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
1
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 Ob
