Here is the essence of a Borrower's ideal nonrecourse clause, including some anti-tortification language. It is followed by 2 1/2 possible definitions of waste. All other capitalized terms are, I am assuming, already properly defined elsewhere. Comments and improvements will be appreciated (off-line if appropriate).

 

 

[Borrower's Nonrecourse Clause]. Nonrecourse, Generally. Except as this Nonrecourse Clause expressly provides [e.g., a carve-out for "Waste"], and except for the obligations of any Personal Obligor under any Personal Liability Document (subject to the terms of such Personal Liability Document) or for any other Personal Liability Amount for which a particular Personal Obligor has assumed liability in writing:

(i) no Exculpated Person shall be personally liable, and Lender shall not commence or prosecute any action against any Exculpated Person, for payment or performance of any Loan Obligation; (ii) Lender shall not seek, obtain, or enforce a deficiency judgment against any Exculpated Person; (iii) Lender's recourse for the Loan Obligations shall be limited to the Property; (iv) Lender shall not be entitled to obtain specific performance or any other order, remedy, or relief against any Exculpated Person relating to any claim arising from the Loan Documents or the Property if compliance with such order, remedy, or relief would directly or indirectly require such Exculpated Person to expend any funds; (v) Lender waives any right to exercise any banker's right of set-off, arising from any of the Loan Obligations, against any funds of any Exculpated Person in Lender's custody, control, or possession; (vi) Lender shall not assert against any Exculpated Person any claim of any kind arising from or relating to the Loan or the Mortgaged Property or the relationship (regarding the Loan or the Property) between any Exculpated Person and Lender, including any claim based upon any "implied covenant of good faith and fair dealing," tort-based theory of liability (such as "waste"), or other theory of any kind whatsoever; and (vii) Lender waives any right to assert against any general partner of Borrower any personal liability of Borrower resulting from the operation of 11 U.S.C.

1111(b)(1)(A) or any equivalent or successor statute.

 

[Lender's Definition of Waste.] ["Waste" means any "waste" of the Property, whether intentional or negligent. "Waste" includes allowing the Property to deteriorate in any manner or to any degree, failure to pay Impositions, and any other act or omission that reduces the value of the Property, including its value as collateral for the Loan.] [NOTE: Lender might prefer to define "Waste" as follows: waste. This leaves open all kinds of opportunities.]

 

[Borrower's Definition of Waste.] ["Waste" means actual intentional physical damage resulting in substantial physical injury to the Property, directly caused by Borrower or a Personal Obligor, that materially reduces the value of the Property and is not cured within days after notice from Lender. "Waste" excludes: (a) failure to pay Impositions; (b) deferral of ordinary maintenance or repairs; (c) entering or failing to enter into or extend any contract or agreement; and (d) any other act or omission that does not directly affect the physical condition of the Property.]