Banking / Insurance
Current Legal Issues Arising from Banking and Financing Arrangements
In August 2020, Diagoe Plc’s Nigerian entity announced that it was struggling to refinance a $23 million debt and trim costs following a shortage of dollars in the local-foreign exchange market. While the lack of access to greenback (dollar) remains a growing concern for borrowers in Africa, the downturn in the revenue and profits as a result of COVID-19 has recently become a more prevalent cause for the inability of many borrowers to fulfill their contractual obligations.
The disruption of supply chains, compulsory quarantine, and social distancing regulations are a few examples of the effect of COVID-19 which in turn have materially caused economic instability and affected the ability of borrowers to meet their financial obligations. There is therefore a need for lenders and borrowers to critically consider the implications of the current economy on their financial obligations.
This article highlights some key implications the current financial terrain may have on borrowers’ businesses and their ability to comply with their contractual obligations. The article further sets out recommendations for lenders and borrowers who are faced with the task of funding and repaying loans under respective financing arrangements. While there are numerous impacts of the resultant effect of COVID-19 on covenants in finance documents, this article highlights only a few of such key legal consequences on financial obligations.
Financial Conditions and their Implication on Covenants in Finance Documents
Generally, financial covenants in a loan agreement are undertakings given by the borrower to test the performance of the business servicing the loan and to help the lender ensure that the risk attached to the loan does not unexpectedly deteriorate prior to maturity. These performance covenants may cover the borrower’s business both back or forward to assess whether the business is showing any signs of distress that could potentially affect its financial obligations under the finance documents.
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However, as a result of the steps taken to combat the COVID-19 pandemic, many businesses have seen a severe and abrupt drop in income which has affected the ability of businesses to meet some performance covenants.Where these covenants have been breached as a result of the pandemic, the lenders may declare a default under loan documents and demand early payments of loan which acts as a drawstop, such that the borrowers will not have access to their facilities. A drawstop event means a breach by the borrower of a financial covenant which gives the lender the right to refuse to make further loan advances under a facility agreement.
In light of the foregoing difficulties that both lenders and borrowers may face in these uncertain times, the following paragraph sets out practical solutions that may be explored by the parties.
Legal Considerations for Borrowers and Lenders
With the current unpredictability of the financial markets, it is important that borrowers and lenders conduct a critical review of their current loan documents to verify the implications of COVID-19 on their rights and obligations. Most importantly, borrowers have to fully disclose to their lenders the current situation of their businesses, highlighting any potential breach before it happens helps to build trust and to enable the lenders to have a clear picture when deciding if they will be willing to adjust financial obligations in line with the current realities of the economy and take into consideration some practical solutions set out below.
First, parties may agree to re-negotiate and subsequently amend their financial covenants, taking into consideration the impact of COVID-19 on the borrower’s ability to comply with their financial covenants. For instance, certain definitions in the finance documents may no longer reflect the current realities of the borrower’s business, such as EBITDA which is used as a metric for thelast four fiscal quarter periods of earnings before interest, taxes, depreciation, and amortization to measure the company’s financial performance.
Thus, where the EBITDA has been affected as a result of the pandemic an amendment to its substance will be an appropriate step in order to reflect the current financial condition of the borrower. Other re-negotiation may be in relation to compliance with certain conditions provided under the finance documents.For example, a facility agreement may include provisions requiring the borrower to fulfil certain further conditions precedent before it can access additional funding under the relevant facility.
It usually includes confirmation that:
(i) no Event of Default or a potential Event of Default has occurred and is continuing; and
(ii) the repeating representations are true in all material
respects, in each case, as at the date of the utilisation request and the proposed utilisation date.
In such instances, parties may either amend the provisions or the borrower may request that the lender grant waivers in the event that such conditions will not be fulfilled.
Another consideration that the borrower may explore (subject to the fulfillment of any available conditions or if waivers are granted by the lender) is utilizing any undrawn commitment under its existing facilities. Although, it has been highlighted above that material breaches of covenants may give right to the lender torefuse to provide additional funding, it may be in the interest of lenders to provide same. This is because additional funding may positively impact the borrower’s business and in turn improve the lender’s chances of full debt recovery.
Finally, parties may consider undertaking a full restructuring of the financing by re-negotiating substantial terms and entering into restructured facility documentation which may capture relaxation of financial covenants, obtaining a moratorium on interest payment obligations, all necessary requirements, amendments, waivers, and consents required by the borrower. Essentially, the restructured facility documentation is drafted on much better terms that reflect the current financial conditions and commercial needs of the borrower.
Conclusion
The global COVID-19 pandemic has no doubt placed a strain on the ability of some businesses to service their debts under finance documents. While many governments especially in developed countries have granted some aids, this may not be enough especially for companies in certain industries that have been seriously hit by the pandemic. The situation is even worse in undeveloped markets where there is little or no support from government. Thus, it is unavoidable that re-negotiation and restructuring are considerations that will likely be put forward by borrowers to avoid triggering defaults under their finance document during these unprecedented times.
It is advisable that lenders on the other hand, are more flexible with their approach with their borrowers and are willing to work around re-negotiating the financial covenants with the borrowers given the current uncertainties arising in the economy.
Written By: Bukola Adelusi recently completed her LL.M in corporate law at Western University, Ontario. Prior to her LL.M, she practiced with a top-tier law firm in Nigeria, where she specialized in banking and finance, M & A and private equity.
L-R: Lady Margaret Moore, President, Africa Insurance Women Association and Dr. Awele V. Elumelu OFR, Chairperson, Heirs Insurance Brokers and Avon HMO (Photo: Supplied)
At the recently concluded International Conference for Women in Insurance, Dr. Awele V. Elumelu, OFR, Chairperson, Heirs Insurance Brokers (a member of Heirs Insurance Group) and Chairperson Avon HMO, joined other female business leaders in the call for gender parity and more women in leadership in Nigeria’s insurance industry.
Held at the Lagos Continental Hotel, the conference was organised by the African Insurance Women Association (AIWA) and gathered industry professionals, policymakers, and advocates to discuss ways to advance women’s participation in insurance and at the helm of leadership.
Heirs Insurance Group played a key role as lead sponsor as part of its vision to drive gender inclusion across all levels.
In her keynote address, “The Future of Insurance: Trends, Challenges, and Opportunities,” Dr. Elumelu emphasised that female leadership is both a strategic advantage and an ethical imperative.
She said: “The urgency to bring more women into this field is clear. Women bring fresh perspectives and empathy, and these are essential for designing inclusive, people-centred solutions.”
Dr. Elumelu highlighted the low insurance penetration of the African insurance industry, currently below 3%, as a significant growth opportunity. She stressed the potential of digital solutions and microinsurance to enhance accessibility and inclusion.
She said: “With our young, tech-savvy population, we have a unique chance to build products that truly resonate with Africans, especially through mobile technology, which can help reach underserved communities and foster financial literacy among younger generations.”
She concluded by calling for stronger public-private partnerships to foster regulatory innovation and enhance customer trust, saying: “A collaborative approach between industry players, regulators, and local communities will set the stage for a resilient and inclusive insurance sector that can drive economic growth across Africa.”
Speaking at the conference, Lady Margaret Moore, President of the Africa Insurance Women Association, stated, “This landmark event, the first of its kind, brings together African women in insurance to empower and inspire one another. The conference aims to foster connections, share knowledge, and promote collaboration across the industry.”
Heirs Insurance Group is the insurance subsidiary of Heirs Holdings, the leading pan-African investment company, with investments across 24 countries and four continents. With a rapidly expanding retail footprint and an omnichannel digital presence, Heirs Insurance Group serves both corporate and individual customers across Nigeria.
aYo Chief Operations Officer, Miles Bloemstein and Revio’s co-founder and Chief Operating Officer, Nicole Dunn
African insurtech aYo Holdings, jointly owned by telecommunications giant MTN and insurer Sanlam Allianz, is pioneering omnichannel insurance premium collections and claims payouts, through a partnership with payment orchestrator, Revio. This development will make it easier for aYo’s millions of customers to pay for life and hospital cash insurance by choosing their preferred method from a range of locally relevant payment options, in addition to MTN mobile money and airtime currently offered by aYo in its seven markets across the continent.
The additional payments capabilities, facilitated via Revio in its respective markets, will allow aYo to offer greater choice to existing and new clients, boosting both sales and retention.
Miles Bloemstein, aYo’s Chief Operations Officer, who is championing the omnichannel payment strategy was inspired by the growth in alternative payment methods and adoption across the continent. While Africa’s digital payment transactions are growing 16% year-on-year – and are projected to reach $146 billion in 2023 – the continent’s payment landscape is notoriously complex and fragmented, with few universal and interoperable payment methods available.
“Localisation of payments and collections is key to business success in Africa. Our team has spent significant time in our different markets to understand local payment preferences and cultures, and the feedback is clear – payment methods matter. If customers do not see the payment methods they trust and prefer, they will not buy the product.,” said Bloemstein. Whilst MTN payment options remain the core of its strategy, aYo believes omni-payments, in addition to omni-channel delivery, is key to success in its digital insurance ecosystem.
Revio’s co-founder and Chief Operating Officer, Nicole Dunn, shared, “It’s fantastic to see market leaders like aYo adopting such a customer-centric approach to collections and payments. Today, the customer payment experience is almost as important as the customer experience of the product. aYo’s team deeply understands its customer base and has invested in the capabilities to reach new customers and retain them for longer. We’re excited to support them on this journey.”
Revio, which recently raised $5.2 million in funding from leading investors QED Investors and Partech, aims to reduce the complexity, cost, and risk of payment operations in Africa. Its single API is pre-integrated with more than 50 payment methods, with the ability to selectively expose methods and route transactions based on success rates and local adoption.
“Africa’s collection challenges are complex and unique. By helping aYo collect revenue from its customers using their preferred payment methods, we not only increase payment success rates, but reduce lapse rates and churn,” said Dunn.
The partnership will reduce aYo’s integration effort to launch new markets, and ongoing operational cost associated with managing multiple payment methods and providers. It is estimated that it will save at least 10 months’ development effort per market. In the process, aYo will reduce integration and setup costs considerably through a single integration project for all of the company’s existing markets.
The partnership is live in Nigeria and will soon be launching in aYo’s other markets. Not only will aYo customers have access to more localised and accessible payment methods for premium collections, but also payouts. Together with Revio, aYo has solutioned a new payouts process that offers multiple payout options to customers for the payment of claims, giving customers and beneficiaries options in respect of how they receive their claim payout, shared Bloemstein.
Since starting operations in 2017, aYo has evolved into a major player in the African microinsurance market, using a ‘pay as you go’ insurance model that gives policyholders the flexibility to have the cover they need at any given time. Its vision is to grow into the largest insurance technology platform in Africa by providing a range of affordable and accessible financial services products
Microinsurer aYo Zambia has launched a new General Illness Cover product, which will provide cover for customers who spend up to three days in hospital because of sickness or disease, as it looks to drive greater insurance penetration in the country.
The new illness cover is an extension of the company’s existing ‘Recharge with Care’ product, which provides hospital cover for customers if they are involved in an accident.
“To date, more than 3.5 million Zambian consumers have purchased cover to protect themselves against hospitalisation in the event of injury, or loss of life,” said aYo Zambia CEO Andrew Nkolola. “But many of our customers have been asking us: ‘How will we deal with the financial blow of falling ill? We don’t want benefits only when we’re in an accident.’ We realised it was a huge gap in the market and have responded accordingly.”
Nkolola says aYo Zambia is committed to contributing to the growth of insurance in the country. Earlier this year, Finance Minister Situmbeko Musokotwane expressed his concern over Zambia’s low insurance penetration levels, which leaves millions of Zambians without cover if a disaster strikes.
When it first launched in Zambia, aYo offered hospital and life cover to individuals through two insurance products, ‘Send with Care’ and ‘Recharge with Care’. A growing market demand for insurance for the whole family prompted the company to create the new Family Cover product last year, which allows policy holders to add up to seven people, including themselves.
Now, the new General Illness Cover adds a further layer of protection that helps ordinary Zambians stay afloat when the unexpected happens. It pays up to K3,250 if a policyholder is hospitalised through illness.
As with aYo’s existing products, General Illness Cover customers must maintain active Mobile Money (MoMo) accounts to pay premiums and claim. Customers can sign up and claim by dialling the USSD code *296# on their mobile phones and following the prompts. They can also claim using ayo4u.com/zm. All Family Cover claims are paid directly to the claimant’s mobile money wallet without any hassles.
aYo Zambia has been voted best microinsurance product of the year for both 2021 and 2022.
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