About the Course
Introduction
This CLE course will offer 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 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.
Description
Despite many commercial loans being characterized as "nonrecourse," most lenders require that a guarantor with sufficient net worth stand behind certain 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.
Presented By
Mr. Fisher concentrates his practice in hospitality law, health care law and commercial real estate. He is general counsel to an international hotel company. Mr. Fisher represents clients in the acquisition, sale, leasing and financing of hotels, medical facilities, office buildings, and retail properties. He works extensively on the restructuring of commercial debt and commercial ventures, purchase of commercial debt, private equity transactions, bank regulatory matters and multiemployer pension fund liability. Mr. Fisher has also served as an expert witness in a variety of matters related to commercial lending and HUD regulation.
Mr. Lee practices in the area of debt restructuring and corporate reorganizations. He has served as debtor's counsel for companies in the airline, real estate, oil and gas, communications, healthcare, distribution, manufacturing and convenience store industries. He has also represented lenders, creditors, creditors' committees and investors involved in workouts and Chapter 11 reorganizations as well as litigating on behalf of the various parties. He has extensive experience working closely with senior management and financial advisors on valuation of enterprises and assets and development of turnaround and restructuring business plans.
Ms. Sherwin is a health care attorney with a wide range of experience representing hospitals, long-term care providers, nursing homes, and other health care providers with respect to litigation, regulatory, compliance, and transactional matters. Her career achievements earned her recognition as Chicago's 2024 Lawyer of the Year in Litigation - Health Care by Best Lawyers in America. Ms. Sherwin's litigation experience includes serving as lead counsel in state and federal actions involving Medicaid, Medicare, the Illinois State Prompt Payment Act, the False Claims Act, and state and federal agencies, including a U.S. Supreme Court class-action suit on behalf of Illinois Medicaid providers challenging Medicaid reimbursement practices.
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
-
Date + Time
- event
Monday, January 26, 2026
- schedule
1:00 p.m. ET./10:00 a.m. PT
I. Negotiating over the "springing recourse" and bad-boy guarantees
A. Single-purpose entity/separateness: requirements and violations
B. Substantive consolidation in bankruptcy
C. Other
II. Nonrecourse carve-outs
A. Carve-outs from A to Z
B. Environmental indemnities
C. Recent case law concerning nonrecourse loans
D. Sample provisions
III. Litigation over bad-boy guaranties
A. Enforceability of bad-boy guaranties
B. Legislation by states affecting bad-boy guarantees
C. Available defenses to enforceability
D. 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?
Related Courses
Contracts for Deed: Survey of State and Federal Laws, Benefits and Risks, Trends and Developments
Tuesday, January 6, 2026
1:00 p.m. ET./10:00 a.m. PT
Structuring Revolving Lines of Credit for Multiple Property Portfolios
Available On-Demand
