§ 27-64-4 - Establishment of protected cells.
SECTION 27-64-4
§ 27-64-4 Establishment of protectedcells. – (a) A protected cell company may establish one or more protected cells, withthe prior written approval of the commissioner of a plan of operation oramendments to it submitted by the protected cell company with respect to eachprotected cell. Upon the written approval of the commissioner of the plan ofoperation, which shall include, but not be limited to, the specific businessobjectives and investment guidelines of the protected cell, the protected cellcompany may, in accordance with the approved plan of operations attribute tothe protected cell amounts both reflective of insurance obligations withrespect to its insurance business and obligations relating to the insurancesecuritization and assets to fund the obligations. Each protected cell of aprotected cell company shall have its own distinct name or designation, whichshall include the words "protected cell." The protected cell company shalltransfer all assets attributable to each protected cell to one or moreseparately established and identified protected cell accounts, bearing the nameor designation of that protected cell. Protected cell assets shall be held inthe protected cell accounts for the purpose of satisfying the obligations ofthat protected cell.
(b) All attributions of assets and liabilities between aprotected cell and the general account shall be in accordance with the plan ofoperation approved by the commissioner or shall be otherwise approved by thecommissioner. Unless otherwise approved by the commissioner, no otherattribution of assets or liabilities may be made by a protected cell companybetween the protected cell company's general account and one or more of itsprotected cells. Any attribution of assets and liabilities between the generalaccount and a protected cell, or from investors in the form of principal on adebt instrument issued by a protected cell company in connection with aprotected cell company securitization shall be in cash or readily marketablesecurities with established market values unless otherwise approved in advancein writing by the commissioner.
(c) The creation of a protected cell does not create, inrespect of that protected cell, a legal person separate from the protected cellcompany. Amounts attributed to a protected cell under this chapter, includingassets transferred to a protected cell account, are owned by the protected cellcompany and the protected cell company may not be, nor hold itself out to be, atrustee with respect to those protected cell assets of that protected cellaccount. Notwithstanding the foregoing, the protected cell company may allowfor a security interest to attach to protected cell assets or a protected cellaccount when in favor of a creditor of the protected cell and otherwise allowedunder applicable law.
(d) Nothing in this chapter shall be construed to prohibitthe protected cell company from contracting with or arranging for an investmentadvisor, commodity trading advisor, or other third party to manage theprotected cell assets of a protected cell, provided that all remuneration,expenses, and other compensation of the third party advisor or manager arepayable from the protected cell assets of that protected cell and not from theprotected cell assets of other protected cells or the assets of the protectedcell company's general account. The contract shall clearly reference theprotected cell or cells for which the contract has been arranged and shallcontain a non-recourse provision in favor of the company that prohibits thecontracting party from seeking recourse against, or attaching, the assets ofthe general account, or the assets of another protected cell, to satisfy theobligations of any one or more protected cells which are the subject of thecontract.
(e) A protected cell company shall establish anyadministrative and accounting procedures that are necessary to properlyidentify the one or more protected cells of the protected cell company and theprotected cell assets and protected cell liabilities attributable to theprotected cells. It shall be the duty of the directors of a protected cellcompany to: (1) keep protected cell assets and protected cell liabilitiesseparate and separately identifiable from the assets and liabilities of theprotected cell company's general account, and (2) to keep protected cell assetsand protected cell liabilities attributable to one protected cell separated andseparately identifiable from protected cell assets and protected cellliabilities attributable to other protected cells. Notwithstanding theforegoing, and subject to the provisions of § 27-64-10, if this section isviolated, the remedy of tracing shall be applicable to protected cell assetswhen commingled with protected cell assets of other protected cells or theassets of the protected cell company's general account. The remedy of tracingshall not be construed as an exclusive remedy.
(f) Unless otherwise approved by the commissioner, theprotected cell company shall, when establishing a protected cell, attribute tothe protected cell assets with a value at least equal to the reserves and otherinsurance liabilities attributed to that protected cell.