except to the extent otherwise provided in the governing instrument of a statutory trust, at the time a beneficial owner
becomes entitled to receive a distribution, the beneficial owner has the status of, and is entitled to all remedies available
to, a creditor of the statutory trust with respect to the distribution. A governing instrument may provide for the establishment
of record dates with respect to allocations and distributions by a statutory trust.
(f) Except to the extent otherwise provided in the governing instrument of the statutory trust, legal title to the property
of the statutory trust or any part thereof may be held in the name of any trustee of the statutory trust, in its capacity
as such, with the same effect as if such property were held in the name of the statutory trust.
(g) No creditor of the trustee shall have any right to obtain possession of, or otherwise exercise legal or equitable remedies
with respect to, the property of the statutory trust with respect to any claim against, or obligation of, such trustee in
its individual capacity and not related to the statutory trust.
(h) Except to the extent otherwise provided in the governing instrument of the statutory trust, where the statutory trust
is a registered investment company under the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), any class,
group or series of beneficial interests established by the governing instrument with respect to such statutory trust shall
be a class, group or series preferred as to distribution of assets or payment of dividends over all other classes, groups
or series in respect to assets specifically allocated to the class, group or series as contemplated by § 18 (or any amendment
or successor provision) of the Investment Company Act of 1940 [15 U.S.C. § 80a-18], as amended, and any regulations issued
thereunder, provided that this section is not intended to affect in any respect the provisions of § 3804(a) of this title.
(i) Unless otherwise provided in the governing instrument of a statutory trust or another agreement, a beneficial owner shall
have no preemptive right to subscribe to any additional issue of beneficial interests or another interest in a statutory trust.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, §§ 6, 10, 17; 68 Del. Laws, c. 404, §§ 7, 8; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 387, § 4; 73 Del. Laws, c. 328, §§ 7, 8; 73 Del. Laws, c. 329, § 1.;
§ 3806. Management of statutory trust.
(a) Except to the extent otherwise provided in the governing instrument of a statutory trust, the business and affairs of
a statutory trust shall be managed by or under the direction of its trustees. To the extent provided in the governing instrument
of a statutory trust, any person (including a beneficial owner) shall be entitled to direct the trustees or other persons
in the management of the statutory trust. Except to the extent otherwise provided in the governing instrument of a statutory
trust, neither the power to give direction to a trustee or other persons nor the exercise thereof by any person (including
a beneficial owner) shall cause such person to be a trustee. To the extent provided in the governing instrument of a statutory
trust, neither the power to give direction to a trustee or other persons nor the exercise thereof by any person (including
a beneficial owner) shall cause such person to have duties (including fiduciary duties) or liabilities relating thereto to
the statutory trust or to a beneficial owner thereof.
(b) A governing instrument may contain any provision relating to the management of the business and affairs of the statutory
trust, and the rights, duties and obligations of the trustees, beneficial owners and other persons, which is not contrary
to any provision or requirement of this subchapter and, without limitation:
(1) May provide for classes, groups or series of trustees or beneficial owners, or classes, groups or series of beneficial
interests, having such relative rights, powers and duties as the governing instrument may provide, and may make provision
for the future creation in the manner provided in the governing instrument of additional classes, groups or series of trustees,
beneficial owners or beneficial interests, having such relative rights, powers and duties as may from time to time be established,
including rights, powers and duties senior or subordinate to existing classes, groups or series of trustees, beneficial owners
or beneficial interests;
(2) May establish or provide for the establishment of designated series of trustees, beneficial owners, assets or beneficial
interests having separate rights, powers or duties with respect to specified property or obligations of the statutory trust
or profits and losses associated with specified property or obligations, and, to the extent provided in the governing instrument,
any such series may have a separate business purpose or investment objective;
(3) May provide for the taking of any action, including the amendment of the governing instrument, the accomplishment of a
merger, conversion or consolidation, the appointment of one or more trustees, the sale, lease, exchange, transfer, pledge
or other disposition of all or any part of the assets of the statutory trust or the assets of any series, or the dissolution
of the statutory trust, or may provide for the taking of any action to create under the provisions of the governing instrument
a class, group or series of beneficial interests that was not previously outstanding, in any such case without the vote or
approval of any particular trustee or beneficial owner, or class, group or series of trustees or beneficial owners;
(4) May grant to (or withhold from) all or certain trustees or beneficial owners, or a specified class, group or series of
trustees or beneficial owners, the right to vote, separately or with any or all other classes, groups or series of the trustees
or beneficial owners, on any matter, such voting being on a per capita, number, financial interest, class, group, series or
any other basis;
(5) May, if and to the extent that voting rights are granted under the governing instrument, set forth provisions relating
to notice of the time, place or purpose of any meeting at which any matter is to be voted on, waiver of any such notice, action
by consent without a meeting, the establishment of record dates, quorum requirements, voting in person, by proxy or in any
other manner, or any other matter with respect to the exercise of any such right to vote;
(6) May provide for the present or future creation of more than 1 statutory trust, including the creation of a future statutory
trust to which all or any part of the assets, liabilities, profits or losses of any existing statutory trust will be transferred,
and for the conversion of beneficial interests in an existing statutory trust, or series thereof, into beneficial interests
in the separate statutory trust, or series thereof;
(7) May provide for the appointment, election or engagement, either as agents or independent contractors of the statutory
trust or as delegatees of the trustees, of officers, employees, managers or other persons who may manage the business and
affairs of the statutory trust and may have such titles and such relative rights, powers and duties as the governing instrument
shall provide. Except to the extent otherwise provided in the governing instrument of a statutory trust, the trustees shall
choose and supervise such officers, managers, employees and other persons;
(8) May provide rights to any person, including a person who is not a party to the governing instrument, to the extent set
forth therein; or
(9) May provide for the manner in which it may be amended, including by requiring the approval of a person who is not a party
to the governing instrument or the satisfaction of conditions, and to the extent the governing instrument provides for the
manner in which it may be amended such governing instrument may be amended only in that manner or as otherwise permitted by
law, including as permitted by § 3815(f) of this title (provided that the approval of any person may be waived by such person
and that any such conditions may be waived by all persons for whose benefit such conditions were intended).
(c) To the extent that, at law or in equity, a trustee or beneficial owner or other person has duties (including fiduciary
duties) to a statutory trust or to another trustee or beneficial owner or to another person that is a party to or is otherwise
bound by a governing instrument, the trustee's or beneficial owner's or other person's duties may be expanded or restricted
or eliminated by provisions in the governing instrument; provided, that the governing instrument may not eliminate the implied
contractual covenant of good faith and fair dealing.
(d) Unless otherwise provided in a governing instrument, a trustee or beneficial owner or other person shall not be liable
to a statutory trust or to another trustee or beneficial owner or to another person that is a party to or is otherwise bound
by a governing instrument for breach of fiduciary duty for the trustee's or beneficial owner's or other person's good faith
reliance on the provisions of the governing instrument.
(e) A governing instrument may provide for the limitation or elimination of any and all liabilities for breach of contract
and breach of duties (including fiduciary duties) of a trustee, beneficial owner or other person to a statutory trust or to
another trustee or beneficial owner or to another person that is a party to or is otherwise bound by a governing instrument;
provided, that a governing instrument may not limit or eliminate liability for any act or omission that constitutes a bad
faith violation of the implied contractual covenant of good faith and fair dealing.
(f) Unless otherwise provided in the governing instrument of a statutory trust, meetings of beneficial owners may be held
by means of conference telephone or other communications equipment by means of which all persons participating in the meeting
can hear each other, and participation in a meeting pursuant to this subsection shall constitute presence in person at the
meeting. Unless otherwise provided in the governing instrument of a statutory trust, on any matter that is to be voted on
by the beneficial owners,
(1) The beneficial owners may take such action without a meeting, without a prior notice and without a vote if a consent or
consents in writing, setting forth the action so taken, shall be signed by the beneficial owners having not less than the
minimum number of votes that would be necessary to authorize or take such action at a meeting at which all interests in the
statutory trust entitled to vote thereon were present and voted and
(2) The beneficial owners may vote in person or by proxy, and such proxy may be granted in writing, by means of electronic
transmission; or as otherwise permitted by applicable law.
Unless otherwise provided in a governing instrument, a consent transmitted by electronic transmission by a beneficial owner
or by a person or persons authorized to act for a beneficial owner shall be deemed to be written and signed for purposes of
this subsection. For purposes of this subsection, the term "electronic transmission" means any form of communication not directly
involving the physical transmission of paper that creates a record that may be retained, retrieved and reviewed by a recipient
thereof and that may be directly reproduced in paper form by such a recipient through an automated process.
(g) Unless otherwise provided in the governing instrument of a statutory trust, meetings of trustees may be held by means
of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this subsection shall constitute presence in person at the meeting.
Unless otherwise provided in the governing instrument of a statutory trust, on any matter that is to be voted on by the trustees,
(1) The trustees may take such action without a meeting, without a prior notice and without a vote if a consent or consents
in writing, setting forth the action so taken, shall be signed by the trustees having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at which all trustees entitled to vote thereon
were present and voted and
(2) The trustee may vote in person or by proxy, and such proxy may be granted in writing, by means of electronic transmission,
or as otherwise permitted by applicable law.
Unless otherwise provided in a governing instrument, a consent transmitted by electronic transmission by a trustee or by a
person or persons authorized to act for a trustee shall be deemed to be written and signed for purposes of this subsection.
For purposes of this subsection, the term "electronic transmission" means any form of communication not directly involving
the physical transmission of paper that creates a record that may be retained, retrieved and reviewed by a recipient thereof
and that may be directly reproduced in paper form by such a recipient through an automated process.
(h) Except to the extent otherwise provided in the governing instrument of a statutory trust, a beneficial owner, trustee,
officer, employee or manager may lend money to, borrow money from, act as a surety, guarantor or endorser for, guarantee or
assume 1 or more obligations of, provide collateral for, and transact other business with a statutory trust and, subject to
other applicable law, has the same rights and obligations with respect to any such matter as a person who is not a beneficial
owner, trustee, officer, employee or manager.
(i) Except to the extent otherwise provided in the governing instrument of a statutory trust, a trustee of a statutory trust
has the power and authority to delegate to 1 or more other persons the trustee's rights and powers to manage and control the
business and affairs of the statutory trust, including to delegate to agents, officers and employees of the trustee or the
statutory trust, and to delegate by management agreement or other agreement with, or otherwise to, other persons. Except to
the extent otherwise provided in the governing instrument of a statutory trust, such delegation by a trustee of a statutory
trust shall not cause the trustee to cease to be a trustee of the statutory trust or cause the person to whom any such rights
and powers have been delegated to be a trustee of the statutory trust.
(j) The governing instrument of a statutory trust may provide that:
(1) A beneficial owner who fails to perform in accordance with, or to comply with the terms and conditions of, the governing
instrument shall be subject to specified penalties or specified consequences;
(2) At the time or upon the happening of events specified in the governing instrument, a beneficial owner shall be subject
to specified penalties or specified consequences; and
(3) The specified penalties or specified consequences under paragraphs (j)(1) and (j)(2) of this section may include and take
the form of any penalty or consequence set forth in § 3802(c) of this title.
(k) A trustee, beneficial owner or an officer, employee, manager or other person designated in accordance with paragraph (b)(7)
of this section shall be fully protected in relying in good faith upon the records of the statutory trust and upon information,
opinions, reports or statements presented by another trustee, beneficial owner or officer, employee, manager or other person
designated in accordance with paragraph (b)(7) of this section, or by any other person as to matters the trustee, beneficial
owner or officer, employee, manager or other person designated in accordance with paragraph (b)(7) of this section reasonably
believes are within such other person's professional or expert competence, including information, opinions, reports or statements
as to the value and amount of the assets, liabilities, profits or losses of the statutory trust, or the value and amount of
assets or reserves or contracts, agreements or other undertakings that would be sufficient to pay claims and obligations of
the statutory trust or to make reasonable provision to pay such claims and obligations, or any other facts pertinent to the
existence and amount of assets from which distributions to beneficial owners or creditors might properly be paid.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 4; 68 Del. Laws, c. 404, § 9; 69 Del. Laws, c. 265, §§ 3-5; 71 Del. Laws, c. 335, § 5; 72 Del. Laws, c. 387, § 5; 73 Del. Laws, c. 328, §§ 9-12; 73 Del. Laws, c. 329, § 1; 74 Del. Laws, c. 353, §§ 2-4; 75 Del. Laws, c. 418, §§ 5-10; 77 Del. Laws, c. 403, §§ 3, 4.;
§ 3807. Trustee in State.
(a) Every statutory trust shall at all times have at least 1 trustee which, in the case of a natural person, shall be a person
who is a resident of this State or which, in all other cases, has its principal place of business in this State.
(b) Notwithstanding the provisions of subsection (a) of this section, if a statutory trust is, becomes, or will become prior
to or within 180 days following the first issuance of beneficial interests, a registered investment company under the Investment
Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), such statutory trust shall not be required to have a trustee
who is a resident of this State or who has a principal place of business in this State if notice that the statutory trust
is or will become an investment company as referenced in this sentence is set forth in the certificate of trust of the statutory
trust and if and for so long as such statutory trust shall have and maintain in this State:
(1) A registered office, which may but need not be a place of business in this State; and
(2) A registered agent for service of process on the statutory trust, which agent may be either an individual resident in
this State whose business office is identical with such statutory trust's registered office, or a domestic corporation, limited
partnership, limited liability company or statutory trust, or a foreign corporation, limited partnership, limited liability
company or statutory trust authorized to transact business in this State, having a business office identical with such registered
office.
(c) Any statutory trust maintaining a registered office and registered agent in this State under subsection (b) of this section
may change the location of its registered office in this State to any other place in this State, or may change the registered
agent to any other person or corporation (meeting the requirements contained in subsection (b) of this section), by filing
an amendment to its certificate of trust in accordance with the applicable provisions of this subchapter. If a statutory trust
which is an investment company registered as aforesaid maintains a registered office and registered agent in this State as
herein provided, then the reference in § 3810(a)(1)b. of this title to the "name and the business address of at least 1 of
the trustees meeting the requirements of § 3807 of this title" shall be deemed a reference to the name and the business address
of the registered agent and registered office maintained under this section, and the certificate of trust filed under § 3810
of this title shall reflect such information in lieu of the information otherwise required by § 3810(a)(1)b. of this title.
(d) Service of process upon a registered agent maintained by a statutory trust pursuant to subsection (b) of this section
shall be as effective as if served upon one of the trustees of the statutory trust pursuant to § 3804 of this title.
(e) A trustee or registered agent of a statutory trust whose address, as set forth in a certificate of trust pursuant to §
3810(a)(1)b. of this title, has changed may change such address in the certificates of trust of all statutory trusts for which
such trustee or registered agent is appointed to another address in the State by paying a fee as set forth in § 3813(a)(5)
of this title and filing with the Secretary of State a certificate, executed by such trustee or registered agent, setting
forth the address of such trustee or registered agent before it was changed, and further certifying as to the new address
of such trustee or registered agent for each of the statutory trusts for which it is trustee or registered agent. Upon the
filing of such certificate, the Secretary of State shall furnish to the trustee or registered agent a certified copy of the
same under the Secretary's hand and seal of office, and thereafter, or until further change of address, as authorized by law,
the address of such trustee or registered agent in the State for each of the statutory trusts for which it is trustee or registered
agent shall be located at the new address of the trustee or registered agent thereof as given in the certificate. A trustee
or registered agent of a statutory trust whose name, as set forth in a certificate of trust pursuant to § 3810(a)(1)b. of
this title, has changed may change such name in the certificates of trust of all statutory trusts for which such trustee or
registered agent is appointed to its new name by paying a fee as set forth in § 3813(a)(5) of this title and filing with the
Secretary of State a certificate, executed by such trustee or registered agent, setting forth the name of such trustee or
registered agent before it was changed and further certifying as to the new name of such trustee or registered agent for each
of the statutory trusts for which it is a trustee or registered agent. Upon the filing of such certificate and payment of
such fee, the Secretary of State shall furnish to the trustee or registered agent a certified copy of the certificate under
the Secretary's hand and seal of office. A change of name of any person acting as a trustee or registered agent of a statutory
trust as a result of a merger or consolidation of the trustee or registered agent with another person who succeeds to its
assets and liabilities by operation of law shall be deemed a change of name for purposes of this section. Filing a certificate
under this section shall be deemed to be an amendment of the certificate of trust of each statutory trust affected thereby,
and no further action with respect thereto to amend its certificate of trust under § 3810 of this title shall be required.
Any trustee or registered agent filing a certificate under this section shall promptly, upon such filing, deliver a copy of
any such certificate to each statutory trust affected thereby.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 5; 68 Del. Laws, c. 106, § 3; 68 Del. Laws, c. 404, § 10; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 335, § 6; 72 Del. Laws, c. 387, § 6; 73 Del. Laws, c. 328, § 13; 73 Del. Laws, c. 329, § 1; 75 Del. Laws, c. 418, § 11.;
§ 3808. Existence of statutory trust.
(a) Except to the extent otherwise provided in the governing instrument of the statutory trust, a statutory trust shall have
perpetual existence, and a statutory trust may not be terminated or revoked by a beneficial owner or other person except in
accordance with the terms of its governing instrument.
(b) Except to the extent otherwise provided in the governing instrument of a statutory trust, the death, incapacity, dissolution,
termination or bankruptcy of a beneficial owner or a trustee shall not result in the termination or dissolution of a statutory
trust.
(c) In the event that a statutory trust does not have perpetual existence, a statutory trust is dissolved and its affairs
shall be wound up at the time or upon the happening of events specified in the governing instrument. Notwithstanding the happening
of events specified in the governing instrument, the statutory trust shall not be dissolved and its affairs shall not be wound
up if, prior to the filing of a certificate of cancellation as provided in § 3810 of this title, the statutory trust is continued,
effective as of the happening of such event, pursuant to the affirmative vote or written consent of all remaining beneficial
owners of the statutory trust (and any other person whose approval is required under the governing instrument to revoke a
dissolution pursuant to this section), provided, however, if the dissolution was caused by a vote or written consent, the
dissolution shall not be revoked unless each beneficial owner and other person (or their respective personal representatives)
who voted in favor of, or consented to, the dissolution has voted or consented in writing to continue the statutory trust.
(d) Upon dissolution of a statutory trust and until the filing of a certificate of cancellation as provided in § 3810 of this
title, the persons who, under the governing instrument of the statutory trust, are responsible for winding up the statutory
trust's affairs may, in the name of and for and on behalf of the statutory trust, prosecute and defend suits, whether civil,
criminal or administrative, gradually settle and close the statutory trust business, dispose of and convey the statutory trust
property, discharge or make reasonable provision for the statutory trust liabilities and distribute to the beneficial owners
any remaining assets of the statutory trust.
(e) A statutory trust which has dissolved shall pay or make reasonable provision to pay all claims and obligations, including
all contingent, conditional or unmatured claims and obligations, known to the statutory trust and all claims and obligations
which are known to the statutory trust but for which the identity of the claimant is unknown and claims and obligations that
have not been made known to the statutory trust or that have not arisen but that, based on the facts known to the statutory
trust, are likely to arise or to become known to the statutory trust within 10 years after the date of dissolution. If there
are sufficient assets, such claims and obligations shall be paid in full and any such provision for payment shall be made
in full. If there are insufficient assets, such claims and obligations shall be paid or provided for according to their priority
and, among claims and obligations of equal priority, ratably to the extent of assets available therefor. Unless otherwise
provided in the governing instrument of a statutory trust, any remaining assets shall be distributed to the beneficial owners.
Any person, including any trustee, who under the governing instrument of the statutory trust is responsible for winding up
a statutory trust's affairs who has complied with this subsection shall not be personally liable to the claimants of the dissolved
statutory trust by reason of such person's actions in winding up the statutory trust.
(f) Except to the extent otherwise provided in the governing instrument of the statutory trust, a series established in accordance
with § 3804(a) of this title may be dissolved and its affairs wound up without causing the dissolution of the statutory trust
or any other series thereof. Unless otherwise provided in the governing instrument of the statutory trust, the dissolution,
winding up, liquidation or termination of the statutory trust or any series thereof shall not affect the limitation of liability
with respect to a series established in accordance with § 3804(a) of this title. A series established in accordance with §
3804(a) of this title is dissolved and its affairs shall be wound up at the time or upon the happening of events specified
in the governing instrument of the statutory trust. Except to the extent otherwise provided in the governing instrument of
a statutory trust, the death, incapacity, dissolution, termination or bankruptcy of a beneficial owner of such series shall
not result in the termination or dissolution of such series and such series may not be terminated or revoked by a beneficial
owner of such series or other person except in accordance with the terms of the governing instrument of the statutory trust.
(g) Upon dissolution of a series of a statutory trust, the persons who under the governing instrument of the statutory trust
are responsible for winding up such series" affairs may, in the name of the statutory trust and for and on behalf of the statutory
trust and such series, take all actions with respect to the series as are permitted under subsection (d) of this section and
shall provide for the claims and obligations of the series and distribute the assets of the series as provided under subsection
(e) of this section. Any person, including any trustee, who under the governing instrument is responsible for winding up such
series" affairs who has complied with subsection (e) of this section shall not be personally liable to the claimants of the
dissolved series by reason of such person's actions in winding up the series.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 7; 69 Del. Laws, c. 265, § 6; 70 Del. Laws, c. 548, § 5; 71 Del. Laws, c. 335, § 7; 73 Del. Laws, c. 329, § 1; 75 Del. Laws, c. 418, §§ 12, 13; 77 Del. Laws, c. 403, § 5.;
§ 3809. Applicability of trust law.
Except to the extent otherwise provided in the governing instrument of a statutory trust or in this subchapter, the laws of
this State pertaining to trusts are hereby made applicable to statutory trusts; provided however, that for purposes of any
tax imposed by this State or any instrumentality, agency or political subdivision of this State a statutory trust shall be
classified as a corporation, an association, a partnership, a trust or otherwise, as shall be determined under the United
States Internal Revenue Code of 1986 [26 U.S. Code § 1 et seq.], as amended, or under any successor provision.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 11; 70 Del. Laws, c. 548, § 7; 73 Del. Laws, c. 329, § 1.;
§ 3810. Certificate of trust; amendment; restatement; cancellation.
(a)(1) Every statutory trust shall file a certificate of trust in the office of the Secretary of State. The certificate of
trust shall set forth:
a. The name of the statutory trust;
b. The name and address in this State of at least 1 of the trustees meeting the requirements of § 3807 of this title;
c. The future effective date or time (which shall be a date or time certain) of effectiveness of the certificate if it is
not to be effective upon the filing of the certificate; and
d. Any other information the trustees determine to include therein.
(2) A statutory trust is formed at the time of the filing of the initial certificate of trust in the office of the Secretary
of State or at any later date or time specified in the certificate of trust if, in either case, there has been substantial
compliance with the requirements of this section. A statutory trust formed under this chapter shall be a separate legal entity,
the existence of which as a separate legal entity shall continue until cancellation of the statutory trust's certificate of
trust.
(3) The filing of a certificate of trust in the office of the Secretary of State shall make it unnecessary to file any other
documents under Chapter 31 of Title 6.
(b)(1) A certificate of trust may be amended by filing a certificate of amendment thereto in the office of the Secretary of
State. The certificate of amendment shall set forth:
a. The name of the statutory trust;
b. The amendment to the certificate; and
c. The future effective date or time (which shall be a date or time certain) of effectiveness of the certificate if it is
not to be effective upon the filing of the certificate.
(2) Except to the extent otherwise provided in the certificate of trust or in the governing instrument of a statutory trust,
a certificate of trust may be amended at any time for any purpose as the trustees may determine. A trustee who becomes aware
that any statement in a certificate of trust was false when made or that any matter described has changed making the certificate
false in any material respect shall promptly file a certificate of amendment.
(c)(1) A certificate of trust may be restated by integrating into a single instrument all of the provisions of the certificate
of trust which are then in effect and operative as a result of there having been theretofore filed 1 or more certificates
of amendment pursuant to subsection (b) of this section, and the certificate of trust may be amended or further amended by
the filing of a restated certificate of trust. The restated certificate of trust shall be specifically designated as such
in its heading and shall set forth:
a. The present name of the statutory trust, and if it has been changed, the name under which the statutory trust was originally
formed;
b. The date of filing of the original certificate of trust with the Secretary of State;
c. The information required to be included pursuant to subsection (a) of this section; and
d. Any other information the trustees determine to include therein.
(2) A certificate of trust may be restated at any time for any purpose as the trustees may determine. A trustee who becomes
aware that any statement in a restated certificate of trust was false when made or that any matter described has changed making
the restated certificate false in any material respect shall promptly file a certificate of amendment or a restated certificate
of trust.
(d) A certificate of trust shall be cancelled upon the dissolution and the completion of winding up of a statutory trust,
or upon the filing of a certificate of merger or consolidation if the statutory trust is not the surviving or resulting entity
in a merger or consolidation, or upon the future effective date or time of a certificate of merger or consolidation if the
trust is not the surviving or resulting entity in a merger or consolidation, or upon the filing of a certificate of transfer,
or upon the future effective date or time of a certificate of transfer, or upon the filing of a certificate of conversion
to non-Delaware other business entity or upon the future effective date or time of a certificate of conversion to non-Delaware
entity. A certificate of cancellation shall be filed in the office of the Secretary of State and set forth:
(1) The name of the statutory trust;
(2) The date of filing of its certificate of trust;
(3) The future effective date or time (which shall be a date or time certain) of cancellation if it is not to be effective
upon the filing of the certificate; and
(4) Any other information the trustee determines to include therein.
The Secretary of State shall not issue a certificate of good standing with respect to a statutory trust if its certificate
of trust is cancelled.
(e) Whenever any certificate authorized to be filed with the office of the Secretary of State under this subchapter has been
so filed and is an inaccurate record of the action therein referred to or was defectively or erroneously executed, such certificate
may be corrected by filing with the office of the Secretary of State a certificate of correction of such certificate. The
certificate of correction shall specify the inaccuracy or defect to be corrected, shall set forth the portion of the certificate
in corrected form and shall be executed and filed as required by this subchapter. The certificate of correction shall be effective
as of the date the original certificate was filed, except as to those persons who are substantially and adversely affected
by the correction, and as to those persons the certificate of correction shall be effective from the filing date. In lieu
of filing a certificate of correction, the certificate may be corrected by filing with the office of the Secretary of State
a corrected certificate which shall be executed and filed in accordance with this subchapter. The corrected certificate shall
be specifically designated as such in its heading, shall specify the inaccuracy or defect to be corrected and shall set forth
the entire certificate in corrected form. The corrected certificate shall be effective as of the date the original certificate
was filed, except as to those persons who are substantially and adversely affected by the corrections, and as to those persons
the corrected certificate shall be effective from the filing date.
(f) If any certificate filed in accordance with this subchapter provides for a future effective date or time and if the transaction
is terminated or amended to change the future effective date or time prior to the future effective date or time, the certificate
shall be terminated or amended by the filing, prior to the future effective date or time set forth in such original certificate,
of a certificate of termination or amendment of the original certificate, executed and filed in accordance with this subchapter,
which shall identify the original certificate which has been terminated or amended and shall state that the original certificate
has been terminated or amended.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 12; 69 Del. Laws, c. 265, §§ 7, 8; 70 Del. Laws, c. 548, §§ 6, 8, 9; 73 Del. Laws, c. 329, § 1; 74 Del. Laws, c. 353, § 5; 75 Del. Laws, c. 418, § 14; 77 Del. Laws, c. 403, §§ 6-8.;
§ 3811. Execution of certificate.
(a) Each certificate required by this subchapter to be filed in the office of the Secretary of State shall be executed in
the following manner:
(1) A certificate of trust must be signed by all of the trustees;
(2) A certificate of amendment, a certificate of correction, a corrected certificate, a certificate of termination or amendment,
and a restated certificate of trust must be signed by at least one of the trustees;
(3) A certificate of cancellation must be signed by all of the trustees or as otherwise provided in the governing instrument
of the statutory trust; and
(4) If a statutory trust is filing a certificate of merger or consolidation, certificate of conversion, certificate of transfer,
certificate of transfer and continuance, certificate of statutory trust domestication or certificate of termination or amendment
to any such certificate, the certificate of merger or consolidation, certificate of conversion, certificate of transfer, certificate
of transfer and continuance, certificate of statutory trust domestication or certificate of termination or amendment to any
such certificate must be signed by all of the trustees or as otherwise provided in the governing instrument of the statutory
trust, or if the certificate of merger or consolidation, certificate of conversion, certificate of statutory trust domestication
or certificate of termination or amendment to any such certificate is being filed by another business entity or non-United
States entity (as such term is defined in § 3822 of this title thereof), the certificate of merger or consolidation, certificate
of conversion, certificate of statutory trust domestication or certificate of termination or amendment to any such certificate
must be signed by a person authorized to execute the certificate on behalf of the other business entity or non-United States
entity (as such term is defined in § 3822 of this title hereof).
(b) Unless otherwise provided in the governing instrument, any person may sign any certificate or amendment thereof or enter
into a governing instrument or amendment thereof by any agent, including any attorney-in-fact. An authorization, including
a power of attorney, to sign any certificate or amendment thereof or to enter into a governing instrument or amendment thereof
need not be in writing, need not be sworn to, verified or acknowledged and need not be filed in the office of the Secretary
of State, but if in writing, must be retained by the statutory trust or a trustee or other person authorized to manage the
business and affairs of the statutory trust.
(c) The execution of a certificate by a trustee, or other person authorized pursuant to subsection (a) of this section above,
constitutes an oath or affirmation, under the penalties of perjury in the third degree, that, to the best of the trustee's,
or other person authorized pursuant to subsection (a) of this section above, knowledge and belief, the facts stated therein
are true.
66 Del. Laws, c. 279, § 1; 67 Del. Laws, c. 297, § 13; 70 Del. Laws, c. 548, §§ 10-12; 71 Del. Laws, c. 335, § 8; 73 Del. Laws, c. 329, § 1; 74 Del. Laws, c. 353, §§ 6-8; 77 Del. Laws, c. 403, §§ 9, 10.;
§ 3812. Filing of certificate.
(a) Any certificate authorized to be filed with the office of the Secretary of State under this subchapter (or any judicial
decree of amendment or cancellation) shall be delivered to the office of the Secretary of State for filing. A person who executes
a certificate as an agent or fiduciary need not exhibit evidence of the person's authority as a prerequisite to filing. Unless
