1405 - Investments of life insurers.

§  1405.  Investments  of  life insurers. (a) The assets of a domestic  insurer that is authorized to make investments under this section may be  invested  in  the  following  types  of  investments,  in  addition   to  investments  otherwise  authorized,  subject  in the case of investments  made under this section to the  limitations  set  forth  below  and  the  provisions of subsections (c), (d) and (e) of this section:    (1)  Governmental  obligations.  Obligations,  not in default, issued,  assumed, guaranteed or insured by (i) the United States of America or by  any agency or instrumentality thereof, (ii)  any  state  of  the  United  States of America, (iii) the District of Columbia, (iv) any territory or  possession  of  the  United  States of America or any other governmental  unit in the United States, or (v) any agency or instrumentality  of  any  governmental  unit  referred  to  in  items  (ii), (iii) and (iv) above,  provided that, in the case of obligations issued, assumed, guaranteed or  insured by any governmental unit referred to in item (iv) above  or  any  agency   or   instrumentality  referred  to  in  item  (v)  above,  such  obligations are by law (statutory or  otherwise)  payable,  as  to  both  principal  and  interest,  from  taxes  levied  or by law required to be  levied  or  from  adequate  special  revenues   pledged   or   otherwise  appropriated  or  by law required to be provided for the purpose of such  payment, but in no event shall obligations be  eligible  for  investment  under  this  paragraph  if  payable solely out of special assessments on  properties benefited by local improvements.    (2) Obligations and preferred shares  of  American  institutions.  (i)  Obligations,  not in default, whether or not secured and with or without  recourse, issued, assumed, guaranteed, insured or accepted  by  American  institutions  (or  trustees  or  receivers  therefor) and (ii) preferred  shares of any such institution, provided,  however,  that  after  giving  effect  to  any  such investment in preferred shares of any institution,  the  aggregate  amount  of  investments  in  preferred  shares  of  such  institution  made under this section shall not exceed two percent of the  insurer's admitted assets.    (3)  Obligations  secured  by  real  property  or  interests  therein.  Obligations,  or  participations  therein,  secured  by  liens  on  real  property or interests therein located within the United States  and  not  eligible under paragraph one or two of this subsection, provided that no  insurer  making  investments  under  the authority of this section shall  invest in or loan upon the security  of  any  one  property,  under  the  authority  of  this  paragraph, more than thirty thousand dollars or two  percent of admitted assets, whichever is the greater.    (4) Real property or interests therein. Investments in  real  property  or  interests  therein  located  in  the United States, held directly or  evidenced by partnership interests, stock  of  corporations  (including,  without   limitation,   subsidiaries  engaged  or  organized  to  engage  exclusively  in  the  ownership  and  management  of  real  property  or  interests   therein),  trust  certificates  or  other  instruments,  and  acquired (i) as an investment for the production  of  income  or  to  be  improved  or  developed  for  such  investment  purpose, or (ii) for the  convenient accommodation of the insurer's business; provided that, after  giving effect to any such investment, (I) the aggregate amount  of  such  investments  made  under  this  paragraph  and then held by such insurer  shall not exceed twenty-five percent of the insurer's  admitted  assets,  (II)  the  aggregate  amount  of investments made under item (i) of this  paragraph and then held by such insurer shall not exceed twenty  percent  of  the insurer's admitted assets, and (III) investments held under item  (i) above in  each  property  constituting  such  investment  (including  improvements  thereon)  shall not in the aggregate exceed two percent of  the insurer's admitted assets, and provided, further, that no investmentin real property may be made under item  (ii)  herein,  (aa)  if,  after  giving  effect  thereto,  the  aggregate amount of such investments then  held by the insurer would exceed ten percent of the  insurer's  admitted  assets, (bb) without the prior approval of the superintendent, if, after  giving  effect thereto, the aggregate amount of such investments in each  property constituting such investment (including  improvements  thereon)  then  held  by  such  insurer  would exceed two percent of the insurer's  admitted  assets,  and  (cc)  without  the   prior   approval   of   the  superintendent,  in  the  case of an investment by a domestic insurer in  real property located  outside  this  state,  if,  after  giving  effect  thereto,  the  aggregate  amount  of  such  investments  in the property  constituting such  investment  (including  improvements  thereon)  would  exceed one-fifth of one percent of the insurer's admitted assets.    (5)  Personal  property  or interests therein. Investments in personal  property or interests therein located or used wholly or in  part  within  the  United States, held directly or evidenced by partnership interests,  stock  of  corporations  (including,  without  limitation,  subsidiaries  engaged  or  organized  to  engage  exclusively  in  the  ownership  and  management  of  personal   property   or   interests   therein),   trust  certificates or other instruments, provided that, after giving effect to  any  such  investment, (i) the aggregate amount of such investments made  under this paragraph and then held by such insurer shall not exceed  ten  percent of the insurer's admitted assets and (ii) investments held under  this  paragraph  in  the  item  of  personal  property constituting such  investment shall  not  in  the  aggregate  exceed  one  percent  of  the  insurer's admitted assets.    (6)  Equity  interests. Investments (in addition to investments of the  types described in this paragraph but made  or  acquired  under  article  seventeen,  section one thousand four hundred three, paragraphs four and  five of this subsection or section four thousand two  hundred  forty  of  this   chapter)   in   common   shares,   partnership  interests,  trust  certificates or other equity interests (other than preferred shares)  of  American  institutions,  provided  that,  after  giving  effect  to  any  investment made under  this  paragraph,  (i)  the  aggregate  amount  of  investments  made  under this paragraph in the institution in which such  investment is then being made and then held by such  insurer  shall  not  exceed  two  percent  of  the  insurer's  admitted  assets  and (ii) the  aggregate amount of all investments made under this paragraph  and  then  held  by  such  insurer shall not exceed twenty percent of the insurer's  admitted assets.    (7) Foreign investments. (A) Canadian investments substantially of the  same types as those eligible for investment under paragraphs one through  six of this subsection,  provided  that,  after  giving  effect  to  any  investment  made  under  this  subparagraph,  the  aggregate  amount  of  investments made under this subparagraph and then held by  such  insurer  shall  not  exceed  ten percent of the insurer's admitted assets, except  where a greater amount is permitted under  subparagraph  (B)  below  (in  which case the provisions of this subparagraph shall not be applicable).    (B)  In  the  case  of  any  domestic insurer that is authorized to do  business in a foreign country or possession  of  the  United  States  of  America  or  that  has  outstanding  insurance,  annuity  or reinsurance  contracts on lives or risks resident or located in such foreign  country  or  possession,  investments  in such foreign country or possession that  are substantially of the same types as  those  eligible  for  investment  under  paragraphs  one  through  six  of this subsection; provided that,  except where a greater amount is permitted under subparagraph (A) above,  after giving effect  to  any  investment  in  such  foreign  country  or  possession made under this subparagraph, the aggregate amount of cash inthe currency of such foreign country or possession and of investments in  such foreign country or possession made under this subparagraph and then  held  by such insurer shall not exceed one and one-half times the amount  of such insurer's reserves and other obligations under such contracts or  the  amount  which  such  insurer  is  required by law to invest in such  country or possession, whichever shall be greater.    (C)  Investments  in  foreign  countries,  in  addition  to   Canadian  investments  and  investments  permitted  by  subparagraph  (B)  of this  paragraph, that are substantially of the same types  as  those  eligible  for  investment  under  paragraphs  one  through six of this subsection,  provided that, after giving effect to any  investment  made  under  this  subparagraph,  the  aggregate amount of investments qualified under this  subparagraph and then held by such  insurer  shall  not  exceed  sixteen  percent of the insurer's admitted assets; and    (i) the issuer or obligor is (I) a jurisdiction, which is rated in one  of  the  four  highest  rating  categories by an independent, nationally  recognized United States rating agency, (II) any  political  subdivision  or  other  governmental  unit of any such jurisdiction, or any agency or  instrumentality of any such jurisdiction, political subdivision or other  governmental unit or (III) an institution which is organized  under  the  laws  of  any such jurisdiction or, in the case of such paragraphs three  and four of this subsection, the real property is located  in  any  such  jurisdiction; and    (ii)  if  the  investment  is  denominated  in any currency other than  United  States  dollars,   the   investment   is   effectively   hedged,  substantially in its entirety, against the United States dollar:    (I)  for  an  insurer  that  has an approved derivative use plan under  section one thousand four hundred  ten  of  this  article,  pursuant  to  contracts  or  agreements entered into under and in accordance with that  derivative use plan and subject  to  the  counterparty  exposure  limits  thereunder; or    (II)  for any other insurer, pursuant to contracts or agreements which  are: (aa) issued by or traded on a securities exchange or board of trade  regulated under the laws of the United States or Canada  or  a  province  thereof  or  (bb)  entered  into  with:  (aaa)  a  United States banking  institution which has assets in excess of five billion dollars and which  has obligations outstanding, or  has  a  parent  corporation  which  has  obligations  outstanding,  which  are  rated  in  one of the two highest  rating categories  by  an  independent,  nationally  recognized,  United  States   rating  agency;  (bbb)  a  broker-dealer  registered  with  the  Securities and Exchange Commission which has net capital  in  excess  of  two hundred fifty million dollars; or    (ccc) any other banking institution which has assets in excess of five  billion  dollars  and which has obligations outstanding, or has a parent  corporation which has obligations outstanding, which are rated in one of  the  two  highest  rating  categories  by  an  independent,   nationally  recognized, United States rating agency and which is organized under the  laws  of  a jurisdiction which is rated in one of the two highest rating  categories by  an  independent,  nationally  recognized,  United  States  rating agency; and    (iii)  provided  that  an insurer shall not make any investment in any  foreign country pursuant  to  this  subparagraph,  if  such  investment,  together  with all other investments in the same foreign country so made  and then held by such insurer, would exceed six percent of the insurer's  admitted assets.    (D) In  addition  to  the  foreign  investments  permitted  under  the  preceding  subparagraphs of this paragraph, foreign investments that are  substantially of the same types as those eligible for  investment  underparagraphs  one  through  six  of  this subsection, provided that, after  giving effect to  any  investment  made  under  this  subparagraph,  the  aggregate  amount  of  investments made under this subparagraph and then  held  by  such  insurer  shall  not exceed four percent of the insurer's  admitted assets, and provided further that an insurer shall not make any  investment in any foreign country pursuant to this subparagraph, if such  investment, together with all other  investments  in  the  same  foreign  country  so made and then held by such insurer, would exceed two percent  of the insurer's admitted assets.    (8) Other investments. Investments that do  not  qualify  or  are  not  permitted  under  any other paragraph of this subsection, provided that,  after giving effect to any such investment, (i) if such investment is of  a type described in paragraph three or five or  item  (i)  of  paragraph  four  or  paragraph  six  of  this  subsection,  the aggregate amount of  investments of such type made under this paragraph and then held by such  insurer shall not exceed five percent of the insurer's admitted  assets,  (ii)  if such investment is of a type described in paragraph six of this  subsection, the aggregate amount of such  investments  made  under  this  paragraph in the institution in which such investment is then being made  and  then  held  by  such  insurer  shall  not exceed two percent of the  insurer's admitted assets,  (iii)  if  such  investment  is  of  a  type  described in paragraph seven of this subsection, the aggregate amount of  investments  of  all  types  described  in said paragraph seven and made  under this paragraph and then held by such insurer shall not exceed  two  percent  of the insurer's admitted assets, and (iv) the aggregate amount  of all investments made under this  paragraph  and  then  held  by  such  insurer shall not exceed fourteen percent (but not more than ten percent  in  investments in institutions not having their principal operations in  this state and in real  and  personal  property  and  interests  therein  located  outside this state and in mortgages and security interests with  respect to real and personal property located outside this state) of the  insurer's admitted assets. Investments that are neither interest bearing  nor income paying, made under this paragraph as  provided  in  paragraph  one of subsection (d) of section one thousand four hundred three of this  article,  shall  be  subject to all the provisions of this paragraph and  may not be acquired if the aggregate amount  thereof  immediately  after  such  acquisition  would  exceed three percent of the insurer's admitted  assets.    (b) (1) For the purposes of this section, article  seventeen  of  this  chapter and section one thousand four hundred three of this article,    (A) "aggregate amount" of investments means, subject to the provisions  of the final sentence of this subsection, the aggregate depreciated cost  thereof, in the case of investments of the types described in paragraphs  four  and five of subsection (a) of this section, and the aggregate cost  thereof in the case of investments of other types;    (B) "admitted assets" means the amount thereof as of the last  day  of  the  most  recently  concluded  annual  statement  year  subject  to the  following adjustments;    (i) assets held in separate accounts established  under  section  four  thousand two hundred forty of this chapter shall be included only to the  extent  of  amounts  allocated  to  such  separate  accounts pursuant to  paragraph three of subsection (a) of  said  section  four  thousand  two  hundred forty; and    (ii)  investments  in  subsidiaries  referred  to in subsection (c) of  section one thousand  seven  hundred  four  of  this  chapter  shall  be  excluded; and    (C)   the  eligibility  of  any  investment  under  any  paragraph  of  subsection (a) of this section  shall  be  determined  at  the  time  ofacquisition  thereof,  except that (i) any investment qualified pursuant  to item (ii) of subparagraph (C) of paragraph seven of  such  subsection  (a)  shall remain so qualified only at such time or times as the hedging  requirements  of  such  item (ii) are met with respect thereto; and (ii)  investments qualified under paragraph eight of said subsection  (a)  may  be  requalified  at  a  later  date  under  another  paragraph  of  said  subsection (a), if the relevant conditions are satisfied at the time  of  such  requalification.  In  computing depreciated cost of investments of  the types described in paragraphs four and five  of  subsection  (a)  of  this  section,  depreciation  may  be computed at a rate no greater than  that permitted for federal income tax  purposes  and,  in  the  case  of  investments  described in said paragraph four, the cost of an investment  shall be depreciated over its estimated useful life, not to exceed fifty  years.    (2) In computing the "aggregate amount" of investments, as provided in  the first sentence of paragraph one of this subsection, (A) valuation of  investments acquired under paragraph four  of  subsection  (a)  of  this  section  shall  also  be  subject to any regulation with respect to such  valuation that the superintendent may prescribe and (B)  investments  of  investment subsidiaries as defined in section one thousand seven hundred  two  of  this  chapter  shall be valued as though the parent corporation  owned the assets of such subsidiaries directly instead of the  stock  of  such  subsidiaries  and shall be subject to the provisions of subsection  (d) of section one thousand seven hundred four of this chapter.    (c) In addition to other requirements of law (statutory or  otherwise)  that   affect  the  standard  of  care  of  directors  and  officers  of  corporations, in making investments under this  section,  directors  and  officers  shall  perform their duties in good faith and with that degree  of care that an ordinarily prudent individual in a like  position  would  use  under  similar circumstances. In the case of investments made under  paragraphs two and six of subsection (a) of this section and investments  that  are  substantially  of  the  same  types  as  those  eligible  for  investment  under such paragraphs, but are made under paragraph seven of  such subsection, the institution that determines the eligibility of  any  such  investment  shall  be  a solvent institution whose obligations, if  any, are not in  default  as  to  principal  or  interest,  unless  such  investment is necessary to protect an investment theretofore made in the  securities of such institution.    (d)  After giving effect to any investment of a type described in item  (i), (ii) or (iii) below, the aggregate amount  of  (i)  investments  in  subsidiaries  charged  against  the  limit contained in paragraph one of  subsection (a) of section  one  thousand  seven  hundred  five  of  this  chapter,  (ii)  investments  made  under  item (i) of paragraph four and  paragraphs five and six of subsection (a) of  this  section,  and  (iii)  investments  of  the  types described in said item (i) of paragraph four  and such paragraphs five and six but made under paragraph seven or eight  of subsection (a) of this section, shall not exceed forty percent of the  insurer's  admitted  assets  plus,  to  the  extent  permitted  by   the  superintendent, investments (not exceeding five percent of the insurer's  admitted  assets)  of  the  types  referred to above in (I) new business  enterprises  located  in  the  state;  (II)   technologically   oriented  businesses located in the state; (III) minority-owned businesses located  in  the  state;  (IV) businesses located in areas in the state that have  experienced a high rate of chronic unemployment; and (V) development  of  housing  in the state for families and persons of low income. If, at the  time of the making of any investment of a type described  in  item  (i),  (ii)  or  (iii)  of the first sentence of this subsection, the aggregate  amount of investments of the  types  described  in  clauses  (I),  (II),(III), (IV) and (V) of such sentence made by the insurer on or after the  date  on  which  this subdivision becomes effective and then held by the  insurer is one percent or more of its admitted assets,  then  the  forty  percent  figure  in  such sentence shall be deemed to be increased by an  equal amount up to a maximum of forty-five percent, thus providing for a  maximum of investments described in items (i), (ii) and (iii) herein  of  fifty percent of total admitted assets.    (e) No domestic life insurer shall hold a direct or indirect ownership  interest  in a risk retention group, as defined in article fifty-nine of  this chapter, other than in a risk retention group all of whose  members  are insurance companies.