AGREEMENT AND DECLARATION OF TRUST
Exhibit 99.(a)(ii)
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST, dated as of July 18, 2011, by Xxxxx X. Xxxxx as trustee
(the “Trustee”). The Trustee hereby agrees as follows:
1. The trust created hereby (the “Trust”) shall be known as “The Xxxxxxx Royalty & Income
Fund”, in which name the Trustee may conduct the business of the Trust, make and execute contracts,
and xxx and be sued.
2. It is the intention of the Trustee that the Trust created hereby constitute a statutory
trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. §§ 3801 et seq. (the “Statutory
Trust Act”), and that this document constitute the governing instrument of the Trust. The Trustee
is hereby authorized and directed to execute and file a certificate of trust in the Office of the
Secretary of State of the State of Delaware in accordance with the provisions of the Statutory
Trust Act. The Trust is hereby established by the Trustee for the purposes of (i) operating as a
closed-end management investment company in accordance with the Investment Company Act of 1940 and
the rules thereunder as amended from time to time (the “1940 Act”) and (ii) engaging in such other
activities as are necessary, convenient or incidental thereto.
3. Prior to the first issuance of beneficial interests by the Trust pursuant to the Trust’s
Registration Statement (referred to below), the Trustee intends to enter into an amended and
restated declaration of trust providing for the operation of the Trust and the issuance of
beneficial interests in the Trust.
4. The Trustee (together with all other persons who hereafter become trustees of the Trust) is
hereby authorized to (i) prepare and file with the Securities and Exchange Commission (the
“Commission”) and execute, in each case on behalf of the Trust, (a) a Notification of Registration
on Form N-8A (the “Form N-8A”) registering the Trust as an investment company under the 1940 Act
and (b) a registration statement on Form N-2 (the “Registration Statement”) under the Securities
Act of 1933, as amended from time to time, and the 1940 Act, relating to the proposed public
offering of the beneficial interests in the Trust (including any pre-effective or post-effective
amendments thereto and the prospectus and exhibits contained therein); and (ii) to prepare and file
and execute, in each case on behalf of the Trust, such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the beneficial interests in the Trust
under the securities or “blue sky” laws of such jurisdictions as the Trustee, on behalf of the
Trust, may deem necessary or desirable. It is hereby acknowledged and agreed that in connection
with any execution, filing or document referred to in clauses (i)-(ii) above, the Trustee (together
with all other persons who hereafter become trustees of the Trust) is authorized on behalf of the
Trust to file and execute such document on behalf of the Trust.
5. The number of Trustees initially shall be one (1) and thereafter the number of Trustees
shall be such number as shall be fixed from time to time by a written
instrument signed by the Trustee which may increase or decrease the number of Trustees (but not
below one (1)). Any Trustee may resign upon ten (10) days prior notice to the Trust.
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6. To the fullest extent permitted by applicable law, the Trust shall indemnify each Trustee
(each an “Indemnified Person”) for, and to hold each Indemnified Person harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set forth in this paragraph 6 shall
survive the termination of this Declaration.
7. The Trust may terminate prior to the first issuance of beneficial interests by the Trust
pursuant to the Registration Statement at the election of the Trustee.
8. This Declaration shall be governed by, and construed in accordance with, the laws of the
State of Delaware, without regard to conflict of laws principles of the State of Delaware or any
other jurisdiction that would call for the application of the substantive laws of any jurisdiction
other than the State of Delaware.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Trustee has hereby caused this Agreement and Declaration of Trust to
be duly executed as of the day and year first above written.
| /s/ Xxxxx X. Xxxxx | ||||
| Xxxxx X. Xxxxx | ||||
| Sole Trustee | ||||
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