Section 2522.9 - Custodian Account Agreements(a) A custodian account agreement to be used in conjunction with an investment annuity policy shall be filed by the insurer with the Commissioner for approval and shall be attached to and made a part of the policy. If the policy is a group policy, a copy of the custodian account agreement shall be delivered to the annuitant with the group certificate. A custodian agreement shall not relieve the insurer from any responsibilities or obligations imposed upon the operations of its investment annuities by any law or regulation.(b) Until transmitted to the insurer as premium payments, the assets supporting the benefits provided to each annuitant shall be maintained in a segregated custodian account with an independent bank or trust company having authority to act in a fiduciary capacity and not affiliated with the insurer or any of the affiliates of the insurer.(c) The choice of the custodian is to be made by the policyowner subject to the approval of the insurer; however, the insurer may recommend one or more of its approved custodians, or it may, for reasonable and just cause, refuse to approve a proposed custodian selected by the policyowner, or as provided in paragraph (26) of subsection (d) of this Section, the insurer may give written notice to the policyowner requiring the appointment of a successor custodian. The reason of the insurer for any such action shall be neither arbitrary nor capricious.(d) A custodian account agreement shall clearly identify the custodian and either the custodian agreement or the policy (except where otherwise herein stated) shall contain provisions relating to the authority, responsibility and duties of the custodian and shall comply with the following requirements and contain the following provisions. (1) The policyowner, or the policyowner's chosen investment manager, and not the insurer, shall direct the custodian as to the investment of the assets in the account from time to time during the time the annuity policy remains in force. This requirement must be stated in the custodian account agreement.(2) A provision in the agreement that all assets in an account including dividends, interest and other income or distributions from the assets, shall be irrevocably committed to the payment of premiums under the annuity policy, the payment of charges of the custodian, investment expenses such as broker's commissions and the remittance to the insurer of such amounts necessary for any state or federal tax applicable to the account and any other necessary and proper charges, and the custodian may be authorized to apply cash and other assets held in the account to the payment thereof or to reimburse itself therefrom.(3) A provision providing for access to the records of the custodian by the insurer or its designee during reasonable business hours for the purpose of verifying all matters relating to the segregated accounts.(4) The custodian agreement shall contain a provision providing that in the event of a change of custodian, the custodian shall continue to hold and administer the custodian account until the successor custodian has been appointed, approved by the insurer, and the successor has accepted the transfer of the account and the assets therein.(5) A provision that in the event the custodian resigns, the custodian shall give not less than ninety (90) days notice, and, if the custodian resigns, or the insurer removes the custodian, either the custodian or the insurer shall bear the expenses resulting from such change of custodian. If the policyowner removes the custodian, the agreement shall specify who shall bear the expenses and it may provide that the custodian account shall bear the expenses resulting from such change of custodian. If the custodian is removed, the policyowner shall appoint a successor custodian acceptable to the insurer within forty-five (45) days. If the custodian resigns, the policyowner shall appoint a successor custodian acceptable to the insurer within ninety (90) days from the date of the resignation notice. If the policyowner fails to appoint such a successor custodian within the respective number of days set forth herein in the case of removal or resignation, the insurer may appoint a successor custodian.(6) A provision in the agreement that it shall be the responsibility of the custodian to value the assets in the account at the end of each calendar year and at such other times as contractually required to carry out the provisions of the policy. Such valuation shall be based on the fair market value of such assets on the date of valuation. The custodian shall remit promptly to the insurer the premiums due under the terms of the policy; provided, however, that the agreement may provide that the custodian may rely upon written statements of the insurer as to premiums due or any other amounts due to the insurer.(7) A provision in the agreement that within thirty (30) days after the receipt of notice from the insurer that a premium is due and payable by reason of the death of the annuitant or the annuitant having attained a predetermined age or date, the custodian shall furnish the insurer and the insurer shall furnish the annuitant or whoever then shall have succeeded to the annuitant's rights and obligations under the custodian account agreement:(A) A statement listing all the assets in the account, the fair market value of each asset and the aggregate fair market value of all assets in the account, all as of the premium due date; and(B) A statement setting forth the premiums due and related benefit payments.(8) A provision in the agreement stating the usual and customary charges made by the custodian for the various types of transactions. Such statement shall provide that the custodian shall not increase the schedule of charges more often than once every twelve (12) months. The statement of charges of the selected custodian shall be either in the custodian account agreement or in a rider attached thereto.(9) Provide for the safekeeping and custody of the securities and other assets in the custodian account.(10) Provide for the execution of all declarations, affidavits, certificates of ownership and other necessary documents required in collecting principal and income payments.(11) Provide for collection of the annuity purchase contributions, the recording of dividends, interest, proceeds of maturing or called securities and other income to be credited to the segregated custodian account in accordance with the agreement.(12) Provide for exchanging temporary securities certificates for permanent certificates.(13) Provide for selling all stock rights and warrants, as these occur.(14) Provide for notifying the annuitant with respect to requests for tender of assets and offers to exchange assets as they occur.(15) Provide for the registration of assets by the custodian and that any re-registration, transfer or deposit shall not relieve the custodian of any of its duties or obligations under the agreement.(16) Provide that the custodian shall execute orders for purchase, sale or exchange of assets and make settlement in accordance with the normal rules applicable to such commercial transactions.(17) Provide for maintaining a complete record of all transactions with respect to the account.(18) Provide for determining the fair market value of the first annuity purchase contribution as of the effective date of the agreement, any subsequent annuity purchase contribution or contributions as of the date when deposited in the account, and the assets held in the account at the end of each calendar year as provided above.(19) Provide that the custodian will determine, based on the information received from the insurer, the premiums due, as provided above in paragraph 6, and the applicable annual annuity as contemplated by the policy.(20) Provide that the custodian shall be required to carry out investment instructions received in writing from the policyowner or his authorized investment manager, in a timely and responsible manner, unless such instructions are not in accordance with the terms of the agreement. The custodian shall issue a quarterly written report to the policyowner or investment manager not more than thirty (30) days after the end of the quarter confirming that the investment instructions received within thirty (30) days prior to the end of the quarter have been executed and performed.(21) Provide that the custodian shall agree to sell, purchase or exchange for the benefit of the account, assets held in the account pursuant to instructions received from the policyowner and in the compliance with the agreement.(22) Provide for making available the listing of accepted assets in generic form which may be held in the custodian account by the policyowner and specifying any limitations on the investing power of the policyowner. The agreement shall contain or have attached to it the Accepted Assets List and provide that, if the Accepted Assets List is amended by the insurer, the amendments will be furnished to the person who has the investment discretion.(23) Specify the grounds upon which an asset may be removed from the Accepted Assets List of the insurer, including the time to be given to the policyowner to direct sale of such asset after notice from the insurer to both the annuitant and the custodian to remove the asset and the action, if any, that the custodian will take if the asset is not sold within the specified time. (Limitations may be based upon the compatibility of the insurer and the custodian's administrative procedures for investing and accounting, and upon the asset having a reasonably ascertainable market price available from regular market activity as specified in Section 2522.10(a) of the Article.)(24) Provide that, in connection with the voting of shares, it shall be provided that, if the custodian reserves the right to execute proxies to vote shares, it must be pursuant to the annuitant's or, when the policyowner has the investment discretion as to the account, the policyowner's right at any time to give instructions regarding the execution of proxies.(25) Provide that, in connection with premiums and disbursements, the custodian shall agree to promptly remit premiums, taxes and assessments from the account in cash to the insurer as provided in the policy. The assets held in the account and the dividends, income and distributions on such assets shall be applied only to the payment of the annuity premiums to the insurer under the policy, the charges of the custodian and other charges as may be specifically set forth in the agreement. It shall be clearly set forth that none of the assets, dividends, interest, income and distributions thereon shall be distributed or distributable by the custodian to any owner, annuitant, joint annuitant (or their respective heirs, executors, administrators or personal representatives) or to any beneficiary or assignee. When cash funds are required for any purpose provided in the agreement and such funds are not currently available out of annuity purchase contributions and out of dividends, interest, income and distribution, and the custodian has not received specific selling instructions from the annuitant as to particular assets, the custodian must sell assets pursuant to a fair, just, equitable and objective standard which shall be set forth in the agreement, and the agreement may provide for the custodian to sell the most recently acquired asset.(26) Provide that the insurer retains the right to give written notice to the policyowner that it no longer approves of the custodian and that the insurer may require the removal of the custodian for any reason which is not arbitrary or capricious, including the following reasons:(A) Failure of the custodian to provide all necessary information to the insurer or the policyowner or the annuitant in a timely and accurate manner;(B) Failure of the custodian to remit any and all charges, premiums, annuity purchase contributions, assessments, taxes and similar items;(C) The occurrence of any event that would have a material affect upon the financial condition or business reputation of the custodian including, but not necessarily limited to, its bankruptcy, material litigation against the custodian, state or federal regulatory action against the custodian, and(D) Any other reasonable, just or good cause.(27) Except as to amounts due to the insurer, provide that the assets held in the account shall not be sold, assigned, discounted or pledged as collateral for any purpose nor shall they be subject to any legal process to levy upon or cash the same for payment of any claims against the policyowner, the annuitant, the joint annuitant, if any, beneficiary or other person entitled thereto except as to the extent permitted by law.(28) Provide that the agreement shall be binding upon the assignees, executors, administrators, personal representative and heirs of the policyowner, annuitant, the joint annuitants, if any, any beneficiary and any other person or persons entitled thereto.(29) The agreement shall provide with respect to policy ownership and assignment that:(A) If the annuity policy, when issued, is owned by a person other than the annuitant, all rights, titles, interest and obligations under the agreement with respect to such annuitant shall vest in the owner, and(B) Any and all rights, title and interest may be assigned and the assignment shall be effective when notice of such assignment is received at the home office of the insurer.(30) The agreement shall provide that it is to be construed and governed in accordance with the laws of the state where the policy is delivered.(31) The agreement shall provide that the custodian shall perform all other duties and services consistent with the purposes and intent of the agreement.(32) The custodian account agreement shall contain all of the applicable provisions provided in this Article, but is not necessarily limited thereto, and may contain other provisions or contractual requirements.Cal. Code Regs. Tit. 10, § 2522.9