Editorial: GM Death Watch 219: GM Prepackaged Reorganization

In recent congressional testimony GM admits that its’ experts are exploring the chapter 11 reorganization option, but GM argues that chapter 11 causes too many  problems, including projected damage to the overall economy and to jobs dependent on auto manufacturing. Others argue that  reorganization  is needed, but should somehow take place outside of the time-tested  legal process known as chapter 11.  Sentiment is growing that a “prepackaged” chapter 11 case financed by taxpayers is the best way to solve both the business and financial problems of GM, and perhaps of other automakers.

What is a prepackaged chapter 11?

In a true“pre-packaged” reorganization the debtor proposes its reorganization plan and solicits votes before the chapter 11 case is filed. For companies with publicly traded debt and other securities, the advantage of a chapter 11 is that the debtor can restructure its debts without the holdout problem posed by exchange offers, while at the same time reducing delay and expense. A partial “prepack” involves a pre-petition solicitation only of certain classes of creditors (e.g., bondholders in the case of GM) and a post-filing solicitation of other classes of creditors, say unsecured suppliers to GM.  Pre-filing voting on the reorganization plan is not essential if the parties have agreed in writing on how their claims will be treated under the plan, sometimes called a “pre-negotiated” prepack. A prepack does not have to immediately address every issue of every creditor group, and frequently smaller claims are resolved after a chapter 11 plan is approved. A chapter 11 filing also avoids the problem  and delay caused by soliciting shareholder votes, since  under a GM reorganization plan the common shareholders should receive nothing and therefore do not get to vote.

A prepackaged reorganization is not ideal for companies that must still undergo substantial changes to their operations or if the debtor seeks to terminate large numbers of unprofitable or burdensome contracts. However, GM’s restructuring/downsizing has been underway for a few years, plant closings are being implemented, employee layoffs have been accelerated, and GM is already making the necessary changes to address market realities.

A big advantage of chapter 11 is that the debtor can quickly and easily sell assets and operating divisions (e.g. Hummer, AC Delco) to create cash for ongoing operations, since the claims of persons affected by the sale are all funneled into the bankruptcy court for expedited resolution and the existence of disputes need not delay the sales. Pre-negotiated asset sales can be completed in a few weeks after a case is commenced, creating immediate cash for operations.

Why is a non-bankruptcy loan to GM a poor use of taxpayer money?

A lender to an insolvent company on the verge of bankruptcy wants its loan to be repaid and would not let loan proceeds be used to pay off existing liabilities. GM owes unsecured bondholders about $40 billion, and there is no indication that bondholders have agreed to standstill, waive interest payments, or to restructure the debt. GM’s Series D debt of $800 million comes due in June 2009, when GM must pay the debt, default or get bondholders to extend the maturity date. GM owes trade creditors about $28 billion and owes another $$34 billion in accrued expenses.

The legal obligations of GM to bondholders and trade creditors cannot be changed or modified without a bankruptcy case, or the written consent of each individual creditor, a near impossible task. Attempting to reorganize GM outside of a legal proceeding would  encourage  creditors to holdouts for special treatment, and delay any chance at restructuring

A commercial lender asked to support GM (which is insolvent on the basis of its balance sheet) would ask how paying the existing claims of bondholders and suppliers will help GM with its current cash flow problems, and would not consent to its loan proceeds being diverted to unsecured creditors.  Without a chapter 11 case, taxpayer loans to GM could be used to pay interest on $40 billion of GM unsecured debt, and to pay the $800 million Series D debt coming due in June 2009. GM also must pay $7.5 billion to the retiree trust in January 2010, another liability it does not have funds to pay. Taxpayer money should not be used to bailout existing debt or to pay non-essential existing liabilities. The restructuring of GM’s payment obligations can be most quickly and effectively accomplished in a pre-packaged chapter 11 case.

What is involved in preparing a business plan and application for a chapter 11 “debtor-in-possession” loan?

In a prepackaged chapter 11 reorganization, the financing for the chapter 11 debtor is arranged and in place before the chapter 11 case is filed. The financing often includes a commitment to provide the “exit” financing which is used to fund the debtor’s obligations when its chapter 11 reorganization plan is approved by creditors and by the bankruptcy court. Given the current state of commercial credit markets, in GM’s situation the US Treasury probably will have to make the commitment for the reorganization plan exit financing. The reorganization plan will set forth the repayment terms for the existing secured debt, the new US Treasury loan and the Department of Energy (DOE) loan.

As with any loan application, the starting point for GM will be its current assets and liabilities, its cash flow and its realistic projections, all of which go into a measured calculation as to the borrower’s credit worthiness and ability to repay the loan, with interest. In chapter 11 cases the debtor prepares extremely detailed projections and budgets, taking into account the reduction in its current liabilities that result when the case is filed. For example, after the chapter 11 case is filed GM will no longer pay  interest  or principal  on its unsecured debt. Chapter 11 lets GM stop paying liabilities incurred before the chapter 11 case is filed, thereby increasing cash available for operations.  All these deferrals and changes to current liabilities are then reflected in the debtor’s cash flow projections.

How will retiree claims be treated in a pre-packaged chapter 11 case?

GM retiree claims primarily are unsecured claims, having the same priority as bondholders and other unsecured creditors. In January 2010 the UAW and its related retiree trust will assume most of GM’s retiree liabilities for current retirees.  In January 2010 GM has to pay the retiree trust $7.5 billion in cash and other transfers of assets. The trust also receives a $4.4 billion GM convertible debt issue which is an unsecured claim against GM. Over ensuing years GM must pay the trust additional amounts estimated to be between $10 billion to $17 billion. A basic rule of bankruptcy is that claims having the same priority in payment get the same treatment under a chapter 11 reorganization plan. Thus, all unsecured claims, including claims of the retiree trust, should get the same treatment. In a pre-packaged chapter 11 case it is possible for creditors to agree on different treatment of claims having the same priority, but this invariably leads to more delay and expense.. . In a GM chapter 11 case these future payments to retirees are frozen, and are treated as unsecured claims, which means they will get a distribution under the GM reorganization plan.

What happens at the beginning of a pre-packaged chapter 11 case?

Despite assertions that reorganization in chapter 11 is not a realistic option, a company with pre-arranged financing is quite able to operate in chapter 11.  In nearly every mega case where a restructuring of an operating business is contemplated, the bankruptcy court enters “first day orders” which are basically all the court approvals that the business in chapter 11 needs to continue to operate its business in the ordinary course. First day orders deal with everything from financing, to advance payments, approval of bank accounts, authority to honor customer warranty claims, and reimburse dealers—all the details needed to prevent disruption of the operating business. While it is definitely a lot of paperwork, legal and turnaround professionals do this type of work every day, and the courts routinely approve first day orders designed to save operating businesses.

GM’s assertion that millions of jobs will be “lost” ignores the simple fact that companies continue to operate their businesses while in chapter 11, albeit under a great deal of scrutiny.  GM already finances its largest suppliers (Delphi and American Axle) and has a receivable financing program for other suppliers so that the suppliers have access to cash. These programs can continue in chapter 11, or even be improved. For example, GM could ask the reorganization court to approve cash pre-payments to essential suppliers. The past due claims of suppliers are unsecured claims and in bankruptcy have the same priority in payment as GM’s unsecured debt. In planning a prepack it is not unusual for the debtor, with the consent of its major creditors, to prepay critical suppliers before the prepack is filed.

What will creditors get in a pre-packaged GM reorganization plan?

A GM reorganization plan must be based on a realistic projection of future profitability, because these future cash flows will be used to determine the enterprise value of the reorganized company, and hence the value of new common shares which will be distributed under the plan.  Fortunately for taxpayers, in a chapter 11 case the debtors’ financial projects are open to public scrutiny and to the comments and objections of creditors affected by the chapter 11 plan.

GM will not have resources to make a cash distribution to creditors, so the reorganization plan will involve a distribution of newly issued debt and new common stock, with the old debt and old common shares being extinguished. The new common stock will be listed on a national exchange and will have an immediately ascertainable value based on the financial projections that GM will have to produce to get creditor approval of its chapter 11 plan. Under the reorganization plan the trust for retirees should not receive payment on the  $4.0 billion short term note,  the $4.4 billion long term note, or its other claims against GM, but will get its pro rata share of the newly issued debt and common stock of reorganized GM. Since the new common stock will be publicly traded, it can be sold to fund retiree obligations assumed by the retiree trust. In a chapter 11 case creditors can also agree that retirees will get better treatment than is customary, but this requires a vote of creditors and special treatment is likely to be contentious and delay any chapter 11 case.

Government financing for a GM pre-packaged reorganization

A US Treasury non-bankruptcy equity investment in GM (i.e., purchase of GM preferred stock), is surely a bad investment for a company already balance sheet insolvent by more than $60 billion. A primary beneficiary of an equity type investment would be the existing unsecured bondholders and unsecured creditors, who would have a claim on the proceeds. Others suggest that taxpayers make an unsecured loan, but such a loan would have the same priority as the other $105 billion of existing GM liabilities, making loan repayment unlikely.  Taxpayers should demand that any loan made to GM be made only in connection with GM’s chapter 11 filing, that it be fully secured, and only disbursed pursuant to detailed written budgets. Naturally, lenders to chapter 11 debtors insist on competent management, but also hire their own accountants and reorganization professionals so that the lender has an independent analysis and opinion of the debtor’s viability, business plans and the achievability of the debtor’s goals and financial projections.

In a pre-arranged chapter 11 case, the US Treasury could extend to GM a secured debtor-in-possession line of credit for say $40 billion, a line of credit secured by a first security interest on all GM assets, being junior only to GM’s existing secured line of credit of $4.4 billion.  A portion of the US Treasury line of credit should be available to support essential suppliers through loans, letters of credit and pre-payments. On the first day of a pre-packaged chapter 11case the bankruptcy court is likely to give interim approval to a portion  of the total credit line and have a hearing ten days later to approve the balance of the loan facility.

Since the government lacks experience in administering secured loans to insolvent companies in chapter 11 reorganization, it might be preferable to have the loan guaranteed by the US Treasury, but funds would be advanced periodically by a consortium of financial institutions experienced in lending to chapter 11 debtors, and able to monitor day to day compliance, with the terms and covenants of the  loan. This would not eliminate oversight by the US Treasury and Congress, but the details of loan administration would be delegated to experts.

GM’s Chapter 11 reorganization plan can be expedited

Given the importance of US automakers to the economy and the need for a successful reorganization to preserve jobs, a GM chapter 11 reorganization case will be expedited. The chief judge can assign multiple judges to handle different aspects of the case, recognizing that speed is essential to a successful reorganization. Bondholders and other creditors should support expedited handling of their claims because a successful reorganization is the best way for creditors to realize value.

A pre-packaged plan can be approved quickly because the plan has been negotiated and accepted by creditors entitled to vote before the chapter 11 case is begun. In a partial “pre-pack”, the largest creditor groups informally approve the general principles of the plan before the case is filed, but formal solicitation and voting take place under the supervision of the bankruptcy court. By using accelerated schedules a  prepack can be accomplished in months, not years. Pre-filing negotiations over the terms of the reorganization plan often result in agreement on difficult issues—payments to suppliers, support for the dealer network, honoring customer warranty claims, and even changes to employee work rules and benefits, and all of these agreements can be rapidly documented.

Treatment of claims and shareholders under a GM reorganization plan

Given GM’s own statements about its shortage of cash for the foreseeable future, it is unlikely that GM would make any cash distributions to existing creditors. Cash will be needed to retool plants, complete ongoing restructuring efforts, and to reassure trade creditors that enough cash is available so that trade creditors will extend new trade credit to GM.

Under a reorganization plan, creditors and shareholders are put in classes, with creditors having the same priority in payment often grouped in the same class. A simple GM reorganization plan would have the following elements:

-Taxpayers have a $40 billion first lien on all GM assets for monies lent by the US Treasury and the DOE.  If GM’s debtor in possession financing cannot be refinanced by commercial banks, then taxpayers will finance GM’s exit from chapter 11. Taxpayers should get warrants for  10 % of GM’s new common shares to reward them for the risk of financing GM in Chapter 11.
-GM’s existing $4.4 billion secured line of credit will retain its lien on GM’s assets and be extended.
-Consumer warranty claims are expressly assumed under the chapter 11 plan.
-$40 billion of unsecured bondholder debt will receive its  pro rata share of any new unsecured debt issued by GM and a pro rata share of GM’s new common shares.  The common shares will trade on the public market and will have an immediately realizable value. No interest will be paid on any new debt until all taxpayer loans to GM are paid in full, with interest
-Trade payables of  about $39 billion, the $17 to $27 billion owed to the retiree trust,  and any other unsecured claims, also get their pro rata share of any new debt and new common shares.
-The retiree trust may merit special treatment, although potential future liabilities to the trust of $27 billion not only would weigh heavily on GM’s post reorganization success, but also would depress the market value of any new common shares issued by GM. With creditor consent, the retiree trust could receive subordinated debt, with future maturity dates timed to GM’s future profitability. Without access to GM’s cash flow projections, it is hard to suggest what treatment would be fair to retirees while still protecting GM’s other creditors.
-Old common shares do not vote on the plan, get no distribution, and are canceled. Existing stock options are eliminated
-A new board of directors selected by creditors is in charge of reorganized GM, with board representation for the major creditor constituencies.

GM’s Hypothetical Post-Reorganization Balance sheet

Projected Assets: $90 billion

Estimated Liabilities
$4.4 billion: existing secured line of credit
$10 billion: secured term note to US Treasury
$12 billion: secured term note to the Department of Energy (GM’s share of the     DOE funds for alternative vehicles)
$1 billion:  trust or secured letter of credit established to guarantee payment of     consumer warranty claims
$2 billion: current tax liabilities

Subtotal: $29.4 billion of secured and priority claims

$9 billion: accrual for consumer product warranty liability
$10 billion: for current claims arising in during the chapter 11 case which will be     paid by GM in the ordinary course of business
$5 billion:  new unsecured debt (payment in kind) set aside for miscellaneous     claims, with maturities deferred and no cash interest payment
$5 billion: subordinated debt, issued with laddered maturity dates timed to fund     the retiree trust only if it runs out of money in the future
$15 billion: accrual for  pension and retirement obligations for current employees
$5 billion: leases and other obligations, including liabilities to foreign subsidiaries

Subtotal: $39 billion of unsecured debt and unsecured liabilities

Total estimated liabilities: $78.4 billion

Equity distribution
90% of newly issued GM common shares distributed to bondholders, the retiree     trust, and other unsecured creditors
10% of new equity reserved for the US Treasury

Final thoughts on labor, management and Detroit

The UAW represents labor in negotiations with GM management. GM’s management, not labor, has been behind the GM steering wheel as GM went over the Cliff of Insolvency. UAW negotiators are tough, well-informed professionals. The UAW is not inflexible; witness its recent agreement to defer $1.7 billion of payments to the retiree trust, a deferral which has helped GM stay alive. The UAW has its own staff of accountants and restructuring professionals who are prepared to sit down and negotiate and help GM propose a viable reorganization plan

GM’s board of directors, its management and the UAW have made mistakes, but their serious efforts to restructure GM should not be doubted. Rick Wagoner has spent 30 years at GM, but his efforts have been overtaken by circumstances. In reorganization the board will be replaced, as will some of the operations managers and senior executives. Undue criticism of GM’s management and the UAW distracts from the need to urgently develop and implement a viable pre-packaged reorganization plan. GM’s management needs to get down to business and develop a reorganization plan that will protect taxpayers and earn the support of Congress.

GM’s chapter 11 case should be filed in Detroit. The birthplace of the American auto industry should be the place of GM’s rebirth.