Exhibit 10.1(a)


 


[Letterhead of UBS Investment Bank]


 


September 11, 2008


 


Impac
Funding Corporation


Impac
Mortgage Holdings, Inc.


Impac
Warehouse Lending Group, Inc.


19500
Jamboree Road


Irvine,
California 92612


 


RE:         WAIVER AGREEMENT


 


Ladies
and Gentlemen:


 


Reference
is made to the Amended and Restated Master Repurchase Agreement, dated as of September 11,
2008 (the “Repurchase Agreement”), by and among Impac Funding
Corporation, as a Seller (“IFC”), Impac Mortgage Holdings, Inc., as
a Seller and Servicer (“IMH”), Impac Warehouse Lending Group, Inc.,
as a Seller (“IWLG” and, collectively with IFC and IMH the “Sellers”),
and UBS Real Estate Securities, Inc., as Buyer (“UBS”).  The parties have entered into the Repurchase
Agreement in consideration for the Waiver (defined below) and other good and
valuable consideration.  Capitalized
terms not otherwise defined in this Waiver Agreement (this “Waiver Agreement”)
shall have the meanings ascribed to them in the Repurchase Agreement.


 


The
Sellers have requested that UBS waive its rights (the “Waiver”) to
pursue remedies pursuant to an Event of Default under Section 10.02 of the
Repurchase Agreement as a result of Sellers’ failure to meet the covenants
and/or representations and warranties as set forth in the following sections of
the Repurchase Agreement:


 


(A)                              Section 8.05(b) –
The Sellers have lost the licenses and approvals of various regulatory agencies
and authorities, but the Sellers do not expect that such losses will result in
a Material Adverse Effect on any Seller as its business is presently
conducted.  The Waiver excludes those
licenses required for the Servicer to perform its duties as Servicer under
Repurchase Agreement.


 


(B)                                Section 8.06
– The Sellers have been and continue to be subject to the general economic
conditions presently affecting the mortgage industry as a whole and,
particularly with regard to Alt-A lenders, such conditions likely constitute a “Material
Adverse Change” to the Sellers’ prospects and condition (financial and
otherwise).  The Waiver shall solely
apply to those financial statements provided to UBS up to the date of the
Repurchase Agreement.


 


(C)                                Sections
8.18 and 8.28 – The representations and warranties regarding Mortgage Loans
set forth in Schedule 1 to the Repurchase Agreement are limited as set forth in
Section 2.01 of both agreements and Sellers make no representations or 


 

















 


warranty that Schedule 1
is or was correct as of any date other than the date that a Mortgage Loan
became subject to a Transaction for the first time under the Repurchase
Agreement.  The Sellers have disclosed to
the Buyer that certain of the Mortgage Loans may have been procured through
fraudulent conduct on the part of third parties.


 


(D)                               Sections
9.01 and 9.32 – The Sellers have not timely delivered financial statements
(and related certifications) for the first and second fiscal quarters of 2008
and such financial statements have not been timely filed with the United States
Securities and Exchange Commission (the “SEC”). 
The Waiver shall solely apply to the failure of the Sellers to deliver
financial statements (and related certifications) to the SEC for the first and
second fiscal quarters of 2008.


 


(E)                                 Section 9.02
– The Sellers have determined that certain litigation with respect to which
they were served more than 30 days ago requires disclosure to the SEC and they
are thus concurrently herewith disclosing to the Buyer the existence of such
litigation (see Schedule 5 to the Repurchase Agreement).  The Waiver shall apply solely to the
litigation set forth on Schedule 5 to the Repurchase Agreement as of the date
of this Waiver Agreement.


 


(F)                                 Section 9.04(c) –
The Sellers are not presently originating or acquiring Mortgage Loans and do
not expect to do so in the foreseeable future. 
The Waiver shall immediately cease as to that Seller who enters into, in
the ordinary course of business, the business of originating or acquiring
Mortgage Loans.


 


UBS
hereby agrees to the Waiver for those Events of Default as set forth above in (A) –
(F) and any Events of Default under the Existing Agreement, (as defined in
the Repurchase Agreement), which are no longer representations, warranties or
covenants of the Sellers in the Repurchase Agreement.  In the event that an Event of Default occurs
under the Repurchase Agreement on or after the date hereof, the Sellers
acknowledge and agree that UBS may immediately exercise its rights and remedies
under the Repurchase Agreement, including but not limited to:  (i) enforcing the obligations of the
Sellers to immediately pay the Repurchase Price to repurchase all Purchased
Assets; (ii) selling the Purchased Assets to third parties chosen by UBS
(or deeming such sale to occur in accordance with the Repurchase Agreement); (iii) obtaining
an injunction or an order of specific performance against any of the Sellers;
and (iv) declaring the occurrence of the Final Repurchase Date.


 


The
Sellers hereby release and waive any claims, counterclaims, crossclaims,
offsets, recoupment, causes of action or defenses they have or may have arising
from any matter with regard to the Repurchase Agreement, the performance of
their obligations thereunder, or any transaction related to the Repurchase
Documents, against and/or with regard to UBS and/or any of its affiliates,
employees, officers, directors, agents, successors or assigns thereof, and any
such claims, counterclaims, crossclaims, offsets, recoupment, causes of action
or defenses are hereby waived, relinquished and released in consideration of
UBS’s execution and delivery of this Agreement.


 


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Except
as stated herein, UBS shall not be deemed to have waived or modified any of its
rights hereunder or under any other agreement, instrument or paper signed by
any Seller unless such waiver or modification is in writing and signed by
UBS.  No failure or delay on the part of
UBS in exercising any right, power or remedy hereunder or under any Repurchase
Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy
hereunder.  The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.  Any provision hereof which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or uneforceability without
invalidating the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.


 


Please
return to UBS a copy of this Agreement countersigned by each of the
Sellers.  Such signatures shall also
constitute a ratification and reaffirmation by the Sellers of all Repurchase
Documents to which any Seller is a party and of all obligations, liabilities,
liens, security interests, rights and remedies created or evidenced
thereby.  This Agreement shall be
construed in accordance with and governed by the laws of the State of New York
(without regard to conflicts of law principles).


 


This
Agreement may be executed by the parties hereto in several counterparts, each
of which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. 
The parties may execute facsimile copies of this Agreement and the
facsimile (or electronic) signatures of any such party shall be deemed an
original and fully binding on said party.


 


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If the
foregoing correctly sets forth the Sellers’ agreement, please so indicate by
executing and returning to UBS a copy of this Agreement.


 


	
   

  	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UBS REAL ESTATE SECURITIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jonathan Banks

  
	
   

  	
   

  	
   

  	
  Name:  Jonathan
  Banks

  
	
   

  	
   

  	
   

  	
  Title:  Executive
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert Carpenter

  
	
   

  	
   

  	
   

  	
  Name:  Robert
  Carpenter

  
	
   

  	
   

  	
   

  	
  Title:  Executive
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Acknowledged and Agreed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  IMPAC FUNDING CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Ronald Morrison

  	
   

  	
   

  
	
   

  	
  Name:  Ronald
  Morrison

  	
   

  	
   

  
	
   

  	
  Title:  Executive Vice-President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  IMPAC MORTGAGE HOLDINGS, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Ronald Morrison

  	
   

  	
   

  
	
   

  	
  Name:  Ronald
  Morrison

  	
   

  	
   

  
	
   

  	
  Title:  Executive Vice-President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  IMPAC WAREHOUSE LENDING
  GROUP, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Ronald Morrison

  	
   

  	
   

  
	
   

  	
  Name:  Ronald
  Morrison

  	
   

  	
   

  
	
   

  	
  Title:  Executive Vice-President

  	
   

  	
   

  



 


[Signature Page to the Waiver Agreement]


 


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