The Evolution of Material Adverse Effect Provisions in Credit Agreements

Evolution of the Term

That time has long since passed, and asset-based lending is a different animal. Once the exclusive domain of lower middle-market commercial finance companies, ABL is now a key financing product for many money centers and major banks, and it serves some of the largest companies in the United States. Alongside this metamorphosis, the ABL market also has changed. Sponsors draft their own credit agreements and lenders compete furiously for the privilege of deploying their capital. In other words, the standing of borrowers today means that a separate MAE event of default is no longer considered a standard market provision.

Significance of the Term Today

For example, a borrower is generally asked to represent that it has complied with all applicable laws. Even lawyers must admit that the number of federal, state, local and municipal laws and regulations is overwhelming. Accordingly, to focus the parties on the jurisprudence of more critical importance in a particular transaction, the representation is often modified by the phrase “except where noncompliance could not reasonably be expected to have a material adverse effect.”

Notwithstanding all of the foregoing, given its continued presence as a modifier of representations and covenants, the MAE construct retains tremendous vitality and its implications are far-reaching. For that reason, it is important to examine how it may be defined — and where nuances in the several components of the definition should be considered with care — and customized and negotiated for each transaction.

The range and variety of definitions of a MAE in the market are vast. Breaking down some of the components of the definition and the concept generally, the touchstones are on the condition of the borrower and the likelihood that the lender will be repaid in full.¹

Every lender receives projections that are often heavily qualified and may be presented in multiple formats, each with varying utility. However, what happens if something makes those projections look like they obviously will not play out according to plan? The “prospects” component of this definition addresses that change. Nevertheless, determining what a borrower’s prospects look like is a highly subjective matter. Borrowers and their counsel certainly want to avoid a situation where they have authorized a lender to deem the facility in default merely because the lender decides it is starting to feel a little “uncomfortable” about the credit.

Other considerations that may be the subject of negotiation with respect to the MAE definition include the following:

• Is the focus limited to the borrower or does it include every loan party? If all parties are included, is it enough that the MAE affects any one of them, or must a lender make the MAE determination with respect to the obligor group “taken as a whole?” The breadth of these alternatives is negotiated between counsel to the lender and the borrower, the former hoping to cast as wide a net as possible, while the latter hopes to limit the provision to the fewest entities and then only to the extent the whole obligor group is impaired.
• Does the impact on rights and remedies and the likelihood of repayment in full extend to defects in perfection or other factors relating to the value to the lender of collateral security? If so, must the impairment relate to the collateral generally, a material portion of the collateral or something else? In secured, asset-based lending, collateral is everything. From a lender’s perspective, a better formulation of MAE includes impairment of the collateral and any defect in perfection, regardless of its cause.
• Is the formulation limited to individual events, or may a confluence of events in the aggregate give rise to a MAE? Obviously, if a few smaller things can add up to a MAE, the definition has more bite from the lender’s standpoint. The cumulative formulation, however, is more of an exception than a rule.

COVID-19 has driven home an important point about the way MAE provisions work in today’s documents, both in theory and in practice. If a loan agreement included a standalone MAE event of default, then, as a result of the COVID-19 pandemic, the threshold for such a default was about as unambiguously and defensibly crossed as ever. However, because the same scenario was likely equally true for substantially every credit in a lender’s portfolio, most lenders have continued not to invoke this default. Instead, lenders are contending with long relationship histories and the reputational risk of behaving more harshly than their competitors. Accordingly, with the national interest (as well as their own) in mind, lenders have proceeded in a very careful and measured fashion.

So where has that left the definition of MAE as time and COVID-19 go on? Both by way of amendment to existing credit facilities and in connection with the documentation of new financing arrangements, a “COVID-19 proviso” is now a somewhat standard feature of the MAE definition. It applies to address the MAE impact of COVID-19 only on the assets and business of the borrower, rather than on any of the legal issues, such as documentation, collateral, or rights and remedies. It essentially provides, in deciding whether there was a MAE, the lender must ignore effects that “substantially and directly” relate to the pandemic. But, as with all legal provisions, there is a range of approaches and some subtlety.²

Second, how long should the proviso apply? Most of these COVID-19 “free passes” only run through the end of a borrower’s fiscal year 2020, or, in more borrower-friendly versions, through June 30, 2021. Of course, as the pandemic drags on, it would not seem unreasonable that these dates may be extended; only time will tell how this will play out. In any event, the idea is that the proviso should apply only to impacts that happen through a specified date, after which it is expected that COVID-19 will no longer dominate society and the economy.

On a related note, some lenders do not approve of COVID-19 “exceptions” applying for all purposes wherever the concept of MAE is present. For example, more conservative lenders may want to limit the application to those provisions truly impacted by the COVID-19 pandemic, namely, standalone closing conditions and representations stating that as of a particular date, no MAE has occurred. In those lenders’ views, the fact that the pandemic is ongoing should not impact individual representations and covenants that may include MAE qualifications, such as a litigation representation (i.e., that no litigation has occurred that, if determined adversely, could reasonably be expected to have a MAE) or a covenant to comply with payment obligations in respect of taxes (i.e., that the borrower will make all such payments except where the failure to do so could reasonably be expected to have a MAE).

Conclusion