Negotiating the Scope of Non-recourse Carve-outs in Mortgage Loan Documents

While many commercial real estate loans are made without either partial or full payment guaranties, almost all institutional lenders will require a so-called non-recourse carve-out guaranty or indemnity from a deep-pocket person or entity associated with the borrower.  Such a guaranty is often referred to as a “bad acts” or “bad boy” guaranty since it is intended to protect the lender in the event the borrower commits such bad acts as fraud, misrepresentation, misappropriation of rents or security deposits, conveyance of the mortgaged property (or ownership interests in the borrower) in violation of the loan documents, or acquiescence or collusion in a bankruptcy filing.

The most important distinction to draw in connection with such guaranties is whether the guarantor is liable (i) only for any actual loss or damage suffered by the lender as a result of the “bad act” or (ii) for the full amount of the loan in the event a “bad act” occurs.  The difference can be critical for the guarantor.  Let’s say, for example, that the borrower has gone into default on a $10,000,000 loan and has misappropriated tenant security deposits totaling $100,000 which it had been holding under various leases of the mortgaged property.  When the lender forecloses and acquires the property, it will have to come out-of-pocket to return those security deposits to the tenants (assuming the tenants haven’t defaulted under their leases).  Under the more limited carve-out guaranty, the guarantor would owe $100,000 to the lender, but under the more expansive guaranty, the guarantor would become liable for the full $10,000,000 loan and therefore would owe the lender the “deficiency” between the full loan amount of $10,000,000 and the amount the lender receives at the foreclosure sale.  That deficiency could easily amount to several million dollars in this example.

The importance of this distinction is underscored by a recent Michigan Appellate Court decision (Wells Fargo Bank, N.A. v. Cherryland Mall Limited Partnership, No. 304682 (Mich. Ct. App. Dec. 27, 2011)), in which a carve-out guarantor was found liable for the entire mortgage debt due to the borrower’s violation of a covenant that it would remain solvent and pay its debts and liabilities.  Although the borrower had committed no “bad act” other than becoming insolvent when the real estate market crashed, the guarantor now found itself liable for a $2,100,000 loan deficiency after foreclosure.

Different lenders’ form loan documents vary widely, both as to the number of carve-out acts identified, and as to whether the guarantor will be liable only for the actual loss sustained by the lender or for the entire debt.  Some guaranties may list as few as 3 or 4 acts (with fraud, misrepresentation, and bankruptcy among the most common), while others may list as many as 15 or 20 (including, for example, waste of the property, failure to pay property taxes, or failure to uphold lease obligations).  Often the guaranty will put certain acts (misappropriation of rents, failure to pay taxes) in the actual loss category and other acts (unpermitted conveyances, filing bankruptcy) in the full liability category.

It is therefore imperative that borrowers closely examine the specific terms of any non-recourse carve-out guaranty that is presented to them. Some lenders may be willing to negotiate such terms, although others may not.  Clearly it is in the borrower’s interest to attempt to limit the overall number of acts that give rise to liability, and to reduce or eliminate the number of acts that will result in full recourse liability as opposed to limited liability for actual losses suffered by the lender.