FOR APPROVAL
UNIFORM STATUTORY TRUST ENTITY ACT
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
MEETING IN ITS ONE-HUNDRED-AND-EIGHTEENTH YEAR
SANTA FE, NEW MEXICO
JULY 9 - JULY 16, 2009
UNIFORM STATUTORY TRUST ENTITY ACT
UNIFORM
STATUTORY TRUST ENTITY ACT
SECTION 101.
SHORT TITLE. This [act] may
be cited as the Uniform Statutory Trust Entity Act.
SECTION 102.
DEFINITIONS. In this [act]:
(1) “Beneficial owner” means the
owner of a beneficial interest in a statutory trust or foreign statutory
trust.
(2) “Certificate of trust” means the
record filed by the [Secretary of State] under Section 201. The term includes the record as amended or
restated.
(3) “Common-law trust” means a
fiduciary relationship with respect to property arising from a manifestation of
intent to create that relationship and subjecting the person that holds title
to the property to duties to deal with the property for the benefit of charity
or for one or more persons, at least one of which is not the sole trustee,
whether the purpose of the trust is donative or commercial. The term includes the type of trust known at
common law as a “business trust”, “Massachusetts trust”, or “Massachusetts
business trust”.
(4) “Designated office” means:
(A) for a statutory
trust, the street address that it is required to designate under Section
201(b)(2); or
(B) for a foreign
statutory trust, its principal office.
(5) “Foreign statutory trust” means
a trust that is formed under the laws of a jurisdiction other than this state
that would be a statutory trust if formed under the laws of this state.
(6) “Governing instrument” means the
trust instrument and certificate of trust.
(7) “Jurisdiction”, used to refer to
a political entity, means a state, foreign country, or subdivision of a foreign
country.
(8) “Person” means an individual,
corporation, statutory trust, estate, partnership, limited liability company,
association, joint venture, public corporation, government or governmental
subdivision, agency, or instrumentality, or any other legal or commercial
entity. The term does not include a common-law trust.
(9) “Property” means all property,
whether real, personal, or mixed, or tangible or intangible, or any interest
therein.
(10) “Qualified foreign statutory
trust” means a foreign statutory trust that is registered to do business in
this state.
(11) “Record” means information that
is inscribed on a tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
(12)
“Related person”, with respect to a person that is a trustee, officer,
employee, manager, or beneficial owner, means:
(A) the spouse of the
person;
(B) a child, parent,
sibling, grandchild, or grandparent of the person, or the spouse of one of
them;
(C) an individual having
the same residence as the person;
(D) a trust or estate of
which a related person described in subparagraph (A), (B), or (C) is a
substantial beneficiary;
(E) a trust, estate,
legally incapacitated person, conservatee, or minor for which the person is a
fiduciary; or
(F) a person that
directly or indirectly controls, is controlled by, or is under common control
with, the person.
(13) “Series trust” means a
statutory trust that has one or more series created under Section 401.
(14) “Sign” means, with the present
intent to authenticate or adopt a record:
(A) to execute or adopt
a tangible symbol; or
(B) to attach to or
logically associate with the record an electronic symbol, sound, or process.
(15) “State” means a state of the
United States, the District of Columbia, Puerto Rico, the United States Virgin
Islands, or any territory or insular possession subject to the jurisdiction of
the United States.
(16) “Statutory trust” means an
entity formed under this [act].
(17) “Trust” includes a common-law
trust, statutory trust, and foreign statutory trust.
(18) “Trust instrument” means a
record other than the certificate of trust which provides for the governance of
the affairs of a statutory trust and the conduct of its business. The term includes a trust agreement, a
declaration of trust, and bylaws.
(19) “Trustee” means a person
designated, appointed, or elected as a trustee of a statutory trust or foreign
statutory trust in accordance with the governing instrument or applicable law.
SECTION 103. GOVERNING INSTRUMENT.
(a) Except as otherwise provided in subsection (b) or
Section 104, the governing instrument governs:
(1) the management, affairs, and conduct of the business of
a statutory trust; and
(2) the rights, interests, duties, obligations, and powers of, and the relations among, the trustees, the beneficial owners, the statutory trust, and other persons.
(b) To the extent the governing instrument does not otherwise provide for a matter described in subsection (a), this [act] governs the matter.
(c) The governing instrument may include one or more instruments, agreements, declarations, bylaws, or other records and refer to or incorporate any record.
(d) The governing instrument may be amended with the approval of all the beneficial owners.
(e) Subject to Section 104, without limiting the terms that may be included in a governing instrument, the governing instrument may:
(1) provide the means by which beneficial ownership is determined and evidenced;
(2) limit a beneficial owner’s right to transfer its beneficial interest;
(3) provide for one or more series under [Article] 4;
(4) to the extent that voting rights are granted under the governing instrument, include terms relating to:
(A) notice of the date, time, place, or purpose of any meeting at which any matter is to be voted on;
(B) waiver of notice;
(C) action by consent without a meeting;
(D) establishment of record dates, quorum requirements, or voting in person, by proxy, any form of communication that creates a record, telephone, or video conference, or in any other manner; or
(E) any other matter with respect to the exercise of the right to vote;
(5) provide for the creation of one or more classes of trustees, beneficial owners, or beneficial interests having separate rights, powers, or duties;
(6) provide for any action to be taken without the vote or approval of any particular trustee or beneficial owner, or classes of trustees, beneficial owners, or beneficial interests, including:
(A) amendment of the governing instrument;
(B) merger, conversion, or reorganization;
(C) appointment of trustees;
(D) sale, lease, exchange, transfer, pledge, or other disposition of all or any part of the property of the statutory trust or the property of any series thereof; and
(E) dissolution of the statutory trust;
(7)
provide for the creation of a statutory trust, including the creation of a
statutory trust to which all or any part of the property, liabilities, profits,
or losses of a statutory trust may be transferred or exchanged, and for the
conversion of beneficial interests in a statutory trust, or series thereof,
into beneficial interests in the new statutory trust or series thereof;
(8) provide for
the appointment, election, or engagement of agents or independent contractors
of the statutory trust or delegates of the trustees, or agents, officers,
employees, managers, committees, or other persons that may manage the business
and affairs of the statutory trust, designate their titles, and specify their
rights, powers, and duties;
(9) provide rights to any person, including a person that is not a party to the governing instrument;
(10) subject to paragraph (11), specify the manner in which the governing instrument may be amended, including, unless waived by all persons for whose benefit the condition or requirement was intended:
(A) a condition that a person that is not a party to the instrument must approve the amendment for it to be effective; and
(B) a requirement that the governing instrument may be amended only as provided in the governing instrument or as otherwise permitted by law.
(11) provide that
a person may comply with paragraph (10) by a representative authorized by the
person orally, in a record, or by conduct;
(12) provide that a person becomes a beneficial owner, acquires a beneficial interest, and is bound by the governing instrument if the person complies with the conditions for becoming a beneficial owner set forth in the governing instrument, such as payment to the statutory trust or to a previous beneficial owner;
(13) provide that the statutory trust or the trustees, acting for the statutory trust, hold beneficial ownership of any income earned on securities held by the statutory trust that are issued by any business entity formed, organized, or existing under the laws of any jurisdiction;
(14) provide for the establishment of record dates; and
(15) grant to, or withhold from, a trustee or beneficial owner, or class of trustees or beneficial owners, the right to vote, separately or with any or all other trustees or beneficial owners, or class of trustees or beneficial owners, on any matter.
SECTION 104. MANDATORY RULES. The governing instrument may not:
(1) vary the requirements of [Article] 2;
(2) vary the choice of governing law under Section 301;
(3) negate the exclusion of a predominantly donative purpose under Section 303;
(4) vary the provisions pertaining series trusts in Sections 401, 402(b), 403, and 404(c);
(5) vary the standards of conduct for trustees under Section 505, but the governing instrument may prescribe the standards by which good faith, best interests of the statutory trust, and care that a person in a similar position would reasonably believe appropriate under similar circumstances are determined, if the standards are not manifestly unreasonable;
(6) restrict the nonliability under Section 506 of a trustee or other person that relies in good faith on the terms of the governing instrument, the records of the statutory trust, or the opinions, reports, or statements of an expert, but the governing instrument may prescribe the standards for assessing whether the reliance was in good faith, if the standards are not manifestly unreasonable;
(7) restrict the right of a trustee to information under Section 508, but the governing instrument may prescribe the standards for assessing whether information is reasonably related to the trustee=s discharge of the trustee’s duties as trustee, if the standards are not manifestly unreasonable;
(8) vary the prohibition under Section 509 of indemnification, advancement of expenses, or exoneration for conduct involving bad faith, willful misconduct, or reckless indifference;
(9) vary the obligation of a trustee under Section 510(c) not to follow a direction that is manifestly contrary to the terms of the governing instrument or would constitute a serious breach of fiduciary duty by the trustee;
(10) restrict the right of a judgment creditor of a beneficial owner to seek a charging order under Section 606;
(11) restrict the right of a beneficial owner to information under Section 608, but the governing instrument may prescribe the standards for assessing whether information is reasonably related to the beneficial owner’s ability to enforce its rights as a beneficial owner, if the standards are not manifestly unreasonable;
(12) restrict the
right of a beneficial owner to bring an action under Section 609, but the
governing instrument may subject the right to additional standards and
restrictions, including the a requirement that beneficial owners owning a
specified amount or type of beneficial interest including, in a series trust,
an interest in the series, join in bringing the action, if the additional standards
and restrictions are not manifestly unreasonable;
(13) vary the provisions pertaining to conversion and merger in Sections 701, 704, 705, 708, and 709;
(14) vary the provisions pertaining to dissolution in Sections 801(1) and 802 through 808;
(15) vary the provisions relating to foreign statutory trusts in [Article] 9; or
(16) vary the miscellaneous provisions in [Article] 10.
SECTION 105.
APPLICABILITY OF TRUST LAW. The law of this
state pertaining to common-law trusts supplements this [act]. However, the governing instrument may
supersede or modify application to the statutory trust of any law of this state
pertaining to common-law trusts.
SECTION 106.
RULE OF CONSTRUCTION.
(a) This [act] must be liberally
construed to give maximum effect to the principle of freedom of contract and to
the enforceability of governing instruments.
(b) The presumption that a civil
statute in derogation of the common law is construed strictly does not apply to
this [act].
SECTION 201.
CERTIFICATE OF TRUST.
(a)
To form a statutory trust, a person must deliver a certificate of trust to the
[Secretary of State] for filing.
(b) A
certificate of trust must state:
(1)
the name of the statutory trust, which must comply with Section 207;
(2)
the street and mailing address of the designated office of the trust;
(3)
the name and street and mailing address of the initial agent of the trust for
service of process; and
(4)
whether the trust may have one or more series.
(c) A
certificate of trust may contain any term in addition to those required by
subsection (b).
(d)
Subject to Section 204(c), a statutory trust is formed when a certificate of
trust that complies with subsection (b) is filed by the [Secretary of State].
(e) A
filed certificate of trust, a filed statement of cancellation or change, or
filed articles of conversion or merger prevail over inconsistent terms of a
trust instrument.
SECTION 202.
AMENDMENT OR RESTATEMENT OF CERTIFICATE OF TRUST.
(a)
To amend its certificate of trust, a statutory trust must deliver to the
[Secretary of State] for filing an amendment, articles of conversion, or
articles of merger stating:
(1)
the name of the trust;
(2)
the date of filing of its initial certificate; and
(3)
the changes to the certificate.
(b) A
trustee that knows or has reason to know that any information in a filed
certificate of trust was incorrect when the certificate was filed or has become
incorrect shall promptly:
(1) cause the certificate to be
amended; or
(2)
if appropriate, deliver to the [Secretary of State] for filing a statement of
correction.
(c) A
restated certificate of trust must be delivered to the [Secretary of State] for
filing in the same manner as an amendment.
(d)
An amended or restated certificate of trust is effective as provided in Section
204(c).
SECTION 203.
SIGNING OF RECORDS.
(a)
A record delivered by the statutory trust to the [Secretary of State] for
filing pursuant to this [act] must be signed by at least one of the trustees.
(b)
Any person may sign by an attorney in fact any record filed pursuant to this
[act].
SECTION 204.
DELIVERY TO AND FILING OF RECORDS BY [SECRETARY OF STATE]; EFFECTIVE
TIME AND DATE.
(a) A
record authorized or required to be delivered to the [Secretary of State] for
filing under this [act] must be captioned to describe the subject of the record
and be in a medium permitted by the [Secretary of State]. If all filing fees have been paid, unless the
[Secretary of State] determines that the record does not comply with the filing
requirements of this [act], the [Secretary of State] shall file the record and
make available a copy of the filed record to the person on whose behalf the
record was filed.
(b)
On request and payment of the required fee, the [Secretary of State] shall send
to any person a certified copy of a record filed in the office of the
[Secretary of State] pursuant to this [act].
(c)
Except as otherwise provided in Sections 205 and 211, a record delivered to the
[Secretary of State] for filing under this [act] may specify an effective time
and a delayed effective date. Except as
otherwise provided in this [act], a record filed by the [Secretary of State] is
effective:
(1)
if the record does not specify an effective time or delayed effective date, on
the date and at the time the record is filed as evidenced by the [Secretary of
State’s] endorsement of the date and time on the record;
(2)
if the record specifies an effective time but not a delayed effective date, on
the date the record is filed at the time specified in the record;
(3)
if the record specifies a delayed effective date but not an effective time, at
12:01 a.m. on the earlier of:
(A)
the specified date; or
(B)
the 90th day after the record is filed;
or
(4)
if the record specifies an effective time and a delayed effective date, at the
specified time on the earlier of:
(A)
the specified date; or
(B)
the 90th day after the record is filed.
SECTION 205.
CORRECTING FILED RECORD.
(a)
If at the time of filing a record contained incorrect information or was
defectively or erroneously signed, a statutory trust or qualified foreign
statutory trust shall deliver to the [Secretary of State] for filing a
statement of correction to correct the record.
(b) A
statement of correction under subsection (a):
(1)
may not state a delayed effective date;
(2)
must describe the record to be corrected, including its filing date, or attach
a copy of the record as filed;
(3)
must specify the incorrect information and the reason it is incorrect or the
manner in which the signing was defective or erroneous; and
(4)
must correct the incorrect information or defective or erroneous signature.
(c) A
statement of correction filed by the [Secretary of State] under subsection (a)
is effective:
(1)
except as otherwise provided in paragraph (2), retroactively as of the
effective date of the record the statement corrects; or
(2)
with respect to a person that relied on the uncorrected record and would be
adversely affected by the correction, when filed.
SECTION 206.
CERTIFICATE OF GOOD STANDING.
(a)
The [Secretary of State], on request and payment of the required fee, shall
furnish to the person making the request a certificate of good standing for a
statutory trust if the records filed in the [office of the Secretary of State]
show that:
(1)
the [Secretary of State] has filed a certificate of trust;
(2)
all fees and penalties due under this [act] or other law to the [Secretary of
State] have been paid;
(3)
the most recent annual report of the trust required by Section 213 has been
filed by the [Secretary of State];
(4)
a statement of cancellation or dissolution has not been filed by the [Secretary
of State]; and
(5)
the [Secretary of State] has not filed a notice of administrative dissolution
under Section 806 or, if the [Secretary of State] has filed such a notice, that
the [Secretary of State] has filed a declaration of reinstatement under Section
807.
(b) A
certificate of good standing must state:
(1)
the name of the trust;
(2)
that the trust was formed under the laws of this state and the date of
formation; and
(3)
that subsection (a) has been satisfied.
(c)
Subject to any qualification stated in the certificate, a certificate of good
standing issued by the [Secretary of State] may be relied upon as conclusive
evidence that the statutory trust is in good standing as of the date the
certificate is issued.
SECTION 207.
NAME OF STATUTORY TRUST.
(a)
Except as otherwise provided in subsection (c), the name of a statutory trust
must be distinguishable in the records of the [Secretary of State] from:
(1)
the name of any person that is already incorporated, organized, formed, or
authorized to do business in this state; and
(2)
any name reserved under Section 208 [or other state laws allowing the
reservation or registration of business names, including fictitious or assumed
name statutes].
(b)
The name of a statutory trust may contain the words: “company”, “association”,
“club”, “foundation”, “fund”, “institute”, “society”, “union”, “syndicate”,
“limited”, or “trust”, or words or abbreviations of similar import, and may
contain the name of a beneficial owner, a trustee, or any other person.
(c) A
person may apply to the [Secretary of State] to use a name that does not comply
with subsection (a). The [Secretary of
State] shall authorize use of the name applied for if, as to a conflicting
name:
(1)
the present user, registrant, or owner of the conflicting name consents in a
signed record to the use and submits an undertaking in a form satisfactory to
the [Secretary of State] to dissolve or to change the conflicting name to a
name that complies with subsection (a) and is distinguishable in the records of
the [Secretary of State] from the name applied for;
(2)
the applicant delivers to the [Secretary of State] a certified copy of the
final judgment of a court of competent jurisdiction establishing the
applicant’s right to use in this state the name applied for; or
(3)
the applicant delivers to the [Secretary of State] proof satisfactory to the
[Secretary of State] that the present user, registrant, or owner of the
conflicting name:
(A)
has merged with the applicant;
(B)
has been converted into the applicant; or
(C)
has transferred substantially all of its property, including the conflicting
name, to the applicant.
(d)
Subject to Section 906, this section applies to any foreign statutory trust
that does business in this state, that has a certificate of registration to do business
in this state, or that has applied for a certificate of registration.
SECTION 208.
RESERVATION OF NAME.
(a)
The exclusive right to the use of a name that complies with Section 207 may be
reserved by:
(1)
a person intending to form a statutory trust under this [act] and to adopt the
name;
(2)
a statutory trust or a qualified foreign statutory trust intending to adopt the
name;
(3)
a foreign statutory trust intending to obtain a certificate of registration to
do business in this state and adopt the name;
(4)
a person intending to organize a foreign statutory trust and intending to have
it obtain a certificate of registration to do business in this state and adopt
the name;
(5)
a foreign statutory trust formed under the name; or
(6)
a foreign statutory trust formed under a name that does not comply with Section
207, but the name reserved under this paragraph may differ from the foreign
statutory trust’s name only to the extent necessary to comply with Section 207.
(b) A person may apply to reserve a name under
subsection (a) by delivering to the [Secretary of State] for filing an
application that states the name to be reserved and the paragraph of subsection
(a) that applies. If the [Secretary of State]
finds that the name is available for use by the applicant, the [Secretary of
State] shall file a statement of name reservation and thereby reserve the name
for the exclusive use of the applicant for a 120-day period.
(c) A person that has reserved a name pursuant to
subsection (b) may reserve the same name for additional 120-day periods. A person having a current reservation for a
name may not apply for an additional120-day period for the same name until 90
days have elapsed under the current reservation.
(d) A person that has reserved a name under this
section may deliver to the [Secretary of State] for filing:
(1)
a notice of transfer that states the reserved name, the name and street and
mailing address of some other person to which the reservation is to be
transferred, and the paragraph of subsection (a) that applies to the person; or
(2)
a notice of termination of the person’s reservation.
(e) A
transfer or termination under subsection (d) is effective as provided in
Section 204(c).
SECTION 209.
AGENT FOR SERVICE OF PROCESS.
(a) A
statutory trust or a qualified foreign statutory trust shall designate and
continuously maintain in this state an agent for service of process.
(b)
An agent for service of process of a statutory trust or qualified foreign
statutory trust must be an individual who is a resident of this state or a
person incorporated, organized, formed, or authorized to do business in this
state which maintains an office in this state.
SECTION 210.
CHANGE OF DESIGNATED OFFICE OR AGENT FOR SERVICE OF PROCESS. A statutory
trust or qualified foreign statutory trust may change its agent for service of
process, the address of its agent for service of process, or its designated
office by delivering to the [Secretary of State] for filing a statement of
change containing:
(1)
the name of the trust;
(2)
the street and mailing address of the current designated office of the trust;
(3)
if the designated office is to be changed, the street and mailing address of
the new designated office;
(4)
the name and street and mailing address of the current agent of the trust for
service of process; and
(5)
if the current agent for service of process or an address of the agent is to be
changed, the new information.
SECTION 211.
RESIGNATION OF AGENT FOR SERVICE OF PROCESS.
(a)
To resign as an agent for service of process of a statutory trust or qualified
foreign statutory trust, the agent must deliver to the [Secretary of State] for
filing a statement of resignation containing:
(1)
the name of the trust;
(2)
the name of the agent; and
(3)
a statement that the agent resigns as agent for service of process.
(b) A
resigning agent shall transmit a copy of a statement of resignation to the
designated office of the statutory trust or qualified foreign statutory trust
and another copy to the principal office if the address of the office appears
in the records of the [Secretary of State] and is different from the address of
the designated office.
(c)
An agency for service of process terminates on the 31st day after the
[Secretary of State] files the statement of resignation under subsection (a).
SECTION 212.
SERVICE OF PROCESS.
(a)
An agent for service of process appointed by a statutory trust or qualified
foreign statutory trust is an agent of the trust for service of any process,
notice, or demand required or permitted by law to be served on the trust.
(b)
If a statutory trust or qualified foreign statutory trust no longer has a
registered agent, or if its registered agent cannot with reasonable diligence
be served, the trust may be served by registered or certified mail, return
receipt requested, at its principal office in accordance with any applicable
rules and procedures. Service is effected under this subsection at the earliest
of:
(1)
the date the agent for the statutory trust or qualified foreign statutory trust
receives the process, notice, or demand;
(2)
the date shown on the return receipt, if signed on behalf of the trust; or
(3)
five days after the process, notice, or demand is deposited with the United
States Postal Service, if correctly addressed and with sufficient postage.
(c)
If process, notice, or demand cannot be served on a statutory trust or
qualified foreign statutory trust pursuant to subsection (b), service may be
made by handing a copy to the manager, clerk, or other individual in charge of
any regular place of business or activity of the trust if the individual served
is not a plaintiff in the action.
(d)
This section does not affect the right to serve process, notice, or demand in
any other manner provided by law.
SECTION 213.
[ANNUAL] [BIENNIAL] REPORT FOR [SECRETARY OF STATE].
(a) A
statutory trust or qualified foreign statutory trust must deliver to the
[Secretary of State] for filing [an annual] [a biennial] report that contains
the name of the trust and:
(1)
in the case of a statutory trust:
(A)
the street and mailing address of its designated office; and
(B)
the name and street and mailing address of its agent for service of process; or
(2)
in the case of a qualified foreign statutory trust:
(A)
any alternate name adopted under Section 906;
(B)
the name of the state or other jurisdiction of formation of the trust;
(C)
the street and mailing address of its principal office and, if the laws of the
jurisdiction of formation of the trust require it to maintain an office in that
jurisdiction, the street and mailing address of that office; and
(D)
the name and street and mailing address of its agent for service of process in
this state.
(b)
Information in [an annual] [a biennial] report under this section must be
current as of the date the annual report is delivered to the [Secretary of
State] for filing.
(c)
The first [annual] [biennial] report under this section must be delivered to
the [Secretary of State] after [January 1] and before [April 1] of the year
following the calendar year in which a statutory trust was formed or a
qualified foreign statutory trust was authorized to do business in this
state. The report must be delivered to
the [Secretary of State] after [January 1] and before [April 1] of each
subsequent [second] calendar year.
(d)
If [an annual] [a biennial] report does not contain the information required in
subsection (a), the [Secretary of State] shall notify the trust promptly and
return the report to it for correction.
If the report is corrected to contain the information required in
subsection (a) and is delivered to the [Secretary of State] by the 30th day
after the date of the notice, it is timely delivered.
(e) If [an annual] [a biennial] under this
section contains an address of a designated office or the name or address of an
agent for service of process which differs from the information shown in the
records of the [Secretary of State] immediately before the filing, the
differing information in the report is considered a statement of change under
Section 210.
SECTION 301.
GOVERNING LAW. The law of
this state governs:
(1)
the internal affairs of a statutory trust;
(2)
the liability of a beneficial owner as beneficial owner and a trustee as
trustee for a debt, obligation, or other liability of a statutory trust or a
series thereof; and
(3)
the enforceability of a debt, obligation, or other liability of the statutory
trust or a series thereof against the property of the trust or any series
thereof.
SECTION 302.
STATUTORY TRUST AS ENTITY. A statutory trust is an entity separate from
its trustees and beneficial owners.
SECTION 303.
PERMISSIBLE PURPOSES.
(a) Except as otherwise provided in
subsection (b), a statutory trust may have any lawful purpose.
(b) A statutory trust may not have a
predominantly donative purpose.
SECTION 304.
STATUTORY TRUST SOLELY LIABLE FOR DEBTS, OBLIGATIONS, OR OTHER
LIABILITIES OF STATUTORY TRUST. A debt, obligation, or other liability of a
statutory trust or series thereof is solely a debt, obligation, or other
liability of the trust or series thereof.
A beneficial owner, trustee, agent of the trust, or agent of the trustee
is not personally liable, directly or indirectly, by way of contribution or
otherwise, for a debt, obligation, or other liability of the trust or series
thereof solely by reason of being or acting as a trustee, beneficial owner,
agent of the trust, or agent of the trustee.
SECTION 305.
NO CREDITOR RIGHTS IN TRUST PROPERTY. Except as
otherwise provided in Section 606, a creditor of a beneficial owner or trustee
may not obtain possession of, or otherwise exercise legal or equitable remedies
with respect to, the property of a statutory trust or any series thereof.
(a) A statutory trust has perpetual
existence.
(b) A statutory trust, or any series
thereof, may not be terminated or revoked except in accordance with this [act]
or the terms of the governing instrument.
(c) The death, incapacity,
dissolution, termination, or bankruptcy of a beneficial owner or trustee does
not result in the termination or dissolution of a statutory trust or any series
thereof.
(d) A statutory trust or any series
thereof does not terminate because the same person is the sole trustee and sole
beneficial owner.
SECTION 307.
POWER TO HOLD PROPERTY; TITLE TO TRUST PROPERTY. A statutory trust may hold or take title to
property in its own name, or in the name of a trustee in the trustee’s capacity
as trustee, whether in an active, passive, or custodial capacity.
SECTION 308.
POWER TO SUE AND BE SUED.
(a) A
statutory trust may sue and be sued in its own name.
(b)
Except as otherwise provided in [Article] 4, property of a statutory trust held
in the name of the trust or by the trustee in the trustee’s capacity as trustee
is subject to attachment and execution to satisfy a debt, obligation, or other
liability of the trust.
SECTION 401.
STATUTORY TRUST HAVING SERIES.
(a) The governing instrument may
provide for the creation by the statutory trust of one or more series with
respect to specified property of the statutory trust if:
(1) records are
maintained for the series that reasonably identify the property of the series,
including by specific listing, category, type, quantity, or computational or
allocational formula or procedure, such as a percentage or share of any
property, or by any other method by which the identity of the property of the
series is objectively determinable; and
(2) notice that the
trust having one or more series is set forth in the certificate of trust as
required by Section 201(b)(4).
(b) A series of a statutory trust is
not an entity separate from the statutory trust.
(c) A series of a statutory trust
may have a separate purpose from the trust or any other series thereof if the
purpose of the series is lawful and not a predominantly donative purpose.
SECTION 402.
LIABILITY OF SERIES TRUST.
(a) In a series trust:
(1) a debt, obligation,
or other liability incurred or otherwise existing with respect to the property
of a particular series is enforceable against the property of the series only,
and not against the property of the trust generally or any other series
thereof; and
(2) none of the debts,
obligations, or other liabilities incurred or otherwise existing with respect
to the trust generally or the property of any other series thereof is
enforceable against the property of the series;.
(b) The association, disassociation,
or reassociation of property of a statutory trust or a series thereof to or
with the trust or a series thereof, including by conversion or merger under
[Article] 7 is deemed to be a transfer between separate persons under [Uniform
Fraudulent Transfers Act or other state fraudulent transfer statute].
SECTION 403.
DUTIES OF TRUSTEE IN SERIES TRUST. If there is at least one trustee of a series
trust that, in discharging its duties, is obligated to consider the interests
of the trust and all series thereof, the governing instrument may provide that
one or more other trustees, in discharging their duties, may consider only the
interests of the trust or one or more series thereof.
SECTION 404.
DISSOLUTION OF SERIES.
(a) A series of a series trust may
be dissolved or its property distributed without causing the dissolution of the
trust or any other series thereof.
(b) A series of a series trust is
dissolved, and its activities must be wound up, on the occurrence of an event
or circumstance that the governing instrument states causes dissolution of the
series or upon the dissolution of the trust.
(c) On dissolution of a series of a
series trust, the persons that under the governing instrument are responsible
for winding up the affairs of the series may cause the trust to take all
actions permitted under Section 803, and shall take actions with respect to the
claims and obligations of the series as provided in Sections 803 through 805.
(d) Any person, including a trustee,
that under the governing instrument is responsible for winding up the affairs
of a series of a series trust is not liable to the creditors of the dissolved
series by reason of the person’s actions in winding up the series.
SECTION 501.
MANAGEMENT OF STATUTORY TRUST. The business and affairs of a statutory trust
must be managed by or under the authority of its trustees.
SECTION 502.
TRUSTEE POWERS. A trustee may
exercise:
(1) powers conferred by the
governing instrument;
(2) except as limited by the
governing instrument, any other powers necessary or convenient to carry out the
business and affairs of the statutory trust; and
(3) any other powers conferred by
this [act].
SECTION 503.
ACTION BY TRUSTEES. On any matter
that is to be acted on by trustees, the following rules apply:
(1)
The trustees act by majority of the trustees.
(2)
The trustees may act without a meeting, without previous notice, and without a
vote, if the minimum number of trustees necessary to authorize or take the
action at a meeting at which all trustees entitled to vote thereon were present
and voted consent in a signed record.
However, prompt notice of the action must be given to those trustees
that did not consent.
(3) A
trustee may vote in person or by proxy, but, if by proxy, the proxy must be in
a signed record.
SECTION 504.
PROTECTION OF PERSON DEALING WITH TRUSTEE.
(a) A person that in good faith
assists a trustee, or in good faith and for value deals with a trustee, without
knowledge that the trustee is exceeding or improperly exercising the trustee’s
power, is protected from liability as if the trustee properly exercised the
power.
(b)
A person that in good faith deals with a trustee need not inquire into
the extent of a trustee’s power or the propriety of the exercise of the power.
(c)
A person that in good faith delivers property to a trustee need not
ensure its proper use.
(d)
A person that in good faith assists a former trustee as if the former
trustee were still a trustee, or in good faith and for value deals with a
former trustee as if the former trustee were still a trustee, without knowledge
that the trusteeship has terminated is protected from liability as if the
former trustee were still a trustee.
SECTION 505.
STANDARDS OF CONDUCT FOR TRUSTEES.
(a)
Subject to Section 403, in exercising the powers of trusteeship, a
trustee shall act in good faith and in a manner the trustee reasonably believes
to be in the best interests of the statutory trust.
(b) A trustee shall discharge its
duties with the care that a person in a similar position would reasonably
believe appropriate under similar circumstances.
SECTION 506.
GOOD-FAITH RELIANCE. A trustee,
officer, employee, manager, or committee of a statutory trust, or other person
designated pursuant to Section 104(c)(8), is not liable to the trust or to a
beneficial owner for breach of any duty, including a fiduciary duty, to the
extent the breach results from good-faith reliance on:
(1) a term of the governing
instrument;
(2) a record of the statutory trust;
or
(3) an opinion, report, or statement
of another person that the trustee reasonably believes is within the other
person’s professional or expert competence and is made or delivered to the
trustee, officer, employee, manager, or committee of a statutory trust or other
person designated pursuant to Section 103(e)(8).
SECTION 507.
INTERESTED TRANSACTIONS.
(a)
In this section, “covered party” means a trustee, officer, employee, or manager
of a statutory trust, or a related person of a trustee, officer, employee, or
manager.
(b)
Subject to subsection (c), a covered party may lend money to, borrow money
from, act as a surety, guarantor, or endorser for, guarantee or assume one or
more obligations of, provide collateral for, or do other business with the
statutory trust and has the same rights and obligations with respect to those
matters as a person that is not a covered party.
(c) A
transaction described in subsection (b) is voidable by the statutory trust
unless the covered party shows that the transaction is fair to the trust.
SECTION 508.
TRUSTEE’S RIGHT TO INFORMATION. A trustee has
the right to receive from a statutory trust or another trustee information relating
to the affairs of the trust that is reasonably related to the trustee’s
discharge of the trustee’s duties as trustee. The trustee may enforce this
right by summary proceeding in the [appropriate court].
SECTION 509.
INDEMNIFICATION, ADVANCEMENT, AND EXONERATION.
(a) A statutory trust may indemnify
and hold harmless a trustee or beneficial owner or other person with respect to
any claim or demand on the person by reason of the person’s relationship with
the trust if the claim or demand does not arise from the person’s bad faith,
willful misconduct, or reckless indifference.
(b) Expenses, including reasonable
attorney’s fees and costs, incurred by a trustee, beneficial owner, or any
other person in connection with a claim or demand on the person by reason of
the person’s relationship to a statutory trust may be paid by the trust before
the final disposition of the claim or demand, upon an undertaking by or on
behalf of the person to repay the trust if the person is ultimately determined
not to be entitled to be indemnified under subsection (a).
(c) A term in the governing
instrument relieving or exonerating a trustee from liability is unenforceable
to the extent that it relieves or exonerates the trustee from liability for
conduct involving bad faith, willful misconduct, or reckless indifference.
SECTION
510. DIRECTION OF TRUSTEES.
(a) The governing instrument may
authorize any person, including a beneficial owner, to direct a trustee or
other person in the management of a statutory trust.
(b) The governing instrument may
provide that neither the power to direct a trustee or other person nor the
exercise of the power by any person, including a beneficial owner, causes the
person to be a trustee or imposes on the person duties, including fiduciary
duties, or liabilities relating to these duties, to a statutory trust or
beneficial owner.
(c) If the governing instrument
confers on a person a power to direct actions by a trustee or other person, the
trustee or other person shall act in accordance with an exercise of the power,
unless the direction is manifestly contrary to the terms of the governing
instrument or the trustee knows or has reason to know that following the
direction would constitute a serious breach of fiduciary duty by the trustee.
SECTION 511.
DELEGATION BY TRUSTEE.
(a)
A trustee may delegate duties and powers. The trustee shall exercise the care a person
in a similar position would reasonably believe appropriate under similar
circumstances in:
(1) selecting an agent;
(2) establishing the
scope and terms of the delegation; and
(3) periodically
reviewing the agent’s actions in order to monitor the agent’s performance and
compliance with the terms of the delegation.
(b)
Subject to subsection (a), a trustee may delegate duties and powers to a
co-trustee.
(c)
In performing a delegated function, an agent of a trustee owes a duty to
the statutory trust to exercise reasonable care to comply with the terms of the
delegation.
(d)
A trustee that complies with subsection (a) is not liable to a
beneficial owner or to the statutory trust for an act or omission of the agent
of a trustee to which function was delegated.
(e)
An agent of a trustee submits to the jurisdiction of the courts of this
state by accepting a delegation of powers or duties from a trustee.
SECTION 512. INDEPENDENT TRUSTEE IN REGISTERED INVESTMENT
COMPANY.
(a) In this section, “affiliated
person” and “interested person” have the meanings set forth in the Investment
Company Act of 1940, [as amended,] 15 U.S.C. Section 80a-1 et seq. [and any
regulations issued thereunder].
(b) If a statutory trust is
registered as an investment company under the Investment Company Act of 1940,
[as amended,] 15 U.S.C. Section 80a-1 et seq., [or any successor statute] [and
any regulations issued thereunder,] a trustee is an independent trustee for all
purposes under this [act] if the trustee is not an interested person of the
trust. The receipt of compensation both
for service as an independent trustee of the trust and for service as an
independent trustee of one or more other investment companies managed by a
single investment adviser or an affiliated person of an investment adviser,
does not affect the status of the trustee as an independent trustee under this
section.
SECTION 601.
BENEFICIAL INTEREST.
(a) A beneficial interest in a
statutory trust is freely transferable.
(b) A beneficial owner’s interest in
a statutory trust is personal property regardless of the nature of the property
of the trust.
(c) A beneficial owner’s interest is
not an interest in specific property of a statutory trust.
(d) A beneficial owner does not have
a preemptive right to subscribe to any additional issue of beneficial interests
or any other interest of a statutory trust.
SECTION 602.
VOTING OR CONSENT BY BENEFICIAL OWNERS. On any matter
that is to be acted on by beneficial owners, the following rules apply:
(1)
The beneficial owners act by majority of the beneficial interests.
(2)
The beneficial owners may take the action without a meeting, without notice,
and without a vote, if beneficial owners having at least the minimum number of
votes necessary to authorize or take the action at a meeting at which all
beneficial owners entitled to vote thereon were present and voted consent in a
signed record. However, prompt notice of
the action must be given to those beneficial owners that did not consent.
(3) A
beneficial owner may vote in person or by proxy, but if by proxy, the proxy
must be contained in a signed record.
SECTION 603.
CONTRIBUTION BY BENEFICIAL OWNER.
(a) A contribution of a beneficial
owner to a 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. 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 trust.
(b) A beneficial owner is liable to
the statutory trust for failure to perform a promise to contribute cash or
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 cash, property, or services, the beneficial owner is
obligated, at the option of the trust, to contribute cash equal to that part of
the value of the contribution that has not been made. This obligation is in addition to any other
right, including the right to specific performance, that the trust has against
the beneficial owner under the governing instrument or applicable law.
(c) The governing instrument may
provide that a beneficial owner that fails to make a required contribution or
comply with the terms and conditions of, the governing instrument is subject to
specified penalties for or consequences of the failure, including:
(1) reduction or
elimination of the defaulting beneficial owner’s proportionate interest in the
statutory trust or series thereof;
(2) subordination of the
defaulting beneficial owner’s beneficial interest to that of nondefaulting
beneficial owners;
(3) forced sale or
forfeiture of the defaulting beneficial owner’s beneficial interest;
(4) imposition of an
obligation to repay a loan to the statutory trust by another beneficial owner
of the amount necessary to meet the defaulting beneficial owner’s commitment;
and
(5) redemption or sale
of the defaulting beneficial owner’s beneficial interest at a value fixed by
appraisal or by formula.
SECTION 604.
DISTRIBUTION TO BENEFICIAL OWNER.
(a)
When a beneficial owner becomes entitled to receive a distribution, with
respect to the distribution, the beneficial owner has the status of, and is
entitled to all remedies available to, a creditor of the statutory trust.
(b) A
beneficial owner does not have a right to demand or to receive a distribution
from the trust in any form other than money.
(c)
The trust may distribute an asset in kind if each part of the asset is fungible
with each other part and each beneficial owner receives a percentage of the
asset equal in value to the beneficial owner’s share of the distribution.
SECTION 605.
REDEMPTION OF BENEFICIAL INTEREST. A statutory trust may acquire, by purchase,
redemption, or otherwise, any beneficial interest in the trust or series
thereof. A beneficial interest so
acquired is canceled.
(a)
If a beneficial interest is not freely transferable by a beneficial owner so
that the transferee has all rights of the transferor, a judgment creditor of a
beneficial owner may satisfy the judgment against the beneficial owner’s
beneficial interest only as provided in this section.
(b)
On application by a judgment creditor of a beneficial owner, the [appropriate
court] may issue a charging order against the beneficial owner’s right to
distributions from the trust for the unsatisfied part of the judgment and:
(1)
appoint a receiver of the distributions subject to the charging order, with the
power to enforce the beneficial owner’s right to a distribution; and
(2)
make all other orders necessary to give effect to the charging order.
(c) A charging order issued under
subsection (b) constitutes a lien on the beneficial owner’s right to
distributions and requires the statutory trust to pay over to the judgment
creditor any distribution that would otherwise be paid to the beneficial owner
until the unsatisfied amount of the judgment has been satisfied.
(d) A
statutory trust or beneficial owner that is not subject to the charging order
may pay to the judgment creditor the full amount due under the judgment lien
and thereby succeed to the rights of the judgment creditor, including the
charging order.
(e)
This [act] does not deprive a beneficial owner or a transferee of the
beneficial interest of any exemption law applicable to the beneficial interest.
SECTION 607.
TRANSACTION WITH BENEFICIAL OWNER. A beneficial
owner or related person of a beneficial owner may lend money to, borrow money
from, act as a surety, guarantor, or endorser for, guarantee or assume an
obligation of, provide collateral for, or do other business with the statutory
trust and, subject to law other than this [act], has the same rights and
obligations with respect to a matter as a person that is not a beneficial
owner.
SECTION
608. BENEFICIAL OWNER’S RIGHT TO
INFORMATION. A beneficial owner has the right to receive
from the statutory trust or a trustee information relating to the affairs of a
statutory trust that is reasonably related to the beneficial owner’s
interest. The beneficial owner may
enforce this right by summary proceeding in the [appropriate court].
SECTION 609.
ACTION BY BENEFICIAL OWNER.
(a) A beneficial owner may maintain
a direct action against a statutory trust to redress an injury sustained by, or
to enforce a duty owed to, the beneficial owner if the beneficial owner can
prevail without showing an injury or breach of duty to the trust.
(b) A beneficial owner may maintain
a derivative action in the [appropriate court] to redress an injury sustained
by, or enforce a duty owed to, a statutory trust if:
(1) the beneficial owner
first makes a demand on the trustees, requesting that the trustees cause the
trust to bring an action to redress the injury or enforce the right, and the
trustees do not bring the action within a reasonable time; or
(2) a demand would be
futile.
(c) A derivative action on behalf of
a statutory trust may be maintained only by a person that is a beneficial owner
at the time the action is commenced and:
(1) was a beneficial
owner when the conduct giving rise to the action occurred; or
(2) whose status as a
beneficial owner devolved upon the person by operation of law or pursuant to
the terms of the governing instrument from a person that was a beneficial owner
at the time of the conduct.
(d) In a derivative action on behalf
of the statutory trust, the complaint must state with particularity:
(1) the date and content
of the plaintiff’s demand and the trustees’ response to the demand; or
(2) the reason the
demand should be excused as futile.
(e) Except as otherwise provided in
subsection (f):
(1) any proceeds or
other benefits of a derivative action on behalf of a statutory trust, whether
by judgment or settlement, are the property of the trust and not of the
plaintiff; and
(2) if the plaintiff
receives any proceeds, it shall immediately remit them to the trust.
(f) If a derivative action on behalf
of a statutory trust is successful in whole or in part, the court may award the
plaintiff reasonable expenses, including reasonable attorney’s fees and costs,
from the recovery by the trust.
(g) A derivative action on behalf of
a statutory trust may not be voluntarily dismissed or settled without the
court’s approval.
SECTION 701.
DEFINITIONS. In this
[article]:
(1)
“Constituent organization” means an organization that is party to a
merger.
(2)
“Constituent statutory trust” means a constituent organization that is a
statutory trust.
(3)
“Converted organization” means the organization into which a converting
organization converts pursuant to Sections 702 through 705.
(4)
“Converting organization” means an organization that converts into
another organization pursuant to Section 702.
(5)
“Converting statutory trust” means a converting organization that is a
statutory trust.
(6)
“Governing law” means the law that governs the organization’s internal
affairs.
(7)
“Organization” means a common-law trust that does not have a
predominantly donative purpose; general partnership, including a limited
liability partnership; limited partnership, including a limited liability
limited partnership; limited liability company; corporation; or foreign
statutory trust. The term includes a
domestic or foreign organization whether or not organized for profit.
(8)
“Organizational documents” means the basic records that create the
organization and determine its internal governance and the relations among the
persons that own it, have an interest in it, or are members of it.
(9)
“Surviving organization” means an organization into which one or more
other organizations are merged, whether the surviving organization preexisted
the merger or was created by the merger.
(a)
An organization other than a statutory trust may convert to a statutory
trust, and a statutory trust may convert to another organization pursuant to
this section and Sections 703 through 705 and a plan of conversion, if:
(1) the conversion is
not prohibited by the governing law of the other organization; and
(2) the other
organization complies with its governing law in effecting the conversion.
(b)
A plan of conversion must be in a record and must include:
(1) the name and form of
the organization before conversion;
(2) the name and form of
the organization after conversion;
(3) the terms and
conditions of the conversion, including the manner and basis for converting
interests in the converting organization into any combination of money,
interests in the converted organization, and other consideration; and
(4) the organizational
documents of the converted organization.
SECTION 703.
ACTION ON PLAN OF CONVERSION BY CONVERTING STATUTORY TRUST.
(a)
A plan of conversion must be consented to by all trustees and all
beneficial owners of a converting statutory trust.
(b)
A converting statutory trust may amend a plan of conversion or abandon
the planned conversion:
(1) as provided in the
plan; and
(2) except as prohibited
by the plan, by the same consent as was required to approve the plan.
SECTION 704.
FILINGS REQUIRED FOR CONVERSION; EFFECTIVE DATE.
(a)
After a conversion is approved:
(1) a converting
statutory trust shall deliver to the [Secretary of State] for filing articles
of conversion, which must include:
(A) a
statement that the trust has been converted into another organization;
(B) the name
and form of the converting organization and the jurisdiction of its governing
law;
(C) a
statement that the conversion was approved as required by this [act];
(D) a
statement that the conversion is not prohibited by the governing law of the
converted organization; and
(E) if the
converted organization is a foreign organization not authorized to do business
in this state, the street and mailing address of an office that the [Secretary
of State] may use for the purposes of Section 705(c); and
(2) if the converting
organization is not a converting statutory trust, the converting organization
shall deliver to the [Secretary of State] for filing a certificate of trust,
which must include, in addition to the information required by Section 201:
(A) a
statement that the trust was converted from another organization;
(B) the name
and form of the converting organization and the jurisdiction of its governing
law; and
(C) a
statement that the conversion was approved in a manner that complied with the
organization’s governing law.
(b)
A conversion becomes effective when the certificate of conversion is
effective as provided in Section 204(c).
SECTION 705.
EFFECT OF CONVERSION.
(a)
An organization that has been converted pursuant to this [article] is
for all purposes the same organization that existed before the conversion.
(b)
When a conversion under this [article] takes effect:
(1) all property owned
by the converting organization remains vested in the converted organization;
(2) all debts,
obligations, and other liabilities of the converting organization, including
those existing with respect to the property of a series thereof, continue as
debts, obligations, or other liabilities of the converted organization limited
to the property of any series thereof as provided for by the plan of conversion
and the governing law of the successor organization;
(3) an action or
proceeding pending by or against the converting organization continues as if
the conversion had not occurred;
(4) except as prohibited
by law other than this [act], the rights, privileges, immunities, powers, and
purposes of the converting organization remain vested in the converted
organization;
(5) except as otherwise
provided in the plan of conversion, the terms and conditions of the plan of
conversion take effect; and
(6) except as otherwise
agreed, the conversion does not dissolve a converting statutory trust or any
series thereof for the purposes of Section 801.
(c)
A converted organization that is a foreign organization consents to the
jurisdiction of the courts of this state to enforce any debt, obligation, or
other liability for which the converting statutory trust is liable, if, before
the conversion, the converting statutory trust was subject to suit in this
state on the debt, obligation, or other liability. A converted organization that is a foreign
organization and not authorized to do business in this state may be served in
accordance with Section 212.
(a) A statutory trust may merge with
one or more other constituent organizations pursuant to this section and
Sections 707 through 709 and a plan of merger if:
(1) the merger is not prohibited
by the governing law of any constituent organization; and
(2) each of the other
organizations complies with its governing law in effecting the merger.
(b) A plan of merger must be in a
record and must include:
(1) the name and form of
each constituent organization;
(2) the name and form of
the surviving organization and, if the surviving organization is to be created
by the merger, a statement to that effect;
(3) the terms and
conditions of the merger, including the manner and basis for converting or
exchanging the interests in each constituent organization into any combination
of money, interests in the surviving organization, and other consideration;
(4) if the surviving
organization is to be created by the merger, the surviving organization’s
organizational documents; and
(5) if the surviving
organization is not to be created by the merger, any amendments to be made by
the merger to the surviving organization’s organizational documents.
SECTION 707.
ACTION ON PLAN OF MERGER BY CONSTITUENT STATUTORY TRUST.
(a) A plan of merger must be
consented to by all trustees and all beneficial owners of a constituent
statutory trust.
(b) After a merger is approved, and
at any time before a filing is made under Section 708, a constituent statutory
trust may amend the plan or abandon the planned merger:
(1) as provided in the
plan; and
(2) except as prohibited
by the plan, with the same consent as was required to approve the plan.
SECTION 708.
FILINGS REQUIRED FOR MERGER; EFFECTIVE DATE.
(a) After each constituent
organization has approved a merger, articles of merger must be signed on behalf
of:
(1) each constituent
statutory trust, by one or more trustees or other authorized representative;
and
(2) each other
constituent organization, by an authorized representative.
(b) Articles of merger under this
section must include:
(1) the name and form of
each constituent organization and the jurisdiction of its governing law;
(2) the name and form of
the surviving organization, the jurisdiction of its governing law, and, if the
surviving organization is created by the merger, a statement to that effect;
(3) if the surviving
organization is to be created by the merger:
(A) if it
will be a statutory trust, the trust’s certificate of trust; or
(B) if it
will be an organization other than a statutory trust, the organizational
document that creates the organization;
(4) if the surviving
organization preexisted the merger, any amendments provided for in the plan of
merger for the organizational document that created the organization;
(5) a statement as to
each constituent organization that the merger was approved as required by the
organization’s governing law;
(6) if the surviving
organization is a foreign organization not authorized to do business in this
state, the street and mailing address of an office that the [Secretary of
State] may use for the purposes of Section 709(b); and
(7) any additional
information required by the governing law of any constituent organization.
(c) The articles of merger must be
delivered to the office of the [Secretary of State] for filing.
(d) A merger becomes effective under
this [article]:
(1) if the surviving
organization is a statutory trust, upon the later of:
(A) filing
of the articles of merger by the [Secretary of State]; or
(B) subject
to Section 204(c)(2), (3), or (4), as specified in the articles of merger; or
(2) if the surviving
organization is not a statutory trust, as provided by the governing law of the
surviving organization.
SECTION
709. EFFECT OF MERGER.
(a) When a merger becomes effective:
(1) the surviving
organization continues or comes into existence;
(2) each constituent
organization that merges with the surviving organization ceases to exist as a
separate organization;
(3) all property owned
by each constituent organization that ceases to exist vests in the surviving
organization;
(4) all debts,
obligations, and other liabilities of each constituent organization that ceases
to exist, including those existing with respect to the property of a series
thereof, continue as debts, obligations, or other liabilities of the converted
organization limited to the property thereof as provided for by the plan of
merger and the governing law of the converted organization;
(5) an action or
proceeding pending by or against any constituent organization that ceases to
exist continues as if the merger had not occurred;
(6) except as prohibited
by law other than this [act], all rights, privileges, immunities, powers, and purposes
of each constituent organization that ceases to exist vest in the surviving
organization;
(7) except as otherwise
provided in the plan of merger, the terms and conditions of the plan of merger
take effect;
(8) if the surviving
organization is created by the merger and:
(A) if it is
a statutory trust, the certificate of trust becomes effective; or
(B) if it is
an organization other than a statutory trust, the organizational document that
creates the organization becomes effective; and
(9) if the surviving
organization preexisted the merger, any amendment provided for in the articles
of merger for the organizational document that created the organization becomes
effective.
(b) A surviving organization that is
a foreign organization consents to the jurisdiction of the courts of this state
to enforce any debt, obligation, or other liability owed by a constituent
organization if, before the merger, the constituent organization was subject to
suit in this state on the obligation. A
surviving organization that is a foreign organization not authorized to do
business in this state may be served in accordance with Section 212.
SECTION
710. [ARTICLE] NOT EXCLUSIVE. This [article] does not preclude an
organization from being converted or merged under law other than this [act].
SECTION
801. EVENTS CAUSING DISSOLUTION. A statutory trust is dissolved only by:
(a) an administrative dissolution
under Section 806; or
(b) the filing of articles of
dissolution under Section 802:
(1)
on the occurrence of an event or circumstance that the governing instrument
states causes dissolution; or
(2)
with the approval of all the beneficial owners.
SECTION
802. ARTICLES OF DISSOLUTION.
(a) If dissolution of a statutory
trust is authorized under Section 801, the trust shall deliver to the
[Secretary of State] for filing articles of dissolution setting forth:
(1) the name of the
trust; and
(2) the date of the
dissolution.
(b) Except as otherwise provided in
Section 204(c), a statutory trust is dissolved when articles of dissolution
that comply with subsection (a) are filed by the [Secretary of State].
(a) A
dissolved statutory trust shall wind up its activities, and the trust and each series
thereof continues after dissolution only for the purpose of winding up.
(b)
In winding up its activities, a statutory trust shall:
(1)
discharge the trust’s debts, obligations, and other liabilities, settle and
close the trust’s activities, and marshal and distribute the property of the
trust; and
(2)
distribute any surplus property after complying with paragraph (1) to the
beneficial owners in proportion to their beneficial interests.
(c)
In winding up its activities, a statutory trust may:
(1) preserve the trust’s activities
and property as a going concern for a reasonable time;
(2)
institute, maintain, and defend actions and proceedings, whether civil,
criminal, or administrative;
(3)
transfer the trust’s property;
(4)
settle disputes; and
(5)
perform other acts necessary or appropriate to the winding up.
(d)
Trustees of a dissolved statutory trust that has disposed of claims under
Sections 804 or 805 are not liable for breach of duty with respect to claims
against the trust that are barred or satisfied under Section 804 or 805.
(e)
The dissolution of a statutory trust does not terminate the authority of its
agent for service of process.
(f)
On application of any person that shows good cause, the [appropriate court] may
appoint a person to be a receiver for a dissolved statutory trust with the
power to undertake any action that might have been done by the trust during its
winding up if the action is necessary for final settlement of the trust.
SECTION
804. NOTICE TO CLAIMANT.
(a) Except as otherwise provided in
subsection (c), a dissolved statutory trust may dispose of a known claim
against it by sending notice to the claimant in a record of the dissolution of
the trust. The notice must:
(1) specify the
information required to be included in a claim;
(2) provide a mailing
address to which the claim is to be sent;
(3) state the deadline
for receipt of the claim, which may not be less than 120 days after the date
the notice is sent to the claimant; and
(4) state that the claim
will be barred if not received by the deadline.
(b) A claim against a dissolved
statutory trust is barred if the requirements of subsection (a) are met and:
(1) the claim is not
received by the specified deadline; or
(2) if the claim is
timely received but rejected by the trust:
(A) the
trust notifies the claimant in a record that the claim is rejected and will be
barred unless the claimant commences an action against the trust to enforce the
claim by the 90th day after the claimant receives the notice; and
(B) the
claimant does not commence the required action by the 90th day.
(c) This section does not apply to a
claim based:
(1) on an event
occurring after the effective date of dissolution; or
(2) on a liability that
on that date is unmatured or contingent.
SECTION
805. PUBLICATION OF NOTICE.
(a) A dissolved statutory trust may
publish notice of its dissolution and request persons having claims against the
trust to present them in accordance with the notice.
(b) A notice under subsection (a)
must:
(1) be published at
least once in a newspaper of general circulation in the [county] in this state
in which the dissolved statutory trust’s principal office is located or, if it
has none in this state, in the [county] in which the trust’s designated office
was last located;
(2) describe the
information required for a claim and provide a mailing address to which the
claim may be sent; and
(3) state that a claim
against the trust is barred unless an action to enforce the claim is commenced
not later than [three] years after publication of the notice.
(c) If a dissolved statutory trust
publishes a notice in accordance with subsection (b), unless the claimant
commences an action to enforce the claim against the trust not later than
[three] years after the publication date of the notice, the claim of each of
the following claimants is barred:
(1) a claimant that did
not receive notice in a record under Section 804;
(2) a claimant whose
claim was timely sent to the trust but not acted on; and
(3) a claimant whose
claim is contingent at, or based on an event occurring after, the effective
date of dissolution.
(d) A claim not barred under this
section may be enforced against undistributed property.
(e) A claim not barred under this
section may be enforced if property of the trust has been distributed after
dissolution, against a beneficial owner to the extent of that beneficial
owner’s proportionate share of the property distributed to the beneficial owner
after dissolution. However, a beneficial
owner’s total liability for all claims under this subsection does not exceed
the total amount of property distributed to the beneficial owner after
dissolution.
SECTION
806. ADMINISTRATIVE DISSOLUTION.
(a) The [Secretary of State] may
dissolve a statutory trust administratively if:
(1) the trust is without
an agent for service of process in this state for [30] days;
(2) the trust does not
file an annual report by the 60th day after it is due; or
(3) the trust does not
pay, by the 60th day after the due date, any fee, tax, or penalty due to the
[Secretary of State].
(b) If the [Secretary of State]
determines that a ground exists for administratively dissolving a statutory
trust, the [Secretary of State] shall file a notice of dissolution and send a
copy to the trust’s agent for service of process, or if the trust does not have
an agent for service of process in this state, to the trust’s designated
office. The notice must state:
(1) the effective date
of the dissolution, which must be at least [60] days after the date the
[Secretary of State] sends the copy; and
(2) the reason for the
dissolution.
(c) Unless a statutory trust cures
the failure to comply with subsection (a) stated in the notice of dissolution
before the date stated in the notice, the [Secretary of State] shall dissolve
the trust administratively by preparing, signing, and filing a declaration of
dissolution that states the grounds for dissolution. The [Secretary of State] shall file a notice
of dissolution and send a copy to the trust’s agent for service of process, or
if the trust does not have an agent for service of process in this state, to
the trust’s designated office.
SECTION
807. REINSTATEMENT FOLLOWING
ADMINISTRATIVE DISSOLUTION.
(a) A statutory trust that has been
dissolved administratively may apply to the [Secretary of State] for
reinstatement. The application must be
delivered to the [Secretary of State] for filing and state:
(1) the name of the
trust and the effective date of its dissolution;
(2) that the grounds for
dissolution did not exist or have been eliminated; and
(3) that the trust’s
name satisfies the requirements of Section 207.
(b) If the [Secretary of State]
determines that an application under subsection (a) contains the required
information and that the information is correct, the [Secretary of State] shall
prepare a declaration of reinstatement that states this determination, sign and
file the original of the declaration of reinstatement, and send a copy to the
trust’s agent for service of process.
(c) When a reinstatement becomes
effective, it relates back to and takes effect as of the effective date of the
administrative dissolution as if the dissolution had not occurred, except for
the rights of a person arising out of an act or omission in reliance on the
dissolution before the person knew or had reason to know of the reinstatement.
SECTION
808. APPEAL FROM REJECTION OF
REINSTATEMENT.
(a) If the [Secretary of State]
rejects a statutory trust’s application for reinstatement following
administrative dissolution, the [Secretary of State] shall send a notice that
states the reason for rejection to the trust’s agent for service of process.
(b) A statutory trust may appeal
from the rejection by petitioning the [appropriate court] to set aside the
dissolution. The petition must be
delivered to the [Secretary of State] and contain a copy of the [Secretary of
State’s] declaration of dissolution, the trust’s application for reinstatement,
and the [Secretary of State’s] notice of rejection.
(c) The court may order the
[Secretary of State] to reinstate a dissolved statutory trust or take other
action the court considers appropriate.
(a)
The law of the jurisdiction of formation of a foreign statutory trust governs:
(1)
the internal affairs of the trust;
(2)
the liability of a beneficial owner as beneficial owner and trustee as trustee
for the debts, obligations, or other liabilities of the trust or a series
thereof; and
(3)
the enforceability of a debt, obligation, or other liability of the foreign
statutory trust or any series thereof against the property of the trust or
series.
(b)
The [Secretary of State] may not deny a foreign statutory trust a certificate
of registration by reason of any difference between the law of the jurisdiction
of formation of the foreign statutory trust and the laws of this state.
(c) A
certificate of registration does not authorize a foreign statutory trust to engage
in any business or exercise any power that a statutory trust may not engage in
or exercise in this state.
SECTION 902.
APPLICATION FOR CERTIFICATE OF REGISTRATION.
(a)
To register to transact business in this state, a foreign statutory trust may
apply for a certificate of registration to transact business in this state by
delivering an application to the [Secretary of State] for filing. The application must contain:
(1)
the name of the trust and, if the name does not comply with Section 207, an alternate
name adopted pursuant to Section 906(a).
(2)
the name of the state or other jurisdiction of formation of the trust;
(3)
the street and mailing address of the trust’s principal office and, if the laws
of the jurisdiction of formation of the the trust require it to maintain an
office in that jurisdiction, the street and mailing address of the required
office; and
(4)
the name and street and mailing address of the trust’s initial agent for
service of process in this state.
(b) A
foreign statutory trust shall deliver with a completed application under
subsection (a) a certificate of good standing or a record of similar import
signed by the [Secretary of State] or other official having custody of the
foreign statutory trust’s publicly filed records in the state or other
jurisdiction of formation of the foreign statutory trust.
SECTION 903.
ACTIVITIES NOT CONSTITUTING TRANSACTING BUSINESS.
(a)
Activities of a foreign statutory trust which do not constitute doing business
in this state within the meaning of this [article] include:
(1)
maintaining, defending, or settling an action or proceeding;
(2)
holding meetings of its trustees or carrying on any other activity concerning
its internal affairs;
(3)
maintaining accounts or depositing assets in financial institutions;
(4)
maintaining offices or agencies for the transfer, exchange, and registration of
the trust’s own beneficial interests or securities or maintaining trustees or
depositories with respect to those beneficial interests or securities;
(5)
selling through independent contractors;
(6)
soliciting or obtaining orders, whether by mail or electronic means or through
employees or agents or otherwise, if the orders require acceptance outside this
state before they become contractual obligations;
(7)
creating or acquiring indebtedness, mortgages, or security interests in real or
personal property;
(8)
securing or collecting debts or enforcing mortgages or other security interests
in property securing the debts, and holding, protecting, or maintaining
property so acquired;
(9)
conducting an isolated transaction that is completed by the 30th day and is not
in the course of similar transactions;
and
(10)
transacting business in interstate commerce.
(b)
This section does not apply in determining the contacts or activities that may
subject a foreign statutory trust to service of process, taxation, or
regulation under law of this state other than this [act].
(c) A
person does not do business in the state solely by reason of being a trustee or
a beneficial owner of a foreign statutory trust that does transact business in
this state.
SECTION 904.
FILING OF CERTIFICATE OF REGISTRATION. Unless the
[Secretary of State] determines that an application for a certificate of
registration does not comply with the filing requirements of this [act], the
[Secretary of State], upon payment of all filing fees, shall file the
application, prepare, sign, and file a certificate of registration to transact
business in this state, and send a copy of the filed certificate, together with
a receipt for the fees, to the foreign statutory trust or its representative.
SECTION 905.
CERTIFIED COPY OF CERTIFICATE OF REGISTRATION.
(a)
The [Secretary of State], upon request and payment of the required fee, shall
furnish a certified copy of the certificate of registration for a qualified
foreign statutory trust if the records filed in the [office of the Secretary of
State] show that the [Secretary of State] has filed a certificate of
registration, has not revoked the certificate of registration, and has not
filed a notice of cancellation.
(b)
Subject to any limitation stated in the certificate, the certified copy of the
certificate of registration issued by the [Secretary of State] to a foreign
statutory trust may be relied upon as conclusive evidence that the trust is
authorized to transact business in this state as of the date of the
certificate.
SECTION 906.
NONCOMPLYING NAME OF FOREIGN STATUTORY TRUST.
(a) A
foreign statutory trust whose name does not comply with Section 207 may not
obtain a certificate of registration until it adopts, for the purpose of
transacting business in this state, an alternate name that complies with
Section 207. A foreign statutory trust that
adopts an alternate name under this subsection and obtains a certificate of
registration with the name need not comply with [this state’s fictitious or
assumed name statute]. After obtaining a
certificate of registration with an alternate name, a foreign statutory trust
shall transact business in this state under the name unless the trust is
authorized under [this states’s fictitious or assumed name statute] to transact
business in this state under another name.
(b)
If a qualified foreign statutory trust changes its name to one that does not
comply with Section 207, it may not thereafter transact business in this state
until it complies with subsection (a) and obtains an amended certificate of
registration.
SECTION 907.
REVOCATION OF CERTIFICATE OF REGISTRATION.
(a)
The [Secretary of State] may revoke the certificate of registration of a
qualified foreign statutory trust if the trust does not:
(1)
appoint and maintain an agent for service of process;
(2)
deliver for filing a statement of change by the 60th day after a change has occurred
in the name or address of the agent;
(3)
file an annual report pursuant to Section 213 by the 60th day after it is due;
or
(4)
pay, by the 60th day after the due date, any fee, tax, or penalty due to the
[Secretary of State].
(b)
To revoke a certificate of registration of a foreign statutory trust, the
[Secretary of State] must prepare, sign, and file a notice of revocation and
send a copy to the trust’s agent for service of process in this state, or if
the trust does not appoint and maintain a agent for service of process in this
state, to the trust’s designated office.
The notice must state:
(1)
the effective date of the revocation, which must be at least [60] days after
the date the [Secretary of State] sends the copy; and
(2)
the basis for the revocation.
(c)
Unless a foreign statutory trust cures the failures to comply with subsection
(a) stated in the notice of revocation before the date stated in the notice,
the authority of the trust to transact business in this state ceases on that
date.
(d)
If a foreign statutory trust cures the failure stated in the notice of
revocation under subsection (b), the [Secretary of State] shall indicate that
the trust is reinstated on the filed notice.
The reinstatement of the trust relates back for all purposes to the date
of the notice of revocation, except for the rights of a person arising out of
an act or omission in reliance on the dissolution before the person knew or had
reason to know of the reinstatement.
SECTION 908.
CANCELLATION OF CERTIFICATE OF REGISTRATION.
(a)
To cancel its certificate of registration to transact business in this state, a
qualified foreign statutory trust must deliver to the [Secretary of State] for
filing a notice of cancellation that states:
(1)
the name of the trust;
(2)
the date of filing of its initial certificate of registration;
(3)
that the certificate of registration is being canceled; and
(4)
any other information as determined by the trustee filing the statement.
(b) A
certificate of registration under subsection (a) is canceled when the notice of
cancellation becomes effective under Section 204.
SECTION 909.
EFFECT OF FAILURE TO HAVE CERTIFICATE OF REGISTRATION.
(a) A
foreign statutory trust transacting business in this state may not maintain an
action or proceeding in this state unless it has a certificate of registration
to transact business in this state.
(b)
The failure of a foreign statutory trust to have a certificate of registration
to transact business in this state does not impair the validity of a contract
or act of the trust or prevent the trust from defending an action or proceeding
in this state.
(c) A
trustee or beneficial owner of a foreign statutory trust is not liable for the
debts, obligations, or other liabilities of the trust solely because the trust
transacted business in this state without a certificate of registration.
(d)
If a foreign statutory trust transacts business in this state without a
certificate of registration or cancels its certificate of registration, the trust
may be served in accordance with Section 212 for actions arising out of the
transaction of business in this state.
SECTION 910.
ACTION BY [ATTORNEY GENERAL]. The [Attorney
General] may maintain an action to enjoin a foreign statutory trust from transacting
business in this state in violation of this [article].
SECTION 1001.
UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and construing this uniform act,
consideration must be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.
SECTION 1002.
RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. This [act] modifies, limits, and supersedes
the federal Electronic Signatures in Global and National Commerce Act, 15
U.S.C. Section 7001 et seq., but does
not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section
7001(c), or authorize electronic delivery of any of the notices described in
Section 103(b) of that act, 15 U.S.C. Section 7003(b).
SECTION 1003.
SAVING CLAUSE. This [act]
does not affect an action commenced, proceeding brought, or right accrued
before this [act] takes effect.
SECTION 1004.
RESERVATION OF POWER TO AMEND OR REPEAL. The [name of state legislature] has power to
amend or repeal all or part of this [act] at any time and all statutory trusts
and foreign statutory trusts subject to this [act] are governed by the
amendment or repeal.
SECTION 1005.
APPLICATION TO EXISTING RELATIONSHIPS.
(a) This [act] does not limit,
prohibit, or invalidate the existence, acts, or obligations of any common-law
trust created or doing business in this state before, on, or after [the
effective date of the act]. The laws of
this state other than this [act] pertaining to trusts apply to common-law
trusts.
(b) A common-law trust arising under
the law of this state before, on, or after [the effective date of this [act]]
that does not have a predominantly donative purpose may elect to be governed by
this [act] by filing of a certificate of trust under Section 201.
[(c) A trust created pursuant to a
statute of this state that was required by that statute to file a certificate
of trust with [the Secretary of State] before [the effective date of this
[act]] may elect to be governed by the provisions of this [act] by filing an
amendment to its certificate of trust under Section 202.]
[(d) On [two years after the
effective date of this [act]], this [act] governs the organization and internal
affairs of all trusts created pursuant to a statute of this state that was
required by that statute to file a certificate of trust with the [Secretary of
State] before the effective date of this [act].]
SECTION 1006.
REPEALS. [On
[all-inclusive date], the] [The] following are repealed:
(1) [the state Statutory Trust Act
as amended and in effect immediately before [the effective date of this [act]];
(2) [the state Business Trust Act as
amended and in effect immediately before [the effective date of this [act]];
and
(3) [the state Real Estate
Investment Trust Act as amended and in effect immediately before [the effective
date of this [act]].
SECTION 1007.
EFFECTIVE DATE. This [act]
takes effect . . . .