USA Statutes : nevada
Title : Title 07 - BUSINESS ASSOCIATIONS; SECURITIES; COMMODITIES
Chapter : CHAPTER 88A - BUSINESS TRUSTS
As used in this chapter, unless the
context otherwise requires, the words and terms defined in NRS 88A.020
to 88A.110 , inclusive, have the meanings ascribed to
them in those sections.
(Added to NRS by 1999, 1561 ; A 2003, 3155 )
“Beneficial owner” means
the owner of a beneficial interest in a business trust.
(Added to NRS by 1999, 1561 )
“Business trust” means an
unincorporated association which:
1. Is created by a trust instrument under which property is held,
managed, controlled, invested, reinvested or operated, or any combination
of these, or business or professional activities for profit are carried
on, by a trustee for the benefit of the persons entitled to a beneficial
interest in the trust property; and
2. Files a certificate of trust pursuant to NRS 88A.210 .
Ê The term includes, without limitation, a trust of the type known at
common law as a business trust or Massachusetts trust, a trust qualifying
as a real estate investment trust pursuant to 26 U.S.C. §§ 856 et seq.,
as amended, or any successor provision, or a trust qualifying as a real
estate mortgage investment conduit pursuant to 26 U.S.C. § 860D, as
amended, or any successor provision.
(Added to NRS by 1999, 1561 ; A 2001, 1401 , 3199 )
“Foreign business
trust” means a business trust formed pursuant to the laws of a foreign
nation or other foreign jurisdiction and denominated as such pursuant to
those laws.
(Added to NRS by 1999, 1561 )
“Governing
instrument” means the trust instrument that creates a trust and provides
for the governance of its affairs and the conduct of its business.
(Added to NRS by 1999, 1561 ; A 2003, 3156 )
“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.
(Added to NRS by 2003, 3155 )
“Registered office”
means the office of a business trust maintained at the street address of
its resident agent.
(Added to NRS by 1999, 1561 )
“Resident agent” means the
agent appointed by a business trust upon whom process or a notice or
demand authorized by law to be served upon the business trust may be
served.
(Added to NRS by 1999, 1561 )
“Sign” means to affix a signature to
a record.
(Added to NRS by 1999, 1561 ; A 2003, 3156 )
“Signature” means a name, word,
symbol or mark executed or otherwise adopted, or a record encrypted or
similarly processed in whole or in part, by a person with the present
intent to identity himself and adopt or accept a record. The term
includes, without limitation, an electronic signature as defined in NRS
719.100 .
(Added to NRS by 1999, 1562 ; A 2001, 101 , 2725 ; 2003, 3156 )
“Street address” of a
resident agent means the actual physical location in this State at which
a resident agent is available for service of process.
(Added to NRS by 1999, 1562 )
“Trustee” means the person or
persons appointed as trustee in accordance with the governing instrument
of a business trust.
(Added to NRS by 1999, 1562 )
APPLICABILITY
The provisions of this chapter apply to commerce with foreign
nations and among the several states. It is the intention of the
Legislature by enactment of this chapter that the legal existence of
business trusts formed pursuant to this chapter be recognized beyond the
limits of this State and that, subject to any reasonable requirement of
registration, any such business trust transacting business outside this
State be granted protection of full faith and credit pursuant to Section
1 of Article IV of the Constitution of the United States.
(Added to NRS by 1999, 1562 )
1. Except as otherwise provided in the certificate of trust, the
governing instrument or this chapter, the laws of this State pertaining
to trusts apply to a business trust.
2. In applying the provisions of this chapter, the court shall
give the greatest effect to the principle of freedom of contract and the
enforceability of governing instruments.
(Added to NRS by 1999, 1573 )
All
provisions of this chapter may be altered from time to time or repealed,
and all rights of business trusts, trustees, beneficial owners and other
persons are subject to this reservation.
(Added to NRS by 1999, 1574 )
FORMATION
A business trust may be formed to carry on
any lawful business or activity.
(Added to NRS by 1999, 1562 )
1. One or more persons may create a business trust by adopting a
governing instrument and signing and filing with the Secretary of State a
certificate of trust and a certificate of acceptance of appointment
signed by the resident agent of the business trust. The certificate of
trust must set forth:
(a) The name of the business trust;
(b) The name and address, either residence or business, of at least
one trustee;
(c) The name of the person designated as the resident agent for the
business trust, the street address of the resident agent where process
may be served upon the business trust and the mailing address of the
resident agent if different from the street address;
(d) The name and address, either residence or business, of each
person signing the certificate of trust; and
(e) Any other information the trustees determine to include.
2. Upon the filing of the certificate of trust and the certificate
of acceptance with the Secretary of State and the payment to him of the
required filing fee, the Secretary of State shall issue to the business
trust a certificate that the required records with the required content
have been filed. From the date of that filing, the business trust is
legally formed pursuant to this chapter.
(Added to NRS by 1999, 1562 ; A 2003, 3156 ; 2005, 2268 )
1. A certificate of trust may be amended by filing with the
Secretary of State a certificate of amendment signed by at least one
trustee. The certificate of amendment must set forth:
(a) The name of the business trust; and
(b) The amendment to the certificate of trust.
2. A certificate of trust may be restated by integrating into a
single instrument all the provisions of the original certificate, and all
amendments to the certificate, which are then in effect or are to be made
by the restatement. The restated certificate of trust must be so
designated in its heading, must be signed by at least one trustee and
must set forth:
(a) The present name of the business trust;
(b) The provisions of the original certificate of trust, and all
amendments to the certificate, which are then in effect; and
(c) Any further amendments to the certificate of trust.
3. A certificate of trust may be amended or restated at any time
for any purpose determined by the trustees.
(Added to NRS by 1999, 1562 ; A 2001, 1401 , 3199 ; 2003, 20th Special Session, 105 )
1. The name of a business trust formed pursuant to the provisions
of this chapter must contain the words “Business Trust” or the
abbreviation “B.T.” or “BT.”
2. The name proposed for a business trust must be distinguishable
on the records of the Secretary of State from the names of all other
artificial persons formed, organized, registered or qualified pursuant to
the provisions of this title that are on file in the Office of the
Secretary of State and all names that are reserved in the Office of the
Secretary of State pursuant to the provisions of this title. If a
proposed name is not so distinguishable, the Secretary of State shall
return the certificate of trust containing it to the signers of the
certificate, unless the written, acknowledged consent of the holder of
the name on file or reserved name to use the same name or the requested
similar name accompanies the certificate.
3. For the purposes of this section and NRS 88A.240 , a proposed name is not distinguishable from
a name on file or reserved name solely because one or the other contains
distinctive lettering, a distinctive mark, a trademark or trade name, or
any combination of these.
4. The name of a business trust whose certificate of trust has
been revoked, which has merged and is not the surviving entity or whose
existence has otherwise terminated is available for use by any other
artificial person.
5. The Secretary of State may adopt regulations that interpret the
requirements of this section.
(Added to NRS by 1999, 1563 )
1. The Secretary of State, when requested to do so, shall reserve,
for a period of 90 days, the right to use a name available pursuant to
NRS 88A.230 for the use of a proposed
business trust. During the period, the name so reserved is not available
for use or reservation by any other artificial person forming,
organizing, registering or qualifying in the Office of the Secretary of
State pursuant to the provisions of this title without the signed consent
of the person at whose request the reservation was made.
2. The use by any artificial person of a name in violation of
subsection 1 or NRS 88A.230 may be
enjoined, even if the record under which the artificial person is formed,
organized, registered or qualified has been filed by the Secretary of
State.
(Added to NRS by 1999, 1563 ; A 2001, 101 ; 2003, 3156 )
Upon the filing of a
certificate of amendment or restatement with the Secretary of State, or
upon the future effective date of such a certificate as provided for
therein, the certificate of trust is amended or restated as set forth.
Upon the filing of a certificate of cancellation, or articles of merger
in which the business trust is not a surviving entity, with the Secretary
of State, or upon the future effective date of the certificate or
articles, the certificate of trust is cancelled.
(Added to NRS by 1999, 1563 )
1. Except as otherwise provided in the certificate of trust, the
governing instrument or this chapter, a business trust has perpetual
existence and may not be terminated or revoked by a beneficial owner or
other person except in accordance with the certificate of trust or
governing instrument.
2. Except as otherwise provided in the certificate of trust or the
governing instrument, the death, incapacity, dissolution, termination or
bankruptcy of a beneficial owner does not result in the termination or
dissolution of a business trust.
3. An artificial person formed or organized pursuant to the laws
of a foreign nation or other foreign jurisdiction or the laws of another
state shall not be deemed to be doing business in this State solely
because it is a beneficial owner or trustee of a business trust.
4. The provisions of NRS 662.245 do not apply to the appointment of a trustee of a business
trust formed pursuant to this chapter.
(Added to NRS by 1999, 1564 )
A
governing instrument may consist of one or more agreements, instruments
or other writings and may include or incorporate bylaws containing
provisions relating to the business of the business trust, the conduct of
its affairs, and its rights or powers or the rights or powers of its
trustees, beneficial owners, agents or employees. The governing
instrument may provide that one or more of the beneficial owners may
serve as trustee.
(Added to NRS by 1999, 1564 )
A governing instrument may contain
any provision relating to the management or the business or affairs of
the business trust and the rights, duties and obligations of the
trustees, beneficial owners and other persons which is not contrary to a
provision or requirement of this chapter and may:
1. Provide for classes, groups or series of trustees or beneficial
owners, or of beneficial interests, having such relative rights, powers
and duties as the governing instrument provides, and may provide for the
future creation in the manner provided in the governing instrument of
additional such classes having such relative rights, powers and duties as
may from time to time be established, including rights, powers and duties
senior or subordinate to existing classes, groups or series.
2. Provide that a person becomes a beneficial owner and bound by
the governing instrument if he, or his representative authorized orally,
in writing or by action such as payment for a beneficial interest,
complies with the conditions for becoming a beneficial owner set forth in
the governing instrument or any other writing and acquires a beneficial
interest.
3. Establish or provide for a designated series of trustees,
beneficial owners or beneficial interests having separate rights, powers
or duties with respect to specified property or obligations of the
business trust or profits and losses associated with specified property
or obligations, and, to the extent provided in the governing instrument,
any such series may have a separate business purpose or investment
objective.
4. Provide for the taking of any action, including the amendment
of the governing instrument, the accomplishment of a merger, the
appointment of one or more trustees, the sale, lease, transfer, pledge or
other disposition of all or any part of the assets of the business trust
or the assets of any series, or the dissolution of the business trust,
and the creation of a class, group or series of beneficial interests that
was not previously outstanding, without the vote or approval of any
particular trustee or beneficial owner or class, group or series of
trustees or beneficial owners.
5. Grant to or withhold from all or certain trustees or beneficial
owners, or a specified class, group or series of trustees or beneficial
owners, the right to vote, separately or with one or more of the
trustees, beneficial owners or classes, groups or series thereof, on any
matter. Voting power may be apportioned per capita, proportionate to
financial interest, by class, group or series, or on any other basis.
6. If and to the extent that voting rights are granted under the
certificate of trust or governing instrument, set forth provisions
relating to notice of the time, place or purpose of a meeting at which a
matter will be voted on, waiver of notice, action by consent without a
meeting, the establishment of record dates, requirement of a quorum,
voting in person, by proxy or otherwise, or any other matter with respect
to the exercise of the right to vote.
7. Provide for the present or future creation of more than one
business trust, including the creation of a future business trust to
which all or any part of the assets, liabilities, profits or losses of
any existing business trust are to be transferred, and for the conversion
of beneficial interests in an existing business trust, or series thereof,
into beneficial interests in the separate business trust or a series
thereof.
8. Provide for the appointment, election or engagement, either as
agents or independent contractors of the business trust or as delegates
of the trustees, of officers, employees, managers or other persons who
may manage the business and affairs of the business trust and have such
titles and relative rights, powers and duties as the governing instrument
provides. Except as otherwise provided in the governing instrument, the
trustees shall choose and supervise those officers, managers and other
persons.
(Added to NRS by 1999, 1569 )
OPERATION
A business trust formed and existing
pursuant to this chapter has such powers as are necessary or convenient
to effect any of the purposes for which the business trust is formed.
(Added to NRS by 1999, 1569 )
1. Except as otherwise provided in this section, the certificate
of trust or the governing instrument, the business and affairs of a
business trust must be managed by or under the direction of its trustees.
To the extent provided in the certificate of trust or the governing
instrument, any person, including a beneficial owner, may direct the
trustees or other persons in the management of the business trust.
2. Except as otherwise provided in the certificate of trust or the
governing instrument, neither the power to give direction to a trustee or
other person nor the exercise thereof by any person, including a
beneficial owner, makes him a trustee. To the extent provided in the
certificate of trust or the governing instrument, neither the power to
give direction to a trustee or other person nor the exercise thereof by a
person, including a beneficial owner, causes him to have duties,
fiduciary or other, or liabilities relating to the power or its exercise
to the business trust or a beneficial owner thereof.
(Added to NRS by 1999, 1569 )
1. Except as otherwise provided in the governing instrument, a
beneficial owner participates in the profits and losses of a business
trust in the proportion of his beneficial interest to the entire
beneficial interest. A governing instrument may provide that the business
trust, or the trustees on its behalf, hold beneficial ownership of income
earned on securities owned by the business trust.
2. A creditor of a beneficial owner has no right to obtain
possession of, or otherwise exercise legal or equitable remedies with
respect to, property of the business trust.
3. A beneficial interest in a business trust is personal property
regardless of the nature of the property of the business trust. Except as
otherwise provided in the certificate of trust or the governing
instrument, a beneficial owner has no interest in specific property of
the business trust.
4. A beneficial interest in a business trust may be evidenced by
the issuance of certificates of ownership or by other means set forth in
the certificate of trust or the governing instrument.
5. Except as otherwise provided in the certificate of trust or the
governing instrument, a beneficial interest in a business trust is freely
transferable.
6. Except as otherwise provided in the certificate of trust or the
governing instrument, if a beneficial owner becomes entitled to receive a
distribution, he has the status of, and is entitled to all remedies
available to, a creditor of the business trust with respect to the
distribution. The governing instrument may provide for the establishment
of record dates with respect to allocations and distributions by a
business trust.
7. The fact of ownership of a beneficial interest in a business
trust is determined, and the means of evidencing it are set forth, by the
applicable provisions of the certificate of trust or the governing
instrument.
(Added to NRS by 1999, 1564 )
1. A contribution of a beneficial owner to a business trust may be
any tangible or intangible property or benefit to the business trust,
including cash, a promissory note, services performed, a contract for
services to be performed, or a security of the business trust. A person
may become a beneficial owner of a business trust and may receive a
beneficial interest in a business trust without making, or being
obligated to make, a contribution to the business trust.
2. Except as otherwise provided in the certificate of trust or the
governing instrument, a beneficial owner is obligated to the business
trust to perform a promise to make a contribution even if he is unable to
perform because of death, disability or any other reason. If a beneficial
owner does not make a promised contribution of property or services, he
is obligated at the option of the business trust to contribute cash equal
to that portion of the agreed value, as stated in the records of the
business trust, of the contribution which has not been made. The
foregoing option is in addition to any other rights, including specific
performance, that the business trust may have against the beneficial
owner under the governing instrument or applicable law.
3. A certificate of trust or governing instrument may provide that
the interest of a beneficial owner who fails to make a contribution that
he is obligated to make is subject to specific penalties for, or
specified consequences of, such failure. The penalty or consequence may
take the form of reducing or eliminating the defaulting beneficial
owner’s proportionate interest in the business trust, subordinating that
beneficial interest to those of nondefaulting owners, a forced sale of
the beneficial interest, forfeiture of the beneficial interest, the
lending by other beneficial owners of the amount necessary to meet the
defaulter’s commitment, a fixing of the value of the beneficial interest
by appraisal or formula and redemption or sale of the beneficial interest
at that value, or any other form.
(Added to NRS by 1999, 1571 )
1. A business trust shall keep a copy of the following records at
its registered office:
(a) A copy certified by the Secretary of State of its certificate
of trust and all amendments thereto or restatements thereof;
(b) A copy certified by one of its trustees of its governing
instrument and all amendments thereto; and
(c) A ledger or duplicate ledger, revised annually, containing the
names, alphabetically arranged, of all its beneficial owners, showing
their places of residence if known. Instead of this ledger, the business
trust may keep a statement containing the name of the custodian of the
ledger and the present complete address, including street and number, if
any, where the ledger is kept.
2. A business trust shall maintain the records required by
subsection 1 in written form or in another form capable of conversion
into written form within a reasonable time.
(Added to NRS by 1999, 1566 )
1. A person who has been a beneficial owner of record of a
business trust for at least 6 months immediately preceding his demand, or
a person holding, or authorized in writing by the holders of, at least 5
percent of its beneficial ownership, is entitled, upon at least 5 days’
written demand, to inspect in person or by agent or attorney, during
usual business hours, the ledger or duplicate ledger, whether kept in the
registered office of the business trust or elsewhere, and to make copies
therefrom.
2. An inspection authorized by subsection 1 may be denied to a
beneficial owner or other person upon his refusal to furnish to the
business trust an affidavit that the inspection is not desired for a
purpose which is in the interest of a business or object other than the
business of the business trust and that he has not at any time sold or
offered for sale any list of beneficial owners of a domestic or foreign
business trust, stockholders of a domestic or foreign corporation or
members of a domestic or foreign limited-liability company, or aided or
abetted any person in procuring such a list for such a purpose.
(Added to NRS by 1999, 1567 )
To the extent
that, at law or in equity, a trustee has duties, fiduciary or otherwise,
and liabilities relating thereto to a business trust or beneficial owner:
1. If he acts pursuant to a governing instrument, he is not liable
to the business trust or to a beneficial owner for his reliance in good
faith on the provisions of the governing instrument; and
2. His duties and liabilities may be expanded or restricted by
provisions in the governing instrument.
(Added to NRS by 1999, 1571 )
To the extent that, at law or in equity, an officer,
employee, manager or other person acting pursuant to the certificate of
trust or a governing instrument has duties, fiduciary or otherwise, and
liabilities relating thereto to a business trust, beneficial owner or
trustee:
1. If he acts pursuant to a governing instrument, he is not liable
to the business trust, a beneficial owner or a trustee for his reliance
in good faith on the provisions of the governing instrument; and
2. His duties and liabilities may be expanded or restricted by
provisions in the governing instrument.
(Added to NRS by 1999, 1571 )
The debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a
particular series of trustees, beneficial owners or beneficial interests
are enforceable against the assets of only that series only if:
1. The governing instrument of the business trust creates one or
more series of trustees, beneficial owners or beneficial interests;
2. Separate records are maintained for the series;
3. The assets associated with the series are held and accounted
for separately from the other assets of the business trust or any other
series of the business trust and the governing instrument requires
separate holding and accounting; and
4. Notice of the limitation on liability of the series is set
forth in the certificate of trust, or an amendment thereto, filed with
the Secretary of State before the series is established.
(Added to NRS by 1999, 1571 )
1. Unless otherwise provided in the certificate of trust, the
governing instrument or an agreement signed by the person to be charged,
a beneficial owner, trustee, officer, agent, manager or employee of a
business trust formed pursuant to the laws of this State is not
personally liable for the debts or liabilities of the business trust.
2. Except as otherwise provided in the certificate of trust or the
governing instrument, a trustee acting in that capacity is not personally
liable to any person other than the business trust or a beneficial owner
for any act or omission of the business trust or a trustee thereof.
3. Except as otherwise provided in the certificate of trust or the
governing instrument, an officer, employee, agent or manager of a
business trust or another person who manages the business and affairs of
a business trust, acting in that capacity, is not personally liable to
any person other than the business trust or a beneficial owner for any
act or omission of the business trust or a trustee thereof.
4. Except as otherwise provided in the certificate of trust or the
governing instrument, a trustee, officer, employee, agent or manager of a
business trust or another person who manages the business and affairs of
a business trust is not personally liable to the business trust or a
beneficial owner for damages for breach of fiduciary duty in such
capacity except for acts or omissions that involve intentional
misconduct, fraud or a knowing violation of law.
(Added to NRS by 1999, 1572 )
1. Subject to the standards and restrictions, if any, set forth in
the certificate of trust or the governing instrument, a business trust
may indemnify and hold harmless a trustee, beneficial owner or other
person from and against all claims and demands.
2. The absence of a provision for indemnity in the certificate of
trust or governing instrument does not deprive a trustee or beneficial
owner of any right to indemnity which is otherwise available to him
pursuant to the laws of this State.
(Added to NRS by 1999, 1572 )
1. A beneficial owner may maintain an action in the right of a
business trust to recover a judgment in its favor if trustees having
authority to do so have refused to bring the action or if an effort to
cause those trustees to bring the action is unlikely to succeed.
2. In a derivative action, the plaintiff must be a beneficial
owner at the time of bringing the action and:
(a) He must have been a beneficial owner at the time of the
transaction of which he complains; or
(b) His status as a beneficial owner must have devolved upon him by
operation of law or pursuant to a provision of the certificate of trust
or the governing instrument from a person who was a beneficial owner at
the time of the transaction.
3. In a derivative action, the complaint must state with
particularity the effort, if any, of the plaintiff to cause the trustees
to bring the act, or the reasons for not making the effort.
4. If a derivative action is successful, in whole or in part, or
if anything is received by the business trust through judgment or
settlement of the action, the court may award the plaintiff reasonable
expenses, including attorney’s fees. If the plaintiff receives any
proceeds of judgment or settlement, the court shall make the award of his
expenses payable from those proceeds and remit the remainder to the
business trust. If the proceeds received by the plaintiff are less than
the expenses awarded, the court may direct all or part of the remainder
of the award to be paid by the business trust.
5. A beneficial owner’s right to bring a derivative action may be
subject to additional standards and restrictions set forth in the
governing instrument, including, without limitation, a requirement that
beneficial owners of a specified beneficial interest join in the action.
(Added to NRS by 1999, 1573 )
A certificate of trust must be cancelled upon the completion
or winding up of the business trust and its termination. A certificate of
cancellation must be signed by a trustee, filed with the Secretary of
State, and set forth:
1. The name of the business trust;
2. The effective date of the cancellation if other than the date
of the filing of the certificate, which must not be more than 90 days
after the certificate is filed; and
3. Any other information the trustee determines to include.
(Added to NRS by 1999, 1573 ; A 2003, 20th Special Session, 105 ; 2005, 2200 )
RESIDENT AGENT
1. Except during any period of vacancy described in NRS 88A.530
, a business trust shall have a
resident agent who resides or is located in this State. A resident agent
shall have a street address for the service of process and may have a
mailing address such as a post office box, which may be different from
the street address.
2. A business trust formed pursuant to this chapter that fails or
refuses to comply with the requirements of this section is subject to a
fine of not less than $100 nor more than $500, to be recovered with costs
by the State, before any court of competent jurisdiction, by action at
law prosecuted by the Attorney General or by the district attorney of the
county in which the action or proceeding to recover the fine is
prosecuted.
(Added to NRS by 1999, 1565 )
1. Within 30 days after changing the location of his office from
one address to another in this State, a resident agent shall sign a
certificate setting forth:
(a) The names of all the business trusts represented by him;
(b) The address at which he has maintained the registered office
for each of those business trusts; and
(c) The new address to which his office is transferred and at which
he will maintain the registered office for each of those business trusts.
2. Upon the filing of the certificate with the Secretary of State,
the registered office of each of the business trusts listed in the
certificate is located at the new address set forth in the certificate.
(Added to NRS by 1999, 1565 ; A 2003, 3156 )
1. If the resident agent is a bank or an artificial person formed
or organized pursuant to this title, it may:
(a) Act as the fiscal or transfer agent of a state, municipality,
body politic or business trust, and in that capacity may receive and
disburse money.
(b) Transfer, register and countersign certificates evidencing a
beneficial owner’s interest in a business trust, bonds or other evidences
of indebtedness and act as agent of any business trust, foreign or
domestic, for any purpose required by statute or otherwise.
2. All legal process and any demand or notice authorized by law to
be served upon a business trust may be served upon its resident agent in
the manner provided in subsection 2 of NRS 14.020 . If a demand, notice or legal process, other
than a summons and complaint, cannot be served upon the resident agent,
it may be served in the manner provided in NRS 14.030 . These manners of service are in addition to
any other service authorized by law.
(Added to NRS by 1999, 1565 )
1. A resident agent who desires to resign shall:
(a) File with the Secretary of State a signed statement in the
manner provided pursuant to subsection 1 of NRS 78.097 that he is unwilling to continue to act as the
resident agent of the business trust for the service of process; and
(b) Pay to the Secretary of State the filing fee set forth in
subsection 1 of NRS 78.097 .
Ê A resignation is not effective until the signed statement is filed with
the Secretary of State.
2. The statement of resignation may contain a statement of the
affected business trust appointing a successor resident agent. A
certificate of acceptance signed by the new resident agent, stating the
full name, complete street address and, if different from the street
address, mailing address of the new resident agent, must accompany the
statement appointing a successor resident agent.
3. Upon the filing of the statement of resignation with the
Secretary of State, the capacity of the resigning person as resident
agent terminates. If the statement of resignation contains no statement
by the business trust appointing a successor resident agent, the
resigning agent shall immediately give written notice, by mail, to the
business trust of the filing of the statement of resignation and its
effect. The notice must be addressed to a trustee of the business trust
other than the resident agent.
4. If its resident agent dies, resigns or removes from the State,
a business trust, within 30 days thereafter, shall file with the
Secretary of State a certificate of acceptance signed by a new resident
agent. The certificate must set forth the full name and complete street
address of the new resident agent, and may contain a mailing address,
such as a post office box, different from the street address.
5. A business trust that fails to file a certificate of acceptance
signed by its new resident agent within 30 days after the death,
resignation or removal of its former resident agent shall be deemed in
default and is subject to the provisions of NRS 88A.630 to 88A.660 , inclusive.
(Added to NRS by 1999, 1566 ; A 2003, 3157 ; 2003, 20th Special Session, 105 )
1. If a business trust formed pursuant to this chapter desires to
change its resident agent, the change may be effected by filing with the
Secretary of State a certificate of change of resident agent, signed by
at least one trustee of the business trust, setting forth:
(a) The name of the business trust;
(b) The name and street address of the present resident agent; and
(c) The name and street address of the new resident agent.
2. A certificate of acceptance signed by the new resident agent
must be a part of or attached to the certificate of change of resident
agent.
3. If the name of a resident agent is changed as a result of a
merger, conversion, exchange, sale, reorganization or amendment, the
resident agent shall:
(a) File with the Secretary of State a certificate of name change
of resident agent that includes:
(1) The current name of the resident agent as filed with the
Secretary of State;
(2) The new name of the resident agent; and
(3) The name and file number of each artificial person
formed, organized, registered or qualified pursuant to the provisions of
this title that the resident agent represents; and
(b) Pay to the Secretary of State a filing fee of $100.
4. A change authorized by this section becomes effective upon the
filing of the proper certificate of change.
(Added to NRS by 1999, 1566 ; A 2003, 3157 ; 2003, 20th Special Session, 106 )
ANNUAL LIST; DEFAULTING TRUSTS
1. A business trust formed pursuant to this chapter shall, on or
before the last day of the first month after the filing of its
certificate of trust with the Secretary of State, and annually thereafter
on or before the last day of the month in which the anniversary date of
the filing of its certificate of trust with the Secretary of State
occurs, file with the Secretary of State, on a form furnished by him, a
list signed by at least one trustee that contains the name and street
address of its lawfully designated resident agent in this State and at
least one trustee. Each list filed pursuant to this subsection must be
accompanied by a declaration under penalty of perjury that the business
trust:
(a) Has complied with the provisions of NRS 360.780 ; and
(b) Acknowledges that pursuant to NRS 239.330 , it is a category C felony to knowingly offer
any false or forged instrument for filing in the Office of the Secretary
of State.
2. Upon filing:
(a) The initial list required by subsection 1, the business trust
shall pay to the Secretary of State a fee of $125.
(b) Each annual list required by subsection 1, the business trust
shall pay to the Secretary of State a fee of $125.
3. If a trustee of a business trust resigns and the resignation is
not reflected on the annual or amended list of trustees, the business
trust or the resigning trustee shall pay to the Secretary of State a fee
of $75 to file the resignation.
4. The Secretary of State shall, 90 days before the last day for
filing each annual list required by subsection 1, cause to be mailed to
each business trust which is required to comply with the provisions of
NRS 88A.600 to 88A.660 , inclusive, and which has not become
delinquent, the blank forms to be completed and filed with him. Failure
of a business trust to receive the forms does not excuse it from the
penalty imposed by law.
5. An annual list for a business trust not in default which is
received by the Secretary of State more than 90 days before its due date
shall be deemed an amended list for the previous year.
(Added to NRS by 1999, 1567 ; A 2001, 3188 ; 2003, 20th Special Session, 106 , 187 ; 2005, 2268 )
When the fee for filing the annual list has been paid, the cancelled
check or other proof of payment received by the business trust
constitutes a certificate authorizing it to transact its business within
this State until the last day of the month in which the anniversary of
the filing of its certificate of trust occurs in the next succeeding
calendar year.
(Added to NRS by 1999, 1567 ; A 2003, 20th Special Session, 107 )
1. Each list required to be filed pursuant to the provisions of
NRS 88A.600 to 88A.660 , inclusive, must, after the name of each
trustee listed thereon, set forth his address, either residence or
business.
2. If the addresses are not stated on a list offered for filing,
the Secretary of State may refuse to file the list, and the business
trust for which the list has been offered for filing is subject to all
the provisions of NRS 88A.600 to
88A.660 , inclusive, relating to
failure to file the list when or at the times therein specified, unless a
list is subsequently submitted for filing which conforms to the
provisions of those sections.
(Added to NRS by 1999, 1568 ; A 2003, 3157 ; 2003, 20th Special Session, 107 )
1. Each business trust required to file the list and pay the fee
prescribed in NRS 88A.600 to 88A.660
, inclusive, which refuses or neglects
to do so within the time provided shall be deemed in default.
2. For default, there must be added to the amount of the fee a
penalty of $75. The fee and penalty must be collected as provided in this
chapter.
(Added to NRS by 1999, 1568 ; A 2001, 3189 ; 2003, 20th Special Session, 107 )
1. The Secretary of State shall notify, by providing written
notice to its resident agent, each business trust deemed in default
pursuant to the provisions of this chapter. The written notice:
(a) Must include a statement indicating the amount of the filing
fee, penalties incurred and costs remaining unpaid.
(b) At the request of the resident agent, may be provided
electronically.
2. Immediately after the first day of the first anniversary of the
month following the month in which the filing was required, the
certificate of trust of the business trust is revoked and its right to
transact business is forfeited.
3. The Secretary of State shall compile a complete list containing
the names of all business trusts whose right to transact business has
been forfeited.
4. The Secretary of State shall forthwith notify, by providing
written notice to its resident agent, each business trust specified in
subsection 3 of the revocation of its certificate of trust. The written
notice:
(a) Must include a statement indicating the amount of the filing
fee, penalties incurred and costs remaining unpaid.
(b) At the request of the resident agent, may be provided
electronically.
5. If the certificate of trust is revoked and the right to
transact business is forfeited, all the property and assets of the
defaulting business trust must be held in trust by its trustees as for
insolvent business trusts, and the same proceedings may be had with
respect thereto as are applicable to insolvent business trusts. Any
person interested may institute proceedings at any time after a
forfeiture has been declared, but, if the Secretary of State reinstates
the certificate of trust, the proceedings must at once be dismissed.
(Added to NRS by 1999, 1568 ; A 2001, 1402 , 3199 ; 2003, 48 ; 2003, 20th Special Session, 108 )
1. Except as otherwise provided in subsections 3 and 4, the
Secretary of State shall reinstate a business trust which has forfeited
or which forfeits its right to transact business pursuant to the
provisions of this chapter and shall restore to the business trust its
right to carry on business in this State, and to exercise its privileges
and immunities, if it:
(a) Files with the Secretary of State:
(1) The list required by NRS 88A.600 ; and
(2) A certificate of acceptance of appointment signed by its
resident agent; and
(b) Pays to the Secretary of State:
(1) The filing fee and penalty set forth in NRS 88A.600
and 88A.630 for each year or portion thereof during
which its certificate of trust was revoked; and
(2) A fee of $300 for reinstatement.
2. When the Secretary of State reinstates the business trust, he
shall issue to the business trust a certificate of reinstatement if the
business trust:
(a) Requests a certificate of reinstatement; and
(b) Pays the required fees pursuant to NRS 88A.900 .
3. The Secretary of State shall not order a reinstatement unless
all delinquent fees and penalties have been paid, and the revocation of
the certificate of trust occurred only by reason of the failure to file
the list or pay the fees and penalties.
4. If a certificate of business trust has been revoked pursuant to
the provisions of this chapter and has remained revoked for a period of 5
consecutive years, the certificate must not be reinstated.
(Added to NRS by 1999, 1568 ; A 2001, 3189 ; 2003, 20th Special Session, 108 )
1. Except as otherwise provided in subsection 2, if a certificate
of trust is revoked pursuant to the provisions of this chapter and the
name of the business trust has been legally reserved or acquired by
another artificial person formed, organized, registered or qualified
pursuant to the provisions of this title whose name is on file with the
Office of the Secretary of State or reserved in the Office of the
Secretary of State pursuant to the provisions of this title, the business
trust shall submit in writing to the Secretary of State some other name
under which it desires to be reinstated. If that name is distinguishable
from all other names reserved or otherwise on file, the Secretary of
State shall reinstate the business trust under that new name.
2. If the defaulting business trust submits the written,
acknowledged consent of the artificial person using a name, or the person
who has reserved a name, which is not distinguishable from the old name
of the business trust or a new name it has submitted, it may be
reinstated under that name.
(Added to NRS by 1999, 1569 ; A 2003, 20th Special Session, 109 )
FOREIGN BUSINESS TRUSTS
Subject to the Constitution of this State:
1. The laws of the state under which a foreign business trust is
organized govern its organization and internal affairs and the liability
of its beneficial owners, trustees, officers, employees or managers; and
2. A foreign business trust may not be denied registration by
reason of any difference between those laws and the laws of this State.
(Added to NRS by 1999, 1574 )
Before transacting business in this State,
a foreign business trust shall register with the Secretary of State. In
order to register, a foreign business trust shall submit to the Secretary
of State an application for registration as a foreign business trust,
signed by a trustee, and a signed certificate of acceptance of a resident
agent. The application for registration must set forth:
1. The name of the foreign business trust and, if different, the
name under which it proposes to register and transact business in this
State;
2. The state and date of its formation;
3. The name and address of the resident agent whom the foreign
business trust elects to appoint;
4. The address of the office required to be maintained in the
state of its organization by the laws of that state or, if not so
required, of the principal office of the foreign business trust; and
5. The name and address, either residence or business, of one
trustee.
(Added to NRS by 1999, 1574 ; A 2003, 20th Special Session, 109 )
If the Secretary of State finds that an application for
registration conforms to law and all requisite fees have been paid, he
shall issue a certificate of registration to transact business in this
State and mail it to the person who filed the application or his
representative.
(Added to NRS by 1999, 1575 )
A foreign business trust may
register with the Secretary of State under any name, whether or not it is
the name under which it is registered in its state of organization, which
includes the words “Business Trust” or the abbreviation “B.T.” or “BT”
and which could be registered by a domestic business trust.
(Added to NRS by 1999, 1575 )
1. Each foreign business trust doing business in this State shall,
on or before the last day of the first month after the filing of its
application for registration as a foreign business trust with the
Secretary of State, and annually thereafter on or before the last day of
the month in which the anniversary date of its qualification to do
business in this State occurs in each year, file with the Secretary of
State a list, on a form furnished by him, that contains:
(a) The name of the foreign business trust;
(b) The file number of the foreign business trust, if known;
(c) The name of at least one of its trustees;
(d) The address, either residence or business, of the trustee
listed pursuant to paragraph (c);
(e) The name and street address of its lawfully designated resident
agent in this State; and
(f) The signature of a trustee of the foreign business trust
certifying that the list is true, complete and accurate.
2. Each list required to be filed pursuant to this section must be
accompanied by a declaration under penalty of perjury that the foreign
business trust:
(a) Has complied with the provisions of NRS 360.780 ; and
(b) Acknowledges that pursuant to NRS 239.330 it is a category C felony to knowingly offer
any false or forged instrument for filing in the Office of the Secretary
of State.
3. Upon filing:
(a) The initial list required by this section, the foreign business
trust shall pay to the Secretary of State a fee of $125.
(b) Each annual list required by this section, the foreign business
trust shall pay to the Secretary of State a fee of $125.
4. If a trustee of a foreign business trust resigns and the
resignation is not reflected on the annual or amended list of trustees,
the foreign business trust or the resigning trustee shall pay to the
Secretary of State a fee of $75 to file the resignation.
5. The Secretary of State shall, 90 days before the last day for
filing each annual list required by subsection 1, cause to be mailed to
each foreign business trust which is required to comply with the
provisions of NRS 88A.732 to 88A.738
, inclusive, and which has not become
delinquent, the blank forms to be completed and filed with him. Failure
of any foreign business trust to receive the forms does not excuse it
from the penalty imposed by the provisions of NRS 88A.732 to 88A.738 , inclusive.
6. If the list to be filed pursuant to the provisions of
subsection 1 is defective or the fee required by subsection 3 is not
paid, the Secretary of State may return the list for correction or
payment.
7. An annual list for a foreign business trust not in default
which is received by the Secretary of State more than 90 days before its
due date must be deemed an amended list for the previous year and does
not satisfy the requirements of subsection 1 for the year to which the
due date is applicable.
(Added to NRS by 2003, 20th Special Session, 102 ; A 2005, 2269 )
If
a foreign business trust has filed the initial or annual list in
compliance with NRS 88A.732 and has
paid the appropriate fee for the filing, the cancelled check or other
proof of payment received by the foreign business trust constitutes a
certificate authorizing it to transact its business within this State
until the last day of the month in which the anniversary of its
qualification to transact business occurs in the next succeeding calendar
year.
(Added to NRS by 2003, 20th Special Session, 103 )
1. Each list required to be filed under the provisions of NRS
88A.732 to 88A.738 , inclusive, must, after the name of each
trustee listed thereon, set forth the address, either residence or
business, of each trustee.
2. If the addresses are not stated for each person on any list
offered for filing, the Secretary of State may refuse to file the list,
and the foreign business trust for which the list has been offered for
filing is subject to all the provisions of NRS 88A.732 to 88A.738 , inclusive, relating to failure to file the
list within or at the times therein specified, unless a list is
subsequently submitted for filing which conforms to the provisions of
this section.
(Added to NRS by 2003, 20th Special Session, 103 )
1. Each foreign business trust which is required to make a filing
and pay the fee prescribed in NRS 88A.732 to 88A.738 , inclusive, and which refuses or neglects to
do so within the time provided is in default.
2. For default there must be added to the amount of the fee a
penalty of $75, and unless the filing is made and the fee and penalty are
paid on or before the last day of the month in which the anniversary date
of the foreign business trust occurs, the defaulting foreign business
trust by reason of its default forfeits its right to transact any
business within this State. The fee and penalty must be collected as
provided in this chapter.
(Added to NRS by 2003, 20th Special Session, 103 )
1. The Secretary of State shall notify, by providing written
notice to its resident agent, each foreign business trust deemed in
default pursuant to NRS 88A.735 . The
written notice:
(a) Must include a statement indicating the amount of the filing
fee, penalties incurred and costs remaining unpaid.
(b) At the request of the resident agent, may be provided
electronically.
2. Immediately after the last day of the month in which the
anniversary date of the filing of the certificate of trust occurs, the
Secretary of State shall compile a complete list containing the names of
all foreign business trusts whose right to transact business has been
forfeited.
3. The Secretary of State shall notify, by providing written
notice to its resident agent, each foreign business trust specified in
subsection 2 of the forfeiture of its right to transact business. The
written notice:
(a) Must include a statement indicating the amount of the filing
fee, penalties incurred and costs remaining unpaid.
(b) At the request of the resident agent, may be provided
electronically.
(Added to NRS by 2003, 20th Special Session, 103 )
1. Except as otherwise provided in subsections 3 and 4, the
Secretary of State shall reinstate a foreign business trust which has
forfeited or which forfeits its right to transact business under the
provisions of this chapter and shall restore to the foreign business
trust its right to transact business in this State, and to exercise its
privileges and immunities, if it:
(a) Files with the Secretary of State:
(1) The list required by NRS 88A.732 ; and
(2) A certificate of acceptance of appointment signed by its
resident agent; and
(b) Pays to the Secretary of State:
(1) The filing fee and penalty set forth in NRS 88A.732
and 88A.735 for each year or portion thereof that its
right to transact business was forfeited; and
(2) A fee of $300 for reinstatement.
2. When the Secretary of State reinstates the foreign business
trust, he shall issue to the foreign business trust a certificate of
reinstatement if the foreign business trust:
(a) Requests a certificate of reinstatement; and
(b) Pays the required fees pursuant to NRS 88A.900 .
3. The Secretary of State shall not order a reinstatement unless
all delinquent fees and penalties have been paid and the revocation of
the right to transact business occurred only by reason of failure to pay
the fees and penalties.
4. If the right of a foreign business trust to transact business
in this State has been forfeited pursuant to the provisions of this
chapter and has remained forfeited for a period of 5 consecutive years,
the right to transact business must not be reinstated.
(Added to NRS by 2003, 20th Special Session, 104 )
1. Except as otherwise provided in subsection 2, if a foreign
business trust applies to reinstate its certificate of trust and its name
has been legally reserved or acquired by another artificial person
formed, organized, registered or qualified pursuant to the provisions of
this title whose name is on file with the Office of the Secretary of
State or reserved in the Office of the Secretary of State pursuant to the
provisions of this title, the foreign business trust must submit in
writing in its application for reinstatement to the Secretary of State
some other name under which it desires its existence to be reinstated. If
that name is distinguishable from all other names reserved or otherwise
on file, the Secretary of State shall reinstate the foreign business
trust under that new name.
2. If the applying foreign business trust submits the written,
acknowledged consent of the artificial person having a name, or the
person who has reserved a name, which is not distinguishable from the old
name of the applying foreign business trust or a new name it has
submitted, it may be reinstated under that name.
3. For the purposes of this section, a proposed name is not
distinguishable from a name on file or reserved solely because one or the
other contains distinctive lettering, a distinctive mark, a trademark or
a trade name, or any combination thereof.
4. The Secretary of State may adopt regulations that interpret the
requirements of this section.
(Added to NRS by 2003, 20th Special Session, 104 )
A foreign business
trust may cancel its registration by filing with the Secretary of State a
certificate of cancellation signed by a trustee. The certificate must set
forth:
1. The name of the foreign business trust;
2. The effective date of the cancellation if other than the date
of the filing of the certificate, which must not be more than 90 days
after the certificate is filed; and
3. Any other information deemed necessary by the trustee.
Ê A cancellation does not terminate the authority of the Secretary of
State to accept service of process on the foreign business trust with
respect to causes of action arising out of the transaction of business in
this State.
(Added to NRS by 1999, 1575 ; A 2003, 20th Special Session, 109 ; 2005, 2200 )
1. A foreign business trust transacting business in this State may
not maintain any action, suit or proceeding in any court of this State
until it has registered in this State.
2. The failure of a foreign business trust to register in this
State does not impair the validity of any contract or act of the foreign
business trust or prevent the foreign business trust from defending any
action, suit or proceeding in any court of this State.
3. A foreign business trust, by transacting business in this State
without registration, appoints the Secretary of State as its agent for
service of process with respect to causes of action arising out of the
transaction of business in this State.
(Added to NRS by 1999, 1575 )
MISCELLANEOUS PROVISIONS
1. Each record filed with the Secretary of State pursuant to this
chapter must be on or accompanied by a form prescribed by the Secretary
of State.
2. The Secretary of State may refuse to file a record which does
not comply with subsection 1 or which does not contain all of the
information required by statute for filing the record.
3. If the provisions of the form prescribed by the Secretary of
State conflict with the provisions of any record that is submitted for
filing with the form:
(a) The provisions of the form control for all purposes with
respect to the information that is required by statute to appear in the
record in order for the record to be filed; and
(b) Unless otherwise provided in the record, the provisions of the
record control in every other situation.
4. The Secretary of State may by regulation provide for the
electronic filing of records with the Office of the Secretary of State.
(Added to NRS by 2003, 20th Special Session, 102 )
The Secretary of State shall charge and collect
the following fees for:
1. Filing an original certificate of trust, or for registering a
foreign business trust, $75.
2. Filing an amendment or restatement, or a combination thereof,
to a certificate of trust, $175.
3. Filing a certificate of cancellation, $75.
4. Certifying a copy of a certificate of trust or an amendment or
restatement, or a combination thereof, $30 per certification.
5. Certifying an authorized printed copy of this chapter, $30.
6. Reserving a name for a business trust, $25.
7. Signing a certificate of existence of a business trust which
does not list the previous records relating to it, or a certificate of
change in the name of a business trust, $50.
8. Signing a certificate of existence of a business trust which
lists the previous records relating to it, $50.
9. Filing a statement of change of the resident agent, $60.
10. Signing, certifying or filing any certificate or record not
otherwise provided for in this section, $50.
11. Examining and provisionally approving a record before the
record is presented for filing, $125.
12. Copying a record on file with him, for each page, $2.
(Added to NRS by 1999, 1574 ; A 2001, 1402 , 3189 , 3199 ; 2003, 3158 ; 2003, 20th Special Session, 110 )
A record may be
filed by telecopy, facsimile or similar electronic transmission, but the
Secretary of State need not accept any record that is illegible or
otherwise unsuitable for the procedures of his office.
(Added to NRS by 1999, 1564 ; A 2003, 3158 )
A trustee of a business trust may
authorize the Secretary of State in writing to replace any page of a
record submitted for filing on an expedited basis, before the actual
filing, and to accept the page as if it were part of the original record.
(Added to NRS by 2001, 1401 ; A 2001, 3199 ; 2003, 3158 )
1. A business trust may correct a record filed in the Office of
the Secretary of State with respect to the business trust if the record
contains an inaccurate description of a trust action or if the record was
defectively signed, attested, sealed, verified or acknowledged.
2. To correct a record, the business trust must:
(a) Prepare a certificate of correction that:
(1) States the name of the business trust;
(2) Describes the record, including, without limitation, its
filing date;
(3) Specifies the inaccuracy or defect;
(4) Sets forth the inaccurate or defective portion of the
record in an accurate or corrected form; and
(5) Is signed by a trustee of the business trust.
(b) Deliver the certificate to the Secretary of State for filing.
(c) Pay a filing fee of $175 to the Secretary of State.
3. A certificate of correction is effective on the effective date
of the record it corrects except as to persons relying on the uncorrected
record and adversely affected by the correction. As to those persons, the
certificate is effective when filed.
(Added to NRS by 2001, 1401 ; A 2001, 3199 ; 2003, 3158 ; 2003, 20th Special Session, 110 )
