di Leopoldo Esposito, Lawyer at Orrick
Key words: Banking law – Private debt – Minibond – State guarantees
JEL Classification: G21 – K22
TABLE OF CONTENTS: 1. Introduction. 2. Covid-19’s impact on the exceptions to the Guarantee Fund regulations: creditworthiness and bank liability. 3. Minibonds to supplement bank credit. 4. Minibond trend and development. 5. Conclusion.
In order to face some of the effects (on the economic level) of the crisis stemmed from the “Covid-19” health emergency, the legislator has been taking over some instruments already in place in the existing legislation such as the Guarantee Fund for SMEs (Lavecchia, Loschiavo and Leva 2020 ), extending their scope (subjective and/or objective), or reshaping some discipline profiles. This paper dwells on some legal profiles engraved by the new provisions of the “Liquidity Decree” , which derogate from some previous regulations with a view to simplifying them, which puts out of play institutions considered essential and taking a greater interest in banking efficiency and transparency. In fact, the Italian government has responded to the economic crisis caused by Covid-19, through the improvement of some financing methods, especially for SMEs, aimed at reducing the level of indebtedness of the banking system (i.e. deleveraging) (Fornaro, 2018).
In this scenario, it is significant the reform of the so-called Italian Investment Fund for SMEs, which originated from the agreement between the Italian Ministry of the Economy and Finance and the main Italian credit institutions (including Cassa Depositi e Prestiti S.p.A., Intesa Sanpaolo S.p.A., Unicredit S.p.A. and Monte dei Paschi di Siena S.p.A.), as well as other structural finance instruments.
The legislator deemed this reform necessary in order to deal with the sanitary emergency and guarantee national security and citizens’ health. So that the legislator intervened with a series of decrees containing extremely rigorous measures impacting on the Italian’s production system, which have been leading to the paralysis of entire sectors considered not “essential” to the citizens’ survival, counterbalancing them with “economic solidarity” and fiscal measures to support families and businesses affected by the pandemic (Passador, 2020). Given the background, the so-called “Cura Italia” decree (March 17, 2020) containing – among others – some measures to support liquidity through the banking system is noteworthy (Rossano, 2020). The “Cura Italia” decree introduced several provisions aimed at tackling the general economic difficulties of credit intermediaries (Olivieri, 2020), SMEs and private individuals by strengthening, on the one hand, certain institutions already existing in our system (such as the Guarantor Fund for SMEs) and, on the other, by implementing financial support instruments (such as the so-called Gasparrini Fund, regarding solidarity for “first home” mortgages) . Other provisions introduced tax relief with regard to the assignment of non-performing loans receivables (art. 55 Cura Italia decree) and protected financing (credit facilities, non-payment loans, suspension of mortgages, leasing and other financing with repayment by instalments, granted before the end of the instalments repayment) provided before the outbreak of the pandemic in favor of micro, small and medium-sized enterprises, also regulating the enforcement modalities of the State Fund guarantee (art. 56 Cura Italia decree). Another innovation is the “first request” guarantee issued by the State in favor of Cassa Depositi e Prestiti S.p.A., in order to support the businesses liquidity (Rossano, 2020), which was requested by companies suffering economic hardship because of the epidemiological emergency (art. 57 Cura Italia decree) .
In addition, Decree Law no. 23 of April 8, 2020 (Garesio, 2020) (so-called “Decreto Liquidità” ) introduced further provisions to assist distressed companies. The latter – also in order to increase companies’ liquidity – at art. 1 regulates the new guarantee that SACE S.p.A. (Parziale, 2020) provided, until the end of the year 2020 , to banks, national and international financial institutions and other qualified subjects (so-called requesting subjects) providing financing to companies (i.e. the final beneficiaries); “Decreto Liquidità” also introduced some measures aimed at encouraging exports, internationalization and business investment (art. 2 Decreto Liquidità); regulated relations between SACE S.p.A. and Cassa Depositi e Prestiti S.p.A. (art. 3 Decreto Liquidità); established provisions to guarantee the continuity of businesses; suspended the maturity terms of credit instruments (art. 11 Decreto Liquidità); extended the applicability of the Solidarity Fund to “first home” loans mortgages (Gasparrini Fund) also to self-employed workers (art. 12 Decreto Liquidità); specified the characteristics of the Central Guarantee Fund and (modifying what was established in the Cura Italia decree) extended its application to subjects previously excluded.
2. Covid-19’s impact on the exceptions to the Guarantee Fund regulations: creditworthiness and bank liability
Given that the main economic problem caused by the pandemic has been the lack of liquidity, the first and most important measure introduced to face the crisis is certainly represented by art. 49 of the Cura Italia decree, later repealed (and absorbed) by art. 13 of the “Liquidity Decree”, both relating to the so-called Central Guarantee Fund . As announced, this is an instrument of economic support already known to the Italian legislator (and active since 2000), which has SMEs as final beneficiaries and the institutes providing the credits or the confidi as applicants (and recipients of the financial guarantee).
However, the emergency legislation introduced some important new elements in respect to the past. In fact, under an objective profile, the percentages of guarantee coverage are increased , and (in compliance with art. 108 TFEU) the maximum amount guaranteed for each company and the new regulations is classified in relation to three different loan thresholds . From a subjective point of view, the main innovation is represented by the applicability of the new rules also «to physical persons exercising business, arts or professions»” (art. 13, paragraph 1, lett. m), whose activity has been damaged by Covid-19 and, with regard to the beneficiary companies, by the extension of the size requirement. The most impactful aspect of the new rules lies in the beneficiary’s creditworthiness assessment, which is subject to the loan granting. On this point, it should be noted that this assessment had already been subjected, over the years, to several reforms, with regard to both the assessment methods and the assessment procedures (Miola, 2014) in order to allow an increasing number of companies to access financing with the state guarantee (Di Marzio, 2015) . It would also seem reasonable to assume that the emergency rules that allowed companies to more easily access to credit will be preserved for the post-pandemic period. This is particularly relevant with regard to the assessment of creditworthiness and to companies in crisis, but reasonably to be saved . Indeed, the provisions that extend the credit access to companies in crisis somehow anticipate solutions that would deserve to be extended to all new credit facilities concessions to companies whose exposures, at the time of new financing, are no longer distressed.
3. Minibonds to supplement bank credit
Since 2012, aiming at countering the negative outcomes of the 2007 crisis, the Italian legislator has introduced several measures in order to support bank lending activities. The ultimate goal of these measures was to widen the financing channels for Italian SMEs. The two so-called “Decreti Sviluppo” (Law Decree No. 83 of 22 June 2012 and Law Decree No. 179 of 18 October 2012) and the ”Decreto Destinazione Italia” (Law Decree No. 145 of 23 December 2013), aimed at stimulating the economic growth and enhancing competitiveness for small and medium-sized enterprises, made the access to ”unconventional” financial resources, such as bills of exchange (short-term loans) and minibonds (medium to long term loans), easier (Toma, 2015) . Therefore, the legislator’s intention was to contribute to the creation of a regulated market where supply and demand for funding instruments can be met in an efficient and simplified manner. Then, the scope of the legislation is to support smaller companies in finding financial resources on the debt markets. For this reason, the financial system has been starting to connect the private debt market with unlisted SMEs, finding investment opportunities and organising capital flows to the ”new” bond market. The considerable technical dimensions of traditional bond issues, the costs to be incurred and a tax law that penalises unlisted companies had in past excluded SMEs from this channel. Indeed, aiming at increasing the financing possibilities of small and medium-sized enterprises, the Italian legislator has introduced, inter alia, the minibonds (Gervasoni, 2014).
Even though there is no definition of minibond, a minibond can be defined as a medium to long term bond that unlisted companies can use to raise capital, and benefiting from legal, administrative and fiscal advantages similar to those of listed companies. Considering the minibonds’ characteristics, first of all the funding has to be medium-long term (over 36 months), the securities are reserved only to qualified investors (preferably organised through an investment fund) and the exchange can take place on the ”ExtraMot Pro”, a special segment of Borsa Italiana.
Thus, minibond can be identified as a corporate bond (i.e. a so-called corporate debt security) issued by an unlisted company for the purpose of raising alternative finance to the traditional banking channel. Moreover, it should be noted that not even the above-mentioned legislation offers a definition of minibonds, if not through reference to, and modification of, civil and fiscal provisions (Santoro, 2015).
In a nutshell, the legislator wanted to provide incentives – during a particularly critical moment for the Italian banking system and for SMEs’ financing – through the use of alternative credit supply instruments. These incentives concerned in particular civil and fiscal profiles. Concerning the civil profile, the previous system set forth by Article 2412 of the Italian Civil Code – which, among other things, dictates the limits of issue for corporate bonds in terms of maximum amount equal to twice the company’s net equity – provides that limits may be exceeded if the bonds issued by the company are intended to be listed on regulated markets or multilateral regulated markets or multilateral trading or give the right to acquire or subscribe for shares (so-called convertible or redeemable bonds into shares).
The effect of this provision is to offer greater flexibility even for under-capitalised companies rather than to entities not yet capitalized (e.g. newcos in the context of extraordinary operations) (Cortese, Di Nallo and Renzullo, 2016), but which have a creditworthiness towards potential subscribers such as to enable them to make effective use of this instrument of capital supply (Altman, Esentato and Sabato, 2020). On the other hand, from a fiscal point of view, there are some incentives in terms of, among other things, deductibility of interest expense by the issuer, taxation of the issuer, taxation of bondholders’ income and deductibility of the issuing costs.
Minibond is not a tool to support companies in crisis, but a capital market financing opportunity aimed at viable companies, with good performance and precise growth plans, which for various reasons decide to work not assisted by bank credit or, at least, to supplement it with alternative debt instruments. Minibond is addressed in particular to unlisted small and medium-sized capital companies, cooperatives and mutual insurance companies, excluding banks and micro-enterprises (less than 10 employees and annual turnover or balance sheet total not exceeding Euro 2,000,000.00) that have audited at least their last annual accounts (Lupoli, 2019). Regarding disclosure requirements, these can be identified in the fulfilment of four steps: publication of the financial statements audited by the issuer; disclosure of the rating, if any; price sensitive disclosure, with the approval of accounting data including the opinion of the auditing firm and the holders’ rights; finally, the technical information, with the indication of coupons, interest payment dates, amortisation schedules and early maturities. In addition, Article 220.4 of the ExtraMOT Regulation specifically provides for the publication of a prospectus drafted in accordance with European Union provisions no more than twelve months prior to trading admission on the system, or making available a document containing sufficient information for investors to make an assessment of the assets and liabilities, economic financial position and prospects of the issuer, the securities and related rights.
Listing SMEs with their infrastructure debt has provided a bond alternative, allowing attractive returns through illiquidity premiums and solid credit spreads, while offering the reliability of an underlying real asset. However, minibonds should not be interpreted as an alternative to bank lending, but rather as a complementary funding channel (Gervasoni and Lanfranchi, 2015). Moreover, compared to the banking market, minibonds allow the advertising of the company brand on an international scale, widening the audience of potential investors and, therefore, the collectability of the securities. The interest of foreign investors in Italian SMEs (De Chiara and Minguzzi, 2002) is nowadays a trend that has led to increase the number of investors in the sector: what counts is not so much the sector they belong, but the international vocation of the company (Galati, Crescimanno, Rossi, Farruggia and Tinervia, 2014), which has at the same time a professional management, a good reputation and a valid business plan.
Finally, for the sake of exhaustiveness of the minibond legislation, it is necessary to recall the amendments introduced in 2018 and 2019. The “2019 Budget Law” (Law no. 145 of 2018) intervened to amend the rules on PIR (Piani Individuali di Risparmio), introducing minimum restrictions on investments in financial instruments issued by small and medium-sized enterprises and listed on multilateral trading systems (such as AIM Italia and ExtraMOT PRO) and in units or shares of venture capital funds, in order to enjoy tax exemption on income for savers. Unfortunately, the effect has been the flow’s funding interruption. In order to eliminate the abovementioned problem, the “2020 Fiscal Decree” (Law no. 157 of 2019) and the “2020 Budget Law” (Law no. 160 of 2019) intervened by removing the most problematic constraints. In particular, there is now a requirement to invest at least 3.5% of the total NAV of PIR funds in shares and bonds of companies excluded from the FTSE MIB and FTSE Mid Cap indices. In substance, PIR operators are obliged to invest in small capitalisation companies, targeting a universe of companies listed on regulated (MTA or STAR) or unregulated (AIM Italia) markets with a capitalisation of less than Euro 500,000,000.00. Secondly, “2019 Budget Law” also introduced the possibility for equity crowdfunding portals to place bonds issued by SMEs, and therefore minibonds, to professional investors and to particular categories of investors possibly identified by Consob .
4. Minibond trend and development
The minibond industry has been a steadily developing market in recent years. In fact, in 2019 four records were set with respect to the number of issuances , the number of issuers, the number of new companies that placed and funding flow. As of 31 December 2019, as many as 536 Italian companies placed minibonds, 314 of these companies being SMEs (129 of which were first-time issuers). Moreover, the funding was also quite high considering that the total nominal value of minibonds in the analysed sample exceeds Euro 5.5 billion (Euro 1.97 billion considering only the issues made by SMEs) . In the last years, minibond transactions have also seen a steady growth in the advisor’s involvement (Carriére, 2014). The advisor is a consultant entrusted with assisting the company in the early strategic decision, in the analysis of the business plan, the information memorandum and in the definition of the timing and modalities of the issue. Legal advisors play a key role in verifying the formal and compliance aspects with respect to agreements, regulations and loan prospectuses. The arranger is also involved in the placement of the securities on the market, identifying potential investors and fine-tuning the definition of the returns offered. Finally, there is the rating agency, which is another key player in issuing independent judgments on the issuer’s solvency. Another important role is played by agent banks and custodian banks, which assist issuers in the administrative processes related to the dematerialisation of securities and the management of payments.
As far as trends regarding minibonds in 2020 are concerned, it should be noted that despite the ongoing pandemic, this alternative financing instrument has witnessed a consolidation of its market (Broccardo, Erzegovesi and Mazzuca, 2014). In fact, although there has not been a consistent growth in the number of transactions, the covid emergency has strengthened the use of this instrument, for several reasons. Firstly, there is a strong activism by some public bodies, which have adopted strategies to promote minibonds as a tool to encourage companies to make a qualitative leap in their relations with the credit market and with all stakeholders in general . Secondly, there is a growing demand from investors to channel resources into the real economy and SMEs (Lee, Sameen and Cowling, 2015). The appetite for returns is driving funds and managers to an unprecedented focus on illiquid investments. Minibonds, which can also have very short maturities and therefore allow rapid capital divestment/investment, can ideally meet these expectations. Other European countries are also experiencing this trend, where stock exchange listings qualified as SME Growth Markets under the MiFID II Directive are emerging, possibly becoming attractive and competitive destinations for Italian SME securities. Thirdly, the offer of minibonds on equity crowdfunding portals is relevant. Many of them have built up over time an audience of potential retail investors, who may find the minibond asset class interesting. The access limits set by Consob are in fact not so impossible to reach for this type of entities. For all the others, there is confidence in the new cycle of PIR funds and ELTIFs, which will be able to channel a greater proportion of family savings into private capital.
Given that 2019 was a record year for minibonds’ market, the analysis continues on the minibond status in the pandemic year.
Taking a look at 2020, the year of the pandemic, the minibond industry held its ground with a slight decline in the issue number and market funding compared to the record year of 2019. This was due in part thanks to the emergency measures implemented by the State, which took the form of a public programme that included the world of minibonds, through the Guarantee Fund and SACE’s Guarantee Italy . The minibond market seems to have overcome the economic crisis. Issues fell slightly (especially in the first half of 2020) and the capital raising flow is the lowest in the last 4 years (but not significantly). Thanks to targeted projects such as the regional basket bonds, a significant number of ‘new’ SME issuers continued to enter the capital market for the first time in the financial year. Public guarantees have been, and likely shall remain, crucial for 2021 .
Relevant results for 2020 include 671 Italian companies that issued minibonds in 2020; among them, 409 (61.0%) are SMEs. In 2020, there were 176 issuers (131 of which entered the market for the first time), slightly down on 2019. Within issuers, joint stock companies are predominant in 2020 (61.3%), while limited liability companies remain a minority (36.4%) and cooperative companies are only 2.3%. The volume of issuers’ revenues is still very variable: as many as 56 issuers (31.8%) had a turnover of less than € 10 million before the placement. As regards the sector of activity, manufacturing leads (36.4% of the 2020 sample) but trade and professional activities (both at 10.8%) and construction (9.7%) rise. The geographical location of the issuing companies is interesting, with Campania leading the way in 2020 (43 issuing companies) .
In 2020, the minibond issuance has mostly the motivation to finance internal growth of the company (60.5%), then the objective of refinancing financial liabilities in second place (10.4%). Lastly, there is the need to feed the working capital cash cycle (especially for SMEs) and external growth strategies through acquisitions (especially for large companies).
The analysis of consolidated balance sheets focused on 410 SME issuers shows quite diversified situations with respect to operating margins at issuance (with 51 companies with negative EBITDA at the time of placement, 12 in 2019). Regarding the investors that subscribed minibonds, in 2020 Italian banks played an important role (subscribing 41% of the total volumes) followed by private debt funds (20%), which partly diverted to direct lending operations. Foreign funds and banks contributed a total of 15% of minibond issues in Italy, while Cassa Depositi e Prestiti (12%) also played an important role. In a nutshell, the minibond market in 2020 withstood the pandemic. On the one hand, public guarantees have been useful and have played a predominant role for the bond market. On the other hand, the resources made available by Cassa Depositi e Prestiti and the European Investment Fund have been very significant and have facilitated many subscriptions. Banks have also played a fundamental role through the ‘captive’ minibonds originated and subscribed internally. That said, in 2021 several aspects will require attention. It will be necessary to monitor the quality of minibond debt on the basis of 2020 balance sheet data (also in pandemic terms); to evaluate the use of the new PIR and ELTIF regulations to extend the minibond market and to enhance the value of green and social issues.
While acknowledging the importance of alternative financing tools in the real economy nowadays, i.e. the switch performed by SMEs between bank debt and the issuance of bonds, it is worth considering the reasons why alternative instruments such as minibonds are not fully treated by the Italian legislator as bank credit.
It is sufficient to observe that the legislator itself has once again demonstrated, through emergency legislation (Rossano, 2020), that it makes a clear distinction between bank credit and minibonds. In fact, amongst the emergency legislation adopted there is the “Liquidity Decree” that, as seen in the first part of this work, has extended the application of the Guarantee Fund for SMEs, providing, inter alia, simplified access procedures, the enlargement of the number of the guarantee beneficiaries and the increase in the guarantee percentage coverage.
In contrast, the law converting the “Liquidity Decree” (law no. 40 of 2020) did not provide for any explicit mention of minibond portfolios. This prediction necessarily leads two remarks. Firstly, by making this distinction, the legislator implicitly acknowledged a substantial and unreasonable difference between two financing channels (banking and alternative financing, i.e. minibonds), a provision that has no reason to exist. First of all, it was obvious that the Guarantee Fund for SMEs would also apply to minibonds in consideration of the fact that, as an emergency regulation, it is well suited to an instrument created precisely as economic support for the 2007 crisis. In fact, even if the economic crises were generated by two different exogenous factors, they were both (the 2007 crisis and the 2020 crisis) characterised by a liquidity shortage and, therefore, it appears reasonable to assume that in order to face them, the measures to be adopted should be, if not identical, at least similar.
On the one hand, by providing for the application of the Fund’s guarantee «as well as the guarantees on portfolios of minibonds», in the “Liquidity Decree” the legislator widened the relative application also to this class of debt issues. On the other hand, regardless of the explicit reference in the “Liquidity Decree” to minibond portfolios, in general the provisions of the “Liquidity Decree” are so broad as to allow the applicability of the State guarantee to many forms of financing (minibonds included).
Secondly, the minibond instrument was created to meet the SMEs’ liquidity needs as part of the reforms carried out by the technical governments (Decreto Sviluppo and Decreto Destinazione Italia).
Therefore, it is a form of financing that fits ex se the Guarantee Fund for SMEs which, according to Article 1 of the “Liquidity Decree” «is granted in favour of banks, national and international financial institutions and other subjects qualified to the credit exercise in Italy, for financing in any form to enterprises ».
That said, it is unclear why the legislator in the “Liquidity Decree” explicitly stated the application of the Guarantee Fund for SMEs (Braga and Galimberti, 2020) also to loans granted through minibonds. In fact, it appears unnecessary to specifically include minibonds as a form of financing eligible for the Guarantee Fund for SMEs, since the “Liquidity Decree” itself provided for the application «to financing in any form to business».
On the one hand, this could be a mere material error (or an over-regulation case); on the other hand, it could be read as an attempt to qualify bank credit with respect to alternative forms of financing, determining an exclusive preference for funding through minibonds over any other form of lending. If it were the latter, it would at least be appropriate to provide clarification in this regard and to envisage ad hoc legislation to achieve the ultimate goal of all the alternative financing tools (and not only minibonds): increasing the liquidity of SMEs. However, this business support must also be achieved by equalising, if not necessarily in terms of form, then at least in terms of substance, all alternative forms of financing, so as to increase competition and thus also financial improvements for SMEs.
Furthermore, taking a look at the law converting the “Liquidity Decree” (law no. 40 of 2020), it’s worth to emphasise certain provisions that highlight the legislator’s intention to restrict the applicability of this regulation only to certain qualified financing. In fact, it is possible to identify some additional requirements for the application of the State guarantee.
Among others, article 1-bis law no. 40 of 2020 on one hand introduced the applicability of the guarantee «insofar as compatible, also to assignments of receivables», but on the other hand provided that «a non-regulatory decree of the Minister of Economy and Finance may establish implementation and operating procedures as well as additional elements and requirements for the execution of the transactions referred to in this paragraph». Moreover article 1-ter of the conversion law provided that «the guarantees for loans referred to in this article shall in any event exclude companies which directly or indirectly control, pursuant to Article 2359 of the Civil Code, a company resident in a country or territory which is not cooperative for tax purposes, or which are directly or indirectly controlled, within the meaning of Article 2359 of the Civil Code, by a company resident in a non-cooperative country or territory for tax purposes.» as well as «(i) the company benefiting from the guarantee undertakes, […], shall not endorse the distribution of dividends or the repurchase of shares during the year 2020». Also with regard to the eligibility of the State guarantee, article 2 of the conversion law provided for the extension of certain conditions for its granting – in this sense, for example, letter n (as qualified in the conversion law) and letter n-bis (Rossano, 2020). This is essentially a constraint on the destination of the guarantee that was already provided in the “Liquidity Decree” and that has been extended in the conversion law.
Furthermore, article 14-bis provides some other restrictions (also in comparison with Article 13 of the “Liquidity Decree”) for the granting of the State guarantee (through SACE). In fact, it provided that «in order to ensure the necessary liquidity to the companies indicated in paragraph 1, SACE S.p.A., until 31 December 2020, grants guarantees […] in favour of banks, national and international financial institutions and other entities that subscribe in Italy bonds or other debt securities issued by the aforesaid companies that have been assigned a rating of at least BB- or equivalent by a leading rating agency».In addition, Article 14-ter of law n. 40 of 2020 provides that «in the case of bond issues organised by entities other than banks, national and international banks, national and international financial institutions or other entities authorised to grant credit, the issuing undertaking shall provide SACE S.p.A. with a certificate attesting that, as at 29 February 2020, it was not present among the impaired exposures of the banking system, according to European Union regulations».
Lastly, the general perception resulting from the comparison between the “Liquidity Decree” and its conversion law consists of a broad willingness by the legislator to reduce the type of financing eligible for the state guarantee. In fact, the legislator, with so many restrictive formulas, seems to be backtracking, trying to better qualify the guarantee application. Indeed, it could be considered unreasonable to restrict the applicability of the law only to certain forms of financing, bearing in mind that, nowadays, companies are in great need of liquidity and that this could be granted more easily if guaranteed by the State.
The conversion law therefore leads to some perplexity (as regards the ratio of the legislator’s choices) and a summary assessment of a (partially) wasted opportunity.
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