TARP Rule Could Mean Retroactive Limits, Executive Salary Caps

By Linda Shen

Dec. 19 (Bloomberg) -- Regional lenders, insurers and financial companies clamoring to get into the Treasury’s $700 billion rescue fund may not know what they actually signed up for until long after they’ve pocketed the money.

As financial firms race against a Dec. 31 deadline to become eligible for federal funds, they must decide if they can live with rules allowing the U.S. to “unilaterally amend” any part of its Troubled Asset Relief Program securities-purchase agreement. Bank officers and trade groups asked the government to delete the “open-ended obligation,” said Mark Tenhundfeld, regulatory-policy director at the American Bankers Association.

“It’s inconsistent with safe and sound banking practices,” Tenhundfeld said in an interview. “Treasury is saying, in essence, ‘Sign up, but we can’t tell you exactly what you’re signing up for.’”

The government could increase the dividend it’s being paid for preferred shares, require caps on executive compensation or force banks to halt foreclosures, said David Baris, executive director for the American Association of Bank Directors, in a Nov. 3 letter to Treasury Secretary Henry Paulson. At least 148 regional lenders received preliminary approval for more than $61.7 billion in TARP funds, according to data compiled by Bloomberg. Another $13.4 billion may be doled out to 45 other companies.

“This provision grants carte blanche for this or any other Congress to change any of the terms of the agreement,” said Baris. “Congress could do just about anything it wanted.” Some lenders that can qualify for TARP might not participate because of the amendment, he said.

Declined Government Funds

More than 30 banks refused to sell preferred shares and warrants to the government under TARP. Joe Conners, chief financial officer of Philadelphia-based Beneficial Mutual Bancorp Inc., said his bank declined TARP money in part because of the amendment.

“You’re signing a contract with a counterparty, and the counterparty in this case is going through a complete management change,” Conners said in an interview. “You’re basically signing away your right to have any kind of remedy if in fact they do change the rules.”

Publicly held financial firms have until year-end to gain bank or lender holding company status to qualify for TARP money, the Treasury said on its Web Site. Closely held companies have until Jan. 15.

Under TARP, the government set aside $250 billion to recapitalize banks. It allocated $125 billion to nine larger firms, then invited banks, lenders, and any other company that could claim bank or savings and loan status to apply for the balance.

‘Lots of Deals’

Banks participating in TARP aren’t commenting on the amendment, and Tenhundfeld said it’s “unlikely” the amendment will be changed. Calls to Treasury spokeswoman Jennifer Zuccarelli weren’t returned.

The government has “already entered into a lot of deals that have that provision in there,” Tenhundfeld said. “They would have to go back and amend those agreements to limit their flexibility.”

Conners said the government wants to avoid facing lawsuits as it did amid the savings and loan crisis of the 1980’s. More than 120 lawsuits were spawned by a 1989 law that wiped out the value of a paper asset known as supervisory goodwill, sending many savings and loans into insolvency. The government won most of the suits, and fewer than 20 are still active.

“The government changed the rules after the fact,” Conners said. “Now they’ve learned their lesson. They’ve put it in writing.”

Astoria Financial

Astoria Financial Corp., the biggest New York-based savings and loan, in October lost its appeal to the U.S. Supreme Court asking for a reinstatement of a $436 million award it won after the supervisory goodwill case. The Lake Success, New York-based lender on Dec. 8 received approval to sell the government a $375 million stake and said it was weighing “costs and benefits” before deciding whether to participate. Spokesman Peter Cunningham didn’t return calls for comment.

Fifth Third Bancorp, which is selling a $3.5 billion stake to the government, declined to comment, spokeswoman Debra DeCourcy said. Minneapolis-based U.S. Bancorp, which got $6.6 billion from Treasury and bought failed savings and loans Downey Financial Corp. and PFF Bancorp, wouldn’t comment, said company spokesman Steve Dale.

“Nothing in the form documents has caused PNC to change its decision” on TARP, PNC Financial Services Group Inc. spokesman Fred Solomon said in an e-mailed statement. The Pittsburgh-based bank sold the government $8.8 billion in preferred shares and warrants and agreed to acquire National City Corp. in October.

Only banks and lenders with the “luxury” of being able to turn down money would have been dissuaded by the amendment, said Sean Ryan, an analyst with Sterne Agee & Leach Inc. in New York.

“Most banks look at it and say, ‘If we’re going to get hosed we’re going to get hosed, and whether or not we get the TARP money is not going to save us,’” he said. “As opposed to in the 1980s, at least this time they’re being considerate enough to tell you up front.”

To contact the reporter on this story: Linda Shen in New York at lshen21@bloomberg.net