Richards Layton & Finger
 

2011 Amendments to the Delaware Statutory Trust Act

July 26, 2011

The Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq. (the "Act"), was amended on July 13, 2011 in order to address several technical issues. The amendments to the Act (the "2011 Amendments") are set forth in House Bill No. 115.

Registered Agents

- Resignation of a Registered Agent and Appointment of a Successor [12 Del. C. § 3807(f), and 12 Del. C. § 3813(a)(5)].  The 2011 Amendments amend Section 3807 and Section 3813 of the Act to provide for the resignation of a registered agent of one or more statutory trusts upon the appointment of a successor registered agent upon the filing of a certificate of resignation with the Secretary of State that provides the name and address of the successor registered agent, and the payment to the Secretary of State of a filing fee of $200.  Attached to the certificate shall be a statement of each affected statutory trust ratifying and approving the change in registered agent.  The filing of such certificate of resignation and appointment will constitute an amendment to the certificate of trust of the affected trusts, and no additional filings will be required.

- Resignation of a Registered Agent Without Appointment of a Successor [12 Del. C. § 3807(g) and 12 Del. C. § 3813(a)(5)].  The 2011 Amendments amend Section 3807 and section 3813 of the Act to provide for the resignation of a registered agent of one or more statutory trusts without the appointment of a successor registered agent upon filing of a certificate of resignation with the Secretary of State and the payment to the Secretary of State of a filing fee of $2 per affected trust.  Such resignation will not become effective until 30 days after filing.  Affected trusts must designate a replacement registered agent, or appoint a Delaware trustee.  The Secretary of State will act as a default agent for the service of legal process if no new registered agent or Delaware trustee is designated by an affected statutory trust.

- Address of a Trustee and Registered Agent [12 Del. C. § 3807(h) and 12 Del. C. § 3812(g)].  The 2011 Amendments amend Section 3807 of the Act to require that in documents filed with the Secretary of State under the Act, address details of any trustee or registered agent include the street, number, city and postal code.  The 2011 Amendments also amend Section 3812 of the Act to clarify that only certificates filed after August 1, 2011 will be subject to the new Section 3807(h) of the Act.

Certificate Filings

- Post-filing Effective Dates [12 Del. C. § 3812(b)].  The 2011 Amendments amend Section 3808(b) of the Act to provide that any certificate filed with the Secretary of State under the Act on or after January 1, 2012 may have a post-filing effective date not to exceed 180 days after filing.

Trust Names

- Distinguishing Trust Names [12 Del. C. § 3814(a)].  The 2011 Amendments amend Section 3814(a) of the Act to provide that, after July 31, 2011, no domestic statutory trust may register under a name not sufficient to distinguish it from any other domestic statutory trust then registered upon the records of the Secretary of State unless its certificate of trust was filed on or before July 31, 2011, and it has obtained the consent of the other domestic statutory trust and such consent was filed with the Secretary of State.  The 2011 Amendments amend Section 3814(a) of the Act to clarify, however, that domestic statutory trusts may continue to register under names not sufficient to distinguish themselves from foreign statutory trusts provided they have obtained the consents of such foreign statutory trusts and filed such consents with the Secretary of State.

Merger or Consolidation

- Amendment of Governing Instrument [12 Del. C. § 3815(f)].  The 2011 Amendments amend Section 3815(f) to correct a typographical error in last year's amendment to the same section. That amendment was intended to provide that notwithstanding anything to the contrary contained in the governing instrument of a statutory trust, an agreement of merger or consolidation approved in accordance with subsection (a) of this section may (1) effect any amendment to the governing instrument of the statutory trust or (2) effect the adoption of a new governing instrument of the statutory trust if it is the surviving or resulting statutory trust in the merger or consolidation.  Prior to the amendment, such activities must have been specifically provided for in the governing instrument of the statutory trust.

Conversion

Filing a Certificate of Conversion [12 Del. C. § 3820(a)].  The 2011 Amendments amend Section 3820 of the Act to provide that whenever a business entity converts into a statutory trust the certificate of conversion must be filed simultaneously with, and if applicable, filed with the same post-filing effective date as, the corresponding certificate of trust, both of which must be filed with the Secretary of State in order to effectuate a conversion of another business entity into a statutory trust.

Domestication

Filing a Certificate of Domestication [12 Del. C. § 3822(b)].  The 2011 Amendments amend Section 3822 of the Act to provide that whenever a non-United States entity converts into a statutory trust the certificate of domestication must be filed simultaneously with, and if applicable, filed with the same post-filing effective date as, the corresponding certificate of trust, both of which must be filed with the Secretary of State in order to effectuate a domestication of a non-United States entity into a statutory trust.

Registered Agent of a Foreign Statutory Trust

Fees [12 Del. C. § 3862].  The 2011 Amendments amend Section 3862 of the Act to revise the fees such that a registered agent shall pay a fee to the Secretary of State of (a) $200 when filing a certificate under § 3854(c) to change its name or address, (b) $200 when filing a certificate under § 3854(d) to resign with the appointment of a successor and (c) $2.00 for each statutory trust whose registered agent resigns when it files a certificate under § 3854(e) to resign without the appointment of a successor.