99.2(a)(1) Exhibit 

 

AMENDED AND RESTATED

AGREEMENT AND DECLARATION OF TRUST

of

Bluerock Total Income+ Real Estate Fund

(a Delaware Statutory Trust)

 

 

AMENDED AND RESTATED

AGREEMENT AND DECLARATION OF TRUST

OF

BLUEROCK TOTAL INCOME+ REAL ESTATE FUND

 

AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made this 26th day of September 2025, by the Trustee(s) hereunder, and by the holders of shares of beneficial interest to be issued hereunder as hereinafter provided.

W I T N E S S E T H:

WHEREAS, this Trust was formed pursuant to a Certificate of Trust of the Trust (then known as Bluerock Total Alternatives Real Estate Fund) filed in the Office of the Secretary of State of the State of Delaware (the “State Office”) on May 25, 2012 (the “Original Certificate”) and the adoption of an Agreement and Declaration of Trust of the Trust dated as of May 25, 2012 (the “Original Trust Agreement”) to carry on the business of an investment company;

WHEREAS, the Original Certificate was amended on July 31, 2012 by the Certificate of Amendment thereto as filed in the State Office, changing the name of the Trust to Bluerock Total Income+ Real Estate Fund;

WHEREAS, the Original Certificate was further amended on November 7, 2012 by the Certificate of Amendment thereto as filed in the State Office, changing the name of the Trust to Total Income+ Real Estate Fund;

WHEREAS, the Original Certificate was further amended on January 18, 2019 by the Certificate of Amendment thereto as filed in the State Office, changing the name of the Trust to Bluerock Total Income+ Real Estate Fund;

WHEREAS, the Trustees now desire to amend and restate the Original Trust Agreement in its entirety as set forth in this Declaration of Trust; and

NOW, THEREFORE, the Trustees hereby amend and restate the Original Trust Agreement in its entirety as hereinafter set forth.

Article I

Name and Definitions.

of amendment under the Delaware Act reflecting such change. Any name change of any Series shall become effective upon approval by the Trustees of such change or any document (including any Registration Statement) reflecting such change. Any such action shall have the status of an amendment to this Declaration of Trust. In the event of any name change, the Trustees shall cause notice to be given to the affected Shareholders within a reasonable time after the implementation of such change, which notice shall be deemed given if the changed name is reflected in any Registration Statement.

to a vote of a committee or sub-committee of the Board of Trustees, a vote of the majority of the members of such committee or sub-committee, and, if there is one or more Continuing Trustees on such committee or sub-committee, a separate vote of a majority of the Continuing Trustees that are members of such committee or sub-committee;

Article II

Purpose of Trust.

The purpose of the Trust is to conduct, operate and carry on the business of a registered management investment company registered under the 1940 Act through one or more Series investing primarily in securities and, in addition to any authority given by law, to exercise all of the powers and to do any and all of the things as fully and to the same extent as any private corporation organized for profit under the general corporation law of the State of Delaware, now or hereafter in force, including, without limitation, the following powers:

of any action alleged to have been taken or omitted by any such Person as Trustee, officer, employee, agent, Investment Adviser, Principal Underwriter, or independent contractor, to the fullest extent permitted by this Declaration of Trust, the By-Laws and by applicable law; and

The Trust shall not be limited to investing in obligations maturing before the possible dissolution of the Trust or one or more of its Series.  The Trust shall not in any way be bound or limited by any present or future law or custom in regard to investment by fiduciaries.  Neither the Trust nor the Trustees shall be required to obtain any court order to deal with any assets of the Trust or take any other action hereunder.

The foregoing clauses shall each be construed as purposes, objects and powers, and it is hereby expressly provided that the foregoing enumeration of specific purposes, objects and powers shall not be held to limit or restrict in any manner the powers of the Trust, and that they are in furtherance of, and in addition to, and not in limitation of, the general powers conferred upon the Trust by the DSTA and the other laws of the State of Delaware or otherwise; nor shall the enumeration of one thing be deemed to exclude another, although it be of like nature, not expressed.

Article III

Shares.

The Board of Trustees shall have the power to issue Shares of the Trust, or any Series or class thereof, from time to time for such consideration (but not less than the net asset value thereof) and in such form as may be fixed from time to time pursuant to the direction of the Board of Trustees.

The Board of Trustees may hold as treasury shares, reissue for such consideration and on such terms as they may determine, or cancel, at their discretion from time to time, any Shares of any Series reacquired by the Trust.  Shares held in the treasury shall not, until reissued, confer any voting rights on the Trustees, nor shall such Shares be entitled to any dividends or other distributions declared with respect to the Shares.  The Board of Trustees may classify or reclassify any unissued Shares or any Shares previously issued and reacquired of any Series or class into one or more Series or classes that may be established and designated from time to time.

Notwithstanding the foregoing, the Trust and any Series thereof may acquire, hold, sell and otherwise deal in, for purposes of investment or otherwise, the Shares of any other Series of the Trust or Shares of the Trust, and such Shares shall not be deemed treasury shares or cancelled.

Subject to the provisions of Section 6 of this Article III, each Share shall have voting rights as provided in Article V hereof, and the Shareholders of any Series shall be entitled to receive dividends and distributions, when, if and as declared with respect thereto in the manner provided in Article IV, Section 3 hereof.  No Share shall have any priority or preference over any other Share of the same Series or class with respect to dividends or distributions paid in the ordinary course of business or distributions upon dissolution of the Trust or of such Series or class made pursuant to Article VIII, Section 2 hereof.  All dividends and distributions shall be made ratably among all Shareholders of a particular class of Series from the Trust Property held with respect to

such Series according to the number of Shares of such class of such Series held of record by such Shareholders on the record date for any dividend or distribution.  Shareholders shall have no preemptive or other right to subscribe to new or additional Shares or other securities issued by the Trust or any Series.  The Trustees may from time to time divide or combine the Shares of any particular Series into a greater or lesser number of Shares of that Series.  Such division or combination may not materially change the proportionate beneficial interests of the Shares of that Series in the Trust Property held with respect to that Series or materially affect the rights of Shares of any other Series.

Any Trustee, officer or other agent of the Trust, and any organization in which any such Person is interested, may acquire, own, hold and dispose of Shares of the Trust to the same extent as if such Person were not a Trustee, officer or other agent of the Trust; and the Trust may issue and sell or cause to be issued and sold and may purchase Shares from any such Person or any such organization subject only to the general limitations, restrictions or other provisions applicable to the sale or purchase of such Shares generally.

Neither the Trust nor the Trustees, nor any officer, employee or agent of the Trust, shall have any power to bind personally any Shareholder, nor, except as specifically provided herein, to call upon any Shareholder for the payment of any sum of money or assessment whatsoever other than such as the Shareholder may at any time personally agree to pay.  All Shares when issued on the terms determined by the Board of Trustees shall be fully paid and nonassessable.  As provided in the DSTA, Shareholders of the Trust shall be entitled to the same limitation of personal liability extended to stockholders of a private corporation organized for profit under the general corporation law of the State of Delaware.

Subject to the foregoing Paragraph, the Board of Trustees may amend the Declaration of Trust to amend any of the provisions set forth in paragraphs (a) through (i) of Section 6 of this Article III.

The Board of Trustees shall have the power, in its discretion, to make such elections as to the tax status of the Trust as may be permitted or required under the Code as presently in effect or as amended, without the vote of any Shareholder.

Each Series shall be separate and distinct from any other Series and shall maintain separate and distinct records on the books of the Trust, and the assets and liabilities belonging to any such Series shall be held and accounted for separately from the assets and liabilities of the Trust or any other Series.

Shares of each Series or class established pursuant to this Section 6, unless otherwise provided in the resolution establishing such Series, shall have the following relative rights and preferences:

Subject to the right of the Board of Trustees in its discretion to allocate General Liabilities as provided herein, the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular Series, whether such Series is now authorized and existing pursuant to this Declaration of Trust or is hereafter authorized and existing pursuant to

this Declaration of Trust, shall be enforceable against the assets held with respect to that Series only, and not against the assets of any other Series or the Trust generally and none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the Trust generally or any other Series thereof shall be enforceable against the assets held with respect to such Series.  Notice of this limitation on liabilities between and among Series shall be set forth in the Certificate of Trust of the Trust (whether originally or by amendment) as filed or to be filed in the Office of the Secretary of State of the State of Delaware pursuant to the DSTA, and upon the giving of such notice in the Certificate of Trust, the statutory provisions of Section 3804 of the DSTA relating to limitations on liabilities between and among Series (and the statutory effect under Section 3804 of setting forth such notice in the Certificate of Trust) shall become applicable to the Trust and each Series.

Shares of one or more other Series in accordance with such requirements and procedures as may be established by the Board of Trustees, and in accordance with the 1940 Act and the rules and regulations thereunder.

percentage of Shares beneficially owned by a 5/10 Percent Shareholder, then such Acquiring Person shall be a “Restricted Holder” and such Shares shall be “Excess Shares,” and such Acquisition of Excess Shares shall not be permitted and such transfer of Excess Shares to the Restricted Holder shall be void ab initio except as authorized pursuant to this Article III, Section 8; provided, however, that for purposes of determining the existence and identity of, and the amount of Shares beneficially owned by, any Acquiring Person or Restricted Holder, the Trust is entitled to rely conclusively on (a) the existence and absence of filings of Schedules 13D and 13G under the 1934 Act (or any similar schedules) as of any date and (b) the Trust’s actual knowledge of the ownership of the Shares.

assignee of its agency hereunder, shall be deemed to be a Shareholder nor be entitled to any rights of a Shareholder, including, but not limited to, any right to vote the Excess Shares or to receive dividends or liquidating distributions in respect thereof, if any, but the Trust or its assignee shall only have the right to sell and transfer the Excess Shares on behalf of and as agent for the transferor to another Person or Persons; provided, however, that an Acquisition by such other Person or Persons does not violate the provisions of this Article III, Section 8. Until the Excess Securities are acquired by an Eligible Transferee, the rights to vote and to receive dividends and liquidating distributions with respect to the Excess Shares shall remain with the transferor. The intended transferee of the Excess Shares and the Restricted Holder with respect to any Excess Shares shall not be entitled to any rights of Shareholders, including, but not limited to, the rights to vote or to receive dividends and liquidating distributions with respect to the Excess Shares. If the Restricted Holder has resold the Excess Shares, the Restricted Holder shall be deemed to have sold the Excess Shares for the Trust in its capacity as agent, and shall be required to transfer to the Trust in its capacity as agent any proceeds of such sale and any dividends or liquidating distributions received in respect of such Excess Shares. In the event of a permitted sale and transfer, whether by the Trust or its assignee, as agent, the proceeds of such sale shall be applied first, to reimburse the Trust or its assignee for any expenses incurred by the Trust acting in its role as the agent for the sale of the Excess Shares, second, to the extent of any remaining proceeds, to reimburse the intended transferee for any payments made to the transferor by such intended transferee for such Shares, and the remainder, if any, to one or more organizations qualifying under Section 501(c)(3) of the Code selected by the Board of Trustees.

Group; (ii) be deemed transferred to the Trust, in the inverse order in which it was acquired by members of the Intended Transferee Group, and (iii) be treated as Excess Shares) to cause the intended transferee, following such transfer to the Trust, not to be in violation of the restrictions contained in this Article III, Section 8; provided, however, that to the extent the foregoing provisions of this subsection (e) would not be effective to prevent an Acquisition in violation of this Article III, Section 8, the restrictions contained in this Article III, Section 8, shall apply to such other Shares beneficially owned by the intended transferee (including Shares actually owned by Other Persons), in a manner designed to minimize the amount of Shares subject to the restrictions contained in this Article III, Section 8, or as otherwise determined by the Board of Trustees to be necessary to prevent an Acquisition in violation of the restrictions contained in this Article III, Section 8 (which Shares shall be treated as Excess Shares).

Article IV

The Board of Trustees.

subsequent three (3) year term and until a successor Trustee to such Trustee is duly elected and shall have qualified; provided that, the hold-over term may be reduced to a two (2) year term or one (1) year term at any time and for any reason by the Board of Trustees (not including the hold-over Trustee for purposes of such vote or consent of the Board of Trustees).

number of vacancies arising therefrom (but not to less than three Trustees) unless or until the Board of Trustees by resolution expressly maintains or increases the size of the Board of Trustees.  Whenever the size of the Board of Trustees is reduced due to such a vacancy, the remaining Trustees shall have all the powers hereunder and the determination of the remaining Trustees shall be conclusive.  In the case of a vacancy arising from a Board of Trustees resolution to maintain or increase the size of the Board of Trustees (or because elimination of such Trustee seat would cause the Board of Trustees to be reduced to fewer than three Trustees), the remaining Trustees may fill such vacancy by appointing such other person as they, in their discretion, shall see fit; provided that such person meets the Trustee Qualifications outlined in Article IV, Section 4.  A Trustee appointed to fill any such vacancy shall serve for the remainder of the term commensurate with the class of Trustees to which such Trustee was appointed. In the event of the death, declination to serve, resignation, retirement, removal, incapacity or inability to serve of all of the then Trustees, the Trust’s Investment Adviser(s) is (are) empowered to appoint new Trustees subject to the provisions of Section 16(a) of the 1940 Act.  An appointment of a Trustee may be made by the Trustees then in office in anticipation of a vacancy to occur by reason of retirement, resignation, or removal of a Trustee, or an increase in the size of the Board of Trustees effective at a later date, provided that said appointment shall become effective only at the time or after the expected vacancy occurs.  

the Trust Property; (11) establish from time to time, in accordance with the provisions of Article III, Section 6 hereof, any Series or class of Shares, each such Series to operate as a separate and distinct investment medium and with separately defined investment objectives and policies and distinct investment purposes; and (12) in general delegate such authority as they consider desirable to any officer of the Trust, to any committee of the Board of Trustees and to any agent or employee of the Trust or to any such custodian, transfer, dividend disbursing or shareholder servicing agent, Principal Underwriter or Investment Adviser.  Any construction or interpretation of this Declaration of Trust by the Trustees and any action taken pursuant thereto and any determination as to what is in the best interests of the Trust and the Shareholders made by the Board of Trustees in good faith shall, in each case, be conclusive and binding on all Shareholders and all other Persons for all purposes.

In construing the provisions of this Declaration of Trust, the presumption shall be in favor of a grant of power to the Trustees.  Unless otherwise specified herein or required by law, any action by the Board of Trustees shall be deemed effective if approved or taken by a Majority Trustee Vote.

Any action required or permitted to be taken by the Board of Trustees, or a committee thereof, may be taken without a meeting if members of the Board of Trustees, or committee thereof, as the case may be, having not less than the  minimum number of votes that would be necessary to authorize or take such action at a meeting at which all Trustees entitled to vote thereon were present consent in writing to that action.  Such action by written consent shall have the same force and effect as if adopted at a meeting of the Board of Trustees, or committee thereof, as the case may be.  Such written consent or consents shall be filed with the minutes of the proceedings of the Board of Trustees, or committee thereof, as the case may be.

The Trustees shall devote to the affairs of the Trust such time as may be necessary for the proper performance of their duties hereunder, but neither the Trustees nor the officers, directors, shareholders or partners of the Trustees, shall be expected to devote their full time to the performance of such duties.  The Trustees, or any Affiliate shareholder, officer, director, partner or employee thereof, or any Person owning a legal or beneficial interest therein, may engage in or possess an interest in any other business or venture of any nature and description, independently or with or for the account of others.  The Trustees who are not Interested Persons of the Trust shall have the authority to hire employees and to retain advisers and experts necessary to carry out their duties.

Adviser), in each case, shall be disqualified from being nominated or serving as a Trustee, unless the Board of Trustees (excluding the vote of any Trustee subject to such vote) determines that such relationship will not: 

shall be disqualified from being nominated or serving as a Trustee.

servicing or acting as an employee, officer, trustee, director, member of an advisory board, Investment Adviser or depositor of, or principal underwriter for, a registered investment company or Affiliated Person of such Investment Adviser, depositor, or principal underwriter shall be disqualified from being nominated or serving as a Trustee.

uninvested and to make changes in the Trust’s or a particular Series’ investments, or such other activities as may specifically be delegated to such party.

Article V

Shareholders’ Voting Powers and Meeting .

which case an affirmative Majority Shareholder Vote shall be required and (y) any additional matter not expressly requiring a vote of Shareholders on which the Trustees determine the Shareholders shall have power to vote shall require the affirmative vote of Shareholders owning at least seventy-five percent (75%) of the outstanding Shares, unless such matter has been previously approved, adopted or authorized by the affirmative vote of at least two-thirds (66 2/3%) of the Board of Trustees, in which case an affirmative Majority Shareholder Vote shall be required.  All approvals by the Shareholders under or pursuant to this Declaration of Trust, the By-Laws, the Delaware Act or otherwise must occur at a meeting of the Shareholders; the Shareholders are not authorized or empowered to take action by written consent.

The determination of whether an election of Trustees is a Contested Election shall be made by an officer of the Trust prior to the time the Trust mails its initial proxy statement in connection with such election of Trustees. If, at the time the vote of Shareholders is taken in connection with such election of Trustees, the number of persons nominated for election as Trustee no longer exceeds the number of Trustees to be elected, such election shall not be considered a Contested Election.

The voting requirements set forth in this Section 3 shall be in addition to, and not in lieu of, any vote of the Shareholders otherwise required by applicable law (including, without limitation, any separate vote by class that may be required by the 1940 Act) or by this Declaration of Trust or the By-Laws.

If the Board of Trustees does not so fix a record date, the record date for determining Shareholders entitled to notice of or to vote at a meeting of Shareholders shall be at the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day which is five (5) business days next preceding to the day on which the meeting is held.

For the purpose of determining the Shareholders of any Series or class who are entitled to receive payment of any dividend or of any other distribution, the Board of Trustees may from time to time fix a date, which shall be before the date for the payment of such dividend or such other distribution, as the record date for determining the Shareholders of such Series or class having the right to receive such dividend or distribution.  Nothing in this Section shall be construed as precluding the Board of Trustees from setting different record dates for different Series or classes.

derivatively or permit the Complaining Shareholders to proceed derivatively, provided however that any counsel representing the interests of the Trust or the affected Series shall be approved by the Trustees. The Trustees, or the appropriate officers of the Trust, shall inform the Complaining Shareholders of any decision reached under this paragraph (c) by sending written notice to each Complaining Shareholder, or the Shareholder’s counsel, if represented by counsel, within five business days of such decision having been reached.

Article VI

Custodian.

The Trustees may also authorize the 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 be a bank, a company that is a member of a national securities exchange, or a trust company organized under the laws of the United States or one of the states thereof and having capital, surplus and undivided profits of at least two million dollars ($2,000,000) or such other person as may be permitted by the Commission, or otherwise in accordance with the 1940 Act.

such deposits shall be subject to withdrawal only upon the order of the Trust or its custodians, sub-custodians or other agents.

Article VII

Net Asset Value, Distributions and Redemptions.

regulations adopted thereunder, and that is in accordance with the terms of such repurchase offer, tender offer, this Declaration of Trust, the By-Laws and other applicable law.  

Article VIII

Compensation and Limitation of Liability of Officers and Trustees.

Trustee or officer, as applicable, shall not be personally liable therefor, except as described in the last sentence of Section 2(a) of this Article VIII.

Article IX

Miscellaneous.

occurrence of any dissolution event pursuant to any Board of Trustees resolution establishing and designating such Series.

Upon dissolution of the Trust (or a particular Series, as the case may be), the Trustees shall (in accordance with§ 3808 of the DSTA) pay or make reasonable provision to pay all claims and obligations of each Series (or the particular Series, as the case may be), including all contingent, conditional or unmatured claims and obligations known to the Trust, and all claims and obligations which are known to the Trust but for which the identity of the claimant is unknown.  If there are sufficient assets held with respect to each Series of the Trust (or the particular Series, as the case may be), such claims and obligations shall be paid in full and any such provisions for payment shall be made in full.  If there are insufficient assets held with respect to each Series of the Trust (or the particular Series, as the case may be), such claims and obligations shall be paid or provided for according to their priority and, among claims and obligations of equal priority, ratably to the extent of assets available therefor.  Any remaining assets (including without limitation, cash, securities or any combination thereof) held with respect to each Series of the Trust (or the particular Series, as the case may be) shall be distributed to the Shareholders of such Series, ratably according to the number of Shares of such Series held by the several Shareholders on the record date for such dissolution distribution.

Board of Trustees followed by the affirmative vote of the holders of not less than 75% of the outstanding Shares of such Series unless such transaction has been previously approved by the affirmative vote of at least two thirds (66 2/3%) of the Board of Trustees, in which case an affirmative Majority Shareholder Vote of such Series shall be required.  Such affirmative vote shall be in addition to the vote of Shareholders otherwise required by law or any agreement between the Trust and any national securities exchange.  Following such sale, conveyance and transfer, the Board of Trustees shall distribute such cash, shares or other securities (giving due effect to the assets and liabilities associated with and any other differences among the various Series the assets associated with which have so been sold, conveyed and transferred) ratably among the Shareholders of the Series the assets associated with which have been so sold, conveyed and transferred (giving due effect to the differences among the various classes within each such Series); and if all of the assets of the Trust have been so sold, conveyed and transferred, the Trust shall be dissolved.

that a Principal Shareholder beneficially owns directly, a Principal Shareholder shall be deemed to be the beneficial owner of any Shares (1) which the Principal Shareholder has the right to acquire pursuant to any agreement or upon exercise of conversion rights or warrants, or otherwise or (2) which are beneficially owned, directly or indirectly (including Shares deemed owned through application of clause (1) above), by any other Person or group with which the Principal Shareholder or its “affiliate” or “associate,” as those terms are defined in Rule 12b-2, or any successor rule, under the 1934 Act, 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 so defined.  For purposes of this Section 5, calculation of the total Shares of the Trust shall not include Shares deemed owned through application of clause (1) above.

Any such determination shall be conclusive and binding for all purposes of this Section 5 in the absence of manifest error.

Notwithstanding the above, the Board of Trustees expressly reserves the right to amend or repeal any provisions contained in this Declaration of Trust or the Certificate of Trust, in accordance with the provisions of Section 5 of Article III hereof, and all rights, contractual and otherwise, conferred upon Shareholders are granted subject to such reservation.  The Board of Trustees further expressly reserves the right to amend or repeal any provision of the By-Laws pursuant to Article IX of the By-Laws.

THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT PERMITTED BY LAW.  All Shareholders and other such Persons agree that service of summons, complaint or other process in connection with any proceedings may be made by registered or certified mail or by overnight courier addressed to such Person at the address shown on the books and records of the Trust for such Person or at the address of the Person shown on the books and records of the Trust with respect to the Shares that such Person claims an interest in.  Service of process in any such suit, action or proceeding against the Trust or any Trustee or officer of the Trust may be made at the address of the Trust’s registered agent in the State of Delaware.  Any service so made shall be effective as if personally made in the State of Delaware.

 

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IN WITNESS WHEREOF, the Trustees named below do hereby make and enter into this Amended and Restated Declaration of Trust as of the date first above written.

 

 

 

/s/ R. Ramin Kamfar                    

R. Ramin Kamfar, Trustee

 

 

 

/s/ Ryan MacDonald                    

Ryan MacDonald, Trustee

 

 

 

/s/ Kamal Jafarnia                         

Kamal Jafarnia, Trustee

 

 

 

/s/ Romano Tio                               

Romano Tio, Trustee

 

 

 

/s/ I. Bobby Majumder                     

I. Bobby Majumder, Trustee

 

 

 

/s/ S. Sori Farsheed                           

S. Sori Farsheed, Trustee