§ 27-1-40-4 — Trust account; requirements; trust agreement

(a) A trust account established under section
3(2) of this chapter must contain, at all times, an amount equal to the
United States branch's reserves and other liabilities, plus the:
(1) minimum capital and surplus requirement; or
(2) authorized control level risk based capital requirement;
whichever is greater, that applies to a domestic company granted a
certificate of authority under this title to transact the same kind of
insurance business as the United States branch transacts.
(b) One (1) or more trustees must be appointed to administer the
trust.
(c) A trust agreement for a trust account established under section
3(2) of this chapter, and amendments to the trust agreement:
(1) must be authenticated in a manner prescribed by the
commissioner; and
(2) are effective only when approved by the commissioner after
the commissioner finds all of the following:
(A) The trust agreement and amendments are sufficient in form
and in conformity with law.
(B) All trustees appointed under subsection (b) are eligible to
serve as trustees.
(C) The trust agreement is adequate to protect the interests of
the beneficiaries of the trust.
(d) The commissioner may withdraw an approval granted under
subsection (c)(2) if, after notice and hearing, the commissioner
determines that one (1) or more of the conditions required under
subsection (c)(2) for approval no longer exist.
(e) The commissioner may approve modifications of, or variations
in, a trust agreement under subsection (c) if the modifications or
variations are not prejudicial to the interests of Indiana residents,
United States policyholders, and creditors of the United States branch.
(f) A trust agreement for a trust account established under section
3(2) of this chapter must contain provisions that:
(1) vest legal title to trust assets in the trustees and lawfully
appointed successors of the trustees;
(2) require that all assets deposited in the trust account be
continuously kept in the United States;
(3) provide for appointment of a new trustee in case of a vacancy,
subject to the approval of the commissioner;
(4) require that the trustees continuously maintain a record
sufficient to identify the assets of the trust account;
(5) require that the trust assets consist of:
(A) cash;
(B) investments of the same kind as the investments in which
funds of a domestic company may be invested; and
(C) interest accrued on the cash and investments specified in
clauses (A) and (B), if collectible by the trustees;
(6) establish that the trust:
(A) is for the exclusive benefit, security, and protection of:
(i) United States policyholders of the United States branch;
and
(ii) United States creditors of the United States branch after
all obligations to policyholders are paid; and
(B) shall be maintained as long as any liability of the United
States branch arising out of the United States branch's insurance
transactions in the United States is outstanding; and
(7) establish that trust assets, other than income as specified in
subsection (g), may not be withdrawn or permitted by the trustees
to be withdrawn without the approval of the commissioner, except
for any of the following purposes:
(A) To make deposits required by the law of any state for the
security or benefit of all policyholders of the United States
branch in the United States.
(B) To substitute other assets permitted by law and at least
equal in value and quality to the assets withdrawn, upon the
specific written direction of the United States manager of the
United States branch when the United States manager is
empowered and acting under general or specific written
authority previously granted or delegated by the alien
company's board of directors.
(C) To transfer the assets to an official liquidator or
rehabilitator under a court order.
(g) A trust agreement for a trust account established under section
3(2) of this chapter may provide that income, earnings, dividends, or
interest accumulations of the trust assets may be paid over to the
United States manager of the United States branch upon request of the
United States manager if the total amount of trust assets following the
payment to the United States manager is not less than the amount
required under subsection (a).
(h) A trust agreement for a trust account established under section
3(2) of this chapter may provide that written approval of the insurance
supervising official of another state in which:
(1) trust assets are deposited; and
(2) the United States branch is authorized to transact insurance
business;
is sufficient, and approval of the commissioner is not required, for
withdrawal of the trust assets in the other state if the amount of total
trust assets after the withdrawal will not be less than the amount
required under subsection (a). However, the United States branch shall
provide written notice to the commissioner of the nature and extent of
the withdrawal.
(i) The commissioner may at any time:
(1) make examinations of the trust assets of a United States
branch that holds a certificate of authority under this chapter, at
the expense of the United States branch; and
(2) require the trustees to file a statement, on a form prescribed by
the commissioner, certifying the assets of the trust account and
the amounts of the assets.
(j) Refusal or neglect of a trustee to comply with this section is
grounds for:
(1) the revocation of the United States branch's certificate of
authority; or
(2) the liquidation of the United States branch.

Legislative History

As added by P.L.173-2007, SEC.20.