**Exhibit 10.2**

 

**IMPACMORTGAGE HOLDINGS, INC.**

**GUARANTY**

 

This Guaranty, dated as of May 1, 2006, is executed byImpac Mortgage Holdings, Inc., a Maryland corporation (“Guarantor”), infavor of Gretchen Verdugo (“Executive”).

 

A.             ImpacFunding Corporation, a California corporation (“Obligor”), concurrentlyherewith has entered into an Employment Agreement with Obligor dated even dateherewith (the “Contract”). Guarantor is the parent corporation of Obligor andwill receive direct and indirect benefits from the performance of the Contract.

 

B.              Executive’swillingness to enter into the Contract is subject to receipt by it of thisGuaranty duly executed by Guarantor.

 

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

 

1.              Guaranty.

 

(a)             Guarantorunconditionally guarantees and promises to pay to Executive, or order, atExecutive’s address set forth in Section 4(a) hereof, on demand after thedefault by Obligor, in lawful money of the United States, any and allObligations (as hereinafter defined) consisting of payments due to Executive.For purposes of this Guaranty the term “Obligations” shall mean andinclude all payments owed by Obligor to Executive of every kind anddescription, 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 becomedue subject to the provisions of the Contract, including all noticerequirements and cure provisions), including all interest, late fees, charges,expenses, attorneys’ fees and other professionals’ fees chargeable to Obligoror payable by Obligor there under and any costs of collection hereunder,including attorneys’ and other professionals’ fees.

 

(b)             ThisGuaranty is absolute, unconditional, continuing and irrevocable and constitutesan independent guaranty of payment and not of collect ability (provided that itis subject to Obligor defaulting on any of the Obligations), and is in no wayconditioned on or contingent upon any attempt to enforce in whole or in partany of Obligor’s Obligations to Executive, the existence or continuance ofObligor as a legal entity, the consolidation or merger of Obligor with or intoany other entity, the sale, lease or disposition by Obligor of all orsubstantially all of its assets to any other entity, or the bankruptcy orinsolvency of Obligor, the admission by Obligor of its inability to pay itsdebts as they mature, or the making by Obligor of a general assignment for thebenefit of, or entering into a composition or arrangement with,

 

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creditors. If Obligor orany permitted assignee or successor of Obligor shall fail to pay or perform anyObligations to Executive which are subject to this Guaranty as and when theyare due, Guarantor shall forthwith pay to Executive all such liabilities orobligations in immediately available funds. Each failure by Obligor to pay orperform any such liabilities or obligations shall give rise to a separate causeof action, and separate suits may be brought hereunder as each cause of actionarises.

 

(c)           Executive,may (subject to the provisions of the Contract) at any time and from time totime, without the consent of or notice to Guarantor, except such notice as maybe required by applicable statute which cannot be waived, without incurringresponsibility to Guarantor, and without impairing or releasing the obligationsof Guarantor hereunder, (i) change the manner, place and terms of payment orchange or extend the time of payment of, renew, or alter any Obligation herebyguaranteed, or in any manner modify, amend or supplement the terms of theContract or any documents, instruments or agreements executed in connectiontherewith, (ii) exercise or refrain from exercising any rights against Obligoror others (including Guarantor) or otherwise act or refrain from acting, (iii)settle or compromise any Obligations hereby guaranteed and/or any obligationsand liabilities (including any of those hereunder) incurred directly orindirectly in respect thereof or hereof, and may subordinate the payment of allor any part thereof to the payment of any obligations and liabilities which maybe due to Executive or others, (iv) sell, exchange, release, surrender, realizeupon or otherwise deal with in any manner or in any order any property pledgedor mortgaged by anyone to secure or in any manner securing the Obligationshereby guaranteed, (v) take and hold security or additional security for any orall of the obligations or liabilities covered by this Guaranty, and (vi) assignits rights and interests under this Guaranty, in whole or in part.

 

(d)             This isa continuing Guaranty for which Guarantor receives continuing consideration andall obligations to which it applies or may apply under the terms hereof shallbe conclusively presumed to have been created in reliance hereon and thisGuaranty is therefore irrevocable without the prior written consent ofExecutive.

 

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

 

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

 

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

 

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3.             Waivers.

 

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

 

(b) Guarantor further waives, to the extent permittedby applicable law, (i) any defense resulting from the absence, impairment orloss of any right of reimbursement, subrogation, contribution or other right orremedy of Guarantor against Obligor, any other guarantor of the Obligations orany security; (ii) any defense which results from any disability of Obligor orthe lack of validity or enforceability of the Contract; (iii) any right toexoneration of sureties which would otherwise be applicable; (iv) any right ofsubrogation or reimbursement and, if there are any other guarantors of theObligations, any right of contribution, and right to enforce any remedy whichExecutive now has or may hereafter have against Obligor, and any benefit of,and any right to participate in, any security now or hereafter received byExecutive; (v) all presentments, demands for performance, notices ofnon-performance, notices delivered under the Contract, protests, notice ofdishonor, and notices of acceptance of this Guaranty and of the existence,creation or incurring of new or additional Obligations and notices of anypublic or private foreclosure sale; (vi) any appraisement, valuation, stay,extension, moratorium redemption or similar law or similar rights formarshalling; and (vii) any right to be informed by Executive of the financialcondition of Obligor or any other guarantor of the Obligations or any changetherein or any other circumstances bearing upon the risk of nonpayment ornonperformance of the Obligations. Guarantor has the ability to and assumes theresponsibility for keeping informed of the financial condition of Obligor andany other guarantors of the Obligations and of other circumstances affectingsuch nonpayment and nonperformance risks.

 

4.              Miscellaneous.

 

(a)             Notices.All notices hereunder must be in writing and shall be sufficiently given forall purposes hereunder if properly addressed and delivered personally bydocumented overnight delivery service, by certified or registered mail, returnreceipt requested, or by facsimile or other electronic transmission service atthe address or facsimile number, as the case may be, set forth below. Anynotice given personally or by documented overnight delivery service iseffective upon receipt. Any notice given by registered mail is effective uponreceipt, to the extent such receipt is confirmed by return receipt. Any noticegiven by facsimile transmission is effective upon receipt, to the extent thatreceipt is confirmed, either verbally or in writing by the recipient. Anynotice which is refused, unclaimed or undeliverable because of an act oromission of the party to be notified, if such notice was correctly addressed tothe party to be notified, shall be deemed communicated as of the first datethat said notice was refused, unclaimed or deemed undeliverable by the postalauthorities, or overnight delivery service.

 

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| Executive:      | Guarantor:       |
|-----------------|------------------|
|            |             |   |
|            | Gretchen Verdugo |   | 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 |
|            |             |   |
|            |             | And |
|            |             |   |
|            |             | Patricio T.D. Barrera, ESQ. |
|            |             | Marcin Barrera LLP |
|            |             | 1901 Avenue of the Stars |
|            |             | Suite 1900 |
|            |             | Los Angeles, CA   90067 |
|            |             | Telephone: (310) 286-1050 |
|            |             | Facsimile: (310) 286-1070 |

 

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

 

(c)             Amendmentsand Waivers. This Guaranty may not be amended, modified, superseded,canceled, or any terms waived, except by written instrument signed by bothparties, 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 andGuarantor and their respective successors and assigns; provided,however,that without the prior written consent of Executive, Guarantor may not assignits rights and obligations hereunder.

 

(e)             CumulativeRights, etc. The rights, powers and remedies of Executive under thisGuaranty shall be in addition to all rights, powers and remedies given toExecutive by virtue of any applicable law, rule or regulation, the Contract orany other agreement, all of which rights, powers, and remedies shall becumulative and may be exercised successively or concurrently without impairingExecutive’s rights hereunder.

 

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(f)              PartialInvalidity. The provisions of this Guaranty are severable and if any one ormore provisions is determined to be illegal or otherwise unenforceable, inwhole or in part, the remaining provisions, and any partially unenforceableprovisions to the extent enforceable, shall nevertheless be binding andenforceable.

 

(g)             GoverningLaw. This Guaranty is and shall be governed and construed in accordancewith the laws of the State of California, regardless of any laws on choice oflaw or conflicts of law of any jurisdiction.

 

(h)             Arbitration.To the fullest extent allowed by law, any controversy, claim or dispute betweenExecutive and Guarantor (or any of its stockholders, directors, officers,employees, affiliates, agents, successors or assigns) relating to or arisingout of this Guaranty will be submitted to final and binding arbitration inOrange County, California for determination in accordance with the AmericanArbitration Association’s (“AAA”) National Rules for the Resolution ofEmployment Disputes, as the exclusive remedy for such controversy, claim ordispute. In any such arbitration, the parties may conduct discovery to the sameextent as would be permitted in a court of law. The arbitrator shall issue awritten decision, and shall have full authority to award all remedies whichwould be available in court. The arbitrator shall be required to determine allissues in accordance with existing case law and the statutory laws of the Stateof California. Guarantor shall pay the arbitrator’s fees and any AAAadministrative expenses. In the event Executive files a claim to collect unpaidpayments or benefits payable under Section 2.4 of the Contract, the prevailingparty shall be awarded reasonable attorneys fees and costs. Any judgment upon theaward rendered by the arbitrator(s) may be entered in any court havingjurisdiction thereof. BY AGREEING TO THIS MUTUAL AND BINDING ARBITRATIONPROVISION, BOTH EXECUTIVE AND GUARANTOR GIVE UP ALL RIGHTS TO TRIAL BY JURY.This arbitration policy is to be construed as broadly as is permissible underrelevant law. EXECUTIVE AND GUARANTOR HAVE READ THIS SECTION 4(h) ANDIRREVOCABLY AGREE TO ARBITRATE ANY DISPUTE IDENTIFIED ABOVE.

 
|   | Executive’s  Initials | /s/ GV |  Guarantor’s  Initials | /s/ RJJ |   |
|--------|----------------------------|--------|----------------------------------|---------|--------|

 

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

 

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

 

(k)             Rulesof Construction. This Guaranty has been negotiated by the parties and is tobe interpreted according to its fair meaning as if the parties had prepared ittogether and not strictly for or against any party. References in this Guarantyto “Sections” refer to Sections of this Guaranty, unless the context expresslyindicates otherwise. References to “provisions” of this Guaranty refer to theterms, conditions, restrictions and promises contained in this Guaranty.References in this Guaranty to laws and regulations refer to such laws andregulations as in effect on this date and to the corresponding provisions, ifany, of any successor law or regulation. At each place in this Guaranty wherethe context so requires, the masculine, feminine or neuter gender includes theothers and the singular or plural number includes the other. Forms of the verb “including”mean “including without limitation” unless the context expressly indicatesotherwise. “Or” is inclusive and includes “and” unless the context expresslyindicates otherwise. The introductory headings at the beginning of Sections ofthis Guaranty are solely for the convenience of the parties and do not affectany provision of this Guaranty.

 

(1)             NoEmployment With Guarantor. Executive understands and agrees that he is anemployee of Obligor pursuant to the Contract. Executive further understands andagrees that neither this Guaranty nor any obligations performed hereunder shallchange any employee status that Executive may have with Guarantor.

 

IN WITNESSWHEREOF, Executive and Guarantor have executed this Guaranty as of the day andyear first above written.

 

 
| ** ** | **GUARANTOR**                  |
|------------|--------------------------------|
| ** ** | ** **                     |
|       | Impac Mortgage  Holdings, Inc. |
|       |                           |
|       |                           |
|       | By:                            | /s/ Richard J.  Johnson |   |
|       | Name:                          | Richard J.  Johnson |   |
|       | Title:                         | Chief Operating  Officer |   |
|       |                           |
| ** ** | **EXECUTIVE**                  |
| ** ** | ** **                     |
| ** ** | ** **                     |
|       | By:                            | /s/ Gretchen  Verdugo |   |
|       |                           |   |   |
|       | Gretchen Verdugo               |   |
|            |                                |  |  |  |  |

 

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