-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BSwN0N0RqHAY8/NirxjRbF3koA86M266DqUrRmy8CM9w23UzAs4vSzp0PvO1bPSq /kaMhxTOFBT0QGYiq1tvQg== 0000950172-00-000098.txt : 20000203 0000950172-00-000098.hdr.sgml : 20000203 ACCESSION NUMBER: 0000950172-00-000098 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000124 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CAPSTEAD MORTGAGE CORP CENTRAL INDEX KEY: 0000766701 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 752027937 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-37849 FILM NUMBER: 511365 BUSINESS ADDRESS: STREET 1: 8401 NORTH CENTRAL EXPRESSWAY STREET 2: STE 800 CITY: DALLAS STATE: TX ZIP: 75225 BUSINESS PHONE: 2148742323 MAIL ADDRESS: STREET 1: 8401 NORTH CENTRAL EXPRESSWAY STREET 2: STE 800 CITY: DALLAS STATE: TX ZIP: 75225 FORMER COMPANY: FORMER CONFORMED NAME: LOMAS MORTGAGE CORP DATE OF NAME CHANGE: 19891105 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FORTRESS INVESTMENT CORP CENTRAL INDEX KEY: 0001066575 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE [6500] STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: ONE PENN PLAZA 250 WEST 34TH ST STREET 2: SUTIE 3600 CITY: NEW YOR STATE: NY ZIP: 10119 MAIL ADDRESS: STREET 1: 1301 AVENUE OF THE AMERICAS STREET 2: 42ND FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 SC 13D/A 1 SC 13D/A - AMENDMENT NO. 1 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 - ------------------------------------------------------------------------------ (NAME OF ISSUER) COMMON STOCK, PAR VALUE $0.01 PER SHARE - ------------------------------------------------------------------------------ (TITLE OF CLASS OF SECURITIES) 14067E 10 0 - ------------------------------------------------------------------------------ (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 - ------------------------------------------------------------------------------ (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 - ------------------------------------------------------------------------------ (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 - ------------------------------------------------------------------------------ 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) FORTRESS INVESTMENT CORP. (I.R.S. EMPLOYER IDENTIFICATION NUMBER [ ]) - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_| NOT APPLICABLE (b) |_| - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS WC - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) |_| - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - ------------------------------------------------------------------------------ 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 - - ------------------------------------------------------------------------------ 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- - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON CO - ------------------------------------------------------------------------------ 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 EX-99 2 EXHIBIT 1 - ASSET PURCHASE AGREEMENT 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
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. [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
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: Randal A. Nardone Title: Secretary EX-99 3 EXHIBIT 2 - FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT 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 -----END PRIVACY-ENHANCED MESSAGE-----