LJN Newsletters

When AMERCO, the parent company of U-Haul International, emerged from bankruptcy protection in March 2004, it secured an unusual place in history -- exiting Chapter 11 with a global capital restructuring that resulted in zero dilution in shareholder value. Alvarez & Marsal, which was retained as the company's financial advisors, executed one of the most successful restructurings on record by developing and implementing a complex and consensual plan that required significant negotiations with a diverse group of debt and equity holders. By the end of the swift process, AMERCO's common equity value had increased by over 350% and nearly $300 million in value was restored to the investments of preferred stock and unsecured debt holders.

Last month, we discussed the fact that in theory, a borrower's issuance of junior secured debt is a boon for its senior secured lender. In practice, however, we pointed out that a senior secured lender should view proposed junior secured financing skeptically because the existence of such debt can become highly problematic for the senior lender. In Part Two, we continue our discussion, which focuses on additional elements and negotiating points that an inter-creditor agreement should contain.

Highlights of the latest insurance cases from around the country.

On Dec. 6, 2004, a New York federal jury determined that the 9/11 attacks on the World Trade Center involved two "occurrences" under policies issued to leaseholder Larry Silverstein. As a result, Silverstein could get up to $1.1 billion more than if the attacks had constituted a single occurrence.

Insurance policies typically contain provisions requiring prompt notice to the insurance company of an event that could lead to coverage under the policy. There is a well-known split among U.S. jurisdictions as to whether an insurance company can succeed in barring coverage based on untimely notice if it has not suffered prejudice from the timing of notice. The majority and modern trend is for jurisdictions to hold that an insurance company cannot succeed on a late notice defense absent actual prejudice. See, e.g., 1 Barry R. Ostrager & Thomas R. Newman, Handbook on Insurance Coverage Disputes §4.02[c][2] (12th ed. 2004) ("Ostrager & Newman"). A minority of jurisdictions holds that notice can be treated as a "condition precedent"; that is, coverage can be barred based on late notice even in absence of any harm to the insurance company. Id. §4.02[c][1].

The United States spends $1.4 trillion on health care annually, translating to the potential for $300 billion in health care financing. Those are numbers that deserve more than a passing glance. However, according to a recent survey of U.S. health care leasing published by R. S. Carmichael & Co. and the Equipment Leasing Association ("ELA"), Healthcare Equipment Leasing, 2003 U.S. Market Dynamics and Outlook, only 10 companies controlled 85% of this sector.

Equipment leasing remains a viable tool for middle market companies in today's environment. The Equipment Leasing Association of America (the "ELA") estimates that of the $668 billion spent by U.S. business on productive assets in 2003, $208 billion, or 31.1%, was acquired through leasing, and for 2004 the ELA projects that leasing activity will grow to $218 billion, or 30.7 cents of every dollar American businesses will invest in equipment.

A patent pool is composed of two or more patent holders who combine their rights to different patents for the purpose of collectively licensing the patents. Patent pools are typically formed when actual or potential competitors in a technology area group patents to complementary aspects of the technology area. Agreements among actual or potential competitors immediately raise the specter of anticompetitive behavior (such as output restrictions, price fixing, and market division) and the antitrust issues corresponding to such behavior.