Exhibit
10.1(b)


 


UBS REAL ESTATE SECURITIES INC.

1285 Avenue of the Americas - 11th Floor

New York, New York 10019


 


September 11, 2008


 


Impac
Funding Corporation


Impac
Mortgage Holdings, Inc.


Impac
Warehouse Lending Group, Inc. 


19500
Jamboree Road


Irvine,
California 92612


 


Attention:
Ron Morrison


 


Fee Letter Re: Amended and Restated Master Repurchase Agreement


 


Ladies
and Gentlemen:


 


We
refer to the Amended and Restated Master Repurchase Agreement, dated as of
September 11, 2008 (as amended, supplemented or otherwise modified from
time to time, the “Master Agreement”), between UBS REAL ESTATE SECURITIES INC.,
a Delaware corporation (“Buyer”), IMPAC FUNDING CORPORATION, a California
corporation, as a seller and as servicer (“IFC”), IMPAC MORTGAGE HOLDINGS, INC.
a Maryland corporation, as a seller (“IMH”) and IMPAC WAREHOUSE LENDING GROUP,
INC., a California corporation, as a seller (“IWLG” and together with IFC and
IMH, the “Sellers”, and each individually, a “Seller”). This letter agreement
(this “Fee Letter”) shall constitute the “Fee Letter” as defined in the
Master Agreement. Capitalized terms used but not defined in this letter
agreement are used with the meanings assigned to them in the Master Agreement.


 


Certain
Payment Obligations of Sellers.


 


(a) Monthly
Non-Income Payments. Sellers jointly and severally agree to pay to Buyer
(i) within 30 days of the Restatement Closing Date, an amount equal to
$750,000, and (ii) on the 30th day of each calendar month
thereafter, until the date that IMH raises at least a gross amount of
$150,000,000 of equity capital pursuant to its “efforts” obligation described
in clause (i) of subsection (b) below, an amount equal to $1,500,000
per month, and (iii) after the date that IMH raises at least a gross amount
of $150,000,000 of equity capital pursuant to its “efforts” obligation
described in clause (i) of subsection (b) below, if ever occurring,
then on the 30th day of each calendar month thereafter an amount equal to
$750,000 continuing until all Repurchase Price and other obligations of Sellers
under the Master Agreement shall have been paid in full. Neither Income
received or receivable by Buyer under the Master Agreement, nor any entitlement
of Sellers to a debit of the UBS Cash Account under the Master Agreement, shall
be applied or credited in satisfaction of the Sellers’ obligations under this
subsection (a), which shall constitute a separate payment obligation of the
Sellers to be satisfied from other sources of funds (but subject to the last
sentence of this subsection (a) below). All


 

















 


amounts
paid to Buyer pursuant to this subsection (a) (any such amounts, “Monthly
Non-Income Payments”) shall be paid to the account set forth in
Section 7.01 of the Master Agreement and shall reduce the aggregate
Repurchase Price with respect to all outstanding Transactions (in the order of,
first, accrued and unpaid Price Differential, and then second, Purchase Price).


 


(b) IMH
Capital Raise and Related Payment Obligations of IMH.


 


(i)            After the Restatement Closing date, IMH will
use its best, commercially reasonable efforts, within sixty (60) days of its
first becoming current and in compliance with its required SEC quarterly and
annual reporting requirements and in any event not later than [October 31,
2008], to raise and to receive, in cash, additional equity capital
contributions in an amount at least equal to a gross amount of $150,000,000
(from which related fees and expenses may be netted without affecting IMH’s
compliance with this “efforts” undertaking if a gross amount of not less than
$150,000,000 is raised).


 


(ii)           If IMH fails to raise and receive such amount of equity capital
pursuant to its “efforts” undertaking in clause (i) of this subsection
(b) by [October 31, 2008], IMH shall continue to use such efforts to
raise additional equity capital. To the extent IMH succeeds in raising
additional equity capital of $200,000,000 or more, then upon receiving proceeds
of such equity capital raise, IMH shall immediately apply such proceeds to the
repayment of (or otherwise repay) additional Outstanding Repurchase Price
amounts at least equal to the amounts below corresponding to the aggregate
equity capital contribution amounts below (it being agreed that the obligation
to pay such amounts may be satisfied using the proceeds of such equity capital
contributions or using other available sources of funds, if any, but shall
constitute a separate obligation from, and will not be reduced by, any Monthly
Non-Income Payments owing or made to Buyer, nor by any entitlement of Sellers
to a debit of the UBS Cash Account under the Master Agreement, nor by Buyer’s
receipt of Income to which it is entitled pursuant to the Master Agreement):


 


	
  Aggregate Equity Capital

  	
   

  	
  Amount of Outstanding Repurchase Price

  	
   

  
	
  Contributions Raised

  	
   

  	
  Payable

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  $200,000,000 -
  249,999,999.99

  	
   

  	
  $

  	
  21,000,000

  	
   

  
	
  $250,000,000 -
  299,999,999.99

  	
   

  	
  $

  	
  26,000,000

  	
   

  
	
  $300,000,000 -
  349,999,999.99

  	
   

  	
  $

  	
  31,000,000

  	
   

  
	
  $350,000,000 -
  399,999,999.99

  	
   

  	
  $

  	
  36,000,000

  	
   

  
	
  $400,000,000 -
  449,999,999.99

  	
   

  	
  $

  	
  41,000,000

  	
   

  
	
  $450,000,000 or more

  	
   

  	
  $

  	
  46,000,000

  	
   

  



 


(iv)          Payments made by IMH to Buyer pursuant to this subsection
(b) shall be paid to the account set forth in Section 7.01 of the
Master Agreement and shall reduce the aggregate Repurchase Price with respect
to all outstanding Transactions (in the order of, first, accrued and unpaid
Price Differential, and then second, Purchase Price).


 

















 


Certain
Performance Fee Obligations of Buyer.


 


(a)          If Sellers shall repay the Outstanding Repurchase Price in full and pay
all other amounts payable under the Master Agreement not later than the second
anniversary of the Restatement Closing Date, then Buyer shall pay IMH a
performance fee in cash equal to $1,500,000.


 


(b)         The aforementioned performance fee obligation shall be not payable if
any of the amounts paid to Buyer pursuant to the Master Agreement are the
subject of any litigation commenced by, or on behalf of, Sellers (or any of
them) or are the subject of any disgorgement or similar action in any
bankruptcy or insolvency proceeding.


 


Certain
Margin and Servicing Fee Provisions in Master Agreement.


 


(a)          Spread Fee Rate. As used in the Master Agreement, the
“Spread Fee Rate” shall be 3.25% per annum.


 


(b)         Seller’s Cash Component Spread Fee Rate. As used in the Master Agreement, the
“Seller’s Cash Component Spread Fee Rate” shall be 1.00% per annum.


 


(c)          Post-Default Spread. As used in the Master Agreement, the
“Post-Default Spread” shall be 4.00% per annum.


 


(d)         Interim Servicer Fee Rate. As used in the Master Agreement, the
“Interim Servicer Fee Rate” shall be 0.03% per annum.


 


(e)          Platform Servicer Fee Rate. As used in the Master Agreement, the
“Platform Servicer Fee Rate” shall be 0.47% per annum; provided, that if the Servicer is no
longer acting as interim servicer under the Master Agreement so as to no longer
be entitled to accruing Interim Servicing Fee (as described in
Section 11.10(j) of the Master Agreement), then the Platform Servicer
Fee Rate shall thereafter be 0.50% per annum.


 


Governing
Law, Etc.


 


This
Fee Letter shall not be assignable by Sellers (or any of them) without the
prior written consent of Buyer, and any purported assignment without such
consent shall be void.


 


This
Fee Letter may not be amended or any provision hereof waived or modified except
by an instrument in writing signed by the parties hereto. This Fee Letter may
be executed in any number of counterparts, each of which shall be an original
and all of which, when taken together, shall constitute one agreement. Delivery
of an executed counterpart of a signature page of this Fee Letter by
facsimile or electronic transmission shall be effective as delivery of a
manually executed counterpart of this Fee Letter. Headings are for convenience
of reference only and shall not affect the construction of, or be taken into
consideration when interpreting, this Fee Letter. This Fee Letter is intended
to be for the benefit of the parties hereto and is not intended to confer any
benefits upon, or create any rights in favor of, and may not be relied on by,
any persons other than the parties hereto.


 

















 


This Fee Letter shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of law to the extent that the application of the laws of another
jurisdiction will be required thereby. Any right to trial by jury with respect to any claim or action arising
out of this Fee Letter is hereby waived. Each party to this Fee Letter hereby
submits to the non-exclusive personal jurisdiction of the federal and New York
State courts located in The City of New York (and appellate courts thereof) in
connection with any dispute related to this Fee Letter or any of the matters
contemplated hereby, and agrees that service of any process, summons, notice or
document by registered mail addressed to it shall be effective service of
process against it for any suit, action or proceeding relating to any such
dispute. Each party irrevocably and unconditionally waives any objection to the
laying of such venue of any such suit, action or proceeding brought in any such
court and any claim that any such suit, action or proceeding has been brought
in an inconvenient forum. A final judgment in any such suit, action or
proceeding brought in any such court may be enforced in any other courts to
whose jurisdiction a party is or may be subject by suit upon judgment.


 


The
provisions of this Fee Letter shall survive the expiration or termination of
the Master Agreement (including any extensions). This Fee Letter shall be
governed by the confidentiality provisions of the Master Agreement.


 


[signatures follow]


 

















 


If
Sellers are in agreement with the foregoing, kindly sign and return to Buyer
the enclosed copy of this Fee Letter.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UBS
  REAL ESTATE SECURITIES INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert Carpenter

  
	
   

  	
   

  	
  Name:

  	
  Robert
  Carpenter

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jonathan Banks

  
	
   

  	
   

  	
  Name:

  	
  Jonathan
  Banks

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Director

  



 


Accepted
and agreed to as of

the date first written above:


 


 


	
  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