§ 2403. Formation

(a) One or more persons may form an independent trust company in accordance with the provisions of this chapter.

(b) The organizers forming an independent trust company shall apply to the Commissioner for a certificate of authority on prescribed forms containing information as may be required by the Commissioner. The application shall include the proposed name of the business for approval under section 2404 of this title and the basic organizational documents including any operating agreement for the company prepared in compliance with Title 11 or 11A.

(c) Upon receiving a completed application for a certificate of authority and the proposed basic organizational documents, the Commissioner shall investigate and examine the proposed independent trust company to determine whether it will be adequately staffed, equipped, and able to furnish trust services and that its establishment and maintenance will promote the general good of the State.

(d) If the Commissioner finds that the establishment and maintenance of the proposed trust company will promote the general good of the State, the Commissioner shall deliver to the organizers a certificate of authority under the Commissioner's seal. The certificate of authority, basic organizational documents except the operating agreement and the organizational fee shall be transmitted to the Secretary of State, who shall thereupon proceed according to the provisions of law. If the organizational documents are recorded by the Secretary, the certificate of the Commissioner shall be recorded therewith.

(e) Each application for a certificate of authority shall be accompanied by an application fee as provided in section 19 of this title for new financial institutions.

(f) If the proposed independent trust company fails to open for business within six months after the date the certificate of authority is granted, the certificate of authority shall be void. The Commissioner may extend the time within which the independent trust company may open for business for good cause and upon written application filed prior to the expiration of the six-month period.

(g) At the time it commences business, an independent trust company shall have unimpaired capital in an amount not less than $250,000.00 or one-quarter of one percent of its assets under management, whichever is greater. Thereafter, an independent trust company shall maintain unimpaired capital in an amount not less than $250,000.00 or one-quarter of one percent of its assets under management, whichever is greater, up to a maximum of $1,000,000.00. The unimpaired capital and surplus of an independent trust company shall be held as security for the faithful discharge of the fiduciary duties undertaken as well as for the claims of other creditors. The Commissioner may from time to time require or allow increases or decreases to the unimpaired capital otherwise required by this subsection, up to such $1,000,000.00 maximum, as deemed necessary or desirable for the protection of customers and the safety of the trust business. The safety and soundness factors to be considered by the Commissioner in the exercise of such discretion include:

(1) the nature and type of business conducted;

(2) the nature and degree of liquidity in assets held in a corporate or company capacity;

(3) the amount of fiduciary assets under management;

(4) the complexity of fiduciary duties and degree of discretion undertaken; and

(5) the extent and adequacy of internal controls.

(h) The Commissioner, in addition to the capital requirements provided in subsection (g) of this section, may require any independent trust company authorized to do a trust business in this State to post bond in an amount acceptable to the Commissioner. (Added 1997, No. 98 (Adj. Sess.), § 8b; amended 1999, No. 153 (Adj. Sess.), § 19, eff. Jan. 1, 2001; 2003, No. 105 (Adj. Sess.), § 11; 2009, No. 42, § 2; 2009, No. 137 (Adj. Sess.), § 1.)