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 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
if to the Seller:
Fortress Investment Corp.
c/o Fortress Investment Group LLC
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
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.
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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/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title:
SELLER:
FORTRESS INVESTMENT CORP., a Maryland
corporation
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
SCHEDULE 1
ASSET SCHEDULE
NUMBER
OF SHARES PURCHASE PRICE
----------------------------------------------------------------------------------------
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
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.
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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: Xxxxxx X. Xxxxxxx
Title:
SELLER:
FORTRESS INVESTMENT CORP., a Maryland
corporation
By:___________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
SCHEDULE 1
ASSETS
NUMBER
OF SHARES PURCHASE PRICE
------------------------------------------------------------------------------------------
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
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: Xxxxxx X. Xxxxxxx
Title: Secretary
