Title 3 . Commerce, Community, and Economic Development

Chapter 21 . Miscellaneous

Section 399. Definitions

3 AAC 21.399. Definitions

(a) In 3 AAC 21.201 - 3 AAC 21.399, unless the context requires otherwise,

(1) "acceptable collateral" means, as to a

(A) securities lending transaction and for the purpose of calculating counterparty exposure amount,

(i) cash;

(ii) cash equivalents;

(iii) letters of credit;

(iv) direct obligations of, or securities that are fully guaranteed as to principal and interest by, the government of the United States, an agency of the United States, the Federal National Mortgage Association, or the Federal Home Loan Mortgage Corporation; or

(v) for any foreign securities to be lent, sovereign debt with a securities valuation office rating of one;

(B) repurchase transaction,

(i) cash;

(ii) cash equivalents; or

(iii) direct obligations of, or securities that are fully guaranteed as to principal and interest by, the government of the United States, an agency of the United States, the Federal National Mortgage Association, or the Federal Home Loan Mortgage Corporation; or

(C) reverse repurchase transaction,

(i) cash; or

(ii) cash equivalents;

(2) "acceptable private mortgage insurance" means insurance that

(A) is written by a private insurer protecting a mortgage lender against loss occasioned by a mortgage loan default;

(B) is issued by a mortgage insurance company authorized under AS 21.09;

(C) has a securities valuation office rating of one or a rating issued by a nationally recognized statistical rating organization equivalent to a securities valuation office rating of one; and

(D) covers losses to an 80 percent loan-to-value ratio;

(3) "accident and health insurance" means protection that provides payment of benefits for covered sickness or accidental injury; "accident and health insurance" does not include credit insurance, disability insurance, accidental death and dismemberment insurance, or long-term care insurance;

(4) "accident and health insurer" means an insurer

(A) that is a life or health insurer authorized under AS 21.09 or hospital medical service corporation authorized under AS 21.87; and

(B) whose insurance premiums and reserves required by AS 21.18 for accident and health insurance constitute at least 95 percent of total premium considerations or total reserves required by AS 21.18, respectively;

(5) "admitted assets" means assets permitted by AS 21.18.010 to be reported as admitted assets on the statutory financial statement of the insurer most recently required to be filed with the director under AS 21.09.200 , AS 21.09.205 , and 3 AAC 21.400; "admitted assets" does not include assets of separate accounts;

(6) "affiliate" has the meaning given in AS 21.22.200 ;

(7) "asset-backed security" means a security or other instrument that is not a mutual fund and that has the following features:

(A) an interest in or the right to receive payments from distributions that are made on an asset, a pool of assets, or specifically divisible cash flows, and that are legally transferred to a trust or another special purpose bankruptcy-remote business entity;

(B) the organization of a trust or business entity, as described in (A) of this paragraph, solely for the purpose of

(i) acquiring assets or rights to cash flows that consist solely of interest bearing obligations or other contractual obligations representing the right to receive payment from cash flows from the assets or rights; for the purposes of this sub-subparagraph, "obligations" include credit enhancements, including letters of credit and guarantees, and support features, including swap agreements;

(ii) issuing securities and other instruments representing an interest in or right to receive cash flows from those assets or rights acquired as described in (i) of this subparagraph; and

(iii) engaging in activities required to service the assets or rights acquired as described in (i) of this subparagraph and any credit enhancement or support features held by the trust or other business entity;

(8) "bank" means an organization organized under the laws of a state requiring the permission of either the United States Comptroller of the Currency or the state of domicile director of banking or equivalent state officer to both accept deposits of individuals and businesses and make commercial loans and whose deposits are insured by the Federal Deposit Insurance Corporation;

(9) "business entity" means a sole proprietorship, corporation, limited liability company, association, partnership, joint stock company, joint venture, mutual fund, trust, joint tenancy, or other similar form of business organization, whether organized for-profit or not for profit;

(10) "call option" or "call" means an agreement giving the buyer the right to buy or receive a security;

(11) "cap" means an agreement obligating the seller to make payments to the buyer, in which each payment is based on the amount by which a reference price or level or the performance or value of an underlying interest exceeds a predetermined number;

(12) "capital and surplus" means the sum of the capital and surplus of the insurer required to be shown on the insurer's financial statement most recently required to be filed with the director under AS 21.09.200 , AS 21.09.205 , and 3 AAC 21.400;

(13) "cash equivalents" means short-term, highly rated, and highly liquid investments or securities readily convertible to known amounts of cash without penalty and nearing maturity to the degree that they present insignificant risk of change in value; "cash equivalents" include government money market mutual funds and class one money market mutual funds; in this paragraph,

(A) "highly rated" means having a rating

(i) of "P-1" by Moody's Investors Service, Inc., or "A-1" by the Standard and Poor's division of The McGraw Hill Companies, Inc.; or

(ii) that is equivalent to a rating listed in (i) of this subparagraph, and that is issued by a nationally recognized statistical rating organization; and

(B) "short-term" means having a remaining term to maturity of 90 days or less;

(14) "class one bond mutual fund" means a mutual fund that, at all times, qualifies for investment using the bond class one reserve factor under the purposes and procedures manual of the securities valuation office;

(15) "class one money market mutual fund" means a money market mutual fund that, at all times, qualifies for investment using the bond class one reserve factor under the purposes and procedures manual of the securities valuation office;

(16) "collar" means an agreement to receive payments as the buyer of an option, cap, or floor and to make payments as the seller of a different option, cap, or floor;

(17) "construction loan" means a loan of less than three years in term that is made for financing the cost of construction of a building or other improvement to real estate and that is secured by the real estate;

(18) "control" has the meaning given in AS 21.22.200 ;

(19) "counterparty" means the party on the other side of an investment trade or transaction;

(20) "counterparty exposure amount" means the net amount of credit risk attributable to a derivative instrument entered into with a business entity by a means other than through a qualified exchange, through a qualified foreign exchange, or through clearance by a qualified clearinghouse;

(21) "covered" means for which an insurer

(A) owns or can immediately acquire, through the exercise of options, warrants, or conversion rights already owned, the underlying interest in order to fulfill or secure its obligations under a call option, cap, or floor it has written; or

(B) has set aside under a custodial or escrow agreement, cash or cash equivalents with a market value equal to the amount required to fulfill its obligations under a put option it has written, in an income generation transaction;

(22) "credit lease transaction" means a credit tenant loan that involves a lease for a specified period of time with specified rent payments at least sufficient to repay the related note and as more particularly defined in the purposes and procedure manual for the securities valuation office;

(23) "credit tenant loan" means a mortgage loan that is made primarily in reliance on the credit standing of a major tenant and that is structured with an assignment of the rental payments to the lender with real estate pledged as collateral in the form of a first lien;

(24) "derivative instrument"

(A) means an agreement, an option, an instrument, or a series or combination of agreements, options, and instruments

(i) to make or take delivery of, or assume or relinquish, a specified amount of one or more underlying interests, or to make a cash settlement in lieu of them; or

(ii) that has a price, performance, value, or cash flow based primarily upon the actual or expected price, level, performance, value, or cash flow of one or more underlying interests; and

(B) does not include an investment authorized by 3 AAC 21.236 - 3 AAC 21.266, 3 AAC 21.276, or 3 AAC 21.330 - 3 AAC 21.360;

(25) "derivative transaction" means a transaction involving the use of a derivative instrument;

(26) "direct" or "directly," when used in connection with an obligation referenced under 3 AAC 21.201 - 3 AAC 21.399, means for which, or in a manner that, the designated obligor is primarily liable on the instrument representing the obligation;

(27) "dollar roll transaction" means two simultaneous transactions with different settlement dates not more than 96 days apart, in which, in the transaction with the earlier settlement date, an insurer sells to a business entity, and, in the later transaction, the insurer is obligated to purchase from the same business entity substantially similar securities of the following types:

(A) asset-backed securities issued, assumed, or guaranteed by the Government National Mortgage Association, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, or successors to those entities;

(B) asset-backed securities referred to in 15 U.S.C. 77r-1 (Secondary Mortgage Market Enhancement Act of 1984);

(28) "domestic jurisdiction" means the United States, a state, Canada, a province of Canada, or a political subdivision of the United States, a state, Canada, or a province of Canada;

(29) "equity interest" means any of the following that are not rated credit instruments:

(A) common stock;

(B) preferred stock;

(C) a trust certificate;

(D) an equity investment in an investment company other than a money market mutual fund or a class one bond mutual fund;

(E) an investment in a common trust fund of a bank regulated by a federal or state agency;

(F) an ownership interest in minerals, oil, or gas, the rights to which have been separated from the underlying fee interest in the real estate where the minerals, oil, or gas are located;

(G) an instrument that is mandatorily, or at the option of the issuer, convertible to equity;

(H) a limited partnership interest or general partnership interest authorized under 3 AAC 21.216(a) (4);

(I) a member interest in a limited liability company;

(J) a warrant or other right to acquire an equity interest that is created by the person that owns or would issue the equity to be acquired;

(K) an instrument that is a rated credit instrument but that does not meet the requirements of 3 AAC 21.395;

(30) "equivalent securities" means, in a

(A) securities lending transaction, securities that are

(i) identical to the loaned securities in all features including the amount of the loaned securities, except as to certificate numbers if the securities are held in physical form; or

(ii) different from the loaned securities and exchanged for them by recapitalization, merger, consolidation, or other similar corporate action;

(B) repurchase transaction, securities that are identical to the purchased securities in all features including the amount of the purchased securities, except as to the certificate numbers if the securities are held in physical form; or

(C) reverse repurchase transaction, securities that are identical to the sold securities in all features including the amount of the sold securities, except as to the certificate numbers if the securities are held in physical form;

(31) "floor" means an agreement obligating the seller to make payments to the buyer in which each payment is based on the amount by which a predetermined number exceeds a reference price, level, performance, or value of an underlying interest;

(32) "foreign currency" means a currency other than that of a domestic jurisdiction;

(33) "foreign investment" means an investment in a foreign jurisdiction or an investment in a person, real estate, or asset domiciled in a foreign jurisdiction that is substantially of the same type as those eligible for investment under 3 AAC 21.201 - 3 AAC 21.399, other than under 3 AAC 21.266 and 3 AAC 21.360; an investment is not foreign if the issuing person, qualified primary credit source, or qualified guarantor is a domestic jurisdiction or a person domiciled in a domestic jurisdiction, unless

(A) the issuing person is a shell business entity; and

(B) the investment is not assumed, accepted, guaranteed, insured, or otherwise backed by a domestic jurisdiction or a person that is not a shell business entity domiciled in a domestic jurisdiction;

(34) "foreign jurisdiction" means a jurisdiction other than a domestic jurisdiction;

(35) "forward" means an agreement, other than a future, to make or take delivery of or effect a cash settlement based on the actual or expected price, level, performance, or value of an underlying interest;

(36) "future" means an agreement, traded on a qualified exchange or qualified foreign exchange, to make or take delivery of or effect a cash settlement based on the actual or expected price, level, performance, or value of an underlying interest;

(37) "government money market mutual fund" means a money market mutual fund that, at all times

(A) invests only in obligations issued, guaranteed, or insured by the government of the United States, or in collateralized repurchase agreements composed of these obligations; and

(B) qualifies for investment without a reserve under the purposes and procedures manual of the securities valuation office;

(38) "government-sponsored enterprise" means a

(A) governmental agency; or

(B) entity or instrumentality organized under the laws of a domestic jurisdiction to accomplish a public policy or other governmental purpose;

(39) "guaranteed," when used in connection with an obligation acquired under 3 AAC 21.201 - 3 AAC 21.399, means for which the guarantor has agreed

(A) to perform or insure the obligation of the obligor or purchase the obligation; or

(B) to be unconditionally obligated until the obligation is repaid to maintain in the obligor a minimum net worth, fixed charge coverage, stockholders' equity, or sufficient liquidity to enable the obligor to pay the obligation in full;

(40) "hedging transaction" means a derivative transaction that is entered into and maintained to reduce

(A) the risk of a change in the value, yield, price, cash flow, or quantity of assets or liabilities that an insurer has acquired or incurred or anticipates acquiring or incurring; or

(B) the currency exchange rate risk or the degree of exposure as to assets or liabilities that an insurer has acquired or incurred or anticipates acquiring or incurring;

(41) "high grade investments" means rated credit instruments rated one or two by the securities valuation office;

(42) "income," as to a security, means interest, the accrual of discount, a dividend, or another distribution; "income" includes a right, tax or assessment credit, warrant, or distribution in kind;

(43) "income generation transaction" means a derivative transaction involving the writing of a covered call option, covered put option, covered cap, or covered floor that is intended to generate income or enhance return;

(44) "insurance future" means a future relating to an index or pool that is based on insurance-related items;

(45) "insurance future option" means an option on an insurance future;

(46) "investment company" has the meaning given in 15 U.S.C. 80a-3 (Investment Company Act of 1940);

(47) "investment company series" means an investment portfolio of an investment company that is organized as a series company and to which assets of the investment company have been specifically allocated;

(48) "investment practices" means transactions of the types described in 3 AAC 21.261, 3 AAC 21.271, 3 AAC 21.355, or 3 AAC 21.365;

(49) "investment subsidiary" means a subsidiary of an insurer engaged or organized to engage exclusively in the ownership and management of assets authorized as investments for the insurer

(50) "investment strategy" means the techniques and methods used by an insurer to meet its investment objectives; "investment strategy" includes active bond portfolio management, passive bond portfolio management, interest rate anticipation, growth investing, and value investing;

(51) "letter of credit" means a clean, irrevocable, and unconditional letter of credit issued or confirmed by and payable and presentable at a financial institution on the list of financial institutions meeting the standards for issuing letters of credit under the purposes and procedures manual of the securities valuation office;

(52) "life and health insurer" means an insurer that transacts life insurance, annuities, or health insurance;

(53) "limited liability company" means a company organized under AS 10.50;

(54) "lower grade investments" means rated credit instruments rated four, five, or six by the securities valuation office;

(55) "market value" means, as to

(A) cash and letters of credit, the amount of cash or letters of credit; and

(B) a security as of any date,

(i) the price for the security on that date obtained from a source that is generally recognized by the financial services industry as credible and accurate or the most recent quotation from a source that is generally recognized by the financial services industry as credible and accurate; or

(ii) if a source that is generally recognized by the financial services industry as credible and accurate does not exist for determining the price of the security, the price as determined in good faith by the parties to a transaction, plus accrued but unpaid income on the security to the extent not included in the price as of that date;

(56) "medium grade investments" means rated credit instruments rated three by the securities valuation office;

(57) "money market mutual fund" means a mutual fund that meets the conditions required under 15 U.S.C. 80a-1 - 80a-64 (Investment Company Act of 1940);

(58) "mortgage loan" means an obligation secured by a mortgage, deed of trust, trust deed, or other consensual lien on real estate;

(59) "multilateral development bank" means an international development organization of which the United States is a member;

(60) "mutual fund" means an investment company or, in the case of an investment company that is organized as a series company, an investment company series, that is registered with the United States Securities and Exchange Commission under 15 U.S.C. 80a-1 - 80a-64 (Investment Company Act of 1940);

(61) "nationally recognized statistical rating organization" means an organization on the list of nationally recognized statistical rating organizations as established by the securities valuation office;

(62) "obligation" means a

(A) bond, note, debenture, trust certificate, production payment, negotiable bank certificate of deposit, bankers' acceptance, credit tenant loan, loan secured by financing net leases, or other evidence of indebtedness for the payment of money; for purposes of this subparagraph, "trust certificate" includes an equipment certificate; or

(B) participation, certificate, or other evidence of an interest in any of the sources listed in (A) of this paragraph, whether constituting a general obligation of the issuer or payable only from certain revenue or a certain fund pledged or otherwise dedicated for payment;

(63) "officially declared catastrophe" means a

(A) disaster emergency declared by the governor under AS 26.23;

(B) declaration of disaster or other catastrophe declared by the governor of a state or by the President of the United States; or

(C) catastrophe determined by the director under AS 21.06.080 (d);

(64) "option" means

(A) a call option;

(B) a put option; or

(C) an agreement giving the buyer the right to enter into, extend, or terminate or effect a cash settlement based on the actual or expected price, level, performance, or value of an underlying interest;

(65) "over-the-counter derivative instrument" means a derivative cleared through a qualified clearinghouse but not traded in an exchange;

(66) "person" has the meaning given in AS 21.90.900 ; "person" includes a business entity, a multilateral development bank, and a government or quasi-governmental body, including a political subdivision and a government-sponsored enterprise;

(67) "potential exposure" means the amount determined in accordance with the annual statement instructions of the National Association of Insurance Commissioners;

(68) "preferred stock" means preferred, preference, or guaranteed stock

(A) of a business entity authorized to issue the stock; and

(B) that has a preference in liquidation over the common stock of the business entity;

(69) "property and casualty insurer" means an insurer that transacts property insurance, casualty insurance, surety insurance, marine or wet marine and transportation insurance, or mortgage guaranty insurance;

(70) "put option" or "put" means an agreement giving the buyer the right to sell or deliver a security;

(71) "qualified bank" means

(A) a national bank, state bank, or trust company that, at all times, is not less than adequately capitalized as determined by United States banking regulators and that either is regulated by state banking laws or is a member of the Federal Reserve System; or

(B) a bank or trust company incorporated or organized under the laws of a country other than the United States that is regulated as a bank or trust company by that country's government or an agency of that country's government and that, at all times, is no less than adequately capitalized as determined by international banking authorities;

(72) "qualified business entity" means a business entity that is

(A) an issuer of

(i) obligations or preferred stock that is rated one or two by the securities valuation office; or

(ii) obligations, preferred stock, or derivative instruments that are rated with the equivalent of a one or two rating of the securities valuation office by a nationally recognized statistical rating organization; or

(B) a primary dealer in United States government securities, recognized by the Federal Reserve Bank of New York;

(73) "qualified clearinghouse" means a clearinghouse

(A) for and subject to the rules of a qualified exchange or a qualified foreign exchange; and

(B) that provides clearing services, including acting as a counterparty to each of the parties to a transaction in a manner that the parties no longer have credit risk as to each other;

(74) "qualified exchange" means

(A) a securities exchange registered as a national securities exchange or a securities market regulated under 15 U.S.C. 78 - 78mm (Securities Exchange Act of 1934);

(B) a board of trade or commodities exchange designated as a contract market by the Commodity Futures Trading Commission or any successor of that commission;

(C) the National Association of Securities Dealers' Private Offerings, Resales, and Trading Through Automated Linkages (PORTAL) trading system for unregistered securities in transactions exempt from the registration and prospectus delivery requirement of 15 U.S.C. 77a - 77bbbb (Securities Exchange Act of 1933);

(D) a designated offshore securities market as defined in 17 C.F.R. 230.902(b) (Rule 902(b) of Regulation 5); or

(E) a qualified foreign exchange;

(75) "qualified foreign exchange" means a foreign exchange, board of trade, or contract market that is located outside the United States, United States territories, and United States possessions, and

(A) that has been granted a petition for exemption under 17 C.F.R. 30.10 and 17 C.F.R. Part 30, App. C;

(B) that is or whose members are subject to the jurisdiction of a foreign futures authority that has received an exemption under 17 C.F.R. 30.10 and 17 C.F.R. Part 30, App. C, as to futures transactions in the jurisdiction where the exchange, board of trade, or contract market is located; or

(C) upon which foreign stock index futures contracts are listed that are the subject of no-action relief issued by the Commodity Futures Trading Commission's Office of General Counsel; under this subparagraph, an exchange, board of trade, or contract market is a "qualified foreign exchange" only for foreign stock index futures contracts that are the subject of no-action relief;

(76) "qualified guarantor" means a guarantor against which an insurer has a direct claim for full and timely payment, evidenced by a contractual right for which an enforcement action can be brought in a domestic jurisdiction;

(77) "qualified primary credit source" means the credit source to which an insurer looks for payment as to an investment and against which an insurer has a direct claim for full and timely payment, evidenced by a contractual right for which an enforcement action can be brought in a domestic jurisdiction;

(78) "quantitative limitation" means a requirement in 3 AAC 21.201 - 3 AAC 21.399 that is based upon a numerical calculation;

(79) "real estate" means

(A) real property;

(B) interests in real property, including leaseholds, minerals, and oil and gas that have not been separated from the underlying fee interest;

(C) improvements and fixtures located on or in real property; or

(D) the seller's equity in a contract providing for a deed of real estate;

(80) "replication transaction" means a derivative transaction that is intended to replicate the performance of one or more assets that an insurer is authorized to acquire under 3 AAC 21.201 - 3 AAC 21.399; "replication transaction" does not include a derivative transaction that is entered into as a hedging transaction;

(81) "repurchase transaction" means a transaction in which an insurer purchases securities from a business entity that is obligated to repurchase the purchased securities or equivalent securities from the insurer at a specified price, either within a specified period of time or upon demand;

(82) "required liabilities" means total liabilities required to be reported on the financial statement of the insurer most recently required to be filed with the director under AS 21.09.200 , AS 21.09.205 , and 3 AAC 21.400;

(83) "residential mortgage loan" means a loan primarily secured by a mortgage on real estate improved with a one- to four-family residence;

(84) "reverse repurchase transaction" means a transaction in which an insurer sells securities to a business entity and is obligated to repurchase the sold securities or equivalent securities from the business entity at a specified price, either within a specified period of time or upon demand;

(85) "savings and loan" means an organization that is organized under the laws of a state and that has qualified for the insurance protection provided by the Federal Deposit Insurance Corporation;

(86) "secured location" means the contiguous real estate owned by one person;

(87) "securities lending transaction" means a transaction in which securities are loaned by an insurer to a business entity that is obligated to return the loaned securities or equivalent securities to the insurer, either within a specified period of time or upon demand;

(88) "securities valuation office" means the organization designated by the National Association of Insurance Commissioners to rate securities and to determine the carrying or admitted asset value of obligations owned by an insurer;

(89) "series company" means an investment company that is organized as a series company under 15 U.S.C. 80a-1 - 80a-64 (Investment Company Act of 1940);

(90) "shell business entity" means a business entity having no economic substance except as a vehicle for owning interests in assets issued, owned, or previously owned by a person domiciled in a foreign jurisdiction;

(91) "sinking fund stocks" means preferred stocks that

(A) are subject to a mandatory sinking fund or similar arrangement that will provide for the redemption or open market purchase of the entire issue over a period not longer than 40 years after the date of acquisition; and

(B) provide for mandatory sinking fund installments or open-market purchases commencing not more than 10 1/2 years after the date of issue, with the sinking fund installments providing for the purchase or redemption, on a cumulative basis commencing 10 years after the date of issue, of at least two and one half percent a year of the original number of shares of that issue of preferred stock;

(92) "state" has the meaning given in AS 21.90.900 ;

(93) "subsidiary" has the meaning given in AS 21.22.200 ;

(94) "substantially similar securities" means securities that meet all criteria to be substantially the same as specified in the accounting practices and procedures manual of the National Association of Insurance Commissioners;

(95) "swap" means an agreement to exchange or to net payments based on the actual or expected price, level, performance, or value of an underlying interest;

(96) "trust company" means a financial institution licensed as a trust company

(A) that, at all times, is not less than adequately capitalized as determined by United States banking regulators and that either is regulated by state banking laws or is a member of the Federal Reserve System; or

(B) incorporated or organized under the laws of a country other than the United States that is regulated as a trust company by that country's government or an agency of that country's government and that, at all times, is not less than adequately capitalized as determined by international banking authorities;

(97) "underlying interest" means the assets, liabilities, or other interests, or a combination of assets, liabilities, or other interests underlying a derivative instrument; "underlying interest" includes a security, currency, rate, index, commodity, or derivative instrument;

(98) "unrestricted surplus" means the amount by which total admitted assets exceed 125 percent of the insurer's required liabilities;

(99) "warrant" means an instrument that gives the holder the right to purchase an underlying financial instrument at a given price and time or at a series of prices and times outlined in the warrant agreement; "warrant" includes a warrant issued alone or in connection with the sale of other securities, as part of a merger or recapitalization agreement or to facilitate divestiture of the securities of another business entity.

History: Eff. 12/28/2001, Register 160

Authority: AS 21.06.090

AS 21.18.010

AS 21.18.030

AS 21.18.040

AS 21.18.170

AS 21.18.900

AS 21.21.010

AS 21.21.020

AS 21.21.255

AS 21.21.420

AS 21.22.200

AS 21.90.900