Newgen29 Aug 2021 19:26
Hi all
I think it might be helpful to have a look at the wording of the 30 June RNS re the Newgen loan. Here are some key parts of the wording:
“The Company has signed a binding term sheet for a 3-year senior secured loan in the amount of US$20 million subject to customary conditions with Newgen Resource Lending Inc. ("NewGen"), an institutional investor based in Toronto, Canada. The key terms of the secured loan include…
· The loan will be secured by first ranking security over all assets of the Company and its material subsidiaries;
…
The senior secured loan is anticipated to be closed by August 31, 2021.”
Now, what is a “binding term sheet… subject to customary conditions”? Well, “binding” ordinarily means that the parties have made a legal commitment to complete the deal. In that case, Newgen can’t just change their minds because they feel like it - they are “bound” to proceed and can be sued if they don’t.
However, we know that the term sheet is “subject to customary conditions”. What does that mean? Well, “subject to conditions” generally means that if certain particular things happen, or don’t happen as the case may be, then in that particular situation Newgen is not bound to proceed. This may look like it takes away all the comfort we might have derived from the word “binding”, but it doesn’t really because we are told that the conditions are only “customary” ones. I’d have thought that would be things like (i) the drafting of long form documentation, (ii) Rambler having good title to the assets it is giving security over. I don’t think it can realistically include Newgen making a new commercial decision that they want to proceed. Surely not?
The other point to note is that the transaction is only “anticipated” to close by 31 August. Quite hard to know what that means in terms of legal obligations, but on the face of it I don’t think it suggests that there must be a completed transaction by 31 August or else it isn’t happening. On the contrary, it seems to suggest that it could drift a little later without that necessarily being a big issue.
These are just my views. Obviously I haven’t seen the term sheet and am not advising anyone here. But this is how I read it. Anyone disagree?