§ 1323 — Issuance of capital notes by domestic life insurance companies

§ 1323. Issuance of capital notes by domestic life insurance\ncompanies. (a) A domestic life insurance company may at any time or from\ntime to time issue capital notes pursuant to this section in an\naggregate principal amount not exceeding (1) twenty-five percent of its\ntotal adjusted capital (including the aggregate principal amount of\noutstanding notes) as of the end of the immediately preceding calendar\nyear, less (2) the aggregate principal amount of outstanding notes;\nprovided, however, that capital notes shall not be issued for an\naggregate principal amount which would cause the aggregate principal\namount of all such insurer's capital notes scheduled to mature in any\ncalendar year to exceed five percent, or the aggregate principal amount\nof all such insurer's capital notes scheduled to mature in any three\nconsecutive calendar years to exceed twelve percent, of the insurer's\ntotal adjusted capital as of the end of the calendar year immediately\npreceding the issuance of such capital notes. For purposes of this\nsection, outstanding notes shall include the outstanding aggregate\nprincipal amount of capital notes issued pursuant to this section and\nthe outstanding aggregate principal amount of advances or borrowings\nincurred pursuant to section one thousand three hundred seven of this\narticle.\n (b) No such insurer shall issue capital notes pursuant to this section\nunless the terms thereof shall have been approved by the superintendent\nas not adverse to the interests of the insurer's policyholders.\n (c) The insurer shall not pay or redeem the principal amount of any\ncapital notes, make any sinking fund payment or pay any interest on such\nnotes, and such principal, payment and interest shall not become due or\npayable if, based on the preceding year-end annual statement filed with\nthe superintendent: (1) (A) the insurer's total adjusted capital is less\nthan such insurer's company action level RBC or (B) the insurer's total\nadjusted capital is less than the product of 2.5 and its authorized\ncontrol level RBC and there is a negative trend, as determined in\naccordance with section one thousand three hundred twenty-two of this\narticle or (2) the aggregate of all such payments or redemptions made\nduring the current calendar year would if made immediately prior to the\npreceding year-end have caused (A) the insurer's total adjusted capital\nto be less than such insurer's company action level RBC or (B) the\ninsurer's total adjusted capital at such time to be less than the\nproduct of 2.5 and its authorized control level RBC and there is a\nnegative trend, as determined in accordance with section one thousand\nthree hundred twenty-two of this article. Notwithstanding the foregoing,\nupon request by the insurer, the superintendent may approve, in whole or\nin part, any such payment or redemption on the capital notes if and at\nsuch time or times as in his judgment the financial condition of such\ninsurer warrants. The amount of such redemptions or payments of\nprincipal amounts of any capital notes which cannot be made as the\nresult of the provisions of this subsection may accumulate at the rate\nof interest of the capital notes.\n (d) Capital notes issued pursuant to this section: (1) may provide (A)\nfor interest payments at fixed or adjustable rates, sinking fund\npayments, and payments and redemptions of principal, in each case in\naccordance with the terms of the capital note and without the prior\napproval of the superintendent except to the extent that such approval\nis required pursuant to this subsection or subsection (c) of this\nsection, (B) that such capital notes automatically become due and\npayable in the event the insurer becomes subject to an order of\nrehabilitation, liquidation or conservation granted pursuant to a\nproceeding under article seventy-four of this chapter, and (C) for such\nother features as the superintendent determines are appropriate for\ncapital notes issued by a life insurance company; and (2) shall provide\nthat if at the end of any calendar year the total amount of such\ninsurer's total adjusted capital (including the aggregate principal\namount of outstanding notes) is less than three times the aggregate\nprincipal amount of outstanding notes, the superintendent may notify\nsuch insurer that the financial condition of such insurer does not\nwarrant the payment or redemption or sinking fund payment, in whole or\nin part, on the capital notes. Such action by the superintendent shall,\nwithout any action on the part of the insurer or any other person,\nautomatically defer such payment or redemption until such time as the\nsuperintendent finds that the financial condition warrants such payment\nor redemption. The amount of such redemptions or payments of principal\namounts of any capital notes so deferred may accumulate at the rate of\ninterest of the capital notes.\n (e) Capital notes issued pursuant to this section shall be considered\npart of such insurer's total adjusted capital but shall not be\nconsidered part of such insurer's surplus; provided, however, (1) that,\nin the case of any capital note maturing fifteen years or less from the\nyear in which such capital note is issued, one-fifth of the aggregate\nprincipal amount of such capital note shall be subtracted from total\nadjusted capital in each year starting with the fifth year immediately\npreceding the calendar year in which such capital note is scheduled to\nmature; and (2) that, in the case of any capital note maturing more than\nfifteen years from the year in which such capital note is issued;\none-tenth of the aggregate principal amount of such capital note shall\nbe subtracted from total adjusted capital in each year starting with the\ntenth year immediately preceding the calendar year in which such capital\nnote is scheduled to mature, and further provided that, in no event\nshall the amount included in total adjusted capital for any capital note\nexceed the principal amount, at issue, of such outstanding capital note\nless the aggregate of all sinking fund payments made on such capital\nnote. Such insurer shall be required to disclose the aggregate principal\namount of capital notes then outstanding as a liability on its financial\nstatements filed with the superintendent pursuant to this article.\n (f) As used in this section, the terms "total adjusted capital",\n"company action level RBC" and "authorized control level RBC" shall have\nthe same meanings as set forth with respect to such terms in section one\nthousand three hundred twenty-two of this article.\n