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  • PART I ADMINISTRATION OF THE GOVERNMENT
  • TITLE XXII CORPORATIONS
  • CHAPTER 175 INSURANCE
  • Section 180A Definitions applicable to Secs. 180A to 180L1/2

Section 180A. The following words as used in sections 180A to 180L1/2, inclusive, unless the context otherwise requires or a different meaning is specifically prescribed, shall have the following meanings:

“Affiliate”, of, or person affiliated with, a specific person, is a person that directly or indirectly through 1 or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.

“Ancillary state”, any state other than a domiciliary state.

“Control”, “controlling”, “controlled by” and “under common control with”, the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods or nonmanagement services, or otherwise, unless the power is the result of an official position with or corporate office held by the person. Control shall be presumed to exist if any person, directly or indirectly, owns, controls, holds with the power to vote, or holds proxies representing, 10 per cent or more of the voting securities of any other person. This presumption may be rebutted by a showing that control does not exist in fact. The commissioner may determine, after furnishing all persons in interest notice and an opportunity to be heard and making specific findings of fact to support the determination, that control exists in fact, notwithstanding the absence of a presumption to that effect.

“Delinquency proceeding”, any proceeding commenced against an insurer for the purpose of liquidating, rehabilitating, reorganizing, or conserving such insurer.

“Domiciliary state”, the state in which an insurer is incorporated or organized, or, in the case of an insurer incorporated or organized in a foreign country, the state in which such insurer, being authorized to do business in such state, has its principal office at the commencement of rehabilitation, conservation or liquidation proceedings or the largest amount of its assets held in trust and assets held on deposit for the benefit of its policyholders and creditors in the United States; and any such insurer shall be deemed to be domiciled in such state.

“Foreign country”, a territory not in any state.

“General assets”, all property, real, personal or mixed, not specifically mortgaged, pledged, deposited or otherwise encumbered for the security or benefit of specified persons or a limited class or classes of persons; and as to such specifically encumbered property such term includes all such property or its proceeds in excess of the amount necessary to discharge the sum or sums secured thereby. Assets held in trust and assets held on deposit for the security or benefit of all policyholders, or all policyholders and creditors in the United States, shall be deemed general assets. Pursuant to the applicable separate account agreements and section 132F or section 132G, assets of a separate account that are not chargeable with liabilities arising out of any other business of the insurer shall not be general assets.

“Insurer”, any person subject to the insurance supervisory authority of or to liquidation, rehabilitation, reorganization, or conservation by the commissioner or the equivalent insurance supervisory official of another state.

“Netting agreement”, (1) a contract or agreement, including terms and conditions incorporated by reference therein, including a master agreement, which master agreement, together with all schedules, confirmations, definitions and addenda thereto and transactions under any thereof, shall be treated as 1 netting agreement, that documents 1 or more transactions between the parties to the agreement for or involving 1 or more qualified financial contracts and that provides for the netting, liquidation, setoff, termination, acceleration or close out under or in connection with 1 or more qualified financial contracts or present or future payment or delivery obligations or payment or delivery entitlements thereunder, including liquidation or close-out values relating to such obligations or entitlements, among the parties to the netting agreement; (2) any master agreement or bridge agreement for 1 or more master agreements described in clause (1); or (3) any security agreement or arrangement or other credit enhancement or guarantee or reimbursement obligation related to any contract or agreement described in clause (1) or clause (2); provided, that any contract or agreement described in said clause (1) or said clause (2) relating to agreements or transactions that are not qualified financial contracts shall be considered to be a netting agreement only with respect to those agreements or transactions that are qualified financial contracts.

“Person”, an individual, corporation, limited liability company, partnership, association, joint stock company, trust, unincorporated organization, any similar entity or any combination of the foregoing acting in concert, but shall not include a joint venture partnership exclusively engaged in owning, managing, leasing or developing real or tangible personal property.

“Preferred claim”, any claim with respect to which the law of a state accords priority of payment from the general assets of the insurer.

“Qualified financial contract”, a commodity contract, forward contract, repurchase agreement, securities contract, swap agreement and any similar agreement that the commissioner determines by regulation, resolution or order to be a qualified financial contract for purposes of sections 180A to 180L 1/2, inclusive.

(1) “Commodity contract”:

(i) a contract for the purchase or sale of a commodity for future delivery on, or subject to the rules of, a board of trade or contract market under the Commodity Exchange Act, 7 U.S.C. § 1, et seq. or a board of trade outside the United States;

(ii) an agreement that is subject to regulation under section 19 of the Commodity Exchange Act, 7 U.S.C. § 1, et seq. and that is commonly known to the commodities trade as a margin account, margin contract, leverage account or leverage contract;

(iii) an agreement or transaction that is subject to regulation under Section 4c(b) of the Commodity Exchange Act and that is commonly known to the commodities trade as a commodity option;

(iv) any combination of the agreements or transactions referred to in this paragraph; or

(v) any option to enter into an agreement or transaction referred to in this paragraph.

(2) “Forward contract”, “repurchase agreement”, “securities contract” and “swap agreement” shall have the meanings set forth in the Federal Deposit Insurance Act, 12 U.S.C. § 1821(e)(8)(D), as amended.

“Receiver”, receiver, liquidator, rehabilitator or conservator as the context requires.

“Reciprocal state”, any other state in which provisions of like substance and effect with sections 180A to 180L, inclusive, are in force, including the provisions requiring that the commissioner or equivalent insurance supervisory official be the receiver of a delinquent insurer. The term “reciprocal state” shall also include any state also which has, through its commissioner or equivalent supervisory official, entered into a binding and enforceable written agreement with the commissioner of the commonwealth which provides that (1) a commissioner or equivalent supervisory official is required to be the receiver of a delinquent insurer; (2) title assets of the delinquent insurer shall vest in the domiciliary receiver, as of the date of any court order appointing him as receiver, and he shall have the same rights to recover such assets as provided under section 180E; (3) nondomiciliary creditors may file and prove their claims before ancillary receivers; (4) the laws of the domiciliary state of the delinquent insurer shall be applied uniformly to residents and nonresidents in the allowance of preference of claims, except for claims to special deposits created under the laws of the domiciliary state; (5) preferences, including attachments, garnishments and liens, for creditors with advance information shall be prevented; and (6) the domiciliary receiver may sue in the reciprocal state to recover any assets of a delinquent insurer to which he or she may be entitled under the law.

“Secured claim”, any claim secured by mortgage, trust, deed, pledge, deposit as security, escrow or otherwise, and does not include special deposit claims or claims against general assets. Said term also includes claims which more than 4 months prior to the commencement of liquidation proceedings in the state of the insurer’s domicile have become liens upon specific assets by virtue of judicial process.

“Separate account agreement”, any life policy or contract, annuity contract, funding agreement or other policy or contract referred to in section 132F, 132G or 132I, providing for the allocation of amounts received in connection with such policy, contract or agreement to a separate investment account or accounts created pursuant to section 132F or section 132G.

“Special deposit claim”, any claim secured by a deposit of a fund, property or bond, which deposit has been made pursuant to law for the security or benefit of a limited class or classes of persons and does not include any general assets.

“State”, any state of the United States, and also the District of Columbia, Alaska, Hawaii and Puerto Rico.

“Transfer”, shall include the sale and every other and different mode, direct or indirect, of disposing of or of parting with property or with an interest therein, including a setoff, or with the possession thereof or of fixing a lien upon property or upon an interest therein, absolutely or conditionally, voluntarily or involuntarily, by or without judicial proceedings. The retention of a security title in property delivered to an insurer and foreclosure of the insurer’s equity of redemption shall be deemed a transfer suffered by the insurer.