                                 CODE OF VIRGINIA

QUALIFIED FINANCIAL CONTRACTS (§ 38.2-1522)

A. Notwithstanding any other provision of this chapter, including any other
provision of this chapter permitting the modification of contracts, or other
state law, no person shall be stayed or prohibited from exercising:

   1. 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:
   				a. The insolvency, financial condition, or default of the insurer at any
   time, provided that the right is enforceable under applicable law other than
   this chapter; or
   				b. The commencement of a delinquency proceeding under this chapter;

   2. Any right under a pledge, security, collateral, reimbursement, or guarantee
   agreement or arrangement or any other similar arrangement, or other credit
   enhancement relating to one or more netting agreements or qualified financial
   contracts;

   3. Subject to subdivision B 2 of &#xA7; 38.2-1515, any right to set off or net
   out any termination value, payment amount, or other transfer obligation
   arising under or in connection with one 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; or

   4. A right to claim damages 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, which 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. 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 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. For purposes of this
subsection, &#8220;walkaway clause&#8221; means a provision in a netting
agreement or a qualified financial contract that, after calculation of a value
of a party&#8217;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&#8217;s status as a nondefaulting
party. 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 delinquency
   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 1, with respect to
   the counterparty and any affiliate of the counterparty.

D. If a receiver of an insurer subject to a delinquency proceeding makes a
transfer of one 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
12:00 noon, the receiver&#8217;s local time, on the business day following the
transfer. For purposes of this section, &#8220;business day&#8221; 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, including &#xA7;
38.2-1513, 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 delinquency proceeding under this chapter. However, a transfer
may be avoided under &#xA7; 38.2-1513 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. In exercising the receiver&#8217;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:

   1. 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

   2. Disaffirm or repudiate none of the netting agreements and qualified
   financial contracts referred to in subdivision 1, with respect to the person
   or any affiliate of the person.

G. Notwithstanding any other provision of this chapter, provided the receiver
disaffirms or repudiates a netting agreement or qualified financial contract
within a reasonable period after the commencement of a delinquency proceeding,
any claim of a counterparty against the estate arising from the receiver&#8217;s
disaffirmance or repudiation of a netting agreement or qualified financial
contract that has not been previously affirmed in the liquidation or immediately
preceding rehabilitation 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 rehabilitation is converted to a delinquency proceeding, as
if the claim had arisen before the date of the filing of the petition for
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.

H. The provisions of 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 and any separate account if the assets of such separate account
are available only to counterparties to netting agreements and qualified
financial contracts and entered into on behalf of such separate account.

HISTORY: 2011, c. 198.