Merrill's John Thain Says the Magic Words

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 |  About: Merrill Lynch & Co. Inc. (MER)
by: Dear John Thain

One thing that came up often as Merrill’s (MER) recent C.D.O. sale and capital raise were discussed is how one could really say that the following two statements, from the Merrill press release, are not conflicting with my statement. Let’s examine the Merrill statements first…

  • Merrill Lynch will provide financing to the purchaser for approximately 75% of the purchase price. The recourse on this loan will be limited to the assets of the purchaser.
  • The purchaser will not own any assets other than those sold pursuant to this transaction.

Seems obvious, then, that a decline in value will mean they take the assets back. Well, then why did I make the following statement (in the comments)?

  • [There] can be provisions that allow Merrill to extract assets from other Lone Star entities or require the SPV to get more money from the Lone Star funds

Simply put, there are a lot of different ways one can structure a trade like this. First, there are the moving parts of the economic terms: the interest rate, the margin amount (think of this exactly the same as buying a stock on margin: essentially a loan) required upfront, the level of margin required to be maintained, etc. The interest rate is easy, I would think the interest rate would be somewhere around L+100bps or so. The terms for margin could be tricky, though. For example, the financing could be structured such that it requires 25% of the market value up front and requires that any time the equity decreases by 5% it is paid back in to ensure the fund always owns 75% of the risk.

Now, regardless of whether these terms are correct or not, we have hit a snag. The second statement, cited above, from the release seems to indicate that this isn’t really possible. Lone Star’s vehicle will only own these mortgage assets, so where does the rest come from? There are a number of ways Merrill can enforce this margin be kept up.

First, as is common, they give themselves the power to do so by putting in “cross default” provisions. This allows Merrill to seize assets and other monetizable interests that are in its possession or control through financing arrangements with Lone Star. An example would be if a private equity fund owned a company and also purchased some securities with a repo agreement to finance them. If the private equity fund defaulted and the company had collateral with the firm providing the repo financing, the collateral could be seized. It’s also possible that there is a requirement for Lone Star to fund the margin, although not necessarily keep it in the vehicle.

Let’s see that, immediately, something interesting falls out from these terms. First, Lone Star has to be willing to fund some margin in the short run. If the assets drop in value to drive their equity down by some threshold amount (5% in the above example), they would need to fund that or potentially suffer elsewhere (cross default) or, potentially, face the assets being taken back altogether. This last option is clearly in Merrill’s best interest since it could seize the 25% equity already in the trade and have the upside of the assets as well–assuming Lone Star would never have put in more than the 25% upfront. This seems to defy logic, especially with assets being volatile in the short run and the clear implication that 22% of face value would become the valuation benchmark.

One must also admit that Lone Star will be willing to put more money into this trade when the most mundane part of the transaction is considered, namely the interest owed on the 75% being borrowed. Consider this: if there was truly no way for Lone Star to put money into these assets then Merill would own them again ~30 days after the transaction closed. Why? Monthly interest payments on the financing. Lone Star will owe around 1/12th of 1 month L.I.B.O.R. + 100bps every month. That isn’t coming out of the margin, I would bet.

So what have I shown? There are enough degrees of freedom that one can cast scenarios where John Thain is either kicking his feet up and relaxing or where he’s calling down to the C.D.O. trading desk every ten minutes asking for marks on the assets to see if they are coming back to “Mother Merrill.” I will caveat the above by saying that I don’t know what is required to be disclosed in these sorts of arrangements, but it seems like Merrill would have the higher burden to disclose anything adversely affecting their financial status, and the lack of further bad news in the financing should be taken as an indicator.

It is for these reasons that some of the speculation surrounding the C.D.O. portion of the sale were a bit simplistic and probably not accurate in the way they stated what the true economics of the trade were. For example, saying they sold for five and change cents on the dollar is not true. We also cannot say that Merrill has sold it’s upside but retained it’s downside. Nor can we say both at once. All of these gloss over a level of nuance necessary to fully understand the transaction or require a number of assumptions.

Now that you know more than you ever wanted to know about financing, what was the point? Well, let’s examine these two statements from a NYT piece on Thain and the recent Merrill activity:

“We went to a lot of trouble to get this deal done, and we structured it in a way where there is very little chance that we ever get these C.D.O.’s back or take the same risk back,” Mr. Thain said.

Mr. Thain has been accused of misleading investors because as recently as mid-July he said that he felt comfortable with Merrill’s capital levels. He said his statements like the one on the second-quarter earnings call were true when he made them. “We would not have needed to raise more capital unless we completed the C.D.O. sale,” he said.

John Thain pretty much says the structure is well protected in the first statement. We’ve shown above that this transaction only makes sense for Lone Star if they are willing to let it run in the short term (and that makes sense if they truly think these assets are under-valued, otherwise why purchase them en masse). Couple this with all the criticism and negative P.R. John Thain and Merrill are taking for having to do the equity raise, and it’s pretty clear that that magnitude of attention is only worth is if this sale ended this chapter.

Since he specifically states the contingency in the above quotation, I’m hard-pressed to think the sale has very little chance of ever being kicked back to Merrill.

In the end, I could be wrong and forced to eat my words. We’ll see, though, and I rather doubt it.