Those of us who have been
handling commercial real estate financing transactions for a long time can
almost mentally track the evolution of these carve-outs – which started out as
“if the place burns down and you steal the insurance money and go to Mexico” and
evolved into a long laundry list of things that you can do to trigger personal
liability for what, on its face, is a non-recourse loan.
My guess is that there
are a lot of cases in the judicial system – not yet decided or reported –
testing whether these provisions are enforceable. I happened to see a recent
case out of New Jersey – CSFB 2001-CP-4 Princeton Park Corporate Center, LLC
v. SB Rental I, LLC, 980 A.2d 1 (N.J. App.Div. 2009) – in which the
appellate court held that a bad boy/carve-out provision was enforceable.
The case involved a $13
million non-recourse loan that contained carve-outs for, among other things,
entering into subordinate financing secured by the subject property without the
lender’s consent. During the term of the loan, the borrower obtained $400,000 in
subordinate financing secured by a second lien on the property without the first
mortgage holder’s consent. In less than a year, the borrower paid off this
secondary financing but ultimately defaulted on the primary loan. After
completing a foreclosure on the property, the lender brought suit against the
borrower and the borrower’s principals (who had executed guaranties) for the
deficiency. The defendants argued that the carve-out was unenforceable since,
among other things, the lender had suffered no harm, as the secondary lien had
already been satisfied.
In the trial court, the
lender was granted summary judgment against the borrower and the borrower’s
principals, who then appealed. The appellate court affirmed the grant of summary
judgment, finding that the carve-outs were unambiguous and part of a commercial
transaction negotiated by sophisticated parties. Furthermore, the fact that the
default was later cured did not alter the fact that the bad boy provisions had
already been triggered, potentially affecting the property and adversely
affecting the lender’s security therein.
The court’s decision
seemed to turn on the level of sophistication of the parties and the fact that
the default was a voluntary act. Also, the damage, or potential damage, to the
lender’s interest was clear. On the other hand, the more recent laundry list of
bad boy provisions often includes such acts as seeking bankruptcy protection or
contesting the appointment of a receiver during a foreclosure – actions that are
arguably statutory rights (federal or state) and may be looked at differently
than a simple contract violation.
I am almost certain that
cases challenging the validity of those types of provisions will be litigated,
and I am curious to see what the result will be.
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