(215 ILCS 5/147.3)

Sec. 147.3. Issuance of capital notes by domestic companies.

(a) A domestic company may at any time or from time to time issue capital notes pursuant to this Section in an aggregate principal amount not exceeding (1) 25% of its total adjusted capital (including the aggregate principal amount of outstanding capital notes and outstanding surplus notes or guaranty fund certificates and guaranty capital shares) as of the end of the immediately preceding calendar year less (2) the aggregate principal amount of outstanding capital notes and outstanding surplus notes or guaranty fund certificates and guaranty capital shares; provided, however, that capital notes shall not be issued for an aggregate principal amount that would cause the aggregate principal amount for all of the insurer's capital notes scheduled to mature in any calendar year to exceed 5%, or the aggregate principal amount of all of the insurer's capital notes scheduled to mature in any 3 consecutive calendar years to exceed 12%, of the insurer's total adjusted capital as of the end of the calendar year immediately preceding the issuance of the capital notes. The aggregate amount of capital notes and surplus notes or guaranty fund certificates and guaranty capital shares is at all times limited to 33 1/3% of total adjusted capital. Any aggregate amount in excess of this limit shall reduce the amount of capital notes included in the insurer's total adjusted capital.

(b) No insurer shall issue capital notes pursuant to this Section unless the form and terms thereof shall have been approved by the Director. The term of any capital note shall be no less than 5 years.

(c) An insurer with a capital note outstanding shall file a report with the Director at the same time that the insurer files its Annual Statement and at such other times as the Director determines necessary. The Director may by rule establish times for and the content of these reports.

(d) The insurer shall not pay or redeem the principal amount of any capital notes, make any sinking fund payment, or pay any interest on the notes, and the principal, payment, and interest shall not become due or payable if, based on the preceding year-end annual statement filed with the Director:

(1)(A) The insurer's total adjusted capital is less than the insurer's company action level RBC or (B) the insurer's total adjusted capital is less than the product of 1.25 and its company action level RBC and there is a negative trend, as determined in accordance with the Article IIA of this Code; or

(2) the aggregate of all payments or redemptions made during a calendar year would, if made immediately prior to the preceding year-end, have caused (A) the insurer's total adjusted capital to be less than the insurer's company action level RBC or (B) the insurer's total adjusted capital at such time to be less than the product of 1.25 and its company action level RBC and there is a negative trend, as determined in accordance with Article IIA of this Code.

Notwithstanding items (1) and (2), upon request by the insurer, the Director may approve, in whole or in part, any payment or redemption on the capital notes if and at such time or times as in his or her judgment the financial condition of the insurer warrants. The amount of the redemptions or payments of principal amounts of any capital notes that cannot be made as the result of the provisions of this subsection may accumulate at the rate of interest of the capital notes.

(e) Capital notes issued pursuant to this Section:

(1) may provide (A) for interest payments at fixed or adjustable rates, sinking fund payments, and payments and redemptions of principal, in each case in accordance with the terms of the capital note and without the prior approval of the Director except to the extent that such approval is required pursuant to this subsection or subsection (d) of this Section, (B) that the capital notes automatically become due and payable in the event the insurer becomes subject to an order of rehabilitation, liquidation, or conservation granted pursuant to a proceeding under Article XIII of this Code, and (C) for such other features as the Director determines are appropriate for capital notes issued according to this Section; and

(2) shall provide that if at the end of any calendar year the total amount of the insurer's total adjusted capital (including the aggregate principal amount of outstanding capital notes and outstanding surplus notes or guaranty fund certificates and guaranty capital shares) is less than 3 times the aggregate principal amount of capital notes outstanding and surplus notes or guaranty fund certificates and guaranty capital shares, the Director may notify the insurer that the financial condition of the insurer does not warrant the payment or redemption or sinking fund payment, in whole or in part, on the capital notes. Such action by the Director shall, without any action on the part of the insurer or any other person, automatically defer payment or redemption until such time as the Director finds that the financial condition warrants payment or redemption. The amount of redemptions or payments of principal amounts of any capital notes so deferred may accumulate at the rate of interest of the capital notes.

(f) The outstanding principal of a capital note issued pursuant to this Section shall be considered part of the insurer's total adjusted capital, but shall not be considered part of the insurer's surplus; provided, however, (1) that, in the case of any capital note maturing 15 years or less from the year in which the capital note is issued, one-fifth of the aggregate principal amount of the capital note shall be subtracted from total adjusted capital in each year starting with the fifth year immediately preceding the calendar year in which the capital note is scheduled to mature; and (2) that, in the case of any capital note maturing more than 15 years from the year in which the capital note is issued, one-tenth of the aggregate principal amount of the capital note shall be subtracted from total adjusted capital in each year starting with the tenth year immediately preceding the calendar year in which the capital note is scheduled to mature, and further provided that, in no event shall the amount included in total adjusted capital for any capital note exceed the principal amount, at issue, of the outstanding capital note less the aggregate of all sinking fund payments made on the capital note. The insurer shall disclose the aggregate principal amount of capital notes then outstanding as a liability on its financial statements filed with the Director pursuant to this Code.

(g) As used in this Section, the terms "total adjusted capital", "company action level RBC", and "authorized control level RBC" shall have the meanings given those terms in Article IIA of this Code.

(Source: P.A. 90-831, eff. 8-14-97.)