THE PROPOSED AUTO BAILOUT BILL [With Analysis] Part 3

PROPOSED AUTO BAILOUT BILL, Contniued – PART 3

 (b) EXECUTIVE COMPENSATION AND CORPORATE GOVERNANCE

(1) IN GENERAL

During the period in which any financial assistance under this Act remains outstanding, the eligible automobile manufacturer which received such assistance shall be subject to—

(A) the standards established by the President’s designee under paragraph (2); and          

(B) the provisions of section 162(m)(5) ofthe Internal Revenue Code of 1986, as applicable.

(2) STANDARDS REQUIRED

The President’s designee shall require any eligible automobile manufacturer which received any financial assistance under this Act to meet appropriate standards for executive compensation and corporate governance.

(3) SPECIFIC REQUIREMENTS

The standards established under paragraph (2) shall include—

(A) limits on compensation that exclude incentives for senior executive officers of an eligible automobile manufacturer which received assistance under this Act to take unnecessary and excessive risks that threaten the value of such manufacturer during the period that the loan is

outstanding;

 

 

 

 

(4) DIVESTITURE

During the period in which any financial assistance provided under this Act to any eligible automobile manufacturer is outstanding, the eligible automobile manufacturer may not own or lease any private passenger aircraft, or have any interest in such aircraft, except that such eligible automobile manufacturer shall not be treated as being iviolation of this provision with respect to any aircraft or interest in any aircraft that was owned or held by the manufacturer immediately before receiving such assistance, as long as the recipient demonstrates to the satisfaction of the President’s designee that all reasonable steps are being taken to sell or divest such aircraft or interest.

[AND THE CONGRESSMAN STOOD BEFORE THE CAMERA AND SMILED AS HE SAID, “THIS PROGRAM WILL MAKE THE AUTO COMPANIES GET RID OF THEIR FLEET OF PRIVATE JETS” – Will that actually happen – Probably not – The Auto Companies are allowed to “CHARTER” the Jets back – Does this game save the American Taxpayor any money – NO, but it makes for a great TV sound bite for the Congressman – while he pulls the wool over the publics eyes]

(5) DEFINITIONS.—For purposes of this subsection, the following definitions shall apply:

 

The term ‘‘senior executive officer’’ means an individual who is 1 of the top 5 most highly paid executives of a public company, whose compensation is required to be disclosed pursuant to the Securities Exchange Act of 1934, and any regulations issued thereunder, and non public company counterparts.

(B) GOLDEN PARACHUTE PAYMENT

The term ‘‘golden parachute payment’’ means any payment to a senior executive officer for departure from a company for any reason, except for payments for services performed or benefits accrued.

(c) PROHIBITION ON PAYMENT OF DIVIDENDS.—Except with respect to obligations owed pursuant to law to any nonaffiliated party or any existing contract with any nonaffiliated party in effect as of December 2, 2008, no dividends or distributions of any kind, or the economic equivalent thereof (as determined by the President’s designee), may be paid by any eligible automobile manufacturer which receives financial assistance under this Act, or any holding company or company that controls a majority stake in the eligible automobile manufacturer, while such financial assistance is outstanding.

[THIS WILL SIMPLY SLOW DOWN ANY POTENTIAL THE “DETROIT 3” HAVE OF MAKING A RECOVERY – NOT ONLY DOES BANKRUPTCY REOGANIZATION NOT INVOLVE AN OUTLAY OF TAXPAYOR CASH – IMMEDIATELY AFTER THE BANKRUPTCY REORGANIZATION IS COMPLETED – THE “DETROIT 3” CAN START PAYING DIVIDENDS IF THEY ARE MAKING ANY MONEY – WHICH COURSE OF ACTION DO YOU THINK ENCOURAGES PRIVATE INVESTMENT IN THE “DETROIT 3”]

(d) OTHER INTERESTS SUBORDINATED

(1) IN GENERAL

In the case of an eligible automobile manufacturer which received a loan under this Act, to the extent permitted by the terms of any obligation, liability, or debt of the eligible automobile manufacturer in effect as of December 2, 2008, any other obligation of such eligible automobile manufacturer shall be subordinate to such loan, and such loan shall be senior and prior to all obligations, liabilities, and debts of the eligible automobile manufacturer, and such eligible automobile manufacturer shall provide to the Government, all available security and collateral against which the loans under this Act shall be secured.  [AGAIN, THIS PROVISION WILL HINDER AND NOT ENCOURAGE PRIVATE INVESTMENT IN THE “DETROIT 3” – A BANKRUPTCY REORGANIZATION WILL GIVE THE “DETROIT 3” a “FRESH START” AND NOT SADDLE THEM WITH TERMS THAT WILL INHIBIT RATHER THAN ENCOURAGE NEW INVESTMENT IN THE “DETROIT 3”]

(2) APPLICABILITY IN CERTAIN CASES

In the case of an eligible automobile manufacturer referred to in paragraph (1), the securities of which are not traded on a national securities exchange, a loan under this Act to the eligible automobile manufacturer shall—

(A) be treated as a loan to any holding company of, or company that controls a majority stake in, the eligible automobile manufacturer; and

(B) be senior and prior to all obligations, liabilities, and debts of any such holding company or company that controls a majority stake in the eligible automobile manufacturer.

 

(1) DISCHARGE

A discharge under title 11, [A BANKRUPTCY REORGANIZATION – THIS BAILOUT BILL RECOGNIZES THE PROBABLITY THAT A CHAPTER 11 REORGANIZATION WILL OCCUR EVEN IF THE DETROIT 3 GET THE BAILOUT MONIES] United States Code, shall not discharge an eligible automobile manufacturer, or any successor in interest thereto, from any debt for financial assistance received pursuant to this Act.

[THERE IS A CONSIDERABLE QUESTION AS TO WHETHER THIS PROVISION WILL BE ENFORCABLE IN A COURT OF LAW IF THE “DETROIT 3” FILE FOR BANKRUPTCY  REORGANIZATION AT A LATER TIME – IT IS A GUARANTEE THAT THE OTHER “CREDITORS” OF THE “DETROIT 3” WILL CHALLENGE THIS PROVISION AS VIOLATING THEIR RIGHTS]  

(2) EXEMPTION.—Any financial assistance provided to an eligible automobile manufacturer under this Act shall be exempt from the automatic stay established by section 362 of title 11, United States Code.

(3) INTERESTED PARTIES

Notwithstanding any provision of title 11, United States Code, any interest in property or equity rights of the United States arising from financial assistance provided to an eligible automobile manufacturer under this Act shall remain unaffected by any plan of reorganization, except as the United States may agree to in writing.

SEC. 13. OVERSIGHT AND AUDITS.

(a) COMPTROLLER GENERAL OVERSIGHT

(1) SCOPE OF OVERSIGHT

The Comptroller General of the United States shall conduct ongoing oversight of the activities and performance of the President’s designee.

(2) CONDUCT AND ADMINISTRATION OF OVERSIGHT

(A) GAO PRESENCE

The President’s designee shall provide to the Comptroller General appropriate space and facilities for purposes of this subsection.

(B) ACCESS TO RECORDS

To the extent otherwise consistent with law, the Comptroller General shall have access, upon request, to any information, data, schedules, books, accounts, financial records, reports, files, electronic communications, or other papers, things, or property belonging to or in use by the President’s designee, at such reasonable time as the Comptroller General may request. The Comptroller General shall be afforded full facilities for verifying transactions with the balances or securities held by depositaries, fiscal agents, and custodians. The Comptroller General may make and retain copies of such books, accounts, and other records as the Comptroller General deems appropriate.

 

The Comptroller General shall submit reports of findings under this section to Congress, regularly and not less frequently than once every 60 days. The Comptroller General may also submit special reports under this subsection, as warranted by the findings of its oversight activities.

(b) SPECIAL INSPECTOR GENERAL

It shall be the duty of the Special Inspector General established under section 121 of Public Law 110-343 to conduct, supervise, and coordinate audits and investigations of the President’s designee in addition to the duties of the Special Inspector General under such section and for such purposes. The Special Inspector General shall also have the duties, responsibilities, and authorities of inspectors general under the Inspector General Act of 1978, including section 6 of such Act. In the event that the Office of the Special Inspector General is terminated, the Inspector General of the Department of the Treasury shall assume the responsibilities of the Special Inspector General under this subsection.

(c) ACCESS TO RECORDS OF BORROWERS BY GAO.

Notwithstanding any other provision of law, during the period in which any financial assistance provided under this Act is outstanding, the Comptroller General of the United States shall have access, upon request, to any information, data, schedules, books, accounts, financial records, reports, files, electronic communications, or other papers, things, or property belonging to or in use by the eligible automobile manufacturer, and any subsidiary, affiliate, or entity holding an ownership interest of 50 percent or more of such eligible automobile manufacturer (collectively referred to in this section as ‘‘related entities’’), and to any officer, director, or other agent or representative of the eligible automobile manufacturer and its related entities, at such reasonable times as the Comptroller General may request. The Comptroller General may make and retain copies of such books, accounts, and other records as the Comptroller General deems appropriate.

SEC. 14. AUTOMOBILE MANUFACTURERS’ STUDY ON POTENTIAL MANUFACTURING OF TRANSIT VEHICLES.

(a) IN GENERAL.—Each eligible automobile manufacturer which receives financial assistance under this Act shall conduct an analysis of potential uses of any excess production capacity (especially those of former sport utility vehicle producers) to make vehicles for sale to public transit agencies, including—

(1) the current and projected demand for bus and rail cars by American public transit agencies; [The Government is dictating expenditure of taxpayor funds on “studies” of demand for “buses” amd “railcars” – The Government simpoly has no business getting involved like this – everyone is trying to “make a buck” off of this situation – Just like the “TARP”] 

(2) the potential growth for both sales and supplies to such agencies in the short, medium, and long term;

(3) a description of existing ‘‘Buy America’’provisions, and data provided by the Federal Transit Administration regarding the use or request of waivers from such provisions; and(4) any recommendations as to whether such actions would result in a business line that makes

sense for the automobile manufacturer. [JUST WHAT, EXACTLY, QUALIFIES THE GOVERNMENT TO DO THIS AND WHY DOES THE GOVERNMENT THINK IT IS APPROPRIATE TO GO DOWN THIS PATH. I’M SURE THE COMPANIES WHO ALREADY MAKE THESE PRODUCTS WANT TO KNOW WHAT THE HECK THE GOVERNMENT IS UP TO]   

 

The Comptroller General of the United States shall review the analyses conducted under this section, and shall provide reports there on to the Congress and the President’s designee.

SEC. 15. REPORTING AND MONITORING.

(a) REPORTING ON CONSUMMATION OF LOANS

The President’s designee shall submit a report to the Congress on each bridge loan made under section 4 not later than 5 days after the date of the consummation of such loan.

 

The President’s designee shall submit a report to the Congress on the restructuring progress assessment measures established for each manufacturer under section 5(a) not later than 10 days after establishing the restructuring progress assessment measures.

(c) REPORTING ON EVALUATIONS

The President’s designee shall submit a report to the Congress containing the detailed findings and conclusions of the President’s designee in connection with the evaluation of an eligible automobile manufacturer under section 5(b). t 09 2002 10:55 Dec 10, 2008 Jkt 000000 PO 00000 Frm

(d) REPORTING ON CONSEQUENCES FOR FAILURE TO COMPLY.—The President’s designee shall submit a report to the Congress on the exercise of a right under section 11(f) to accelerate indebtedness of an eligible automobile manufacturer under this Act or to cancel any other financial assistance provided to such eligible automobile manufacturer, and the facts and circumstances on which such exercise was based, before the end of the 10-day period beginning on the date of the exercise of the right.

(e) MONITORING

The President’s designee shall monitor the use of loan funds received by eligible automobile manufacturers under this Act, and shall report to Congress once every 90 days (beginning 30 days after the date of enactment of this Act) on the progress of the ability of the recipient of the loan to continue operations and proceed with restructuring processes that restore the financial viability of the recipient and promote environmental sustainability. [Sound just like the requirements of the “TARP” – They call a meeting and the representatives come in and when they are asked – “Well, where has the taxpayor money been spent, which “toxic assets did you buy”, which “derivative contacts were purchased”, who received the taxpayors money? They answer, “we don’t know, and if we did, we couldn’t tell you!” And then Congress does nothing] 

SEC. 16. REPORT TO CONGRESS ON LACK OF PROGRESS TOWARD ACHIEVING AN ACCEPTABLE NEGOTIATED PLAN.

 

At any such time as the President’s designee determines that action is necessary to avoid disruption to the economy or to achieve a negotiated plan, the President’s designee shall submit to Congress a report outlining any additional powers and authorities necessary to facilitate the completion of a negotiated plan required under section 6. [Banruptcy Courts have all the power that is needed – Someone must have a plan to make a lot of bucks of this scam by avoiding the Bankrauptcy Courts]

(b) IMPEDIMENTS TO ACHIEVING NEGOTIATED PLANS

If the President’s designee determines, on the basis of an evaluation by the President’s designee of the progress being made by an eligible automobile manufacturer toward meeting the restructuring progress assessment measures established under section 5, that adequate progress is not being made toward achieving a negotiated plan by March 31, 2009, the President’s designee shall submit to Congress a report detailing the impediments to achievement of a negotiated plan by the eligible automobile manufacturer.

SEC. 17. SUBMISSION OF PLAN TO CONGRESS BY THE

PRESIDENT’S DESIGNEE.

 

[OR THROUGH BANKRUPTCY REORGANIZATION]

SEC. 18. GUARANTEE OF LEASES OF QUALIFIED TRANSPORTATION PROPERTY.

(a) GUARANTEE

Upon the request of a lessee of qualified transportation property, the President’s designee shall serve as a guarantor with respect to all obligations of such lessee with respect to leases of such qualified transportation property. Such guarantee shall be on such terms and conditions as are determined by the President’s designee, not later than 14 days after the date of enactment of this section. [This is in addition to Billions in cash]

 

(1) IN GENERAL.—Any claims under this section in excess of collateral held for the benefit of the President’s designee shall be paid from the General Fund of the Treasury out of funds not otherwise appropriated.

(2) RECOUPMENT FEE

Subsequent to any payment made under paragraph (1), the President’s designee shall recoup amounts paid under paragraph

(1) by establishing a fee that is sufficient to recoup the amount of the claim payment not later than 3 years after the date of such claim payment from any lessee or guarantor for whom the claim was paid or for whom a guarantee was issued.

(c) DEFINITIONS

For purposes of this section

(1) the term ‘‘qualified transportation property’’ means domestic property subject to a lease that was approved by the Federal Transit Administration prior to January 1, 2006; and (2) the term ‘‘guarantor’’ includes, without limitation, any guarantor, surety, and payment undertaker.

SEC. 19. COORDINATION WITH OTHER LAWS.

(a) IN GENERAL

No provision of this Act may be construed as altering, affecting, or superseding—

(1) the provisions of section 129 of division A of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, relating to funding for the manufacture of advanced tech

nology vehicles;

 

(b) LIMITATION

Except to provide bridge financing or to implement a restructuring plan pursuant to this Act, no funds from the United States Treasury may be used for the purpose of assisting an eligible automobile manufacturer to achieve financial viability or otherwise to avoid bankruptcy.

[AND WHAT DOES THAT MEAN]

(c) AUTHORIZATION OF FISCAL YEAR 2009 COST OF LIVING SALARY ADJUSTMENT FOR J

USTICES AND JUDGES

Pursuant to section 140 of Public Law 97–92,

(WHY CHOOSE THIS BILL TO ADD IN A PAY INCREASE FOR FEDERAL JUDGES) 

 

Code.NOW BACK TO THE AUTO BAILOUT

(1) IN GENERAL

Subject to paragraphs (2) and (4), the antitrust laws shall not apply to meetings, discussions, or consultations among an eligible automobile manufacturer and its interested parties for the purpose of achieving a negotiated plan pur

suant to section (6)(a)(2). 

Paragraph (1) shall not apply with respect to price-fixing, allocating a market between competitors, monopolizing (or attempt

ing to monopolize) a market, or boycotting. 

[HOW WILL ANYONE KNOW – THE MEETINGS HAVE BEEN EXEMPTED FROM “PUBLIC MEETINGS” REQUIREMENTS – ANYONE WANT TO BUY A SENATE SEAT WHILE WE ARE AT IT] 

 

The Attorney General of the United States and the Federal Trade Commission shall, to the extent practicable, receive reasonable advance notice of, and be permitted to participate in, each meeting, discussion, or consultation described in paragraph (1).

(4) PRESERVATION OF ENFORCEMENT AUTHORITY

Paragraph (1) shall not be construed to preclude the Attorney General of the United States or the Federal Trade Commission from bringing an enforcement action under the antitrust laws for injunctive relief. 

 

Paragraph (1) shall apply only with respect to meetings, discussions, or consultations that occur within the 3-year period beginning on the date of the enactment of this Act.

(6) DEFINITION.—For purposes of this subsection, the term ‘‘antitrust laws’’— 

SEC. 20. TREATMENT OF RESTRUCTURING FOR PURPOSESOF APPLYING LIMITATIONS ON NET OPERATING LOSS CARRYFORWARDS AND CERTAIN BUILT-IN LOSSES.

Section 382 of the Internal Revenue Code of 1986 shall not apply in the case of an ownership change resulting from this Act or pursuant to a restructuring plan ap

proved under this Act. 

 

Amounts provided by this Act are designated as an emergency requirement and necessary to meet emergency needs pursuant to section 204(a) of S. Con. Res. 21 (110th Congress), the concurrent resolution on the budget for fiscal year 2008.

http://www.house.gov/apps/list/press/financialsvcs_dem/autobill.pdferDate 0ct 09 2002 10:55 Dec 10, 2008 Jkt 000000 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 C:\TEMP\AUTO_006.XML HOLCPC

SEC. 21. EMERGENCY DESIGNATION.(A) has the same meaning as in subsection (a) of the first section of the Clayton Act (15) U.S.C. 12(a)), except that such term includes section 5 of the Federal Trade Commission Act (15 U.S.C. 45), to the extent that such section 5 applies to unfair methods of competition; and (B) includes any provision of State law that is similar to the laws referred to in subparagraph (A).(5) SUNSET

(3) ANTITRUST AGENCY PARTICIPATION(2) EXCLUSIONS(d) ANTITRUST PROVISIONSJustices and judges of the United States are authorized during fiscal year 2009 to receive a salary adjustment in accordance with section 461 of title 28, United States

(2) any existing authority to provide financial assistance or liquidity for purposes of the day-to-day operations in the ordinary course of business or research and development.(b) RECOUPMENT OF PAYMENT OF CLAIMSUpon submission of a report pursuant to section 16(b), the President’s designee shall The The Presidents Designee shall provide to Congress a plan that represents the judgement of the President’s designee as to the steps necessary to achieve the long-term viability, international competitiveness, and energy efficiency of the eligible automobile manufacturer, consistent with the factors set forth in section 6(b), including through a negotiated plan, a plan to be implemented legislation, or a reorganization pursuant to chapter 11 of title 11, United States Code. (a) AUTHORITY TO FACILITATE A NEGOTIATED PLAN.(b) REPORTING ON RESTRUCTURING PROGRESS ASSESSMENT MEASURES(b) GAO REVIEW AND REPORT(3) REPORTING

(e) ADDITIONAL TAXPAYER PROTECTIONS(A) SENIOR EXECUTIVE OFFICER(E) a prohibition on any compensation plan that would encourage manipulation of such automobile manufacturer’s reported earnings to enhance the compensation of any of its employees. [I JUST HATE WHEN THE CONGRESS SMIRKS AND LIES TO THE PUBLIC WITH “BILL LANGUAGE” LIKE THIS – THE CONGRESSPERSON WILL STAND IN FRONT OF THE CAMERAS AND SAY “WE ELIMINATED CEO BONUSES”, JUST LIKE WITH THE WALL STREET FIRMS – THEN THEY LET THEM COLLECT THE SAME BONUSES UNDER OTHER NAMES – SUPPLEMENTAL SALARY PAYMENTS, RETENTION PAYMENTS – WHILE THE FIRMS CLAIM “OH THAT WASN’T BAILOUT MONEY WE USED – AND CONGRESS DOES NOTHING – THIS LANGUAGE WON’T WORK ANY BETTER THAN THE “TARP” LANGUAGE DID](D) a prohibition on such automobile manufacturer paying or accruing any bonus or incentive compensation during the period that the loan is outstanding to the 25 most highly-compensated employees; and(C) a prohibition on such automobile manufacturer making any golden parachute payment to a senior executive officer during the period that the loan is outstanding;(B) a provision for the recovery by such automobile manufacturer of any bonus or incentive compensation paid to a senior executive officer based on statements of earnings, gains, or other criteria that are later found to be materally inaccurate;

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