Wilbur Ross Considering Ambac Investment + Sanity Check

Ooh, either Wilbur Ross, a savvy investor in distressed assets, has completely lost his judgment with his advancing years, or he has been leaned on by the powers that be to look at this deal in the hopes that it might bring others to the table.

But remember, Marty Whitman, another storied distressed investor, owns 10% of MBIA and and then doubled up on his underwater bet by buying a big chunk of its 14% notes, which immediately traded down sharply. He seems to feel there is a resturcturing play, but any restructuring is in the hands of regulators. This is not the sort of game he is used to.

Let’s consider this fact: Eric Dinallo, the New York insurance superintendent, called Warren Buffet, who is in the insurance business. He didn’t step forward to rescue anyone and he clearly has the firepower and expertise. Now Dinallo is going to interested parties to try to raise capital, financial institutions who are directly exposed and would take writedowns if the bond insurers go south. What is a purely economic investor doing looking at them when firms that have a genuine interest in their welfare (and understand the risks of the instruments involved) are having to be invited to the table?

I don’t see this going anywhere (and neither does Calculated Risk), but perhaps I am giving Ross too much credit. Even good investors can do stupid things.

This deal chatter may serve to buy some breathing space with the rating agencies, which may give New York state insurance superintendent Eric Dinallo time to at least try a Hail Mary pass. As we discussed earlier, there is no way for his low probability effort to get done in time under the current ratings review schedule with the ratings agencies.

First we have the story from the UK Evening Standard, and then, for sanity check, an excerpt from a letter that Pershing Square’s Bill Ackman, who is heavily short Ambac and MBIA (both their stocks and their debt via credit default swapw) sent to the rating agencies.

From the Standard:

Billionaire vulture fund operator Wilbur Ross is in takeover talks with Ambac, the troubled bond insurer whose recent financial crisis was a major factor in this week’s dramatic US interest rate cut…..

Insiders said the negotiations are serious and progressing well. News of the talks came after last night’s dramatic intervention by US regulators to rescue the stricken bond insurance market.

Ross declined to comment on specific potential deals but said he was keen to buy a bond insurer to take advantage of a coming wave of consolidation….

“The monoline insurance industry’s success depends on the reversal of some very unfortunate errors,” Ross said. “It took what was a very safe industry and, through quite terrible misapplication of risk management, caused the troubles we see today.”

He added that any deal would depend on whether “you really have your arms around the degree of insolvency” in the sector.

Coming wave of consolidation? Huh? We saw a similar sort of consolidation among subprime brokers. It’s called collapse, athough, in fairness, the insurers have longer tailed liabilities so this sector won’t implode as quickly.

Now from Ackman, courtesy Goode Value Investing:

Below we highlight a number of factors that you have failed to consider in your prior
assessments of the bond insurers’ capital adequacy:

1) Impact of Losses Should be Measured on a Pre-tax Basis

We believe that each of you overstates the bond insurers capital cushion due to tax benefits you include in calculating the impact of RMBS and CDO losses. For instance, in S&P’s recent press release update published yesterday, MBIA’s losses on RMBS and CDOs are expressed as “after-tax” losses. In order, therefore, to determine the actual cash losses implied by S&P’s after-tax estimate, one must gross up the reported $3.18 billion of after-tax losses. Assuming a tax rate of 38%, it appears that S&P is estimating MBIA’s actual cash losses at $5.13 billion, nearly $2 billion more than the losses adjusted for tax benefits.

Insurance claims must be paid in cash. A bond insurer is only able to obtain tax benefits if the insurer is a going concern and is able to generate sufficient taxable income in the current or future years to offset the losses from paid insurance claims. Your analysis makes the aggressive assumption that the bond insurers will remain going concerns and
will therefore be able to continue to write new premiums and generate income in the future.

Based on recent industry developments – including Berkshire Hathaway’s entrance into the business – it appears unlikely that MBIA, Ambac and many of the other bond insurers will be able to continue as going concerns. In a runoff scenario, we do not believe that the bond insurers will generate sufficient taxable income to offset the net operating losses generated by paid losses. While U.S. corporations can receive tax refunds by carrying back tax losses up to two calendar years, the amounts that could be refunded from carrying back losses are de minimis relative to claims payable. Even in the event the bond insurers generate taxable income in future years, it may be many years before these tax benefits can be realized, if ever, particularly in the event of corporate ownership changes caused by capital raising or stockholder turnover.

Net operating loss carryforwards are not cash and are not available to pay claims and should therefore not be deducted from losses in calculating bond insurer capital adequacy. By using after-tax loss estimates rather than pre-tax losses – the amount that will need to be paid in cash – you are understating the actual losses payable by more than 60%.

Your updated rating assessments should be adjusted to exclude tax benefits in your calculation of capital adequacy

2) Covenant Violations and Loss of Access to Liquidity Facilities

As a result of recent losses, both MBIA and Ambac have triggered covenant violations on their liquidity facilities. As a result, Ambac has lost access to $400 million of funding and MBIA to $500 million of capital. The impact of the loss of these facilities is material to the liquidity profile of the holding companies and their insurance subsidiaries and must be considered in your credit assessment.

3) Loss Estimates Must Incorporate Reinsured Exposures

Your ratings of the bond insurers are based on the bond insurers’ net credit exposures. That is, you reduce their credit exposure by those exposures that have been reinsured. This is best understood by example.

As of September 30, 2007, MBIA has re-insured approximately $80 billion of par value of its exposures. More than $42 billion of this reinsurance was purchased from Channel Re, a Bermuda- based reinsurer whose only customer is MBIA. The two most senior officers of Channel Re are former executives of MBIA. MBIA owns 17% of the company and has two representatives on Channel Re’s board of directors.

On recent conference calls, Moody’s and S&P have stated that they have not yet updated their ratings of the monoline reinsurers including Channel Re. Earlier this week, on January 16th, Partner Re and Renaissance Re, the majority equity owners of Channel Re, wrote off the entire value of their investments in Channel Re due to losses it has recently incurred that substantially exceed Channel Re’s capital, an impairment that Channel Re’s two majority owners have concluded is “other than temporary.”

Despite the fact that Channel Re has negative book equity and $42 billion of MBIA’s credit exposure – $21.5 billion of which is CDOs of ABS or CLO/CBOs – Moody’s and S&P continue to rate the company Triple A with a stable outlook. Fitch does not rate
Channel Re and apparently relies on S&P’s and Moody’s stale Triple A ratings in its analysis of MBIA’s capital adequacy.

Captive reinsurers whose ratings are not regularly updated offer the potential for abuse. We believe that MBIA reinsured on a quota share basis 25% of its 2007 CDO transactions with Channel Re. As a result of Moody’s and S&P not updating its ratings
of Channel Re, these exposures do not appear on MBIA’s list of exposures and have not been included in your calculation of MBIA’s capital adequacy.

MBIA’s second largest reinsurer is Ram Re which has reinsured $11 billion of par as of September 30, 2007. While the rating agencies have not updated their credit ratings of Ram Re, the market appears to have already done so. The publicly traded stock of Ram Holdings Ltd., the parent company of Ram Re, has declined 92% in the last year. The company currently trades as a penny stock with a market value of $32 million.

We believe that Ram Re is substantially undercapitalized and therefore, like Channel Re, is unlikely to be able to meet its obligations to MBIA.

We also note that MBIA reinsures Ambac, and Ambac reinsures MBIA. You must also consider the iterative impact of downgrades of one on the other with respect to both reinsurance and their respective guarantees of each other’s investment portfolio assets which we discuss further below.

In your updated assessment, it is critical that you update your ratings of the bond insurers’ reinsurers and reconsolidate and calculate the losses on these exposures that have been reinsured with reinsurers that are inadequately capitalized.

4) Investment Portfolios are Riskier Than They Appear

As you are well aware, the investment portfolios of the bond insurers include a substantial amount, often a majority, of bonds that are guaranteed by either the bond insurer itself or by other bond insurers. The bond insurers include these guarantees in
calculating the weighted average ratings of their investment portfolios. We note that a minimum average Double A rating is a key rating agency criterion for the insurers’ Triple A rating.

A guaranty to oneself is of course worthless and therefore you should exclude the bond insurers’ guaranty of its own investment obligations and use the underlying ratings of these instruments in determining the portfolios’ credit quality.

You should also carefully calculate the impact of a downgrade of the bonds held by one bond insurer that are guaranteed by other insurers in your calculation of capital adequacy. In light of the general distress in the industry, we believe that the rating agencies should evaluate the bond insurers’ investment portfolios as considered on an underlying rating basis.

5) Commercial Mortgage Backed Securities (CMBS)

To date, you have limited your analysis to RMBS securities and other structured finance securities with exposure to RMBS (CDOs). This limited review of exposures ignores the fact that the same lending practices and flawed incentive schemes that fueled the subprime lending bubble have been very much at work in CMBS and corporate finance.

On January 17, 2008, Fitch commented that it believed that CMBS delinquencies are “likely to double, and perhaps even triple, by the end of 2008.” As of September 30, 2007, MBIA had insured $43 billion net par of CMBS securities, the vast majority of
which was underwritten in the past two years. Failing to consider the potential for losses in this portfolio in your calculation of capital adequacy is simply negligent.

6) Claims-Paying Resources Definition Overstates Capital Available to Pay Claims

The rating agencies have adopted the bond insurance industry’s definition of capital in the form of “Claims Paying Resources” or “CPR.” We believe there are significant flaws with the calculation of CPR used by the industry and the rating agencies.

First, bond insurers include the present value of future premiums discounted at extremely low discount rates ~5% in their calculation of claims paying resources. Substantially all of these premiums are from structured finance guarantees. We believe that the bond insurers and the rating agencies do not adequately consider the facts that: (1) when structured finance obligations default, accelerate, or otherwise prepay ahead of schedule these premiums disappear, (2) purchasers of secondary market guarantees are likely to terminate their periodic premium payments because of the deteriorating credit quality of
the bond insurers, (3) the reserves for losses on these exposures (for example 12% of premium for MBIA) have proven to be inadequate and therefore overstate the net premium income, and (4) there is no provision for overhead, remediation, legal or other costs required for the bond insurers to run their business going forward. There is also no mechanism whereby the bond insurers can borrow against these potential future premiums to be used to pay claims in the present day.

There is no other financial institution in the world which takes the present value of interest spread income on loans in its portfolio and adds it to its capital. For all of the above reasons, we believe that the present value of future premiums should not be included in CPR.

CPR includes the bond insurers’ so-called depression lines of credit. As you well know, depression lines of credit can only be drawn to pay claims on municipal obligations and only after a substantial deductible. In that the losses are occurring primarily on structured finance obligations, these lines of credit should not be included in CPR

The Capital Base included in CPR is also likely to be overstated because the investment assets of the bond insurers consist primarily of bond insurer guaranteed obligations that are valued inclusive of the guarantee, when they should be valued on an unwrapped basis. The high degree of balance sheet leverage for certain bond insurers means that small changes in the values of these portfolios have a large impact on the bond insurers’ capital base.

You should adjust your estimate of CPR for each insurer to reflect the above factors in order to accurately establish the capital available to pay claims.

7) MBIA’s $1 Billion Surplus Note Issuance

Last Friday, MBIA priced an offering of surplus notes at par with a 14% yield. Within one week the notes traded down to the mid-70s and have a yield to call of more than 20%. Previous to their pricing, the notes were rated by Moody’s and S&P at Double A.

The MBIA surplus note issuance is perhaps the clearest example of the failure of the rating agencies to accurately assess the creditworthiness of a bond insurer. MBIA is still rated Triple A by all three raters. The notes received a Double A rating because of their subordination to the other obligations of MBIA Insurance Corporation. That said, how can a billion dollars of Double A rated obligations sell in a cash transaction between sophisticated parties at a 14% yield, and then trade to yield of 20% or more — a rate consistent with a Triple C or near-to-default obligation?

Bank of America 5 ¾% bonds due 2017, obligations of a financial institution that is also rated Double A, closed today at 5.55% yield, a more than 15 percentage point lower rate than the MBIA surplus notes. This is prima facie evidence that your ratings of MBIA are overstated.

Billions of MBIA’s CDO Exposure Require Payment on Default

You have stated that bond insurers have no accelerating CDO guarantees and that all of their contracts are structured as “pay-as-you-go.” I quote S&P from a paragraph entitled, “Time is On Their Side,” in their December 19, 2007 report: “Detailed Results of Subprime Stress Test of Financial Guarantors.”

“As for swap exposure, except for ACA there are no collateral posting requirements and swaps are written in pay-as-you-go format.”

On January 9, 2008, MBIA filed a copy of a powerpoint presentation which was used in the Surplus Notes offering road show. On page 8, MBIA states that $8.1 billion of its Multi-sector CDOs require payment with “Credit events as they occur.”

The liquidity demands of accelerating CDO exposure create extreme liquidity risk and must be considered in the context of the bond insurer ratings. We encourage you to examine all of the bond insurers CDS/CDO exposure to determine the amount of
exposure that is not pay-as-you-go, but rather accelerates, and consider the liquiditydemands of such exposures in your rating assessments.

9) Holding Company Liquidity Risk

In light of recent events, we believe it is likely that most bond insurers will be prevented from upstreaming dividends to their holding companies as a result of regulatory intervention, as regulators work to preserve capital for policyholders.

Most bond insurer holding companies have limited cash, have lost or will lose access to liquidity facilities, and have substantial cash needs for interest payments, operating expenses, and dividends (for so long as they continue to be paid). In addition, bond insurers with substantial investment management or swap operations have additional liquidity needs in the event of a downgrade.

We believe that both MBIA and Ambac have substantial collateral posting obligations in the event of a holding company downgrade. For example, MBIA has $45 billion of derivative obligations at the holding company that relate to currency, interest-rate, and credit default swaps that the holding company has entered into. The combination of volatility in each of these markets and the increased collateral demands required in holding company downgrade scenarios will put a severe strain on holding company liquidity.

The bond insurers’ muni-GIC business is also a large potential liquidity strain as municipalities withdraw funds from these GIC programs, assets must be liquidated, and/or collateral must be posted. Various MTM programs also create liquidity risk as
assets may have to be sold to meet redeeming bondholders. The liquidity risks of these programs and the underlying assets should be carefully examined.

ACA’s immolation is but one example of what happens to a once-investment grade bond insurer which, if downgraded, is required to post collateral.

In addition, as a result of shareholder, bondholder, and/or surplus noteholder litigation, we expect holding company legal expenses and eventual litigation claims to rise substantially. Because the holding companies typically provide indemnities for
employees and directors, we would expect that directors would be loathe to allow liquidity to leave the holding company estate, depriving directors and employees of the resources to protect themselves from claims. In these circumstances, we would expect companies to seek bankruptcy as a means to protect the allocation of value among various stakeholders.

10) MBIA – Warburg Pincus Transaction

You have assumed in your analysis that the Warburg Pincus deal and follow-on rights offering are certainties even though neither transaction has closed. While Warburg has made affirmative statements about the transaction, both publicly as well as privately, to surplus note buyers and the media, we believe there continues to be transaction closure risk for both the initial stock purchase and future rights offering, with the rights offering having greater uncertainty.

You have also assumed that 100% of the $1 billion Warburg deal will be downstreamed to the insurance subsidiaries and this, too, is not a certainty. You should receive assurances from MBIA and require it to contribute the full billion dollars to its insurance subsidiaries before you include the funds in calculating insurance company capital.

With the collapse in MBIA’s stock price and today’s downgrade of Ambac, we believe it will be difficult for MBIA to execute the rights offering, particularly before the March 31st, 2008 drop dead date. With the stock at $8.55 per share and the market aware that the $500 million in rights offering proceeds is insufficient to adequately capitalize the company, it will be difficult to set a market-clearing price. Assuming for a moment the price is set at $5.00 per share, the company would have to issue 100 million shares and may sell control to Warburg at a discount in the event shareholders elect not to participate. We believe a shareholder vote and approved registration statement will likely be required in such a circumstance, delaying the ability to consummate the transaction beyond the March 31st Warburg backstop drop dead date.

11) Future Business Prospects and Franchise Value Have Been Irreparably
Destroyed

Following the dramatic decline in share prices, widening of credit protection spreads, dismal performance of the high yield surplus note issuance, and recognition of multibillion dollar losses in a supposed “no-loss” business, the ability of bond insurers to market their “AAA” seal of approval has been permanently undermined. As uncertainty has grown, municipalities have raised capital without insurance and found that they can borrow at attractive rates as compared to historical insured bond issuances.

The entrance of Berkshire Hathaway is a devastating competitive reality that will capture the lion’s share of an already shrinking market for municipal bond insurance. While some commentators have suggested that this might create a pricing umbrella that will benefit the existing bond insurers, this is demonstrably false. Because Berkshire Hathaway already possesses a real Triple A rating, the bonds that are wrapped with its guarantee will trade with a tighter spread when compared to a bond insured by a traditional bond insurer, even one without legacy structured finance exposure.

Consequently, Berkshire will be able to charge higher premiums than the other monolines by taking a higher percentage of the spread (perhaps as much as 80% or more) that is saved through the use of insurance, and still provide the issuer with an overall lower cost of borrowing that if they bought insurance from a traditional monoline. As such, we believe that Berkshire Hathaway will likely quickly reach an 80%-90% market share of municipal bond insurance.

12) Going Concern Opinion

In light of all of the above and other current developments, we believe it will be difficult for MBIA, Ambac, and certain other bond insurers to obtain going concern opinions from their auditors. You should consider the likelihood of the insurers’ obtaining clean opinions and the implications if they do not in your rating assessments.

Lastly I encourage you to ask yourself the following question while looking at your image in the mirror:

Does a company deserve your highest Triple A rating whose stock price has declined 90%, has cut its dividend, is scrambling to raise capital, completed a partial financing at 14% interest (now trading at a 20% yield one week later), has incurred losses massively in excess of its promised zero-loss expectations wiping out more than half of book value, with Berkshire Hathaway as a new competitor, having lost access to its only liquidity facility, and having concealed material information from the marketplace?

Can this possibly make sense?