Watching Carl Icahn juggle TWA's creditors is like watching a guy on a high wire without a net trying to keep a dozen balls in the air. It's a great show, but you wonder how long he can keep it up.
Icahn, who for years has been openly contemptuous of the people who run America's biggest companies, has been reduced to trying to salvage something from the wreck of his own big company, Trans World Airlines Inc.
TWA stopped paying its bondholders and equipment lessors earlier this month, saying that it has to conserve cash. It owes a lot of money: $2.6 billion or so. TWA also has skipped dividends on its preferred stock, including a large issue that Icahn owns.
TWA, of course, has been on the ropes for a long time. Critics say it's because Icahn loaded the company with debt and refused to buy new, more efficient airplanes. Icahn says that he didn't buy planes because it didn't make sense to and that TWA is in extremis because international air traffic has fallen so sharply that even British Airways is trying to run half-price sales to put fannies in its seats. International traffic has kept TWA aloft, to the extent that it is aloft. "I can't help it if people stop flying," Icahn said in an interview last week.
The fact that Icahn is actually talking about TWA gives you an idea of what he has at risk. A TWA bankruptcy wouldn't send Icahn to the poorhouse, but it would damage his reputation, making it harder for him to do deals in the future. For a dealmaker, that's a serious matter.
Icahn is trying to pull off a very tricky maneuver -- reorganizing TWA's balance sheet without going into bankruptcy court. The idea is to persuade TWA creditors to settle now, for much less than the face value of their claims, or risk being tied up for years in bankruptcy court. Icahn has more wheeling-and-dealing freedom than he would have in a Chapter 11 bankruptcy filing, where everything is subject to scrutiny from creditors and the judge.
"I believe it would be best for everyone concerned if we can keep out of Chapter 11," Icahn said, "because it's very easy to slip into a liquidation once you're already in a bankruptcy."
It would also probably be better for Icahn, both for his ego -- who wants to go down as the guy who crashed TWA? -- and his pocketbook.
Icahn points out that he took all his money off the table when TWA went private in September 1988. As part of that transaction, Icahn, like other TWA shareholders, got $20 a share in cash. Icahn's cash -- $469 million -- was about $25 million more than he had invested in TWA. Icahn also got a batch of preferred stock; other holders got takeover bonds.
But even though he has no money of his own tied up in TWA, if the company goes Chapter 11, Icahn could be out millions of dollars. Why? Because of the laws governing corporate pension funds and something called "joint and several liability."
TWA's pension fund has less money than it needs to meet its obligations -- $60 million less, according to TWA; at least $130 million less, according to the U.S. Pension Benefit Guaranty Corp. (TWA and the PBGC crunch the numbers differently.)
If TWA goes Chapter 11 and the pension agency terminates TWA's pension plan, the agency can come after any member of the so-called "control group" to collect the difference between the shortfall in the pension fund and what the agency collects in the bankruptcy. That's where the "joint and several liability" comes into it.
The control group seems to include the cornerstone of Icahn's empire: ACF Industries Inc., a rail car lessor that owns 90 percent of TWA and a big chunk of USX Corp. stock. While ACF could certainly afford to pay any pension-agency claim, it might take a big chunk out of Icahn's wealth.
Complicating Icahn's attempts to keep TWA out of bankruptcy are his strained relationships with other members of the bankruptcy investment community. In the past few months, Icahn has made high-profile -- and so far, unsuccessful -- investments in bankruptcies and near-bankruptcies. Bankruptcy investors, the junkyard dogs of finance, complain endlessly -- and anonymously -- about Icahn, saying he has messed up restructurings of the Trump Taj Mahal and Western Union Corp., among others, by being an uncooperative bondholder.
The bankruptcy boys are nothing if not macho, and they would love to torment Icahn, just for bragging rights. If Donald Trump had a sense of humor or a few million spare dollars -- he seems to have neither -- he could buy a bunch of TWA bonds and use them to try to do to Icahn at TWA what Icahn is doing to him at the Taj Mahal.
There's more than a little irony in Icahn trying to beat concessions out of bankrupt or near-bankrupt debtors, on the one hand, and trying to bargain with TWA's creditors on the other. "For the next year or so, I'm going to be on both sides of the fence," he says.
If Icahn can keep all the balls in the air long enough for airline assets to turn up in value, he could get lucky. He's bought back some TWA takeover bonds, which might gain some value if he can pay off TWA's debts at a big enough discount. With a lot of luck, even the ultra-junky preferred stock he gave himself in the buyout -- with a face value of some $380 million -- might turn out to be worth something.
But it's going to be hard, if not impossible, for Icahn to pull this off. Even a man who's as smart and tough a negotiator as Icahn is going to have a lot of trouble keeping all the TWA pieces straight and playing the creditors off against each other.
Icahn admits he's having trouble keeping the players, strategies and gambits straight. "This is a tough chess game," he said last week, "the toughest I've ever had."
Allan Sloan is a columnist for Newsday in New York.