§ 6048n. Sponsored captives
In addition to the provisions of sections 6048a-6048m of this subchapter, the provisions
of this section shall apply to any sponsored captive insurance company licensed as
a special purpose financial insurance company pursuant to this subchapter.
(1) A sponsored captive insurance company may be licensed as a special purpose financial
insurance company pursuant to the provisions of this subchapter.
(2) The special purpose financial insurance company shall be subject to the provisions
of subchapter 2 of this chapter. In the event of any conflict between the provisions
of this subchapter and the provisions of subchapter 2 of this chapter, the provisions
of this subchapter shall control.
(3) Unless otherwise approved in advance by the Commissioner, a participant in a special
purpose financial insurance company shall be a ceding insurer. Any change in a participant
shall be subject to prior approval by the Commissioner.
(4) The special purpose financial insurance company on behalf of a protected cell shall
be entitled to assert the same claims and defenses in actions in law or equity as
if the protected cell were a corporation established under Title 11A of the Vermont
Statutes Annotated, including claims and defenses in actions at law or equity alleging
alter ego, corporate veil piercing, offset, substantive consolidation, equitable subordination,
or recoupment. In connection with the conservation, rehabilitation, or liquidation
of a special purpose financial insurance company or one or more of its protected cells,
the assets and liabilities of a protected cell shall at all times be kept separate
from, and shall not be commingled with, those of other protected cells and the special
purpose financial insurance company, and the assets of one protected cell shall not
be used to satisfy the obligations or liabilities of another protected cell or the
special purpose financial insurance company based on legal or equitable claims or
defenses, including alter ego, piercing the corporate veil, offset, substantive consolidation,
equitable subordination, or recoupment, unless such claims or defenses would apply
to such protected cell if it were a special purpose finance insurance company without
separate cells.
(5) Notwithstanding subdivision 6034(1) of this chapter, the special purpose financial
insurance company may issue securities to any person approved in advance by the Commissioner.
(6) Notwithstanding section 6048g of this subchapter, the special purpose financial insurance
company shall possess and thereafter maintain unimpaired paid-in capital and surplus
of not less than $500,000.00.
(7) The “general account” of a sponsored captive insurance company licensed as a special
purpose financial insurance company shall mean all assets and liabilities of the sponsored
captive insurance company not attributable to a protected cell.
(8)(A) Any security issued by a special purpose financial insurance company with respect
to a protected cell and any other contract or obligation of the special purpose financial
insurance company with respect to a protected cell shall include the designation of
such protected cell and shall include the following statement, or such other statement
as may be required by the Commissioner:
(i) In the case of a security: “The holder of this security shall have no right or recourse
against the special purpose financial insurance company and its assets other than
against assets properly attributable to the designated protected cell and the special
purpose financial insurance company’s general account, to the extent permitted by
Vermont law.”
(ii) In the case of a contract or obligation: “The counterparty to this contract or obligation
shall have no right or recourse against the special purpose financial insurance company
and its assets other than against assets properly attributable to the designated protected
cell and the special purpose financial insurance company’s general account, to the
extent permitted by Vermont law.”
(B) Notwithstanding the requirements of this subdivision (8) and subject to the provisions
of this chapter and other applicable law or regulation, the failure to include such
disclosure, in whole or part, in such security, contract, or obligation with respect
to a protected cell shall not serve as the sole basis for a creditor, ceding insurer,
or any other person to have recourse against the general account of the special purpose
financial insurance company in excess of the limitations provided for in subdivision
(12)(E) of this subsection, or against the assets of any other protected cell.
(9) In addition to the provisions of section 6034 of this chapter, the special purpose
financial insurance company shall be subject to the following with respect to its
protected cells:
(A) The special purpose financial insurance company shall establish a protected cell only
for the purpose of insuring or reinsuring risks of one or more reinsurance contracts
with a ceding insurer or two or more affiliated ceding insurers, with the intent of
facilitating an insurance securitization. A separate protected cell shall be established
with respect to each separate securitization transaction; and
(B) A sale, an exchange, or another transfer of assets may not be made by the special
purpose financial insurance company between or among any of its protected cells without
the prior approval of the Commissioner.
(10) All attributions of assets and liabilities to the protected cells and the general
account shall be in accordance with the plan of operation approved by the Commissioner.
No other attribution of assets or liabilities may be made by a special purpose financial
insurance company between its general account and any protected cell or between any
protected cells. The special purpose financial insurance company shall attribute all
insurance obligations, assets, and liabilities relating to a reinsurance contract
entered into with respect to a protected cell and shall attribute the related insurance
securitization transaction, including any securities issued by the special purpose
financial insurance company as part of the insurance securitization, to such protected
cell. The rights, benefits, obligations, and liabilities of any securities attributable
to such protected cell and the performance under such reinsurance contract and the
related securitization transaction and any tax benefits, losses, refunds, or credits
allocated pursuant to a tax allocation agreement to which the special purpose financial
insurance company is a party, including any payments made by or due to be made to
the special purpose financial insurance company pursuant to the terms of such agreement,
shall reflect the insurance obligations, assets, and liabilities relating to the reinsurance
contract and the insurance securitization transaction that are attributed to such
protected cell.
(11) For purposes of applying the provisions of chapter 145 of this title to a sponsored
captive insurance company licensed as a special purpose financial insurance company,
the definition of “insolvency” and “insolvent” in subdivision 6048c(2) of this title shall be applied separately to each protected cell and to the special purpose financial
insurance company’s general account.
(12) In addition to the provisions of section 6048m of this chapter:
(A) Except as otherwise modified in this section, the terms and conditions set forth in
chapter 145 of this title pertaining to administrative supervision of insurers and
the rehabilitation, receiverships, and liquidation of insurers apply in full to special
purpose financial insurance companies or any of the special purpose financial insurance
company’s protected cells, independently, without causing or otherwise effecting a
conservation, rehabilitation, receivership, or liquidation of the special purpose
financial insurance company or another protected cell that is not otherwise insolvent.
(B) Notwithstanding the provisions of chapter 145 of this title, and without causing or
otherwise effecting the conservation or rehabilitation of an otherwise solvent protected
cell of a special purpose financial insurance company and subject to the provisions
of subdivision (G)(v) of this subdivision (12), the Commissioner may apply by petition
to the Superior Court for an order authorizing the Commissioner to conserve, rehabilitate,
or liquidate a special purpose financial insurance company domiciled in this State
on one or more of the following grounds:
(i) embezzlement, wrongful sequestration, dissipation, or diversion of the assets of the
special purpose financial insurance company intended to be used to pay amounts owed
to the ceding insurer or the holders of special purpose financial insurance company
securities; or
(ii) the special purpose financial insurance company is insolvent; or
(iii) the holders of a majority in outstanding principal amount of each class of special
purpose financial insurance company securities attributable to each particular protected
cell requests or consents to conservation, rehabilitation, or liquidation pursuant
to the provisions of this subchapter.
(C) Notwithstanding the provisions of chapter 145 of this title, the Commissioner may
apply by petition to the Superior Court for an order authorizing the Commissioner
to conserve, rehabilitate, or liquidate one or more of a special purpose financial
insurance company’s protected cells, independently, without causing or otherwise effecting
a conservation, rehabilitation, receivership, or liquidation of the special purpose
financial insurance company generally or another of its protected cells, on one or
more of the following grounds:
(i) embezzlement, wrongful sequestration, dissipation, or diversion of the assets of the
special purpose financial insurance company attributable to the affected protected
cell or cells intended to be used to pay amounts owed to the ceding insurer or the
holders of special purpose financial insurance company securities of the affected
protected cell or cells; or
(ii) the affected protected cell is insolvent; or
(iii) the holders of a majority in outstanding principal amount of each class of special
purpose financial insurance company securities attributable to that particular protected
cell request or consent to conservation, rehabilitation, or liquidation pursuant to
the provisions of this subchapter.
(D) Except where consent is given as described in subdivisions (B)(iii) and (C)(iii) of
this subdivision (12), the Court may not grant relief provided by subdivision (B)
or (C) of this subdivision (12) unless, after notice and a hearing, the Commissioner,
who shall have the burden of proof, establishes by clear and convincing evidence that
relief must be granted. The Court’s order may be made in respect of one or more protected
cells by name, rather than the special purpose financial insurance company generally.
(E) Notwithstanding another provision in this title, regulations adopted under this title,
or another applicable law or regulation, upon any order of conservation, rehabilitation,
or liquidation of a special purpose financial insurance company, or one or more of
the special purpose financial insurance company’s protected cells, the receiver shall
manage the assets and liabilities of the special purpose financial insurance company
or the applicable protected cell pursuant to the provisions of this subchapter. The
assets attributable to one protected cell shall not be applied to the liabilities
attributable to another protected cell, unless an asset or liability is attributable
to more than one protected cell, in which case the receiver shall deal with the asset
or liability in accordance with the terms of any relevant governing instrument or
contract. Recourse to the special purpose financial insurance company’s general account
in connection with the conservation, rehabilitation, or liquidation of a protected
cell shall be limited to the greater of the amount of assets in the general account
as of the date such proceeding is commenced or the required minimum capital for the
general account as of the date such proceeding is commenced. Assets attributable to
one protected cell shall not be set off against the liabilities attributable to another
protected cell, and assets attributable to the special purpose financial insurance
company’s general account shall not be set off against the liabilities attributable
to any protected cell except to the extent provided in the preceding sentence. Relief
shall not be granted nor shall any order be issued based on equitable theories of
recovery, including substantive consolidation, equitable subordination, or recoupment,
to attach or seize the assets of any solvent protected cell for the benefit of another
protected cell or special purpose financial insurance company, or to pierce the corporate
veil of any protected cell, in connection with the conservation, rehabilitation, or
liquidation of a special purpose financial insurance company or one or more protected
cells, unless such equitable theories, attachment, seizure, or corporate veil piercing
would apply to such cell if it were a special purpose financial insurance company
without separate cells.
(F) With respect to amounts recoverable under a reinsurance contract, the amount recoverable
by the receiver of a special purpose financial insurance company must not be reduced
or diminished as a result of the entry of an order of conservation, rehabilitation,
or liquidation with respect to the ceding insurer, notwithstanding another provision
in the contract or other documentation governing the insurance securitization.
(G) Notwithstanding the provisions of chapter 145 of this title or other laws of this
State:
(i) An application or petition, or a temporary restraining order or injunction issued
pursuant to the provisions of chapter 145 of this title, with respect to a ceding
insurer, does not prohibit the transaction of business by a special purpose financial
insurance company with the ceding insurer, including any payment by a special purpose
financial insurance company made pursuant to a security issued by a special purpose
financial insurance company with respect to a protected cell, or any action or proceeding
against a special purpose financial insurance company or its assets.
(ii) The commencement of a summary proceeding or other interim proceeding commenced before
a formal delinquency proceeding with respect to a special purpose financial insurance
company, and any order issued by the Court, does not prohibit the payment by a special
purpose financial insurance company made pursuant to a security issued by a special
purpose financial insurance company with respect to a protected cell or special purpose
financial insurance company contract or the special purpose financial insurance company
from taking any action required to make the payment.
(iii) A receiver of a ceding insurer may not void a nonfraudulent transfer by the ceding
insurer to a special purpose financial insurance company of money or other property
made pursuant to a reinsurance contract.
(iv) A receiver of a special purpose financial insurance company may not void a nonfraudulent
transfer by the special purpose financial insurance company of money or other property
made to a ceding insurer pursuant to a reinsurance contract or made to or for the
benefit of any holder of a special purpose financial insurance company security issued
with respect to a protected cell, or a special purpose financial insurance company
security.
(v) In the event of an insolvency of a special purpose financial insurance company where
one or more protected cells remain solvent, the Commissioner shall separate the special
purpose financial insurance company’s solvent protected cells from the insolvent special
purpose financial insurance company, shall allow on petition of the sponsor for the
conversion of such solvent protected cells into one or more special purpose financial
insurance companies, and shall issue such orders as the Commissioner deems necessary
to protect the solvency of the remaining solvent protected cells. In the event of
an insolvency of a protected cell, the special purpose financial insurance company’s
assets shall be accounted for and managed in compliance with subdivision (E) of this
subdivision (12) and the other laws of this State.
(H) Subdivision (G) of this subdivision (12) does not prohibit the Commissioner from taking
any action permitted under chapter 145 of this title with respect only to the conservation
or rehabilitation of a special purpose financial insurance company with protected
cell or cells, provided the Commissioner would have had sufficient grounds to seek
to declare the special purpose financial insurance company insolvent; subject to and
without otherwise affecting the provisions of subdivision (G)(v) of this subdivision
(12). In this case, with respect to the solvent protected cell or cells, the Commissioner
may not prohibit payments made by the special purpose financial insurance company
pursuant to the special purpose financial insurance company security, reinsurance
contract, or otherwise made under the insurance securitization transaction that are
attributable to these protected cell or cells or prohibit the special purpose financial
insurance company from taking any action required to make these payments.
(I) With the exception of the fulfillment of the obligations under a special purpose financial
insurance company contract, and notwithstanding another provision of this title or
other laws of this State, the assets of a special purpose financial insurance company,
including assets held in trust, shall not be consolidated with or included in the
estate of a ceding insurer in any delinquency proceeding against the ceding insurer
pursuant to the provisions of this title for any purpose, including distribution to
creditors of the ceding insurer. (Added 2007, No. 49, § 17; amended 2007, No. 178 (Adj. Sess.), § 11; 2009, No. 42, § 28, eff. May 27, 2009; 2013, No. 29, § 65, eff. May 13, 2013.)