TITLE XXXV
BANKS AND BANKING; LOAN ASSOCIATIONS; CREDIT UNIONS
Chapter 383-C
TRUST COMPANY ACT
ARTICLE 1
General Provisions
Section 383-C:1-101
383-C:1-101 Short Title. –
This chapter shall be known and may be cited as the "Trust Company Act."
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:1-102
383-C:1-102 Scope. –
This chapter applies to trust companies, foreign trust companies, and qualified trust advisors. A trust company is a nondepository state bank that engages in trust business and that is chartered under this chapter or prior law. Except as otherwise provided in this chapter, RSA 383-A applies to trust companies, foreign trust companies, and, as provided in article 12 of this chapter, qualified trust advisors.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:1-103
383-C:1-103 Reservation of Power to Amend or Repeal. –
The general court has power to amend or repeal all or part of this chapter at any time, and all persons subject to this chapter are governed by the amendment or repeal.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:1-104
383-C:1-104 Commissioner. –
The commissioner shall have the powers necessary or incidental to performing all of the commissioner's duties under this chapter, including the power to adopt rules as provided in this chapter in accordance with RSA 541-A. All rules previously adopted by the commissioner relating to the subject matter of this chapter shall be subject to RSA 541-A:17, except for rules adopted under RSA 394-A:7 which shall continue in full force and effect until amended or repealed.
Source. 2015, 272:16, eff. Oct. 1, 2015.
ARTICLE 2
Definitions
Section 383-C:2-201
383-C:2-201 Definitions. –
(a) Each term defined under RSA 383-A shall have the same meaning for purposes of this chapter.
(b) For purposes of this chapter, the following definitions shall also apply:
(1) "Change of ownership of a trust company" means the acquisition through a single transaction or a series of related transactions of 10 percent or more of a trust company's equity. The acquirer or acquirers of trust company equity under a change of ownership of a trust company is or are referred to as a new owner or new owners.
(2) "Change of control of a trust company" means a single transaction or a series of related transactions that results in any of the following consequences: (i) a direct or indirect transfer of ownership of more than 50 percent of the issued and outstanding voting equity of a trust company; (ii) a combination to which any trust company is a party; (iii) the transfer by a trust company to any other person of all or substantially all of the assets held in trust or otherwise under management by the trust company; or (iv) conversion of a trust company to another entity form. The acquirer or acquirers of trust company equity or assets, the successor, or the survivor with respect to any change of control of a trust company is or are referred to as the acquirer or acquirers of control.
(3) "Foreign trust company" means an entity that is formed under the laws of a state or jurisdiction other than this state and is authorized to engage in trust business.
(4) "Qualified trust advisor" has the meaning specified in RSA 383-C:12-1201.
(5) "Required capital" means the total amount of capital that a trust company is required to maintain under RSA 383-C:5-502.
(6) "Trust business" shall include the business of doing any or all of the things specified in RSA 383-C:3-301(b) through RSA 383-C:3-301(q).
(7) "Trust office" means a place of business of a trust company at which trust business is conducted, but shall not include an office that provides only administrative services or support for its trust business. The commissioner may define by rule which administrative services or support for a trust business would qualify for exemption from this definition and the procedure for requesting such exemption.
Source. 2015, 272:16, eff. Oct. 1, 2015. 2019, 169:11, eff. Sept. 8, 2019.
ARTICLE 3
Trust Business
Section 383-C:3-301
383-C:3-301 Trust Business Generally. –
Consistent with a business plan and capital plan approved by the commissioner and for so long as it is authorized to transact business in this state and holds a valid charter as a trust company, a trust company shall have power:
(a) To execute all the powers and possess all the privileges conferred on state banks, other than the power to accept deposits;
(b) To be appointed and to act as trustee, trust advisor, or trust protector of any trust or as executor of any estate;
(c) To be appointed and to act as receiver, assignee, or agent for any person or entity;
(d) To act as fiscal or transfer agent of the United States or any other person or entity and, in that capacity, to receive and disburse money;
(e) To transfer, register, and countersign certificates of stock, bonds, or other evidences of indebtedness and to act as attorney-in-fact or agent of any entity for any purpose, statutory or otherwise;
(f) To act as trustee under any mortgage, bonds, or debentures issued by any person, and to accept and execute any municipal or corporate trust;
(g) To receive and manage any sinking fund of any entity upon those terms as may be agreed upon between the entity and those dealing with, or having an interest in, the sinking fund;
(h) To collect coupons on, or interest upon, all manner of securities, when authorized so to do, by the parties depositing the securities;
(i) To accept trusts from and execute trusts for married persons in respect of the separate property of the married persons, to be their individual or joint agent in the management of the property, and to transact any business in relation to the property;
(j) To act as receiver or trustee of the estate of any person, or to be appointed to any trust by any court; to act as assignee under any assignment for the benefit of creditors of any debtor, whether made under statute or otherwise, and to be the custodian of any moneys or assets paid into court;
(k) To be appointed and to act under the order or appointment of any court of competent jurisdiction or otherwise (i) as guardian, receiver, trustee, committee, or conservator of the estate of any minor, any person deemed by law to be incompetent to manage his or her affairs, or any other conservatee, or in any other fiduciary capacity, or (ii) as receiver, trustee, or committee of the property or estate of any person in insolvency or bankruptcy proceedings; but this power shall not be construed to deprive any other person of any legal right to have issued to the person a letter of guardianship or of administration;
(l) To be appointed and to accept the appointment of executor of, or trustee under, the last will and testament, or administrator with or without the will annexed, of the estate of any deceased person;
(m) To act in a fiduciary capacity, including (i) to take, and accept, and execute any and all trusts, duties, or powers of whatever nature or description that may be conferred upon or entrusted or committed to the trust company by any person; (ii) to exercise any other authority, trust, or power conferred upon or entrusted or committed to the trust company by grant, assignment, transfer, devise, bequest, or otherwise; (iii) to exercise any power or authority that may be granted to the trust company by order of any court of competent jurisdiction or any surrogate; and (iv) to receive, take, use, manage, hold, and dispose of, according to the terms of any trust, duty, or powers any property or estate, real or personal, that is the subject of the trust, duty, or power;
(n) Generally to execute trusts of every description not inconsistent with law;
(o) To purchase, invest in, sell, and otherwise transact in securities, promissory notes, bills of exchange, bonds, debentures, or mortgages and, when moneys are borrowed or received for investment, to provide security for the borrowing or receipt of money for investment, so long as the trust company does not issue any surety or insurance for investment or engage in the business of receiving or holding deposits;
(p) To act as trustee for a New Hampshire investment trust organized under RSA 293-B;
(q) To act as a custodian for any person to hold the property, including the person's securities, bonds, and cash, in custody for safekeeping, so long as a trust company does not engage in the business of receiving of deposits; and
(r) To purchase for the fiduciary estate directly from underwriters or distributors or in the secondary market:
(1) Bonds or other securities underwritten or distributed by the trust company or an affiliate of the trust company or by a syndicate which includes the trust company or affiliate, provided that the trust company discloses in any written communication or account statement reflecting the purchase of the bonds or securities the nature of the interest of such trust company or affiliate in the underwriting or distribution of the bonds and securities and whether the trust company or affiliate received any fee in connection with the purchase; and
(2) Securities of any investment company as defined under the federal Investment Company Act of 1940 for which the trust company or affiliate acts as advisor, distributor, transfer agent, registrar, sponsor, manager, shareholder servicing agent, or custodian, provided that the trust company discloses in any written communication or account statement reflecting the purchase of the securities the nature of the relationship and whether the trust company or affiliate received any fee for providing such services.
(3) The authority granted in paragraphs (1) and (2) of this subsection may be exercised only if:
(i) The investment is not expressly prohibited by the instrument, judgment, decree, or order establishing the fiduciary relationship;
(ii) The trust company discloses in writing to the person or persons to whom it sends account statements its intent to exercise the authority granted in paragraphs (i) and (ii) prior to the first exercise of that authority; and
(iii) The trust company procures in writing the consent of its cofiduciaries with discretionary investment powers, if any, to the investment.
(4) A trust company, acting in a fiduciary capacity pursuant to paragraphs (1) and (2), may:
(i) Invest in the securities of an investment company, investment trust, or other company to which the fiduciary or its affiliate provides services in a capacity other than as trustee, such as advisor, distributor, transfer agent, registrar, sponsor, manager, shareholder servicing agent, administrator, or custodian, and the investment is not presumed to be affected by a conflict between personal and fiduciary interests if the investment complies with the prudent investor standard pursuant to article 9 of RSA 564-B.
(ii) Be compensated by the investment company, investment trust, or other company for providing services in a capacity other than as trustee, such as advisor, distributor, transfer agent, registrar, sponsor, manager, shareholder servicing agent, administrator, or custodian, if the fiduciary at least annually notifies each person to whom it is required to send account statements under RSA 564-B:8-813 of the rate and method by which the compensation was determined.
(5) Nothing in this subsection shall affect the degree of prudence which is required of fiduciaries under the laws of this state. Any bonds or securities purchased under authority of this section shall have sufficient liquidity and investment quality to satisfy the principles of fiduciary investment and the terms of the instrument, judgment, decree, or order establishing the fiduciary relationship.
(6) No trust company which is acting in a fiduciary capacity shall purchase for the fiduciary estate any fixed income or equity security issued by the trust company or an affiliate thereof, unless the trust company is expressly authorized to do so by the terms of the instrument creating the trust, a court order, the written consent of the grantor of the trust, or the written consent of the qualified beneficiaries of the trust, as defined in RSA 564-B:1-103.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:3-302
383-C:3-302 No Acceptance of Deposits. –
A trust company shall not have the power to accept deposits, and a trust company's organizational instrument shall include a statement that the trust company does not have the power to accept deposits.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:3-303
383-C:3-303 No Bond. –
Unless required by the order of a court with proper jurisdiction, no trust company authorized to act as trustee or executor in this state shall be required to give bond to secure performance of the trust company's duties as trustee or executor.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:3-304
383-C:3-304 Nominees. –
Any trust company while acting in a fiduciary or custodial capacity, either alone or jointly with a person or persons, may cause any stock or other securities to be registered and held in the name of a nominee without mention of the fiduciary or custodial relationship.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:3-305
383-C:3-305 Depositing Securities. –
Any trust company while acting in a fiduciary capacity, or as an agent or custodian or any fiduciary acting for itself, is authorized to deposit or arrange for the deposit of securities with a bank or other regulated financial-service entity. At all time, the records of any trust company shall show the name of the party for whose account the securities are so deposited.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:3-306
383-C:3-306 Denial of Charter. –
No person shall be granted a charter to transact business as a trust company if the commissioner determines that the applicant for a charter will not conduct the proposed trust business by the applicant in a safe and sound manner.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:3-307
383-C:3-307 Trust Company Business Plan; Amendments to Business Plan. –
A trust company's board of directors shall adopt a business plan that specifies (i) the trust business and other business in which the trust company will engage, (ii) the trust company's management and operation structures, including information technology, (iii) the trust company's disaster recovery or contingency plan, and (iv) other information relevant to the governance, operation, equity ownership, and business of the trust company, including other information as may be prescribed by the commissioner. A trust company's business plan shall be such as will assure the safety and soundness of the trust company. A trust company's board of directors shall obtain the commissioner's approval of any material amendment of its business plan as provided in RSA 383-C:8-801.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:3-308
383-C:3-308 Trust Company Capital Plan and Amendments to Capital Plan. –
A trust company's board of directors shall adopt a capital plan that specifies (i) the amount of the trust company's capital, (ii) including its required capital, the quality, liquidity, and sources of the trust company's capital, (iii) the proposed investment of the trust company's capital and (iv) other information relevant to the capital of the trust company, including other information as may be prescribed by the commissioner. A trust company's capital plan shall be such as will assure the safety and soundness of the trust company. A trust company's board of directors also shall approve and adopt each amendment to the trust company's capital plan. A trust company shall obtain the commissioner's approval of any material amendment of its capital plan as provided in RSA 383-C:8-801.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:3-309
383-C:3-309 Change to Approved Business Plan or Capital Plan. –
No trust company shall engage in trust business that is materially different from, or inconsistent with, the business plan or capital plan approved by the commissioner. A trust company may effect a material amendment to the trust company's business plan or capital plan under RSA 383-C:8-801.
Source. 2015, 272:16, eff. Oct. 1, 2015.
ARTICLE 4
Safety and Soundness
Section 383-C:4-401
383-C:4-401 Safety and Soundness. –
For purposes of determining the safety or soundness of a trust company or any act that a trust company has taken or proposes to take, the commissioner shall consider the following factors:
(a) The nature and type of fiduciary activities that the trust company conducts or proposes to conduct;
(b) The complexity of fiduciary duties that the trust company has or proposes to have;
(c) The degree of discretion that the trust company has or proposes to have;
(d) The amount, nature, and types of fiduciary assets that the trust company holds or manages, or projects to hold or manage;
(e) The nature and type of non-fiduciary activities that the trust company conducts or proposes to conduct;
(f) The character, qualifications, competence, and experience of the trust company's directors, and executive officers;
(g) The extent and adequacy of the trust company's proposed or existing internal controls and risk management procedures;
(h) The amount of the trust company's capital, fidelity bond, and errors and omissions insurance, and the adequacy of those resources for purposes of protecting the trust company's clients;
(i) The ability of a parent or affiliate of the trust company to serve as a source of strength for the trust company;
(j) The quality, liquidity, amount, and source of the trust company's capital;
(k) The market or markets that the trust company serves or proposes to serve;
(l) The trust company's financial success, the prospects for future financial success, and the reasonableness of its business plans;
(m) The existence and adequacy of insurance obtained or held by the trust company for the purpose of protecting the trust company's clients and the settlors and beneficiaries of any trust of which the trust company is serving or proposes to serve as a trustee;
(n) The quality and results of prior financial audits and any fiduciary compliance audits, and the results of prior examinations;
(o) The adequacy of the trust company's operating systems, such as the trust company's information technology systems, the trust company's cybersecurity systems, and the trust company's disaster protection and recovery systems;
(p) The trust company's past experience complying with applicable laws and its potential for compliance with applicable laws in the future; and
(q) Any other relevant factors under rules that the commissioner may adopt.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:4-402
383-C:4-402 Consideration of Safety and Soundness of Trust Companies. –
The commissioner shall consider the safety and soundness of a trust company and may make findings relative to a trust company's safety and soundness: (i) when considering any application or notice submitted by a trust company or by any person proposing to be chartered as a trust company; (ii) when examining or investigating the trust company; (iii) when determining whether or not to initiate any proceeding or issue any no-objection letter, notice, determination; (iv) or order in respect of a trust company, its directors, or its officers, or otherwise as required by this chapter or as the commissioner determines in the commissioner's discretion.
Source. 2015, 272:16, eff. Oct. 1, 2015.
ARTICLE 5
Required Capital; Fidelity Bond; Liability Insurance; Liquidation Pledge
Section 383-C:5-501
383-C:5-501 Required Capital, Fidelity Bond, Liability Insurance Generally. –
A trust company shall maintain the level of capital required under RSA 383-C:5-502, a fidelity bond under RSA 383-A:4-405, an errors and omissions liability insurance policy under RSA 383-A:4-406, and a liquidation pledge under RSA 383-C:5-503. The commissioner shall consider a trust company's safety and soundness and the protection of the trust company's clients in determining the appropriate amounts of required capital, fidelity bond coverage, errors and omissions liability insurance coverage, and liquidation pledge for the trust company. In addition to the requirements in RSA 383-A:4-405 and RSA 383-A:4-406, any insurance deductible shall be reasonable and shall not jeopardize the safe and sound operation of the trust company.
Source. 2015, 272:16, eff. Oct. 1, 2015. 2019, 169:12, eff. Sept. 8, 2019.
Section 383-C:5-502
383-C:5-502 Required Capital. –
(a) The minimum required capital of a trust company is $500,000. The commissioner may require a trust company to maintain required capital in excess of the minimum required capital.
(b) After a trust company is granted authority to transact business, a trust company shall maintain capital consistent with the trust company's capital plan and not less than the required capital determined by the commissioner for the trust company. Upon notice to a trust company and in consideration of the trust company's safety and soundness, the commissioner may: increase the amount of the trust company's required capital, or the commissioner may reduce the amount of trust company's required capital. All changes to the trust company's required capital shall be reflected in one or more amendments to the trust company's capital plan.
(c) After a trust company is granted authority to transact business, a trust company shall hold and invest its capital, including the trust company's required capital, in accordance with the trust company's capital plan. The investment of a trust company's capital shall be in manner consistent with the prudent investor standard under RSA 564-B:9-902. Consistent with trust company safety and soundness and the prudent investor standard, a trust company's capital plan may permit a trust company to invest a portion of its capital, including a portion of the trust company's required capital, in any investment that has principal risk.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:5-503
383-C:5-503 Liquidation Pledge. –
(a) To defray the costs of liquidation of a trust company by the commissioner under RSA 395, a trust company shall pledge to the commissioner cash or securities in accordance with this section. In the event of a liquidation of a trust company under RSA 395 and without regard to any priorities, preferences, or adverse claims, the commissioner may claim all or any amount of the cash or securities so pledged, as applicable, liquidate the claimed securities, and, as soon as practicable, utilize the cash claimed or received upon liquidation of pledged securities to defray the costs of the trust company liquidation. To satisfy the obligation of a trust company to provide liquidation pledge, the trust company's parent or affiliate may pledge cash or securities on behalf of the trust company. The commissioner may specify the types of securities that may be pledged, or the commissioner may require a pledge of cash. The pledged cash or securities shall be held at a bank located in this state, a Federal Reserve Bank, or any other depository entity approved by the commissioner in the commissioner's discretion. Any fees associated with establishing and maintaining a pledge under this section shall be the responsibility of the trust company.
(b) In consideration of the safety and soundness of a trust company, the commissioner shall determine and, upon notice to a trust company, may increase or reduce the amount of cash or the value of securities pledged to the commissioner under this section so long as the amount of cash or value of securities required to be pledged is not less than $250,000 nor more than $1,000,000. If the commissioner requires a trust company to increase the trust company's required liquidation pledge, then the commissioner shall afford the trust company a reasonable time within which to achieve the increase in the trust company's required liquidation pledge and shall specify the reasonable time in the notice of increase provided to the trust company under this section. The amount of cash or value of securities pledged by a trust company shall not be reduced below the level determined by the commissioner, as adjusted by the commissioner, except (i) upon liquidation of the trust company under RSA 395, or (ii) as permitted to fund a special assessment under RSA 383:11-b.
(c) A trust company may apply to provide a letter of credit in lieu of pledging cash or securities by filing with the commissioner an application to provide a letter of credit.
(1) In accordance with RSA 383-A:6-604, the commissioner shall make a determination as to whether the trust company qualifies to provide a letter of credit.
(2) A trust company qualifies to provide a letter of credit if:
(A) Under the terms of the letter of credit, the issuing bank unconditionally agrees to pay the liquidation pledge amount to the commissioner upon presentation of a written instrument that is signed by the commissioner and states that the commissioner has commenced the liquidation of a trust company under RSA 395;
(B) The issuing bank is:
(i) A depository bank;
(ii) A national bank having a branch or office in this state;
(iii) A federal savings bank having a branch or office in this state; or
(iv) A foreign state bank having a branch or office in this state;
(C) The letter of credit is:
(i) Irrevocable during its term; and
(ii) On a form prescribed by the commissioner.
(D) For purposes of securing the trust company's obligation to pay to the issuing bank any amounts that the commissioner draws against the letter of credit, the trust company or other person:
(i) Grants to the issuing bank a security interest in money or other property in an amount that is not less than 120 percent of the liquidation pledge amount;
(ii) Together with the issuing bank, executes a collateral pledge and security agreement that:
(a) Is irrevocable during the term of the letter of credit;
(b) Requires the pledgor to transfer to the issuing bank money or other property sufficient to maintain the minimum collateral amount under subsection (c)(2)(D)(i) at all times during the term of the letter of credit; and
(c) Is in a form acceptable to the commissioner; and
(E) Under the collateral pledge and security agreement or other agreement the issuing bank agrees that:
(i) If the commissioner draws against the letter of credit, then the issuing bank may claim its right of reimbursement only against the collateral in which the issuing bank has a security interest under the collateral pledge and security agreement;
(ii) Except as provided under subsection (c)(2)(E)(i), the issuing bank waives any right of reimbursement against the trust company, and the issuing bank may not claim its right of reimbursement against the liquidation estate of the trust company;
(iii) The letter of credit will be drawn in the event of a failure of the institution requiring liquidation by the commissioner; and
(iv) If, for any reason, the letter of credit is terminated, it shall immediately notify the commissioner.
(3) If the commissioner approves the trust company's application to provide a letter of credit, then the trust company shall continuously maintain the letter of credit in accordance with this subsection until it pledges cash or securities in accordance with subsection (a).
(4) The trust company shall pay any fees and expenses associated with obtaining and maintaining the letter of credit and the collateral pledge and security agreement.
Source. 2015, 272:16, eff. Oct. 1, 2015. 2017, 257:36, eff. Sept. 16, 2017.
ARTICLE 6
Directors and Officers
Section 383-C:6-601
383-C:6-601 Directors. –
(a) The board of directors of a trust company shall be composed of at least 5 directors. A director need not be a resident of New Hampshire or a citizen of the United States, unless otherwise required by the commissioner in consideration of the trust company's safety and soundness.
(b) Every new director shall submit to a background investigation and criminal history records check, to include submission of financial and other information in accordance with RSA 383-A:3-305(e). A trust company shall submit notice of any material change related to the background investigation and criminal history records check of any director or any new information related to the experience, ability, standing, competence, trustworthiness, and integrity of a director that could jeopardize the safe and sound operation of the trust company within 30 days of learning of such change. The cost of any examination or investigation of the background information and criminal history shall be paid by the trust company.
Source. 2015, 272:16, eff. Oct. 1, 2015. 2021, 194:17, eff. Oct. 9, 2021.
Section 383-C:6-602
383-C:6-602 Board Meetings. –
A trust company's board of directors shall meet on a regular basis no less than once each calendar quarter or with greater frequency as the board determines is necessary or as the commissioner requires in consideration of the trust company's safety and soundness.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:6-603
383-C:6-603 Officers. –
(a) In the case of a trust company organized as a corporation, the trust company shall have a president, a treasurer, and a secretary and may appoint one or more other officers.
(b) In the case of a trust company organized as a limited liability company, the trust company shall have one or more officers, whose titles, duties, and powers are set forth in the trust company's governing documents. The trust company shall designate each officer whose duties and powers are functionally equivalent to the duties and powers customarily held by the president, treasurer, or secretary of a corporation.
(c) The board of directors shall appoint each officer in accordance with the trust company's governing documents. The board of the directors shall have the power to remove each officer. Except as otherwise provided in the governing documents, an officer shall serve for a term that that does not exceed 3 years.
(d) RSA 383-A:5-504 shall not apply to trust companies.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:6-604
383-C:6-604 Removal of Directors or Officers by Commissioner. –
In addition to the grounds for removal set forth in RSA 383-A:9-902, the commissioner may also remove a director or officer of a trust company if, in the opinion of the commissioner, the director or officer does not possess the experience, ability, standing, competence, trustworthiness, and integrity to ensure the safe and sound operation of the trust company. The commissioner shall act in accordance with the procedure described in RSA 383-A:9-902 for any such removal.
Source. 2021, 194:18, eff. Oct. 9, 2021.
ARTICLE 7
Offices
Section 383-C:7-701
383-C:7-701 Offices Generally. –
A trust company may operate out of one or more trust offices and other offices located within the state or in any other state or jurisdiction consistent with the trust company's business plan.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:7-702
383-C:7-702 Opening or Relocation of Trust Office. –
Before opening or relocating a trust office, a trust company that has been transacting business for more than 3 years shall submit a notice to establish a trust office under RSA 383-A:6-602. During the first 3 years of transacting business, a company shall submit an application to open or relocate a trust office unless the opening or relocation is expressly provided in the trust company's business plan as approved by the commissioner. A trust company that submits such an application may proceed with the opening or relocation of the trust office if permitted by the commissioner under RSA 383-A:6-604.
Source. 2015, 272:16, eff. Oct. 1, 2015. 2017, 209:11, eff. Sept. 8, 2017.
Section 383-C:7-703
383-C:7-703 Trust Office Closure. –
At least 10 days before closing a trust office, a trust company shall provide notice of the closure to the commissioner under RSA 383-A:6-602 and may proceed to close the trust office after filing the notice without further action by the commissioner.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:7-704
383-C:7-704 Examination of Out-of-State Trust Offices. –
The commissioner may enter into agreements with any regulatory authority having jurisdiction to examine out-of-state trust offices of trust companies. For those examinations, the cost shall be the same as that provided in RSA 383:11.
Source. 2015, 272:16, eff. Oct. 1, 2015. 2019, 168:12, eff. Sept. 8, 2019.
ARTICLE 8
Trust Company Changes
Section 383-C:8-801
383-C:8-801 Application for Change of Trust Company Business Plan or Capital Plan. –
(a) Before the effective date of any material, proposed change to the business plan or the capital plan of a trust company, the trust company shall file an application with the commissioner describing the material, proposed amendment to its business plan or capital plan as required under RSA 383-A:6-602 and this section.
(b) The application concerning a material, proposed change of business plan or capital plan of a trust company shall include the following information:
(1) The terms and conditions of each material, proposed change to the business plan or the capital plan of the trust company and the proposed effective date of the change.
(2) A description of any impact of the each material, proposed change to the business plan or to the capital plan of the trust company on the trust company's safety and soundness.
(c) No material, proposed change to the business plan or the capital plan of a trust company shall be effective until the commissioner, acting under RSA 383-A:6-604, approves the proposed change.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:8-802
383-C:8-802 Application for Change of Ownership of Trust Company. –
(a) Before consummation of any proposed change of ownership of a trust company, the new owner or new owners of trust company equity shall file an application with the commissioner describing the proposed change of ownership of the trust company as required under RSA 383-A:6-602 and this section. The application for a proposed change of ownership of a trust company shall be in the form prescribed by the commissioner and shall include the following information:
(1) The identity, personal history, business background, and experience of the proposed new owner or new owners, including (i) each new owner's material business activities and affiliations during the past 5 years, (ii) a description of any material pending legal or administrative proceedings in which the new owner is a party and (iii) a description of any criminal indictment or conviction of the new owner by a state or federal court. To fulfill the requirements of (iii), the commissioner may require the proposed owner or owners to submit to a criminal history records check by following the procedure prescribed under RSA 383-A:3-305(e)(3)-(4);
(2) A statement of the assets and liabilities of each new owner as of the end of the fiscal year for each of the 3 fiscal years immediately preceding the date of the notice and an interim statement of the assets and liabilities of the new owner as of a date not more than 90 days before the date of the notice;
(3) The material terms and conditions of the proposed change of ownership of the trust company and the manner in which the transaction is to be consummated.
(b) Except as provided in subsection (c), a change of ownership of a trust company shall not be effective until the commissioner, acting under RSA 383-A:6-604, approves the proposed change of ownership.
(c) If a change of ownership of a trust company occurs by reason of an involuntary change of ownership outside the reasonable control of the owner of trust company equity, then the trust company, either alone or with the new owner or new owners, shall file with the commissioner the application described in subsection (a) as promptly as reasonably practicable after the occurrence of that involuntary change of ownership. Any new owner or new owners holding trust company equity as a result of an involuntary change of ownership shall hold the trust company equity subject to determination of the commissioner under RSA 383-C:8-804.
Source. 2015, 272:16. 2016, 230:2, eff. Aug. 8, 2016.
Section 383-C:8-803
383-C:8-803 Application for Change of Control of Trust Company. –
(a) Before consummation of any proposed change of control of a trust company, the trust company, either alone or with the acquirer or acquirers of control, shall file an application with the commissioner describing the proposed change of control of the trust company as required under RSA 383-A:6-602 and this section. The application for a proposed change of control of a trust company shall be in the form prescribed by the commissioner and shall include the following information:
(1) The identity, personal history, business background, and experience of the proposed acquirer or acquirers of control, including (i) each acquirer's material business activities and affiliations during the past 5 years, (ii) a description of any material pending legal or administrative proceedings in which the acquirer is a party and (iii) a description of any criminal indictment or conviction of the acquirer by a state or federal court. To fulfill the requirements of (iii), the commissioner may require the proposed owner or owners to submit to a criminal history records check by following the procedure prescribed under RSA 383-A:3-305(e)(3)-(4);
(2) A statement of the assets and liabilities of any acquirer of control as of the end of the fiscal year for each of the 5 fiscal years immediately preceding the date of the notice, together with related statements of income and source and application of funds for each of the fiscal years then concluded, and an interim statement of the assets and liabilities for any person, together with related statements of income and source and application of funds, as of a date not more than 90 days before the date of the notice;
(3) The material terms and conditions of the proposed change of control of the trust company and the manner in which the transaction is to be made;
(4) The identity, source, and amount of the funds or other consideration used or to be used in consummating the change of control of a trust company and, if any part of these funds or other consideration has been or is to be borrowed or otherwise obtained for the purpose of effecting the change of control, a description of the transaction, the names of the parties to the transaction, and any arrangements, agreements, or understandings with these transaction parties;
(5) Any plans or proposals which any acquirer may have to liquidate the trust company, to sell its assets or combine it with any company, or to make any other material change in the business, structure, operations, capital, or management of the trust company; and
(6) Any additional relevant information in such forms as the commissioner may require by specific request in connection with any particular notice.
(b) Except as provided in subsection (c), a change of control of a trust company shall not be effective until the commissioner, acting under RSA 383-A:6-604, approves the proposed change of control.
(c) If a change of control of a trust company occurs by reason of an involuntary change of control outside the reasonable control of the trust company and each of the owners of trust company equity, then the trust company, either alone or with the acquirer or acquirers of control, shall file with the commissioner the application described in subsection (a) as promptly as reasonably practicable after the occurrence of that involuntary change of control. Any acquirer or acquirers of control acquiring control over a trust company as a result of an involuntary change of control shall hold control, including equity, assets, or other rights so acquired in trust, pending determination of the commissioner under RSA 383-C:8-804.
Source. 2015, 272:16. 2016, 230:3, eff. Aug. 8, 2016.
Section 383-C:8-804
383-C:8-804 Commissioner Determination. –
After receipt of an application under RSA 383-C:8-801, RSA 383-C:8-802, or RSA 383-C:8-803 that is deemed substantially complete under RSA 383-A:6-603, the commissioner shall make a determination under RSA 383-A:6-604.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:8-805
383-C:8-805 Disapproval. –
(a) If the proposed change would adversely affect the safety and soundness of the trust company, then the commissioner may make a decision under RSA 383-A:6-604 to disapprove a proposed change to a capital plan or business plan, a proposed change of ownership of a trust company, or a proposed change of control of a trust company.
(b) In addition to the reasons for disapproval under subsection (a), the commissioner may make a decision under RSA 383-A:6-604 to disapprove a proposed change of ownership of a trust company or a proposed change of control of a trust company for any of the following reasons:
(1) The proposed change of ownership of the trust company or the proposed change of control of the trust company would violate any law, including any securities law of this state;
(2) The financial condition, competence, experience, or integrity of any acquirer is such as might jeopardize the safety and soundness of the trust company, including any successor to the trust company, or prejudice the interests of the clients of the trust company; and
(3) Any acquirer neglects, fails, or refuses to furnish the commissioner all the information required by the commissioner.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:8-806
383-C:8-806 Internal Reorganization Not a Change in Ownership or Change in Control. –
The acquisition or transfer of the equity or indirect ownership of a trust company between entities under common control that are affiliated with the trust company, so that, after giving effect to the acquisition or transfer, the ultimate, indirect ownership of the trust company remains the same, shall not be considered a change of ownership of the trust company or a change in control of the trust company for purposes of this chapter.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:8-807
383-C:8-807 Interim Trust Company. –
If an interim entity is formed solely for the purpose of effecting a change in control of any trust company that is authorized to conduct trust business under a valid charter, the interim entity shall not be obligated to obtain a charter or authority to transact business as a state bank subject to the supervision of the commissioner so long as the only business or activity in which the interim entity engages is to effect a change of control of a trust company permitted under this chapter.
Source. 2015, 272:16, eff. Oct. 1, 2015.
ARTICLE 9
Conservatorship to Address Safety and Soundness Issues
Section 383-C:9-901
383-C:9-901 Appointment of Conservator. –
If the commissioner determines that the business of any trust company is being conducted in an unsafe or unsound manner, then the commissioner may appoint a conservator for the trust company under RSA 396 who shall immediately take charge of the operation of the trust company for the purpose of correcting any unsafe or unsound condition or operation. After appointment, the conservator shall continue to serve under the direction of the commissioner for a period of time as the commissioner determines is reasonable and necessary or until relieved by order of the commissioner or of a court of competent jurisdiction. The conservator's salary, which shall be determined by the commissioner, and expenses shall be borne by the trust company under conservatorship. Except as provided in this section, a conservatorship of a trust company shall be governed by RSA 396.
Source. 2015, 272:16, eff. Oct. 1, 2015.
ARTICLE 10
Dissolution
Section 383-C:10-1001
383-C:10-1001 Authority to Dissolve. –
A trust company may voluntarily dissolve in the manner provided in this article. Upon dissolution under this section, a trust company shall surrender its trust company charter to the commissioner and shall not have authority to transact business as a state bank or to engage in trust business in this state. Dissolution of a trust company may be accomplished by the liquidation of the trust company or by reorganizing the trust company into an entity that does not have authority to transact business as a state bank or conduct trust business in this state.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:10-1002
383-C:10-1002 Voluntary Dissolution by Liquidation. –
A trust company that voluntarily dissolves by means of liquidation shall comply with the procedures for a voluntary dissolution set forth in the applicable the Organizational Acts, but any filing required by applicable law to be submitted to the secretary of state instead shall be submitted to the commissioner.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:10-1003
383-C:10-1003 Voluntary Dissolution by Reorganization. –
A trust company that voluntarily dissolves by means of a reorganization into an entity that is not authorized to engage in trust business shall be subject to the provisions of this article and the procedures for a reorganization into the type of entity as set forth in the provisions of state and foreign law applicable to that type of entity. Any filing required by applicable law of this state to be submitted to the secretary of state shall first be submitted to the commissioner under this article.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:10-1004
383-C:10-1004 Application for Dissolution. –
(a) Before a trust company may dissolve its charter under RSA 383-C:10-1002 or RSA 383-C:10-1003, the trust company shall file with the commissioner an application for dissolution.
(b) The application shall include a comprehensive plan of dissolution setting forth the proposed disposition of all assets and liabilities in reasonable detail to effect the liquidation or reorganization.
(c) The plan of dissolution shall include arrangements for:
(1) The discharge or assumption of all of the trust company's known or unknown claims and liabilities;
(2) With respect to each trust of which it serves as a trustee, trust advisor, or trust protector, the appointment of a successor trustee, trust advisor, or trust protector; and
(3) With respect to each other account or arrangement of which it serves as a fiduciary, the appointment of a successor fiduciary.
(d) In connection with any further investigation or examination that the commissioner conducts in accordance with RSA 383-A:6-604, the trust company shall provide to the commissioner any certifications, affidavits, documents, and information with respect to the dissolution as the commissioner may request concerning:
(1) How assets and liabilities will be disposed of;
(2) The timetable for effecting disposition of trust company assets and liabilities; and
(3) The dissolving trust company's proposal for dealing with any claims that are asserted after the dissolution has been completed.
Source. 2015, 272:16, eff. Oct. 1, 2015. 2017, 209:19, eff. Sept. 8, 2017. 2019, 169:13, eff. July 10, 2019.
Section 383-C:10-1005
383-C:10-1005 Commissioner Determination. –
After receipt of an application for dissolution under RSA 383-C:10-1004, the commissioner shall make a determination under RSA 383-A:6-604.
Source. 2015, 272:16, eff. Oct. 1, 2015. 2017, 209:19, eff. Sept. 8, 2017.
Section 383-C:10-1006
383-C:10-1006 Completion of Plan of Dissolution. –
(a) Upon issuance of the commissioner's decision approving a trust company's application for dissolution, the trust company may dissolve in accordance with the terms of its application for dissolution and plan for dissolution.
(b) Upon completion of all actions required under the plan for dissolution and compliance with any conditions prescribed by the commissioner, the trust company shall submit a report of its actions to the commissioner.
(c) The trust company's board of directors shall certify, under oath, that the report is true and correct.
(d) Following receipt of the report, the commissioner may examine the trust company to determine whether:
(1) All required actions have been taken to liquidate or reorganize the trust company in accordance with the plan for dissolution; and
(2) The trust company complied with any conditions prescribed by the commissioner.
(e) After receiving the trust company's report, determining that the required actions under the plan for dissolution have been completed, and determining that the trust company complied with any conditions prescribed by the commissioner, the commissioner shall notify the trust company that the dissolution has been completed and is final.
(1) The notice shall supplement the approval of the application for dissolution issued by the commissioner under RSA 383-A:6-604.
(2) After receiving the notice, the trust company shall surrender its charter to the commissioner, and the commissioner shall issue a certificate of dissolution, which the trust company shall file with the secretary of state in accordance with RSA 383-C:10-1007.
(f) If the commissioner is not satisfied that all required actions have been taken or the trust company has not complied with all of the conditions prescribed by the commissioner, then the commissioner shall notify the dissolving trust company what additional actions shall be taken to be eligible for a certificate of dissolution.
(1) The notice shall supplement the approval of the application for dissolution issued by the commissioner under RSA 383-A:6-604.
(2) In the notice, the commissioner may establish a deadline for the submission of evidence that the additional actions have been taken.
(3) The commissioner may extend the deadline for good cause shown.
(4) If, before the deadline, the trust company fails to submit evidence that the additional actions have been taken or the commissioner determines that the submitted evidence is inadequate or otherwise unsatisfactory, then the commissioner may revoke its approval of the application for dissolution.
Source. 2015, 272:16, eff. Oct. 1, 2015. 2017, 209:19, eff. Sept. 8, 2017.
Section 383-C:10-1007
383-C:10-1007 Procedure; Effect; Recording Fee. –
After the commissioner issues a certificate of dissolution under RSA 383-C:10-1006, the applicant shall file with the secretary of state the certificate of dissolution and shall pay to the secretary of state any filing a fee required by the applicable Organizations Act. In the case of a reorganization, the applicant shall also file with the secretary of state the documents that, under the applicable Organization Act, are required to complete the statutory reorganization as approved by the commissioner, including the organizational documents for the reorganized entity. The secretary of state shall record the certificate and other documents, if any, and, consistent with its practice and applicable law, the secretary of state may issue a certificate evidencing the liquidation or reorganization. Upon acceptance by the secretary of state of the filing of a certificate of dissolution issued under RSA 383-C:10-1006, and the issuance of any certificate or acknowledgment by the secretary of state, the dissolving trust company shall be deemed to have been voluntarily dissolved or reorganized, as applicable, with the same effect as if the voluntary dissolution or reorganization had been effected by an entity subject to the applicable Organizational Act.
Source. 2015, 272:16, eff. Oct. 1, 2015.
ARTICLE 11
Foreign Trust Companies
Section 383-C:11-1101
383-C:11-1101 Engagement in Trust Business. –
(a) A foreign trust company may engage in trust business in this state.
(b) A foreign trust company that engages in trust business in this state is subject to RSA 383-A and this chapter.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:11-1102
383-C:11-1102 Trust Office. –
(a) Before opening or relocating a trust office within this state, a foreign trust company shall submit notice to the commissioner describing the opening or relocation under RSA 383-A:6-602. A foreign trust company may only proceed with the opening or relocation of a trust office if permitted to do so by the commissioner under RSA 383-A:6-604.
(b) At least 10 days before closing a trust office within this state, a foreign trust company shall provide notice of the closure to the commissioner.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:11-1103
383-C:11-1103 Examination. –
(a) The commissioner may examine a foreign trust company's trust offices either on-site or off-site for purposes of confirming the foreign trust company's safety and soundness, including its compliance with applicable laws.
(b) The commissioner may enter into a cooperative or information-sharing agreement with any regulatory authority having jurisdiction with respect to the periodic examination or other supervision of any foreign trust company. In lieu of conducting an examination, the commissioner may accept that agency's or organization's report of examination or investigation.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:11-1104
383-C:11-1104 Filings With the Secretary of State. –
(a) A foreign trust company shall file with the commissioner (i) a true and complete copy of each document that the foreign trust company submits for filing with this state's secretary of state, and (ii) a copy of any notice or other document that the foreign trust company receives from this state's secretary of state.
(b) A foreign trust company organized as a corporation that domesticates in this state under RSA 383-C:11-1105 is exempt from filing annual report under the Corporation Act. A foreign trust company organized as a limited liability company that domesticates in this state under RSA 383-C:11-1105 is exempt from filing annual reports under the LLC Act.
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:11-1105
383-C:11-1105 Domestication. –
(a) With the commissioner's prior approval, a foreign trust company organized as a corporation or a limited liability company may become a trust company through domestication in accordance with the applicable Organization Act and this section.
(b) A foreign trust company that proposes to domesticate shall file with the commissioner an application for a charter under RSA 383-A:3-305 and this section. The application shall include all documents required to be submitted under RSA 383-A:3-305, except that, instead of submitting organizational documents, the foreign trust company shall submit domestication documents, in accordance with the applicable Organizations Act and a plan of domestication.
(c) After receipt of a complete application for state charter under RSA 383-C:11-1105(b), and consistent with RSA 383-A:3-305(b), the commissioner may conduct an investigation under RSA 383-A:3-306 and may conduct a hearing under RSA 383-A:3-307. The commissioner shall take action on the application under RSA 383-A:3-308, subject to any conditions that he or she may impose with respect to the domestication, including establishing a date by which the domestication must be completed. In all domestication proceedings under this article, the foreign trust company shall act as organizer of the trust company subject to domestication for purposes of article 3 of RSA 383-A. Upon the foreign trust company's request, the commissioner subsequently may extend the domestication completion date.
(d) If the commissioner approves a foreign trust company's application for a state charter under RSA 383-A:3-308(a), then the foreign trust company shall file with the secretary of state the charter bearing the commissioner's endorsement. The secretary of state, upon payment of a fee equal to the fee charged by the secretary of state to entities domesticating under the applicable Organizations Act, shall cause the charter to be recorded.
(e) Upon the secretary of state accepting the domestication filing, the secretary of state shall issue a certificate to the domesticated trust company as provided in RSA 383-A:3-310.
(f) A foreign trust company becomes a trust company authorized to transact trust business when the domestication is effective under the applicable Organizations Act and this chapter, consistent with any determination by the commissioner.
(g) A trust company chartered in this state may domesticate as a foreign trust company and transact trust business in another jurisdiction in accordance with the applicable laws of the other jurisdiction.
Source. 2015, 272:16, eff. Oct. 1, 2015.
ARTICLE 12
Qualified Trust Advisors
Section 383-C:12-1201
383-C:12-1201 Definitions. –
For purposes of this article, the following definitions shall apply:
(a) "Limited-scope discretionary power" means discretionary power with respect to a trust if: (i) the terms of the trust confer simultaneous, discretionary authority on two or more persons; (ii) the power represents only a portion of the full range of discretionary powers conferred by the terms of the trust instrument on all persons that can exercise discretionary powers under the terms of the trust; and (iii) the power generally is directed toward a singular area of discretion. Limited-scope discretionary power may be any one of the following powers, but generally would not include more than one of the following: the power to make or direct discretionary distributions, the power to decant, the power to add or remove beneficiaries, the power to veto decisions by another fiduciary.
(b) "Qualified trust advisor" means (i) any person that serves as a trust advisor or as a trust protector and, in that capacity, exercises only limited-scope discretionary power as to a trust, and (ii) any other person designated as a qualified trust advisor pursuant to rules adopted by the commissioner under this article.
(c) "Registered advisor" means an entity that is (i) an investment advisor or broker-dealer that maintains a valid registration under state or federal law or (ii) a commodity trading advisor registered under federal law.
(d) "Trust advisor" means a trust advisor as defined in RSA 564-B:1-103(27).
(e) "Trust protector" means a trust protector as defined in RSA 564-B:1-103(28).
Source. 2015, 272:16, eff. Oct. 1, 2015.
Section 383-C:12-1202
383-C:12-1202 Qualified Trust Advisor Powers. –
(a) A qualified trust advisor that acts as a trust advisor or trust protector in this state, either by acting in such capacity from an office in this state or by acting in such capacity for a trust administered in this state, is not a bank and shall not be required to obtain a charter as a bank, so long as the qualified trust advisor exercises only limited-scope discretionary power as to each trust the qualified trust advisor serves as trust advisor or trust protector.
(b) Except as provided under this article, a qualified trust advisor shall not engage in trust business or banking business. Before engaging in any banking business or trust business that is not permitted under this article, a qualified trust advisor shall obtain a charter as a bank.
(c) Nothing in this article shall limit a registered advisor from serving as trust advisor or trust protector in this state.
Source. 2015, 272:16, eff. Oct. 1, 2015.
ARTICLE 13
Reports and Other Filings
Section 383-C:13-1301
383-C:13-1301 Reports and Other Filings. –
(a) A trust company shall file with the commissioner reports of condition as required under RSA 383-A:5-510 and copies of other documents as required under RSA 383-A:5-511.
(b) A trust company shall, at the same time it files the annual report of condition pursuant to RSA 383-A:5-510, report to the commissioner the work address and other contact information where each executive officer of the trust company conducts trust business and the residential address of all directors, which information shall be kept confidential by the commissioner pursuant to RSA 383:10-b.
(c) A trust company shall have a continuing obligation to update the information reported pursuant to subsection (b) within 30 days of any change.
(d) A trust company failing to report the information required pursuant to subsections (b) and (c) within the prescribed time period shall pay to the commissioner a penalty of $50 for each day such a report is overdue.
Source. 2017, 257:37, eff. Sept. 16, 2017. 2019, 169:14, eff. Sept. 8, 2019.
ARTICLE 14
Examination
Section 383-C:14-1401
383-C:14-1401 Regular Examination. –
I. Subject to RSA 383-C:14-1402, the commissioner shall examine the condition and management of a trust company every 18 months, or more often when necessary in his or her judgment.
II. For trust companies that qualify under paragraph III, the commissioner may alternate every 18 months between conducting an examination of the entity and either waiving one examination, or accepting the examination report of a federal or state regulator or group of regulators with authority to conduct a similar type of examination of the entity.
III. A trust company qualifies for examination treatment under paragraph II if:
(a) It has consistently been given high ratings in past exams.
(b) It is not currently subject to an enforcement proceeding or order.
(c) The commissioner has deemed it prudent to apply this paragraph and paragraph II.
Source. 2017, 257:37, eff. Sept. 16, 2017. 2019, 168:13, eff. July 10, 2019.
Section 383-C:14-1402
383-C:14-1402 Exemption from Regular Examination. –
(a) A trust company may apply for an exemption from one regular examination under RSA 383-C:14-1401 by filing with the commissioner an application for exemption.
(b) In accordance with RSA 383-A:6-604, the commissioner shall make a determination as to whether the trust company qualifies for a conditional exemption from examination.
(c) A trust company qualifies for a conditional exemption from examination if:
(1) The commissioner has deemed the application for exemption substantially complete under RSA 383-A:6-603 no sooner than 12 months and no later than 15 months after the date the commissioner signs the most recent report of examination;
(2) The trust company has received high ratings in each of its 2 most recent prior examinations;
(3) The trust company's composite rating in its most recent prior examination is not less than its composite rating in its second most recent prior examination;
(4) The trust company files with the commissioner a copy of each financial audit report completed within 12 months after the conclusion of its most recent examination;
(5) Each financial audit report filed under subsection (c)(3) is:
(A) Made in accordance with RSA 383-A:5-509; and
(B) Is unqualified; and
(6) The trust company is not currently subject to any formal or informal enforcement proceeding or order of any regulatory authority.
(d) For purposes of subsection (c),the following shall apply:
(1) A trust company has received high ratings if the trust company received a rating of 1 or 2 in each of the components used under the Uniform Interagency Trust Rating System; and
(2) A trust company's composite rating is its composite rating determined in accordance with the Uniform Interagency Trust Rating System.
(e) Subject to subsection (k), a trust company that qualifies for a conditional exemption from examination may be exempt from one regular examination under RSA 383-C:14-1401 if it satisfies the following conditions:
(1) The trust company files with the commissioner a copy of a fiduciary compliance audit report made in accordance with subsection (h) no sooner than 12 months and no later than 15 months after the date the commissioner signs the most recent report of examination;
(2) The trust company files with the commissioner a copy of each financial audit report completed after the trust company filed its application for exemption and on or before the trust company files the fiduciary compliance audit under subsection (e)(1);
(3) Each financial audit report filed under subsection (e)(2) is:
(A) Made in accordance with RSA 383-A:5-509; and
(B) Is unqualified; and
(4) The trust company is not currently subject to any formal or informal enforcement proceeding or order of any regulatory authority.
(f) Upon receipt of the reports described in subsections (e)(1) and (e)(2), the commissioner shall make a determination whether the trust company is exempt from examination under subsection (e).
(g) If, under subsection (f), the commissioner determines that the trust company is not exempt from examination, then the commissioner shall examine the condition and management of the trust company within 21 months after the conclusion of the trust company's most recent examination.
(h) For purposes of subsection (e)(1), a fiduciary compliance audit report shall meet the following requirements:
(1) The report includes a review of each material aspect of the following components used under the Uniform Interagency Trust Rating System:
(A) Management;
(B) Operations, internal controls, and auditing;
(C) Compliance; and
(D) Asset management;
(2) The report conforms to applicable generally accepted auditing standards;
(3) The report is unqualified; and
(4) The report is completed no later than 3 months before the date on which the trust company files it with the commissioner.
(i) Based on the trust company's safety and soundness, the commissioner:
(1) May waive the requirement under subsection (e)(1); or
(2) May accept any documents or other information that the commissioner deems a suitable substitute for a fiduciary compliance audit report made in accordance with subsection (h).
(j) The commissioner shall examine the condition and management of a trust company that is exempt from examination under subsection (e) no later than 36 months after the conclusion of its most recent prior examination.
(k) The commissioner may examine the condition and management of a trust company that is exempt from examination under subsection (e); at any time if, after qualifying for the exemption under subsection (e);
(1) The trust company receives a qualified financial audit report;
(2) The trust company receives an unqualified financial report that contains a statement identifying or otherwise disclosing a material deficiency concerning any of the following components used under the Uniform Interagency Trust Rating System:
(A) Management;
(B) Operations, internal controls, and auditing;
(C) Earnings;
(D) Compliance; or
(E) Asset management;
(3) The commissioner determines that the trust company's safety and soundness might have been materially impaired; or
(4) The trust company becomes subject to any formal or informal enforcement proceeding or order of any regulatory authority.
Source. 2017, 257:37, eff. Sept. 16, 2017.