**Exhibit10.1(b)**

 

UBS REAL ESTATE SECURITIES INC.1285 Avenue of the Americas - 11th FloorNew York, New York 10019

 

September 11, 2008

 

ImpacFunding Corporation

ImpacMortgage Holdings, Inc.

ImpacWarehouse Lending Group, Inc. 

19500Jamboree Road

Irvine,California 92612

 

Attention:Ron Morrison

 

Fee Letter Re: Amended and Restated Master Repurchase Agreement

 

Ladiesand Gentlemen:

 

Werefer to the Amended and Restated Master Repurchase Agreement, dated as ofSeptember 11, 2008 (as amended, supplemented or otherwise modified fromtime to time, the “Master Agreement”), between UBS REAL ESTATE SECURITIES INC.,a Delaware corporation (“Buyer”), IMPAC FUNDING CORPORATION, a Californiacorporation, 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 andIMH, the “Sellers”, and each individually, a “Seller”). This letter agreement(this “Fee Letter”) shall constitute the “Fee Letter” as defined in theMaster Agreement. Capitalized terms used but not defined in this letteragreement are used with the meanings assigned to them in the Master Agreement.

 

CertainPayment Obligations of Sellers.

 

(a) MonthlyNon-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 monththereafter, until the date that IMH raises at least a gross amount of$150,000,000 of equity capital pursuant to its “efforts” obligation describedin clause (i) of subsection (b) below, an amount equal to $1,500,000per month, and (iii) after the date that IMH raises at least a gross amountof $150,000,000 of equity capital pursuant to its “efforts” obligationdescribed 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 Sellersunder the Master Agreement shall have been paid in full. Neither Incomereceived or receivable by Buyer under the Master Agreement, nor any entitlementof Sellers to a debit of the UBS Cash Account under the Master Agreement, shallbe applied or credited in satisfaction of the Sellers’ obligations under thissubsection (a), which shall constitute a separate payment obligation of theSellers to be satisfied from other sources of funds (but subject to the lastsentence of this subsection (a) below). All

 

----

 

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

 

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

 

(i)            After the Restatement Closing date, IMH willuse its best, commercially reasonable efforts, within sixty (60) days of itsfirst becoming current and in compliance with its required SEC quarterly andannual reporting requirements and in any event not later than [October 31,2008], to raise and to receive, in cash, additional equity capitalcontributions 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’scompliance 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 capitalpursuant to its “efforts” undertaking in clause (i) of this subsection(b) by [October 31, 2008], IMH shall continue to use such efforts toraise additional equity capital. To the extent IMH succeeds in raisingadditional equity capital of $200,000,000 or more, then upon receiving proceedsof such equity capital raise, IMH shall immediately apply such proceeds to therepayment of (or otherwise repay) additional Outstanding Repurchase Priceamounts at least equal to the amounts below corresponding to the aggregateequity capital contribution amounts below (it being agreed that the obligationto pay such amounts may be satisfied using the proceeds of such equity capitalcontributions or using other available sources of funds, if any, but shallconstitute a separate obligation from, and will not be reduced by, any MonthlyNon-Income Payments owing or made to Buyer, nor by any entitlement of Sellersto a debit of the UBS Cash Account under the Master Agreement, nor by Buyer’sreceipt 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 theMaster Agreement and shall reduce the aggregate Repurchase Price with respectto all outstanding Transactions (in the order of, first, accrued and unpaidPrice Differential, and then second, Purchase Price).

 

----

 

CertainPerformance Fee Obligations of Buyer.

 

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

 

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

 

CertainMargin 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 nolonger acting as interim servicer under the Master Agreement so as to no longerbe entitled to accruing Interim Servicing Fee (as described inSection 11.10(j) of the Master Agreement), then the Platform ServicerFee Rate shall thereafter be 0.50% per annum.

 

GoverningLaw, Etc.

 

ThisFee Letter shall not be assignable by Sellers (or any of them) without theprior written consent of Buyer, and any purported assignment without suchconsent shall be void.

 

ThisFee Letter may not be amended or any provision hereof waived or modified exceptby an instrument in writing signed by the parties hereto. This Fee Letter maybe executed in any number of counterparts, each of which shall be an originaland all of which, when taken together, shall constitute one agreement. Deliveryof an executed counterpart of a signature page of this Fee Letter byfacsimile or electronic transmission shall be effective as delivery of amanually executed counterpart of this Fee Letter. Headings are for convenienceof reference only and shall not affect the construction of, or be taken intoconsideration when interpreting, this Fee Letter. This Fee Letter is intendedto be for the benefit of the parties hereto and is not intended to confer anybenefits 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 inaccordance with, the laws of the State of New York without regard to principlesof conflicts of law to the extent that the application of the laws of anotherjurisdiction will be required thereby.** Any right to trial by jury with respect to any claim or action arisingout of this Fee Letter is hereby waived. Each party to this Fee Letter herebysubmits to the non-exclusive personal jurisdiction of the federal and New YorkState courts located in The City of New York (and appellate courts thereof) inconnection with any dispute related to this Fee Letter or any of the matterscontemplated hereby, and agrees that service of any process, summons, notice ordocument by registered mail addressed to it shall be effective service ofprocess against it for any suit, action or proceeding relating to any suchdispute. Each party irrevocably and unconditionally waives any objection to thelaying of such venue of any such suit, action or proceeding brought in any suchcourt and any claim that any such suit, action or proceeding has been broughtin an inconvenient forum. A final judgment in any such suit, action orproceeding brought in any such court may be enforced in any other courts towhose jurisdiction a party is or may be subject by suit upon judgment.

 

Theprovisions of this Fee Letter shall survive the expiration or termination ofthe Master Agreement (including any extensions). This Fee Letter shall begoverned by the confidentiality provisions of the Master Agreement.

 

[signatures follow]

 

----

 

IfSellers are in agreement with the foregoing, kindly sign and return to Buyerthe 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 |

 

Acceptedand agreed to as ofthe 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 |   |
|                                      |                           |  |  |

 

----