On Wall Street, there is the art of the deal. In Detroit, there is the deal of the art.
As Detroit prepares to defend its plan next week to exit bankruptcy, city leaders have received an unusual offer: Why not mortgage all the Van Goghs, Picassos and other works in the Detroit Institute of Arts? A company called Art Capital, which makes loans backed by artwork, has told the city it is willing to lend it up to $3 billion, roughly 10 times the exit financing Detroit is now contemplating, using the museum’s art as collateral.
The city’s response: silence.
Detroit already has plans for the art. Donors have promised hundreds of millions of dollars to put the collection under new ownership — safe from the bankruptcy creditors — and to help the city’s retirees. Detroit had a big hole in its pension fund when it declared bankruptcy last year, which made the retirees unsecured creditors, subject to painful cuts.
By rolling up the art and pensions in a single deal, known as the grand bargain, Detroit hopes to keep its treasured collection intact while also getting more money to the retirees.
But there is a problem: The grand bargain may be illegal. Bankruptcy law calls for equally ranked creditors to be treated the same way, yet the grand bargain would, in the view of some creditors and critics, effectively sell the art to a bankruptcy-proof entity at a below-market price, then steer all proceeds to the retirees, leaving other unsecured creditors in the lurch.
Detroit is poised to go to court on Tuesday to begin urging a judge to approve this deal, which has been backed by unions, retiree groups and pension funds, many of which agreed to cuts to avoid even deeper ones. The most vocal opponents are creditors that would receive the least relief under the city’s plan.
Art Capital’s proposal makes the case, indirectly, that the court should reject the plan — which would force the city back to the drawing board and could imperil fragile agreements.
“The museum is owned by the city, and the city is, in fact, in bankruptcy. That asset lawfully should be available to assist in the plan of exit,” said Ian Peck, Art Capital’s chief executive. “But we also believe that this art is a national treasure and should be preserved as such.”
That, he explained, is why his firm would lend against the art instead of trying to sell it. Under his proposal, the art would still be Detroit’s as long as the city made good on the loan. The interest rate would be reasonable because the collateral — the art collection — has such tremendous value: $8.1 billion, according to an appraisal Art Capital commissioned.
“We believe that our proposal strikes a balance between the realities of the situation,” Mr. Peck said.
Details of Art Capital’s proposal came from a term sheet, marked “proprietary and highly confidential,” that was provided to The New York Times by a person opposed to the grand bargain. Terms were said to be subject to negotiation, but the city will not negotiate.
“The city supports and is committed to the grand bargain,” said Bill Nowling, a spokesman for Detroit’s emergency manager, Kevyn D. Orr. “I am sure there are many suggestions on how the D.I.A. collection can be monetized, but outside of the grand bargain, such discussions are academic.”
To exit bankruptcy, Detroit has requested proposals for a loan of up to $300 million that would be secured by the city’s income taxes. Mr. Nowling said that the responses were still being studied and that information about the final amount and other terms would not be available until after the trial had started.
Art Capital is proposing a loan that would range from $500 million to $3 billion, which could be cut up into different maturities and repayment schedules. Interest rates would be based on the benchmark rate known as Libor plus 5.5 to 8.5 percentage points, which analysts say would be reasonable for a bankrupt city that is preparing to repudiate some of its debt. Art Capital’s supporters say its loan would have the advantage of not tying up an essential city tax stream in the event of a default because it would be heavily collateralized by the artwork.
Both loan options would be repaid by the city’s revenue streams, like income, property and casino taxes.
Art Capital, a firm that made headlines four years ago for a troubled loan to the photographer Annie Leibovitz, first appeared in the Detroit bankruptcy last April, when one of the city’s bond insurers, the Financial Guaranty Insurance Company, offered the names of several parties who were interested in the art collection. Financial Guaranty is slated to receive one of the worst settlements of the bankruptcy and has been trying to show that the grand bargain is not the only game in town.
On Tuesday, it and another bond insurer, Syncora Guarantee, were ordered by Detroit’s bankruptcy judge, Steven W. Rhodes, to work with the bankruptcy’s chief mediator on their many objections to the way Detroit hopes to handle their claims.
Most of the “expressions of interest” that Financial Guaranty received were from prospective buyers, but Art Capital proposed an art-backed loan of just $2 billion at the time. Mr. Peck said it was impossible to set precise terms without a credible appraisal. At that point Judge Rhodes gave Financial Guaranty limited permission to work with the museum on an appraisal.
Perhaps the most striking thing about Art Capital’s current proposal is the appraisal. It covers some 60,000 works, spanning in time from Mesopotamia to Mark Rothko and representing cultures from around the world. In addition to extensive Islamic, African, Chinese and Native American art, there are European masterpieces by Bruegel, Cézanne and Matisse, among others, and a unique gallery where the walls are covered with murals by Diego Rivera, depicting auto manufacturing.
“It is one of the country’s few encyclopedic art museums,” wrote Victor Wiener, who runs an appraisal firm, in the report commissioned by Art Capital.
It was completed on July 25, just days after the creditors’ votes on Detroit’s exit plan were tallied. A majority of the city’s retirees voted to accept the plan. For many, it was a wrenching decision because the money available through the grand bargain would not make them whole. The donations coming from philanthropic organizations, companies and the state add up to $816 million, spread over 20 years.
Just before the creditors’ votes were due, Detroit presented its own estimate of the collection’s value, by Artvest Partners, an art investment firm. It found that, while the collection might be worth $2.8 billion to $4.6 billion, Detroit would never get that much on the market. Such a huge sale would flood the market, driving down prices, and Detroit’s bankruptcy might turn off serious investors, Artvest said.
For those reasons, Artvest estimated that a liquidation might fetch as little as $850 million — a figure not too far off the grand bargain amount. If retirees were still sitting on the fence at that point, the conclusion may have helped them decide how to vote.
Mr. Wiener’s appraisal surfaced only after the voting, but gives a much different view. In addition to finding that the art was worth $8.1 billion, or nearly double the high end of Artvest’s range, it lists what appear to be flaws in Artvest’s thinking.
Far from steering clear of a sale of Detroit’s collection, it said, art buyers would come flocking because the works were assembled at a time when Detroit was booming and able to attract curators of worldwide renown.
“Collectibles from museums and other significant collections perform much better at auctions than similar objects lacking notable provenance,” Mr. Wiener wrote, citing many examples.
Detroit has filed a motion with the court to have Mr. Wiener rejected as an expert witness.
David Skeel, who teaches bankruptcy law at the University of Pennsylvania, said that while the new appraisal left many questions unanswered, it served as a challenge to Detroit’s numbers on the eve of the trial.
“It’s extraordinary that you’d have appraisals that are this far apart,” he said.
That does not mean curtains for the grand bargain, said James E. Spiotto, a bankruptcy lawyer who consults with cities. But the vastly different art numbers could be a signal for Detroit to slow down and give its exit strategy the straight-face test.
“Remember, there’s a great impetus, as you get to the end of a Chapter 9 bankruptcy, to confirm the plan,” he said. “But more important than confirming the plan is doing the right thing.”