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ROBERT L. EHRLICH, JR., Governor Ch. 568
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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 SUBTITLE.
(2) A TRANSFER MAY BE AVOIDED UNDER § 9-221 OF THIS SUBTITLE 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.
(G) (1) IN EXERCISING ANY OF ITS POWER UNDER THIS SUBTITLE TO
DISAFFIRM OR REPUDIATE A NETTING AGREEMENT OR QUALIFIED FINANCIAL
CONTRACT, A RECEIVER SHALL TAKE ACTION WITH RESPECT TO EACH NETTING
AGREEMENT OR QUALIFIED FINANCIAL CONTRACT AND ALL TRANSACTIONS
ENTERED INTO IN CONNECTION WITH EACH NETTING AGREEMENT OR QUALIFIED
FINANCIAL CONTRACT, IN ITS ENTIRETY.
(2) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SUBTITLE, ANY
CLAIM OF A COUNTERPARTY AGAINST THE ESTATE ARISING FROM A 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 REHABILITATION PROCEEDING SHALL
BE DETERMINED AND SHALL BE ALLOWED OR DISALLOWED:
(I) AS IF THE CLAIM HAD ARISEN BEFORE THE DATE OF THE
FILING OF THE PETITION FOR LIQUIDATION; OR
(II) IF A REHABILITATION PROCEEDING IS CONVERTED TO A
LIQUIDATION PROCEEDING, AS IF THE CLAIM HAD ARISEN BEFORE THE DATE OF
THE FILING OF THE PETITION FOR REHABILITATION.
(3) (I) THE AMOUNT OF THE CLAIM IDENTIFIED IN PARAGRAPH (2) OF
THIS SUBSECTION 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.
(II) IN SUBPARAGRAPH (I) OF THIS PARAGRAPH, "ACTUAL DIRECT
COMPENSATORY DAMAGES" DOES NOT INCLUDE PUNITIVE OR EXEMPLARY
DAMAGES, DAMAGES FOR LOST PROFITS OR LOST OPPORTUNITY, OR DAMAGES FOR
PAIN AND SUFFERING, BUT DOES INCLUDE NORMAL AND REASONABLE COSTS OF
COVER OR OTHER REASONABLE MEASURES OF DAMAGES USED IN THE DERIVATIVES
MARKET FOR THE CONTRACT AND AGREEMENT CLAIMS.
(H) ALL RIGHTS OF COUNTERPARTIES UNDER THIS SUBTITLE SHALL APPLY
TO NETTING AGREEMENTS AND QUALIFIED FINANCIAL CONTRACTS ENTERED INTO
ON BEHALF OF:
(1) THE GENERAL ACCOUNT; OR
(2) SEPARATE ACCOUNTS IF THE ASSETS OF EACH SEPARATE ACCOUNT
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