Exhibit 10.2


 


GUARANTY


 


This GUARANTY is made and entered
into by CRIIMI MAE Inc., a Maryland corporation, whose address is 11200
Rockville Pike, Suite 400, Rockville, MD 20852 (“Guarantor”), for the
benefit of Deutsche Bank AG, Cayman Islands Branch, a branch of a foreign
banking institution, whose address is 60 Wall Street, 10th Floor,
New York, New York  10005 (“Buyer”).  This Guaranty is made with reference to the
following facts (with some capitalized terms being defined below):


 


A.                                   Seller
and Buyer have entered into that certain Master Repurchase Agreement, dated
June 30, 2004 (the “Repurchase Agreement”), pursuant to which the Buyer
may, from time to time, purchase, Securities from the Seller (the
“Transactions”);


 


B.                                     Buyer
has requested, as a condition of entering into the Repurchase Agreement, that
the Guarantor deliver to Buyer this Guaranty;


 


C.                                     Guarantor
is an Affiliate of Seller;


 


D.                                    Guarantor
expects to benefit if Buyer enters into the Repurchase Agreement with Seller,
and desires that Buyer enter into the Repurchase Agreement with Seller; and


 


E.                                      Buyer
would not enter into, and would not be obligated to enter into, the Repurchase
Agreement with Seller unless Guarantor executed this Guaranty.  This Guaranty is therefore delivered to
Buyer to induce Buyer to enter into the Repurchase Agreement.


 


NOW, THEREFORE, in
exchange for good, adequate, and valuable consideration, the receipt of which
Guarantor acknowledges, and to induce Buyer to enter into the Repurchase
Agreement, Guarantor agrees as follows:


 


1.                                       Definitions.  For purposes of this Guaranty, the following
terms shall be defined as set forth below. 
In addition, any capitalized term defined in the Repurchase Agreement
but not defined in this Guaranty shall have the same meaning in this Guaranty
as in the Repurchase Agreement.


 


(a)  “Guarantied Obligations” means (a)
10% of Seller’s obligation to pay the Repurchase Price with respect to the
Eligible CRIIMI Securities due under the Repurchase Documents at the times and
according to the terms required by the Repurchase Documents, without regard to
any modification, suspension, or limitation of such terms not agreed to by
Buyer, such as a modification, suspension, or limitation arising in or pursuant
to any Insolvency Proceeding affecting Seller (even if any such modification,
suspension, or limitation causes Seller’s obligation to become discharged or
unenforceable and even if such modification was made with Buyer’s consent or
agreement); and (b) to pay all reasonable sums expended by Buyer or Buyer’s
designee or nominee acting on Buyer’s behalf in exercising Buyer’s rights and
remedies to enforce this Guaranty, including Buyer’s Legal Costs relating
thereto.  Notwithstanding anything to
the contrary herein, Guarantied Obligations shall not include


 


 

















 


Seller’s obligation to pay all or any portion of the
Repurchase Price with respect to the Eligible GNMA Securities.


 


(b)  “Insolvency Proceeding” means any
case under Title 11 of the United States Code or any successor statute or any
other insolvency, bankruptcy, reorganization, liquidation, or like proceeding,
or other statute or body of law relating to creditors’ rights, whether brought
under state, federal, or foreign law.


 


(c)  “Legal Costs” means all reasonable
costs and expenses incurred by Buyer in any Proceeding to enforce this
Guaranty, including reasonable attorneys’ fees, disbursements, and other
reasonable charges incurred by Buyer’s attorneys, court costs and expenses, and
reasonable charges for the services of paralegals, law clerks, and all other
personnel whose services are charged to Buyer in connection with Buyer’s
receipt of legal services.


 


(d)  “Buyer Entity” means, as designated
by Buyer from time to time, Buyer or Buyer’s assignee, designee, nominee,
servicer, or wholly owned subsidiary.


 


(e)  “Repurchase Documents” means: (a) the
Repurchase Agreement, as defined in the recitals; (b) any other Transaction
Documents or other documents or instruments relating to any such Transaction
Documents executed by Seller or Guarantor; and (c) any modifications,
extensions, renewals, restatements, or replacements of any of the foregoing,
whether or not consented to by Guarantor. 
If the Repurchase Documents, as so defined, are modified pursuant to any
Insolvency Proceeding, then (whether or not such modification was made with
Buyer’s consent or agreement) Buyer may, at Buyer’s option, deem the definition
of Repurchase Documents either (1) to have been modified to reflect any such
modification, or (2) to continue as it was, without regard to any such
modification.


 


(f)  “Proceeding” means any action, suit,
arbitration, or other proceeding arising out of or relating to the enforcement
of this Guaranty.


 


(g)  “Security” means any security or
collateral held by or for Buyer for the Transactions or the Guarantied
Obligations, whether real or personal property, including any mortgage, deed of
trust, financing statement, security agreement, and other security document or
instrument of any kind securing the Transactions in whole or in part.  “Security” shall include all assets and
property of any kind whatsoever pledged or mortgaged to Buyer pursuant to the
Transaction Documents.   Notwithstanding
anything to the contrary herein, “Security” shall not include the Eligible GNMA
Securities.


 


(h)  “Seller” means: (a) Seller as defined
above, acting on its own behalf; (b) any estate created by the commencement of
an Insolvency Proceeding affecting Seller; (c) any trustee, liquidator,
sequestrator, or receiver of Seller or Seller’s property; and (d) any similar person
duly appointed pursuant to any law governing any Insolvency Proceeding of
Seller.


 


(i)  “State” means the State of New York.


 


2.                                       Absolute
Guaranty of All Guarantied Obligations.  Guarantor unconditionally and irrevocably guarantees Seller’s
prompt and complete payment, observance and fulfillment of all Guarantied
Obligations.  Guarantor shall be liable
for, and obligated to pay,


 


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all Guarantied Obligations.  All assets and property of Guarantor shall be subject to recourse
if Guarantor fails to pay and perform any Guarantied Obligation(s) when and as
required to be paid and performed pursuant to the Repurchase Documents.


 


3.                                       Nature and
Scope of Liability. 
Guarantor’s liability under this Guaranty is primary and not
secondary.  Guarantor’s liability under
this Guaranty shall be in the full amount of all Guarantied Obligations.


 


4.                                       Changes in
Repurchase Documents. 
Without notice to, or consent by, Guarantor, and in Buyer’s sole and
absolute discretion and without prejudice to Buyer or in any way limiting or
reducing Guarantor’s liability under this Guaranty, Buyer may: (a) grant
extensions of time, renewals or other indulgences or modifications to Seller or
any other party under any of the Repurchase Document(s), (b) change, amend or
modify any Repurchase Document(s), (c) authorize the sale, exchange, release or
subordination of any Security, (d) accept or reject additional Security in
accordance with the terms of the Repurchase Agreement, (e) discharge or release
any party or parties liable under the Repurchase Documents, (f) foreclose or
otherwise realize on any Security, or attempt to foreclose or otherwise realize
on any Security, whether such attempt is successful or unsuccessful, in
accordance with the terms of the Repurchase Agreement (g) accept or make
compositions or other arrangements or file or refrain from filing a claim in
any Insolvency Proceeding, (h) make other or additional loans to Seller in such
amount(s) and at such time(s) as Buyer may determine, (i) credit payments in
such manner and order of priority to obligations as Buyer may determine in its
discretion; provided such credits shall be consistent with the requirements of
the Repurchase Agreement, and (j) otherwise deal with Seller and any other
party related to the Transactions or any Security as Buyer may determine in its
sole and absolute discretion.  Without
limiting the generality of the foregoing, Guarantor’s liability under this
Guaranty shall continue even if Buyer alters any obligations under the
Repurchase Documents in any respect or Buyer’s or Guarantor’s remedies or
rights against Seller are in any way impaired or suspended without Guarantor’s
consent.  If Buyer performs any of the actions
described in this paragraph, then Guarantor’s liability shall continue in full
force and effect even if Buyer’s actions impair, diminish or eliminate
Guarantor’s subrogation, contribution, or reimbursement rights (if any) against
Seller, or otherwise adversely affect Guarantor or expand Guarantor’s liability
hereunder.


 


5.                                       Nature of
Guaranty.  Guarantor’s
liability under this Guaranty is a guaranty of payment of the Guarantied
Obligations, and is not a guaranty of collection or collectibility.  Guarantor’s liability under this Guaranty is
not conditioned or contingent upon the genuineness, validity, regularity or
enforceability of any of the Repurchase Documents.  Guarantor’s liability under this Guaranty is a continuing,
absolute, and unconditional obligation under any and all circumstances
whatsoever (except as expressly stated, if at all, in this Guaranty), without
regard to the validity, regularity or enforceability of any of the Guarantied
Obligations.  Guarantor acknowledges
that Guarantor is fully obligated under this Guaranty even if Seller had no
liability at the time of execution of the Repurchase Documents or later ceases
to be liable under any Repurchase Document, whether pursuant to Insolvency
Proceedings or otherwise.  Guarantor
shall not be entitled to claim, and irrevocably covenants not to raise or
assert, any defenses against the Guarantied Obligations that would or might be
available to Seller, other than actual payment of all Guarantied Obligations in
full in accordance with their terms. 
Guarantor waives any right to compel Buyer to proceed first against
Seller or any Security before proceeding against Guarantor.  Guarantor agrees that if any of the
Guarantied


 


3

















 


Obligations are or become void or unenforceable
(because of inadequate consideration, lack of capacity, Insolvency Proceedings,
or for any other reason), then Guarantor’s liability under this Guaranty shall
continue in full force with respect to all Guarantied Obligations as if they
were and continued to be legally enforceable, all in accordance with their
terms before giving effect to the Insolvency Proceedings. Guarantor also
recognizes and acknowledges that its liability under this Guaranty may be more
extensive in amount and more burdensome than that of Seller.  Guarantor waives any defense that might
otherwise be available to Guarantor based on the proposition that a guarantor’s
liability cannot exceed the liability of the principal.  Guarantor intends to be fully liable under
the Guarantied Obligations regardless of the scope of Seller’s liability
thereunder.  Without limiting the
generality of the foregoing, if the Transactions are “nonrecourse” as to Seller
or Seller’s liability for the Transactions is otherwise limited in some way,
Guarantor nevertheless intends to be fully liable, to the full extent of all of
Guarantor’s assets, with respect to all Eligible CRIIMI Securities’
Transactions, up to the Guaranteed Obligations, even though Seller’s liability
for the Obligations may be less limited in scope or less burdensome.  Guarantor waives any defenses to this
Guaranty arising or purportedly arising from any waiver of the terms of any
Repurchase Document by Buyer or other failure of Buyer to require full
compliance with the Repurchase Documents. 
Guarantor’s liability under this Guaranty shall continue until all sums
due under the Repurchase Documents with respect to the Eligible CRIIMI
Securities have been paid in full, except as expressly provided otherwise (if
at all) in this Guaranty.  Guarantor’s
liability under this Guaranty shall not be limited or affected in any way by
any impairment or any diminution or loss of value of any Security whether
caused by (a) hazardous substances, (b) Buyer’s failure to perfect a security
interest in any Security, (c) any disability or other defense(s) of Seller, or
(d) any breach by Seller of any representation or warranty contained in any
Repurchase Document.


 


6.                                       Waivers of
Rights and Defenses. 
Guarantor waives any right to require Buyer to (a) proceed against
Seller, (b) proceed against or exhaust any Security, or (c) pursue any other
right or remedy for Guarantor’s benefit. 
Guarantor agrees that Buyer may proceed against Guarantor with respect
to the Guarantied Obligations without taking any actions against Seller and
without proceeding against or exhausting any Security.  Guarantor agrees that Buyer may
unqualifiedly exercise in its sole discretion (or may waive or release,
intentionally or unintentionally) any or all rights and remedies available to
it against Seller without impairing Buyer’s rights and remedies in enforcing
this Guaranty, under which Guarantor’s liabilities shall remain independent and
unconditional.  Guarantor agrees and
acknowledges that Buyer’s exercise (or waiver or release) of certain of such
rights or remedies may affect or eliminate Guarantor’s right of subrogation or
recovery against Seller (if any) and that Guarantor may incur a partially or
totally nonreimbursable liability in performing under this Guaranty.  Guarantor has assumed the risk of any such
loss of subrogation rights, even if caused by Buyer’s acts or omissions.  If Buyer’s enforcement of rights and
remedies, or the manner thereof, limits or precludes Guarantor from exercising
any right of subrogation that might otherwise exist, then the foregoing shall
not in any way limit Buyer’s rights to enforce this Guaranty.  Without limiting the generality of any other
waivers in this Guaranty, Guarantor expressly waives any statutory or other
right that Guarantor might otherwise have to: (i) limit Guarantor’s liability
after a nonjudicial foreclosure sale to the difference between the Guarantied
Obligations and the fair market value of the property or interests sold at such
nonjudicial foreclosure sale or to any other extent, (ii) otherwise limit Buyer’s
right to recover a deficiency judgment after any foreclosure sale, or (iii)
require Buyer to exhaust its Security before Buyer may obtain a personal
judgment for any deficiency.  Guarantor
acknowledges and agrees that any nonrecourse or exculpation 


 


4

















 


provided for in any Repurchase Document, or any other
provision of a Repurchase Document limiting Buyer’s recourse to specific
Security or limiting Buyer’s right to enforce a deficiency judgment against
Seller or any other person, shall have absolutely no application to Guarantor’s
liability under this Guaranty.  To the
extent that Buyer collects or receives any sums or payments from Seller or any
proceeds of a foreclosure or similar sale, Buyer shall apply such amounts in
accordance with the terms of the Repurchase Agreement.  Without limiting the foregoing, any amounts
collected by Buyer with respect to the Eligible CRIIMI Securities shall be
applied against the Eligible CRIIMI Securities, and Buyer shall not have the
right to apply such amounts first to that portion of Seller’s indebtedness and
obligations to Buyer that is not covered by this Guaranty.


 


7.                                       Additional
Waivers.  Guarantor waives
diligence and all demands, protests, presentments and notices of every kind or
nature, including notices of protest, dishonor, nonpayment, acceptance of this
Guaranty and the creation, renewal, extension, modification or accrual of any
of the Guarantied Obligations.  Guarantor
further waives the right to plead any and all statutes of limitations as a
defense to Guarantor’s liability under this Guaranty or the enforcement of this
Guaranty.  No failure or delay on
Buyer’s part in exercising any power, right or privilege under this Guaranty
shall impair or waive any such power, right or privilege.


 


8.                                       No Duty to
Prove Loss.  To the extent
that Guarantor at any time incurs any liability under this Guaranty, Guarantor
shall immediately pay Buyer (to be applied on account of the Guarantied
Obligations) the amount provided for in this Guaranty, without any requirement
that Buyer demonstrate that Buyer has exercised (to any degree) or exhausted
any of Buyer’s rights or remedies with respect to Seller or any Security.


 


9.                                       Full
Knowledge.  Guarantor
acknowledges, represents, and warrants that Guarantor has had a full and
adequate opportunity to review the Repurchase Documents, the transaction
contemplated by the Repurchase Documents, and all underlying facts relating to
such transaction.  Guarantor represents
and warrants that Guarantor fully understands: (a) the remedies Buyer may
pursue against Seller and/or Guarantor in the event of a default under the
Repurchase Documents, (b) the value (if any) and character of any Security, and
(c) Seller’s financial condition and ability to perform under the Repurchase
Documents.  Guarantor agrees to keep
itself fully informed regarding all aspects of the foregoing and the
performance of Seller’s obligations to Buyer. 
Buyer has no duty, whether now or in the future, to disclose to Guarantor
any information pertaining to Seller, the Transactions or any Security.  At any time provided for in the Repurchase
Documents, Guarantor agrees and acknowledges that an Insolvency Proceeding
affecting Guarantor, or other actions or events relating to Guarantor
(including Guarantor’s death, disability, or change in financial position), as
set forth in the Repurchase Documents, may be event(s) of default under the
Repurchase Documents.


 


10.                                 Representations
and Warranties.  Guarantor
acknowledges, represents and warrants as follows, and acknowledges that Buyer
is relying upon the following acknowledgments, representations, and warranties
by Guarantor in making the Transactions:


 


(a)  No Conflict.  The execution, delivery, and performance of this Guaranty will
not violate any provision of any law, regulation, judgment, order, decree,
determination, or award of any court, arbitrator or governmental authority, or
of any mortgage, indenture, loan, or security agreement, lease, contract or
other agreement, instrument or 


 


5

















 


undertaking to which Guarantor is a party or that
purports to bind Guarantor or any of Guarantor’s property or assets.


 


(b)  No Third Party Consent Required.  No consent of any person (including creditors
or partners, members, stockholders, or other owners of Guarantor) is required
in connection with Guarantor’s execution of this Guaranty or performance of
Guarantor’s obligations under this Guaranty (other than consents that have been
obtained).  Guarantor’s execution of,
and obligations under, this Guaranty are not contingent upon any consent,
license, permit, approval, or authorization of, exemption by, notice or report
to, or registration, filing, or declaration with, any governmental authority, bureau,
or agency, whether local, state, federal, or foreign.


 


(c)  Authority and Execution.  Guarantor has full power, authority, and
legal right to execute, deliver and perform its obligations under this
Guaranty.  Guarantor has taken all
necessary corporate and legal action to authorize this Guaranty, which has been
duly executed and delivered and is a legal, valid, and binding obligation of
Guarantor, enforceable in accordance with its terms.


 


(d)  No Representations by Buyer.  Guarantor delivers this Guaranty based
solely upon Guarantor’s own independent investigation and based in no part upon
any representation, statement or assurance by Buyer.


 


11.                                 Reimbursement
and Subrogation Rights. 
Except to the extent that Buyer notifies Guarantor to the contrary in
writing from time to time:


 


(a)  General Deferral of Reimbursement.  Guarantor waives any right to be reimbursed
by Seller for any payment(s) made by Guarantor on account of the Guarantied
Obligations, unless and until all Guarantied Obligations have been paid in full
and all periods within which such payments may be set aside or invalidated have
expired.  Guarantor acknowledges that
Guarantor has received adequate consideration for execution of this Guaranty by
virtue of Buyer’s entering into the Transactions (which benefits Guarantor, as
an owner or principal of Seller) and Guarantor does not require or expect, and
is not entitled to, any other right of reimbursement against Seller as
consideration for this Guaranty.


 


(b)  Deferral of Subrogation and Contribution.  Guarantor agrees it shall have no right of
subrogation against Seller or Buyer, no right of subrogation against any
Security unless and until in Buyer’s reasonable determination: (a) such right
of subrogation does not violate (or otherwise produce any result adverse to
Buyer under) any applicable law, including any bankruptcy or insolvency law;
(b) all amounts due under the Repurchase Documents have been paid in full; (c)
all periods within which such payment may be set aside or invalidated have
expired; and (d) Buyer has released, transferred or disposed of all of its
right, title and interest in all Security (such deferral of Guarantor’s
subrogation and contribution rights, the “Subrogation Deferral”).


 


(c)  Effect of Invalidation.  To the extent that a court of competent
jurisdiction determines that Guarantor’s Subrogation Deferral is void or
voidable for any reason, Guarantor agrees, notwithstanding any acts or
omissions by Buyer that Guarantor’s rights of subrogation against Seller or Buyer
and Guarantor’s right of subrogation against any Security 


 


6

















 


shall at all times be
junior and subordinate to Buyer’s rights against Seller and to Buyer’s right,
title, and interest in such Security.


 


(d)  Claims in Insolvency Proceeding.  Guarantor shall not file any claim in any
Insolvency Proceeding affecting Seller unless Guarantor simultaneously assigns
and transfers such claim to Buyer, without consideration, pursuant to
documentation fully satisfactory to Buyer. 
Guarantor shall automatically be deemed to have assigned and transferred
such claim to Buyer whether or not Guarantor executes documentation to such
effect, and by executing this Guaranty hereby authorizes Buyer (and grants
Buyer a power of attorney coupled with an interest, and hence irrevocable) to
execute and file such assignment and transfer documentation on Guarantor’s
behalf.  Buyer shall have the sole right
to vote, receive distributions, and exercise all other rights with respect to any
such claim, provided, however, that if and when the Guarantied Obligations have
been paid in full Buyer shall release to Guarantor any further payments
received on account of any such claim.


 


12.                                 Waiver
Disclosure.  Guarantor
acknowledges that pursuant to this Guaranty, Guarantor has waived a substantial
number of defenses that Guarantor might otherwise under some circumstance(s) be
able to assert against Guarantor’s liability to Buyer.  Guarantor acknowledges and confirms that
Guarantor has substantial experience as a sophisticated participant in
substantial commercial mortgage-backed securities transactions and is fully
familiar with the legal consequences of signing this or any other
guaranty.  In addition, Guarantor is
represented by competent counsel. 
Guarantor has obtained from such counsel, and understood, a full
explanation of the nature, scope, and effect of the waivers contained in this
Guaranty (a “Waiver Disclosure”). 
In the alternative, Guarantor has, with advice from such counsel,
knowingly and intentionally waived obtaining a Waiver Disclosure.  Accordingly Guarantor does not require or
expect Buyer to provide a Waiver Disclosure. 
It is not necessary for Buyer or this Guaranty to provide or set forth
any Waiver Disclosure, notwithstanding any principles of law to the
contrary.  Nevertheless, Guarantor
specifically acknowledges that Guarantor is fully aware of the nature, scope,
and effect of all waivers contained in this Guaranty, all of which have been
fully disclosed to Guarantor.  Guarantor
acknowledges that as a result of the waivers contained in this Guaranty:


 


(a)  Actions by Buyer.  Buyer will be able to take a wide range of
actions relating to Seller, the Transactions, and the Repurchase Documents, all
without Guarantor’s consent or notice to Guarantor.  Guarantor’s full and unconditional liability under this Guaranty
will continue whether or not Guarantor has consented to such actions.  Guarantor may disagree with or disapprove
such actions, and Guarantor may believe that such actions should terminate or
limit Guarantor’s obligations under this Guaranty, but such disagreement,
disapproval, or belief on the part of Guarantor will in no way limit
Guarantor’s obligations under this Guaranty.


 


(b)  Interaction with Seller Liability.  Guarantor shall be fully liable for all
obligations hereunder even if the Repurchase Documents are otherwise invalid,
unenforceable, or subject to defenses available to Seller.  Guarantor acknowledges that Guarantor’s full
and unconditional liability under this Guaranty to the extent of the Guaranteed
Obligations (with respect to the Repurchase Documents as if they were fully
enforceable against Seller) will continue notwithstanding any such limitations
on or impairment of Seller’s liability.


 


(c)  Timing of Enforcement.  Buyer will be able to enforce this Guaranty
against Guarantor even though Buyer might also have available other rights and
remedies that 


 


7

















 


Buyer could conceivably enforce against the Security or
against other parties.  As a result,
Buyer may require Guarantor to pay or perform the Guarantied Obligations
earlier than Guarantor would prefer to pay or perform the Guarantied
Obligations, including immediately upon the occurrence of a default by Seller.  Guarantor will not be able to assert against
Buyer various defenses, theories, excuses, or procedural requirements that
might otherwise force Buyer to delay or defer the enforcement of this Guaranty
against Guarantor. Guarantor acknowledges that Guarantor intends to allow Buyer
to enforce the Guaranty against Guarantor in such manner.  All of Guarantor’s assets will be available
to satisfy Buyer’s claims against Guarantor under this Guaranty.


 


(d)  Continuation of Liability.  Guarantor’s liability for the Guarantied
Obligations shall continue at all times until the Guarantied Obligations have
actually been paid in full, even if other circumstances have changed such that
in Guarantor’s view Guarantor’s liability under this Guaranty should terminate,
except to the extent that any express conditions to the termination of this
Guaranty, as set forth in this Guaranty, have been satisfied.


 


13.                                 Buyer’s
Disgorgement of Payments. 
Upon payment of all or any portion of the Guarantied Obligations,
Guarantor’s obligations under this Guaranty shall continue and remain in full
force and effect if all or any part of such payment is, pursuant to any
Insolvency Proceeding or otherwise, avoided or recovered directly or indirectly
from Buyer as a preference, fraudulent transfer, or otherwise, irrespective of
(a) any notice of revocation given by Guarantor prior to such avoidance or
recovery, or (b) payment in full of the Transactions.  Guarantor’s liability under this Guaranty shall continue until
all periods have expired within which Buyer could (on account of Insolvency
Proceedings, whether or not then pending, affecting Seller or any other person)
be required to return, repay, or disgorge any amount paid at any time on
account of the Guarantied Obligations.


 


14.                                 Financial
Information.  Guarantor shall
provide Buyer with the following financial and reporting information:


 


(a)  Within 45 days after the last day of each of
the first three fiscal quarters in any fiscal year, Guarantor’s unaudited
consolidated statements of income and statements of changes in cash flow for
such quarter and balance sheets as of the end of such quarter, in each case
presented fairly in accordance with GAAP and certified as being true and
correct by an officer’s certificate; and


 


(b)  Within 90 days after the last day of its
fiscal year, Guarantor’s audited consolidated statements of income and
statements of changes in cash flow for such year and balance sheets as of the
end of such year, in each case presented fairly in accordance with GAAP, and accompanied
by an unqualified report of a nationally recognized independent certified
public accounting firm.


 


15.                                 Consent to
Jurisdiction.  Guarantor
agrees that any Proceeding to enforce this Guaranty may be brought in any state
or federal court located in the State, as Buyer may select from time to
time.  By executing this Guaranty,
Guarantor irrevocably accepts and submits to the nonexclusive personal
jurisdiction of each of the aforesaid courts, generally and unconditionally
with respect to any such Proceeding. 
Guarantor agrees not to assert any basis for transferring jurisdiction
of any such proceeding to another court. 
Guarantor further agrees that a


 


8

















 


final judgment against Guarantor in any Proceeding
shall be conclusive evidence of Guarantor’s liability for the full amount of
such judgment.


 


16.                                 Merger; No
Conditions; Amendments.  This
Guaranty and documents referred to herein contain the entire agreement among
the parties with respect to the matters set forth in this Guaranty.  This Guaranty supersedes all prior
agreements among the parties with respect to the matters set forth in this
Guaranty.  No course of prior dealings
among the parties, no usage of trade, and no parol or extrinsic evidence of any
nature shall be used to supplement, modify, or vary any terms of this
Guaranty.  This Guaranty is
unconditional.  There are no unsatisfied
conditions to the full effectiveness of this Guaranty.  No terms or provisions of this Guaranty may
be changed, waived, revoked, or amended without Buyer’s written agreement.  If any provision of this Guaranty is
determined to be unenforceable, then all other provisions of this Guaranty
shall remain fully effective.


 


17.                                 Enforcement.  Guarantor acknowledges that this Guaranty is
an “instrument for the payment of money only,” within the meaning of New York
Civil Practice Law and Rules Section 3213.  In the event of any Proceeding between Guarantor and Buyer in
which Buyer enforces or attempts to enforce this Guaranty, Guarantor shall
reimburse Buyer for all Legal Costs of such Proceeding.


 


18.                                 Fundamental
Changes.  Guarantor shall not
wind up, liquidate, or dissolve its affairs without Buyer’s prior written
consent.


 


19.                                 Further
Assurances.  Guarantor shall
execute and deliver such further documents, and perform such further acts, as
Buyer may request to achieve the intent of the parties as expressed in this
Guaranty, provided in each case that any such documentation is consistent with
this Guaranty and with the Repurchase Documents.


 


20.                                 Counterparts.  This Guaranty may be executed in
counterparts.


 


21.                                 WAIVER OF
TRIAL BY JURY.  GUARANTOR
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING FROM OR RELATING TO
THIS GUARANTY OR THE REPURCHASE DOCUMENTS OR ANY OBLIGATION(S) OF GUARANTOR
HEREUNDER OR UNDER THE REPURCHASE DOCUMENTS.


 


22.                                 Miscellaneous.


 


(a)  Assignability.  Buyer may assign this Guaranty (in whole or in part) together
with any one or more of the Repurchase Documents, without in any way affecting
Guarantor’s or Seller’s liability.  Upon
request in connection with any such assignment Guarantor shall, at Buyer’s
expense, deliver such documentation as Buyer shall reasonably request.  Buyer may from time to time designate any
Buyer Entity to hold and exercise any or all of Buyer’s rights and remedies
under this Guaranty.  This Guaranty
shall benefit Buyer and its successors and assigns (including any Buyer Entity)
and shall bind Guarantor and its heirs, executors, administrators, successors,
and assigns.  Guarantor may not assign
this Guaranty in whole or in part.


 


(b)  Notices. 
All notices, requests, and demands to be made under this Guaranty shall
be given in writing at the address set forth in the opening paragraph of this


 


9

















 


Guaranty by any of the following means: (i) personal
service; (ii) overnight delivery service such as Federal Express (which
delivery shall be deemed complete if the delivery service attempts twice to
deliver the notice without success); or (iii) registered or certified, first
class mail, return receipt requested.  A
party’s address may be changed by notice to the other parties given in the same
manner as provided above.  Any notice,
request or demand sent pursuant to subsection (i) or (ii) of this
paragraph shall be deemed received upon personal service (or, in the case of
“ii,” upon completion of two unsuccessful delivery attempts), and, if sent
pursuant to subsection (iii), shall be deemed received three business days
after deposit in the mail.


 


(c)  Interpretation.  This Guaranty shall be enforced and interpreted according to the
laws of the State, disregarding its rules on conflicts of laws.  The word “include” and its variants shall be
interpreted in each case as if followed by the words “without limitation.”


 


23.                                 Business
Purposes.  Guarantor
acknowledges that this Guaranty is executed and delivered for business and
commercial purposes, and not for personal, family, household, consumer, or
agricultural purposes.  Guarantor
acknowledges that Guarantor is not entitled to, and does not require the
benefits of, any rights, protections, or disclosures that would or may be
required if this Guaranty were given for personal, family, household, consumer,
or agricultural purposes.  Guarantor
acknowledges that none of Guarantor’s obligation(s) under this Guaranty
constitute(s) a “debt” within the meaning of the United States Fair Debt
Collection Practices Act, 15 U.S.C. § 1692a(5), and accordingly compliance
with the requirements of such Act is not required if Buyer (directly or acting
through its counsel) makes any demand or commences any action to enforce this
Guaranty.


 


24.                                 No
Third-Party Beneficiaries. 
This Guaranty is executed and delivered for the benefit of Buyer and its
heirs, successors, and assigns, and is not intended to benefit any third party.


 


25.                                 CERTAIN ACKNOWLEDGMENTS BY GUARANTOR.  GUARANTOR ACKNOWLEDGES THAT BEFORE EXECUTING
THIS GUARANTY: (A) GUARANTOR HAS HAD THE OPPORTUNITY TO REVIEW IT WITH AN
ATTORNEY OF GUARANTOR’S CHOICE; (B) BUYER HAS RECOMMENDED TO GUARANTOR THAT
GUARANTOR OBTAIN SEPARATE COUNSEL, INDEPENDENT OF SELLER’S COUNSEL, REGARDING
THIS GUARANTY; AND (C) GUARANTOR HAS CAREFULLY READ THIS GUARANTY AND
UNDERSTOOD THE MEANING AND EFFECT OF ITS TERMS, INCLUDING ALL WAIVERS AND
ACKNOWLEDGMENTS CONTAINED IN THIS GUARANTY AND THE FULL EFFECT OF SUCH WAIVERS
AND THE SCOPE OF GUARANTOR’S OBLIGATIONS UNDER THIS GUARANTY.


 


 


10

















 


IN WITNESS WHEREOF, Guarantor has duly
executed this Guaranty as of the date indicated below.


 


 


	
   

  	
  GUARANTOR:

  
	
   

  	
  CRIIMI MAE Inc., a Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
        /s/ Mark Libera

  	
   

  
	
   

  	
  Name:  Mark Libera

  
	
   

  	
  Title: Vice
  President and Acting

  
	
   

  	
  General Counsel

  
	
   

  	
  Date: 6/30/04

  
	
   

  	
   

  
	
   

  	
   

  
	
  Acknowledgments

  	
   

  
	
   

  	
   

  
	
  DEUTSCHE
  BANK AG,  CAYMAN

  ISLANDS BRANCH

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   /s/ Christopher E. Tognola

  	
   

  	
   

  
	
  Name:
  Christopher E. Tognola

  	
   

  
	
  Title: Director

  	
   

  
	
  Date: 6/30/04

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/ Tobin Cobb

  	
   

  	
   

  
	
  Name: Tobin Cobb

  	
   

  
	
  Title: Managing
  Director

  	
   

  
	
  Date: 6/30/04

  	
   

  
	
   

  	
   

  
	
  CRIIMI
  FINANCING CO., INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/ Mark Libera

  	
   

  	
   

  
	
  Name:  Mark Libera

  	
   

  
	
  Title: Vice
  President and Acting

  	
   

  
	
  General Counsel

  	
   

  
	
  Date: 6/30/04