Monday, June 1, 2009

GM Files Bankruptcy Today

For all (that me be all of one) who have been reading my blog for the past few weeks, you know that I have been ridiculing the press for the adjectives used to set forth the "when" of GM's bankruptcy filing. Well, they got the last laugh, as GM, the icon of U.S. Industrial strength and reach, filed bankruptcy today.

Here is what we know. We know who will own the company after the bankruptcy reorganization. It will be a three way split with government (as the majority owner) and the UAW and bondholders taking an approximately even split. The reason for the delay, and for all the adjective wars in the papers (as prompted by the parties) was to get initial agreement from the secured bondholders for this equity split. Without that, the bondholders could have essentially forced GM to liquidate. For anyone who has technical interest in the whys, it is due to the definition of a secured claim under 11 U.S.C. §506, and how those claims can be treated in a bankruptcy plan pursuant to 11 U.S.C. §1129. Well, let's just say, they needed their agreement.

Other things we know. That the Company is listing debts as approximately 175 billion with assets of approximately 85 billion. As the assets are generally listed at liquidation value on bankruptcy schedules, in terms of it's balance sheet, GM is not in that bad of shape. There are many companies operating very profitably in this country with hard asset to debt ratio's significantly worse than GM's 1(asset) to 2(liability) ration. Think about any small business you know, restaurant, service station, etc. which has substantial debt and essentially no assets. This is why bankruptcy is such a powerfull, important and necessary business tool; it saves businesses in which their aggregate is more valuable then their parts. What this means in the case of GM, is that it is really not a balance sheet problem, but a profit and loss problem. This fact is emphasized by the fact that the U.S. government already contributing 20 billion, and committing to another 30 billion. The government money wasn't used to pay old debt, but was used to cover operating losses.

Despite this, the bankruptcy is being reported as a standard fresh cash reorganization. See attached link. In other words, the bondholder debt write-off will make the company's balance sheet healthy again.

Thinking about GM as I would any bankruptcy, the first question I always ask is whether, forgetting about the unsecured debt(or in the case of GM unsecured debt, and bondholder debt), can the company make money. When the company's financial problems are a result of an acute circumstance (such as the loss of one key customer, a spike in commodity prices, dramatic changes in debt service) the answer is often yes, and the company is a good bankruptcy candidate.

To emphasize this point, I actually draw a timeline, and put the filing date as a vertical line. I ask this question more than once, because it the one critical question that and if the debtor gets wrong, the case will fail. After all, bankruptcy is not intended to save all companies, merely profitable companies. In this case, I am sure that GM's bankruptcy attorneys asked this question, and I am sure they got some kind of answer like this: "if the bondholders go away, sure, we make money."

This my friends, is what is scaring me.

Why am I scared you ask? Because I don't necessarily believe that answer. I really believe, as I have blogged about in the past, that GM financial issue is one of a lack of revenue, and not debt structure. What I mean by that, is the company doesn't make enough money to survive regardless of what the debt is. In fact, we already know this, as the government is going to have to put in at least 30 billion more dollars, even though GM will not be paying any of it's debt. Think about this, a company with over 85 billion dollars of hard assets can't make any money. Ouch! You have to be a pretty bad business person to be given 85 billion dollars, and not be able to make money with it. In fact, Bernie Maddoff did better than that.

To make matters worse, a dirtly little secret of bankruptcy is that a Chapter 11 filing actually depresses revenues. This is logical in that people shy away from brands they are unsure will be supported. So, unless this has been factored into the equation, the 30 billion is probably light.

Why else am I nervous. Well, this seems to be bankruptcy being conceived and planned by politicians and lawyers. I am a lawyer, third generation actually, and am proud of what I do, and my profession, but let me tell you another dirty little secret: LAWYER DON'T MAKE PROFITS. We facilitate, restructure, sometimes streamline, be we don't produce upside. In fact, profits and growth make us nervous, as it means that someone is taking a risk. Now I am not suggesting that this process could have been done without lawyers. Nor am I suggesting that the government was wrong in intervening. As I have said before, 3 million jobs are at stake, as well as the fate of one American city(no joke).

However, there needs to be a business vision. For GM restructure to be successful, someone is going to have to re conceive and reinvision the American car company in a way that makes it relevant to consumers again. And that means, as I have said before, at a minimum the scrapping of the internal combustion engine; which will require an entire rebuilding of the infrastructure. So far, none of these issues have been discussed, or at least reported. This are big elephants in the room! I would love to see a true business genius--Bill Gates, Warren Buffet were are you?--brought into this process to oversee the business aspects of the restructure.

This is about all we know now, though I am sure we will know more soon. I sincerely hope that we hear a more detailed reorganization plan, and that we see engineers and entrepreneurs working on the GM restructuring team.

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