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Nonrecourse Carve-Outs and Bad-Boy Guaranties: Negotiating, Enforcing and Litigating These Terms, Avoiding Pitfalls

Avoiding or Resolving Lender and Guarantor Disputes in and Outside of Bankruptcy

Recording of a 90-minute premium CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, January 16, 2024

Recorded event now available

or call 1-800-926-7926

This CLE course will offer corporate finance, bankruptcy and real estate counsel an opportunity to hear about the key aspects of negotiations that lead to the creation of a bad-boy guaranty, and some of the pitfalls each side can run into in these negotiations. The panel will first review commonly used carve-outs in nonrecourse clauses, analyze operative provisions in bad-boy guarantees, and discuss significant court cases. The panel will then discuss the case law that has developed as a result of litigation over the enforceability of the bad-boy guarantees, the defenses that courts have accepted and rejected, and lastly the impact of the bankruptcy of either the direct obligor or the guarantor on the enforceability of the bad-boy guaranty.


Despite many commercial loans being characterized as "nonrecourse," most lenders require that a guarantor with sufficient net worth stand behind certain of the borrower's obligations and representations under the loan. Such guarantors often believe that they are guaranteeing only against affirmative bad acts by the borrower, but lender recourse obligations often go beyond just "bad boy" carve-outs.

Counsel to borrowers and lenders must anticipate the harsh pitfalls in using carve-outs in so-called nonrecourse loans and must understand the operative provisions of the "springing recourse" and bad-boy guarantees.

Listen as our authoritative panel of real estate and bankruptcy attorneys explains legal developments in the use and enforcement of commercial real estate loan guaranties, carve-outs in nonrecourse provisions, and current case law relating to these issues. The panel will also discuss strategies deployed by parties in such litigation and their success on either the enforceability or invalidity of bad-boy guarantees in both state and federal courts, including bankruptcy courts.



  1. Negotiating over the "springing recourse" and bad-boy guarantees
    1. Single-purpose entity/separateness: requirements and violations
    2. Substantive consolidation in bankruptcy
    3. Other
  2. Nonrecourse carve-outs
    1. Carve-outs from A to Z
    2. Environmental indemnities
    3. Recent case law concerning nonrecourse loans
    4. Sample provisions
  3. Litigation over bad-boy guaranties
    1. Enforceability of bad-boy guaranties
    2. Legislation by states affecting bad-boy guarantees
    3. Available defenses to enforceability
    4. Bankruptcy implications on enforceability of bad-boy guarantees


The panel will review these and other relevant issues:

  • What are the types of nonrecourse carve-outs? How should counsel approach them?
  • What are the legal and practical ramifications for the guarantor of a defaulted loan under a carve-out guaranty?
  • What are the principal strategies for resolving disputes involving these provisions?
  • How have these provisions been treated in bankruptcy? What are some strategies for resolving disputes in bankruptcy?


Fisher, Paul
Paul Fisher

Of Counsel
Aronberg Goldgehn Davis & Garmisa

Mr. Fisher concentrates his practice in hospitality law, health care law and commercial real estate. He is general...  |  Read More

Lee, Kyung
Kyung S. Lee

Shannon & Lee

Mr. Lee practices in the area of debt restructuring and corporate reorganizations. He has served as debtor's...  |  Read More

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