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By G.D. Hawaya
grdmilton@gmail.com
EDGAR and I have become Virtual Siamese Twins over these last twelve
months. Now I understand why Christopher Cox called EDGAR “cumbersome” and
“only really for experts” but I get it…you just gotta spend the time. (Chris
Cox EDGAR tutorial link below; I strongly encourage you to sit down and watch
this presentation).
I’ve used italics when I’m directly cutting and pasting someone else’s
words, like quotes from 10-K’s and 10-Q’s, and then I’ve added my own
thoughts in normal, ‘un-italicized’ typeface. You’ll get the hang of it.
Please pay attention to the dates of these documents and filings; I’ve
emphasized them in red. I’ve tried to assemble, or ‘string together’, a
chronology, a pattern, that demonstrates Leucadia’s technique.
I’ll also flip my wig from time to time, especially when Major Events
take place, like Leucadia’s spring 2009 revelation about the $44.9M
“distribution” from Empire Insurance. This brand-new story is almost
unbelievable, because Empire has been (supposedly) “liquidating” since 2001!
Or the idea that Finova may skip the May 2009 interest payment on the Senior
Notes…unbelievable!!! More bombshell details below…
There are two catalysts that have finally caused me to ‘go public’ with
this story. First is that Finova’s Senior Notes mature this coming November
(2009). With all the recent news about the renegotiation and forebearance of
so many corporate bonds*, we can only imagine that Finova might undergo
something similar. Leucadia/Americredit recently allowed Fairholme to turn
notes into stock of Americredit, for example (link below). This despite
Mister Cumming’s exhortations about hating dilution…
*(See these examples: Ocwen, Station Casinos, Harrah's, Sirius XM, GM,
SoftBank, Citi, Ford Motor, Macy's, American Media (National Enquirer),
Glencore, General Growth Properties, Blockbuster…etc.)
So who knows what will happen with Finova’s Senior Notes between now
and November? One point we would love to establish, but do not yet know, is
just how much of Finova’s remaining debt is already owned by Berkshire and/or
Leucadia? If you have the answer, I’d love to hear it.
There is also a brand-new part of the tax law and the ‘stimulus’ bill
that allows companies to buy back debt at discounts-to-par, but defer the
income tax for five years. Look into this for yourself; I think this will be
something significant. I don’t know that this will affect Finova, but it sure
is interesting anyway. (Harrah’s has the best description I’ve seen so far;
link below)
I urge you all to sit down by the fire with the Indenture that governs
these Finova Senior Notes, and read it carefully. Once you’ve got a
blistering headache from all the confusing boilerplate, throw the indenture
into the fire, and call me so we can go out for beer. Then I will quiz you on
Section 6.05 of the Indenture, “Control By Majority”, and we can fantasize
about an internal coup by Leucadia and Berkshire. After all, they both own
some of the Senior Notes. We just don’t know how many, or how much. Do you?
You can also dial the Trustee of the Senior Notes, The Bank of New York
Mellon, at this number: 1-800-275-2048. They can confirm that Finova hasn’t
missed an interest payment, in case you don’t believe me. You can also ask
them whatever else you have on your mind regarding the bonds. Oh, and in case
you were wondering, the beer is on you. (Indenture link below)
The second ‘catalyst’ for me to launch this public survey of Finova was
Leucadia’s acquisition of 30% of Jefferies common stock, as it unfolded in
the spring of 2008. As I searched backwards through the filings, I tried to
understand why Leucadia was buying Jefferies… until I realized that the real
story was who was buying Jefferies. Then it got really exciting, as we
learned how. This became the basis for my ‘theory’ about Finova and its
future, as I’ll detail below.
Let me be clear about one important point; I do not make any of this
stuff up. This story is not a figment of my wild imagination. I merely
AGGREGGATE stuff that’s all public on the web, then add my own opinions…which
are sometimes very, very silly, I admit.
Just don’t ask me what I think is going to happen to the share price,
pretty please ?!? Burton Malkiel still sells far more books than Charles
McKay, so who am I to doubt the millions of lemmings and their real-time
quotes?
2) “On November 4, 2008, the Third Circuit granted the equity committee’s
motion for a stay pending appeal.”
3) As of the most recent 10-k, for the period ended December 31, 2008,
Finova has $148,406,000 in assets, $1,400,000,000 in face amount of
outstanding principal of Senior Notes, and “federal NOL carryfowards of
$1.7 billion…”
4) At the close of business on Monday, March 30, 2009, the share price of
Finova, FNVG.OB, was $.005.
5) On Tuesday, March 31 2009, the price of the Senior Notes, FNV.GA /
CUSIP: 317928AA7, was 8.375 (eight-point-three-seven-five cents on the
dollar, or $83.75 per $1000 of principal)
This arbitration case is really the last legal challenge that Finova
faces. All others have been defeated or “expunged” over the last three
years or so. The amount at stake in the TLP Action is $18M, and maybe
subject to trebling and fees, but who knows?
7) Neither Ian Cumming, nor Warren Buffett, nor Leucadia, nor Berkshire
Hathaway, nor ‘Berkadia’, have ever sold a single share of Finova
common stock; they’ve retained their entire positions since 2001.
8) HERE’S THE HINT THAT THEY MIGHT NOT MAKE THE MAY 2009 INTEREST PAYMENT:
From the Finova 10-k for December 31 2008, released on March 30, 2009:
From the Finova 10-k for the year ended December 31, 2001:
“The Company estimates for its tax year ended December 31, 2001 it will be
able to utilize a significant amount of its NOL carryforwards and alternative
minimum tax credits to offset the recognition of taxable income from
cancellation of debt (“COD”) under Section 108 of the Internal Revenue Code
of 1986 (the “Tax Code”). Under this Section, the Company will recognize
approximately $800 million of COD income. Should the amount of COD exceed the
sum of NOL carryforwards, current year NOLs and other tax credits, then the
Tax Code provides that such excess be applied to reduce the tax basis of the
Company’s assets. Based on current estimates, the Company does not expect
that it will have to reduce the tax basis of its assets. As of December 31,
2001, the Company generated approximately $68.5 million of NOLs related to
foreign operations with expiration periods beginning in 2008 including some
NOLs with an indefinite expiration period.”
And the Finova 10-k for the year ended December 31, 2002:
“As of December 31, 2002 federal NOLs of $859.4 million are available
for carryforward, which expire between 2009 and 2023.”
And the Finova 10-k for the year ended December 31, 2003:
And the Finova 10-k for the year ended December 31, 2004:
“As of December 31, 2004…, the Company had federal NOL
carryforwards of $1.1 billion…none of which expire prior to 2009.”
And the Finova 10-k for the year ended December 31, 2005:
And the Finova 10-k for the year ended December 31, 2006:
And the Finova 10-k for the year ended December 31, 2007:
And the Finova 10-k for the year ended December 31, 2008:
From the Leucadia 10-K for the year ended December 31, 2008, released on
February 27, 2009:
“In February 2009, the Board of Directors authorized the Company, from
time to time, to purchase its outstanding debt securities…The amounts
involved, individually or in the aggregate, may be material.”
These scraps are left behind after periods of corporate duress and
maladjustment, especially in the wreckage of Chapter 11 filings. Finova is
exactly one of these types of basket cases.
From the Leucadia Letters from Chairman and President for 2005, posted April
18,2006:
“We long for the pre-SFAS 109 days when the NOLs rested peacefully in
the footnotes until sometime in the future when they would be called upon to
deflect taxation.”
“One of the ironies of the modern business world is the fact that a
company’s biggest asset may not be its client list or its intellectual
property, but its tax losses. Those losses can be carried forward for up to
twenty years and can be offset against the company’s future taxable income
and tax liabilities…”
I keep thinking of Leucadia as the interlocking and never-ending feet of a
toy robot; a succession of overlapping entities, “subsidiaries”, of 20-year-
long NOL expiration periods, with new NOL’s always being added ‘at the
front’, while old NOL’s either get used or die expired ‘at the back’. Go
ahead, lock your fingers together in front of you, and then ‘walk’ them
forward, perpetually, like the feet of a little toy robot.
“In March 2008, Baldwin transferred its 29,336,440 shares of Common Stock
(including 3,250,000 shares of Common Stock acquired on March 14, 2008 upon
exercise of the Lehman Options) to its indirect subsidiary, BEI-Longhorn, LLC
(“BEI Longhorn”). BEI Longhorn is a direct subsidiary of BEI Arch Holdings,
LLC (“BEI Arch”), which in turn is a direct subsidiary of Baldwin. As a
result, RCG Baldwin is no longer a Leucadia Reporting Person and BEI Longhorn
and BEI Arch are Leucadia Reporting Persons.”
Here’s how Leucadia summarizes its own NOL’s, from the 10-K of December 31,
2007:
“As of December 31, 2007, the Company had consolidated federal NOLs of
$722,000,000, none of which expire prior to 2023, that may be used to offset
the taxable income of any member of the Company's consolidated tax group. In
addition, the Company has $4,719,000,000 of federal NOLs that are only
available to offset the taxable income of certain subsidiaries. None of these
expire prior to 2017.”
“As of December 31, 2008, the Company had consolidated federal NOLs of
$1,002,600,000, none of which expire prior to 2023, that may be used to
offset the taxable income of any member of the Company's consolidated tax
group. In addition, the Company has $4,743,000,000 of federal NOLs that are
only available to offset the taxable income of certain subsidiaries. Except
for $3,941,000 that expire in 2012, none of the other NOLs expire prior to
2017. The Company also has various state NOLs that expire at different
times…”
So, now, let’s get to the chronology of these “subsidiaries”, and you will
see how they work together over time, and have worked up through the present,
right smack into the middle of Jefferies.
Let’s look at this helpful grid that Jefferies recently provided. As you can
see, Jefferies now has six consecutive quarterly losses. Yet this is exactly
when Leucadia makes its big moves into Jefferies common stock, in the spring
of 2008. Apparently profit is not the motive here for Mr. Cumming:
(And here is the latest ‘Jefferies Grid’, showing the total loss
for the year:
But now, let’s look at this form 4(one of many)that was jointly filed by
PHLCorp, Baldwin Enterprises Inc., and Leucadia; as you can see, these two
ancient, long-forgotten “subsidiaries” are the actual buyers of Jefferies !
So in this example, Leucadia is using these fifteen-year-old ‘shells’
to buy JEF stock in the present (2008/2009), because the ‘shells’ are STILL
IN POSSESSION OF THEIR OWN NOL’S, WHICH HAVEN’T EXPIRED YET! Of course this
means that JEF is just another NOL-generator to add to the pile, right?
Allcity/Empire:
“…the Empire Group has explored options for developing a new business
model and strategy. After evaluating these options, the Empire Group has
determined that it is in the best interest of its shareholders and
policyholders to commence a complete and orderly liquidation of all of its
operations.”
From the Allcity 10K, for the fiscal year ended December 31, 2001:
“The Company has paid no dividends on its common shares since 1975.”
“As of March 8, 2002, the Group was rated "F" (in liquidation) by A.M.
Best Company ("Best") and rated "BB-" (marginal) by Standards & Poors
Insurance Rating Services…”
“BROOKLYN, NEW YORK, JULY 25, 2002-- ALLCITY INSURANCE COMPANY (ALCI-
OTCBB) (the "Company") announced today that its Board of Directors has
approved a $0.335 per share cash dividend payable on August 14, 2002 to
shareholders of record at the close of business on August 5, 2002 (the
"Dividend"). The aggregate amount of the Dividend will be $2,371,340.”
As of 31 Dec 2002:
On January 15, 2003, the last trading day before Leucadia's initial
proposal to possibly acquire the shares of Common Stock not already owned by
Leucadia…for $2.00 per share was publicly announced, the last sale price of
the shares reported on…(the "OTC BB") was $0.19 per share.
On March 24, 2003, the last trading day before Leucadia's proposal to
possibly acquire the shares of Common Stock not already owned by Leucadia…for
$2.75 per share was publicly announced, the last sale price of the shares
reported on the OTC BB was $1.80 per share.”
!!!!!!! And people, Just when you began to think that some six-year-
old insurance company story was irrelevant in the present, can you
believe this brand-new bombshell, just released in the spring of 2009,
that I think is un-fucking-believable !?!?!?:
From the Leucadia 10-k, for the period ended 31 December, 2008:
Wrong! It turns out that these two ‘empty mailboxes’ are still alive
and well!
-the last time Finova held an annual meeting, in 2005, some freak
ended up in a shouting match with Ian Cumming. We always wondered just who
exactly was that guy? At the time, he said something about owning a
substantial amount of the Senior Notes…and we’ve always been curious, since
then, to find out more about this asshole…TBC…
Are these just random computers, trading bonds back and forth all day
automatically? Or are these deliberate, informed purchases, by someone who
knows exactly what these bonds are?
It turns out that Mr. Silverschotz hit the nail right on the head,
maybe in more ways than he originally imagined. With our skeptical eyes now
focused intently on these crafty words, we discover new meaning in such fuzzy
Finova phrases as: “previously not anticipated”, and “our board may abandon
the plan of liquidation”.
Unfinished ideas/stuff:
Homefed, Allcity NOL info,
LINKS:
NYT Article
Fortune Article
Forbes Article