exv10w1






Exhibit 10.1



ASSET SALE AGREEMENT




     THIS ASSET SALE AGREEMENT is made as of July 19, 2011 (the “Effective Date”), by AURORA BANK
FSB, a Federally chartered savings institution (“Seller”) and EOS Preferred Corporation, a
Massachusetts corporation (“Purchaser”). Seller and Purchaser are sometimes referred to herein
collectively as the “Parties”.



RECITALS




     This Agreement contemplates a transaction in which Purchaser will purchase from Seller, and
Seller will sell to Purchaser, all of the Assets described in Exhibit A attached hereto.



AGREEMENT




     In consideration of the mutual promises herein made, and in consideration of the
representations, warranties, and covenants herein contained, the Parties agree as follows:


1. Definitions. For purposes of this Agreement, the following terms shall have the
meanings indicated.




     “Adjusted Fair Value” Outstanding Balance of an Asset as of the date the Asset was purchased
by the Purchaser less any principal amounts received multiplied by the Mark plus accrued interest
on the outstanding amount as of the date of repurchase from the last payment date up to but not
including the date the repurchase occurs.



     “Agreement” means this Asset Sale Agreement and attachments hereto including, without
limitation, all schedules, exhibits and attachments to this Agreement.



     “Asset” means the transferred products set forth on Exhibit A.



     “Asset Repurchase Price” means the Adjusted Fair Value.



     “Bill of Sale” means a bill of sale substantially in the form of Exhibit B to be executed and
delivered by Seller at Closing to sell, assign and transfer to Purchaser all of the rights, title,
and interests of Seller in the Assets.



     “Closing” means the Closing as the context shall require.



     “Closing Date” has the meaning set forth in Section 2.02.



     “Mark” means the percentage of par used to derive the Fair Value as stated on Exhibit A.



     “Outstanding
Amount” means the current face amount of the Asset as of the Closing Date and
stated on Exhibit A.



     “Purchase Price” has the meaning set forth in Section 2.03.



 









 





2. Purchase and Sale of Assets.




     2.01 Purchase and Sale. On and subject to the terms and conditions of this Agreement,
Purchaser agrees to purchase from Seller, and Seller agrees to sell to Purchaser, all right, title
and interest of Seller in and to the Assets for the Purchase Price.



     2.02 Closing. The Closing of the transaction contemplated by this Agreement shall
take place in accordance with this Section 2.02, and at the offices of Seller located at 1271
Avenue of the Americas, New York, NY 10020 commencing at 9:00 a.m. local time, or at such other
place, date or time as the Parties may mutually agree.



          (a) Closing. The closing of the purchase and sale of the Assets (the “Closing”) shall
occur on or before July 19, 2011, or such other date mutually agreeable to the Seller and Purchaser
(the “Closing Date”). All Closing deliveries, requirements, adjustments and conditions shall be
applicable to the Closing Date with respect to the Assets.




          (b) Closing Date Extension. If Closing does not occur on the Closing Date, the
Closing Date shall automatically be extended for multiple, additional consecutive fourteen (14) day
periods, until (i) the Closing occurs, or (ii) either Seller or Purchaser sends written notice to
the other Party terminating this Agreement. During the extended Closing Date periods, the terms and
conditions of this Agreement shall remain in full force and effect.




     2.03 Purchase Price. The purchase prices for the purchase and sale of the Assets
shall be an amount equal to the applicable Fair Value of the Assets as stated on Exhibit A (the
“Fair Value”) (collectively the “Aggregate Fair Value”). The Aggregate Fair Value plus accrued
interest at the weighted average Asset interest rate (stated on Exhibit A) on the Outstanding
Amount of the Asset from the last payment date of the Asset up to but not including the Closing
Date shall be payable on the Closing Date.



     2.04 Fees and Other Costs. All legal fees and any costs which cannot be determined or
paid at Closing shall be paid by the Party responsible post-Closing promptly after such amounts are
determined or payable.



3. Representations and Warranties Concerning the Transaction.




     3.01 Representations and Warranties of Seller. Seller represents and warrants to
Purchaser that the statements contained in this Section 3.01 are correct and complete as of the
date of this Agreement and will be correct and complete as of the Closing Date (as though made then
and as though the Closing Date were substituted for the date of this Agreement throughout this
Section 3.01).



          (a) Organization. Seller is a Federally chartered, regulated and insured savings
institution, and is duly organized and validly existing under the laws of the United States of
America.




          (b) Authority. Seller has taken all necessary action to authorize its execution,
delivery and performance of, and has the power and authority to execute, deliver and perform its
obligations under this Agreement, and to consummate the transactions contemplated by this
Agreement.




          (c) Enforceability. This Agreement, all of the obligations of Seller in connection
with this Agreement, are the legal, valid and binding obligations of Seller, enforceable against
Seller in accordance with their terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the enforcement of
creditors’ rights generally




 









 








and general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).




          (d) No Conflict; Consents. Neither Seller’s execution and delivery of this Agreement
nor the performance of its obligations in connection with this Agreement will conflict with or
result in a breach of or constitute a default under any of the terms, conditions or provisions of
any agreement to which Seller is a party or by which it is bound. Seller has obtained all
consents, approvals, authorizations and orders of any court or governmental agency or body required
for its execution, delivery and performance of this Agreement. After due inquiry, Seller is not
aware of any facts or circumstances regarding Seller, or this Agreement that would, individually or
in the aggregate, affect the validity of this Agreement or the value of the Assets transferred in
accordance with this Agreement.




          (e) Pending Legal Action. To Seller’s knowledge, there is no action, suit or
proceeding pending against Seller in any court or by or before any other governmental agency or
instrumentality which if determined adversely to Seller would materially or adversely affect the
ability of Seller to carry out the transactions contemplated by this Agreement.




          (f) Brokers’ Fees. Seller does not have any agreement, liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which Purchaser could become liable or obligated.




          (g) Seller’s Financial Condition. Seller is not insolvent as of the date of this
Agreement and shall not be rendered insolvent by the consummation of the transactions contemplated
by this Agreement.




          (h) Regulatory Actions. Seller represents that any and all necessary disclosures,
documents and opinions required to be given to the appropriate regulatory agencies in connection
with this Agreement have been timely given; and any and all necessary approvals, consents or
actions including without limitation, written notice of non-objection by the appropriate regulatory
agencies, have been obtained by Seller.




     3.02 Representations and Warranties of Purchaser. Purchaser represents and warrants
to Seller that the statements contained in this Section 3.02 are correct and complete as of the
date of this Agreement and will be correct and complete as of the Closing Date.



          (a) Organization. Purchaser is a Massachusetts corporation and is duly organized,
validly existing, and in good standing under the laws of the Commonwealth of Massachusetts.




          (b) Authority. Purchaser has taken all necessary action to authorize its execution,
delivery and performance of, and has the power and authority to execute, deliver and perform its
obligations under, this Agreement, and to consummate the transactions contemplated hereby.




          (c) Enforceability. This Agreement, and all the obligations of Purchaser hereunder
and thereunder are the legal, valid and binding obligations of Purchaser, enforceable against
Purchaser in accordance with their terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the enforcement of
creditors’ rights generally and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).




          (d) No Conflict; Consents. Neither Purchaser’s execution and delivery of this
Agreement nor the performance of its obligations hereunder will conflict with or result in a breach
of or






 









 







constitute a default under any of the terms, conditions or provisions of any agreement to
which Purchaser is a party or by which it is bound. Purchaser has obtained all consents,
approvals, authorizations and orders of any court or governmental agency or body required for its
execution, delivery and performance of this Agreement.




          (e) Pending Legal Action. To Purchaser’s knowledge, there is no action, suit or
proceeding pending against Purchaser in any court or by or before any other governmental agency or
instrumentality which if determined adversely to Purchaser would materially and adversely affect
the ability of Purchaser to carry out the transactions contemplated by this Agreement.




          (f) Brokers’ Fees. Purchaser does not have any agreement, liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which Seller could become liable or obligated.




4. Representations, Warranties and Covenants Concerning the Assets.




     4.01 Representations and Warranties Concerning the Assets. Seller represents and
warrants to Purchaser with respect to the Assets that:



          (a) the statements contained in this Section 4.01 are correct and complete as of the
date of this Agreement and will be correct and complete as of the Closing Date.




          (b) As of the Closing Date, Seller is the sole legal and beneficial owner and holder of all
rights, title and interest in and to the Assets, free and clear of any and all liens, security
interests, pledges, charges, or rights of redemption. Seller has full right and authority to sell,
assign and transfer the Assets without the consent of any Person.




     4.02 Further Cooperation. Seller covenants and agrees that it shall, from time to
time, and with no further cost to Purchaser, execute and deliver or cause to be executed and
delivered, such additional instruments, assignments, endorsements, papers and documents as
Purchaser may at any time reasonably request for the purpose of carrying out this Agreement and the
transfers provided for herein.



5. Conditions to Obligation to Close.




     5.01 Conditions to Obligation of Purchaser. The obligation of Purchaser to consummate
the transactions to be performed by it in connection with the Closing is subject to satisfaction of
the following conditions:



          (a) the representations and warranties set forth in Section 3.01 and Section 4 above shall be
true and correct in all material respects at and as of the Closing Date;




          (b) Seller shall have performed and complied with all of its covenants hereunder in all
respects through Closing and shall have delivered Exhibit A in form reasonably acceptable to
Purchaser;




          (c) Seller shall have delivered to Purchaser the Bill of Sale;




          (d) Seller shall have received all requisite consents and approvals necessary to enter into
and consummate the transactions contemplated in this Agreement;







 









 








     5.02 Conditions to Obligation of Seller. The obligation of Seller to consummate the
transactions to be performed by it in connection with Closing is subject to satisfaction of the
following conditions:



          (a) the representations and warranties set forth in Section 3.02 above shall be true and
correct in all respects at and as of the Closing Date;




          (b) Purchaser shall have performed and complied with all of its covenants hereunder in all
respects through Closing;




          (c) Purchaser shall have paid to Seller the Aggregate Purchase Price.




     Seller may waive any condition specified in this Section 5.02 if it executes a writing so
stating at or prior to Closing.



6. Remedies for Breaches of this Agreement.




     6.01 Survival of Representations and Warranties. All of the representations and
warranties of the Parties contained in this Agreement shall survive Closing and continue in full
force and effect for a period of five (5) years thereafter.



     6.02 Repurchase of Assets.



          (a) Notice of a Breach. In the event of a breach by Seller of a representation or
warranty contained in Section 4 with respect to the Assets, Purchaser shall have the right to give
Seller a notice of breach no later than 30 days following the determination by Purchaser of the
breach thereof.




          (b) Eligibility Determination. In the event Purchaser determines, through independent
verification, that any Asset purchased herein is an Asset that is ineligible to be held by a real
estate investment trust, or is determined to be ineligible under the terms of Purchaser’s charter,
or because of the existence of any regulatory action, order, determination or otherwise, Purchaser
shall notify Seller in writing of such ineligibility. Pursuant to section 6.02(c) Seller at its
option may repurchase said Asset and remit to Purchaser the Asset Repurchase Price with respect to
such Asset on the date such repurchase shall occur.




          (c) Seller’s Response. By no later than 45 days following its receipt of a notice,
Seller shall notify Purchaser in writing that Seller: (i) disputes that the alleged breach exists,
(ii) disputes the eligibility finding (iii) intends to attempt to cure such breach within 30 days
or (iv) will repurchase the Assets and remit to Purchaser the Asset Repurchase Price with respect
to such Asset, and the date on which such repurchase shall occur, which in no event shall be later
than 10 days after Seller’s response.




          (d) Repurchase of Assets. If Seller becomes obligated by this Agreement to
repurchase any Assets from Purchaser, then (i) closing of such repurchase shall occur within ten
(10) days after Seller’s repurchase obligation is determined, (ii) at such closing Seller shall pay
Purchaser by wire transfer to an account designated by Purchaser, the Asset Repurchase Price, and
(iii) Purchaser shall convey the Assets to Seller, pursuant to documents substantially the same as
those originally delivered to Purchaser by Seller, and shall make deliveries and take all other
appropriate action on the same terms and conditions under which Seller had conveyed such Assets to
Purchaser. Such conveyance(s) by Purchaser shall be without recourse, representation, or warranty
(express or implied) of any kind except Purchaser is the owner of the affected Assets and has the
authority to transfer the Assets free and clear of any liens to Seller.






 









 








7. Termination.




          7.01 Termination of Agreement. The Parties may terminate this Agreement by mutual
written consent at any time prior to Closing;




          7.02 Effect of Termination. If any Party terminates this Agreement pursuant to
Section 7.01 above, all rights and obligations of the Parties hereunder shall terminate
without any Liability of either Party to the other.





	8.	 	Miscellaneous.





     8.01 Further Actions. If after Closing any further action is necessary or desirable
to carry out the purposes of this Agreement, each of the Parties will take such further action as
any other Party may request.



     8.02 No Third-Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any Person other than the Parties and their respective successors and permitted
assigns.



     8.03 Entire Agreement. This Agreement constitutes the entire agreement among the
Parties and supersedes any prior understandings, agreements, or representations by or among the
Parties, written or oral, to the extent they relate in any way to the subject matter hereof.



     8.04 Succession and Assignment. This Agreement shall be binding upon and inure to the
benefit of the Parties named herein and their respective successors and permitted assigns. No
Party may assign either this Agreement or any of its rights, interests, or obligations hereunder
without the prior written approval of the other party.



     8.05 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together will constitute one and the same
instrument.



     8.06 Headings. The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation of this Agreement.



     8.07 Notices. All notices, requests, demands, claims, and other communications
hereunder shall be in writing. Any notice, request, demand, claim, or other communication
hereunder shall be deemed duly given if it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth below:



	 	 	 

	If to Seller:

	 	Aurora Bank FSB

1271 Avenue of the Americas

New York, NY 10020

Attention: William K. Walenczyk

Phone: (212) 377-1562

Fax: (212) 548-9356






 









 






	 	 	 

	Copy to:

	 	Aurora Bank FSB

1271 Avenue of the Americas

New York, NY 10020

Attention: General Counsel

	 
	 	 
	If to Purchaser:

	 	EOS Preferred Corporation

1271 Avenue of the Americas

New York, NY 10020

Phone: 212-377-1900

Attention: Brian Kuelbs, President
	 
	 	 
	Copy to:

	 	Lloyd M. Winans, Esquire

Baker & McKenzie

1114 Avenue of the Americas

New York, NY 10036

Phone: (212) 626-4515

Fax: (212) 310-1841





Any Party may send any notice, request, demand, claim, or other communication hereunder to the
intended recipient at the address set forth above using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic
mail), but no such notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended recipient. Any Party may
change the address to which notices, requests, demands, claims, and other communications hereunder
are to be delivered by giving the other Parties notice in the manner herein set forth.




     8.08 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF
LAW, PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD
CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.



     8.09 Amendments and Waivers. No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by Purchaser and Seller. No waiver by any
Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.



     8.10 Severability. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability
of the remaining terms and provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction.



     8.11 Expenses. Regardless of whether Closing occurs, each Party shall be responsible
for the payment of all costs and expenses incurred by it in negotiating and performing its
obligations under this Agreement and the transactions contemplated hereby, including, without
limitation, the costs of its due diligence providers, counsel, accountants and consultants.



 









 





     8.12 Construction. The Parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption
or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any
of the provisions of this Agreement. The word “including” shall mean including without limitation.
The Parties intend that each representation, warranty, and covenant contained herein shall have
independent significance. If any Party has breached any representation, warranty, or covenant
contained herein in any respect, the fact that there exists another representation, warranty, or
covenant relating to the same subject matter (regardless of the relative levels of specificity)
which the Party has not breached shall not detract from or mitigate the fact that the Party is in
breach of the first representation, warranty, or covenant.



     8.13 Incorporation of Exhibits and Schedules. The Exhibits and Schedules identified
in this Agreement are incorporated herein by reference and made a part hereof.



     8.14 Purchase and Sale Transaction. Seller and Purchaser acknowledge and agree that
the transaction contemplated by this Agreement constitutes a purchase and sale of assets with all
incidents, benefits and risks of ownership passing to the Purchaser and from the Seller upon
Closing and any residual recourse to Seller being limited as is provided in this Agreement, and
Seller and Purchaser agree that each shall report this transaction in any statements, filings
and/or returns (securities, tax or otherwise) accordingly.



     8.15 Confidentiality. All information disclosed or furnished by one party to another,
whether orally or in writing, in connection with this Agreement and Purchaser’s due diligence
examination of Seller’s files shall be deemed to be proprietary and confidential information of the
disclosing Party. The receiving Party agrees not to disclose such information to any third party
other than its representatives or employees, legal counsel, accountants, advisors, or, as
necessary, to applicable regulatory agencies, as otherwise contemplated in this Agreement or the
Exhibits and Schedules hereto or as required by applicable law or regulation.



{THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK. SIGNATURES APPEAR ON THE FOLLOWING

PAGE.}







 









 








     IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	PURCHASER: 
	 EOS Preferred Corporation

a Massachusetts corporation

 	 
	 	By:  	/s/ Brian Kuelbs
 	 
	 	 	Brian Kuelbs 	 
	 	 	President 	 
	 
	SELLER: 
	 AURORA BANK FSB

a Federally chartered savings institution

 	 
	 	By:  	/s/ William Walenczyk
 	 
	 	Name:  	William Walenczyk 	 
	 	Title:  	Senior Vice President 	 
	 


LIST OF EXHIBITS:




	 	 	 

	Exhibit A

	 	Assets Schedule
	Exhibit B

	 	Bill of Sale






 









 









EXHIBIT A

ASSETS SCHEDULE




     Asset Name ___ Cusip ___Outstanding Amount ___Mark ___Fair
Value___Asset Interest Rate ___last payment date of the Asset________



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Outstanding	 	 	Transaction	 	 	Fair	 	 	Asset Interest	 	 	Stated	 
	Asset Name	 	CUSIP	 	 	Amount	 	 	Price	 	 	Value	 	 	Rate	 	 	Maturity	 
	CMLTI 2011-2 3A1
	 	 	17318DAJ1	 	 	$	20,970,921	 	 	 	98.40	 	 	$	20,635,387	 	 	 	3.50	%	 	 	09/25/2037	 
	CMLTI 2010-12 2A6
	 	 	17317VAQ6	 	 	$	15,157,148	 	 	 	99.35	 	 	$	15,058,627	 	 	 	3.50	%	 	 	09/25/2036	 
	BCAP 2010-RR12 4A5
	 	 	05533NCT9	 	 	$	11,028,309	 	 	 	100.375	 	 	$	11,069,666	 	 	 	5.10	%	 	 	10/26/2036	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	47,156,379	 	 	 	 	 	 	$	46,763,679	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 











 








EXHIBIT B




BILL OF SALE



     FOR VALUE RECEIVED, AURORA BANK FSB, a federally chartered savings bank (“Seller”), hereby
sells, conveys, and sets over to EOS PREFERRED CORPORATION, a Massachusetts corporation
(“Purchaser”), all of Seller’s right, title, and interest in and to the following:




	 	 	 	All Assets set forth on Schedule A herein, and all property,
documents, rights, and other things relating to or arising out of
the foregoing.





     To have and to hold said assets unto Purchaser, and its successors and assigns, to and for its
use forever.



     And Seller does hereby warrant, covenant, and agree that it has title free and clear of all
title defects, liens, encumbrances, and security interests of any kind, nature, or description to
the assets hereby conveyed to Purchaser, and Purchaser will receive by this Bill of Sale such title
to the assets.



     IN
WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed
as of July 28,
2011.



	 	 	 	 	 
	 	AURORA BANK FSB, a federal savings bank

 	 
	 	By:  	 	 
	 	Name: 	 	 	 
	 	Title: 	 	 	 
	 



	 	 	 	 	 

	STATE OF ___________________

	 	) 		 
	 

	 	) ss.

	COUNTY OF _______________

	 	) 		 






     On this _____day of July, 2011, before me a Notary Public within and for said County,
personally appeared ________________________, to me known, who being by me duly sworn, did say that
s/he is the ____________________ of Aurora Bank, a federal savings bank, the corporation named in
the foregoing instrument, and that said instrument was signed on behalf of said corporation by
authority of its Board of Directors and as the free act and deed of said corporation.



	 	 	 	 	 
	 	 	 
	 	  	
 	 
	 	 	Notary Public