Will try keep this as simple as i can. Had some thoughts about this JR2, not saying i am right i simply do not have the information.
What we know
- ACL & ACL 2006 own the head lease and extension, before & after the share deal. Yes Wasps Holdings own ACL but they are separate companies under the same control (heard that before havent we)
- There is a lease extension granted to ACL not Wasps Holdings and the judges have made that the focus of the JR2
- SISU/ccfc believe the value of the head lease and extension is roughly the same as the Strutt & Parker bond valuation at £48m
- SISU/CCFC have their own experts to back up their valuation but not not a valuation for May 2015 but October 2014 when the shares were sold.
- The argument is that the extension of the lease was inextricably linked to the share sale and it should all have been marketed differently. ie SISU should have been offered similar terms and had first bite (or at least been allowed to compete- what were they doing for seven years?)
- they want Wasps to pay 29m more to the CCC and then compensation to SISU because they missed out
- The judges have allowed things to proceed subject to mediation first
thats the major points isnt it.
There seems to be a fixation on the Wasps bond valuation used as security to the bond issue. But to my way of thinking what it is worth to Wasps is not necessarily what it was worth to CCC & AEHC in October 2014. There could be a difference on the value of the lease extension, there might not be. You see part of the increase in the lease valuation could be due to the 50 year licence the Rugby club has from ACL to be play there - that couldn't have and didn't exist before Wasps bought ACL. Do the Net Present Value calculation of say a rent of £500k (a guess) at 4% discount and that licence adds around £11m to the lease value. So that would seem to account for part of the difference. Of course a major sports tenant also enhances other income streams for ACL derived through its subsidiary IEC a joint venture with Compass to run the events etc. I again do not have the exact figures but an increase in revenue from the site for the next 50 years of the licence would increase the lease value wouldnt it?
As for the bond security well that is based on current valuers opinions and in any case SISU are arguing the value should have been £48m from the start. The threat to Wasps is if they have to find significant funds to make additional payments. But as i said earlier assets can move around groups easily, its happened before in this dispute, and the leases are owned by ACL & ACL2006 so they in theory would be liable for the extra payments should they have to be met. The court could say the lease was worth more in October 2014 how does that change a valuers opinion in 2015 or 2017
In any case it is not the value to Wasps in May 2015 that is important, because that wasn't known in October 2014. A judicial review is a review of what was known at the time and the process to get there. The value of the lease and extension was how much both were worth to CCC at October 2014 that is where any potential loss to the public purse is not in a Wasps later valuation. The head lease had been paid to CCC already and had brought in £21m and ACL accounts showed a lease value of just over £18m. That leaves the extension. Now i would argue the value of extension, what ever it was, is the CCC value of such a lease extension to ACL as it was under CCC/AEHC - a company short of funds, not profitable, and needing major funding to carry on or to be invested in capital projects. That in its self should suggest a somewhat lower value than £30m (wasps paid £1m). Did ACL have a medium term let alone a long term future?
A method of valuing lease values is to calculate the Net Present Value of income streams derived from the lease. So at the date of share sale that would be some discounted value of the income streams agreed to be paid in 43 years time wouldn't it. CCC had already been paid the first 50 years. Could CCC have derived such income without Wasps or CCFC being there? CCFC were not committed long term, only 4 years at an artificially low rent. Wasps were not committed unless they owned it. So ACL were left with what they had, a business struggling to make ends meet and in need of investment. That business of course effectively runs out and the business stops after 50 years. So perhaps a peppercorn rent kicks in and the value of that creates a NPV calculation of extended lease value
Now i have always argued that the original lease was too short and that has contributed greatly to this mess. Had ACL had a 125 year lease them they could have financed things easier and importantly granted CCFC a 100 year lease so securing the club future and value. ACL would have needed less income to meet its commitments and therefore would not have needed to charge as high rent. There would still have been a reasonable rent to pay, at least to start with until CCFC sorted their finances out (dreaming perhaps!), but there would have been options and the prospect of ownership that others like Wasps would not have got a sniff of.
So grant ACL the lease extension before selling the shares is the suggestion. Nice idea but then we get in to State aid again at a time that SISU were looking for any opportunity to distress ACL - they were not worried about ACL surviving in fact they wanted ACL gone. The extension would have had to be valued and the purchase price seen to be paid, i would think it would have been hard for ACL to raise the £1m let alone the £29m+ demanded by SISU as being the value of the extension. You see the accounting entries have to work, not just the state aid law, value the extension at £1m upwards creates loans and liabilities plus a potential for increased interest charges that increase losses, and decrease cash flow of a business in a rocky place already. Accounting entries would be to create a value equally matched by a liability because ACL had no spare cash - which means the same share price. The value of the extension to ACL would be the value Wasps would have to pay for it, which effectively would be repaying the associated loans.
Market the shares and extension. Still yet to be convinced that this means advertise it far and wide, JR2 should tell us if the process was correct or not. But that is what a judicial review is about - a test of process. Which is why i find the judges insistence on mediation curious - you do not mediate process. I dont know about anyone else but i do not see mediation working to avoid a JR2 - they havent gone to court about the various disagreements they went to court over the valuation of the share deal and lease extension.
The Charity shares. There seems to be a focus on CCC being due an extra £29m so does that mean the Charity is due similar or is it caveat emptor (buyer beware). You see put the lease extension in to the value of ACL and that value is split 50:50. Only ACL & ACL 2006 can have the extension. Or are we saying that it is two separate deals?
Mediation - now everything is on the table with two months to clear it all. It took that to get a simple rent deal! Mediation implies compromise, as Ms Seppala once said "I don't do compromise I tell people what I want". Not a positive attitude with the gulf in perception and values between the parties
This court case all seems very muddled to me. I dont think mediation will work but mediate what exactly. If mediation is not focussed on particular issues then it very often becomes hopeless. I think most people hold little hope of its success. In any case were not the judges asked to consider the lease extension not all of the various other issues. Mediation should cover everything it seems including future civil claims and planning permission on sites the club doesnt have or own, it is to me setting it up to fail.
Did anyone else get the impression that the courts didnt seem to understand a lot of things. I can only think they are waiting for clarity at the JR2 or the elusive missing bundles and everything so far has been procedural and ticking boxes. Just my opinion of course. This is a muddle and a mess and that suits one party.
I dont have a problem with things being challenged by a JR....... just get on with it