““Material adverse effect" is a standard that is often employed in the softening of contract provisions. It is often used in more than one provision in a contract, and as a result may be separately defined: "Material adverse effect" means any material adverse effect on the Borrower’s business, assets, liabilities, prospects or condition (financial or otherwise). In order to fall within the ambit of this definition, the matter in question must be both material and adverse to the party. Materiality is a subjective concept; a change that would be reasonably likely to affect the other party’s evaluation of the transaction will generally be viewed as material. The change must also be adverse. Obviously, if it’s a change for the better, it isn’t covered. The definition refers to the areas where the material adverse effect has occurred: the party’s business, assets, liabilities, financial condition and prospects. Let’s look at examples of each of these. The loss of a customer that represented 40% of the borrower’s earnings would have a material adverse effect on its business. An uninsured casualty loss in respect of the borrower’s primary manufacturing plant would have a material adverse effect on its assets. The entering of a judgment against the borrower for damages in an amount equal to its total annual sales would have a material adverse effect on its liabilities. A loss of sales resulting in a diminution in cash flow that impairs the borrower’s ability to pay its operating expenses would have a material adverse effect on its financial condition. Lastly, the development of proprietary technology by a competitor that allows it to produce goods at a more favorable price may have a material adverse effect on the borrower’s prospects, because it may be forced to reduce its profit margins. Inclusion of the word "prospects" as a component of the definition of material adverse effect is almost always a point of contention. The party to whom the material adverse effect standard is applicable will argue that the use of prospects gives the other party too much room to speculate about the future impact of an event. The other party will argue that its counterparty’s future condition and performance is important to it, and the party should not be required to wait until a reasonably foreseeable bad result has occurred before having any remedies. Closely related to material adverse effect is material adverse change, referred to colloquially as "MAC.””
