SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------
SCHEDULE 13D
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13D-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO 13D-2(A)
(AMENDMENT NO. 1)
CAPSTEAD MORTGAGE CORPORATION
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(NAME OF ISSUER)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
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(TITLE OF CLASS OF SECURITIES)
14067E 10 0
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(CUSIP NUMBER)
Randal A. Nardone
Chief Operating Officer and Secretary
Fortress Investment Corp.
1301 Avenue of the Americas
New York, New York 10019
(212) 798-6100
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(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS)
COPY TO:
J. Gregory Milmoe
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
(212) 735-3000
January 12, 2000
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(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(e), 13d(f) or 13d-1(g),
check the following box /_/.
CUSIP NO. 14067 10 0 13D
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
FORTRESS INVESTMENT CORP. (I.R.S. EMPLOYER IDENTIFICATION NUMBER [ ])
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
NOT APPLICABLE (b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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NUMBER OF 7 SOLE VOTING POWER - 0 -
SHARES ------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER - 0 -
OWNED BY ------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER - 0 -
REPORTING ------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER - 0 -
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-0 -
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
NOT APPLICABLE
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
-0-
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14 TYPE OF REPORTING PERSON
CO
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This Amendment No. 1 (this "Amendment") to the Statement on
Schedule 13D dated December 17, 1999 (the "Schedule 13D") filed by Fortress
Investment Corp., a Maryland corporation ("Fortress"), relates to the
common stock, par value $.01 per share (the "Common Stock"), of Capstead
Mortgage Corporation, a Maryland corporation (the "Issuer"). This Amendment
is filed by Fortress. All capitalized terms used but not defined herein
have the meanings ascribed to them in the Schedule 13D.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 is hereby amended by adding the following:
On December 23, 1999, Fortress Investment Corp., a
Maryland corporation ("Fortress") and Fortress Registered
Investment Trust, a Delaware business trust ("Fortress Trust")
entered into an Asset Purchase Agreement (as amended on January 5,
2000, the "Asset Purchase Agreement"), pursuant to which Fortress
Trust agreed to purchase from Fortress the Issuer's Preferred
Stock (as defined below) and all of Fortress' rights and
obligations in and to any agreements relating to Fortress' initial
acquisition of the Preferred Stock (the "Assets"), on or before
January 31, 2000. The purchase price payable for the Assets
pursuant to the Asset Purchase Agreement is
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is hereby amended and restated in its entirety as follows:
On January 12, 2000, Fortress and Fortress Cap
LLC, a newly created and wholly-owned subsidiary of Fortress,
entered into an Assignment Agreement pursuant to which Fortress
assigned all its right, title and interest in the Assets to
Fortress Cap LLC. The sale of the Assets pursuant to the Asset
Purchase Agreement was consummated immediately thereafter through
the sale to Fortress Trust of all of Fortress' right, title and
interest in Fortress Cap LLC for $51, 200,000 (the amount paid by
Fortress for the Preferred Stock under the Stock Purchase
Agreement) plus accrued dividend and out-of-pocket expenses, and
Fortress ceased to be the beneficial owner of the Preferred Stock
and the Issuer's Common Stock into which the Preferred Stock is
convertible.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is hereby amended and restated in its entirety as follows:
On December 23, 1999, Fortress and Fortress Trust entered
into the Asset Purchase Agreement. See Item 4.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 Asset Purchase Agreement, dated as of December 23, 1999,
by and between Fortress Investment Corp. and Fortress
Registered Investment Trust.
Exhibit 2 Amendment No. 1 to the Asset Purchase Agreement, dated
as of January 5, 2000, by and between Fortress Investment
Corp. and Fortress Registered Investment Trust.
SIGNATURE
After reasonable inquiry and to the best of my knowledge
and belief, I certify that the information set forth in this statement is
true, complete and correct.
January 21, 2000
FORTRESS INVESTMENT CORP.
By: /s/ Randal A. Nardone
----------------------------
Randal A. Nardone
as Secretary and Chief
Operating Officer
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement"), is
dated as of 9:00 a.m. Eastern Standard Time, December 23, 1999, and is by
and between Fortress Investment Corp., a Maryland corporation (the
"Seller"), and Fortress Registered Investment Trust, a trust organized
under the laws of the State of Delaware (the "Buyer").
RECITALS
A. The Seller is the owner of the assets (the "Assets")
listed on Schedule 1 attached hereto.
B. The Seller desires to sell the Assets to the Buyer,
and the Buyer desires to purchase the Assets from the Seller, on the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, and of
the representations, warranties, covenants and agreements contained herein,
the parties hereto agree as follows:
1. Sale of the Assets. On the terms and subject to the
conditions of this Agreement, the Seller shall sell, transfer and deliver
the Assets to the Buyer, and the Buyer shall purchase the Assets (together
with any and all liabilities of the Seller associated with such Assets)
from the Seller, for a purchase price equal to Fifty One Million Two
Hundred Thousand Dollars ($51,200,000) plus accrued dividend and out-of
pocket expenses (collectively, the "Purchase Price").
2. Conditions.
(a) The obligations of the Buyer to purchase and pay for
the Assets is subject to the condition (which may be waived by the Buyer in
the Buyer's sole discretion) that at the time of the Closing (as
hereinafter defined) each of the representations of the Seller made in this
Agreement shall be true and correct as though made as of such time.
(b) The obligation of the Seller to sell the Assets to
the Buyer is subject to the condition (which may be waived by the Seller in
the Seller's sole discretion) that at the time of the Closing each of the
representations of the Buyer made in this Agreement shall be true and
correct as though made as of such time.
3. Closing. The closing (the "Closing") of the purchase
and sale of the Assets shall be held, at such time and place as the parties
may mutually agree upon, on or before January 31, 2000. The Seller shall
deliver to the Buyer at the Closing: (i) an assignment, substantially in
the form of Exhibit A (the "Assignment and Assumption"), executed by the
Seller; (ii) for all Assets, copies of all documents listed on the index
attached hereto as Exhibit B previously delivered to the Seller; (iii) if
requested by the Buyer (a) a letter (prepared by and in form satisfactory
to the Buyer and the Seller) executed by the Seller that directs a document
custodian to either confirm that it holds all Asset files for the benefit
of the Buyer as successor to the Seller under the applicable agreement for
the custody thereof or to ship all Asset files held by it to the Buyer and
(b) a letter or other document (prepared by and in form satisfactory to the
Buyer and the Seller) executed by the Seller as necessary to effect the
recognition of the Buyer as the owner of the Assets under any one or more
agreements that relate to the administration of the Assets; and (iv) such
other instruments of transfer executed by the Seller as the Buyer shall
reasonably request, including, without limitation, (a) a stock power,
substantially in the form of Exhibit C and (b) written notice to the
transfer agent of the Assets of the assignment and assumption of the
ownership of the Assets to the Buyer; provided that the Buyer shall prepare
any such instruments and deliver the same to the Seller at least one (1)
business day prior to Closing; and the Buyer shall deliver to the Seller:
(i) the Assignment and Assumption executed by the Buyer; and (ii) the
Purchase Price by wire transfer of immediately available funds to an
account designated by the Seller.
4. Representations and Warranties of the Seller. The
Seller hereby represents and warrants to the Buyer as follows:
(a) Authority. The Seller has all requisite power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of
this Agreement by the Seller and the consummation by the Seller of
the transactions contemplated hereby have been duly authorized by
all necessary corporate (or its equivalent) action on the part of
the Seller. This Agreement has been duly executed and delivered by
the Seller and constitutes a valid and binding obligation of the
Seller enforceable in accordance with its terms except as
enforcement may be limited by bankruptcy, insolvency, and other
similar laws affecting the enforcement of creditors' rights
generally. The execution and delivery of this Agreement does not,
and the consummation of the transactions contemplated hereby and
compliance with the terms hereof will not conflict with, or result
in any violation of, or default under, any provision of the
Seller's organizational documents or of any agreement applicable
to the Seller or to the Seller's property or assets. No consent,
approval, order or authorization of, or registration, declaration
or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality, or any other
person or entity, is required by or with respect to the Seller in
connection with the execution and delivery of this Agreement or
the consummation by the Seller of the transactions contemplated
hereby.
(b) Ownership of the Assets. The Seller has, and the
transfer by the Seller of the Assets will pass to the Buyer, good
title to the Assets, free and clear of any claims, liens,
encumbrances and security interests whatsoever.
(c) Asset Information. The information pertaining to the
Assets set forth on Schedule 1 attached hereto is, to the best of
the Seller's knowledge, true and correct in all material respects.
5. Representations and Warranties of the Buyer. The Buyer
hereby represents and warrants to the Seller that the Buyer has all
requisite trust power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by the Buyer and the consummation by the Buyer of the
transactions contemplated hereby have been duly authorized by all necessary
trust action on the part of the Buyer. This Agreement has been duly
executed and delivered by the Buyer and constitutes a valid and binding
obligation of the Buyer enforceable in accordance with its terms except as
enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally,
6. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
the Closing.
7. Specific Performance. The Seller and the Buyer
acknowledge that damages would be an inadequate remedy for any breach of
the provisions of this Agreement and agree that the obligations of the
parties hereunder shall be specifically enforceable.
8. Expenses. Whether or not the Closing occurs, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the Seller.
9. Further Assurances. From time to time following the
Closing, the Seller shall execute and deliver, or cause to be executed and
delivered, to the Buyer such other bills of sale, deeds, endorsements,
assignments and other documents or instruments of conveyance and transfer
as the Buyer may reasonably request or as may be otherwise necessary to
more effectively convey and transfer to, and vest in, the Buyer, the
Assets, or in order to fully effectuate and to implement the purposes,
terms and provisions of this Agreement. To the extent that hereafter the
Seller receives any payments in respect of the Assets on or after the date
of the Closing, the Seller shall forward the same to the Buyer within five
(5) business days.
10. Counterparts. This Agreement may be executed in any
number of counterparts, each such counterpart being deemed to be an
original instrument, and all such counterparts shall together constitute
the same agreement.
11. Governing Law. This Agreement shall be deemed to be
made in and in all respects shall be interpreted, construed and governed by
and in accordance with the law of the State of New York without regard to
the conflict of law principles thereof.
12. Notices. Any notice, request, instruction or other
document to be given hereunder by any party to the others shall be in
writing and delivered personally or sent by registered or certified mail,
postage prepaid, or by facsimile:
if to the Buyer:
Fortress Registered Investment Trust
c/o Fortress Investment Group LLC
1301 Avenue of the Americas, 42nd Floor
New York, New York 10019
Attention: Randal A. Nardone
Facsimile: (212) 798-6120
Confirmation: (212) 798-6110
if to the Seller:
Fortress Investment Corp.
c/o Fortress Investment Group LLC
1301 Avenue of the Americas, 42nd Floor
New York, New York 10019
Attention: Randal A. Nardone
Facsimile: (212) 798-6120
Confirmation: (212) 798-6110
or to such other persons or addresses as may be designated in writing by
the party to receive such notice as provided above.
13. Entire Agreement; No Other Representations. Except as
expressly agreed in a separate writing signed by the parties hereto on or
after the date of this Agreement, this Agreement constitutes the entire
agreement, and supersedes all other prior agreements and understandings,
both written and oral, between the parties, with respect to the subject
matter hereof. Except as set forth herein, the Seller makes no
representation, express or implied, with respect to the Assets or the
enforceability, collectability, suitability or value thereof.
14. Severability. The provisions of this Agreement shall
be deemed severable and the invalidity or unenforceability of any provision
shall not affect the validity or enforceability of the other provisions
hereof. If any provision of this Agreement, or the application thereof to
any person or entity or any circumstance, is invalid or unenforceable (a) a
suitable and equitable provision shall be substituted therefor in order to
carry out, so far as may be valid and enforceable, the intent and purpose
of such invalid or unenforceable provision and (b) the remainder of this
Agreement and the application of such provision to other persons or
entities or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof,
in any other jurisdiction.
15. Interpretation. The section references and headings
herein are for convenience of reference only, do not constitute part of
this Agreement and shall not be deemed to limit or otherwise affect any of
the provisions hereof.
16. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended or shall be construed to confer upon any person or entity other
than the parties and their successors and assigns any right, remedy or
claim under or by reason of this Agreement.
\
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the Buyer and the Seller has
caused this Agreement to be duly executed and attested to by its officer
hereunto duly authorized as of the day and year first above written.
BUYER:
FORTRESS REGISTERED INVESTMENT
TRUST, a trust organized under the laws of the
State of Delaware
By: /s/ Randal A. Nardone
-------------------------------------------
Name: Randal A. Nardone
Title:
SELLER:
FORTRESS INVESTMENT CORP., a Maryland
corporation
By: /s/ Randal A. Nardone
-------------------------------------------
Name: Randal A. Nardone
Title: Secretary
SCHEDULE 1
ASSET SCHEDULE
<TABLE>
<CAPTION>
NUMBER
OF SHARES PURCHASE PRICE
<S> <C> <C>
- ----------------------------------------------------------------------------------------
Series C Convertible Preferred Stock, %.10 par value 5,378,000 $25,600,000
Series D Convertible Preferred Stock, %.10 par value 5,378,000 $25,600,000
- ----------------------------------------------------------------------------------------
$51,200,000
</TABLE>
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this
"Assignment and Assumption Agreement"), is dated as of January ___, 2000,
and is executed and delivered pursuant to that certain Asset Purchase
Agreement dated as of 9.00 a.m. Eastern Standard Time, December 23, 1999
(the "Asset Purchase Agreement"), by and between Fortress Investment Corp.,
a Maryland corporation (the "Seller"), and Fortress Registered Investment
Trust, a trust organized under the laws of the State of Delaware (the
"Buyer").
RECITAL
Pursuant to the Asset Purchase Agreement, the Buyer has agreed
to purchase from the Seller, and the Seller has agreed to sell to the
Buyer, upon the terms and conditions specified in the Asset Purchase
Agreement, the Assets (as defined in the Asset Purchase Agreement) listed
on Schedule 1 hereto.
NOW, THEREFORE, in consideration of the promises contained in
the Asset Purchase Agreement and for other good and valuable consideration,
the Buyer and the Seller agree as follows:
1. The Seller does hereby sell, transfer, convey, assign and
deliver to the Buyer, and the Buyer hereby accepts from the Seller, all of
the right, title and interest of the Seller in, to and under (a) the Assets
listed on Schedule 1 hereto (including all promissory notes, security
agreements, guarantees and other agreements that evidence or secure such
Assets) and (b) any and all of the following: (i) any purchase agreement
that was executed by the Seller, and/or in which rights were assigned to
the Seller, in connection with the Seller's acquisition of the Assets (in
either case including any rights in respect of breaches of representations
and warranties); (ii) any agreement for the custody of documents pertaining
to the Assets; and (iii) any agreement for the administration of the
Assets, in each case to have and hold unto the Buyer, its successors and
assigns forever.
2. The Buyer hereby assumes all of the liabilities and agrees to
perform any and all duties and obligations of the Seller under the
documents that evidence or otherwise govern the rights and obligations of
the Seller and the obligor(s) with respect to such Assets and under any
agreement referred to in clause (b) of the preceding paragraph 1.
The terms and provisions of this Assignment and Assumption
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns.
This Assignment and Assumption Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
giving effect to principles of conflicts of laws.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the Buyer and the Seller has caused
this Assignment and Assumption Agreement to be duly executed and attested
to by its officer hereunto duly authorized as of the day and year first
above written.
BUYER:
FORTRESS REGISTERED INVESTMENT
TRUST, a trust organized under the laws of the
State of Delaware
By: __________________________________________
Name: Randal A. Nardone
Title:
SELLER:
FORTRESS INVESTMENT CORP., a Maryland
corporation
By:___________________________________________
Name: Randal A. Nardone
Title: Secretary
SCHEDULE 1
<TABLE>
<CAPTION>
ASSETS
NUMBER
OF SHARES PURCHASE PRICE
- ------------------------------------------------------------------------------------------
<S> <C> <C>
Series C Convertible Preferred Stock, %.10 par value 5,378,000 $25,600,000
Series D Convertible Preferred Stock, %.10 par value 5,378,000 $25,600,000
- ------------------------------------------------------------------------------------------
$51,200,000
</TABLE>
EXHIBIT B
INDEX
None.
EXHIBIT C
STOCK POWER
FOR VALUE RECEIVED, Fortress Investment Corp., hereby sells, assigns and
transfers unto Fortress Registered Investment Trust, its successors and
assigns, Five Million Three Hundred Seventy-Eight Thousand (5,378,000)
Shares of the Convertible Preferred Stock, Series C and Five Million Three
Hundred Seventy-Eight Thousand (5,378,000) Shares of the Convertible
Preferred Stock, Series D of Capstead Mortgage Corporation, a Maryland
corporation (the "Corporation"), standing in the name of Fortress
Investment Corp. on the books of the Corporation, represented by
Certificates No. C-1 and No. D-1 herewith, and does hereby irrevocably
constitute and appoint Fortress Registered Investment Trust, its successors
and assigns, as attorney to transfer the said stock on the books of the
within named Corporation with full power of substitution in the premises.
Dated: ________, ____
FORTRESS INVESTMENT CORP., a
Maryland corporation
By: ______________________________
Name: Randal A. Nardone
Title: Secretary
FIRST AMENDMENT
TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this
"Amendment"), made as of the 5th day of January, 2000, by and between
FORTRESS INVESTMENT CORP., a Maryland corporation (the "Seller"), and
FORTRESS REGISTERED INVESTMENT TRUST, a trust organized under the laws of
the State of Delaware (the "Buyer").
W I T N E S S E T H:
WHEREAS, the Seller and the Buyer are parties to the Asset
Purchase Agreement, dated as of 9:00 a.m. Eastern Standard Time, December
23, 1999 (the "Purchase Agreement");
WHEREAS, all capitalized terms used and not otherwise defined
herein shall have the respective meanings ascribed thereto in the Purchase
Agreement; and
WHEREAS, the Seller and the Buyer desire to amend the Purchase
Agreement as hereinafter set forth.
NOW THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. All capitalized terms used but not otherwise defined
in this Amendment have the meanings ascribed thereto in the Purchase
Agreement.
2. Transfer of Assets to Fortress CAP LLC. Notwithstanding anything to
the contrary in the Purchase Agreement, the parties hereto hereby
agree that the Seller shall effect the transfer of the Assets to the
Buyer by transferring the Assets to Fortress CAP LLC, a Delaware
limited liability company ("Fortress CAP") to be formed and wholly-
owned by the Seller for the purposes of the transactions contemplated
hereby and by the Purchase Agreement, and thereafter transferring and
delivering to the Buyer all membership interests in Fortress CAP. All
references in the Purchase Agreement to the transfer or delivery of
the Assets to the Buyer shall be deemed to mean the transfer or
delivery of the Assets in the manner hereinbefore described.
3. Purchase Agreement Amendments. The Purchase Agreement is hereby
amended by:
(a) deleting the words "the Buyer" in the eighteenth line of Section
3 and inserting the following in lieu thereof: "Fortress CAP; and (v)
an assignment and assumption of membership interests substantially in
the form of Exhibit D, executed by each of the Seller, the Buyer and
Fortress CAP";
(b) deleting the words "; and the Buyer shall deliver to the Seller:
(i) the Assignment and Assumption executed by the Buyer; and (ii) the
Purchase Price by wire transfer of immediately available funds to an
account designated by the Seller" in the last three lines of Section
3; and
(c) deleting Exhibits A, B and C and inserting in lieu thereof
Exhibits A, B, C and D attached hereto.
4. No Other Modifications.
The parties hereto agree that except as modified by this Amendment,
the terms and provisions of the Purchase Agreement shall remain in
full force and effect, and are hereby ratified and reaffirmed.
5. Miscellaneous.
(i) In the event of a conflict or inconsistency between this
Amendment and the Purchase Agreement, the terms hereof shall supersede
and govern.
(ii) This Amendment may be executed in any number of
counterparts, each of which shall be an original, but such
counterparts together shall constitute one and the same instrument.
(iii) All captions in this Amendment are included herein for
convenience of reference only and shall not constitute part of this
Amendment for any other purpose.
(iv) This Amendment shall be binding upon, and shall inure to the
benefit of, the respective successors and assigns of the parties
hereto (subject to applicable transfer restrictions set forth in the
Purchase Agreement).
(v) This Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the
laws of the State of New York (without giving effect to the principles
thereof relating to conflicts of law).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their respective authorized officers as of the day
and year first above written.
SELLER:
FORTRESS INVESTMENT CORP.,
a Maryland corporation
By: /s/ Randal A. Nardone
----------------------------------
Name: Randal A. Nardone
Title: Chief Operating Officer
BUYER:
FORTRESS REGISTERED INVESTMENT TRUST,
a trust organized under the laws of
the State of Delaware
By: /s/ Randal A. Nardone
----------------------------------
Name: Randal A. Nardone
Title: Chief Operating Officer
EXHIBIT A
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (this "Agreement"), dated as of January
12, 2000, is entered by and between FORTRESS INVESTMENT CORP., a Maryland
corporation ("Fortress"), and FORTRESS CAP LLC, a Delaware limited
liability company and wholly-owned subsidiary of Fortress ("Cap").
WHEREAS, Fortress and Capstead Mortgage Corporation ("Capstead")
are parties to a Series C and Series D Convertible Preferred Stock Purchase
Agreement, dated as of December 9, 1999 (the " Purchase Agreement"),
pursuant to which Fortress purchased 5,378,000 shares of Capstead's Series
C Convertible Preferred Stock, $.10 par value per share, and 5,378,000
shares of Capstead's Series D Convertible Preferred Stock, $.10 par value
per share (collectively, the "Preferred Stock");
WHEREAS, Fortress and Capstead are parties to a Supplemental
Agreement to the Stock Purchase Agreement, dated as of December 9, 1999, as
amended (the "Supplemental Agreement") which sets forth certain rights and
obligations in connection with the ongoing management of Capstead;
WHEREAS, Fortress and Capstead are parties to a Registration
Rights Agreement, dated as of December 9, 1999 (the "Registration Rights
Agreement"), which which sets forth certain rights and obligations of
Fortress and Capstead with regard to the Preferred Stock and the shares of
Capstead's common stock into which it is convertible;
WHEREAS, Fortress desires to assign, transfer and convey to Cap
and Cap desires to accept the assignment, transfer and conveyance of all of
Fortress's right, title, interest and obligation in and to the Preferred
Stock, the Purchase Agreement, the Supplemental Agreement and the
Registration Rights Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 6. DEFINITIONS. Capitalized terms used but not
defined herein shall have the respective meanings assigned to them in the
Purchase Agreement.
Section 7. ASSIGNMENT OF AGREEMENTS. Fortress hereby
assigns, transfers, conveys and delivers to Cap and its successors and
permitted assigns forever, as of the date hereof, all of Fortress' right,
title and interest in and to the Purchase Agreement, the Supplemental
Agreement and the Registration Rights Agreement free and clear of any
Liens.
Section 8. ACCEPTANCE OF ASSIGNMENT AND ASSUMPTION OF
OBLIGATIONS AND LIABILITIES. Cap hereby accepts the assignment, transfer,
conveyance and delivery of the Purchase Agreement, the Supplemental
Agreement and the Registration Rights Agreement and hereby assumes,
undertakes and agrees to pay, perform and discharge in full all of
Fortress' obligations thereunder as though it were a party thereto and
releases and discharges Fortress and its successors and assigns,
completely, unconditionally and forever from all liabilities and
obligations arising out of, or required to be performed thereunder from,
any events relating to performance after the date hereof or for any periods
allocable to dates after the date hereof, whether known or unknown and
whether absolute, accrued or contingent.
Section 9. ASSIGNMENT OF PREFERRED STOCK TO CAP. Fortress
hereby assigns, transfers, conveys and delivers to Cap and its successors
and permitted assigns forever, as of the date hereof, all of Fortress'
right, title and interest in the Preferred Stock, free and clear of any
Liens.
Section 10. NO ADDITIONAL REPRESENTATIONS AND WARRANTIES.
Except as set forth in Section 2, Section 3 and Section 4 hereof, Fortress
does not make any additional representation or warranty, whether express or
implied, hereunder or otherwise with respect to the Preferred Stock and the
Purchase Agreement.
Section 11. NO THIRD PARTY BENEFICIARIES. This Agreement is
for the sole and exclusive benefit of Fortress, Cap and their respective
successors and permitted assigns and nothing herein is intended or shall be
construed to confer upon any Person other than Fortress, Cap and their
respective successors and permitted assigns any right, remedy or claim
under or by reason of this Agreement or any term, covenant or condition
hereof.
Section 12. AMENDMENT. This Agreement may only be amended or
modified by a written instrument executed by the parties hereto.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
Section 14. BINDING EFFECT; ASSIGNMENT. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors, permitted assigns and legal representatives.
Neither this Agreement, nor any right or obligation hereunder, may be
directly or indirectly assigned or transferred by any party, in whole or in
part, to any third party, including, without limitation, any bankruptcy
trustee, by operation of law or otherwise, whether voluntary or
involuntary, without the prior written consent of the other party hereto.
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed on its behalf as of the date first above
written.
FORTRESS INVESTMENT CORP.
By: /s/ Randal A. Nardone
-------------------------------------
Randal A. Nardone
Secretary and Chief Operating Officer
FORTRESS CAP LLC
By: /s/ Randal A. Nardone
------------------------------------
Randal A. Nardone
as Secretary and Chief Operating
Officer of Fortress Investment Corp.,
sole member of Fortress Cap LLC
EXHIBIT B
INDEX
1. Series C and Series D Convertible Preferred Stock Purchase Agreement
(the "Capstead Purchase Agreement"), dated as of December 9, 1999, by
and between the Seller and Capstead Mortgage Corporation ("Capstead").
2. Supplemental Agreement to the Capstead Purchase Agreement, dated as of
December 9, 1999, by and between the Seller and Capstead.
3. Registration Rights Agreement, dated as of December 9, 1999, by and
between the Seller and Capstead.
EXHIBIT C
STOCK POWER
FOR VALUE RECEIVED, Fortress Investment Corp., hereby sells, assigns and
transfers unto Fortress CAP LLC, its successors and assigns, Five Million
Three Hundred Seventy-Eight Thousand (5,378,000) Shares of the Convertible
Preferred Stock, Series C and Five Million Three Hundred Seventy-Eight
Thousand (5,378,000) Shares of the Convertible Preferred Stock, Series D of
Capstead Mortgage Corporation, a Maryland corporation (the "Corporation"),
standing in the name of Fortress Investment Corp. on the books of the
Corporation, represented by Certificates No. C-1 and No. D-1 herewith, and
does hereby irrevocably constitute and appoint Fortress CAP LLC, its
successors and assigns, as attorney to transfer the said stock on the books
of the within named Corporation with full power of substitution in the
premises.
Dated: January 12, 2000
FORTRESS INVESTMENT CORP.,
a Maryland corporation
By: /s/ Randal A. Nardone
------------------------------
Name: Randal A. Nardone
Title: Chief Operating Officer
EXHIBIT D
ASSIGNMENT AND ASSUMPTION
OF MEMBERSHIP INTERESTS
FORTRESS CAP LLC
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST, dated as of
January 12, 2000 (this "Assignment"), by and between FORTRESS INVESTMENT
CORP., a Maryland corporation ("Assignor"), and FORTRESS REGISTERED
INVESTMENT TRUST, a trust operating under the laws of Delaware
("Assignee").
WHEREAS, Assignor and Capstead Mortgage Corporation ("Capstead")
are parties to (i) a Series C and Series D Convertible Preferred Stock
Purchase Agreement, dated as of December 9, 1999 (as amended, the "Capstead
Purchase Agreement"), pursuant to which Assignor purchased 5,378,000 shares
of Capstead's Series C Convertible Preferred Stock, $.10 par value per
share, and 5,378,000 shares of Capstead's Series D Convertible Preferred
Stock, $.10 par value per share (collectively, the "Preferred Stock"),
(ii) a Supplemental Agreement to the Capstead Purchase Agreement, dated as
of December 9, 1999 (as amended, the "Capstead Supplemental Agreement"),
and (iii) a Registration Rights Agreement, dated as of December 9, 1999 (as
amended, the "Capstead Registration Rights Agreement" and, collectively
with the Capstead Purchase Agreement and the Capstead Supplemental
Agreement, the "Capstead Agreements");
WHEREAS, Assignor transferred the Preferred Stock and all of its
rights, title, interests and obligations in, to and under the Capstead
Agreements to Fortress CAP LLC, a Delaware limited liability company (the
"Company"), pursuant to that certain Asset Purchase Agreement (as amended,
the "Asset Purchase Agreement"), dated as of 9:00 a.m., Eastern Standard
Time, December 23, 1999, by and between Assignor, as seller, and Assignee,
as buyer;
WHEREAS, Assignor is the owner of 100% of the membership
interests (the "Membership Interests") of the Company;
WHEREAS, Assignor desires to assign the Membership Interests to
Assignee;
WHEREAS, Assignor and Assignee are entering into this Assignment
pursuant to the Asset Purchase Agreement; and
WHEREAS, Assignee desires to accept such assignment.
NOW THEREFORE, in consideration of the foregoing and the
covenants of the parties set forth herein and for other good and valuable
consideration, the receipt and sufficiently of which are hereby
acknowledged, subject to the terms and conditions set forth herein, the
parties hereby agree as follows:
1. Assignor hereby unconditionally and irrevocably transfers,
assigns, contributes and sets over to Assignee all of Assignor's right,
title and interest in and to the Membership Interests.
2. Assignee hereby accepts the Membership Interests.
3. Assignee hereby assumes all of Assignor's obligations with
respect to the Membership Interests.
4. Assignor, as sole member of the Company prior to the
occurrence of the transfer pursuant to this Assignment, and Assignee, as
sole member of the Company after the occurrence of the transfer pursuant to
this Assignment, acknowledge that Assignor withdraws from and is no longer
a member of the Company and that Assignee is admitted as the managing
member of the Company.
5. This Assignment shall take effect as of the date hereof.
6. Assignor hereby indemnifies and agrees to hold Assignee
harmless from and after the date hereof from and against any and all
losses, expenses, costs, claims and liabilities (including reasonable
attorneys' fees) arising prior to the date hereof in connection with the
Membership Interests. Assignee indemnifies and agrees to hold Assignor
harmless from and after the date hereof from and against any and all
losses, expenses, costs, claims and liabilities (including reasonable
attorneys' fees) arising on or after the date hereof in connection with the
Membership Interests.
7. This Assignment shall inure to the benefit of and be binding
upon the Assignor and the Assignee and their respective successors and
assigns.
8. This Assignment shall be construed and enforced in
accordance with the laws of the State of New York, without regard to its
principles of conflict of laws.
9. This Assignment may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which shall
together constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment as of the day and year first written above.
ASSIGNOR:
FORTRESS INVESTMENT CORP.,
a Maryland corporation
By: /s/ Randal A. Nardone
---------------------------------
Name: Randal A. Nardone
Title: Chief Operating Officer
ASSIGNEE:
FORTRESS REGISTERED INVESTMENT TRUST,
a trust operating under the laws of
the State of Delaware
By: /s/ Randal A. Nardone
---------------------------------
Name: Randal A. Nardone
Title: Chief Operating Officer
