The D & O Diary : Directors and Officers Liability and Insurance : The D & O Diary : Kevin LaCroix : Securities Laws, Corporate Fraud, D & O Litigation

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In a statement issued on Tuesday evening (here), the Federal Reserve announced that it had authorized a loan of up to $85 billion to American International Group. This move is described in detail in a September 17, 2008 Wall Street Journal article entitled "U.S. to Take Over AIG in a $85 Billion Bailout" (here). Bloomberg’s article describing the development can be found here.

The Outlines of the Loan Facility

The loan facility, which the statement says has been extended pursuant to Section 13(3) of the Federal Reserve Act, has been "designed to protect the interests of the U.S. government and taxpayers." According to the Real Time Economics blog (here), the only other time this specific Fed power has been exercised since the Depression era was in connection with the Bear Stearns bailout.

The Fed statement says that it exercised its authority because of adverse economic effects that would follow from a "disorderly failure" of AIG. The loan facility is designed to permit AIG to "meet obligations" in order to "facilitate a process under which AIG will sell certain of its businesses in an orderly manner."

The facility has a 24-month term. The interest rate is set at three month LIBOR plus 850 basis points. Three month LIBOR is a variable rate that resets weekly. The current weekly rate (here) is 2.81%, so the current interest rate on this loan facility is 11.31% -- pretty hefty. Just keep in mind that annual (simple) interest of 11.31% on $1 billion is $113.1 million. On $10 billion it is $1.131 billion. And on $85 billion it is $9.61 billion.

The loan is collateralized by all of the assets of AIG and of its non-regulated subsidiaries. (The good news here is that the assets of the regulated subsidiaries – the insurance companies – are off limits.) The loan is to be repaid from asset sale proceeds.

According to the Fed statement, the government "will receive a 79.9% equity interest" in AIG, with the right to veto dividends to common and preferred shareholders.

The size of the facility presumably was set to accommodate all likely requirements, so AIG may or may not draw down all of it. But AIG will most likely draw down a very large part of it. AIG will have to repay its borrowings (plus interest). In referring to the means of repayment, the press release refers to the orderly sale of "businesses," so one can assume that the non-core subsidiaries are on the blocks for an "orderly" sale.

Questions about the Loan Facility

The problem for AIG is that sale of its non-core subsidiaries alone may not be sufficient to pay back even half of $85 billion. The Deal Journal blog estimates (here) that sales of AIG’s non-core subsidiaries and minority interests might raise "as much as $42 billion" – and that, I might add, is before taxes. (I think Uncle Sam will insist on the payment of all applicable taxes.) Which raises the question whether the sale of "businesses" specifically contemplates the sale of some or all of AIG’s core insurance operations?

Left unanswered in the Fed press release is the question of what this development means for AIG’s continuing business operations. The primary goal of the Fed facility is the orderly sale (as opposed to the "disorderly failure," as the Fed statement put it) of AIG’s businesses. What does this imply about the future of AIG’s operating companies? And what will be left of AIG after the "orderly sale"?

Presumably, the answers to many of these questions will become apparent in the days ahead. In the meantime, there are some things that everyone will want to know. I have posed some of these questions below. Please note that many of these questions may simply be a reflection of the limited amount of information currently available. Many of these questions may appear simple-minded once the information is known. But based on what we know so far, here are the other things we still need to know:

1. Who will run the company? Is current senior management to remain in place, or will AIG get its third CEO this year? (For the record, the government did embed new management at Fannie Mae and Freddie Mac as part of the recent takeover.). How about the Board of Directors, will they also be replaced?

UPDATE: The New York Times reports (here) that AIG CEO Robert Willumstad will be replaced by Edward M. Liddy, the former chairman of Allstate Corporation.

2. What exactly does government ownership of 79.9% of the company equity mean? Is this just a shorthand way of saying that the government is entitled roughly 80% of any later liquidation? Or is there more to it than that?

For example, does the government want the value of its ownership interest to grow? What will the government ultimately do with its ownership interest? Will the government sell its interest, and if so, when, to whom, for what price, and under what circumstance? Why is the government now the majority owner of a major insurance company? Does the government want its insurance company to compete and succeed in a competitive marketplace against investor owned insurance companies?

3. The government wants to get repaid, so it wants the "orderly sale" of the businesses to produce sales values sufficient to effect repayment. That implies that the operating companies should continue operating. But among the insurance companies, for example, there are many practical questions that only active and engaged management can decide – risk appetite, level of pricing aggressiveness, extent of reinsurance, limit exposures, prohibited classes, and so on. All of these decisions must now take place under potentially unusual conditions, in effect under the supervision of a government appointed caretaker/liquidator?

4. What impact will these developments have on credit ratings, both at the parent company level and at the insurance subsidiary level? The fact the company’s primary mission now seems to be a slow-motion liquidation is clearly a relevant factor, as are the unusual operating conditions. In addition, I would expect that all of AIG’s other debt is subordinate to the Fed loan, which also seems relevant to financial strength ratings.

5. What happens if $85 billion is not enough? This is not as absurd of a question as it might seem at first glance. Keep in mind that AIG just raised $20 billion in the second quarter and that clearly was not enough. What does the current lending facility imply about the future – for AIG, for taxpayers, for the economy?

6. What about the credit rating for the U.S. government? How far can this go? The U.S. government just assumed responsibility for $5 trillion in Fannie Mae and Freddie Mac debt. When do we start to get concerned about the government’s balance sheet? When do we start to get concerned about the ability of the U.S. to meet of all of its obligations?

Policyholders’ Interests

Finally, I must address the interests of policyholders. On Tuesday, AIG released a statement (here) that its insurance subsidiaries "remain adequately capitalized and fully capable of meeting their obligations to policyholders." Along those lines, it is important to keep in mind that AIG’s current predicament is not the result of insurance losses, so the separately capitalized insurance companies’ ability to meet its obligations essentially remains unchanged.

Moreover, the collateral securing the Fed’s lending facility does not include the insurance companies’ assets, so even if the parent company heads south in a big way despite the $85 billion loan, the insurance companies’ existing surplus should remain to address policyholder claims, subject of course to the effects of claims payment.

In the days ahead it will be very important to understand how the current operating circumstances will affect the insurance companies and their operations, and in particular whether there are any other implications for policyholder surplus and the insurance companies’ claims paying ability.