By Van de Putte H.B. No. 1680 75R7056 PB-F A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the investment authority of certain insurers. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. Chapter 2, Insurance Code, is amended by adding 1-5 Article 2.10-5 to read as follows: 1-6 Art. 2.10-5. INVESTMENT AUTHORITY 1-7 Sec. 1. DEFINITIONS. In this article: 1-8 (1) "Business entity" means a corporation, limited 1-9 liability company, association, partnership, joint stock company, 1-10 joint venture, mutual fund trust, or other similar form of business 1-11 organization, whether organized as for-profit or not-for-profit. 1-12 (2) "Class one money market mutual fund" means a 1-13 mutual fund that at all times qualifies for investment using the 1-14 bond class one reserve factor described by the purposes and 1-15 procedures publication of the securities valuation office. 1-16 (3) "Government money market mutual fund" means a 1-17 money market mutual fund that at all times: 1-18 (A) invests only in obligations issued, 1-19 guaranteed, or insured by the United States or collateralized 1-20 repurchase agreements composed of those obligations; and 1-21 (B) is qualified for investment without a 1-22 reserve under the purposes and procedures publication of the 1-23 securities valuation office or any successor publication. 1-24 (4) "Money market mutual fund" means a mutual fund 2-1 that qualifies under 17 C.F.R. Part 270.2a-7, as authorized by the 2-2 Investment Company Act of 1940 (15 U.S.C. Section 80a-1 et seq.), 2-3 as amended. 2-4 (5) "Obligation" means: 2-5 (A) a bond, note, debenture, trust certificate, 2-6 including an equipment certificate, or production payment; 2-7 (B) a negotiable bank certificate of deposit, 2-8 bankers' acceptance, credit tenant loan, or other loan secured by 2-9 financing net leases; or 2-10 (C) any other evidence of indebtedness for the 2-11 payment of money, or participation certificates or other evidences 2-12 of an interest in an obligation described by this subdivision, 2-13 whether constituting a general obligation of the issuer or payable 2-14 only out of certain revenues or certain funds pledged or otherwise 2-15 dedicated for payment. 2-16 (6) "Qualified bank" means a national bank, state 2-17 bank, or trust company that at all times is adequately capitalized 2-18 as determined by the standards adopted by the United States banking 2-19 regulators and that is either regulated by state banking laws or is 2-20 a member of the Federal Reserve System. 2-21 (7) "Repurchase transaction" means a transaction in 2-22 which an insurer purchases securities from a business entity that 2-23 is obligated to repurchase the purchased securities or equivalent 2-24 securities from the insurer at a specified price, either within a 2-25 specified period or on demand. 2-26 (8) "Reverse repurchase transaction" means a 2-27 transaction in which an insurer sells securities to a business 3-1 entity and is obligated to repurchase the securities sold or 3-2 equivalent securities from the business entity at a specified 3-3 price, either within a specified period or on demand. 3-4 (9) "Securities lending transaction" means a 3-5 transaction in which securities are loaned by an insurer to a 3-6 business entity that is obligated to return the loaned securities 3-7 or equivalent securities to the insurer, either within a specified 3-8 period or on demand. 3-9 (10) "Securities valuation office" means the 3-10 Securities Valuation Office of the National Association of 3-11 Insurance Commissioners. 3-12 Sec. 2. AUTHORITY TO INVEST. An insurer may acquire 3-13 investments and participate in an investment pool that is qualified 3-14 under Section 5 of this article and the investments of which are 3-15 limited to investments authorized for a short-term investment pool 3-16 under Section 3 of this article or for another investment pool 3-17 under Section 4 of this article. 3-18 Sec. 3. SHORT-TERM INVESTMENT POOLS. (a) A short-term 3-19 investment pool may contain only: 3-20 (1) except as provided by Subsection (b) of this 3-21 section, obligations that are rated one or two by the securities 3-22 valuation office or that have a rating equivalent to a securities 3-23 valuation office rating of one or two made by a statistical rating 3-24 organization that is nationally recognized and recognized by the 3-25 securities valuation office, and that have a remaining maturity of: 3-26 (A) 397 days or less or a put that entitles the 3-27 holder to receive the principal amount of the obligation and that 4-1 may be exercised through maturity at specified intervals not 4-2 exceeding 397 days; or 4-3 (B) three years or less and a floating interest 4-4 rate that resets not less frequently than quarterly on the basis of 4-5 a current short-term index acceptable under Subsection (c) of this 4-6 section and is not subject to a maximum limit, if the obligations 4-7 do not have an interest rate that varies inversely to market 4-8 interest rate changes; 4-9 (2) government money market mutual funds or class one 4-10 money market mutual funds; or 4-11 (3) securities lending, repurchase transactions, and 4-12 reverse repurchase transactions that meet the requirements imposed 4-13 under Article 2.10-3 of this code. 4-14 (b) In the absence of a one or two rating or equivalent 4-15 rating, the issuer of an obligation under Subsection (a)(1) of this 4-16 section must have outstanding obligations rated one or two by the 4-17 securities valuation office or that have a rating equivalent to a 4-18 securities valuation office rating of one or two made by a 4-19 nationally recognized statistical rating organization recognized by 4-20 the securities valuation office. 4-21 (c) For purposes of this section, a current short-term index 4-22 is: 4-23 (1) a federal funds rate; 4-24 (2) the prime rate; 4-25 (3) the rate for treasury bills; 4-26 (4) the London InterBank Offered Rate; or 4-27 (5) the rate for commercial paper. 5-1 Sec. 4. OTHER INVESTMENT POOLS. Other investment pools are 5-2 limited to investments that an insurer is authorized to acquire 5-3 other than under this article, if the insurer's proportionate 5-4 interest in the amount of those investments does not exceed the 5-5 applicable limits established under this article. 5-6 Sec. 5. QUALIFICATIONS FOR INVESTMENT POOL. (a) To be 5-7 qualified, an investment pool must comply with the requirements 5-8 established under this section. 5-9 (b) The investment pool may not: 5-10 (1) acquire securities issued, assumed, guaranteed, or 5-11 insured by the insurer or an affiliate of the investing insurer; 5-12 (2) borrow or incur an indebtedness for borrowed 5-13 money, except for securities lending and reverse repurchase 5-14 transactions that meet the requirements of this article; or 5-15 (3) permit the aggregate value of securities loaned or 5-16 sold to, purchased from, or invested in any one business entity to 5-17 exceed 10 percent of the total assets of the investment pool. 5-18 (c) The investment pool must have a written pooling 5-19 agreement. 5-20 (d) The pooling agreement must designate a pool manager. 5-21 The pool manager must be organized under the laws of the United 5-22 States or a state, and must be: 5-23 (1) the investing insurer, an affiliated insurer, or a 5-24 business entity affiliated with the investing insurer; 5-25 (2) a qualified bank; or 5-26 (3) a business entity: 5-27 (A) registered under the Investment Advisors Act 6-1 of 1940 (15 U.S.C. Section 80a-1 et seq.), as amended; 6-2 (B) if a reciprocal insurer or interinsurance 6-3 exchange, its attorney-in-fact; or 6-4 (C) if a United States branch of an alien 6-5 insurer, its United States manager or an affiliate or subsidiary of 6-6 its United States manager. 6-7 (e) The pool manager shall compile and maintain: 6-8 (1) detailed accounting records that set forth: 6-9 (A) the cash receipts and disbursements 6-10 reflecting each pool participant's proportionate investment in the 6-11 investment pool; and 6-12 (B) a complete description of all underlying 6-13 assets of the investment pool, including the amount, interest rate, 6-14 and maturity date, if any, of each of those assets and other 6-15 appropriate information; and 6-16 (2) other records that, on a daily basis, allow third 6-17 parties to verify each pool participant's investment in the 6-18 investment pool. 6-19 (f) The pool manager shall maintain the assets of the 6-20 investment pool in one or more accounts, in the name of or on 6-21 behalf of the investment pool, under a custody agreement with a 6-22 qualified bank. The custody agreement must: 6-23 (1) state and recognize the claims and rights of each 6-24 participant; 6-25 (2) acknowledge that the underlying assets of the 6-26 investment pool are held solely for the benefit of each participant 6-27 in proportion to the aggregate amount of its investments in the 7-1 investment pool; and 7-2 (3) contain an agreement that the underlying assets of 7-3 the investment pool may not be commingled with the general assets 7-4 of the custodian qualified bank or any other person. 7-5 (g) The pooling agreement for the investment pool must also 7-6 provide that: 7-7 (1) 100 percent of the interest in the investment pool 7-8 must at all times be held by: 7-9 (A) an insurer and its affiliated insurers; 7-10 (B) in the case of an investment pool investing 7-11 solely in investments permitted under Section 3 of this article, 7-12 the insurer and its subsidiaries and affiliates, or any pension or 7-13 profit-sharing plan of the insurer, its subsidiaries, and 7-14 affiliates; or 7-15 (C) in the case of a United States branch of an 7-16 alien insurer, affiliates or subsidiaries of its United States 7-17 manager; 7-18 (2) the underlying assets of the investment pool may 7-19 not be commingled with the general assets of the pool manager or 7-20 any other person; 7-21 (3) each participant owns an undivided interest in the 7-22 underlying assets of the investment pool in proportion to the 7-23 aggregate amount of each pool participant's interest in the 7-24 investment pool and the underlying assets of the investment pool 7-25 are held solely for the benefit of each participant; and 7-26 (4) a pool participant or, in the event of the pool 7-27 participant's insolvency, bankruptcy, or receivership, its trustee, 8-1 receiver, conservator, or other successor-in-interest, may withdraw 8-2 all or any portion of its investment from the pool under the terms 8-3 of the pooling agreement. 8-4 Sec. 6. ADDITIONAL REQUIREMENTS; LIMITATIONS. (a) An 8-5 investment pool must be a business entity. 8-6 (b) A transaction between the pool and a participant in the 8-7 pool is not subject to Section 4, Article 21.49-1, of this code, 8-8 except that, before entering into a pool, an insurer subject to 8-9 Article 21.49-1 shall file the notice required under Section 8-10 4(d)(2), Article 21.49-1, of this code. Investment activities of 8-11 the pool and transactions between pools and participants shall be 8-12 reported annually in the registration statement required by Section 8-13 3, Article 21.49-1, of this code. 8-14 (c) An insurer may not acquire an investment in an 8-15 investment pool under this section if, as a result of and after 8-16 giving effect to that investment, the aggregate amount of 8-17 investments then held by the insurer under this article: 8-18 (1) in any one investment pool would exceed 10 percent 8-19 of its admitted assets; 8-20 (2) in all investment pools investing in investments 8-21 permitted under Section 4 of this article would exceed 25 percent 8-22 of its admitted assets; or 8-23 (3) in all investment pools would exceed 35 percent of 8-24 its admitted assets. 8-25 (d) A pool participant must be able to make withdrawals on 8-26 demand without penalty or other assessment on any business day, and 8-27 settlement of funds must occur within a reasonable and customary 9-1 period after a withdrawal not to exceed five business days. 9-2 (e) The pooling agreement must provide that the pool manager 9-3 shall make a distribution to a pool participant, at the discretion 9-4 of the pool manager, either: 9-5 (1) in cash, the fair market value at the time of the 9-6 distribution of the participant's pro rata share of each underlying 9-7 asset of the investment pool; 9-8 (2) in kind, a pro rata share of each underlying 9-9 asset; or 9-10 (3) in a combination of cash and in kind 9-11 distributions, a pro rata share in each underlying asset. 9-12 (f) A distribution under Subsection (e) is computed in each 9-13 case after subtracting all applicable fees and expenses of the 9-14 investment pool. 9-15 (g) The pool manager shall make the records of the 9-16 investment pool available for inspection by the commissioner. 9-17 SECTION 2. This Act takes effect September 1, 1997. 9-18 SECTION 3. The importance of this legislation and the 9-19 crowded condition of the calendars in both houses create an 9-20 emergency and an imperative public necessity that the 9-21 constitutional rule requiring bills to be read on three several 9-22 days in each house be suspended, and this rule is hereby suspended. 9-23 COMMITTEE AMENDMENT NO. 1 9-24 Amend H.B. 1680 as follows: 9-25 1. Delete Sec. 4 on lines 1 through 5, page 5, and 9-26 substitute in lieu thereof the following: 9-27 Sec. 4. AUTHORIZED INVESTMENT POOLS. Authorized investment 10-1 pools are limited to investments that a participating insurer is 10-2 authorized to acquire by other articles of this Code. The 10-3 insurer's total of proportionate ownership interests in any one 10-4 authorized investment held by an authorized investment pool, and 10-5 direct investments in the same authorized investment, may not 10-6 exceed the limit provided by the applicable authorizing article. 10-7 In addition to that limitation, an insurer is also subject to the 10-8 overall limitations contained in Section 6(c) of this article. 10-9 2. Add the word "investing" before the first use of the word 10-10 "insurer" on line 11, page 5. 10-11 3. Add the language on line 27, page 5, and line 1, page 6, 10-12 to Sec. 5(d)(3) on line 26, page 5. In addition, delete the colon 10-13 after the word "entity" on line 26, page 5, and delete "(A)" on 10-14 line 27, page 5. 10-15 4. Redesignate "(B)" on line 2, page 6, and "(C)" on line 4, 10-16 page 6, as "(4)" and "(5)" respectively. 10-17 5. Delete the word "information" on line 15, page 6, and 10-18 substitute in lieu thereof the word "designations". 10-19 6. Delete the word "interest" on line 7, page 7, and 10-20 substitute in lieu thereof the words "ownership interests". 10-21 Lewis of Tarrant