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Terms Used In Tennessee Code 56-9-338

  • Affirmed: In the practice of the appellate courts, the decree or order is declared valid and will stand as rendered in the lower court.
  • Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
  • Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
  • Contract: A legal written agreement that becomes binding when signed.
  • Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
  • Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
  • Delinquency proceeding: means any proceeding instituted against an insurer for the purpose of liquidating, rehabilitating, reorganizing or conserving the insurer, and any summary proceeding under §. See Tennessee Code 56-9-103
  • Foreign: when used without limitation, includes all companies formed by authority of any other state or government. See Tennessee Code 56-1-102
  • Formal delinquency proceeding: means any liquidation or rehabilitation proceeding. See Tennessee Code 56-9-103
  • Guarantor: A party who agrees to be responsible for the payment of another party's debts should that party default. Source: OCC
  • Insurer: means any person who has done, purports to do, is doing or is licensed to do an insurance business, and is or has been subject to the authority of, or to liquidation, rehabilitation, reorganization, supervision, or conservation by, any insurance commissioner. See Tennessee Code 56-9-103
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Netting agreement: means :
    (A) A contract or agreement, including terms and conditions incorporated by reference in it, including a master agreement, which master agreement, together with all schedules, confirmations, definitions, and addenda to it and transactions under any of them, shall be treated as one (1) netting agreement, that documents one (1) or more transactions between the parties to the agreement for or involving one (1) or more qualified financial contracts and that provides for the netting, liquidation, setoff, termination, acceleration, or close-out, under or in connection with one (1) or more qualified financial contracts or present or future payment or delivery obligations or payment or delivery entitlements under one (1) or more qualified financial contracts, including liquidation or close-out values relating to those obligations or entitlements, among the parties to the netting agreement. See Tennessee Code 56-9-103
  • Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
  • Person: means any association, aggregate of individuals, business, company, corporation, individual, joint-stock company, Lloyds-type organization, organization, partnership, receiver, reciprocal or interinsurance exchange, trustee or society. See Tennessee Code 56-16-102
  • Property: includes both personal and real property. See Tennessee Code 1-3-105
  • Qualified financial contract: means any commodity contract, forward contract, repurchase agreement, securities contract, swap agreement, and any similar agreement that the commissioner determines to be a qualified financial contract for the purposes of this chapter. See Tennessee Code 56-9-103
  • Receiver: means receiver, liquidator, rehabilitator or conservator as the context requires. See Tennessee Code 56-9-103
  • Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
  • State: means any state, district or territory of the United States and the Panama Canal Zone. See Tennessee Code 56-9-103
  • Transfer: includes the sale and every other and different mode, direct or indirect, of disposing of or of parting with property or with an interest therein, or with the possession thereof or of fixing a lien upon property or upon an interest therein, absolutely or conditionally, voluntarily, by or without judicial proceedings. See Tennessee Code 56-9-103
  • United States: includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
(1) Notwithstanding any other provision of this chapter, including any other provision of this chapter permitting the modification of contracts, or any other state law to the contrary, no person shall be stayed or prohibited from exercising:

(A) A contractual right to cause the termination, liquidation, acceleration, or close-out of obligations under or in connection with any netting agreement or qualified financial contract with an insurer because of:

(i) The insolvency, financial condition, or default of the insurer at any time; provided, that, the right is enforceable under another law other than this chapter; or
(ii) The commencement of a formal delinquency proceeding under this chapter;
(B) Any right under a pledge, security, collateral, reimbursement or guarantee agreement or arrangement or any other similar security arrangement, or arrangement or other credit enhancement relating to one (1) or more netting agreements or qualified financial contracts; or
(C) Subject to § 56-9-319, any right to set off or net out any termination value, payment amount, or other transfer obligation arising under or in connection with one (1) or more qualified financial contracts where the counterparty or its guarantor is organized under the laws of the United States or a state or a foreign jurisdiction approved by the Securities Valuation Office of the National Association of Insurance Commissioners as eligible for netting.
(2) Notwithstanding any other provision of this chapter, including any other provision of this chapter permitting the modification of contracts, or any other state law to the contrary, if a counterparty to a master netting agreement or a qualified financial contract with an insurer subject to a proceeding under this chapter terminates, liquidates, closes out, or accelerates the agreement or contract, damages shall be measured as of the date or dates of termination, liquidation, close-out, or acceleration; the amount of a claim for damages shall be actual direct compensatory damages calculated in accordance with subsection (f).
(b)

(1) Upon termination of a netting agreement or qualified financial contract, the net or settlement amount, if any, owed by a nondefaulting party to an insurer against which an application or petition has been filed under this chapter shall be transferred to, or on the order of, the receiver for the insurer, even if the insurer is the defaulting party, notwithstanding any walkaway clause in the netting agreement or qualified financial contract.
(2) For purposes of this subsection (b), “walkaway clause” means a provision in a netting agreement or a qualified financial contract that, after calculation of a value of a party’s position or an amount due to or from one of the parties in accordance with its terms upon termination, liquidation, or acceleration of the netting agreement or qualified financial contract, either does not create a payment obligation of a party or extinguishes a payment obligation of a party in whole or in part solely because of the party’s status as a nondefaulting party.
(3) Any limited two-way payment or first method provision in a netting agreement or qualified financial contract with an insurer that has defaulted shall be deemed to be a full two-way payment or second method provision as against the defaulting insurer. Any such property or amount shall, except to the extent it is subject to one or more secondary liens or encumbrances, or rights of netting or setoff, be a general asset of the insurer.
(c) In making any transfer of a netting agreement or qualified financial contract of an insurer subject to a proceeding under this chapter, the receiver shall either:

(1) Transfer to one party, other than an insurer subject to a proceeding under this chapter, all netting agreements and qualified financial contracts between a counterparty or any affiliate of the counterparty and the insurer that is the subject of the proceeding, including:

(A) All rights and obligations of each party under each netting agreement and qualified financial contract; and
(B) All property, including any guarantees or other credit enhancement, securing any claims of each party under each netting agreement and qualified financial contract; or
(2) Transfer none of the netting agreements, qualified financial contracts, rights, obligations, or property referred to in subdivision (c)(1), with respect to the counterparty and any affiliate of the counterparty.
(d)

(1) If a receiver for an insurer makes a transfer of one (1) or more netting agreements or qualified financial contracts, then the receiver shall use its best efforts to notify any person who is party to the netting agreements or qualified financial contracts of the transfer by twelve o’clock (12:00) noon, the receiver’s local time, on the business day following the transfer.
(2) For purposes of this subsection (d), “business day” means a day other than a Saturday, Sunday, or any day on which either the New York Stock Exchange or the federal reserve bank of New York is closed.
(e) Notwithstanding any other provision of this chapter, a receiver may not avoid a transfer of money or other property arising under or in connection with a netting agreement or qualified financial contract, or any pledge, security, collateral, or guarantee agreement or any other similar security arrangement or credit support document relating to a netting agreement or qualified financial contract, that is made before the commencement of a formal delinquency proceeding under this chapter. However, a transfer may be avoided under § 56-9-315 if the transfer was made with actual intent to hinder, delay, or defraud the insurer, a receiver appointed for the insurer, or existing or future creditors.
(f)

(1) In exercising the receiver’s rights of disaffirmance or repudiation with respect to any netting agreement or qualified financial contract to which an insurer is a party, the receiver for the insurer shall either:

(A) Disaffirm or repudiate all netting agreements and qualified financial contracts between a counterparty or any affiliate of the counterparty and the insurer that is the subject of the proceeding; or
(B) Disaffirm or repudiate none of the netting agreements and qualified financial contracts referred to in subdivision (f)(1)(A), with respect to the person or any affiliate of the person.
(2)

(A) Notwithstanding any other provision of this chapter, any claim of a counterparty against the estate arising from the receiver’s disaffirmance or repudiation of a netting agreement or qualified financial contract that has not been previously affirmed in the liquidation or immediately preceding conservation or rehabilitation case shall be determined and shall be allowed or disallowed as if the claim had arisen before the date of the filing of the petition for liquidation or, if a conservation or rehabilitation proceeding is converted to a liquidation proceeding, as if the claim had arisen before the date of the filing of the petition for conservation or rehabilitation. The amount of the claim shall be the actual direct compensatory damages determined as of the date of the disaffirmance or repudiation of the netting agreement or qualified financial contract.
(B) “Actual direct compensatory damages” does not include punitive or exemplary damages, damages for lost profit or lost opportunity, or damages for pain and suffering, but does include normal and reasonable costs of cover or other reasonable measures of damages utilized in the derivatives, securities, or other market for the contract and agreement claims.
(g) As used in this section, “contractual right” includes any right set forth in a rule or bylaw of a derivatives clearing organization as defined in the Commodity Exchange Act (7 U.S.C. § 1a), as amended from time to time, a multilateral clearing organization as defined in the Federal Deposit Insurance Corporation Improvement Act of 1991 (12 U.S.C. § 4421), as amended from time to time, a national securities exchange, a national securities association, a securities clearing agency, a contract market designated under the Commodity Exchange Act (7 U.S.C. § 7b-1), as amended from time to time, a derivatives transaction execution facility registered under the Commodity Exchange Act (7 U.S.C. § 7a), as amended from time to time, or a board of trade as defined in the Commodity Exchange Act (7 U.S.C. § 1a), as amended from time to time, or in a resolution of the governing board thereof and any right, whether or not evidenced in writing, arising under statutory or common law, or under law merchant, or by reason of normal business practice.
(h) This section shall not apply to persons who are affiliates of the insurer that is the subject of the proceeding.
(i) All rights of counterparties under this chapter shall apply to netting agreements and qualified financial contracts entered into on behalf of the general account or separate accounts if the assets of each separate account are available only to counterparties to netting agreements and qualified financial contracts entered into on behalf of such separate account.
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