Chapter 2 - Definition of Capital.pdf

7/27/2019 Chapter 2 - Definition of Capital.pdf

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Banks/BHC/T&L Definition of Capital

January 2013 Chapter 2 - Page 1

GuidelineSubject: Capital Adequacy Requirements (CAR)

Chapter 2Definition of Capital Effective Date: January 2013

The Capital Adequacy Requirements (CAR) for banks and trust and loan companies are set outin nine chapters, each of which has been issued as a separate document. This document, Chapter2Definition of Capital, should be read in conjunction with the other CAR chapters whichinclude:

Chapter 1 Overview

Chapter 2 Definition of Capital

Chapter 3 Credit RiskStandardized Approach

Chapter 4 Settlement and Counterparty Risk

Chapter 5 Credit Risk Mitigation

Chapter 6 Credit Risk- Internal Ratings Based Approach

Chapter 7 Structured Credit Products

Chapter 8 Operational Risk

Chapter 9 Market Risk


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Chapter 2Definition of Capital

Table of Contents

2.1Requirements for Inclusion in Regulatory Capital.................................................... 42.1.1 Common Equity Tier 1 Capital ............................................................................. 4

2.1.1.1 Common shares issued by the institution directly................................... 52.1.1.2 Common shares issued by a consolidated subsidiary to third parties .... 62.1.1.3 Common shares issued to third-parties out of special purpose

vehicles (SPVs)........................................................................................ 72.1.2 Additional Tier 1 Capital ....................................................................................... 8

2.1.2.1 Additional Tier 1 instruments issued by the institution directly ................ 82.1.2.2 Tier 1 qualifying capital instruments issued by a consolidated

subsidiary to third parties .................................................................... 112.1.2.3 Additional Tier 1 instruments issued to third-parties out of SPVs ....... 122.1.2.4 Additional Tier 1 instruments issued to a parent .................................. 132.1.2.5 Capital instruments issued out of branches and subsidiaries

outside Canada ..................................................................................... 132.1.3 Tier 2 Capital ....................................................................................................... 14

2.1.3.1 Tier 2 instruments issued by the institution directly ............................. 142.1.3.2 Tier 2 capital qualifying instruments issued by a consolidated

subsidiary to third parties ..................................................................... 162.1.3.3 Tier 2 instruments issued to third-parties out of SPVs ......................... 172.1.3.4 Tier 2 instruments issued to a parent .................................................... 182.1.3.5 Capital instruments issued out of branches and subsidiaries

outside Canada ..................................................................................... 182.1.3.6 Amortization .......................................................................................... 192.1.3.7 Collective allowances ............................................................................ 19

2.2 Non-Viability Contingent Capital Requirements (NVCC) .................................... 202.2.1 Principles Governing NVCC ............................................................................... 20


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2.2.2 Criteria to be considered in triggering conversion of NVCC .............................. 232.3Required Regulatory Adjustments to Capital .......................................................... 25

2.3.1 Regulatory Adjustment to Common Equity Tier 1 Capital ................................. 252.3.2 Regulatory Adjustments to Additional Tier 1 capital .......................................... 342.3.3 Regulatory Adjustments to Tier 2 capital ............................................................ 352.3.4 Items subject to 1250% risk weight ..................................................................... 36

2.4 Transitional Arrangements ....................................................................................... 372.4.1 Treatment for Required Regulatory Adjustments to Capital ............................... 372.4.2 Treatment for Non-qualifying capital instruments .............................................. 412.4.3 Phase-Out of Non-Qualifying Capital ................................................................. 42

Appendix 2-1Illustrative example of the inclusion of capital issued out of a

subsidiary to third parties in consolidated capital of the parent ....... 46Appendix 2-2 -Information Requirements to Confirm Quality of NVCC

Instruments ............................................................................................. 49Appendix 2-3 - Example of the 15% of common equity limit on specified items

(threshold deductions) ........................................................................... 51Appendix 2-4 - List of Advisories .................................................................................... 52Appendix 2-5 -

Flowchart to illustrate the application of transitional arrangementsfor non-qualifying instruments ............................................................. 53


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Dividends which are removed from Common Equity Tier 1 in accordance withapplicable accounting standards.

[BCBS June 2011 par 52]

2.1.1.1 Common shares issued by the institut ion directly

4. For an instrument to be included in Common Equity Tier 1 capital, it must meet all ofthe following criteria:

1) Represents the most subordinated claim in liquidation of the institution.

2) The investor is entitled to a claim on the residual assets that is proportional with itsshare of issued capital, after all senior claims have been paid in liquidation (i.e. has anunlimited and variable claim, not a fixed or capped claim).

3) The principal is perpetual and never repaid outside of liquidation (setting asidediscretionary repurchases or other means of effectively reducing capital in adiscretionary manner that is allowable under relevant law and subject to the priorapproval of the Superintendent).

4) The institution does not, in the sale or marketing of the instrument, create anexpectation at issuance that the instrument will be bought back, redeemed orcancelled, nor do the statutory or contractual terms provide any feature which mightgive rise to such expectation.

5) Distributions are paid out of distributable items, including retained earnings. The levelof distributions is not in any way tied or linked to the amount paid in at issuance and isnot subject to a contractual cap (except to the extent that an institution is unable to paydistributions that exceed the level of distributable items or to the extent thatdistributions on senior ranking capital must be paid first).

6) There are no circumstances under which the distributions are obligatory. Non-paymentis, therefore, not an event of default.

7) Distributions are paid only after all legal and contractual obligations have been metand payments on more senior capital instruments have been made. This means thatthere are no preferential distributions, including in respect of other elements classifiedas the highest quality issued capital.

8) It is in the form of issued capital that takes the first and proportionately greatest shareof any losses as they occur. Within the highest quality of capital, each instrumentabsorbs losses on a going concern basis proportionately andpari passu with all theothers.

9) The paid-in amount is recognized as equity capital (i.e. not recognized as a liability)for determining balance sheet solvency.


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10) It is directly issued and paid-in5 and the institution cannot directly or indirectly fundthe purchase of the instrument. Where the consideration for the shares is other thancash, the issuance of the common shares is subject to the prior approval of theSuperintendent.

11) The paid-in amount is neither secured nor covered by a guarantee of the issuer or

related entity6 or subject to any other arrangement that legally or economicallyenhances the seniority of the claim.

12) It is only issued with the approval of the owners of the issuing institution, either givendirectly by the owners or, if permitted by applicable law, given by the Board ofDirectors or by other persons duly authorized by the owners.

13) It is clearly and separately disclosed as equity on the institutions balance sheet,prepared in accordance with the relevant accounting standards.


2.1.1.2 Common shares issued by a consolidated subsidiary to thi rd parties

5. Common shares issued by a fully consolidated subsidiary of the institution to a thirdparty may receive limited recognition in the consolidated Common Equity Tier 1 of the parentinstitution only if:

the instrument, if issued by the institution, would meet all of the criteria described insection 2.1.1.1 for classification as common shares for regulatory capital purposes;and

the subsidiary that issued the instrument is itself a bank7,8

6. The amount of capital meeting the above criteria that will be recognized in consolidatedCommon Equity Tier 1 is calculated as follows (refer to Appendix 2-1 for an illustrativeexample):

a. Paid-in capital plus retained earnings that are attributable to third-party investors,gross of deductions, less the amount of surplus Common Equity Tier 1 capital of thesubsidiary that is attributable to the third-party investors.

b. The surplus Common Equity Tier 1 capital of the subsidiary is calculated as theCommon Equity Tier 1 capital of the subsidiary, net of deductions, minus the lower

5 Paid-in capital generally refers to capital that has been received with finality by the institution, is reliably valued,fully under the institutions control and does not directly or indirectly expose the institution to the credit risk of

the investor. [BCBS FAQs # 5 p. 2]6 A related entity can include a parent company, a sister company, a subsidiary or any other affiliate. A holdingcompany is a related entity.

7 Any institution that is subject to the same minimum prudential standards and level of supervision as a bank maybe considered to be a bank.

8 Minority interest in a subsidiary that is a bank is strictly excluded from the parent banks common equity if theparent bank or affiliate has entered into any arrangements to fund directly or indirectly minority investment inthe subsidiary whether through an SPV or through another vehicle or arrangement. The treatment outlined above,thus, is strictly available where all minority interests in the bank subsidiary solely represent genuine third partycommon equity contributions to the subsidiary.


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of: (1) the minimum Common Equity Tier 1 capital requirement of the subsidiaryplus the capital conservation buffer to which conservation standards would apply9;and (2) the portion of theparents consolidated minimum Common Equity Tier 1capital requirements10 plus the capital conservation buffer11 that relates to thesubsidiary.

c. The amount of surplus Common Equity Tier 1 capital that is attributable to the third-party investors is calculated by multiplying the surplus Common Equity Tier 1 capitalof the subsidiary (calculated in b. above) by the percentage of Common Equity Tier 1that is attributable to third-party investors.

7. Common shares issued to third-party investors by a consolidated subsidiary that is not abank cannot be included in the consolidated Common Equity Tier 1 of the parent. However,these amounts may be included in the consolidated Additional Tier 1 and Tier 2 capital of theparent, subject to the conditions in sections 2.1.2.2 and 2.1.3.2. [BCBS June 2011 par 62]

2.1.1.3 Common shares issued to thir d-parties out of special purpose vehi cles (SPVs)8. Where capital has been issued to third-parties out of an SPV, none of this capital can beincluded in Common Equity Tier 1. However, such capital can be included in consolidatedAdditional Tier 1 or Tier 2 capital and treated as if the institution itself had issued the capitaldirectly to the third-parties only if:

a. it meets all the relevant entry criteria; and

b. the only asset of the SPV is its investment in the capital of the institution in a formthat meets or exceeds all the relevant entry criteria12 (as required by criterion 14 forAdditional Tier 1 and criterion 9 for Tier 2 capital).

9. In cases where the capital has been issued to third-parties through an SPV via a fullyconsolidated subsidiary of the institution, such capital may, subject to the requirements of thisparagraph, be treated as if the subsidiary itself had issued it directly to the third parties and maybe included in the institutions consolidated Additional Tier 1 or Tier 2 in accordance with thetreatment outlined in sections 2.1.2.2 and 2.1.3.2. [BCBS June 2011 par 65]

9Calculated using the local regulators RWA calculation methodology, i.e. if the local regulators requirements are

based on Basel I rules, this calculation method can be used. The calculation must still be based on the minimumplus the relevant conservation buffer.

10 This amount should exclude any intercompany exposures (e.g. loans or debentures) from the subsidiary to theparent that would boost the subsidiarys risk-weighted assets.

11 Calculated using the consolidated parent regulators RWA calculation methodology, i.e. if the parent regulatorsrequirements are based on Basel III rules (as is the case with OSFI CAR guidance), this calculation methodshould be used. If this information is unavailable, then the calculation may be done based on the RWAcalculation methodology used to satisfy the local regulators requirements (the calculation must still be based onthe minimum requirement plus the relevant conservation buffer).

12 Assets that relate to the operation of the SPV may be excluded from this assessment if they are de minimus.


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2.1.2 Additional Tier 1 Capital

10. Additional Tier 1 capital (prior to regulatory adjustments) consists of the sum of thefollowing elements:

Instruments issued by the institution that meet the criteria for inclusion in

Additional Tier 1 capital (and do not meet the criteria for inclusion in CommonEquity Tier 1);

Contributed surplus (share premium) resulting from the issue of instrumentsincluded in Additional Tier 1 capital13;

Instruments issued by consolidated subsidiaries of the institution and held by thirdparties that meet the criteria for inclusion in Additional Tier 1 capital and are notincluded in Common Equity Tier 1 (see sections 2.1.2.2 and 2.1.2.3)


2.1.2.1 Additional Ti er 1 instruments issued by the instituti on directly

11. The following is the minimum set of criteria for an instrument issued by the institutionto meet or exceed in order for it to be included in Additional Tier 1 capital:

1) Issued and paid-in in cash or, subject to the prior approval of the Superintendent, inproperty.

2) Subordinated to depositors, general creditors, and subordinated debt holders of theinstitution.

3) Is neither secured nor covered by a guarantee of the issuer or related entity or otherarrangement that legally or economically enhances the seniority of the claim vis--visthe institutions depositors and/orcreditors14.

4) Is perpetual, i.e. there is no maturity date and there are no step-ups15 or otherincentives to redeem16.

5) May be callable at the initiative of the issuer only after a minimum of five years:

a. To exercise a call option an institution must receive the prior approval ofthe Superintendent; and

13 Contributed surplus (i.e. share premium) that is not eligible for inclusion in Common Equity Tier 1 will only bepermitted to be included in Additional Tier 1 capital if the shares giving rise to the Contributed surplus are

permitted to be included in Additional Tier 1 capital. [BCBS June 2011 par 56]14 Further, where an institution uses an SPV to issue capital to investors and provides support, includingovercollateralization, to the vehicle, such support would constitute enhancement in breach of Criterion # 3 above.[BCBS FAQs # 1, p.3]

15 A step-up is defined as a call option combined with a pre-set increase in the initial credit spread of the instrumentat a future date over the initial dividend (or distribution) rate after taking into account any swap spread betweenthe original reference index and the new reference index. Conversion from a fixed rate to a floating rate (or viceversa) in combination with a call option without any increase in credit spread would not constitute a step-up.

16 Other incentives to redeem include a call option combined with a requirement or an investor option to convertthe instrument into common shares if the call is not exercised.


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b. An institution's actions and the terms of the instrument must not create anexpectation that the call will be exercised; and

c. An institution must not exercise the call unless:

It replaces the called instrument with capital of the same or better

quality, including through an increase in retained earnings, and thereplacement of this capital is done at conditions which are sustainablefor the income capacity of the institution17; or

The institution demonstrates that its capital position is well above theminimum capital requirements after the call option is exercised.

6) Any repayment of principal (e.g. through repurchase or redemption) must requireSuperintendent approval and institutions should not assume or create marketexpectations that such approval will be given.

7) Dividend/coupon discretion:

the institution must have full discretion at all times to canceldistributions/payments18

cancellation of discretionary payments must not be an event of default or creditevent

institutions must have full access to cancelled payments to meet obligations asthey fall due

cancellation of distributions/payments must not impose restrictions on theinstitution except in relation to distributions to common shareholders.

8) Dividends/coupons must be paid out of distributable items

9) The instrument cannot have a credit sensitive dividend feature, that is adividend/coupon that is reset periodically based in whole or in part on the institutionor organizations credit standing19

17 Replacement issuances can be concurrent with but not after the instrument is called.18 A consequence of full discretion at all times to cancel distributions/payments is that dividend pushers are

prohibited. An instrument with a dividend pusher obliges the issuing institution to make a dividend/couponpayment on the instrument if it has made a payment on another (typically more junior) capital instrument orshare. This obligation is inconsistent with the requirement for full discretion at all times. Furthermore, the termcancel distributions/payments means to forever extinguish these payments. It does not permit features that

require the institution to make distributions or payments in kind at any time.19 Institutions may use a broad index as a reference rate in which the issuing institution is a reference entity,

however, the reference rate should not exhibit significant correlation with the ins titutions credit standing. If aninstitution plans to issue capital instruments where the margin is linked to a broad index in which the institutionis a reference entity, the institution should ensure that the dividend/coupon is not credit-sensitive. [BCBS FAQs#12, p.5].


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10)The instrument cannot contribute to liabilities exceeding assets if such a balance sheettest forms part of national insolvency law.

11)Other than preferred shares and instruments classified, at issuance, as equity foraccounting purposes (or instruments primarily classified as equity at issuance),instruments must have principal loss absorption through a full and permanentconversion to common shares at an objective pre-specified trigger point equal to atleast 5.125% Common Equity Tier 1. The conversion will reduce the claim of theinstrument in liquidation.

12)Neither the institution nor a related party over which the institution exercises controlor significant influence can have purchased the instrument, nor can the institutiondirectly or indirectly have funded the purchase of the instrument.

13)The instruments cannot have any features that hinder recapitalization, such asprovisions that require the issuer to compensate investors if a new instrument isissued at a lower price during a specified time frame.

14)If the instrument is not issued out of an operating entity or the holding company in theconsolidated group (e.g. it is issued out of a special purpose vehicleSPV),proceeds must be immediately available without limitation to an operating entity20 orthe holding company in the consolidated group in a form which meets or exceeds allof the other criteria for inclusion in Additional Tier 1 capital. For greater certainty,the only assets the SPV may hold are intercompany instruments issued by theinstitution or a related entity with terms and conditions that meet or exceed theAdditional Tier 1 criteria. Put differently, instruments issued to the SPV have to fullymeet or exceed all of the eligibility criteria for Additional Tier 1 capital as if the SPVitself was an end investori.e. the institution cannot issue a lower quality capital orsenior debt instrument to an SPV and have the SPV issue higher quality capitalinstruments to third-party investors so as to receive recognition as Additional Tier 1capital.

15)The contractual terms and conditions of the instrument must include a clauserequiring the full and permanent conversion of the instrument into common shares atthe point of non-viability as described underOSFIs non-viability contingent capital(NVCC) requirements as specified under section 2.2. Where an instrument is issuedby an SPV according to criterion #14 above, the conversion of instruments issued bythe SPV to end investors should mirror the conversion of the capital issued by theinstitution to the SPV.


12. Purchase for cancellation of Additional Tier 1 capital instruments is permitted at anytime with the prior approval of the Superintendent. For further clarity, a purchase forcancellation does not constitute a call option as described in the above Additional Tier 1 criteria.

20 An operating entity is an entity set up to conduct business with clients with the intention of earning a profit in itsown right.


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13. Tax and regulatory event calls are permitted during an instruments life subject to theprior approval of the Superintendent and provided the institution was not in a position toanticipate such an event at the time of issuance. [BCBS FAQs #15, p.6]

14. Dividend stopper arrangements that stop payments on common shares or otherAdditional Tier 1 instruments are permissible provided the stopper does not impede the fulldiscretion the institution must have at all times to cancel distributions or dividends on theAdditional Tier 1 instrument, nor must it act in a way that could hinder the recapitalization of theinstitution pursuant to criterion # 13 above. For example, it would not be permitted for a stopperon an Additional Tier 1 instrument to:

attempt to stop payment on another instrument where the payments on the otherinstrument were not also fully discretionary;

prevent distributions to shareholders for a period that extends beyond the point intime that dividends or distributions on the Additional Tier 1 instrument areresumed;

impede the normal operation of the institution or any restructuring activity,including acquisitions or disposals.

[BCBS FAQs #3, p.3]

15. A dividend stopper may also act to prohibit actions that are equivalent to the payment ofa dividend, such as the institution undertaking discretionary share buybacks.

16. Where an amendment or variance of an Additional Tier 1 instruments terms andconditions affects its recognition as regulatory capital, such amendment or variance will only bepermitted with the prior approval of the Superintendent21.

17. Institutions are permitted to re-open offerings of capital instruments to increase theprincipal amount of the original issuance subject to the following: (1) institutions cannot re-openofferings where the initial issue date was on or before December 31, 2012; and 2) call optionswill only be exercised, with the prior approval of the Superintendent, on or after the fifthanniversary of the closing date of the latest re-opened tranche of securities.

2.1.2.2 Tier 1 quali fying capital instruments issued by a consolidated subsidiary to thir d

parties

18. Tier 1 capital instruments issued by a fully consolidated subsidiary of the institution tothird-party investors (including amounts under section 2.1.1.2) may receive recognition in the

consolidated Tier 1 capital of the parent institution only if the instrument, if issued by theinstitution, would meet or exceed all of the criteria for classification as Additional Tier 1 capital.

21 Any modification of, addition to, or renewal or extension of an instrument issued to a related party is subject tothe legislative requirement that transactions with a related party be at terms and conditions that are at least asfavourable to the institution as market terms and conditions.


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19. The amount of capital that will be recognized in Tier 1 is calculated as follows (Refer toAppendix 2-1 for an illustrative example):

a. Paid-in capital plus retained earnings that are attributable to third-party investors,gross of deductions, less the amount of surplus Tier 1 capital of the subsidiary thatis attributable to the third-party investors.

b. The surplus Tier 1 capital of the subsidiary is calculated as the Tier 1 capital of thesubsidiary, net of deductions, minus the lower of: (1) the minimum Tier 1 capitalrequirement of the subsidiary plus the capital conservation buffer to whichconservation standards would apply22; and (2) the portion of theparentsconsolidated minimum Tier 1 capital requirements23 plus the capital conservationbuffer24 that relates to the subsidiary.

c. The amount of surplus Tier 1 capital that is attributable to the third-party investorsis calculated by multiplying the surplus Tier 1 capital of the subsidiary (calculatedin (b) above) by the percentage of Tier 1 that is held by third party investors.

The amount of this Tier 1 capital that will be recognized in Additional Tier 1 will excludeamounts recognized in Common Equity Tier 1 under section 2.1.1.2. [BCBS June 2011 par 64]

2.1.2.3 Addit ional Tier 1 instruments issued to third-parties out of SPVs

20. As stated under paragraph 8, where capital has been issued to third-parties out of anSPV none of this capital can be included in Common Equity Tier 1. However, such capitalcan be included in consolidated Additional Tier 1 or Tier 2 and treated as if the institutionitself had issued the capital directly to the third-parties only if:

it meets all the relevant entry criteria; and

the only asset of the SPV is its investment in the capital of the institution in a formthat meets or exceeds all the relevant entry criteria25 (as required by criterion 14 forAdditional Tier 1 and criterion 9 for Tier 2).

21. In cases where the capital has been issued to third-parties through an SPV via a fullyconsolidated subsidiary of the institution, such capital may, subject to the requirements of thisparagraph, be treated as if the subsidiary itself had issued it directly to the third-parties and may

22 Calculated using the local regulators RWA calculation methodology, i.e. if the local regulators requirements

are based on Basel I rules, this calculation method can be used. The calculation must still be based on theminimum plus the relevant conservation buffer.


24 Calculated using the consolidated parent regulators RWA calculation methodology, i.e. if the parent regulatorsrequirements are based on Basel III rules (as is the case with OSFI CAR Guidance), this calculation methodshould be used. If this information is unavailable, then the calculation may be done based on the approach usedto satisfy the local regulators requirements (the calculation must still be based on the minimum plus the relevantconservation buffer.

25 Assets that relate to the operation of the SPV may be excluded from this assessment if they are de minimus.


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be included in the institutions consolidated Additional Tier 1 or Tier 2 in accordance with thetreatment outlined in sections 2.1.2.2 and 2.1.3.2. [BCBS June 2011 par 65]

2.1.2.4 Addit ional Tier 1 instruments issued to a parent

22. In addition to the qualifying criteria and minimum requirements specified in this

Guideline, Additional Tier 1 capital instruments issued by an institution to a parent, eitherdirectly or indirectly, can be included in regulatory capital subject to the institution providingnotification of the intercompany issuance to OSFIs Capital Division together with the following:

a copy of the instruments terms and conditions;

the intended classification of the instrument for regulatory capital purposes;

the rationale provided by the parent for not providing common equity in lieu of thesubject capital instrument;

confirmation that the rate and terms of the instrument are at least as favourable to theinstitution as market terms and conditions;

confirmation that the failure to make dividend or interest payments, as applicable, onthe subject instrument would not result in the parent, now or in the future, beingunable to meet its own debt servicing obligations nor would it trigger cross-defaultclauses or credit events under the terms of any agreements or contracts of either theinstitution or the parent.

2.1.2.5 Capital instruments issued out of branches and subsidiar ies outside Canada

23. In addition to any other requirements prescribed in this Guideline, where an institutionwishes to consolidate a capital instrument issued out of a branch or subsidiary outside Canada, itmust provide OSFIs Capital Division with the following documentation:

a copy of the instruments terms and conditions;

certification from a senior executive of the institution, together with the institutionssupporting analysis, that confirms that the instrument meets or exceeds the Basel IIIqualifying criteria for the tier of regulatory capital in which the institution intends toinclude the instrument on a consolidated basis; and

an undertaking whereby both the institution and the subsidiary confirm that theinstrument will not be redeemed, purchased for cancellation, or amended without theprior approval of the Superintendent. Such undertaking will not be required where the

prior approval of the Superintendent is incorporated into the terms and conditions of theinstrument.


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2.1.3 Tier 2 Capital

24. Tier 2 capital (prior to regulatory adjustments) consists of the following elements:

Instruments issued by the institution that meet the criteria for inclusion in Tier 2capital (and are not included in Tier 1 capital);

Contributed surplus (share premium) resulting from the issue of instruments includedin Tier 2 capital26;

Instruments issued by consolidated subsidiaries of the institution and held by thirdparties that meet the criteria for inclusion in Tier 2 capital and are not included in Tier1 capital (see sections 2.1.3.1 to 2.1.3.3); and

Certain loan loss allowances as specified in section 2.1.3.7.[BCBS June 2011 par 57]

2.1.3.1 Tier 2 instruments issued by the insti tuti on directly

25. The following is the minimum set of criteria for an instrument issued by the institutionto meet or exceed in order for it to be included in Tier 2 capital:

1) Issued and paid-in in cash, or with the prior approval of the Superintendent, inproperty.

2) Subordinated to depositors and general creditors of the institution.

3) Is neither secured nor covered by a guarantee of the issuer or related entity or otherarrangement that legally or economically enhances the seniority of the claim vis--visthe institutions depositors and/orgeneral creditors.

4) Maturity: Minimum original maturity of at least five years

Recognition in regulatory capital in the remaining five years before maturitywill be amortized on a straight-line basis

There are no step-ups27 or other incentives to redeem

5) May be callable at the initiative of the issuer only after a minimum of five years:

a. To exercise a call option an institution must receive the prior approval of theSuperintendent; and

26 Contributed surplus (share premium) that is not eligible for inclusion in Tier 1 will only be permitted to beincluded in Tier 2 capital if the shares giving rise to the contributed surplus are permitted to be included in Tier 2capital. [BCBS June 2011 par 59]

27 A step-up is defined as a call option combined with a pre-set increase in the initial credit spread of the instrumentat a future date over the initial dividend (or distribution) rate after taking into account any swap spread betweenthe original reference index and the new reference index. Conversion from a fixed rate to a floating rate (or viceversa) in combination with a call option without any increase in credit spread would not constitute a step-up.


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b. An institution must not do anything which creates an expectation that the call beexercised28; and

c. An institution must not exercise the call unless:

It replaces the called instrument with capital of the same or better quality,

including through an increase in retained earnings, and the replacement of thiscapital is done at conditions which are sustainable for the income capacity ofthe institution29; or

The institution demonstrates that its capital position is well above theminimum capital requirements after the call option is exercised.

6) The investor must have no rights to accelerate the repayment of future scheduledprincipal or interest payments, except in bankruptcy, insolvency, wind-up, orliquidation.

7) The instrument cannot have a credit sensitive dividend feature; that is, a dividend or

coupon that is reset periodically based in whole or in part on the institution ororganizations credit standing30.

8) Neither the institution nor a related party over which the institution exercises controlor significant influence can have purchased the instrument, nor can the institutiondirectly or indirectly have funded the purchase of the instrument.

9) If the instrument is not issued out of an operating entity31 or the holding company inthe consolidated group (e.g. it is issued out of a special purpose vehicleSPV),proceeds must be immediately available without limitation to an operating entity orthe holding company in the consolidated group in a form which meets or exceeds all

of the other criteria for inclusion in Tier 2 capital. For greater certainty, the onlyassets the SPV may hold are intercompany instruments issued by the institution or arelated entity with terms and conditions that meet or exceed the above Tier 2 criteria.Put differently, instruments issued to the SPV have to fully meet or exceed all of theeligibility criteria for Tier 2 capital as if the SPV itself was an end investori.e. theinstitution cannot issue a senior debt instrument to an SPV and have the SPV issuehigher quality capital instruments to third party investors so as to receive recognitionas Tier 2 capital.

28

An option to call the instrument after five years but prior to the start of the amortisation period will not beviewed as an incentive to redeem as long as the institution does not do anything that creates an expectation thatthe call will be exercised at this point.

29 Replacement issuances can be concurrent with but not after the instrument is called.30 Institutions may use a broad index as a reference rate in which the issuing institution is a reference entity,

however, the reference rate should not exhibit significant correlation with the institutions credit standing. If an

institution plans to issue capital instruments where the margin is linked to a broad index in which the institutionis a reference entity, the institution should ensure that the dividend/coupon is not credit-sensitive.

31 An operating entity is an entity set up to conduct business with clients with the intention of earning a profit in itsown right.


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10)The contractual terms and conditions of the instrument must include a clauserequiring the full and permanent conversion of the instrument into common shares atthe point of non-viability as described under OSFIs non-viability contingent capital(NVCC) requirements as specified under section 2.2. Where an instrument is issuedby an SPV according to criterion #9 above, the conversion of instruments issued by

the SPV to end investors should mirror the conversion of the capital issued by theinstitution to the SPV.[BCBS June 2011 par 58]

26. Tier 2 capital instruments must not contain restrictive covenants or default clauses thatwould allow the holder to trigger acceleration of repayment in circumstances other than theinsolvency, bankruptcy or winding-up of the issuer.

27. Purchase for cancellation of Tier 2 instruments is permitted at any time with the priorapproval of the Superintendent. For further clarity, a purchase for cancellation does notconstitute a call option as described in the above Tier 2 criteria.

28. Tax and regulatory event calls are permitted during an instruments life subject to theprior approval of the Superintendent and provided the institution was not in a position toanticipate such an event at the time of issuance. [BCBS FAQs #15, p.6]

29. Where an amendment or variance of a Tier 2 instruments terms and conditions affectsits recognition as regulatory capital, such amendment or variance will only be permitted with theprior approval of the Superintendent32.

30. Institutions are permitted to re-open offerings of capital instruments to increase theprincipal amount of the original issuance subject to the following: (1) institutions cannot re-openofferings where the initial issue date was on or before December 31, 2012; and 2) call optionswill only be exercised, with the prior approval of the Superintendent, on or after the fifth

anniversary of the closing date of the latest re-opened tranche of securities.

2.1.3.2 Tier 2 capital quali fying instruments issued by a consolidated subsidiary to thir d

parties

31. Total capital instruments (i.e. Tier 1 and Tier 2 capital instruments) issued by a fullyconsolidated subsidiary of the institution to third-party investors (including amounts undersections 2.1.1.2 and 2.1.2.2) may receive recognition in the consolidated Total capital of theparent institution only if the instrument would, if issued by the institution, meet all of the criteriafor classification as Tier 1 or Tier 2 capital.

32. The amount of capital that will be recognized in consolidated Total Capital is calculatedas follows (refer to Appendix 2-1 for an illustrative example):

32 Any modification of, addition to, or renewal or extension of an instrument issued to a related party is subject tothe legislative requirement that transactions with a related party be at terms and conditions that are at least asfavourable to the institution as market terms and conditions.


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a. Paid-in capital plus retained earnings that are attributable to third-party investors, grossof deductions, less the amount of surplus Total Capital of the subsidiary that isattributable to the third-party investors.

b. The surplus Total Capital of the subsidiary is calculated as the Total Capital of thesubsidiary, net of deductions, minus the lower of: (1) the minimum Total Capitalrequirement of the subsidiary plus the capital conservation buffer to whichconservation standards would apply33; and (2) the portion of the parents consolidatedminimum Total Capital requirements34 plus the capital conservation buffer35 thatrelates to the subsidiary.

c. The amount of surplus Total capital that is attributable to the third-party investors iscalculated by multiplying the surplus Total capital of the subsidiary (calculated in (b))by the percentage of Total Capital that is attributable to third-party investors.

The amount of this Total capital that will be recognized in Tier 2 will exclude amountsrecognized in Common Equity Tier 1 under section 2.1.1.2 and amounts recognized in Tier 1under section 2.1.2.2. [BCBS June 2011 par 64]

2.1.3.3 Tier 2 instruments issued to thir d-parties out of SPVs

33. As stated under paragraph 8, where capital has been issued to third-parties out of anSPV none of this capital can be included in Common Equity Tier 1. However, such capital canbe included in consolidated Additional Tier 1 or Tier 2 and treated as if the institution itself hadissued the capital directly to the third-parties only if:

i. it meets all the relevant entry criteria; and

ii. the only asset of the SPV is its investment in the capital of the institution in a form

that meets or exceeds all the relevant entry criteria

36

(as required by criterion 14 forAdditional Tier 1 and criterion 9 for Tier 2).

In cases where the capital has been issued to third-parties through an SPV via a fullyconsolidated subsidiary of the institution, such capital may, subject to the requirements ofthis paragraph, be treated as if the subsidiary itself had issued it directly to the third-partiesand may be included in the institutions consolidated Additional Tier 1 or Tier 2 inaccordance with the treatment outlined in sections 2.1.2.2 and 2.1.3.2. [BCBS June 2011 par65]

33 Calculated using the local regulators RWA calculation methodology, i.e. if the local regulators requirements

are based on Basel I rules, this calculation method can be used. The calculation must still be based on theminimum requirement plus the relevant conservation buffer.


35 Calculated using the consolidated parent regulators RWA calculation methodology, i.e. if the parent regulatorsrequirements are based on Basel III rules (as is the case with OSFI CAR Guidance), this calculation methodshould be used. If this information is unavailable, then the calculation can be done based on the approach used tosatisfy the local regulators requirements (the calculation must still be based on the minimum plus the relevant

conservation buffer.36 Assets that relate to the operation of the SPV may be excluded from this assessment if they are de minimus.


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2.1.3.4 Tier 2 instruments issued to a parent

34. In addition to the qualifying criteria and minimum requirements specified in thisGuideline, Tier 2 capital instruments issued by an institution to a parent, either directly orindirectly, can be included in regulatory capital subject to the institution providing notification ofthe intercompany issuance to OSFI's Capital Division together with the following:

a copy of the instruments term and conditions;

the intended classification of the instrument for regulatory capital purposes;

the rationale provided by the parent for not providing common equity in lieu of thesubject capital instrument;

confirmation that the rate and terms of the instrument are at least as favourable to theinstitution as market terms and conditions;

confirmation that the failure to make dividend or interest payments, as applicable, onthe subject instrument would not result in the parent, now or in the future, being

unable to meet its own debt servicing obligations nor would it trigger cross-defaultclauses or credit events under the terms of any agreements or contracts of either theinstitution or the parent.

2.1.3.5 Capital instruments issued out of branches and subsidiar ies outside Canada

35. Debt instruments issued out of branches or subsidiaries outside Canada must normallybe governed by Canadian law. The Superintendent may, however, waive this requirement wherethe institution can demonstrate that an equivalent degree of subordination can be achieved asunder Canadian law. Instruments issued prior to year-end 1994 are not subject to thisrequirement.

In addition to any other requirements prescribed in this Guideline, where an institutionwishes to consolidate a capital instrument issued by a foreign subsidiary, it must provideOSFIs Capital Division with the following documentation:

a copy of the instruments term and conditions;

certification from a senior executive of the institution, together with the institutionssupporting analysis, that confirms that the instrument meets or exceeds the Basel IIIqualifying criteria for the tier of regulatory capital in which the institution intends toinclude the instrument on a consolidated basis; and

an undertaking whereby both the institution and the subsidiary confirm that theinstrument will not be redeemed, purchased for cancellation, or amended without the

prior approval of the Superintendent. Such undertaking will not be required where theprior approval of the Superintendent is incorporated into the terms and conditions ofthe instrument.


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2.1.3.6 Amortization

36. Tier 2 capital instruments are subject to straight-line amortization in the final five yearsprior to maturity. Hence, as these instruments approach maturity, redemption or retraction, suchoutstanding balances are to be amortized based on the following criteria:

Years to Maturi ty I ncluded in Capital

5 years or more 100%

4 years and less than 5 years 80%



1 year and less than 2 years 20%

Less than 1 year 0%

37. For instruments issued prior to January 1, 2013, where the terms of the instrumentinclude a redemption option that is not subject to prior approval of the Superintendent and/orholders retraction rights, amortization should begin five years prior to the effective datesgoverning such options. For example, a 20-year debenture that can be redeemed at theinstitutions option at any time on or after the first 10 years would be subject to amortizationcommencing in year 5. Further, where a subordinated debt was redeemable at the institutionsoption at any time without the prior approval of the Superintendent, the instrument would besubject to amortization from the date of issuance. For greater certainty, this would not applywhen redemption requires the Superintendent's approval as is required for all instruments issuedafter January 1, 2013 pursuant to the above criteria in section 2.1.3.1.

38. Amortization should be computed at the end of each fiscal quarter based on the "yearsto maturity" schedule in paragraph 36 above. Thus, amortization would begin during the firstquarter that ends within five calendar years to maturity. For example, if an instrument matures onOctober 31, 2020, 20% amortization of the issue would occur November 1, 2015 and be reflectedin the January 31, 2016 capital adequacy return. An additional 20% amortization would bereflected in each subsequent January 31 return.

2.1.3.7 Coll ective all owances37

39. Institutions using the standardized approach for credit risk

Collective allowances/general loan-loss reserves eligible for inclusion in Tier 2capital will be limited to a maximum of 1.25% of credit risk-weighted assets.Inclusion of collective allowances in capital requires prior written approval fromOSFI. [BCBS June 2011 par 60]

37 Eligible allowances or reserves included in Tier 2 capital should be recorded as gross of tax effects.


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40. Institutions using an IRB approach

calculate a provisioning excess or shortfall as follows: (1) collective allowances,plus (2) all other allowances for credit loss, minus (3) the expected loss amount

deduct provisioning shortfalls from Common Equity Tier 1 capital

include provisioning excess in Tier 2 capital up to a limit of the lower of 0.6% ofIRB credit risk-weighted assets or the amount of collective allowances.


41. Institutions that have partially implemented an IRB approach

split collective allowances proportionately based on credit risk-weighted assetscalculated under the Standardized Approach and the IRB Approach

include collective allowances allocated to the Standardized Approach in Tier 2capital up to a limit of 1.25% of credit risk weighted assets calculated using theStandardized Approach

calculate a provisioning excess or shortfall on the IRB portion of the institution asset out above

deduct provisioning shortfalls on the IRB portion of the institution from CommonEquity Tier 1 capital

include excess provisions calculated for the IRB portion of the institution in Tier 2capital up to a limit of the lower of 0.6% of IRB credit risk-weighted assets or theamount of collective allowances allocated to the IRB portion of the institution


2.2 Non-Viability Contingent Capital Requirements (NVCC)42. All regulatory capital must be able to absorb losses in a failed financial institution. TheNVCC requirements aim to ensure that investors in non-common regulatory capital instrumentsbear losses before taxpayers where the government determines it is in the public interest torescue a non-viable bank38.

2.2.1 Principles Governing NVCC

43. OSFI has determined that, effective January 1, 2013, all non-common Tier 1 and Tier 2capital instruments issued by institutions must comply with the following principles to satisfy the

NVCC requirement:

38 Other resolution options, including the creation of a bridge bank, could be used to resolve a failing institution,either as an alternative to NVCC or, in a manner consistent with Principle 3(a), in conjunction with or followingan NVCC conversion, and could also subject capital providers to loss.


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Principle # 1:Non-common Tier 1 and Tier 2 capital instruments must have, in their contractualterms and conditions, a clause requiring a full and permanent conversion39 into common sharesof the institution upon a trigger event40. As such, the terms of non-common capital instrumentsmust not provide for any residual claims that are senior to common equity following a triggerevent. OSFI will consider and permit the inclusion of NVCC instruments with alternative

mechanisms, including conversions into shares of a parent firm or affiliate, on a case-by-casebasis.

Principle # 2: All NVCC instruments must also meet all other criteria for inclusion under theirrespective tiers as specified in Basel III. For certainty, the classification of an instrument aseither Additional Tier 1 capital or Tier 2 capital will depend on the terms and conditions of theNVCC instrument in the absence of a trigger event.

Principle # 3: The contractual terms of all Additional Tier 1 and Tier 2 capital instruments must,at a minimum41, include the following trigger events:

a. the Superintendent of Financial Institutions (the Superintendent) publicly announces

that the institution has been advised, in writing, that the Superintendent is of the opinionthat the institution has ceased, or is about to cease, to be viable and that, after theconversion of all contingent instruments and taking into account any other factors orcircumstances that are considered relevant or appropriate, it is reasonably likely that theviability of the institution will be restored or maintained; or

b. a federal or provincial government in Canada publicly announces that the institution hasaccepted or agreed to accept a capital injection, or equivalent support, from the federalgovernment or any provincial government or political subdivision or agent or agencythereof without which the institution would have been determined by the Superintendentto be non-viable42.

The term equivalent support in the above second trigger constitutes support for a non -viableinstitution that enhances the institutions risk-based capital ratios or is funding that is providedon terms other than normal terms and conditions. For greater certainty, and without limitation,equivalent support does not include:

(i) Emergency Liquidity Assistance provided by the Bank of Canada at or above theBank Rate;

39 The BCBS rules permit national discretion in respect of requiring contingent capital instruments to be written offor converted to common stock upon a trigger event. OSFI has determined that conversion is more consistent with

traditional insolvency consequences and reorganization norms and better respects the legitimate expectations ofall stakeholders.

40 The non-common capital of an institution that does not meet the NVCC requirement but otherwise satisfies theBasel III requirements may be, as permitted by applicable law, amended to meet the NVCC requirement.

41 Additional Tier 1 instruments classified as liabilities for accounting purposes must also include an additionalcapital trigger pursuant to criterion # 11 of the criteria for inclusion in Additional Tier 1 specified in paragraph11, section 2.1.2.1 of this Guideline.

42 Any capital injection or equivalent support from the federal government or any provincial government orpolitical subdivision or agent or agency thereof would need to comply with applicable legislation, including anyprohibitions related to the issue of shares to governments.


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(ii) open bank liquidity assistance provided by CDIC at or above its cost of funds; and

(iii) support, including conditional, limited guarantees, provided by CDIC to facilitate atransaction, including an acquisition or amalgamation.

In addition, shares of an acquiring institution paid as non-cash consideration to CDIC in

connection with a purchase of a bridge institution would not constitute equivalent supporttriggering the NVCC instruments of the acquirer as the acquirer would be a viable financialinstitution.

Principle # 4: The conversion terms of new NVCC instruments must reference the market valueof common equity on or before the date of the trigger event43. The conversion method must alsoinclude a limit or cap on the number of shares issued upon a trigger event.

Principle # 5: The conversion method should take into account the hierarchy of claims inliquidation and result in the significant dilution of pre-existing common shareholders. Morespecifically, the conversion should demonstrate that former subordinated debt holders receive

economic entitlements that are more favourable than those provided to former preferredshareholders, and that former preferred shareholders receive economic entitlements that are morefavourable than those provided to pre-existing common shareholders.

Principle # 6: The issuing institution must ensure that, to the extent that it is within theinstitutions control, there are no impediments to the conversion so that conversion will beautomatic and immediate. Without limiting the generality of the foregoing, this includes thefollowing:

a. the institutions by-laws or other relevant constating documents must permit the issuanceof common shares upon conversion without the prior approval of existing capitalproviders;

b. the institutions by-laws or other relevant constating documents must permit the requisitenumber of shares to be issued upon conversion;

c. the terms and conditions of any other agreement must not provide for the prior consent ofthe parties in respect of the conversion;

d. the terms and conditions of capital instruments must not impede conversion; and

e. if applicable, the institution has obtained all prior authorization, including regulatoryapprovals and listing requirements, to issue the common shares arising upon conversion.

Principle # 7: The terms and conditions of the non-common capital instruments must specify that

conversion does not constitute an event of default under that instrument. Further, the issuinginstitution must take all commercially reasonable efforts to ensure that conversion is not an eventof default or credit event under any other agreement entered into by the institution, directly or

43 As liquidation is the baseline resolution mechanism for a failed institution, it is expected that the market valuesfor capital instruments of a non-viable institution should, where such instruments are traded in a deep and liquidmarket, incorporate information related to the probability of insolvency and the likely recovery upon liquidation.


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indirectly, on or after the date of this Guideline, including senior debt agreements and derivativecontracts.

Principle # 8: The terms of the NVCC instrument should include provisions to address NVCCinvestors that are prohibited, pursuant to the legislation governing the institution, from acquiring

common shares in the institution upon a trigger event. Such mechanisms should allow suchcapital providers to comply with legal prohibitions while continuing to receive the economicresults of common share ownership and should allow such persons to transfer their entitlementsto a person that is permitted to own shares in the institution and allow such transferee tothereafter receive direct share ownership.

Principle # 9: For institutions, including Schedule II banks, that are subsidiaries of foreignfinancial institutions that are subject to Basel III capital adequacy requirements, any NVCCissued by the institution must be convertible into common shares of the institution or, subject tothe prior consent of OSFI, convertible into common shares of the institutions parent oraffiliate44. In addition, the trigger events in a institutions NVCC instruments must not include

triggers that are at the discretion of a foreign regulator or are based upon events applicable to anaffiliate (such as an event in the home jurisdiction of an institutions parent).

Principle # 10: For institutions that have subsidiaries in foreign jurisdictions that are subject tothe Basel III capital adequacy requirements, the institution may, to the extent permitted by theBasel III rules45, include the NVCC issued by foreign subsidiaries in the institutionsconsolidated regulatory capital provided that such foreign subsidiarys NVCC complies with theNVCC requirements according to the rules of its host jurisdiction. NVCC instruments issued byforeign subsidiaries must, in their contractual terms, include triggers that are equivalent to thetriggers specified in Principle # 3 above. OSFI will only activate such triggers in respect of aforeign subsidiary after consultation with the host authority where 1) the subsidiary is non-viableas determined by the host authority and 2) the parent institution is, or would be, non-viable, asdetermined by OSFI, as a result of providing, or committing to provide, a capital injection orsimilar support to the subsidiary. This treatment is required irrespective of whether the hostjurisdiction has implemented the NVCC requirements on a contractual basis or on a statutorybasis.

2.2.2 Criteria to be considered in triggering conversion of NVCC

44. The decision to maintain an institution as a going concern where it would otherwisebecome non-viable will be informed by OSFIs interaction with the Financial InstitutionsSupervisory Committee (FISC)46 (and any other relevant agencies the Superintendent determines

44 For greater clarity, OSFI expects that such consent would be granted primarily in respect of conversions tocommon shares of the ultimate parent. OSFI will consider conversions into shares of other affiliates underexceptional circumstances only, including where the shares of an affiliate are listed or where the institution hasno controlling parent.

45 For further reference, please refer to paragraphs 62 to 65 of Basel III .46 Under the OSFI Act, FISC comprises OSFI, the Canada Deposit Insurance Corporation, the Bank of Canada, the

Department of Finance, and the Financial Consumer Agency of Canada. Under the chairmanship of the


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should be consulted in the circumstances). In particular, the Superintendent will consult with theFISC member agencies prior to making a non-viability determination. It is important to note theconversion of NVCC alone may not be sufficient to restore an institution to viability; that is,other public sector interventions, including liquidity assistance, would likely be used in tandemwith NVCC to maintain an institution as a going concern. Consequently, while the

Superintendent would have the authority to trigger conversion, in practice, the Superintendentsdecision to activate the trigger would be conditioned by the legislative provisions and decisionframeworks associated with accompanying interventions by other FISC agencies.

45. In assessing whether an institution has ceased, or is about to cease, to be viableand that,after the conversion of all contingent capital instruments, it is reasonably likely that the viabilityof the institution will be restored or maintained, the Superintendent would consider, inconsultation with FISC, all relevant facts and circumstances, including the criteria outlined inrelevant legislation and regulatory guidance47. Without limiting the generality of the foregoing,this could include a consideration of the following criteria, which may be mutually exclusive andshould not be viewed as an exhaustive list48:

i. Whether the assets of the institution are, in the opinion of the Superintendent,sufficient to provide adequate protection to the institutions depositors and creditors.

ii. Whether the institution has lost the confidence of depositors or other creditors and thepublic. This may be characterized by ongoing increased difficulty in obtaining orrolling over short-term funding.

iii. Whether the institutions regulatory capital has, in the opinion of the Superintendent,reached a level, or is eroding in a manner, that may detrimentally affect its depositorsand creditors.

iv. Whether the institution failed to pay any liability that has become due and payable or,in the opinion of the Superintendent, the institution will not be able to pay its

liabilities as they become due and payable.

v. Whether the institution failed to comply with an order of the Superintendenttoincrease its capital.

vi. Whether, in the opinion of the Superintendent, any other state of affairs exists inrespect of the institution that may be materially prejudicial to the interests of theinstitutions depositors or creditors or the owners of any assets under the institutionsadministration, including where proceedings under a law relating to bankruptcy orinsolvency have been commenced in Canada or elsewhere in respect of the holdingbody corporate of the institution.

vii.Whether the institution is unable to recapitalize on its own through the issuance of

common shares or other forms of regulatory capital. For example, no suitable

Superintendent of Financial Institutions, these federal agencies meet regularly to exchange information relevantto the supervision of regulated financial institutions. This forum also provides for the coordination of strategieswhen dealing with troubled institutions.

47 See, in particular, OSFIs Guide to Intervention for Federally-Regulated Deposit-Taking Institutions. 48 The Superintendent retains the flexibility and discretion to deal with unforeseen events or circumstances on a

case-by-case basis.


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investor or group of investors exists that is willing or capable of investing insufficient quantity and on terms that will restore the institutions viability, nor is thereany reasonable prospect of such an investor emerging in the near-term in the absenceof conversion of NVCC instruments. Further, in the case of a privately-heldinstitution, including a Schedule II bank, the parent firm or entity is unable or

unwilling to provide further support to the subsidiary.

46. For greater certainty, Canadian authorities will retain full discretion to choose not totrigger NVCC notwithstanding a determination by the Superintendent that an institution hasceased, or is about to cease, to be viable. Under such circumstances, the institutions creditorsand shareholders could be exposed to losses through the use of other resolution tools or inliquidation.

47. For information on the capital confirmation process, with specific reference to theNVCC documentation requirements see Appendix 2-2 to this chapter.

2.3 Required Regulatory Adjustments to Capital

48. All items that are deducted from capital are excluded from total assets in calculating theassets to capital multiple and are risk-weighted at 0% in the risk-based capital adequacyframework.

49. Except in respect of own-use property and the items referred to in paragraphs 56 and 59below, institutions shall not make adjustments to remove from Common Equity Tier 1 capitalunrealised gains or losses on assets or liabilities that are measured at fair value for accountingpurposes49. [BCBS June 2011 par 52, footnote 10]

50. In respect of own-use property, accumulated net after-tax revaluation losses accounted

for using the revaluation model should be reversed from retained earnings for capital adequacypurposes. Net after-tax revaluation gains should be reversed from Accumulated OtherComprehensive Income included in Common Equity Tier 1. Similarly, for own-use property thatis accounted for using the cost model and where the deemed value of the property wasdetermined at conversion to IFRS by using fair value, after-tax fair value gains and losses shouldbe reversed from the institutions reported retained earnings for capital adequacy purposes.

2.3.1 Regulatory Adjustment to Common Equity Tier 1 Capital

Goodwill and other intangibles (except mortgage servicing rights)

51. Goodwill related to consolidated subsidiaries, subsidiaries deconsolidated for regulatorycapital purposes, and the proportional share of goodwill in joint ventures subject to proportionalconsolidation or equity method accounting should be deducted in the calculation of Common

49 The Basel Committee is continuing to review its treatment of unrealised gains or losses, taking into account theevolution of the accounting framework. In the event this review leads to changes in the treatment of fair valueadjustments, OSFI may amend this treatment.


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Equity Tier 150. The full amount is to be deducted net of any associated deferred tax liabilitywhich would be extinguished if the goodwill becomes impaired or derecognized under relevantaccounting standards. [BCBS June 2011 par 67]

52. All other intangible assets51 except mortgage servicing rights should be deducted in thecalculation of Common Equity Tier 1. This includes intangible assets related to consolidatedsubsidiaries, subsidiaries deconsolidated for regulatory capital purposes, and the proportionalshare of intangible assets in joint ventures subject to proportional consolidation or equity methodaccounting. The full amount is to be deducted net of any associated deferred tax liability whichwould be extinguished if the intangibles assets become impaired or derecognized under relevantaccounting standards. Mortgage servicing rights are deducted through the threshold deductionsset out in paragraphs 78-80. [BCBS June 2011 par 67]

Deferred tax assets

53. Deferred tax assets (DTAs), except for those referenced in paragraph 54 and DTAsassociated with the de-recognition of the cash flow hedge reserve, are to be deducted in thecalculation of Common Equity Tier 1. Deferred tax assets may be netted with associated deferredtax liabilities (DTLs) only if the DTAs and DTLs relate to taxes levied by the same taxationauthority and offsetting is permitted by the relevant taxation authority52. Where these DTAsrelate to temporary differences (e.g., allowance for credit losses) the amount to be deducted is setout in the threshold deductions (paragraphs 78-80). All other such assets, e.g., those relating tooperating losses, such as the carry forward of unused tax losses, or unused tax credits, are to bededucted in full net of deferred tax liabilities and net of valuation allowance as described above.The DTLs permitted to be netted against DTAs must exclude amounts that have been nettedagainst the deduction of goodwill, intangibles, defined benefit pension assets, and the de-recognition of the cash flow hedge reserve and must be allocated on a pro rata basis betweenDTAs subject to the threshold deduction treatment, DTAs that are to be deducted in full andDTAs that are risk-weighted at 100% as per paragraph 54. [BCBS June 2011 par 69]

54. DTAs arising from temporary differences that the institution could realize through losscarrybacks are not subject to deduction, and instead receive a 100 percent risk weight. OSFIsCapital Division requires notification of any DTAs which are assigned the applicable 100% riskweight and institutions may be subject to increased supervisory monitoring in this area.

Current tax assets

55. When an over installment of tax, or current year tax losses carried back to prior yearsresult in the recognition for accounting purposes of a claim or receivable from the government or

local tax authority, such a claim or receivable would be assigned the relevant sovereign riskweighting. Such amounts are classified as current tax assets for accounting purposes. Current tax

50 Goodwill and intangibles related to significant investments in unconsolidated entities should be deducted as partof the deduction for significant investments outlined in paragraphs 69-76.

51 This includes software intangibles.52 Does not permit offsetting of deferred tax assets across provinces.


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assets are not required to be deducted in the calculation of Common Equity Tier 1. [BCBS June2011 par 70]

Cash flow hedge reserve

56. The amount of cash flow hedge reserve that relates to the hedging of items that are not

fair valued on the balance sheet (including projected cash flows) should be derecognized in thecalculation of Common Equity Tier 1. This includes items that are not recognized on the balancesheet but excludes items that are fair valued on the balance sheet. Positive amounts should bededucted from Common Equity Tier 1 and negative amounts should be added back. Thistreatment specifically identifies the element of the cash flow hedge reserve that is to bederecognised for prudential purposes. It removes the element that gives rise to artificial volatilityin common equity, as in this case the reserve only reflects one half of the picture (the fair valueof the derivative, but not the changes in fair value of the hedged future cash flow). [BCBS June2011 par 71-72]

Shortfall in provisions to expected losses

57. Provisioning shortfalls calculated under IRB Approaches to credit risk should bededucted in the calculation of Common Equity Tier 1. The full amount is to be deducted andshould not be reduced by any tax effects that could be expected to occur if provisions were torise to the level of expected losses. [BCBS June 2011 par 73]

Gain on sale related to securitization transactions

58. Increases in equity capital resulting from securitization transactions (e.g., capitalizedfuture margin income, gains on sale) should be derecognized in the calculation of CommonEquity Tier 1. [BCBS June 2011 par 74]

Cumulative gains and losses due to changes in own credit risk on fair valued financialliabilities

59. All after-tax unrealized gains and losses that have resulted from changes in the fairvalue of liabilities that are due to changes in the institutions own credit risk should bederecognized in the calculation of Common Equity Tier 1. In addition, with regard to derivativeliabilities, all accounting valuation adjustments arising from the institution's own credit riskshould also be derecognized on an after-tax basis. The offsetting between valuation adjustmentsarising from the institution's own credit risk and those arising from its counterparties' credit riskis not allowed. [BCBS June 2011 par 75]

53

Defined benefit pension fund assets and liabilities

60. Defined benefit pension fund liabilities, as included on the balance sheet, must be fullyrecognized in the calculation of Common Equity Tier 1 (i.e. Common Equity Tier 1 cannot be

53 Refer to the BCBS July 25, 2012 press releaseRegulatory treatment of valuation adjustments to derivativeliabilities: final rule issued by the Basel Committee


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increased through derecognizing these liabilities). For each defined benefit pension fund that isan asset on the institutionsbalance sheet, the amounts reported as an asset on the balance sheet54should be deducted in the calculation of Common Equity Tier 1 net of any associated deferredtax liability that would be extinguished if the asset should become impaired or derecognizedunder the relevant accounting standards.

61. Assets in the fund to which the institution, has unrestricted and unfettered access can,with prior OSFI approval, be used to offset the deduction. In addition, where a Canadianinstitution has a foreign subsidiary which is insured by a deposit insurance corporation and theregulatory authority in that jurisdiction permits the subsidiary to offset its deduction from CET1related to defined benefit pension assets on the basis that the insurer has unrestricted andunfettered access to the excess assets of the subsidiarys pension plan in the event ofreceivership, OSFI will allow the offset to be reflected in the Canadian institutions consolidatedregulatory capital, subject to prior OSFI approval. Such offsetting assets should be given the riskweight they would receive if they were owned directly by the institution. [BCBS June 2011 par76-77]

Investments in own shares (treasury stock)55

62. All of an institutions investments in its own common shares56

, whether held directly orindirectly, will be deducted in the calculation of Common Equity Tier 1 (unless alreadyderecognized under IFRS). In addition, any own stock which the institution could becontractually obliged to purchase should be deducted in the calculation of Common Equity Tier1. The treatment described will apply irrespective of the location of the exposure in the bankingbook or the trading book. In addition:

Gross long positions may be deducted net of short positions in the same underlyingexposure only if the short positions involve no counterparty risk.

Institutions should look though holdings of index securities to deduct exposures toown shares. However, gross long positions in own shares resulting from holdings ofindex securities may be netted against short positions in own shares resulting fromshort positions in the same underlying index provided the maturity of the shortposition matches the maturity of the long position or has a residual maturity of atleast one year. In such cases, the short positions may involve counterparty creditrisk (which will be subject to the relevant counterparty credit risk charge). [BCBSJune 2011 par 78]

Reciprocal cross holdings in the common shares of banking, financial and insurance

entities

54 Generally, institutions currently report this amount in Other Assets on the balance sheet.55 Where an institution acts as a market maker in its own capital instruments, the contractual obligation requiring

deduction is deemed to commence upon the institution agreeing to purchase the security at an agreed price andeither this offer has been accepted or cannot be withdrawn. [BCBS FAQs, #12 p.11]

56 Institutions may also be subject to restrictions or prohibitions on the holdings of their own securities under theirgoverning statutes.


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63. Reciprocal cross holdings in common shares (e.g. Bank A holds shares of Bank B andBank B in return holds shares of Bank A) that are designed to artificially inflate the capitalposition of institutions will be fully deducted in the calculation of Common Equity Tier 1.


Non-significant investments in the capital of banking, financial57

and insurance entities58

64. The regulatory adjustment described in this section applies to investments in the capitalof banking, financial and insurance entities where the investment is not considered a significantinvestment59 (and subject to the treatment outlined in paragraphs 70-77). In addition:

Investments include direct, indirect60, and synthetic holdings of capital instruments61.Institutions should look through holdings of index securities to determine theirunderlying holdings in capital. If institutions find it operationally burdensome to lookthrough and monitor their exact exposures to the capital of other financial institutionsas a result of their holding index securities, OSFI will permit institutions, subject toprior supervisory approval, to use a conservative estimate.

Holdings in both the banking book and trading book are to be included. Capitalincludes common stock and all other types of cash and synthetic capital instruments(e.g. subordinated debt). The net long position is to be included (i.e. the gross longposition net of short positions in the same underlying exposure where the maturity ofthe short position either matches the maturity of the long position or has a residualmaturity of at least one year62).

Underwriting positions held for five working days or less can be excluded.Underwriting positions held for more than five working days must be included.

57 Examples of the types of activities that financial entities might be involved in include financial leasing, issuingcredit cards, portfolio management, investment advisory, custodial and safekeeping services and other similaractivities that are ancillary to the business of banking. [BCBS FAQs #7 p.10]

58 The scope of this regulatory adjustment should be considered comprehensive. Institutions are encouraged tocontact OSFI for further guidance in this area, relating to specific investments, where necessary. Institutionsshould also note that hedge funds should be considered within the scope of the required regulatory adjustment.

59 See paragraph 70 (and footnote 65) for the definition of significant investment.60 Indirect holdings are exposures or parts of exposures that, if a direct holding loses its value, will result in a loss

to the institution substantially equivalent to the loss in the value of the direct holding.61 Examples of indirect and synthetic holdings include: (i) the institution invests in the capital of a non-financial

entity and is aware that the proceeds are used to invest in the capital of a financial institution. (ii) The institutionenters into a total return swap on capital instruments of another financial institution. (iii) The institution provides

a guarantee or credit protection to a third party in respect of the third partys investments in the capital of anotherfinancial institution. (iv)The institution owns a call option or has written a put option on the shares of anotherfinancial institution. (vi)The institution has entered into a forward purchase agreement on the capital of anotherfinancial institution. [BCBS FAQs #15 p.12]

62 For purposes of determining what is a net investment in equities of other banking, financial and insuranceentities, institutions should consider long cash equity positions held against synthetic short positions as having amatched maturity provided that the long cash equity position is held for hedging purposes and sufficient liquidityexists in the relevant market (stocks included in major indices would meet this criteria). In addition, the trades(long and short positions) are managed and monitored as a distinct business line.


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If the capital instrument of the entity in which the institution has invested does notmeet the criteria for Common Equity Tier 1, Additional Tier 1 or Tier 2 capital of theinstitution, the capital is to be considered common shares for the purposes of thiscapital deduction6364.


65. Guarantees or other capital enhancements provided by an institution to such entities willbe treated as capital invested in other financial institutions based on the maximum amount thatthe institution could be required to pay out under such arrangements.[BCBS FAQs #3, p.10]

66. Exposures should be valued according to their valuation on the institutions balancesheet. Subject to prior supervisory approval, institutions may temporarily exclude certaininvestments where these have been made in the context of resolving or providing financialassistance to reorganize a distressed institution. [BCBS FAQs #9, p.11]

67. To determine the amount to be deducted from capital:

(a) Institutions should compare the total of all holdings (after applicable netting) listed

above to 10% of the institutions common equity Tier 1 after all regulatoryadjustments listed in paragraphs 51-63.

(b) The amount by which the total of all holdings exceeds the 10% threshold describedin (a) should be deducted from capital in the following manner:

(i) The amount to be deducted from Common Equity Tier 1 capital is equal to theamount in (a) multiplied by the total holdings in Common Equity Tier 1 ofother institutions divided by the total holdings in all forms of capital of otherinstitutions.

(ii) The amount to be deducted from Additional Tier 1 capital is equal to theamount in (a) multiplied by the total holdings in Additional Tier 1 capital ofother institutions divided by the total holdings in all forms of capital of otherinstitutions.

63 If the investment is issued out of a regulated financial entity and not included in regulatory capital in the relevant

sector of the financial entity, it is not required to be deducted.64 For investments in financial and insurance entities, not subject to Basel III entry criteria for capital instruments(as outlined in this Guideline), the deduction should be applied from the higher tier of capital (CET1 being thehighest) identified by the following two methods:a. The tier of capital (if any) the instrument qualifies for under the Basel III criteria.b. The tier of capital the instrument qualifies for under the most recent Minimum Continuing Capital and

Surplus requirements (MCCSR) Guideline.If the capital instrument of the entity in which the institution has invested does not meet the criteria for inclusionin regulatory capital under either the Basel III criteria, or the MCCSR Guideline, it is to be considered commonshares for the purposes of this deduction.


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(iii) The amount to be deducted from Tier 2 capital is equal to the amount in (a)multiplied by the total holdings in Tier 2 capital of other institutions dividedby the total holdings in all forms of capital of other institutions.


68. The amount of all holdings which falls below the 10% threshold described in (a) willnot be deducted from capital. Instead, these investments will be subject to the applicable riskweighting as specified in the approach to credit risk (banking book exposures) or market risk(trading book exposures) used by the institution. For the application of risk weighting, theamount of holdings must be allocated on a pro rata basis between those below and those abovethe threshold. [BCBS June 2011 par 83]

69. If an institution is required to make a deduction from a particular tier of capital and itdoe

Chapter 2 - Definition of Capital.pdf

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Transcript of Chapter 2 - Definition of Capital.pdf