Category: Regulation

OSFI has released a Draft Advisory titled Non-Viability Contingent Capital (NVCC):

OSFI has determined that, effective January 1, 2013 (the Cut-off Date), all non-common Tier 1 and Tier 2 capital instruments issued by DTIs must comply with the following principles to satisfy the NVCC requirement:

Principle # 1: Non-common Tier 1 and Tier 2 capital instruments must have, in their contractual terms and conditions, a clause requiring a full and permanent conversion [Footnote 4] into common shares of the DTI upon a trigger event.[Footnote 5] As such, original capital providers must not have any residual claims that are senior to common equity following a trigger event.

Footnote 4: The BCBS rules permit national discretion in respect of requiring contingent capital instruments to be written off or 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 of all stakeholders.

Footnote 5 The non-common capital of a DTI that does not meet the NVCC requirement but otherwise satisfies the Basel III requirements may be, as permitted by applicable law, amended to meet the NVCC requirement.

Some extant contingent capital has a “write-up” clause, whereby amounts written down can be recovered if the company squeaks through its troubles.

The minimum condition reveals that OSFI is more interested in political posturing than averting a crisis. If they wanted to avert a crisis, they would insist that conversion took place long before the point of non-viability, when the common still had value.

Principle # 3: All capital instruments must, at a minimum, include the following trigger events:

• a. the Superintendent of Financial Institutions (the “Superintendent”) advises the DTI, in writing, that she is of the opinion that the DTI has ceased, or is about to cease, to be viable and that, after the conversion of all contingent capital instruments and taking into account any other factors or circumstances that she considers relevant or appropriate, it is reasonably likely that the viability of the DTI will be restored or maintained; or
• b. a federal or provincial government in Canada publicly announces that the DTI has accepted or agreed to accept a capital injection, or equivalent support [Footnote 6], from the federal government or any provincial government or political subdivision or agent or agency thereof without which the DTI would have been determined by the Superintendent to be non-viable [Footnote 7]

  Footnote 6: OSFI, after consulting with its FISC partner agencies, will provide guidance to DTIs upon request whether a particular form of government support being offered to such DTI is considered equivalent to a capital injection. For example, the Bank of Canada’s Emergency Liquidity Assistance (ELA) does not constitute equivalent support as it is targeted at solvent institutions experiencing temporary liquidity problems.

  Footnote 7: Any capital injection or equivalent support from the federal government or any provincial government or political subdivision or agent or agency thereof would need to comply with applicable legislation, including any prohibitions related to the issue of shares to governments.

So the Superintendent, an employee of the federal Ministry of Finance, has absolute power – there is no appeal. There is nothing to prevent the Superintendent from saying tomorrow that the Royal Bank is non-viable, the Government is buying a hundred-billion shares for a dollar, fuck you suckers, goodbye. Five hundred years of bankruptcy law out the window.

Principle # 8: The issuing DTI must provide a trust arrangement or other mechanism to hold shares issued upon the conversion for non-common capital providers that are not permitted to own common shares of the DTI due to legal prohibitions. Such mechanisms should allow such capital providers to comply with such legal prohibition while continuing to receive the economic results of common share ownership and should allow such persons to transfer their entitlements to a person that is permitted to own shares in the DTI and allow such transferee to thereafter receive direct share ownership.

Since we’re ignoring bankruptcy law, why not ignore every other law and contract while we’re at it?

Section 3: Issuance of Capital Instruments prior to the Cut-off Date
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3. DTIs are encouraged to consider amending the terms of existing non-common instruments that do not comply with the NVCC requirement to thereby achieve compliance, or to otherwise take actions, including exchange offers, which would mitigate the effects of such non-compliance.

It’s possible that some issuers might try this, but it’s awfully hard to imagine the kind of coercion that would be required to get something like this to pass for a PerpetualDiscount, given the reasonable expectation of redemption at par within ten-odd years.

Section 4: Criteria to be considered in Triggering Conversion of NVCC

In triggering the conversion of NVCC, the Superintendent will exercise his or her discretion to maintain a financial institution as a going-concern where it would otherwise become non-viable. In doing so, the Superintendent will consider the below list of criteria and any other relevant OSFI guidance [Footnote 16]. These criteria may be mutually exclusive and should not be viewed as an exhaustive list.[Footnote 17]

The exercise of discretion by the Superintendent will be informed by OSFI’s interaction with the Financial Institutions Supervisory Committee (FISC)[Footnote 18] (and any other relevant agencies the Superintendent determines should be consulted in the circumstances). In particular, the Superintendent will consult with the FISC member agencies and the Minister of Finance prior to making a non-viability determination.

Footnote 16: See, in particular, OSFI’s Guide to Intervention for Federally-Regulated Deposit-Taking Institutions.

Footnote 17: The Superintendent retains the flexibility and discretion to deal with unforeseen events or circumstances on a case-by-case basis.

Footnote 18: 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 Superintendent of Financial Institutions, these federal agencies meet regularly to exchange information relevant to the supervision of regulated financial institutions. This forum also provides for the coordination of strategies when dealing with troubled institutions.

Full discretion, no judiciary, no appeal. Goodbye Canada, hello Soviet Union.

Update, 2011-2-7: DBRS says:

OSFI has also issued a draft advisory on non-viable contingent capital. Again, the draft advisory was consistent with the BCBS’s release on minimum requirements to ensure loss absorbency at the point of non-viability (January 13, 2011). The NVCC Draft Advisory sets out the governing principles, information requirements and criteria to be considered in triggering a conversion of non-viable contingent capital. DBRS will state its views on non-viable contingent capital when OSFI publishes a final release of the advisory, expected in 2011.

Notwithstanding the NVCC Draft Advisory, DBRS’s global bank rating methodology continues to deem the five largest Canadian banks (Bank of Montreal, Bank of Nova Scotia, Canadian Imperial Bank of Commerce, Royal Bank of Canada, and The Toronto-Dominion Bank) systemically important in Canada, which positively impacts DBRS’s senior and subordinated debt ratings of these banks.

OSFI has announced:

Media are invited to participate in a briefing via teleconference with the Office of the Superintendent of Financial Institutions (OSFI) on two Advisories relating to BASEL III: Treatment of non-qualifying capital instruments under Basel III and Non-Viability Contingent Capital.

Mark White, Assistant Superintendent, Regulation Sector, will provide a brief overview and will be available to answer questions.

Media who wish to participate must confirm their attendance with Léonie Roux, Communications and Consultations.

Please note that all details are subject to change. All times are local.

DATE: Friday February 4, 2011
TIME: 4:00 PM
PLACE: 613-960-7518 (Ottawa)
1-888-265-0903
Participant pass code: 725300

Update, 4:21pm: Good old OSFI, hopelessly incompetent and secretive as always!

I notified Ms. Roux of my intent to participate and was answered with:

Good afternoon,
Please note that today’s conference call is for media only.

A separate conference call is being set up for analyts and investors that may wish to participate.

The conference call will take place on Monday morning at 11:30AM, an advisory will be issued shortly.

I responded:

I represent media via my blog at http://www.prefblog.com

No response. So I called in at about 4:01pm and got some fragments of seemingly random open-mike buzz.

OSFI has deleted the original advisory and replaced it with one that does not include a telephone number or pass code.

OSFI: The dumbest shits on the planet.

Barry Critchley of the Financial Post has written a piece titled Banks prepare for CoCos that contains the interesting assertion:

“We would expect that the banks would make use of the contingent market for the incremental 3.5% of their capital because holding the balance in common equity could potentially adversely affect profitability,” said Altaf Nanji, an analyst with RBC Capital Markets.

But lots of things have to be clarified before that issuance starts.
…
– The securities have to be rated. And that’s not a slam dunk given that the securities are convertible if certain trigger points are reached. So far, Fitch is the only ratings agency that has rated any of the securities, though Standard & Poor’s has issued a request for comment on them.

– The determination has to be made whether the securities should be in a bond index. Certainly OSFI wants them in the index and has make its plan very clear.

Shades of Hades, or at least the UK! Assiduous Readers will remember the tergiversations that were the topic of the post Merrill Keeps Lloyds ECNs out of UK Bond Indices that started when UK authorities made a similar attempt to debase the bond indices.

There’s only one teensy little problem with putting CoCos into bond indices: they’re not freaking bonds! If you don’t have the ability to bankrupt your debtor for being a day late or a dollar short, you’re not a bond-holder.

Canadian retail investors should be concerned, since bond ETFs are the most reasonable way for a bond investor to get exposure to bonds and there is already a high degree of aldulteration in bond ETFs, as I pointed out in my article Bond ETFs. On the positive side, there is the chance that a sharp divergence of opinion on the matter may lead to a wider variety of bond indices being marketted. REAL bond indices, I mean, not garbage like the DEX HYBrid index, discussed on September 30, 2010.

Update, 2011-2-7: A Reader has advised me (in rather polemical language!) that he considers my views on the DEX HYBrid Index to be significantly influenced by a conflict of interest, to wit: in late 2006, following the purchase by the TSX of the bond indices from Scotia Capital, it occurred to me that there was the potential for doing some kind of business with the Exchange based on my HIMIPref™ software, analytics, and indices (at that time, TXPR did not exist). I contacted them, they expressed curiosity and I made a presentation to them.

Sadly, nothing came of this attempt and my correspondent alleges that I have been left with a conflict of interest that renders it impossible for me to present my views on the DEX HYBrid Index as being independent.

I don’t see it. If I harboured such a violent grudge over every unsuccessful sales pitch I’ve made over the years, I wouldn’t have time for much else! However, given the nature of the allegations and the language used, I deem it proper to err on the side of disclosure. So make your own minds up regarding my motivation for disrespecting the DEX HYBrid Bond Index!

My correspondent has been invited to post a comment on the blog stating his views, or to provide me with a rebuttal that will be given equal time; to date, this invitation has been declined.

The Bank for International Settlements has announced:

minimum requirements to ensure that all classes of capital instruments fully absorb losses at the point of non-viability before taxpayers are exposed to loss.

This is yet another example of bureaucrats ursurping the role of the courts:

The terms and conditions of all non-common Tier 1 and Tier 2 instruments issued by an internationally active bank must have a provision that requires such instruments, at the option of the relevant authority, to either be written off or converted into common equity upon the occurrence of the trigger event … Any compensation paid to the instrument holders as a result of the write-off must be paid immediately in the form of common stock (or its equivalent in the case of non-joint stock companies).
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4. The trigger event is the earlier of: (1) a decision that a write-off, without which the firm would become non-viable, is necessary, as determined by the relevant authority; and (2) the decision to make a public sector injection of capital, or equivalent support, without which the firm would have become non-viable, as determined by the relevant authority.

5. The issuance of any new shares as a result of the trigger event must occur prior to any public sector injection of capital so that the capital provided by the public sector is not diluted.

In a rational world, the issuing banks will include another trigger for conversion that occurs well before the point of non-viability can credibly be discussed by regulators, as I have urged in the past.

A trigger based on the price of the common stock would greatly reduce uncertainty in evaluating these instruments; allow hedging in the options market; provide a smoother transition of Tier 1 Capital to common equity; and, most importantly, provide far better protection of overall financial stability. It will be interesting to see if that happens – but frankly, I’m betting against it.

Update, 2011-1-14: There has been some speculation that the phase-out of the existing Tier 1 Capital rules will mean that extant PerpetualDiscounts will be redeemed (at par!). This is based on the section of the release titled “Transitional Arrangements”:

Instruments issued on or after 1 January 2013 must meet the criteria set out above to be included in regulatory capital. Instruments issued prior to 1 January 2013 that do not meet the criteria set out above, but that meet all of the entry criteria for Additional Tier 1 or Tier 2 capital set out in Basel III: A global regulatory framework for more resilient banks and banking systems, will be considered as an “instrument that no longer qualifies as Additional Tier 1 or Tier 2” and will be phased out from 1 January 2013 according to paragraph 94(g).

The linked document was discussed in the PrefBlog post Basel III. The relevant paragraph, 94(g), states in part:

Capital instruments that no longer qualify as non-common equity Tier 1 capital or Tier 2 capital will be phased out beginning 1 January 2013. Fixing the base at the nominal amount of such instruments outstanding on 1 January 2013, their recognition will be capped at 90% from 1 January 2013, with the cap reducing by 10 percentage points in each subsequent year. This cap will be applied to Additional Tier 1 and Tier 2 separately and refers to the total amount of instruments outstanding that no longer meet the relevant entry criteria. To the extent an instrument is redeemed, or its recognition in capital is amortised, after 1 January 2013, the nominal amount serving as the base is not reduced.

So the thinking is that extant PerpetualDiscounts will no longer qualify as Tier 1 capital and be considered by the banks to be too expensive to keep on the books.

The most recent OSFI speech was by Mark White and, as noted on January 12, didin’t really have much to say. With respect to new Tier 1 rules, he stated:

Existing non-common tier 1 and tier 2 instruments which do not meet the new requirements will, on an aggregate basis, be subject to an annual, steadily increasing phase-out from 2013 to 2023. To avoid the bail-out by taxpayers of capital in a failed bank, it is also expected that all non-common capital will ultimately be required to be written-off, or to convert to common shares, if a non-viable bank will receive an infusion of government capital.
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On December 16, 2010 OSFI responded to the release of the Basel III text to signal that work is continuing on the transition for non-qualifying capital instruments – and that further guidance will be issued as implementation progresses. We realize that many are anxiously awaiting guidance on how non-qualifying capital will be phased out in Canada. However, it could do a disservice if OSFI provides premature guidance before the minimum international requirements are set. Suffice it to say that OSFI currently expects, at a minimum, to follow the minimum transition requirements with respect to phasing-out disqualified capital. Our goals will be to maximize the regulatory capital in the system and, where practicable, to give effect to the legitimate expectations of the issuers and investors.

OSFI’s December 16 release was discussed briefly on the market update of that day.

Once the Basel III rules text governing NVCC requirements has been finalized by the BCBS, OSFI intends to issue guidance clarifying the phase-out of all non-qualifying instruments by DTIs, including OSFI’s expectations with respect to rights of redemption under regulatory event [footnote] clauses.

Footnote: In general, a regulatory event may be defined as receipt by the bank of a notice or advice by the Superintendent, or the determination by the bank, after consultation with the Superintendent, that an instrument no longer qualifies as eligible regulatory capital under the capital guidelines issued by OSFI. The definition of regulatory event is governed by the terms of the capital instrument and interested persons should refer to the relevant issuance documents.

So what do I think? Mainly I think it’s too early to tell.

First off, the preferred shares may be grandfathered, as previously speculated. OSFI has shown no hesitation in grandfathering instruments in the past – they did this with Operating Retractible issues. One argument in favour of this idea is that it’s relatively easy to come up with a coercive exchange offer: CIT did this, as discussed on October 2, 2009, as did Citigroup (see also the specific terms).

Another reason not to get too excited is the length of time involved. If the banks (and insurers) are forced to redeem their prefs over a ten year period, they’re not going to redeem the lowest coupon ones first! If you look at something priced at, say, $22, and consider you might have to wait until 2023 to get your money … that’s thirteen years, an increment of $0.23 p.a. Call it a 1% yield increment. Very nice – but you’re locked in for all that time and there’s a fair amount of uncertainty.