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Technology Stocks : American Automobile Industry: Can it survive? -- Ignore unavailable to you. Want to Upgrade?


To: stockman_scott who wrote (230)5/4/2009 11:41:59 AM
From: Glenn Petersen  Read Replies (2) | Respond to of 431
 
Some details on the Chrysler deal:

Crysler Sales Motion

The Ins and Outs of the Chrysler Sale

Steven M. Davidoff
New York Times
May 4, 2009, 10:27 am

Sunday evening, Chrysler filed the documents related to the proposed sale of its business.

Chrysler, backed by the federal government and the United Auto Workers, is petitioning to sell its business to a “newco” in an expedited procedure under Section 363 of the bankruptcy code. The goal is to push the sale through over any objections from senior secured lenders and allow the Chrysler business to be purchased by Fiat, the UAW’s retirement trust and the United States and Canadian governments. Once the newco purchases the Chrysler business, it will change its name to Chrysler, and the old Chrysler will similarly change its name to something without Chrysler.

New Chrysler will then continue on its hopefully successful way. Behold the magic of bankruptcy at work.

The filing is more than 300 pages. It sets forth the mechanics and details of the Chrysler deal in legal terms. And a review of the papers, and the intricacy of the deal it describes, show without a doubt that a large number of people have been working on this potential bankruptcy filing for a fair bit of time. This is a well-thought out and nicely documented deal.

The filing also contains lots of public-relations nuggets that people can grab onto, depending upon their disposition. On page 211 of the documents (downloadable below) is the letter from the UAW to its retirees outlining the minor changes to the health care retiree trust, known as a VEBA, that are currently planned. The plan’s biggest cuts are to dental and vision coverage, but the UAW states that more changes will be made starting in 2010.

This is a political punt to put off the harder decisions to the VEBA trustees, who will be majority independent, rather than the union. Also — and this is strange — one of the few cuts to retiree benefits occurring now is that retirees are losing their entitlement to erectile dysfunction medicine. Go ahead and laugh, but it seems odd to negotiate such a small detail with all that is going on. They must have really been looking for sacrificial lambs.

But for those who are deal junkies, the real interest in the papers is in the asset sale agreement. This is the operational document that will transfer the Chrysler business to the newco, if the bankruptcy court approves the transfer.

The most interesting part is on pages 67 to 73, which set forth the terms of the transfer of the assets and liabilities of Chrysler to the newco. This sale is not a stock sale, but rather a sale of assets. Asset sales are much more complicated, since the buyer actually picks and chooses the assets and liabilities that it purchases. The parties must therefore negotiate in painstaking detail which assets and liabilities are transferred.

The agreement takes a broad approach. It transfers all of the assets of Chrysler to the newco except for specified excluded ones. The assets not transferred include a number of plants and assets scheduled on the disclosure schedules to the agreement. These are unfortunately not all disclosed, though the excluded plants are listed on page 25.

The second part of any asset sale is the assumption of liabilities by the buyer. This is the most important, and where one of the main benefits of an asset sale typically lie. The reason is that the buyer can simply refuse to assume those liabilities it does not want to pay for. It can therefore make a clean break with the parts of the seller that are undesirable to keep.

Here, the Chrysler agreement is again overbroad in transferring liabilities in excessive amounts than normal to the buyer, among other things transferring accounts payable, environmental liabilities and obligations for warranties. The last is important, as it allows Chrysler to stand by its cars and preserve reputation.

But there are still exclusions from the transferred liabilities that will remain with the bankrupt Chrysler entity. This appears to include all claims for product liability that are pending. Selected litigation liabilities are also excluded, including workers’ compensation claims, and liabilities related to litigations brought by Getrag Transmission Manufacturing and Faurecia Interior Systems. Claimants here are likely to also be out of luck as they will now become unsecured creditors in bankruptcy.

Sorry, old Chrysler customers — it appears that if your warranty is expired or inapplicable, and your claim is one for negligence for product liability, you are one of these out-of-luck people.

The key to this deal is that the parties have put it on a short leash. The agreement states that if the Chrysler sale is not completed by June 15, 2009 — extendable by 30 days if antitrust clearance is still needed — then Fiat can terminate the agreement at any time. This allows Chrysler to argue to the bankruptcy court that the sale must be completed as soon as possible or otherwise will be lost. The deal will not close right away even if the court allows it: there is a target closing date in the first week of June. And the United States, Canada, the European Union (or any relevant member states of the European Union) and Mexico are required to obtain antitrust clearance for the approval.

Ultimately, the agreement is interesting more for what it transfers than anything else.

The real action in this deal is going to be focused on whether Chrysler and the government can force this through over any objections of the secured lenders. Here, I suspect that the case has been made, and we will find out in Monday’s 10 a.m. bankruptcy court hearing when these papers are considered.

The value of Chrysler’s assets are uncertain at best, and the purchase price to be paid here is $2 billion cash, funded by the federal and Canadian governments. Moreover, Chrysler appears to be retaining a fair bit of assets, including the ability to sell the Viper assets. Compare this to the likely liquidation value of Chrysler, a large part of which consists of the scrap metal price for its factories.

The government has now passed the crisis stage of the bailout and is now in the less heroic business of day-to-day administration of its liabilities accrued during this time period. This is not only a political game, but one that is likely to push off costs and create more obligations far, far into the future. Remember, this is Chrysler’s second, and likely not last, drink at the federal well.

Steven M. Davidoff, writing as The Deal Professor, is a commentator for DealBook on the legal aspects of mergers, private equity and corporate governance. A former corporate attorney at Shearman & Sterling, he is a professor at the University of Connecticut School of Law. His columns are available at The Deal Professor blog.

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To: stockman_scott who wrote (230)5/19/2009 10:14:02 PM
From: Glenn Petersen  Read Replies (1) | Respond to of 431
 
As Political Winds Shift, Detroit Charts New Course

By JOHN M. BRODER and MICHELINE MAYNARD
New York Times
May 20, 2009

WASHINGTON — Why, after decades of battling, complaining and maneuvering over fuel economy standards, did carmakers fall in line behind the tough new nationwide mileage standard President Obama announced Tuesday?

Because they had no choice. The auto industry is flat on its back, with Chrysler in bankruptcy, General Motors close to it, and both companies taking billions of dollars in federal money. Foreign automakers are getting help from their own governments. Climate change legislation is barreling down the track, and Congress showed last fall that it had no appetite to side with Detroit any more.

Simply put, Detroit and the other companies need Washington’s help, and they are powerless to block the rules Washington dictates.

“They can feel the political winds changing,” said David Doniger, a lawyer with the Natural Resources Defense Council who has faced the car companies in court many times. “They need government aid to stay in business. When you have your hand out for help, it’s hard to use the same hand to thumb your nose at the federal government.”

It is a clear victory for the president, who introduced fuel economy legislation as one of his first acts as a senator, and it is the latest blow in a four-year decline in Detroit’s influence in Washington.

In 2005, car companies were able to stop fuel economy legislation. By 2007, with the country awakened to the realization that global warming was a threat, they were forced to go along with higher standards but managed to water them down.

This time, they arrived at the table so debilitated they could extract only the barest of concessions. The primary gift carmakers received from Mr. Obama in Tuesday’s proposal was the certainty of one fuel economy standard from California to Maine, rather than the patchwork that would have resulted from two sets of regulations, one by the 18 states that wanted tighter standards, and another for everywhere else.

“We understood there had to be a different approach,” said Dave McCurdy, the former Democratic congressman hired by the auto companies two years ago to be their chief voice in Washington. “We saw the election of Obama as a unique opportunity to bridge the differences between all the stakeholders and to provide certainty and clarity to the manufacturers.”

Yet there is more to come. The troubled auto industry is at the front end of a wave of changes driven by President Obama’s determination to put the United States on a fossil fuel diet. The administration is moving on multiple fronts, from the Environmental Protection Agency’s proposed finding that heat-trapping gases are a threat to health and the environment to the sweeping cap-and-trade legislation moving through Congress.

Taken together, these measures may create markets for fuel-efficient cars, change how Americans heat and light their homes and, ultimately, decide what industries will rise and fall.

On Tuesday, Mr. Obama gathered the chief executives of 10 auto companies from around the world in the Rose Garden to announce his proposal for a single national fuel-efficiency standard of 35.5 miles per gallon by 2016, a nearly 40 percent increase from today’s level. Also in attendance were environmental advocates, officials from California and Michigan and cabinet members who worked on the plan.



Mr. Obama praised the car companies’ willingness to cooperate in the effort, saying it marked a sharp reversal. “You know, in the past, an agreement such as this would have been considered impossible,” he said.

James C. Lentz, the president of Toyota Motor Sales USA, now the country’s second-biggest seller behind Ford, said he could not recall a similar occasion when executives from American and foreign companies, environmental groups and state officials had gathered at the White House in agreement.

Mr. Lentz said consumers’ swift reaction to record gasoline prices last summer was an important factor in the industry’s embrace of higher fuel standards. “The industry woke up to the fact last year that when gas hit $4.50 a gallon, consumers were going to demand better fuel economy,” he said.

At the same time, the auto companies found themselves on the losing end of a string of environmental lawsuits, including the big one, Massachusetts v. E.P.A., in which the Supreme Court gave the Environmental Protection Agency the authority to regulate vehicle emissions of heat-trapping gases like carbon dioxide.

The industry also suffered from the diminished power of its staunchest ally in Washington, Representative John D. Dingell, the Michigan Democrat who has served in Congress for 54 years.

In November, Representative Henry A. Waxman, Democrat of California, wrested the chairmanship of the Energy and Commerce Committee from Mr. Dingell in a hard-fought battle. Mr. Dingell had used his perch there to protect the automakers from repeated efforts by lawmakers and agency officials to strengthen automotive environmental, safety and mileage standards.

Representative Edward J. Markey, Democrat of Massachusetts, was a co-author of the 2007 mileage standards and, with Mr. Waxman, of the climate change bill before Congress. Mr. Markey said the fuel-efficiency law, looming E.P.A. regulation of emissions and the election of Mr. Obama had put the carmakers in a vise.

“With the full political force of Congress and a new administration pushing the automakers, and the business folly of an overreliance on gas guzzlers on full display to the American consumer,” Mr. Markey said, “the auto industry was simply unable to continue their strategy of delaying action, denying they could meet higher standards and litigating to prevent them in the first place.”

Jason S. Grumet, president of the Bipartisan Policy Center in Washington, said the auto manufacturers were seeing this agreement as a lifeline and a way to end 30 years of conflict.

“It represents one place that was important to their future where they could seize a measure of control of their own destiny,” said Mr. Grumet, who is close to many of the administration’s energy and environment policy makers.

“I also think this was a classic example of an entrenched disagreement that had outlived its useful life,” Mr. Grumet said. “The fight had exhausted itself. People on all sides of the issue were ready to reach a principled compromise and move forward.”

John M. Broder reported from Washington, and Micheline Maynard from Detroit.

Copyright 2009 The New York Times Company

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