Tenn. Code § 56-9-103

Current through Acts 2023-2024, ch. 800

Section 56-9-103 - Chapter definitions

As used in this chapter, unless the context otherwise requires:

(1) "Ancillary state" means any state other than a domiciliary state;

(2) "Commissioner" means the commissioner of commerce and insurance;

(3) "Creditor" is a person having any claim, whether matured or unmatured, liquidated or unliquidated, secured or unsecured, absolute, fixed or contingent;

(4) "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 § 56-9-201;

(5) "Doing business" includes any of the following acts, whether effected by mail or otherwise:

(A) The issuance or delivery of contracts of insurance to persons resident in this state;

(B) The solicitation of applications for the contracts, or other negotiations preliminary to the execution of the contracts;

(C) The collection of premiums, membership fees, assessments or other consideration for the contracts;

(D) The transaction of matters subsequent to execution of the contracts and arising out of them; or

(E) Operating under a license or certificate of authority, as an insurer, issued by the department of commerce and insurance;

(6) "Domiciliary state" means the state in which an insurer is incorporated or organized, or, in the case of an alien insurer, its state of entry;

(7) "Fair consideration" is given for property or an obligation:

(A) When in exchange for the property or obligation, as a fair equivalent therefor, and in good faith, property is conveyed or services are rendered or an obligation is incurred or an antecedent debt is satisfied; or

(B) When the property or obligation is received in good faith to secure a present advance or antecedent debt in an amount not disproportionately small as compared to the value of the property or obligation obtained;

(8) "Federal home loan bank" means an institution chartered under the Federal Home Loan Bank Act ( 12 U.S.C. § 1421, et seq.), as amended, or its successor statute;

(9) "Foreign country" means any other jurisdiction not in any state;

(10) "Foreign guaranty association" means any entities similar to a guaranty association now in existence in or hereafter created by the legislature of any other state;

(11) "Formal delinquency proceeding" means any liquidation or rehabilitation proceeding;

(12) "General assets" means all property, real, personal or otherwise, not specifically mortgaged, pledged, deposited or otherwise encumbered for the security or benefit of specified persons or classes of persons. As to specifically encumbered property, "general assets" includes all the property or its proceeds in excess of the amount necessary to discharge the sum or sums secured thereby. Assets held in trust and on deposit for the security or benefit of all policyholders or all policyholders and creditors, in more than a single state, shall be treated as general assets;

(13) "Guaranty association" means the Tennessee insurance guaranty association created by chapter 12, part 1 of this title, the life and health insurance guaranty association created by chapter 12, part 2 of this title, and any other similar entity now or hereafter created by the general assembly of this state for the payment of claims of insolvent insurers;

(14) "Insolvency" or "insolvent" means:

(A) For an insurer issuing only assessable fire insurance policies:

(i) The inability to pay any obligation within thirty (30) days after it becomes payable; or

(ii) If an assessment is made within thirty (30) days after the date, the inability to pay the obligation thirty (30) days following the date specified in the first assessment notice issued after the date of loss pursuant to § 56-20-106;

(B) For any other insurer, that it is unable to pay its obligations when they are due, or when its admitted assets do not exceed its liabilities, plus the greater of:

(i) Any capital and surplus required by law for its organization; or

(ii) The total par or stated value of its authorized and issued capital stock;

(C) As to any insurer licensed to do business in this state as of July 1, 1991, that does not meet the standard established under subdivision (14)(B), "insolvency" or "insolvent" means, for a period not to exceed three (3) years from July 1, 1991, that it is unable to pay its obligations when they are due or that its admitted assets do not exceed its liabilities, plus any required capital contribution ordered by the commissioner under the insurance law; and

(D) For purposes of this subdivision (14), "liabilities" include, but are not limited to, reserves required by statute or by department general regulations or specific requirements imposed by the commissioner upon a subject company at the time of admission or subsequent thereto;

(15) "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. For purposes of this chapter, any other persons included under § 56-9-102 are deemed to be insurers;

(16) "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;

(B) Any master agreement or bridge agreement for one (1) or more master agreements described in subdivision (16)(A); or

(C) Any security agreement or arrangement or other credit enhancement or guarantee or reimbursement obligation related to any contract or agreement described in subdivision (16)(A) or (16)(B); provided, that any contract or agreement described in subdivision (16)(A) or (16)(B) relating to agreements or transactions that are not qualified financial contracts shall be deemed to be a netting agreement only with respect to those agreements or transactions that are qualified financial contracts;

(17) "Preferred claim" means any claim with respect to which the terms of this chapter accord priority of payment from the general assets of the insurer;

(18)

(A) "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; provided, that the insurer entered into such contract or agreement in accordance with:

(i) Section 56-3-303(a)(21); and

(ii) The insurer's derivative instruments use plan that has been approved by the commissioner pursuant to § 56-3-303(a)(21);

(B) As used in subdivision (18)(A), "commodity contract" means:

(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 § 23 of the Commodity Exchange Act ( 7 U.S.C. § 23 ), as amended from time to time, 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 § 6c(b) of the Commodity Exchange Act ( 7 U.S.C. § 6c(b) ), as amended from time to time, 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 subdivision (18)(B); or

(v) Any option to enter into an agreement or transaction referred to in this subdivision (18)(B);

(C) As used in subdivision (18)(A), "forward contract," "repurchase agreement," "securities contract," and "swap agreement" have the meanings set forth in the Federal Deposit Insurance Act ( 12 U.S.C. § 1821(e)(8)(D) ), as amended from time to time;

(19) "Receiver" means receiver, liquidator, rehabilitator or conservator as the context requires;

(20) "Reciprocal state" means any state other than this state in which in substance and effect §§ 56-9-307(a), 56-9-404, 56-9-405 and 56-9-407 - 56-9-409 are in force, and in which provisions are in force requiring that the commissioner or equivalent official be the receiver of a delinquent insurer, and in which some provision exists for the avoidance of fraudulent conveyances and preferential transfers;

(21)

(A) "Secured claim" means any claim secured by mortgage, trust deed, pledge, deposit as security, escrow, or otherwise, but not including special deposit claims or claims against general assets.

(B) "Secured claim" also includes claims that have become liens upon specific assets by reason of judicial process;

(22) "Special deposit claim" means any claim secured by a deposit made pursuant to statute for the security or benefit of a limited class or classes of persons, but not including any claim secured by general assets;

(23) "State" means any state, district or territory of the United States and the Panama Canal Zone; and

(24) "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. The retention of a security title to property delivered to a debtor shall be deemed a transfer suffered by the debtor.

T.C.A. § 56-9-103

Amended by 2019 Tenn. Acts, ch. 430,s 1, eff. 5/21/2019.

Acts 1991, ch. 142, § 4; 2012, ch. 540, § 1.