Exhibit 10.1(a)


 


EXHIBIT D


IMPAC
MORTGAGE HOLDINGS, INC.


GUARANTY


This Guaranty, dated as of June 1, 2006, is executed
by Impac Mortgage Holdings, Inc., a Maryland corporation (“Guarantor”),
in favor of Ronald Morrison (“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 Sections 2 and 3 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 there under 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 collect ability (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 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.


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:

  
	
   

  	
   

  
	
  Ronald Morrison

  	
  Impac Mortgage Holdings, Inc.

  
	
   

  	
  1401 Dove Street

  
	
   

  	
  Newport Beach,
  California 92660

  
	
   

  	
  Telephone: (949)
  475-3600

  
	
   

  	
  Facsimile: (949)
  475-3969

  
	
   

  	
  Attention:
  Ronald Morrison, Esq., General

  
	
   

  	
  Counsel

  
	
   

  	
   

  
	
  With a copy to:

  	
  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.


(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/RM Guarantor’s Initials /s/JT


(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, 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/Joseph R.
  Tomkinson

  	
   

  
	
   

  	
  Name: Joseph R.
  Tomkinson

  
	
   

  	
  Title: Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Ronald
  Morrison

  	
   

  
	
   

  	
   

  	
  Ronald Morrison