Exhibit 10.4


 


IMPAC MORTGAGE HOLDINGS, INC.


 


GUARANTY


 


This Guaranty, dated as of April 1, 2008, is executed by
Impac Mortgage Holdings, Inc., a Maryland corporation (“Guarantor”),
in favor of William S. Ashmore (“Executive”).


 


A.                                   Impac Funding Corporation,
a California corporation (“Obligor”), concurrently herewith has entered
into an Employment Agreement with Obligor dated even date herewith (the “Contract”).
Guarantor is the parent corporation of Obligor and will receive direct and
indirect benefits from the performance of the Contract.


 


B.                                     Executive’s willingness
to enter into the Contract is subject to receipt by it of this Guaranty duly
executed by Guarantor.


 


For good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, and intending to be legally bound, Guarantor
hereby agrees with Executive as follows:


 


1.                                    Guaranty.


 


(a)                                  Guarantor unconditionally
guarantees and promises to pay to Executive, or order, at Executive’s address
set forth in Section 4(a) hereof, on demand after the default by
Obligor, in lawful money of the United States, any and all Obligations (as
hereinafter defined) consisting of payments due to Executive. For purposes of
this Guaranty the term “Obligations” shall mean and include all payments
owed by Obligor to Executive of every kind and description, direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising
pursuant to the terms of Section 2.3, 2.4, 3.1(a), 3.1(b), 3.1(c), or 3.2
of the Contract (as such Obligations may become due subject to the provisions
of the Contract, including all notice requirements and cure provisions),
including all interest, late fees, charges, expenses, attorneys’ fees and other
professionals’ fees chargeable to Obligor or payable by Obligor thereunder and
any costs of collection hereunder, including attorneys’ and other professionals’
fees.


 


(b)                                 This Guaranty is
absolute, unconditional, continuing and irrevocable and constitutes an
independent guaranty of payment and not of collectibility (provided that it is
subject to Obligor defaulting on any of the Obligations), and is in no way
conditioned on or contingent upon any attempt to enforce in whole or in part
any of Obligor’s Obligations to Executive, the existence or continuance of Obligor
as a legal entity, the consolidation or merger of Obligor with or into any
other entity, the sale, lease or disposition by Obligor of all or substantially
all of its assets to any other entity, or the bankruptcy or insolvency of
Obligor, the admission by Obligor of its inability to pay its debts as they
mature, or the making by Obligor of a general assignment for the benefit of, or
entering into a composition or arrangement with, creditors. If Obligor or any
permitted assignee or successor of Obligor shall fail to pay or perform any
Obligations to Executive which are subject to this Guaranty as and when they
are due, Guarantor shall forthwith pay to Executive all such liabilities or
obligations in immediately available funds. Each failure by Obligor to pay or
perform any such liabilities or obligations shall give rise to a separate cause
of action, and separate suits may be brought hereunder as each cause of action
arises.


 


(c)                                Executive, may (subject
to the provisions of the Contract) at any time and from time to time, without
the consent of or notice to Guarantor, except such notice as may be required by
applicable statute which cannot be waived, without incurring responsibility to
Guarantor, and without impairing or releasing the obligations of Guarantor
hereunder, (i) change the manner, place and terms of payment or change or
extend the time of payment of, renew, or alter any Obligation hereby
guaranteed, or in any manner modify, amend or supplement the terms of the
Contract or any documents, instruments or agreements executed in connection
therewith, (ii) exercise or refrain from exercising any rights against


 


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Obligor
or others (including Guarantor) or otherwise act or refrain from acting, (iii) settle
or compromise any Obligations hereby guaranteed and/or any obligations and
liabilities (including any of those hereunder) incurred directly or indirectly
in respect thereof or hereof, and may subordinate the payment of all or any
part thereof to the payment of any obligations and liabilities which may be due
to Executive or others, (iv) sell, exchange, release, surrender, realize
upon or otherwise deal with in any manner or in any order any property pledged
or mortgaged by anyone to secure or in any manner securing the Obligations
hereby guaranteed, (v) take and hold security or additional security for
any or all of the obligations or liabilities covered by this Guaranty, and (vi) assign
its rights and interests under this Guaranty, in whole or in part.


 


(d)                                    This is a continuing
Guaranty for which Guarantor receives continuing consideration and all
obligations to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon and this Guaranty
is therefore irrevocable without the prior written consent of Executive.


 


(e)                                     Guarantor may bring action to enforce
Executive’s obligations under the Contract if (i) any proceeding is
brought against Guarantor to seek enforcement of this Guaranty or (ii) Guarantor
makes any payment to Executive pursuant to this Guaranty.


 


2.                                     Representations and
Warranties. Guarantor represents and warrants to Executive that


 


(a) Guarantor
is a corporation duly organized, validly, existing and in good standing under
the laws of its jurisdiction of incorporation or formation; (b) the
execution, delivery and performance by Guarantor of this Guaranty are within
the power of Guarantor and have been duly authorized by all necessary actions
on the part of Guarantor; (c) this Guaranty has been duly executed and
delivered by Guarantor and constitutes a legal, valid and binding obligation of
Guarantor, enforceable against it in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general application relating
to or affecting the enforcement of creditors’ rights generally.


 


3.                                     Waivers.


 


(a)                                     Guarantor, to the extent
permitted under applicable law, hereby waives any right to require Executive to
(i) proceed against Obligor or any other guarantor of Obligor’s
obligations under the Contract, (ii) proceed against or exhaust any
security received from Obligor or any other guarantor of Obligor’s Obligations
under the Contract, or (iii) pursue any other right or remedy in the
Executive’s power whatsoever.


 


(b)                                    Guarantor further waives,
to the extent permitted by applicable law, (i) any defense resulting from
the absence, impairment or loss of any right of reimbursement, subrogation,
contribution or other right or remedy of Guarantor against Obligor, any other
guarantor of the Obligations or any security; (ii) any defense which
results from any disability of Obligor or the lack of validity or
enforceability of the Contract; (iii) any right to exoneration of sureties
which would otherwise be applicable; (iv) any right of subrogation or
reimbursement and, if there are any other guarantors of the Obligations, any
right of contribution, and right to enforce any remedy which Executive now has
or may hereafter have against Obligor, and any benefit of, and any right to
participate in, any security now or hereafter received by Executive; (v) all
presentments, demands for performance, notices of non-performance, notices
delivered under the Contract, protests, notice of dishonor, and notices of
acceptance of this Guaranty and of the existence, creation or incurring of new
or additional Obligations and notices of any public or private foreclosure
sale; (vi) any appraisement, valuation, stay, extension, moratorium
redemption or similar law or similar rights for marshalling; and (vii) any
right to be informed by Executive of the financial condition of Obligor or any
other guarantor of the Obligations or any change therein or any other
circumstances bearing upon the risk of nonpayment or nonperformance of the
Obligations. Guarantor has the ability to and assumes the responsibility for
keeping informed of the financial condition of Obligor and any other guarantors
of the Obligations and of other circumstances affecting such nonpayment and
nonperformance risks.


 


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4.                                    Miscellaneous.


 


(a)                                  Notices. All notices hereunder
must be in writing and shall be sufficiently given for all purposes hereunder
if properly addressed and delivered personally by documented overnight delivery
service, by certified or registered mail, return receipt requested, or by
facsimile or other electronic transmission service at the address or facsimile
number, as the case may be, set forth below. Any notice given personally or by
documented overnight delivery service is effective upon receipt. Any notice
given by registered mail is effective upon receipt, to the extent such receipt
is confirmed by return receipt. Any notice given by facsimile transmission is
effective upon receipt, to the extent that receipt is confirmed, either
verbally or in writing by the recipient. Any notice which is refused, unclaimed
or undeliverable because of an act or omission of the party to be notified, if
such notice was correctly addressed to the party to be notified, shall be
deemed communicated as of the first date that said notice was refused,
unclaimed or deemed undeliverable by the postal authorities, or overnight
delivery service.


 


	
  Executive:

  	
   

  	
  Guarantor:

  
	
   

  	
   

  	
   

  
	
   

  	
  William
  S. Ashmore

  	
   

  	
  Impac
  Mortgage Holdings, Inc.

  
	
   

  	
   

  	
   

  	
  19500
  Jamboree Rd.

  
	
   

  	
   

  	
   

  	
  Irvine,
  California 92612

  
	
   

  	
   

  	
  Telephone:
  (949) 475-3600

  
	
   

  	
   

  	
  Facsimile:
  (949) 475-3969

  
	
   

  	
   

  	
  Attention:
  Ronald Morrison, Esq., General

  
	
   

  	
   

  	
  Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With a
  copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ernest
  W. Klatte, III, Esq.

  
	
   

  	
   

  	
  Rutan &
  Tucker, LLP

  
	
   

  	
   

  	
  611
  Anton Blvd., 14th Floor

  
	
   

  	
   

  	
  Costa
  Mesa, California 92626

  
	
   

  	
   

  	
  Telephone:
  (714) 641-5100

  
	
   

  	
   

  	
  Facsimile:
  (714) 546-9035

  



 


(b)                                    Nonwaiver. No failure or delay on
Executive’s part in exercising any right hereunder shall operate as a waiver
thereof or of any other right nor shall any single or partial exercise of any
such right preclude any other further exercise thereof or of any other right.


 


(c)                                     Amendments and Waivers. This Guaranty may not be
amended, modified, superseded, canceled, or any terms waived, except by written
instrument signed by both parties, or in the case of waiver, by the party to be
charged.


 


(d)                                    Assignments. This Guaranty shall be
binding upon and inure to the benefit of Executive and Guarantor and their
respective successors and assigns; provided,  however, that
without the prior written consent of Executive, Guarantor may not assign its
rights and obligations hereunder.


 


(e)                                     Cumulative Rights, etc. The rights, powers and
remedies of Executive under this Guaranty shall be in addition to all rights,
powers and remedies given to Executive by virtue of any applicable law, rule or
regulation, the Contract or any other agreement, all of which rights, powers,
and remedies shall be cumulative and may be exercised successively or
concurrently without impairing Executive’s rights hereunder.


 


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(f)                                       Partial Invalidity. The provisions of this
Guaranty are severable and if any one or more provisions is determined to be
illegal or otherwise unenforceable, in whole or in part, the remaining provisions,
and any partially unenforceable provisions to the extent enforceable, shall
nevertheless be binding and enforceable.


 


(g)                                    Governing Law. This Guaranty is and
shall be governed and construed in accordance with the laws of the State of
California, regardless of any laws on choice of law or conflicts of law of any
jurisdiction.


 


(h)                                    Arbitration. To the fullest extent
allowed by law, any controversy, claim or dispute between Executive and
Guarantor (or any of its stockholders, directors, officers, employees,
affiliates, agents, successors or assigns) relating to or arising out of this
Guaranty will be submitted to final and binding arbitration in Orange County,
California for determination in accordance with the American Arbitration
Association’s (“AAA”) National Rules for the Resolution of Employment
Disputes, as the exclusive remedy for such controversy, claim or dispute. In
any such arbitration, the parties may conduct discovery to the same extent as
would be permitted in a court of law. The arbitrator shall issue a written
decision, and shall have full authority to award all remedies which would be
available in court. The arbitrator shall be required to determine all issues in
accordance with existing case law and the statutory laws of the State of California.
Guarantor shall pay the arbitrator’s fees and any AAA administrative expenses.
In the event Executive files a claim to collect unpaid payments or benefits
payable under Section 2.4 of the Contract, the prevailing party shall be
awarded reasonable attorneys fees and costs. Any judgment upon the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. BY AGREEING TO THIS MUTUAL AND BINDING ARBITRATION
PROVISION, BOTH EXECUTIVE AND GUARANTOR GIVE UP ALL RIGHTS TO TRIAL BY JURY.
This arbitration policy is to be construed as broadly as is permissible under
relevant law. EXECUTIVE AND GUARANTOR HAVE READ THIS SECTION 4(h) AND
IRREVOCABLY AGREE TO ARBITRATE ANY DISPUTE IDENTIFIED ABOVE.


 


	
  Executive’s
  Initials

  	
     /s/
  WSA

  	
   

  	
  Guarantor’s
  Initials

  	
     /s/
  RM

  



 


(i)                                     Entire Agreement. This Guaranty contains
the entire agreement of the parties relating to the subject matter hereof, and
the parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Guaranty that are not set forth
otherwise herein. This Guaranty supersedes any and all prior agreements,
written or oral, with Guarantor relating to guaranteeing obligations under the
Contract and any other subject matter of this Guaranty. Any such prior
agreements are hereby terminated and of no further effect. The parties hereto
agree that in no event shall an oral modification of this Agreement be
enforceable or valid.


 


(j)                                     Counterparts, Facsimile
Signatures. This Guaranty may be executed in any number of counterparts,
each of which shall be deemed an original for all purposes. This Guaranty may
be executed by a party’s signature transmitted by facsimile (“fax”), and copies
of this Guaranty executed and delivered by means of faxed signatures shall have
the same force and effect as copies hereof executed and delivered with original
signatures. All parties hereto may rely upon faxed signatures as if such
signatures were originals. Any party executing and delivering this Guaranty by
fax shall promptly thereafter deliver a counterpart signature page of this
Guaranty containing said party’s original signature. All parties hereto agree
that a faxed signature page may be introduced into evidence in any
proceeding arising out of or related to this Guaranty as if it were an original
signature page.


 


(k)                                  Rules of
Construction. This Guaranty has been negotiated by the parties and is to be
interpreted according to its fair meaning as if the parties had prepared it
together and not strictly for or against any party. References in this Guaranty
to “Sections” refer to Sections of this Guaranty, unless the context expressly
indicates otherwise. References to “provisions” of this Guaranty refer to the
terms, conditions, restrictions and promises contained in this Guaranty.
References in this Guaranty to laws and regulations refer to such laws and
regulations as in effect on this date and to the corresponding provisions, if
any, of any successor law or regulation. At each place in this Guaranty where
the context so requires,


 


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the
masculine, feminine or neuter gender includes the others and the singular or
plural number includes the other. Forms of the verb “including” mean “including
without limitation” unless the context expressly indicates otherwise. “Or” is
inclusive and includes “and” unless the context expressly indicates otherwise.
The introductory headings at the beginning of Sections of this Guaranty are
solely for the convenience of the parties and do not affect any provision of
this Guaranty.


 


(1)                                No Employment With
Guarantor. Executive understands and agrees that he is an employee of
Obligor pursuant to the Contract. Executive further understands and agrees that
neither this Guaranty nor any obligations performed hereunder shall change any
employee status that Executive may have with Guarantor.


 


IN
WITNESS WHEREOF, Executive and Guarantor have executed this Guaranty as of the
day and year first above written.


 


 


	
   

  	
  GUARANTOR

  
	
   

  	
   

  
	
   

  	
  Impac
  Mortgage Holdings, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Ron
  Morrison

  
	
   

  	
  Name: 

  	
  Ron
  Morrison

  
	
   

  	
  Title:

  	
  Executive
  Vice President and General

  	
   

  
	
   

  	
  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William S. Ashmore

  
	
   

  	
  William S. Ashmore

  
						



 


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