Guggenheim
ACTIVE ALLOCATION Fund
AMENDED
AND RESTATED Agreement and Declaration of Trust
Dated as of February
29, 2024
Table
of Contents
|
|
Page |
ARTICLE I The
Trust |
1 |
1.1. |
Name |
1 |
1.2. |
Definitions |
1 |
ARTICLE II Trustees |
3 |
2.1. |
Number and Qualification |
3 |
2.2. |
Term and Election |
3 |
2.3. |
Resignation and Removal |
4 |
2.4. |
Vacancies |
4 |
2.5. |
Meetings |
4 |
2.6. |
Trustee Action by Written Consent |
5 |
2.7. |
Officers and Chairman |
5 |
ARTICLE III
Powers and Duties of Trustees |
5 |
3.1. |
General |
5 |
3.2. |
Investments |
6 |
3.3. |
Legal Title |
6 |
3.4. |
Issuance and Repurchase of Shares |
6 |
3.5. |
Borrow Money or Utilize Leverage |
7 |
3.6. |
Delegation; Committees |
7 |
3.7. |
Collection and Payment |
7 |
3.8. |
Expenses |
7 |
3.9. |
By-Laws |
7 |
3.10. |
Miscellaneous Powers |
7 |
3.11. |
Further Powers |
8 |
ARTICLE IV Advisory,
Management and Distribution Arrangements |
8 |
4.1. |
Advisory and Management Arrangements |
8 |
4.2. |
Distribution Arrangements |
9 |
4.3. |
Parties to Contract |
9 |
ARTICLE V Limitations
of Liability and Indemnification |
9 |
5.1. |
No Personal Liability of Shareholders, Trustees, etc |
9 |
5.2. |
Mandatory Indemnification. |
10 |
5.3. |
No Bond Required of Trustees |
11 |
5.4. |
No Duty of Investigation; Notice in Trust Instruments,
etc |
11 |
5.5. |
Trustee’s Good Faith Action, Reliance on Experts,
etc |
11 |
ARTICLE VI Shares
of Beneficial Interest |
12 |
6.1. |
Beneficial Interest |
12 |
6.2. |
Other Securities |
12 |
6.3. |
Rights of Shareholders |
13 |
6.4. |
Trust Only |
13 |
Table
of Contents
(continued)
|
|
Page |
6.5. |
Issuance of Shares |
13 |
6.6. |
Register of Shares |
13 |
6.7. |
Transfer Agent and Registrar |
14 |
6.8. |
Transfer of Shares |
14 |
6.9. |
Notices |
14 |
ARTICLE VII
Custodians |
14 |
7.1. |
Appointment and Duties |
14 |
7.2. |
Central Certificate System |
15 |
ARTICLE VIII
Redemption |
15 |
8.1. |
Redemptions |
15 |
8.2. |
Disclosure of Holding |
15 |
ARTICLE IX Determination
of Net Asset Value; Net Income; Distributions |
16 |
9.1. |
Net Asset Value |
16 |
9.2. |
Distributions to Shareholders. |
16 |
9.3. |
Power to Modify Foregoing Procedures |
16 |
ARTICLE X Shareholders |
17 |
10.1. |
Meetings of Shareholders |
17 |
10.2. |
Voting |
17 |
10.3. |
Notice of Meeting and Record Date |
17 |
10.4. |
Quorum and Required Vote. |
18 |
10.5. |
Proxies, etc |
18 |
10.6. |
Reports |
18 |
10.7. |
Inspection of Records |
19 |
10.8. |
Shareholder Action by Written Consent |
19 |
ARTICLE
XI LIMITED TERM OF EXISTENCE; Termination of Trust; Amendment; Mergers, Etc. |
19 |
11.1. |
Limited Term of Existence |
19 |
11.2. |
Amendment Procedure. |
21 |
11.3. |
Merger, Consolidation and Sale of Assets |
22 |
11.4. |
Subsidiaries |
22 |
11.5. |
Conversion |
22 |
11.6. |
Certain Transactions. |
22 |
ARTICLE XII
Miscellaneous |
24 |
12.1. |
Filing. |
24 |
12.2. |
Resident Agent |
24 |
12.3. |
Derivative Actions |
24 |
12.4. |
Governing Law |
26 |
Table
of Contents
(continued)
|
|
Page |
12.5. |
Choice of Forum |
26 |
12.6. |
Counterparts |
26 |
12.7. |
Reliance by Third Parties |
27 |
12.8. |
Provisions in Conflict with Law or Regulation. |
27 |
GUGGENHEIM
ACTIVE ALLOCATION FUND
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
AMENDED
AND RESTATED AGREEMENT AND DECLARATION OF TRUST made as of the 29th day of February, 2024, by the Trustees hereunder, and by the holders
of shares of beneficial interest issued hereunder as hereinafter provided.
WHEREAS,
this Trust has been formed to carry on business as set forth more particularly hereinafter;
WHEREAS,
this Trust is authorized to issue an unlimited number of its shares of beneficial interest all in accordance with the provisions hereinafter
set forth;
WHEREAS,
the Trustees have agreed to manage all property coming into their hands as Trustees of a Delaware statutory trust in accordance with
the provisions hereinafter set forth;
WHEREAS,
the Trust was created by the Certificate of Trust filed with the Secretary of State of the State of Delaware on May 20, 2021, and is
a statutory trust under the Delaware Statutory Trust Act.
NOW,
THEREFORE, the Trustees hereby declare that they will hold all cash, securities, and other assets that the Trust now possesses or may
hereafter acquire from time to time in any manner and manage and dispose of the same upon the following terms and conditions.
ARTICLE
I
The
Trust
1.1. Name.
This Trust shall be known as the “Guggenheim Active Allocation Fund” and the Trustees shall conduct the business of the Trust
under that name or any other name or names as they may from time to time determine.
1.2. Definitions.
As used in this Declaration, the following terms shall have the following meanings:
The
“1940 Act” refers to the Investment Company Act of 1940 and the rules and regulations promulgated thereunder and exemptions
granted therefrom, as amended from time to time.
The
terms “Affiliated Person”, “Assignment”, “Commission”, “Interested Person” and “Principal
Underwriter” shall have the meanings given them in the 1940 Act.
“By-Laws”
shall mean the By-Laws of the Trust as amended from time to time by the Trustees.
“Code”
shall mean the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
“Commission”
shall mean the Securities and Exchange Commission.
“Continuing
Trustee” means a Trustee who either (a) has been a member of the Board of Trustees for a period of at least thirty-six months (or
since the commencement of the Trust’s operations, if fewer than thirty-six months) or (b) was nominated to serve as a member of
the Board of Trustees, or designated as a Continuing Trustee, by a majority of the Continuing Trustees then members of the Board of Trustees.
“Declaration”
shall mean this Amended and Restated Agreement and Declaration of Trust, as amended, supplemented or amended and restated from time to
time.
“Delaware
Statutory Trust Statute” shall mean the provisions of the Delaware Statutory Trust Act, 12 Del. C.ss.3801, et. seq., as such Act
may be amended from time to time.
“Delaware
General Corporation Law” means the Delaware General Corporation Law, 8 Del. C.ss.100, et. seq., as amended from time to time.
“Fundamental
Policies” shall mean the investment policies and restrictions as set forth from time to time in any Registration Statement of the
Trust filed with the Commission and designated as fundamental policies therein or as otherwise adopted by the Trustees and the Shareholders
in accordance with the requirements of the 1940 Act, as they may be amended from time to time in accordance with the requirements of
the 1940 Act.
“Majority
Shareholder Vote” shall mean a vote of “a majority of the outstanding voting securities” (as such term is defined in
the 1940 Act) of the Trust with each class and series of Shares voting together as a single class, except to the extent otherwise required
by the 1940 Act or this Declaration with respect to any one or more classes or series of Shares, in which case the applicable proportion
of such classes or series of Shares voting as a separate class or series, as the case may be, also will be required.
“Person”
shall mean and include individuals, corporations, partnerships, trusts, limited liability companies, associations, joint ventures and
other entities, whether or not legal entities, and governments, agencies and political subdivisions thereof.
“Prospectus”
shall mean the Prospectus of the Trust, if any, as in effect from time to time under the Securities Act of 1933, as amended.
“Shareholders”
shall mean as of any particular time the holders of record of outstanding Shares of the Trust, at such time.
“Shares”
shall mean the transferable units of beneficial interest into which the beneficial interest in the Trust shall be divided from time to
time and includes fractions of Shares as well as whole Shares. In addition, Shares also means any preferred shares or preferred units
of beneficial interest which may be issued from time to time, as described herein. All references to Shares shall be deemed to be Shares
of any or all series or classes as the context may require.
“Trust”
shall mean the trust established by this Declaration, as amended from time to time, inclusive of each such amendment.
“Trust
Property” shall mean as of any particular time any and all property, real or personal, tangible or intangible, which at such time
is owned or held by or for the account of the Trust or the Trustees in such capacity.
“Trustees”
shall mean the signatories to this Declaration, so long as they shall continue in office in accordance with the terms hereof, and all
other persons who at the time in question have been duly elected or appointed and have qualified as trustees in accordance with the provisions
hereof and are then in office.
ARTICLE
II
Trustees
2.1. Number
and Qualification. Prior to a public offering of Shares there may be a sole Trustee. Thereafter, the number of Trustees shall be
determined by a written instrument signed by a majority of the Trustees then in office, provided that the number of Trustees shall be
no less than two (2) or more than fifteen (15). No reduction in the number of Trustees shall have the effect of removing any Trustee
from office prior to the expiration of his term. An individual nominated as a Trustee shall be at least 21 years of age and not older
than 80 years of age at the time of nomination and not under legal disability. Trustees need not own Shares and may succeed themselves
in office.
2.2. Term
and Election. The Board of Trustees shall be divided into three classes, designated Class I, Class II, and Class III. Each class
shall consist, as nearly as may be possible, of one-third of the total number of trustees constituting the entire Board of Trustees.
Within the limits above specified, the number of the Trustees in each class shall be determined by resolution of the Board of Trustees.
The term of office of the first class shall expire on the date of the first annual meeting of Shareholders or special meeting in lieu
thereof following the effective date of the Registration Statement relating to the Shares under the Securities Act of 1933, as amended.
The term of office of the second class shall expire on the date of the second annual meeting of Shareholders or special meeting in lieu
thereof following the effective date of the Registration Statement relating to the Shares under the Securities Act of 1933, as amended.
The term of office of the third class shall expire on the date of the third annual meeting of Shareholders or special meeting in lieu
thereof following the effective date of the Registration Statement relating to the Shares under the Securities Act of 1933, as amended.
Upon expiration of the term of office of each class as set forth above, the number of Trustees in such class, as determined by the Board
of Trustees, shall be elected for a term expiring on the date of the third annual meeting of Shareholders or special meeting in lieu
thereof following such expiration to succeed the Trustees whose terms of office expire. Except as provided in Section 2.3 of this Article,
the Trustees shall be elected at an annual meeting of the Shareholders or special meeting in lieu thereof called by the Board for that
purpose, and each Trustee elected shall hold office until his or her successor shall have been elected and shall have qualified. The
term of office of a Trustee shall terminate and a vacancy shall occur in the event of the death, resignation, removal, bankruptcy, adjudicated
incompetence or other incapacity to perform the duties of the office, or removal, of a Trustee.
2.3. Resignation
and Removal. Any of the Trustees may resign their trust (without need for prior or subsequent accounting) by an instrument in writing
signed by such Trustee and delivered or mailed to the Trustees or the Chairman, if any, the Chief Executive Officer or the Secretary
and such resignation shall be effective upon such delivery, or at a later date according to the terms of the instrument. Any of the Trustees
may be removed (provided the aggregate number of Trustees after such removal shall not be less than the minimum number required by Section
2.1 hereof) for cause only, and not without cause, and only by action taken by a majority of the remaining Continuing Trustees followed
by the holders of at least seventy-five percent (75%) of the outstanding Shares then entitled to vote in an election of such Trustee.
Upon the resignation or removal of a Trustee, each such resigning or removed Trustee shall execute and deliver such documents as the
remaining Trustees shall require for the purpose of conveying to the Trust or the remaining Trustees any Trust Property held in the name
of such resigning or removed Trustee. Upon the incapacity or death of any Trustee, such Trustee’s legal representative shall execute
and deliver on such Trustee’s behalf such documents as the remaining Trustees shall require as provided in the preceding sentence.
2.4. Vacancies.
Whenever a vacancy in the Board of Trustees shall occur, the remaining Continuing Trustees may fill such vacancy by appointing an individual
having the qualifications described in this Article by a written instrument signed by a majority of the Continuing Trustees then in office
or may leave such vacancy unfilled or may reduce the number of Trustees; provided the aggregate number of Trustees after such reduction
shall not be less than the minimum number required by Section 2.1 hereof; provided, further, that if the Shareholders of any class
or series of Shares are entitled separately to elect one or more Trustees, a majority of the remaining Trustees or the sole remaining
Trustee elected by that class or series may fill any vacancy among the number of Trustees elected by that class or series. Any vacancy
created by an increase in Trustees may be filled by the appointment of an individual having the qualifications described in this Article
made by a written instrument signed by a majority of the Continuing Trustees then in office. No vacancy shall operate to annul this Declaration
or to revoke any existing agency created pursuant to the terms of this Declaration. Whenever a vacancy in the number of Trustees shall
occur, until such vacancy is filled as provided herein, the Trustees in office, regardless of their number, shall have all the powers
granted to the Trustees and shall discharge all the duties imposed upon the Trustees by this Declaration.
2.5. Meetings.
Meetings of the Trustees shall be held from time to time upon the call of the Chairman, if any, or the Chief Executive Officer or any
three Trustees. Regular meetings of the Trustees may be held without call or notice at a time and place fixed by the By-Laws or by resolution
of the Trustees. Notice of any other meeting shall be given by the Secretary and shall be delivered to the Trustees orally not less than
24 hours, or in writing not less than 72 hours, before the meeting, but may be waived in writing by any Trustee either before or after
such meeting. The attendance of a Trustee at a meeting shall constitute a waiver of notice of such meeting except where a Trustee attends
a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting has not been properly
called or convened. Any time there is more than one Trustee, a quorum for all meetings of the Trustees shall be a majority, but not less
than three, of the Trustees. Unless provided otherwise in this Declaration and except as required under the 1940 Act, any action of the
Trustees may be taken at a meeting by vote of a majority of the Trustees present (a quorum being present) or without a meeting by written
consent of a majority of the Trustees.
Any
committee of the Trustees, including an executive committee, if any, may act with or without a meeting. A quorum for all meetings of
any such committee shall be a majority of the members thereof. Unless provided otherwise in this Declaration, any action of any such
committee may be taken at a meeting by vote of a majority of the members present (a quorum being present) or without a meeting by written
consent of all of the members.
With
respect to actions of the Trustees and any committee of the Trustees, Trustees who are Interested Persons in any action to be taken may
be counted for quorum purposes under this Section and shall be entitled to vote to the extent not prohibited by the 1940 Act. For any
committee of the Trustees comprised of one Trustee, a quorum shall be one.
All
or any one or more Trustees may participate in a meeting of the Trustees or any committee thereof by means of a conference telephone
or similar communications equipment by means of which all persons participating in the meeting can hear each other; participation
in a meeting pursuant to any such communications system shall constitute presence in person at such meeting.
2.6. Trustee
Action by Written Consent. Any action which may be taken by Trustees by vote may be taken without a meeting if that number of the
Trustees, or members of a committee, as the case may be, required for approval of such action at a meeting of the Trustees or of such
committee consent to the action in writing and the written consents are filed with the records of the meetings of Trustees. Such consent
shall be treated for all purposes as a vote taken at a meeting of Trustees.
2.7. Officers
and Chairman. The Continuing Trustees shall elect a Chief Executive Officer, a Chief Financial Officer and a Secretary, who shall
serve at the pleasure of the Trustees or until their successors are elected. The Chief Executive Officer and Chief Financial Officer
may, but need not, be a Trustee. The Continuing Trustees may elect a Chairman of the Board, who shall be a Trustee and who shall serve
at the pleasure of the Trustees or until a successor is elected. The Continuing Trustees may elect or appoint or may authorize the Chairman
of the Board, if any, or Chief Executive Officer to appoint such other officers or agents with such powers as the Continuing Trustees
may deem to be advisable. The Chairman is not an officer of the Trust.
ARTICLE
III
Powers
and Duties of Trustees
3.1. General.
Except as required by federal law including the 1940 Act, neither the Trustees nor any officer of the Trust shall owe any fiduciary duty
to the Trust or any series or class or any Shareholder. The Trustees shall have exclusive and absolute control over the Trust Property
and over the business of the Trust to the same extent as if the Trustees were the sole owners of the Trust Property and business in their
own right, but with such powers of delegation as may be permitted by this Declaration. The Trustees may perform such acts as in their
sole discretion are proper for conducting the business of the Trust. Unless another standard is specified herein, in conducting the business
of the Trust and in exercising their rights and powers hereunder, the Trustees may take any actions and make any determinations in their
subjective belief that such actions or determinations are in, or not opposed to, the best interest of the Trust. The Trustees have the
power to construe and interpret this Declaration and to act upon any such construction or interpretation. Any construction or interpretation
of this Declaration by the Trustees and any action taken pursuant thereto and any determination as to what is in the interests of the
Trust and the Shareholders made by the Trustees in good faith shall, in each case, be conclusive and binding on all Shareholders and
all other Persons for all purposes. The enumeration of any specific power herein shall not be construed as limiting the aforesaid power.
Such powers of the Trustees may be exercised without order of or resort to any court.
3.2. Investments.
The Trustees shall have power, subject to the Fundamental Policies in effect from time to time with respect to the Trust, to: (a) manage,
conduct, operate and carry on the business of an investment company; and (b) subscribe for, invest in, reinvest in, purchase or
otherwise acquire, hold, pledge, sell, assign, transfer, exchange, distribute or otherwise deal in or dispose of any and all sorts of
property, tangible or intangible, including but not limited to securities of any type whatsoever, whether equity or non-equity, of any
issuer, evidences of indebtedness of any person and any other rights, interests, instruments or property of any sort and to exercise
any and all rights, powers and privileges of ownership or interest in respect of any and all such investments of every kind and description,
including, without limitation, the right to consent and otherwise act with respect thereto, with power to designate one or more Persons
to exercise any of said rights, powers and privileges in respect of any of said investments. The Trustees shall not be limited by any
law limiting the investments which may be made by fiduciaries.
3.3. Legal Title. Legal title to all the Trust Property shall be vested in the Trustees as joint tenants except that the Trustees shall
have power to cause legal title to any Trust Property to be held by or in the name of one or more of the Trustees, or in the name of
the Trust, or in the name of any other Person as nominee, custodian or pledgee, on such terms as the Trustees may determine, provided
that the interest of the Trust therein is appropriately protected.
The
right, title and interest of the Trustees in the Trust Property shall vest automatically in each person who may hereafter become a Trustee
upon his due election and qualification. Upon the ceasing of any person to be a Trustee for any reason, such person shall automatically
cease to have any right, title or interest in any of the Trust Property, and the right, title and interest of such Trustee in the Trust
Property shall vest automatically in the remaining Trustees. Such vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered.
3.4. Issuance
and Repurchase of Shares. The Trustees shall have the power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold, resell,
reissue, classify and/or reclassify, dispose of, transfer, and otherwise deal in, Shares, including Shares in fractional denominations,
and, subject to the more detailed provisions set forth in Articles VIII and IX, to apply to any such repurchase, redemption, retirement,
cancellation or acquisition of Shares any funds or property whether capital or surplus or otherwise, to the full extent now or hereafter
permitted corporations formed under the Delaware General Corporation Law.
3.5. Borrow
Money or Utilize Leverage. Subject to the Fundamental Policies in effect from time to time with respect to the Trust, the Trustees
shall have the power to borrow money or otherwise obtain credit or utilize leverage to the maximum extent permitted by law or regulation
as such may be needed from time to time and to secure the same by mortgaging, pledging or otherwise subjecting as security the assets
of the Trust, including the lending of portfolio securities, and to endorse, guarantee, or undertake the performance of any obligation,
contract or engagement of any other person, firm, association or corporation.
3.6. Delegation;
Committees. The Trustees shall have the power, consistent with their continuing exclusive authority over the management of the Trust
and the Trust Property, to delegate from time to time to such of their number or to officers, employees or agents of the Trust the doing
of such things, including any matters set forth in this Declaration, and the execution of such instruments either in the name of the
Trust or the names of the Trustees or otherwise as the Trustees may deem to be desirable, expedient or necessary in order to effect the
purpose hereof. The Trustees may, to the extent that they determine it necessary, desirable and appropriate, designate committees with
such powers as the Trustees deem appropriate, each of which shall consist of at least one Trustee, which shall have all or such lesser
portion of the authority of the entire Board of Trustees as the Trustees shall determine from time to time, except to the extent action
by the entire Board of Trustees or particular Trustees is required by the 1940 Act.
3.7. Collection
and Payment. The Trustees shall have the power to collect all property due to the Trust; to pay all claims, including taxes, against
the Trust Property or the Trust, the Trustees or any officer, employee or agent of the Trust; to prosecute, defend, compromise or abandon
any claims relating to the Trust Property or the Trust, or the Trustees or any officer, employee or agent of the Trust; to foreclose
any security interest securing any obligations, by virtue of which any property is owed to the Trust; and to enter into releases, agreements
and other instruments. The Shareholders shall have no power to vote as to whether or not a court action, legal proceeding or claim should
or should not be brought or maintained derivatively or as a class action on behalf of the Trust or the Shareholders.
3.8. Expenses. The Trustees shall have the power to incur and pay out of the assets or income of the Trust any expenses which in the
opinion of the Trustees are necessary or incidental to carry out any of the purposes of this Declaration, and the business of the Trust,
and to pay reasonable compensation from the funds of the Trust to themselves as Trustees. The Trustees shall fix the compensation of
all officers, employees and Trustees. The Trustees may pay themselves such compensation for special services, including legal, underwriting,
syndicating and brokerage services, as they in good faith may deem reasonable reimbursement for expenses reasonably incurred by themselves
on behalf of the Trust.
3.9. By-Laws.
The Trustees shall have the exclusive authority to adopt and from time to time amend or repeal By-Laws for the conduct of the business
of the Trust.
3.10. Miscellaneous Powers. The Trustees shall have the power to: (a) employ or contract with such Persons as the Trustees may deem
desirable for the transaction of the business of the Trust; (b) enter into joint ventures, partnerships and any other combinations or
associations; (c) purchase, and pay for out of Trust Property, insurance policies insuring the Shareholders, Trustees, officers, employees,
agents, investment advisors, distributors, selected dealers or independent contractors of the Trust against all claims arising by reason
of holding any such position or by reason of any action taken or omitted by any such Person in such capacity, whether or not constituting
negligence, or whether or not the Trust would have the power to indemnify such Person against such liability; (d) establish pension,
profit-sharing, share purchase, and other retirement, incentive and benefit plans for any Trustees, officers, employees and agents of
the Trust; (e) make donations, irrespective of any benefit to the Trust, for charitable, religious, educational, scientific, civic or
similar purposes; (f) to the extent permitted by law, indemnify any Person with whom the Trust has dealings, including without limitation
any advisor, administrator, manager, transfer agent, custodian, distributor or selected dealer, or any other person as the Trustees may
see fit to such extent as the Trustees shall determine; (g) guarantee indebtedness or contractual obligations of others; (h) determine
and change the fiscal year of the Trust and the method in which its accounts shall be kept; (i) notwithstanding the Fundamental Policies
of the Trust, convert the Trust to a master-feeder structure; provided, however, the Trust obtains the approval of shareholders holding
at least a majority of the Trust’s Shares present at a meeting of Shareholders at which a quorum is present and (j) adopt a seal
for the Trust, but the absence of such seal shall not impair the validity of any instrument executed on behalf of the Trust.
3.11. Further
Powers. The Trustees shall have the power to conduct the business of the Trust and carry on its operations in any and all of its
branches and maintain offices both within and without the State of Delaware, in any and all states of the United States of America, in
the District of Columbia, and in any and all commonwealths, territories, dependencies, colonies, possessions, agencies or instrumentalities
of the United States of America and of foreign governments, and to do all such other things and execute all such instruments as they
deem necessary, proper or desirable in order to promote the interests of the Trust although such things are not herein specifically mentioned.
Any determination as to what is in the interests of the Trust made by the Trustees in good faith shall be conclusive. In construing the
provisions of this Declaration, the presumption shall be in favor of a grant of power to the Trustees. The Trustees will not be required
to obtain any court order to deal with the Trust Property.
ARTICLE
IV
Advisory, Management and Distribution Arrangements
4.1. Advisory
and Management Arrangements. Subject to the requirements of applicable law as in effect from time to time, the Trustees may in their
discretion from time to time enter into advisory, administration or management contracts (including, in each case, one or more sub-advisory,
sub-administration or sub-management contracts) whereby the other party to any such contract shall undertake to furnish such advisory,
administrative and management services, with respect to the Trust as the Trustees shall from time to time consider desirable and all
upon such terms and conditions as the Trustees may in their discretion determine. Notwithstanding any provisions of this Declaration,
the Trustees may authorize any advisor, administrator or manager (subject to such general or specific instructions as the Trustees may
from time to time adopt) to effect investment transactions with respect to the assets on behalf of the Trust to the full extent of the
power of the Trustees to effect such transactions or may authorize any officer, employee or Trustee to effect such transactions pursuant
to recommendations of any such advisor, administrator or manager (and all without further action by the Trustees). Any such investment
transaction shall be deemed to have been authorized by all of the Trustees.
4.2. Distribution
Arrangements. Subject to compliance with the 1940 Act, the Trustees may retain underwriters, placement agents and/or other distribution
agents to sell Shares or other securities of the Trust. The Trustees may in their discretion from time to time enter into one or more
contracts, providing for the sale of securities of the Trust, whereby the Trust may either agree to sell such securities to the other
party to the contract or appoint such other party its sales agent for such securities. In either case, the contract shall be on such
terms and conditions as the Trustees may in their discretion determine not inconsistent with the provisions of this Article IV or the
By-Laws; and such contract may also provide for the repurchase or sale of securities of the Trust by such other party as principal
or as agent of the Trust and may provide that such other party may enter into selected dealer agreements with registered securities dealers
and brokers and servicing and similar agreements with persons who are not registered securities dealers to further the purposes of the
distribution or repurchase of securities of the Trust.
4.3. Parties
to Contract. Any contract of the character described in Sections 4.1 and 4.2 of this Article IV or in Article VII hereof may be entered
into with any Person, although one or more of the Trustees, officers or employees of the Trust may be an officer, director, trustee,
shareholder, or member of such other party to the contract, and no such contract shall be invalidated or rendered voidable by reason
of the existence of any such relationship, nor shall any Person holding such relationship be liable merely by reason of such relationship
for any loss or expense to the Trust under or by reason of said contract or accountable for any profit realized directly or indirectly
therefrom, provided that the contract when entered into was reasonable and fair and not inconsistent with the provisions of this Article
IV or the By-Laws. The same Person may be the other party to contracts entered into pursuant to Sections 4.1 and 4.2 above or Article
VII, and any individual may be financially interested or otherwise affiliated with Persons who are parties to any or all of the contracts
mentioned in this Section 4.3.
ARTICLE
V
Limitations of Liability and Indemnification
5.1. No
Personal Liability of Shareholders, Trustees, etc. No Shareholder of the Trust shall be subject in such capacity to any personal
liability whatsoever to any Person in connection with Trust Property or the acts, obligations or affairs of the Trust. Shareholders shall
have the same limitation of personal liability as is extended to stockholders of a private corporation for profit incorporated under
the Delaware General Corporation Law. No Trustee or officer of the Trust shall be subject in such capacity to any personal liability
whatsoever to any Person, save only liability to the Trust or its Shareholders for any action or inaction as Trustee hereunder that results
solely from his or her own bad faith, willful misfeasance, gross negligence or reckless disregard for his duty to such Person; and,
subject to the foregoing exception, all such Persons shall look solely to the Trust Property for satisfaction of claims of any nature
arising in connection with the affairs of the Trust. If any Shareholder, Trustee or officer, as such, of the Trust, is made a party to
any suit or proceeding to enforce any such liability, subject to the foregoing exception, he shall not, on account thereof, be held to
any personal liability. Any repeal or modification of this Section 5.1 shall not adversely affect any right or protection of a Trustee
or officer of the Trust existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such
repeal or modification.
5.2. Mandatory
Indemnification.
(a) The
Trust hereby agrees to indemnify each person who at any time serves as a Trustee or officer of the Trust (each such person being an “indemnitee”)
against any liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and
reasonable counsel fees reasonably incurred by such indemnitee in connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before any court or administrative or investigative body in which he may be or may have been involved
as a party or otherwise or with which he may be or may have been threatened, while acting in any capacity set forth in this Article V
by reason of his having acted in any such capacity, except with respect to any matter as to which he shall not have acted in good faith
in the reasonable belief that his action was in the best interest of the Trust or, in the case of any criminal proceeding, as to which
he shall have had reasonable cause to believe that the conduct was unlawful, provided, however, that no indemnitee shall be indemnified
hereunder against any liability to any person or any expense of such indemnitee arising by reason of (i) willful misfeasance, (ii) bad
faith, (iii) gross negligence, or (iv) reckless disregard of the duties involved in the conduct of his position (the conduct referred
to in such clauses (i) through (iv) being sometimes referred to herein as “disabling conduct”). Notwithstanding the foregoing,
with respect to any action, suit or other proceeding voluntarily prosecuted by any indemnitee as plaintiff, indemnification shall be
mandatory only if the prosecution of such action, suit or other proceeding by such indemnitee (1) was authorized by a majority of the
Trustees or (2) was instituted by the indemnitee to enforce his or her rights to indemnification hereunder in a case in which the indemnitee
is found to be entitled to such indemnification. The rights to indemnification set forth in this Declaration shall continue as to a person
who has ceased to be a Trustee or officer of the Trust and shall inure to the benefit of his or her heirs, executors and personal and
legal representatives. No amendment or restatement of this Declaration or repeal of any of its provisions shall limit or eliminate any
of the benefits provided to any person who at any time is or was a Trustee or officer of the Trust or otherwise entitled to indemnification
hereunder in respect of any act or omission that occurred prior to such amendment, restatement or repeal.
(b) Notwithstanding
the foregoing, no indemnification shall be made hereunder unless there has been a determination (i) by a final decision on the merits
by a court or other body of competent jurisdiction before whom the issue of entitlement to indemnification hereunder was brought that
such indemnitee is entitled to indemnification hereunder or, (ii) in the absence of such a decision, by (1) a majority vote of a quorum
of those Trustees who are neither “interested persons” of the Trust (as defined in Section 2(a)(19) of the 1940 Act) nor
parties to the proceeding (“Disinterested Non-Party Trustees”), that the indemnitee is entitled to indemnification hereunder,
or (2) if such quorum is not obtainable or even if obtainable, if such majority so directs, independent legal counsel in a written opinion
concludes that the indemnitee should be entitled to indemnification hereunder. All determinations to make advance payments in connection
with the expense of defending any proceeding shall be authorized and made in accordance with the immediately succeeding paragraph (c)
below.
(c) The
Trust shall make advance payments in connection with the expenses of defending any action with respect to which indemnification might
be sought hereunder if the Trust receives a written affirmation by the indemnitee of the indemnitee’s good faith belief that the
standards of conduct necessary for indemnification have been met and a written undertaking to reimburse the Trust unless it is subsequently
determined that the indemnitee is entitled to such indemnification and if a majority of the Trustees determine that the applicable standards
of conduct necessary for indemnification appear to have been met. In addition, at least one of the following conditions must be met:
(i) the indemnitee shall provide adequate security for his undertaking, (ii) the Trust shall be insured against losses arising by reason
of any lawful advances, or (iii) a majority of a quorum of the Disinterested Non-Party Trustees, or if a majority vote of such quorum
so direct, independent legal counsel in a written opinion, shall conclude, based on a review of readily available facts (as opposed to
a full trial-type inquiry), that there is substantial reason to believe that the indemnitee ultimately will be found entitled to indemnification.
(d) The
rights accruing to any indemnitee under these provisions shall not exclude any other right which any person may have or hereafter acquire
under this Declaration, the By-Laws of the Trust, any statute, agreement, vote of stockholders or Trustees who are “disinterested
persons” (as defined in Section 2(a)(19) of the 1940 Act) or any other right to which he or she may be lawfully entitled. For the
avoidance of doubt, to the extent the Trust enters into a written agreement with any Trustee to indemnify such Trustee, any indemnification
of such Trustee by the Trust shall be governed by the terms of such written agreement, including with respect to determinations required,
applicable presumptions and the burden of proof with respect to such Trustee’s entitlement to indemnification and/or advancement
of expenses.
(e) Subject
to any limitations provided by the 1940 Act and this Declaration, the Trust shall have the power and authority to indemnify and provide
for the advance payment of expenses to employees, agents and other Persons providing services to the Trust or serving in any capacity
at the request of the Trust to the full extent corporations organized under the Delaware General Corporation Law may indemnify or provide
for the advance payment of expenses for such Persons, provided that such indemnification has been approved by a majority of the Trustees.
5.3. No
Bond Required of Trustees. No Trustee shall, as such, be obligated to give any bond or other security for the performance of any
of his duties hereunder.
5.4.
No Duty of Investigation; Notice in Trust Instruments, etc. No purchaser, lender, transfer agent or other person dealing with
the Trustees or with any officer, employee or agent of the Trust shall be bound to make any inquiry concerning the validity of any transaction
purporting to be made by the Trustees or by said officer, employee or agent or be liable for the application of money or property paid,
loaned, or delivered to or on the order of the Trustees or of said officer, employee or agent. Every obligation, contract, undertaking,
instrument, certificate, Share, other security of the Trust, and every other act or thing whatsoever executed in connection with the
Trust shall be conclusively taken to have been executed or done by the executors thereof only in their capacity as Trustees under this
Declaration or in their capacity as officers, employees or agents of the Trust. The Trustees may maintain insurance for the protection
of the Trust Property, its Shareholders, Trustees, officers, employees and agents in such amount as the Trustees shall deem adequate
to cover possible tort liability, and such other insurance as the Trustees in their sole judgment shall deem advisable or is required
by the 1940 Act.
5.5.
Trustee’s Good Faith Action, Reliance on Experts, etc. The exercise in good faith by
the Trustees of their powers and discretions hereunder shall be binding upon everyone interested. The Trustees may rely in good faith
upon advice of counsel or other experts with respect to the meaning and operation of this Declaration and their duties as Trustees hereunder
and shall be under no liability for any act or omission in accordance with such advice; provided the Trustees shall be under no liability
for failing to follow such advice. A Trustee shall be fully protected in relying in good faith upon the records of the Trust and upon
information, opinions, reports or statements presented by another Trustee or any officer, employee or other agent of the Trust, or by
any other Person as to matters the Trustee believes in good faith are within such other Person’s professional or expert competence,
including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the
Trust or any series or class, or the value and amount of assets or reserves or contracts, agreements or other undertakings that would
be sufficient to pay claims and obligations of the Trust or any series or class or to make reasonable provision to pay such claims and
obligations, or any other facts pertinent to the existence and amount of assets from which distributions to Shareholders or creditors
of the Trust might properly be paid. The appointment, designation or identification of a Trustee as a Chairman of the Board of Trustees,
a member or chair of a committee of the Trustees, an expert on any topic or in any area (including an audit committee financial expert),
or the lead independent Trustee, or any other special appointment, designation or identification of a Trustee, shall not impose on that
person any standard of care or liability that is greater than that imposed on that person as a Trustee in the absence of the appointment,
designation or identification, and no Trustee who has special skills or expertise, or is appointed, designated or identified as aforesaid,
shall be held to a higher standard of care by virtue thereof.
ARTICLE
VI
Shares of Beneficial Interest
6.1.
Beneficial Interest. The beneficial interest in the Trust shall be divided into Shares, with a par value of $0.01 per Share (or
such other amount as the Trustees shall determine, including no par value). The Trustees may, without the approval of Shareholders, authorize
one or more series of Shares and one or more classes of Shares having such preferences, voting powers, terms of repurchase or redemption,
if any, and special or relative rights or privileges (including conversion rights, if any) as the Trustees may determine. The number
of Shares of the Trust and each series and class authorized hereunder is unlimited. The Trust is authorized to issue an unlimited number
of Shares, and upon the establishment of any series or class as provided herein, the Trust shall be authorized to issue an unlimited
number of Shares of each such series and class, unless otherwise determined, and subject to any conditions set forth, by the Trustees.
All references to Shares in this Declaration shall be deemed to be Shares of the Trust and of any or all series or classes, as the context
may require. All provisions herein relating to the Trust shall apply equally to each series of the Trust and each class, except as the
context otherwise requires. All Shares issued hereunder, including Shares issued in connection with a dividend in Shares or a split or
reverse split of Shares, shall be fully paid and non-assessable. Except as otherwise provided by the Trustees, Shareholders shall have
no preemptive or other right to subscribe to any additional Shares or other securities issued by the Trust. Shares held in the Trust’s
treasury shall not confer any voting rights on the Trustees and shall not be entitled to any dividends or other distributions declared
with respect to the Shares.
6.2.
Other Securities. The Trustees may, subject to the Fundamental Policies and the requirements of the 1940 Act, authorize and issue
such other securities of the Trust as they determine to be necessary, desirable or appropriate, having such terms, rights, preferences,
privileges, limitations and restrictions as the Trustees see fit, including preferred interests, debt securities or other senior securities.
Notwithstanding any other provision of this Declaration, to the extent that the Trustees authorize and issue preferred shares of any
class or series, they are hereby authorized and empowered to amend or supplement this Declaration as they deem necessary or appropriate,
including to comply with the requirements of the 1940 Act or requirements imposed by the rating agencies or other Persons, all without
the approval of Shareholders. Any such supplement or amendment shall be filed as is necessary. The Trustees are also authorized to take
such actions and retain such persons as they see fit to offer and to sell such securities.
6.3.
Rights of Shareholders. The Shares shall be personal property given only the rights in this
Declaration specifically set forth. The ownership of the Trust Property of every description and the right to conduct any business herein
before described are vested exclusively in the Trustees, and the Shareholders shall have no interest therein other than the beneficial
interest conferred by their Shares, and they shall have no right to call for any partition or division of any property, profits, rights
or interests of the Trust nor can they be called upon to share or assume any losses of the Trust or suffer an assessment of any kind
by virtue of their ownership of Shares. The Shares shall not entitle the holder to preference, preemptive, appraisal, conversion or exchange
rights (except as specified in this Section 6.3, in Section 11.3 or as specified by the Trustees when creating the Shares, as in preferred
shares). Ownership of Shares shall not make any Shareholder a third-party beneficiary of any contract entered into by the Trust or any
class or series.
6.4.
Trust Only. It is the intention of the Trustees to create only the relationship of Trustee
and beneficiary between the Trustees and each Shareholder from time to time. It is not the intention of the Trustees to create a general
partnership, limited partnership, joint stock association, corporation, bailment or any form of legal relationship other than a trust.
Nothing in this Declaration shall be construed to make the Shareholders, either by themselves or with the Trustees, partners or members
of a joint stock association.
6.5.
Issuance of Shares. The Trustees, in their discretion, may from time to time without vote of the Shareholders issue Shares including
preferred shares that may have been established pursuant to Section 6.2, in addition to the then issued and outstanding Shares and Shares
held in the treasury, to such party or parties and for such amount and type of consideration, including cash or property, at such time
or times, and on such terms as the Trustees may determine, and may in such manner acquire other assets (including the acquisition of
assets subject to, and in connection with the assumption of, liabilities) and businesses. The Trustees may from time to time divide or
combine the Shares into a greater or lesser number without thereby changing the proportionate beneficial interest in such Shares. Issuances
and redemptions of Shares may be made in whole Shares and/or l/l,000ths of a Share or multiples thereof as the Trustees may determine.
6.6.
Register of Shares. A register shall be kept at the offices of the Trust or any transfer agent duly appointed by the Trustees
under the direction of the Trustees which shall contain the names and addresses of the Shareholders and the number of Shares held by
them respectively and a record of all transfers thereof. Separate registers shall be established and maintained for each class or series
of Shares. Each such register shall be conclusive as to who the holders of the Shares of the applicable class or series of Shares are
and who shall be entitled to receive dividends or distributions or otherwise to exercise or enjoy the rights of Shareholders. No Shareholder
shall be entitled to receive payment of any dividend or distribution, nor to have notice given to him as herein provided, until he has
given his address to a transfer agent or such other officer or agent of the Trustees as shall keep the register for entry thereon. It
is not contemplated that certificates will be issued for the Shares; however, the Trustees, in their discretion, may authorize the
issuance of share certificates and promulgate appropriate fees therefore and rules and regulations as to their use.
6.7.
Transfer Agent and Registrar. The Trustees shall have power to employ a transfer agent or transfer agents, and a registrar or
registrars, with respect to the Shares. The transfer agent or transfer agents may keep the applicable register and record therein, the
original issues and transfers, if any, of the said Shares. Any such transfer agents and/or registrars shall perform the duties usually
performed by transfer agents and registrars of certificates of stock in a corporation, as modified by the Trustees.
6.8.
Transfer of Shares. Shares shall be transferable on the records of the Trust only by the record holder thereof or by its agent
thereto duly authorized in writing, upon delivery to the Trustees or a transfer agent of the Trust of a duly executed instrument of transfer,
together with such evidence of the genuineness of each such execution and authorization and of other matters as may reasonably be required.
Upon such delivery the transfer shall be recorded on the applicable register of the Trust. Until such record is made, the Shareholder
of record shall be deemed to be the holder of such Shares for all purposes hereof and neither the Trustees nor any transfer agent or
registrar nor any officer, employee or agent of the Trust shall be affected by any notice of the proposed transfer. Any person becoming
entitled to any Shares in consequence of the death, bankruptcy, or incompetence of any Shareholder, or otherwise by operation of law,
shall be recorded on the applicable register of Shares as the holder of such Shares upon production of the proper evidence thereof to
the Trustees or a transfer agent of the Trust, but until such record is made, the Shareholder of record shall be deemed to be the holder
of such for all purposes hereof, and neither the Trustees nor any transfer agent or registrar nor any officer or agent of the Trust shall
be affected by any notice of such death, bankruptcy or incompetence, or other operation of law.
6.9.
Notices. Any and all notices to which any Shareholder hereunder may be entitled and any and all communications shall be deemed
duly served or given if mailed, postage prepaid, addressed to any Shareholder of record at his last known address as recorded on the
applicable register of the Trust.
ARTICLE
VII
Custodians
7.1.
Appointment
and Duties. The Trustees shall at all times employ a custodian or custodians, meeting the qualifications for custodians for portfolio
securities of investment companies contained in the 1940 Act, as custodian with respect to the assets of the Trust. Any custodian shall
have authority as agent of the Trust as determined by the custodian agreement or agreements, but subject to such restrictions, limitations
and other requirements, if any, as may be contained in the By-Laws of the Trust and the 1940 Act, including, without limitation, authority:
(a) to
hold the securities owned by the Trust and deliver the same upon written order;
(b) to
receive any receipt for any moneys due to the Trust and deposit the same in its own banking department (if a bank) or elsewhere as the
Trustees may direct;
(c) to
disburse such funds upon orders or vouchers;
(d) if
authorized by the Trustees, to keep the books and accounts of the Trust and furnish clerical and accounting services; and
(e) if
authorized to do so by the Trustees, to compute the net income or net asset value of the Trust;
all upon such basis
of compensation as may be agreed upon between the Trustees and the custodian.
The
Trustees may also authorize each custodian to employ one or more sub-custodians from time to time to perform such of the acts and services
of the custodian and upon such terms and conditions, as may be agreed upon between the custodian and such sub-custodian and approved
by the Trustees, provided that in every case such sub-custodian shall meet the qualifications for custodians contained in the 1940 Act.
7.2.
Central Certificate System. Subject to such rules, regulations and orders as the Commission
may adopt, the Trustees may direct the custodian to deposit all or any part of the securities owned by the Trust in a system for the
central handling of securities established by a national securities exchange or a national securities association registered with the
Commission under the Securities Exchange Act of 1934, or such other Person as may be permitted by the Commission, or otherwise in accordance
with the 1940 Act, pursuant to which system all securities of any particular class of any issuer deposited within the system are treated
as fungible and may be transferred or pledged by bookkeeping entry without physical delivery of such securities, provided that all such
deposits shall be subject to withdrawal only upon the order of the Trust.
ARTICLE
VIII
Redemption
8.1.
Redemptions. The Shares of the Trust are not redeemable by the holders.
8.2.
Disclosure of Holding. The holders of Shares or other securities of the Trust shall upon demand disclose to the Trustees in writing
such information with respect to direct and indirect ownership of Shares or other securities of the Trust as the Trustees deem necessary
to comply with the provisions of the Code, the 1940 Act or other applicable laws or regulations, or to comply with the requirements of
any other taxing or regulatory authority, or as the Trustees may otherwise decide, and ownership of Shares may be disclosed by the Trust
if so required by applicable law or as the Trustees may otherwise decide.
ARTICLE
IX
Determination of Net Asset Value; Net Income; Distributions
9.1.
Net Asset Value. The net asset value of each outstanding Share of the Trust shall be determined
at such time or times on such days as the Trustees may determine, in accordance with the 1940 Act. The method of determination of net
asset value shall be determined by the Trustees and shall be as set forth in the Prospectus or as may otherwise be determined by the
Trustees. The power and duty to make the net asset value calculations may be delegated by the Trustees and shall be as generally set
forth in the Prospectus or as may otherwise be determined by the Trustees.
9.2. Distributions
to Shareholders.
(a) The
Trustees shall from time to time distribute ratably among the Shareholders of any class of Shares, or any series of any such class, in
accordance with the number of outstanding full and fractional Shares of such class or any series of such class, such proportion of the
net profits, surplus (including paid-in surplus), capital, or assets held by the Trustees as they may deem proper or as may otherwise
be determined in accordance with this Declaration. Any such distribution may be made in cash or property (including without limitation
any type of obligations of the Trust or any assets thereof) or Shares of any class or series or any combination thereof, and the Trustees
may distribute ratably among the Shareholders of any class of Shares or series of any such class, in accordance with the number of outstanding
full and fractional Shares of such class or any series of such class, additional Shares of any class or series in such manner, at such
times, and on such terms as the Trustees may deem proper or as may otherwise be determined in accordance with this Declaration.
(b) Distributions
pursuant to this Section 9.2 may be among the Shareholders of record of the applicable class or series of Shares at the time of declaring
a distribution or among the Shareholders of record at such later date as the Trustees shall determine and specify.
(c) The
Trustees may always retain from the net profits such amount as they may deem necessary to pay the debts or expenses of the Trust or to
meet obligations of the Trust, or as they otherwise may deem desirable to use in the conduct of its affairs or to retain for future requirements
or extensions of the business.
(d) Inasmuch
as the computation of net income and gains for Federal income tax purposes may vary from the computation thereof on the books, the above
provisions shall be interpreted to give the Trustees the power, in their discretion, to distribute for any fiscal year as ordinary dividends
and as capital gains distributions, respectively, additional amounts sufficient to enable the Trust to avoid or reduce liability for
taxes.
9.3. Power to Modify Foregoing Procedures. Notwithstanding any of the foregoing provisions of this Article IX, the Trustees may prescribe,
in their absolute discretion except as may be required by the 1940 Act, such other bases and times for determining the per share asset
value of the Trust’s Shares or net income, or the declaration and payment of dividends and distributions as they may deem necessary
or desirable for any reason, including to enable the Trust to comply with any provision of the 1940 Act, or any securities exchange or
association registered under the Securities Exchange Act of 1934, or any order of exemption issued by the Commission, all as in effect
now or hereafter amended or modified.
ARTICLE
X
Shareholders
10.1. Meetings of Shareholders. Meetings of Shareholders may be called by the Trustees from time to time for the purpose of taking action
upon any matter requiring the vote of the Shareholders as herein provided, or upon any other matter deemed by the Trustees to be necessary
or desirable. A special meeting of Shareholders may be called at any time by a majority of the Trustees or the Chief Executive Officer
and shall be called by any Trustee for any proper purpose upon written request of Shareholders of the Trust holding in the aggregate
not less than fifty-one percent (51%) of the outstanding Shares of the Trust or class or series of Shares having voting rights on the
matter, such request specifying the purpose or purposes for which such meeting is to be called. Subject to Section 1.10 of the By-Laws,
any shareholder meeting, including a Special Meeting, shall be held within or without the State of Delaware on such day and at such time
as the Trustees shall designate.
10.2. Voting.
Shareholders shall have no power to vote on any matter except matters on which a vote of Shareholders is required by applicable law,
this Declaration or resolution of the Continuing Trustees; provided, that no power to vote on any matter is granted to Shareholders
under the Declaration solely because the Delaware Statutory Trust Statute shall require a vote on such matter in the absence of a contrary
provision in the Declaration, and any power to vote on such matter is expressly denied under the Declaration unless otherwise required
by this Declaration. Except as otherwise provided herein, any matter required to be submitted to Shareholders and affecting one or more
classes or series of Shares shall require approval by the required vote of all the affected classes and series of Shares voting together
as a single class; provided, however, that as to any matter with respect to which a separate vote of any class or series of Shares
is required by the 1940 Act, such requirement as to a separate vote by that class or series of Shares shall apply in addition to a vote
of all the affected classes and series voting together as a single class. Shareholders of a particular class or series of Shares shall
not be entitled to vote on any matter that affects only one or more other classes or series of Shares. There shall be no cumulative voting
in the election or removal of Trustees.
10.3. Notice
of Meeting and Record Date. Notice of all meetings of Shareholders, stating the time, place and purposes of the meeting, shall be
given by the Trustees by mail to each Shareholder of record entitled to vote thereat at its registered address, mailed at least 10 days
and not more than 120 days before the commencement of the meeting or otherwise in compliance with applicable law. Only the business stated
in the notice of the meeting shall be considered at such meeting. Any adjourned meeting may be held as adjourned one or more times without
further notice not later than 180 days after the record date. For the purposes of determining the Shareholders who are entitled to notice
of and to vote at any meeting the Trustees may, without closing the transfer books, fix a date not more than 120 nor less than 10 days
prior to the date of such meeting of Shareholders as a record date for the determination of the Persons to be treated as Shareholders
of record for such purposes.
10.4. Quorum and Required Vote.
(a) Subject
to Section 1.10 of the By-Laws, the holders of a majority of the Shares entitled to vote on any matter at a meeting present in person
or by proxy shall constitute a quorum for the purpose of conducting business at such meeting of the Shareholders. The absence from any
meeting, in person or by proxy, of a quorum of Shareholders for action upon any given matter shall not prevent action at such meeting
upon any other matter or matters which may properly come before the meeting, if there shall be present thereat, in person or by proxy,
a quorum of Shareholders in respect of such other matters.
(b) Subject
to any provision of applicable law, this Declaration, the By-Laws or a resolution of the Trustees specifying a greater or a lesser vote
requirement for the transaction of any item of business at any meeting of Shareholders, (i) the affirmative vote of a majority of the
Shares present in person or represented by proxy and entitled to vote on the subject matter shall be the act of the Shareholders with
respect to such matter, and (ii) where a separate vote of one or more classes or series of Shares is required on any matter, the affirmative
vote of a majority of the Shares of such class or series of Shares present in person or represented by proxy at the meeting shall be
the act of the Shareholders of such class or series with respect to such matter.
10.5. Proxies,
etc. At any meeting of Shareholders, any holder of Shares entitled to vote thereat may vote by properly executed proxy, provided
that no proxy shall be voted at any meeting unless it shall have been placed on file with the Secretary, or with such other officer or
agent of the Trust as the Secretary may direct, for verification prior to the time at which such vote shall be taken. Pursuant to a resolution
of a majority of the Trustees, proxies may be solicited in the name of one or more Trustees or one or more of the officers or employees
of the Trust. No proxy shall be valid after the expiration of 11 months from the date thereof, unless otherwise provided in the proxy.
Only Shareholders of record shall be entitled to vote. Each full Share shall be entitled to one vote and fractional Shares shall be entitled
to a vote of such fraction. When any Share is held jointly by several persons, any one of them may vote at any meeting in person or by
proxy in respect of such Share (subject to Section 1.10 of the By-Laws), but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present disagree as to any vote to be cast, such vote shall not be received
in respect of such Share. A proxy purporting to be executed by or on behalf of a Shareholder shall be deemed valid unless challenged
at or prior to its exercise, and the burden of proving invalidity shall rest on the challenger. If the holder of any such Share is a
minor or a person of unsound mind, and subject to guardianship or to the legal control of any other person as regards the charge or management
of such Share, he may vote by his guardian or such other person appointed or having such control, and such vote may be given in person
or by proxy (subject to Section 1.10 of the By-Laws).
10.6. Reports. The Trustees shall cause to be prepared at least annually and more frequently to the extent and in the form required
by law, regulation or any exchange on which Trust Shares are listed a report of operations containing a balance sheet and statement of
income and undistributed income of the Trust prepared in conformity with generally accepted accounting principles and an opinion of an
independent public accountant on such financial statements. Copies of such reports shall be mailed to all Shareholders of record within
the time required by the 1940 Act, and in any event within a reasonable period preceding the meeting of Shareholders. The Trustees shall,
in addition, furnish to the Shareholders at least semi-annually to the extent required by law, interim reports containing an unaudited
balance sheet of the Trust as of the end of such period and an unaudited statement of income and surplus for the period from the beginning
of the current fiscal year to the end of such period.
10.7. Inspection of Records. No Shareholder shall have any right to inspect any account, book or document of the Trust that is not publicly
available, except as conferred by the Trustees. The books and records of the Trust may be kept at such place or places as the Board of
Trustees or the officers of the Trust may from time to time determine, except as otherwise required by law.
10.8. Shareholder Action by Written Consent. Any action which may be taken by Shareholders by vote may be taken without a meeting if
the holders entitled to vote thereon of the proportion of Shares required for approval of such action at a meeting of Shareholders pursuant
to Section 10.4 consent to the action in writing and the written consents are filed with the records of the meetings of Shareholders.
Such consent shall be treated for all purposes as a vote taken at a meeting of Shareholders.
ARTICLE
XI
LIMITED TERM OF EXISTENCE; Termination of Trust; Amendment; Mergers, Etc.
11.1. Limited
Term of Existence; Termination.
(a) Notwithstanding
any other provision of this Declaration or the By-Laws, unless dissolved sooner in accordance with paragraph (b) of this Section 11.1,
and except as otherwise provided in this Section 11.1, the Trust shall dissolve as of the first business day following the twelfth anniversary
of the effective date of the Trust’s initial registration statement on Form N-2 (the “Dissolution Date”); provided,
however, that:
(i) The
Board of Trustees may approve an extension of the Dissolution Date to a date after the Dissolution Date for one period that may in no
event exceed two years following the Dissolution Date (the “Extended Dissolution Date”), upon the vote or consent of a majority
of the entire Board of Trustees and seventy-five percent (75%) of the Continuing Trustees (a “Board Action Vote”), and without
Shareholder approval (the “Limited Term Provision”).
(ii) As
of a date within six to 18 months preceding the Dissolution Date, or, as applicable,
within six to 18 months preceding the Extended Dissolution Date, the Board of Trustees may, by a Board Action Vote, and without Shareholder
approval cause the Trust to conduct a tender offer to all common Shareholders to purchase all outstanding common Shares of the Trust
at a price equal to the net asset value per common share on the expiration date of the tender offer (an “Eligible Tender Offer”).
If the payment for properly tendered Shares would result in the Trust’s net assets totaling
less than $200 million (the “Dissolution Threshold”), the Eligible Tender Offer shall be canceled, no Shares will be
repurchased pursuant to the Eligible Tender Offer, and the Trust will dissolve as scheduled in accordance with clause (a) of this Section
11.1; provided that if the Eligible Tender Offer was made prior to the Dissolution Date, the Board may approve an extension of the Dissolution
Date in accordance with clause (a)(i) of this Section 11.1. If an Eligible Tender Offer is conducted
and the payment for properly tendered Shares would result in the Trust’s net assets totaling greater than or equal to the Dissolution
Threshold, all common Shares properly tendered and not withdrawn will be purchased by the Trust pursuant to the terms of the Eligible
Tender Offer. Following the consummation of an Eligible Tender Offer, the Board of Trustees may, by a Board Action Vote, and without
Shareholder approval, amend this Amended and Restated Agreement and Declaration of Trust to eliminate the Dissolution Date or the Extended
Dissolution Date (as the case may be) and provide that the Trust shall have a perpetual term, subject to the ability of the Shareholders
or the Board of Trustees to dissolve the Trust as provided in Section 11.1(b).
(b) In addition to dissolution pursuant to the Limited Term Provision in paragraph (a) of this Section 11.1, the Trust may be dissolved at
any time after a majority of the Trustees have approved a resolution therefor, followed by approval by not less than seventy-five percent
(75%) of the Shares of each class or series outstanding and entitled to vote, voting as separate classes or series, unless such dissolution
has been approved by eighty percent (80%) of the Trustees, in which case approval by a Majority Shareholder Vote shall be required.
(c) Upon the dissolution of the Trust:
(i) The
Trust shall carry on no business except for the purpose of winding up its affairs.
(ii) The
Trustees shall proceed to wind up the affairs of the Trust and all of the powers of the Trustees under this Declaration shall continue
until the affairs of the Trust shall have been wound up, including the power to fulfill or discharge the contracts of the Trust, collect
its assets, sell, convey, assign, exchange, merge where the Trust is not the survivor, transfer or otherwise dispose of all or any part
of the remaining Trust Property to one or more Persons at public or private sale for consideration which may consist in whole or in part
in cash, securities or other property of any kind, discharge or pay its liabilities, and do all other acts appropriate to liquidate its
business; provided that any sale, conveyance, assignment, exchange, merger in which the Trust is not the survivor, transfer or other
disposition of all or substantially all the Trust Property of the Trust shall require approval of the principal terms of the transaction
and the nature and amount of the consideration by Shareholders with the same vote as required to open-end the Trust.
(iii) After
paying or adequately providing for the payment of all liabilities, and upon receipt of such releases, indemnities and refunding agreements,
as they deem necessary for their protection, the Trustees may distribute the remaining Trust Property, in cash or in kind or partly each,
among the Shareholders according to their respective rights.
(d) After
the winding up and termination of the Trust and distribution to the Shareholders as herein provided, a majority of the Trustees or an
authorized officer of the Trust shall execute and lodge among the records of the Trust an instrument in writing setting forth the fact
of such termination and shall execute and file a certificate of cancellation with the Secretary of State of the State of Delaware. Upon
termination of the Trust, the Trustees shall thereupon be discharged from all further liabilities and duties hereunder, and the rights
and interests of all Shareholders shall thereupon cease.
11.2. Amendment
Procedure.
(a) Except
as provided in subsection (b) and (c) of this Section 11.2, this Declaration may be amended, after a majority of the Trustees have approved
a resolution therefor, by the affirmative vote of the holders of not less than a majority of the affected Shares. The Trustees also may
amend this Declaration without any vote of Shareholders of any class or series to divide the Shares of the Trust into one or more classes
or additional classes, or one or more series of any such class or classes, to determine the rights, powers, preferences, limitations
and restrictions of any class or series of Shares, to change the name of the Trust or any class or series of Shares, to make any change
that in the good faith judgment of the Continuing Trustees does not change the relative rights or preferences of one or more classes
or series of Shares so as to materially and adversely affect them, as they may deem necessary, or to conform this Declaration to the
requirements of the 1940 Act or any other applicable federal laws or regulations including pursuant to Section 6.2 or the requirements
of the regulated investment company provisions of the Code, but the Trustees shall not be liable for failing to do so.
(b) No
amendment may be made to Section 2.1, Section 2.2, Section 2.3, Section 3.9, Section 5.1, Section 5.2, Section 11.1(a), this Section
11.2, Section 11.3, Section 11.4 or Section 11.6 of this Declaration and no amendment may be made to this Declaration which would change
any rights with respect to any Shares of the Trust by reducing the amount payable thereon upon liquidation of the Trust or by diminishing
or eliminating any voting rights pertaining thereto (except that this provision shall not limit the ability of the Trustees to authorize,
and to cause the Trust to issue, other securities pursuant to Section 6.2), except after a majority of the Trustees have approved a resolution
therefor, followed by approval by the affirmative vote of the holders of not less than seventy-five percent (75%) of the Shares of each
affected class or series outstanding, voting as separate classes or series, or unless such amendment has been approved by eighty percent
(80%) of the Trustees, in which case approval by a Majority Shareholder Vote shall be required. Nothing contained in this Declaration
shall permit the amendment of this Declaration to impair the exemption from personal liability of the Shareholders, Trustees, officers,
employees and agents of the Trust or to permit assessments upon Shareholders. For the avoidance of doubt, nothing in this Section 11.2
shall limit the authority of the Trustees to amend or supplement this Declaration in connection with the authorization and issuance of
other securities.
(c) An
amendment duly adopted by the requisite vote of the Board of Trustees and, if required, the Shareholders as aforesaid, shall become effective
at the time of such adoption or at such other time as may be designated by the Board of Trustees or Shareholders, as the case may be.
A certification in recordable form signed by a majority of the Trustees setting forth an amendment and reciting that it was duly adopted
by the Trustees and, if required, the Shareholders as aforesaid, or a copy of the Declaration, as amended, in recordable form, and executed
by a majority of the Trustees, shall be conclusive evidence of such amendment when lodged among the records of the Trust or at such other
time designated by the Board.
Notwithstanding
any other provision hereof, until such time as a Registration Statement under the Securities Act of 1933, as amended, covering the first
public offering of Shares of the Trust shall have become effective, this Declaration may be terminated or amended in any respect by the
affirmative vote of a majority of the Trustees or by an instrument signed by a majority of the Trustees.
11.3. Merger,
Consolidation and Sale of Assets. Except as provided in Section 11.6, the Trust may merge or consolidate with any other corporation,
association, trust or other organization or may sell, lease or exchange all or substantially all of the Trust Property or the property,
including its good will, upon such terms and conditions and for such consideration when and as authorized by two-thirds of the Continuing
Trustees, followed by approval by a Majority Shareholder Vote, and any such merger, consolidation, sale, lease or exchange shall be determined
for all purposes to have been accomplished under and pursuant to the statutes of the State of Delaware.
11.4. Subsidiaries.
Without approval by Shareholders, the Continuing Trustees may cause to be organized or assist in organizing one or more corporations,
trusts, partnerships, associations or other organizations to take over any or all of the Trust Property or to carry on any business in
which the Trust shall directly or indirectly have any interest, and to sell, convey and transfer all or a portion of the Trust Property
to any such corporation, trust, limited liability company, association or organization in exchange for the shares or securities thereof,
or otherwise, and to lend money to, subscribe for the shares or securities of, and enter into any contracts with any such corporation,
trust, limited liability company, partnership, association or organization, or any corporation, partnership, trust, limited liability
company, association or organization in which the Trust holds or is about to acquire shares or any other interests.
11.5. Conversion.
Notwithstanding any other provisions of this Declaration or the By-Laws of the Trust, a favorable vote of a majority of the Continuing
Trustees then in office followed by the favorable vote of the holders of not less than seventy-five percent (75%) of the Shares of each
affected class or series outstanding, voting as separate classes or series, shall be required to approve, adopt or authorize an amendment
to this Declaration that makes the Shares a “redeemable security” as that term is defined in the 1940 Act, unless such amendment
has been approved by eighty percent (80%) of the Continuing Trustees, in which case approval by a Majority Shareholder Vote shall be
required. Upon the adoption of a proposal to convert the Trust from a “closed-end company” to an “open-end company”
as those terms are defined by the 1940 Act and the necessary amendments to this Declaration to permit such a conversion of the Trust’s
outstanding Shares entitled to vote, the Trust shall, upon complying with any requirements of the 1940 Act and state law, become an “open-end”
investment company. Such affirmative vote or consent shall be in addition to the vote or consent of the holders of the Shares otherwise
required by law, or any agreement between the Trust and any national securities exchange.
11.6. Certain
Transactions.
(a) Notwithstanding
any other provision of this Declaration and subject to the exceptions provided in paragraph (d) of this Section, the types of transactions
described in paragraph (c) of this Section shall require the affirmative vote or consent of a majority of the Continuing Trustees then
in office followed by the affirmative vote of the holders of not less than seventy-five percent (75%) of the Shares of each affected
class or series outstanding, voting as separate classes or series, when a Principal Shareholder (as defined in paragraph (b) of this
Section) is a party to the transaction. Such affirmative vote or consent shall be in addition to the vote or consent of the holders of
Shares otherwise required by law or by the terms of any class or series of preferred stock, whether now or hereafter authorized, or any
agreement between the Trust and any national securities exchange.
(b) The
term “Principal Shareholder” shall mean any corporation, Person or other entity which is the beneficial owner, directly or
indirectly, of five percent (5%) or more of the outstanding Shares of any class or series and shall include any affiliate or associate,
as such terms are defined in clause (ii) below, of a Principal Shareholder. For the purposes of this Section, in addition to the Shares
which a corporation, Person or other entity beneficially owns directly, (a) any corporation, Person or other entity shall be deemed to
be the beneficial owner of any Shares (i) which it has the right to acquire pursuant to any agreement or upon exercise of conversion
rights or warrants, or otherwise (but excluding share options granted by the Trust) or (ii) which are beneficially owned, directly or
indirectly (including Shares deemed owned through application of clause (i) above), by any other corporation, Person or entity with which
its “affiliate” or “associate” (as defined below) has any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of Shares, or which is its “affiliate” or “associate” as those terms
are defined in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, and (b) the outstanding Shares
shall include Shares deemed owned through application of clauses (i) and (ii) above but shall not include any other Shares which may
be issuable pursuant to any agreement, or upon exercise of conversion rights or warrants, or otherwise.
(c) This
Section shall apply to the following transactions: (i) the merger or consolidation of the Trust or any subsidiary of the Trust with or
into any Principal Shareholder, (ii) the issuance of any securities of the Trust to any Principal Shareholder for cash (other than (x)
an issuance of preferred stock approved by eighty percent (80%) of the Continuing Trustees or (y) pursuant to any automatic dividend
reinvestment plan), (iii) the sale, lease or exchange of all or any substantial part of the assets of the Trust to any Principal Shareholder
(except assets having an aggregate fair market value of less than $1,000,000, aggregating for the purpose of such computation all assets
sold, leased or exchanged in any series of similar transactions within a twelve-month period), and (iv) the sale, lease or exchange to
the Trust or any subsidiary thereof, in exchange for securities of the Trust, of any assets of any Principal Shareholder (except assets
having an aggregate fair market value of less than $1,000,000, aggregating for the purposes of such computation all assets sold, leased
or exchanged in any series of similar transactions within a twelve-month period).
(d) The
provisions of this Section shall not be applicable to (i) any of the transactions described in paragraph (c) of this Section if eighty
percent (80%) of the Continuing Trustees shall by resolution have approved a memorandum of understanding with such Principal Shareholder
with respect to and substantially consistent with such transaction, in which case approval by a Majority Shareholder Vote shall be the
only vote of Shareholders required by this Section, or (ii) any such transaction with any entity of which a majority of the outstanding
shares of all classes and series of a stock normally entitled to vote in elections of directors is owned of record or beneficially by
the Trust and its subsidiaries.
(e) The
Continuing Trustees shall have the power and duty to determine for the purposes of this Section on the basis of information known to
the Trust whether (i) a corporation, person or entity beneficially owns five percent (5%) or more of the outstanding Shares of any class
or series, (ii) a corporation, person or entity is an “affiliate” or “associate” (as defined above) of another,
(iii) the assets being acquired or leased to or by the Trust or any subsidiary thereof constitute a substantial part of the assets of
the Trust and have an aggregate fair market value of less than $1,000,000, and (iv) the memorandum of understanding referred to in paragraph
(d) hereof is substantially consistent with the transaction covered thereby. Any such determination shall be conclusive and binding for
all purposes of this Section.
ARTICLE
XII
Miscellaneous
12.1. Filing.
(a) This
Declaration and any amendment or supplement hereto shall be filed in such places as may be required by law or as the Trustees deem appropriate.
Each amendment or supplement shall be accompanied by a certificate signed and acknowledged by an authorized officer stating that such
action was duly taken in a manner provided herein, and shall, upon insertion in the Trust’s minute book, be conclusive evidence
of all amendments contained therein. A restated Declaration, containing the original Declaration and all amendments and supplements theretofore
made, may be executed from time to time by an authorized officer and shall, upon insertion in the Trust’s minute book, be conclusive
evidence of all amendments and supplements contained therein and may thereafter be referred to in lieu of the original Declaration and
the various amendments and supplements thereto.
(b) The
Trustees hereby authorize and direct a Certificate of Trust to be executed and filed with the Office of the Secretary of State of the
State of Delaware in accordance with the Delaware Statutory Trust Act.
12.2. Resident Agent. The Trust shall maintain a resident agent in the State of Delaware, which agent
shall initially be The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801. The Trustees may designate a successor
resident agent, provided, however, that such appointment shall not become effective until written notice thereof is delivered to the
office of the Secretary of the State.
12.3. Derivative Actions. In addition to all suits, claims or other actions (collectively,
“claims”) that under applicable law must be brought as derivative claims, each Shareholder of the Trust or any series or
class thereof agrees that any claim that affects all Shareholders of the Trust or any series or class equally, that is, proportionately
based on their number of outstanding Shares in the Trust or in such series or class, must be brought as a derivative claim subject to
this Section 12.3 irrespective of whether such claim involves a violation of the Shareholders’ rights under this Declaration or
any other alleged violation of contractual or individual rights that might otherwise give rise to a direct claim.
(a) Shareholders
of the Trust or any series or class may not bring a derivative action to enforce the right of the Trust or an affected series or class,
as applicable, unless each of the following conditions is met:
(i) Each
complaining Shareholder was a Shareholder of the Trust or the affected series or class, as applicable, at the time of the action or failure
to act complained of, or acquired the Shares afterwards by operation of law from a Person who was a Shareholder at that time;
(ii) Each
complaining Shareholder was a Shareholder of the Trust or the affected series or class, as applicable, as of the time the demand required
by subparagraph (iii) below was made;
(iii) Prior
to the commencement of such derivative action, the complaining Shareholders have made a written demand to the Board of Trustees requesting
that they cause the Trust or affected series or class, as applicable, to file the action itself. In order to warrant consideration, any
such written demand must include at least the following:
(1) a
detailed description of the action or failure to act complained of and the facts upon which each such allegation is made;
(2) a
statement to the effect that the complaining Shareholders believe that they will fairly and adequately represent the interests of similarly
situated Shareholders in enforcing the right of the Trust or the affected series or class, as applicable and an explanation of why the
complaining Shareholders believe that to be the case;
(3) a
certification that the requirements of sub-paragraphs (i) and (ii) have been met, as well as information reasonably designed
to allow the Trustees to verify that certification; and
(4) a
certification that each complaining Shareholder will be a Shareholder of the Trust or the affected series or class, as applicable as
of the commencement of the derivative action;
(iv) At
least 10% of the Shareholders of the Trust or the affected series or class, as applicable, must join in bringing the derivative action;
and
(v) A
copy of the derivative complaint must be served on the Trust, assuming the requirements of sub-paragraphs (i)-(iv) above have already
been met and the derivative action has not been barred in accordance with paragraph (b)(ii) below.
(b) Demands
for derivative action submitted in accordance with the requirements above will be considered by those Trustees who are not deemed to
be Interested Persons of the Trust. Within 30 calendar days of the receipt of such demand by the Board of Trustees, those Trustees who
are not deemed to be Interested Persons of the Trust will consider the merits of the claim and determine whether maintaining a suit would
be in the best interests of the Trust or the affected series or class, as applicable. Trustees that are not deemed to be Interested Persons
of the Trust are deemed independent for all purposes, including for the purpose of approving or dismissing a demand for derivative action.
(i) If
the demand for derivative action has not been considered within 30 calendar days of the receipt of such demand by the Board of Trustees,
a decision has not been communicated to the complaining Shareholders within the time permitted by sub-paragraph (ii) below, and
sub-paragraphs (i)-(iv) of paragraph (a) above have been met, the complaining Shareholders shall not be barred by this Declaration
from commencing a derivative action.
(ii) If
the demand for derivative action has been considered by the Board of Trustees, and a majority of those Trustees who are not deemed to
be Interested Persons of the Trust, after considering the merits of the claim, has determined that maintaining a suit would not be in
the best interests of the Trust or the affected series or class, as applicable, the complaining Shareholders shall be barred from commencing
the derivative action. If upon such consideration the appropriate members of the Board determine that such a suit should be maintained,
then the appropriate officers of the Trust shall commence initiation of that suit and such suit shall proceed directly rather than derivatively.
The Board of Trustees, or the appropriate officers of the Trust, shall inform the complaining Shareholders of any decision reached under
this sub-paragraph (ii) in writing within five business days of such decision having been reached.
(c) A
Shareholder of a particular series or class of the Trust shall not be entitled to participate in a derivative action on behalf of any
other series or class of the Trust.
12.4. Governing Law. This Declaration is executed by the Trustees in accordance with and under the laws
of the State of Delaware and with reference to the laws thereof, and the rights of all parties and the validity and construction of every
provision hereof shall be subject to and construed according to laws of said State, provided that such law shall not be viewed as limiting
the powers otherwise granted to the Trustees hereunder and any ambiguity shall be viewed in favor of such powers. Subject to Section
12.5 of this Declaration, all disputes arising under this Declaration shall be brought in the Delaware Court of Chancery unless otherwise
required by the 1940 Act.
12.5. Choice of Forum. In accordance with Section 3804(e) of the Delaware Act, unless the Trust consents in writing to the selection
of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative
action or proceeding brought on behalf of the Trust, (ii) any action asserting a claim of breach of a fiduciary duty owed by any trustee,
officer, or employee of the Trust to the Trust or the Shareholders, (iii) any action asserting a claim against the Trust or any trustee,
officer, or employee of the Trust arising pursuant to any provision of the Delaware Act, this Declaration or the By-Laws, or federal
law, including, but not limited to, the 1940 Act, or (iv) any action asserting a claim against the Trust or any trustee, officer, or
employee of the Trust governed by the internal affairs doctrine of the State of Delaware; provided, however, that, (a) in the event
that the Court of Chancery of the State of Delaware lacks jurisdiction over any such action or proceeding, the sole and exclusive forum
for such action or proceeding shall be another state or federal court located within the State of Delaware and (b) any claims, suits,
actions or proceedings arising under the Securities Act of 1933, as amended, shall be exclusively brought in the federal district courts
of the United States of America. Failure to enforce the foregoing provisions would cause the Trust irreparable harm and the Trust shall
be entitled to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions. Any person
or entity purchasing or otherwise acquiring any interest in Shares of the Trust shall be deemed to have notice of and consented to the
provisions of this Section 12.5.
12.6. Counterparts.
This Declaration may be simultaneously executed in several counterparts, each of which shall be deemed to be an original, and such counterparts,
together, shall constitute one and the same instrument, which shall be sufficiently evidenced by any such original counterpart.
12.7. Reliance
by Third Parties. Any certificate executed by an individual who, according to the records of the Trust, or of any recording office
in which this Declaration may be recorded, appears to be a Trustee hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the name of the Trust, (c) the due authorization of the execution of any instrument or writing, (d) the form of any
vote passed at a meeting of Trustees or Shareholders, (e) the fact that the number of Trustees or Shareholders present at any meeting
or executing any written instrument satisfies the requirements of this Declaration, (f) the form of any By Laws adopted by or the identity
of any officers elected by the Trustees, or (g) the existence of any fact or facts which in any manner relate to the affairs of the Trust,
shall be conclusive evidence as to the matters so certified in favor of any person dealing with the Trustees and their successors.
12.8. Provisions
in Conflict with Law or Regulation.
(a) The
provisions of this Declaration are severable, and if the Trustees shall determine, with the advice of counsel, that any of such provisions
is in conflict with the 1940 Act, the regulated investment company provisions of the Code or with other applicable laws and regulations,
the conflicting provision shall be deemed never to have constituted a part of this Declaration; provided, however, that such determination
shall not affect any of the remaining provisions of this Declaration or render invalid or improper any action taken or omitted prior
to such determination.
(b) If
any provision of this Declaration shall be held invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner affect such provision in any other jurisdiction or any
other provision of this Declaration in any jurisdiction.
IN
WITNESS WHEREOF, the undersigned, being the Trustees of Guggenheim Active Allocation Fund, have executed this Amended and Restated
Agreement and Declaration of Trust as of the date first written above.
/s/
Randall C. Barnes |
|
Randall C. Barnes |
|
As Trustee and not individually |
|
|
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/s/
Angela Brock-Kyle |
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Angela Brock-Kyle |
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As Trustee and not individually |
|
|
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/s/
Thomas F. Lydon, Jr. |
|
Thomas F. Lydon, Jr. |
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As Trustee and not individually |
|
|
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/s/
Ronald A. Nyberg |
|
Ronald A. Nyberg |
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As Trustee and not individually |
|
|
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/s/
Sandra G. Sponem |
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Sandra G. Sponem |
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As Trustee and not individually |
|
|
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/s/
Ronald E. Toupin, Jr. |
|
Ronald E. Toupin, Jr. |
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As Trustee and not individually |
|
|
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/s/
Amy J. Lee |
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Amy J. Lee |
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As Trustee and not individually |
|
|
Ernst & Young LLP
1775 Tysons Blvd.
Tysons, VA 22102
|
|
Tel: +1 703 7470000
Fax: +1 703 747 1000
ey.com
|
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Report of Independent Registered Public Accounting
Firm
To the Shareholders and
Board of Trustees of Guggenheim Active Allocation Fund
In planning and performing our audit of the financial
statements of Guggenheim Active Allocation Fund (the “Fund”) as of and for the year ended May 31, 2024, in accordance with
the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), we considered the Fund’s internal
control over financial reporting, including controls over safeguarding securities, as a basis for designing our auditing procedures for
the purpose of expressing our opinion on the financial statements and to comply with the requirements of Form N-CEN, but not for the purpose
of expressing an opinion on the effectiveness of the Fund’s internal control over financial reporting. Accordingly, we express no
such opinion.
The management of the Fund is responsible for establishing
and maintaining effective internal control over financial reporting. In fulfilling this responsibility, estimates and judgments by management
are required to assess the expected benefits and related costs of controls. A company’s internal control over financial reporting
is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with U.S. generally accepted accounting principles. A company’s internal control
over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions
are recorded as necessary to permit preparation of financial statements in accordance with U.S. generally accepted accounting principles,
and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of
the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition
of a company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control
over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods
are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the
policies or procedures may deteriorate.
A deficiency in internal control over financial reporting
exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned
functions, to prevent or detect misstatements on a timely basis. A material weakness is a deficiency, or a combination of deficiencies,
in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the company’s
annual or interim financial statements will not be prevented or detected on a timely basis.
Our consideration of the Fund’s internal control
over financial reporting was for the limited purpose described in the first paragraph and would not necessarily disclose all deficiencies
in internal control that might be material weaknesses under standards established by the PCAOB. However, we noted no deficiencies in the
Fund’s internal control over financial reporting and its operation, including controls over safeguarding securities, that we consider
to be a material weakness as defined above as of May 31, 2024.
This report is intended solely for the information
and use of management and the Board of Trustees of Guggenheim Active Allocation Fund and the Securities and Exchange Commission and is
not intended to be and should not be used by anyone other than these specified parties.
July 26, 2024
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