**Exhibit 10.1(a)**

 

[Letterhead of UBS Investment Bank]

 

September 11, 2008

 

ImpacFunding Corporation

ImpacMortgage Holdings, Inc.

ImpacWarehouse Lending Group, Inc.

19500Jamboree Road

Irvine,California 92612

 

**RE:         WAIVER AGREEMENT**

** **

Ladiesand Gentlemen:

 

Referenceis made to the Amended and Restated Master Repurchase Agreement, dated as of September 11,2008 (the “Repurchase Agreement”), by and among Impac FundingCorporation, as a Seller (“IFC”), Impac Mortgage Holdings, Inc., asa 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 RepurchaseAgreement in consideration for the Waiver (defined below) and other good andvaluable consideration.  Capitalizedterms not otherwise defined in this Waiver Agreement (this “Waiver Agreement”)shall have the meanings ascribed to them in the Repurchase Agreement.

 

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

 

(A)                              Section 8.05(b) –The Sellers have lost the licenses and approvals of various regulatory agenciesand authorities, but the Sellers do not expect that such losses will result ina Material Adverse Effect on any Seller as its business is presentlyconducted.  The Waiver excludes thoselicenses required for the Servicer to perform its duties as Servicer underRepurchase Agreement.

 

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

 

(C)                                Sections8.18 and 8.28 – The representations and warranties regarding Mortgage Loansset forth in Schedule 1 to the Repurchase Agreement are limited as set forth inSection 2.01 of both agreements and Sellers make no representations or 

 

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

 

(D)                               Sections9.01 and 9.32 – The Sellers have not timely delivered financial statements(and related certifications) for the first and second fiscal quarters of 2008and such financial statements have not been timely filed with the United StatesSecurities and Exchange Commission (the “SEC”). The Waiver shall solely apply to the failure of the Sellers to deliverfinancial statements (and related certifications) to the SEC for the first andsecond fiscal quarters of 2008.

 

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

 

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

 

UBShereby 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 inthe Repurchase Agreement), which are no longer representations, warranties orcovenants of the Sellers in the Repurchase Agreement.  In the event that an Event of Default occursunder the Repurchase Agreement on or after the date hereof, the Sellersacknowledge and agree that UBS may immediately exercise its rights and remediesunder the Repurchase Agreement, including but not limited to:  (i) enforcing the obligations of theSellers to immediately pay the Repurchase Price to repurchase all PurchasedAssets; (ii) selling the Purchased Assets to third parties chosen by UBS(or deeming such sale to occur in accordance with the Repurchase Agreement); (iii) obtainingan injunction or an order of specific performance against any of the Sellers;and (iv) declaring the occurrence of the Final Repurchase Date.

 

TheSellers hereby release and waive any claims, counterclaims, crossclaims,offsets, recoupment, causes of action or defenses they have or may have arisingfrom any matter with regard to the Repurchase Agreement, the performance oftheir obligations thereunder, or any transaction related to the RepurchaseDocuments, against and/or with regard to UBS and/or any of its affiliates,employees, officers, directors, agents, successors or assigns thereof, and anysuch claims, counterclaims, crossclaims, offsets, recoupment, causes of actionor defenses are hereby waived, relinquished and released in consideration ofUBS’s execution and delivery of this Agreement.

 

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Exceptas stated herein, UBS shall not be deemed to have waived or modified any of itsrights hereunder or under any other agreement, instrument or paper signed byany Seller unless such waiver or modification is in writing and signed byUBS.  No failure or delay on the part ofUBS in exercising any right, power or remedy hereunder or under any RepurchaseDocument shall operate as a waiver thereof; nor shall any single or partialexercise of any such right, power or remedy preclude any other or furtherexercise thereof or the exercise of any other right, power or remedyhereunder.  The remedies herein providedare cumulative and not exclusive of any remedies provided by law.  Any provision hereof which is prohibited orunenforceable in any jurisdiction shall, as to such jurisdiction, beineffective to the extent of such prohibition or uneforceability withoutinvalidating the remaining provisions hereof or thereof or affecting thevalidity or enforceability of such provision in any other jurisdiction.

 

Pleasereturn to UBS a copy of this Agreement countersigned by each of theSellers.  Such signatures shall alsoconstitute a ratification and reaffirmation by the Sellers of all RepurchaseDocuments to which any Seller is a party and of all obligations, liabilities,liens, security interests, rights and remedies created or evidencedthereby.  This Agreement shall beconstrued in accordance with and governed by the laws of the State of New York(without regard to conflicts of law principles).

 

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

 

[Remainder of page left intentionally blank]

 

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If theforegoing correctly sets forth the Sellers’ agreement, please so indicate byexecuting 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 |                                 |   |
|                                     |                                  |                                 |   |
| I**MPAC 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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