Related-party asset transactions as part of a restructuring

Information Requirements

The applicant is generally expected to provide:

1. the name of the counterparty with which the applicant proposes to enter into a transaction or series of transactions (“transaction”) as well as:
   1. an analysis in support of the applicant’s conclusion that the counterparty is a related party^{Footnote 1} of the applicant, accompanied by a current organization chart indicating the relevant parts of the applicant’s corporate group (with percentages owned), and
   2. the most recent financial statements (balance sheet, income statement and statement of changes in shareholders’ equity) of the related party;
2. a description of the proposed transaction, including:
   1. the rationale for the transaction, including an analysis in support of the applicant’s conclusion that the transaction would be as part of, or in the course of, a restructuring^{Footnote 2},
   2. the type of asset or assets (“asset”) involved,
   3. whether the applicant will enter into the transaction directly or through a subsidiary^{Footnote 3},
   4. in the case of an acquisition of an asset, a description of the consideration to be paid by the applicant or its subsidiary, including the terms of payment, and
   5. in the case of a disposition of an asset, a description of the consideration to be received by the applicant or its subsidiary, including the terms of payment, and the use or the proposed use of the proceeds;
3. a confirmation from a senior officer^{Footnote 4} that the transaction:
   1. will be on terms and conditions that are at least as favourable to the applicant as market terms and conditions^{Footnote 5} (such a confirmation is not necessary where the independent third party opinion referred to in item 6 is provided),
   2. will not result in the applicant having material ongoing financial exposure to a related party^{Footnote 6} (or alternatively, provide a description of the exposure and of the measures or other safeguards that will be put in place to mitigate the exposure), and
   3. will not have a detrimental effect on the financial position or risk profile of the applicant^{Footnote 7};
4. a description of the basis on which the assessment of each of the elements referred to in item 3 was made;
5. details regarding the level of internal approval required in respect of the transaction (e.g., board of directors, board committee or senior management), based on the applicant’s policies, as well as evidence that the transaction was approved at the appropriate level (e.g., relevant excerpts from the minutes of the meeting during which the proposed transaction was approved);
6. where the asset is not a security that trades on a recognized stock exchange or over-the-counter market, an opinion from an independent third party or, where appropriate, other reliable evidence to demonstrate that the transaction will be carried out on terms and conditions that are at least as favourable to the applicant as market terms and conditions; and
7. an analysis of the effect the transaction will have on the financial position and risk profile of the applicant, including:
   1. a comparative pro forma balance sheet (pre- and post-transaction) including relevant assumptions,
   2. a comparative pro forma capital position (pre- and post-transaction) that confirms compliance with the applicant’s internal capital target and with OSFI’s requirements applicable to the applicant, together with relevant assumptions and, if the transaction is material to the applicant, a breakdown of:
      1. in the case of a deposit-taking institution, all elements used to calculate:
         1. the capital ratios, in accordance with the Capital Adequacy Requirements Guideline,
         2. the leverage ratio, in accordance with the Leverage Requirements Guideline, and
         3. the liquidity coverage ratio, in accordance with the Liquidity Adequacy Requirements Guideline,
      2. in the case of a life insurance company, all elements used to calculate the Minimum Continuing Capital and Surplus Requirements, or
      3. in the case of a property and casualty insurance company, all elements of the Minimum Capital Test or the Mortgage Insurer Capital Adequacy Test, as applicable,
   3. if the transaction is material to the applicant:
      1. in the case of a deposit-taking institution, a revised internal solvency assessment process document (e.g., Internal Capital Adequacy Assessment Process (ICAAP)), or
      2. in the case of an insurance company, a revised scenario stress testing report (e.g., Financial Condition Testing (FCT),
   4. if the transaction will result in a material change in the applicant’s business strategy, a revised business plan and:
      1. in the case of a deposit-taking institution, a revised internal solvency assessment process document (e.g., ICAAP), or
      2. in the case of an insurance company, a revised scenario stress testing report (e.g., FCT), and
   5. a confirmation that, following the transaction, the applicant will be in compliance with its relevant policies including those related to liquidity, capital management, risk management and investments.

Administrative Guidance

1. OSFI generally considers applications pursuant to the Legislative Authorities to be as part of, or in the course of, a restructuring where the transaction results in or involves:
   1. the creation, acquisition or sale of entities within the applicant’s group; or
   2. the applicant or any member of its group entering or exiting a line of business^{Footnote 8}.
2. OSFI generally considers the following elements when assessing applications for related-party asset transactions as part of, or in the course of, a restructuring:
   1. No ongoing financial exposure: The transaction should generally not result in the applicant having material ongoing financial exposure to a related party, unless adequate mitigation measures or other safeguards have been put in place. Where there will be material ongoing financial exposure, it should generally only continue for a short period of time. OSFI generally considers an applicant to have ongoing financial exposure to a related party where it has a receivable from the related party, holds securities of the related party, has provided a guarantee for the benefit of the related party or holds a guarantee from the related party; and
   2. No detrimental effect: The transaction should not have a detrimental effect on the financial position or risk profile of the applicant. In this regard, OSFI will generally assess the impact of the transaction on the applicant’s business, asset mix, capital, income and liquidity position.
3. Asset transactions contemplated in this Transaction Instruction must be carried out on terms and conditions at least as favourable to the applicant as market terms and conditions. OSFI may, where appropriate, commission an independent evaluation, at the applicant’s expense.
4. Where the asset transaction is permitted without approval under another related party provision^{Footnote 9} (e.g., nominal value transaction), the federally regulated financial institution (FRFI) may proceed with the transaction under that other provision.
5. Paragraph 6(1)(c) of the National Housing Act generally provides that a FRFI that is designated as an approved lender by the Canada Mortgage and Housing Corporation (CMHC) may, notwithstanding any restrictions on the power of the FRFI contained in any other statute, dispose of or acquire loans insured by CMHC together with the security taken in respect of those loans. The effect of this provision is that the FRFI may proceed with such a transaction without approval under the provisions set out in the Legislative Authorities.
6. Assets acquired or disposed of as part of transactions that are approved under the provisions set out in the Legislative Authorities are exempted from the calculation and application of the 10% threshold for purposes of asset transactions addressed in Transaction Instruction DA No. 18. – Asset Transaction Greater than 10% of Assets.^{Footnote 10}
7. The Superintendent may consider whether the proposed transaction would hinder the effective implementation of corrective measures in the future, and may request information to that effect.
8. Requests for approval(s) that are addressed in this document are not subject to a service charge.^{Footnote 11}