Byju’s is sued by its lenders, then sues its lenders

Or how poetic justice can be found outside Shakespeare

Byju’s and its lenders in a fist fight

This is a long post! You can listen to it either by clicking the play button above, or on Spotify or Apple Podcasts.

---

Four years ago I read an article in The Ken (disclosure: I was later employed here) titled The making of a loan crisis at Byju’s. The gist of the story was that Byju’s was an edtech doing phenomenally well selling its digital courses to parents of young students. But these courses were expensive and these parents were poor. So it was also selling them loans to buy these courses. Only, without telling them. Parents would expect a course (which could be cancelled) but would end up with a loan (which couldn’t be cancelled).

Three days ago, Byju’s went to court in New York. Here’s the headline from TechCrunch: Byju’s sues ‘predatory’ lenders on $1.2B term loan, won’t make further payments.

Byju’s is a company that, arguably, made a business out of giving out predatory loans. Now it’s sued its own lenders and accused them of being predatory. I’m not saying that this is poetic justice but.. okay, scratch that. This is poetic justice! If Shakespeare were a finance writer this is the kind of stuff he would come up with.

Everyone wants to lend to Byju’s

In 2021, interest rates were low, loans were cheap. Tech startups were doing great, edtech startups were crushing it. Byju’s, not one to be left behind, had raised a lot of money but money was cheap so it also wanted to borrow. It wanted a $500 million loan from lenders in the US, which it wanted to use to acquire companies there. Instead, it ended up borrowing more than double—$1.2 billion—because lenders practically wanted to throw money at this overachieving edtech startup from India.¹

The way a term loan such as this works is:

1. A company goes to an investment bank and asks for a loan

2. The bank syndicates this loan to investors, who become the lenders. Everyone comes together in a room and negotiates the specifics of the loan (which can be quite complex, as we’ll see)

3. The loan goes through and everyone’s happy. Presumably, the company likes its lenders, the lenders like the company

4. The original investors might sell the loans they own to other investors. The company’s only talking to an administrative agent representing the lenders, so over time it might not even know who its lenders are

In November 2021, prominent investment managers such as Blackstone, Fidelity and GIC had gone overboard to lend money to Byju’s. By September 2022, Byju’s lenders were desperately selling² their loans at a 36% discount on the principal. (Today, Byju’s debt is at a 20% discount, which is also bad.)

It’s likely that Blackstone, Fidelity and other of the OG lenders aren’t Byju’s’ lenders any more. They’ve almost certainly sold off their loans at a loss. Better get paid something than get paid nothing.

Dealers of the dead

If a company’s debt is being sold at a 36% discount, it’s because investors think that the company is unlikely to repay its loans. If you buy such a loan, you potentially stand to gain a lot—because of the discount—but well, you might also just lose everything.

If you’re a regular investment management company, like Blackstone, you don’t want to invest in such a loan. Your investors gave you this money to get predictable returns. If they wanted risk, they’d ask you to buy stocks. You don’t want to get into a fight with your borrower. If you feel they will not pay you back, you take a loss, sell the loans, move on.

If you’re a distressed debt investor, your entire business is to buy such distressed loans from regular investment managers like Blackstone. You’re going to get nasty borrowers who are unlikely to want to repay their loans but that’s okay. Because you’re nasty too. You spend less time on financial models, more in courts and around lawyers. You like to fight to get your money back. Sometimes you might lose, but the times you win, you win big. The wins cover your losses and some more.

Blackstone and the others sold Byju’s’ loans in desperation, and they were almost certainly bought by distressed debt investors. We don’t know who they are exactly, but Byju’s has indicated that one of them is Redwood Capital, a New York-based distressed debt investor.

If you’re a distressed debt investor, this is how it works:

1. You get a loan for super cheap

2. If the company repays its loan, great! You make a lot of money

3. But the company isn’t likely to repay, which is why you got the loan for cheap in the first place

4. So it’s in your best interest to not let the company die a slow death. Instead, you want to kill the company quick. You take the company to court ASAP and take all the money you’re owed while it’s still there

If the new investors waited, say, for a year, and took Byju’s to court after it had actually defaulted on its repayments—there might not be any money left! Byju’s may have given all the money to Lionel Messi or maybe laundered it away someplace the lenders wouldn’t find it. If you’re a distressed debt investor, you want to get Byju’s to court and get the court to force it to do whatever it takes to pay you back.

Last month, Byju’s’ new lenders sued Byju’s in the Delaware Court of Chancery³. We’ll get to the official reasons for this lawsuit in a bit, but what’s important is that Byju’s was not being sued because it defaulted on a payment. It hadn’t. It was being sued because the distressed debt investors expect it to default sooner or later, and they would prefer dealing with it sooner rather than later.

Lenders go for the kill

Usually, the finer details of corporate loans such as Byju’s’ aren’t public. But thanks to the multiple lawsuits we know quite a bit here.

The loan was made to Byju’s’ US entity and it was secured with guarantees from multiple Byju’s companies. From Byju’s’ lawsuit this week against its creditors (which I will get to), here are the guarantors:

1. Byju’s entities in India and Singapore

2. Byju’s’ US and Singapore acquisitions; companies including Oros, Epic, Great Learning, and Neuron

3. Whitehat India, Byju’s’ famous Indian acquisition

That’s a lot of companies guaranteeing a loan! Byju’s’ Indian entity is the parent of all the other guarantor companies, so having it as a guarantor should’ve been enough. I guess the rationale here was that it would be nice to have some non-Indian companies in the mix too, we do know how efficiently Indian courts work.

Apart from Byju’s the parent company itself, Whitehat was the only other Indian company guaranteeing this loan. The problem was that Whitehat itself, on paper, had negative net worth. It had probably taken loans of its own and did not have enough assets to cover them. In practice, this would be irrelevant, because Whitehat was owned by Byju’s and it would cover any of Whitehat’s liabilities. But, apparently, RBI regulations require Indian companies with negative net worth to take its approval before guaranteeing a loan. So even though Whitehat was a guarantor, the guarantee was meaningless until RBI granted its approval.

Yeah, well, RBI didn’t grant its approval. From the lawsuit:

Plaintiffs, Borrower, and Lenders had a call on or around October 6, 2022, to discuss the Whitehat Guarantee. In a good faith effort to negate any impact of the new regulations, Plaintiffs and the Borrower offered to move all assets out of Whitehat India into other subsidiaries of the Parent Guarantor that are Guarantors to the Credit Agreement, or are owned by Guarantors of the Credit Agreement.

Lenders rejected this proposal without justification.

In October 2022, after Byju’s’ debt was already sold to the distressed debt investors, the company spoke to its lenders and informed them that it was unable to get RBI’s approval for Whitehat to be a guarantor. Instead, it offered to move Whitehat’s assets into other companies and then use those companies to guarantee the loan. Which would really have been the same thing. But the lenders refused! Why?!

Continuing from the lawsuit:

Lenders subsequently asserted that an event of default under Section 8.1(e) of the Credit Agreement (an “Event of Default”) had occurred due to the failure to procure the Whitehat Guarantee.

Oh, that’s why. Byju’s’ lenders—distressed debt investors that wanted Byju’s dead ASAP—used the fact that Whitehat couldn’t be a guarantor of this loan to claim a default and use it as a reason to take Byju’s to court in the US. Honestly, I’m impressed. The Whitehat guarantee was redundant to begin with, but the lenders had found an out and their official reason #1 to take Byju’s to court.

Oh, there’s another thing. In June 2022, The Ken reported (disclosure: I once worked here) that Byju’s’ financials for 2021 had been held up by its auditors because of certain, umm, creative accounting. By this time, Byju’s should have ideally filed even its 2022 financials. It was very late! From the lawsuit:

The FY’21 Audit was delivered to the Lenders on August 30, 2022. It did not contain a “going concern” qualification or any similar qualifications about the Parent Guarantor’s ability to continue into the future.

However, the FY’22 Audit could not begin until the FY’21 Audit had been completed, and the Parent Guarantor’s business has continued to grow rapidly

Byju’s’ 2021 financials were held up because auditors weren’t giving the company their go ahead, so of course its 2022 financials were held up as well.

On or around August 29, 2022, Shearman & Sterling, LLP (“S&S”), counsel for GLAS, sent a letter to Byju’s Alpha and Think & Learn requesting certain financial disclosures from Plaintiffs and Borrower, and asserting that the failure to deliver this financial information was a breach of the Credit Agreement.

…

Rather than actually suffering any damage from the delayed FY’22 audit, Lenders opportunistically used this unintentional and non-material delay to exert pressure on Plaintiffs and the Borrower to extract onerous economic concessions.

I love it! Byju’s’ financials were delayed. Its agreement with the original lenders said that the company must share its audited financials with them. Byju’s wasn’t able to do that. The lenders found their official reason #2 to take Byju’s to court.

Byju’s sets up an offence

Before the lenders sued Byju’s last month, Byju’s tried its best to negotiate a deal. It gave the lenders an assurance of the company’s financial health, gave them concessions worth “tens of millions of dollars” and requested (pleaded) to take back their claims of Byju’s defaulting.

The lenders refused. They asked for either the full principal back or two-thirds of it, with an increment of 7% (!!) in the interest rate. Byju’s, of course, said no.

At this point, Byju’s knew that the lenders weren’t going to negotiate realistically. So it prepared its own offence. From the lawsuit:

The Credit Agreement prohibits transfers or assignments of the Lenders’ interests in the Term Loans to “Disqualified Lenders.”

The Credit Agreement includes in its definition of Disqualified Lender “[a]ny [] Person (including an Affiliate or Approved Fund of a Lender) whose primary activity is the trading or acquisition of distressed debt,” and “those banks, financial institutions and other Persons separately identified by name . . . on or before the syndication . . . (which may be updated . . . from time to time . . .)”

In its agreement with the original lenders, Byju’s had put in a clause restricting its loan from being transferred to distressed debt investors. This is a risky clause to agree with, because it’s only these folks that buy loans that turn sour, but the original lenders had gone with it.

On information and belief, the entire course of Lenders’, and Defendant’s, bad-faith conduct has been driven by these distressed-debt lenders, who were never meant to have been lenders in the first place, and who acted with the intent of causing harm to Borrower and Plaintiffs. Meanwhile, Borrowers and Plaintiffs were initially unaware that the lenders were in fact being controlled by distressed debt dealers, and were therefore unable to take action to prevent their bad-faith plan from being implemented.

In its lawsuit this week, the crux of Byju’s’ argument is based on the fact that its loan is owned by distressed debt investors who were not eligible to be owning its debt in the first place. Also interesting is that Byju’s doesn’t seem to know who these lenders are. In its post-lawsuit statement, Byju’s named Redwood as one of the lenders, but it’s not named anywhere in the lawsuit.

Now what?

If push comes to shove, does Byju’s have the cash to pay off its lenders?

Last month, Byju’s transferred $500 million out of its US entity. The lenders had filed their lawsuit and there was a chance the court would freeze Byju’s’ US entity’s assets, so this was a precautionary move. So Byju’s has this $500 million. But that seems about it. Byju’s has been in the news saying that it’s trying to raise $700 million to pay off its debt. Yeah, between the horrible edtech market and the colourful lawsuits Byju’s is in, good luck with getting investors to donate their money to Byju’s.

But of course, Byju’s is now suing its lenders too. It does have an agreement that says that its debt can’t be held by distressed debt investors. So it’s not a frivolous suit.

Can Byju’s win? Sure. It would still have to pay its debt eventually. And it’s not straightforward. There are probably tens or even hundreds of lenders. It’s apparent that the distressed debt investors are the guiding force behind the lenders’ lawsuit, but it’s definitely not necessary that they form the majority of the lenders. In which case, Byju’s’ whole lawsuit falls apart.

The lenders are saying Byju’s defaulted by not keeping its part of the agreement, even though it had technically paid its dues.⁴ Byju’s is saying that the lenders shouldn’t be the lenders in the first place and must be disqualified. We’ll see who’s right.

1. It was a 5-year loan with a floating interest rate of 6% over Libor. Think of it as 6% over this magical interest-rate called Libor that some fancy-pants banks set amongst themselves everyday. Back in November 2021, Libor was at 0.25% and this was a 6.86% interest loan for Byju’s (the floor for Libor was 0.75%). Today, Libor is at about 5.64% and it’s an 11.6% loan.

2. Multiple reasons for the investors to sell. One, interest rates went up and cash became more dear. If they had money stuck with Byju’s, it was money not being lent out to someone else. Second, edtech all around the world was in trouble. Kids were back in school and people didn’t think much of them anymore. Third, Byju’s as a company was showing its red flags.

3. What a cool name!

4. Until now, that is. Byju’s filed its lawsuit this week the same day it was supposed to make a $40 million interest payment, which it skipped.