S&P downgrades Hollywood 4, retains aaa for Lexington Capital

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S&P downgrades Hollywood 4, retains AAA for Lexington Capital

In a press release of 30th March, Standard and Poor's (S&P) downgraded

Hollywood Funding 4 from AAA to BB, as Lexington Capital, the insurer,

continues to maintain that it had a valid defence on account of failure of

Lexington's position is that its policy is identical in all material respects to the

policy interpreted in the U.K. case known as HIH Casualty and General

Insurance Ltd. v. New Hampshire Insurance Company and others, in which

the court held that breach of warranty issues, coverage issues, and fraud can

properly be raised as defenses to payment. The decision is on appeal before

the Court of Appeal.

The rating agency, however, "believes that the policies are absolute and

unconditional, that there are no conditions or warranties that need to be

satisfied in order to draw on the policies (other than the money in the escrow

account being insufficient), that Lexington has waived all of its defenses to

payment on the policies, and that the policies meet the standards of the

capital market for credit enhancement of financial market instruments."

In another press release of 30th March, S&P affirmed the rating of Lexington

as AAA. The affirmation follows "a review prompted by the recent position

taken by Lexington on the insurance policies issued in connection with the

Hollywood Funding No. 5 and No. 6 film finance transactions rated by

Standard & Poor's and the resulting commercial dispute regarding policy

coverage. The ratings on these transactions were recently lowered (see press

release of Feb. 2, 2001). Should the dispute be resolved in favor of the

insured, Standard & Poor's expects that Lexington would honor its

obligations under those policies. In view of this, Standard & Poor's believes

that AIG's market position is not adversely affected by these coverage

disputes. "
The hidden hand of the market has struck.”

AIG, Goldman pull asset backed bond as investors recoil after wrap debacle

American International Group (AIG), one of the world’s largest and most powerful

insurance companies, has been forced to withdraw an asset backed

bond worth almost $600m from the market. Lead managed by Goldman Sachs, the

deal was to be backed by a pool of premium finance loans,

serviced by AIG, made to property and casualty insurers in the US. Initial

details of the structure were distributed to investors two weeks ago.

However, on Monday the deal was pulled by Goldman Sachs. Goldman Sachs and AIG

declined to comment on the transaction. However,

one investor said the bank had blamed market conditions for the deal being

pulled. But observers claim the transaction’s failure has more to do

with investor discontent with AIG following the recent refusal by Lexington

Insurance Co, an AIG subsidiary, to pay on a separate deal on which it

provided an insurance policy supporting payments to investors. That deal,

Hollywood Funding 5, was backed by future revenues from films.

It fell due in January this year and the trustee attempted to claim on an AIG

insurance policy that supported the notes. But Lexington has so far

refused to pay and has said it is investigating matters relating to fraud,

misrepresentation or a breach of a warranty on the deal. Its stance has

a precedent since a similar dispute has already taken place on the Hollywood 2

bond, between HIH Casualty & General Insurance Ltd, which

paid on the deal, and its reinsurers New Hampshire Insurance Co and others. The

High Court originally ruled in favour of the reinsurers, which

decided HIH had not been obliged to pay on the bond. The decision is being

appealed by HIH and a ruling from the Court of Appeal is imminent.

Regardless of this precedent, AIG’s stance has been seen as at odds with the way

insurance contracts operate in the capital markets, where timely

payment to investors is crucial. The established participants in this business

have been monoline insurers that work on the assumption that they

pay the claim no matter what the circumstances and turn to litigation only once

investors have been satisfied. AIG’s actions have angered many

investors, who are now questioning the validity of all wraps or other forms of

credit enhancement provided by multiline insurers. Hollywood 5’s

rapid decline in rating, from triple-A to triple-C- has also caused jitters some

investors in commercial paper issued by some conduits. Although

Hollywood 5 had no impact on a conduit if other deals were to behave in a

similar way, the liquidity provisions in some conduits used to protect

investors from downgrades may not apply if the bond is downgraded below

triple-C. But it seems some investors may now avoid AIG in other

lines of its business. One European investor, who preferred not to be named,

told EuroWeek: “We are not in the business of laying blame

[regarding the Hollywood case], but AIG’s actions do not sit well with the way

we want to do business. We choose not to participate in the transaction

at any price.” The same investor said that normally his institution would have

considered investing in the transaction. A second European

investor added: “The hidden hand of the market has struck.” Because the

Hollywood deals are European-based it seems this sentiment

may not be so strong in the US. AIG SunAmerica Global Financing this week

successfully completed a $1.75bn global GIC backed deal

under 144A, lead managed by Merrill Lynch and UBS Warburg. But for now, negative

sentiment among some European investors is strong.

“It is a point of principle,” said one. “You can’t devolve your actions in one

area of your business and not expect it to have ramifications in others.”

If it had gone ahead, AIG Credit Premium Finance Master Trust Series 2001-1

would have comprised a $575m tranche, with an initial triple-A

rating from Moody?s and Standard & Poor’s, a $21.41m piece rated A1/1 and a

$15.292m piece that would have been unrated.

Fitch cautions on use of insurance to support securitisations
The use of insurance to provide a cover and enhance the credit of securitization

transactions recently came under sharp attacks following the controversy surrounding

structured investment vehicle Hollywood Funding. Hollywood Funding enjoyed

insurance cover from insurer Lexington Insurance Co., which denied its liability to the

insured relying on a ruling of a UK court in a different case : see more of this story here

along with more links.

Following this, the use of insurance policies as credit enhancement came under review

and market practitioners were divided on whether insurance covers from monoline

insurers were more effective or those from multiliners. Rating agency Fitch has recently

issued a special report titled Use of Insurance Policies as Credit Enhancement in

Structured Finance. Fitch says that it is normally believed that under traditional

insurance from multiline insurance companies, insurers generally maintain the right to

adjust a claim and, if warranted, litigate the validity of a claim before actual payment is

made. Such actions are common and ordinary in the world of the multiline insurers.

Even if the policy terms cover the necessary items, this approach does not meet the

requirements of structured finance transactions, under which the timeliness of the

payment of debt service obligations is of the utmost importance. On the other hand,

monoline insurers are closer to financial guarantees and their covenants under the policy

normally restrain them from delaying the claims even if they intend litigating the same.
However, as the market place distinction between monoline and multinline insurers has

gradually got blurred, it is more important to look at the nature of the insurance cover

rather than its source. Fitch says that there are three signficant provisions that are

necessary to provide the required enhancement:

  • An unconditional obligation to pay the claim, if the premia are paid and there is basic performance by the insured.

  • A clear and straightforward method for the submission and payment of the claim.

  • A clear and unconditional waiver of any and all rights and defenses to payment available to the insurer under law or equity, including: set-off, counterclaim, fraud, etc.

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