PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement"), dated as of November 21, 2003,
is by and among Xxxxx & Steers Capital Management, Inc. ("Xxxxx & Steers"), the
client accounts of Xxxxx & Steers, as set forth on Schedule A (each a
"Purchaser" and collectively, the "Purchasers"), and Newcastle Investment
Corp.(the "Seller").
WHEREAS, the Purchasers desire to purchase from Seller, and Seller desires
to issue and sell to the Purchasers, 3,282,276 shares of common stock, par value
$.01 per share (the "Shares");
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions hereof, the
Purchasers hereby agree to purchase from Seller, and Seller agrees to
issue and sell to the Purchasers, the Shares at a price per share of
$22.85 for an aggregate purchase price of $ 75,000,006.60 (the "Purchase
Price").
2. Representations and Warranties of Purchaser. Each Purchaser represents and
warrants that:
(a) Due Authorization. Such Purchaser is duly authorized to purchase the
Shares. This Agreement has been duly authorized, executed and
delivered by such Purchaser and constitutes a legal, valid and
binding agreement of such Purchaser, or of Xxxxx & Steers on behalf
of such Purchaser, enforceable against such Purchaser in accordance
with its terms except as may be limited by (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights or remedies of creditors or
(ii) the effect of general principles of equity, whether enforcement
is considered in a proceeding in equity or at law and discretion of
the court before which any proceeding therefor may be brought.
(b) Prospectus and Prospectus Supplement. Such Purchaser has received a
copy of Seller's Prospectus dated October 29,2003, and Prospectus
Supplement dated November 24, 2003 (collectively, the "Prospectus").
(c) Not a Party in Interest; Disqualified Person. With respect to
Seller, such Purchaser is not a "party in interest" as such phrase
is used in the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or a "disqualified person" as such phrase is used
in the Internal Revenue Code of 1986, as amended ("Code").
(d) Not a Prohibited Transaction. The purchase of the Shares from Seller
will not give rise to a nonexempt "prohibited transaction" under
ERISA or the Code.
3. Representations and Warranties of Seller. Seller represents and warrants
that:
(a) Due Authorization. This Agreement has been duly authorized, executed
and delivered by Seller and constitutes a legal, valid and binding
agreement of Seller, enforceable against Seller in accordance with
its terms except as may be limited by (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights or remedies of creditors or (ii)
the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law and the discretion of
the court before which any proceeding therefor may be brought.
(b) Organization and Authority. Seller has been duly organized and is
validly existing in good standing under the laws of Maryland, with
full power and authority to own or lease and occupy its properties
and conduct its business as described in the Prospectus.
(c) Issuance of the Shares. The Shares have been duly and validly
authorized and, when issued and delivered pursuant to this
Agreement, will be fully paid and nonassessable and will be listed,
subject to notice of issuance, on the New York Stock Exchange
effective as of the Closing (as defined in Paragraph 6 of this
Agreement).
(d) Absence of Conflicts. The execution, delivery and performance of
this Agreement and the consummation of transactions contemplated
herein do not and will not result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Seller.
4. Representation and Warranty of Xxxxx & Steers. Xxxxx & Steers hereby
represents and warrants that it has been duly authorized to act as
investment adviser on behalf of each Purchaser, and that it has the power
and authority to enter into this Agreement on behalf of each Purchaser.
5. Conditions to Obligations of the Parties. The obligations of the parties
hereto to effect the transactions contemplated by this Agreement shall be
subject to the satisfaction or waiver at or prior to the Closing Time of
the following conditions:
(a) each of the representations and warranties of the parties hereto
shall be true and correct in all respects;
(b) at Closing (as defined below), the Purchaser shall have received the
favorable opinion of counsel to the Seller and a certificate of the
officers of the Seller, dated as of the Closing, in form and
substance reasonably satisfactory to the Purchaser.
6. Closing. The transactions contemplated hereby shall be consummated on
December 1, 2003 (such time and date of payment and delivery being herein
called the "Closing") on a delivery versus payment basis in accordance
with the "DTC ID System" through a broker dealer, or any appropriate
affiliate thereof.
7. Governing Law. This Agreement shall be construed in accordance with and
governed by the substantive laws of the State of New York.
8. Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject mater hereof and may be
amended only in a writing that is executed by each of the parties hereto.
9. Counterparts. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original, and all of which together shall
be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered as of the date first above written.
Seller
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
XXXXX & STEERS CAPITAL MANAGEMENT,
INC., on behalf of itself and on behalf
of the Purchasers specified on Schedule
A
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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SCHEDULE A
Name of Client Number of Shares
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