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/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer
BUYER:
FORTRESS REGISTERED INVESTMENT TRUST,
a trust organized under the laws of
the State of Delaware
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
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/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
Secretary and Chief Operating Officer
FORTRESS CAP LLC
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
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/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
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/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer
ASSIGNEE:
FORTRESS REGISTERED INVESTMENT TRUST,
a trust operating under the laws of
the State of Delaware
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer
