-----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, Ha9hMKXSuBXnaflJHbHG5xMWUBzkJj6EcmlhpP0HkU9iJ5nOdmZMQJPHfK1FF6+X LNNfdRB9hdaMfa32tizDcg== 0000950172-00-000099.txt : 20000203 0000950172-00-000099.hdr.sgml : 20000203 ACCESSION NUMBER: 0000950172-00-000099 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 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 SEC ACT: SEC FILE NUMBER: 005-37849 FILM NUMBER: 511367 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 REGISTERED INVESTMENT TRUST CENTRAL INDEX KEY: 0001101762 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 1301 AVENUE OF AMERICAS 42ND FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: 2127986100 SC 13D 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) 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 Registered Investment Trust 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 PAGE 2 OF 14 PAGES -----------
- ---------------------------------------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) FORTRESS CAP LLC (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 NOT APPLICABLE - ---------------------------------------------------------------------------------------------------------------- 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 OWNED BY 8 SHARED VOTING POWER - 10,756,000 - EACH --------------------------------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER - 0 - PERSON WITH --------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER - 10,756,000 - - ---------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON -10,756,000 - - ---------------------------------------------------------------------------------------------------------------- 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) 19.05% (BASED ON 45,719,023 SHARES OF COMMON STOCK OUTSTANDING AS OF JANUARY 20, 2000 AND ASSUMING CONVERSION OF THE PREFERRED STOCK BENEFICIALLY OWNED BY THE REPORTING PERSON) - ---------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON OO - ----------------------------------------------------------------------------------------------------------------
CUSIP NO. 14067 10 0 13D PAGE 3 OF 14 PAGES ------------
- ---------------------------------------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) FORTRESS REGISTERED INVESTMENT TRUST (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 --------------------------------------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER - 10,756,000 - EACH --------------------------------------------------------------------------------------- REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER - 0 - 10 SHARED DISPOSITIVE POWER - 10,756,000 - - ---------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON -10,756,000 - - ---------------------------------------------------------------------------------------------------------------- 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) 19.05% (BASED ON 45,719,023 SHARES OF COMMON STOCK OUTSTANDING AS OF JANUARY 20, 2000 AND ASSUMING CONVERSION OF THE PREFERRED STOCK BENEFICIALLY OWNED BY THE REPORTING PERSON) - ---------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON OO - ----------------------------------------------------------------------------------------------------------------
CUSIP NO. 14067 10 0 13D PAGE 4 OF 14 PAGES ------------
- ---------------------------------------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) FORTRESS INVESTMENT FUND LLC (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 NOT APPLICABLE - ---------------------------------------------------------------------------------------------------------------- 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 --------------------------------------------------------------------------------------- OWNED BY EACH 8 SHARED VOTING POWER - 10,756,000 - REPORTING --------------------------------------------------------------------------------------- PERSON WITH 9 SOLE DISPOSITIVE POWER - 0 - 10 SHARED DISPOSITIVE POWER - 10,756,000 - - ---------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON -10,756,000 - - ---------------------------------------------------------------------------------------------------------------- 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) 19.05% (BASED ON 45,719,023 SHARES OF COMMON STOCK OUTSTANDING AS OF JANUARY 20, 2000 AND ASSUMING CONVERSION OF THE PREFERRED STOCK BENEFICIALLY OWNED BY THE REPORTING PERSON) - ---------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON OO - ----------------------------------------------------------------------------------------------------------------
CUSIP NO. 14067 10 0 13D PAGE 5 OF 14 PAGES ------------
- ---------------------------------------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) FORTRESS PRINCIPAL INVESTMENT HOLDINGS LLC (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 NOT APPLICABLE - ---------------------------------------------------------------------------------------------------------------- 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 --------------------------------------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER - 10,756,000 - EACH --------------------------------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER - 0 - PERSON WITH --------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER - 10,756,000 - - ---------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON -10,756,000 - - ---------------------------------------------------------------------------------------------------------------- 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) 19.05% (BASED ON 45,719,023 SHARES OF COMMON STOCK OUTSTANDING AS OF JANUARY 20, 2000 AND ASSUMING CONVERSION OF THE PREFERRED STOCK BENEFICIALLY OWNED BY THE REPORTING PERSON) - ---------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON OO - ----------------------------------------------------------------------------------------------------------------
ITEM 1. SECURITY AND ISSUER. This statement relates to shares of the common stock, $0.01 par value per share ("Common Stock"), of Capstead Mortgage Corporation, a Maryland corporation (the "Issuer"). The principal executive offices of the Issuer are located at: 8401 North Central Parkway, Dallas, TX 75225. ITEM 2. IDENTITY AND BACKGROUND. Fortress Cap LLC is a Delaware limited liability company ("Cap LLC") that is wholly owned by its sole member, Fortress Registered Investment Trust, a Delaware business trust ("Fortress Trust"). All issued and outstanding shares of beneficial interest of Fortress Trust are owned by Fortress Investment Fund LLC, a Delaware limited liability company ("Fortress Fund"), the managing member of which is Fortress Fund MM LLC, a Delaware limited liability company. Fortress Fund has no directors or executive officers. The managing member of Fortress Fund MM, LLC is Fortress Fund MM Inc., a Delaware corporation. Fortress Principal Investment Group LLC, a Delaware limited liability company ("FPIG"), is the holder of all the issued and outstanding common stock of Fortress Fund MM Inc. Fortress Principal Investment Holdings LLC, a Delaware limited liability company ("FPIH"), is the sole member of FPIG. The address of each of the above-referenced entities in this Item 2 is 1301 Avenue of the Americas, 42nd Floor, New York, New York 10019 and the principal business of each such entity is real estate-related investments. Set forth on Annex A to this Amendment to the Schedule 13D is a listing of the directors and executive officers of Fortress Fund MM Inc. and the members of FPIH (collectively, the "Covered Persons"), the present principal occupation or employment of each of the Covered Persons and the business address of each of the Covered Persons. Each of the Covered Persons is a United States citizen. The trustees of Fortress Trust will be disclosed promptly hereafter in an amendment hereto. None of the above-referenced entities in this Item 2 or, to the best of their knowledge, the Covered Persons has, during the past five years, (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which any of them is or was subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or finding a violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Cap LLC obtained the funds to purchase the Preferred Stock (as defined in Item 4 hereof) from its working capital. In addition, if necessary, Cap LLC will obtain the funds needed to purchase shares of Common Stock, if any, in the open market as described in Item 4, from its working capital. ITEM 4. PURPOSE OF TRANSACTION. On December 23, 1999, Fortress Investment Corp., a Maryland corporation ("FIC") and 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 FIC on or before January 31, 2000 (i) 5,378,000 shares of the Issuer's newly created $0.56 Cumulative Convertible Preferred Stock, Series C (the "Series C Preferred Stock") and 5,378,000 shares of the Issuer's newly created $0.40 Cumulative Convertible Preferred Stock, Series D (the "Series D Preferred Stock") (together, the "Preferred Stock") and (ii) all of FIC's rights and obligations in and to any agreements relating to FIC's acquisition of the Preferred Stock, including, but not limited to, the Supplemental Agreement (as defined below) (the "Assets"). On January 12, 2000, FIC and Fortress Cap LLC, a newly created and wholly-owned subsidiary of FIC, entered into an Assignment Agreement pursuant to which FIC assigned all its right, title and interest in the Assets to Cap LLC. The sale of the Assets pursuant to the Asset Purchase Agreement was thereafter consummated through the sale to Fortress Trust of all of FIC's right, title and interest in Cap LLC for $51,200,000 (the amount initially paid by FIC for the Preferred Stock) plus accrued dividend and out-of-pocket expenses. Each share of Series C Preferred Stock is convertible into one share of Common Stock and has a liquidation preference of $6.89 per share. Each share of Series D Preferred Stock is convertible into one share of Common Stock and has a liquidation preference of $4.76 per share. The Preferred Stock held by Cap LLC represents an ownership interest in the Issuer of 19.05 percent, based on 45,719,023 shares of Common Stock outstanding as of January 20, 2000 and assuming full conversion of the Preferred Stock. The Articles Supplementary to the Issuer's Charter with respect to the Preferred Stock contain certain anti-dilution provisions which will cause the number of shares of Common Stock into which the Preferred Stock will be convertible to be adjusted upon the occurrence of dilutive events. In connection with FIC's initial investment in the Preferred Stock, the Issuer's Board of Directors (the "Board") (i) approved an immediate increase in the number of Directors serving on its Board from six to eight and appointed Mr. Wesley R. Edens, Chief Executive Officer and Chairman of FIC, and Mr. Robert I. Kauffman, President of FIC, to fill the newly created vacancies on the Board and (ii) authorized the Issuer to enter into a Supplemental Agreement to the Stock Purchase Agreement (as amended on January 21, 2000, the "Supplemental Agreement"'). The Supplemental Agreement contemplates that, at the Issuer's next annual meeting of stockholders to be held no later than May 31, 2000 (the "Annual Meeting"), the Issuer's stockholders will vote upon the election to the Board of the following individuals (the "Proposal"): Wesley R. Edens, Robert I. Kauffman and two nominees of Messrs. Edens and Kauffman, who shall be independent directors. The Supplemental Agreement (as assigned to Cap LLC) also provides that if, among other things, Capstead's stockholders approve the Proposal at the Annual Meeting, Cap LLC or an affiliate of Cap LLC will, within the six-month period following the date of the Annual Meeting, acquire no less than five million shares of Common Stock through, at Cap LLC's option (i) open-market purchases, (ii) the conversion of Preferred Stock or (iii) a combination thereof. Purchases by Cap LLC and/or its affiliates of Common Stock through the date of the Annual Meeting shall be considered as part of such five million shares. If the obligation to acquire Common Stock pursuant to the Supplemental Agreement were fulfilled by Cap LLC solely through open-market purchases, then Cap LLC's ownership interest in Capstead would be approximately 27.9 percent, based on 45,719,023 shares of Common Stock outstanding as of January 20, 2000 and assuming full conversion of the Preferred Stock. The Supplemental Agreement also provides as follows: o Until the earlier to occur of (i) the approval of the Proposal at the Annual Meeting and the consummation of the actions contemplated thereby, (ii) Cap LLC's receipt of the Put/Call Payment (defined below), (iii) the expiration of the 30 day period following the date of the Annual Meeting and (iv) April 30, 2000 (the "Transition Period"), the Issuer shall conduct its business only in the ordinary course, in accordance with prudent practice and consistent with past practice established in 1999. o Cap LLC has the right to cause the Issuer to purchase from Cap LLC all, but not less than all, of the outstanding Preferred Stock (the "Fortress Put"), for a price equal to 103% of the purchase price of the Preferred Stock plus accrued and unpaid dividends thereon (the "Put/Call Payment") if: (a) the Proposal, as discussed above, is not approved by the Issuer's stockholders at the Annual Meeting on or before May 31, 2000; or (b) during the Transition Period, the Issuer shall not have conducted its business in the ordinary course (other than actions taken outside such scope at the request or with the approval of Cap LLC) or there shall have been a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Issuer, whether or not arising in the ordinary course of business (except a material adverse change directly resulting from any action taken at the request or with the approval of Cap LLC or a material adverse change resulting from adverse economic conditions in the industry in which the Issuer operates). o The Issuer can cause Cap LLC to sell to it all, but not less than all, of the Preferred Stock (the "Capstead Call") for the Put/Call Payment if the Proposal is not approved at the Annual Meeting. o The Fortress Put and the Capstead Call shall expire upon the expiration of the 30 day period following the Annual Meeting. o In the event of a change in control of the Issuer (as defined in the Supplemental Agreement) after the Annual Meeting and prior to December 9, 2004, except for certain business combinations approved by Cap LLC, Cap LLC can cause the Issuer to purchase from Cap LLC all, but not less than all, of the Preferred Stock outstanding at such time (the "Change in Control Put") for the original per share purchase price of the Preferred Stock plus accrued and unpaid dividends thereon. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. See numbers 7-11 of the cover pages to this Schedule 13D for the information required by Item 5. None of Fortress Fund MM LLC, Fortress Fund MM Inc., FPIG, FPIH or the Covered Persons directly owns any securities of the Issuer. However, by reason of their status as directors and/or officers Fortress Fund MM Inc., members of FPIG or managing members of the entities set forth in Item 2, such entities and the Covered Persons may be deemed to be the beneficial owners of the Preferred Stock and shares of the Common Stock owned directly or beneficially by Cap LLC, Fortress Trust and Fortress Fund. Cap LLC, Fortress Trust and Fortress Fund have been advised that each of Fortress Fund MM LLC, Fortress Fund MM Inc., FPIG, FPIH and the Covered Persons disclaims beneficial ownership of the Preferred Stock and any shares of the Common Stock from time to time owned directly or beneficially by Cap LLC, Fortress Trust and Fortress Fund. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. See Item 4 to this Schedule 13D for the information required by Item 6. 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. Exhibit 3 Supplemental Agreement to the Stock Purchase Agreement, dated as of December 9, 1999, by and between Fortress Investment Corp. and Capstead Mortgage Corporation Exhibit 4 Amendment No. 1 to the Supplemental Agreement to the Stock Purchase Agreement, dated as of January [ ], 2000 by and between Fortress Cap LLC and Capstead Mortgage Corporation Exhibit 5 Joint Filing Agreement, dated as of January 21, 2000, by and between Fortress Cap LLC, Fortress Registered Investment Trust and Fortress Investment Fund LLC. 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 REGISTERED INVESTMENT TRUST By: /s/ Randal A. Nardone ---------------------------------------- Randal A. Nardone as Secretary and Chief Operating Officer 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 CAP LLC By: /s/ Randal A. Nardone ---------------------------------------------- Randal A. Nardone as Secretary and Chief Operating Officer of Fortress Registered Investment Trust, sole member of Fortress Cap LLC 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 FUND, LLC By: /s/ Randal A. Nardone ------------------------------------------------ Randal A. Nardone as Chief Operating Officer and Secretary of Fortress Fund MM, LLC, managing member of Fortress Investment Fund, LLC 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 PRINCIPAL INVESTMENT HOLDINGS LLC By: /s/ Randal A. Nardone ---------------------------------------- Randal A. Nardone as Secretary ANNEX A DIRECTORS AND EXECUTIVE OFFICERS OF FORTRESS FUND MM, INC. The name and principal occupation of each of the executive officers and directors of Fortress Fund MM, Inc. are listed below. Except as set forth below, the principal business address of each of the executive officers and directors of Fortress Fund MM, Inc. is 1301 Avenue of the Americas, 42nd Floor, New York, NY 10019.
NAME PRINCIPAL OCCUPATION - ---------------------------------------------------------------------------------------------- Wesley R. Edens Chief Executive Officer and Chairman of the Board of Directors of Fortress Investment Corp. Robert I. Kauffman President and Director of Fortress Investment Corp. Randal A. Nardone Chief Operating Officer and Secretary of Fortress Investment Corp. Erik P. Nygaard Chief Information Officer and Treasurer of Fortress Investment Corp.
MEMBERS OF FORTRESS PRINCIPAL INVESTMENT HOLDINGS, LLC The name and principal occupation of each of the members of Fortress Principal Investment Holdings, LLC are listed below. Except as set forth below, the principal business address of each of the members of Fortress Principal Investment Holdings, LLC, Inc. is 1301 Avenue of the Americas, 42nd Floor, New York, NY 10019.
NAME PRINCIPAL OCCUPATION - ---------------------------------------------------------------------------------------------------- Wesley R. Edens Chief Executive Officer and Chairman of the Board of Directors of Fortress Investment Corp. Robert I. Kauffman President and Director of Fortress Investment Corp. Randal A. Nardone Chief Operating Officer and Secretary of Fortress Investment Corp. Erik P. Nygaard Chief Information Officer and Treasurer of Fortress Investment Corp. - ----------------
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 - AMENDMENT NO. 1 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 EX-99 4 EXHIBIT 3 - SUPPLEMENTAL AGREEMENT SUPPLEMENTAL AGREEMENT TO THE STOCK PURCHASE AGREEMENT THIS SUPPLEMENTAL AGREEMENT TO THE STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of December 9, 1999, is by and among FORTRESS INVESTMENT CORP., a Maryland corporation ("Fortress"), and CAPSTEAD MORTGAGE CORPORATION, a Maryland corporation ("Capstead"). WHEREAS, Fortress and Capstead are entering into a Series C and Series D Convertible Preferred Stock Purchase Agreement, dated as of the date hereof (the "Purchase Agreement"), pursuant to which Fortress is purchasing from Capstead 5,378,000 shares of a series of Capstead's preferred stock to be designated as Series C Convertible Preferred Stock, $0.10 par value per share (the "Series C Preferred Stock"), and 5,378,000 shares of a series of Capstead's preferred stock to be designated as Series D Convertible Preferred Stock, $0.10 par value per share (the "Series D Preferred Stock," and, together with the Series C Preferred Stock, the "Preferred Stock") for total consideration of $51,200,000 (the "Purchase Price"); WHEREAS, the execution and delivery of this Agreement by Capstead and Fortress is a condition to closing under the Preferred Stock Purchase Agreement; WHEREAS, the board of directors of Capstead (the "Board") has determined to hold a special meeting (the "Special Meeting") of the holders of Capstead's common stock, par value $0.01 per share (the "Common Stock"), at which such holders will vote upon certain matters that may require their approval (collectively, the "Proposal") and a reverse stock split of the Common Stock; and WHEREAS, Fortress and Capstead deem it in their best interests to enter into this Agreement in order to set forth certain rights and obligations in connection with the ongoing management of Capstead; NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, representations, warranties, covenants and conditions herein set forth, and other good, valid and binding consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Conduct of Capstead's Business. From the date hereof until the earlier to occur of (i) the approval of the Proposal at the Special Meeting and the consummation of the actions contemplated thereby and (ii) Fortress' receipt of the Put/Call Payment (defined below) or the termination of the rights and obligations of Capstead and Fortress under Section 2 hereof as set forth in subsection 2(c) (the "Transition Period"), except as otherwise expressly set forth in this Agreement, and except for costs and expenses reasonably incurred in connection with the transactions contemplated by this Agreement, Capstead shall conduct the business, operations, activities and practices of Capstead and its Subsidiaries only in the ordinary course, in accordance with prudent practice and consistent with past practice established in 1999; provided that (a) Capstead shall not enter into any new agreements or arrangements with Persons that are Affiliates (other than its consolidated subsidiaries) or, as of the date hereof, are executive officers or directors of Capstead or its Subsidiaries and (b) Capstead may, in conjunction with Fortress, design and implement certain policies with respect to mitigating interest rate risk and repositioning Capstead's current portfolio. 2. Fortress Put/Capstead Call. a. Fortress Put. In the event that one or more of the following shall not have occurred as of the respective dates set forth below: i. Prior to or concurrently with the execution of this Agreement, the Board shall have passed resolutions pursuant to which the Board shall have (a) increased the number of directors comprising the Board from six to eight and appointed Wesley Edens and Robert Kauffman to fill the vacancies created thereby to serve on the Board until the next annual meeting of stockholders and until their successors are elected and qualified and (b) exempted Fortress' purchase of the Preferred Stock and subsequent acquisition of Common Stock pursuant to Section 6 hereof from (i) the application of Article VIII of Capstead's Articles of Incorporation, (ii) Section 3-602 of the Maryland General Corporation Law ("MGCL") prohibiting business combinations with Interested Stockholders (as such term is defined in Section 3-601 of the MGCL) and (iii) Section 3-701 et. seq. of the MGCL; and ii. The Proposal shall have been approved by Capstead's stockholders at the Special Meeting, which Special Meeting shall be held as soon as practicable, but in no event later than April 30, 2000; iii. Effective as of the date of the Special Meeting, Bevis Longstreth, Harriet E. Miers, William R. Smith, and John C. Tolleson shall have resigned their positions as directors on the Board and the Board shall have adopted resolutions to (a) reduce the number of Board members from eight to seven, (b) appoint Wesley Edens Chairman of the Board and Chief Executive Officer and Ronn Lytle Vice Chairman of the Board; (c) appoint three individuals to fill the vacancies on the Board created by such resignations, provided, that (x) one of such individuals shall have been nominated by Ronn Lytle and Paul Low and (y) two of such individuals shall have been nominated by Wesley Edens and Robert Kaufman, provided, that such two individuals shall be "independent directors" for purposes of the Securities Exchange Act of 1934, as amended, Section 3-802 of the MGCL, Section 162(m) of the Internal Revenue Code of 1986, and the rules of the New York Stock Exchange; and iv. During the Transition Period, Capstead shall have conducted the business, operations, activities and practices of Capstead and its Subsidiaries in accordance with Section 1 hereof (except actions taken outside such scope at the request or with the approval of Fortress) and there shall not have been a Material Adverse Change (other than a Material Adverse Change directly resulting from any action taken at the request or with the approval of Fortress). "Material Adverse Change" means, with respect to Capstead, any direct or indirect change, occurrence or effect (other than as a result of changes in general conditions, including economical or political developments, applicable to the industry in which Capstead operates) on the business, operations, properties (including tangible properties), condition (financial or otherwise), assets, obligations or liabilities (whether absolute, contingent or otherwise and whether due or to become due) of Capstead and its subsidiaries taken as a whole that reasonably could be expected to be materially adverse to Capstead; then Fortress shall have the right to cause Capstead to purchase from Fortress all, but not less than all, of the Preferred Stock (the "Fortress Put"), for a price equal to 103% of the Purchase Price plus any and all accrued and unpaid dividends on the Preferred Stock (the "Put/Call Payment"). b. Capstead Call. In the event that the Proposal is not approved at the Special Meeting, then Capstead shall have the right to cause Fortress to sell to Capstead all, but not less than all, of the Preferred Stock (the "Capstead Call") for the Put/Call Payment. c. The sale or purchase of Preferred Stock pursuant to this Section 2 (the "Put/Call Closing") shall occur on such date as the parties hereto may agree, which date shall be within one month after delivery by the party exercising its rights under this Section 2 of written notice to the other party hereto to the effect that it is exercising its rights pursuant to this Section 2. Payment of the Put/Call Payment shall be made by wire transfer in immediately available funds unless some other form of consideration is agreed to by the parties hereto. On or prior to the Put/Call Closing, Fortress shall deliver to Capstead and Capstead shall deliver to Fortress all documents reasonably required to be executed in connection with the sale or purchase of Preferred Stock pursuant to this Section 2. d. The rights and obligations, if any, of Capstead and Fortress under this Section 2 shall terminate and be of no further force and effect upon the later to occur of (i) the expiration of the 30 day period following the date of the Special Meeting and (ii) May 31, 2000. 3. Fortress Put Upon a Change in Control of Capstead. a. At any time after the approval of the Proposal at the Special Meeting and prior to the 5th anniversary of the date hereof, in the event of a Change in Control of Capstead, Fortress shall have the right to cause Capstead to purchase from Fortress all, but not less than all, of the Preferred Stock then outstanding (the "Change in Control Put") for the Purchase Price multiplied by a fraction, the numerator of which shall be the number of shares of Preferred Stock then outstanding and the denominator of which shall be 10,756,000, plus any and all accrued and unpaid dividends on such Preferred Stock. For purposes hereof, a "Change in Control" of Capstead shall be deemed to have occurred upon any of the following events: i. any "person," as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than Fortress and its affiliates) becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Capstead representing 25 percent or more of the voting power of Capstead's then outstanding securities; ii. at any time subsequent to the date the Board is reconstituted in accordance with the provisions of subsection 2(a)(iii) hereof and during any period of two consecutive years thereafter, individuals (a) who were elected to the Board by a vote of at least two-thirds (2/3) of the Board at the beginning of such period or (b) whose nomination for election by Capstead's stockholders was approved by a vote of at least two-thirds (2/3) of the Board at the beginning of such period or (c) whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the Board of Directors of Capstead; or iii. Capstead shall be party to a merger, consolidation, share exchange, tender offer or similar transaction or a purchase or other acquisition of all or a significant portion of the assets of Capstead (a "Business Combination"), except a Business Combination approved by Wesley Edens and Robert Kauffman or their Fortress-approved successors. b. The purchase of Preferred Stock pursuant to this Section 3 shall occur on such date as the parties hereto may agree, which date shall be within one month after delivery by Fortress of written notice to Capstead to the effect that it is exercising its rights pursuant to this Section 3. Payment shall be made to Fortress by wire transfer in immediately available funds unless some other form of consideration is agreed to by the parties hereto. On or prior to the purchase of Preferred Stock pursuant to this Section 3, Fortress shall deliver to Capstead and Capstead shall deliver to Fortress all documents reasonably required to be executed in connection with the purchase of Preferred Stock pursuant to this Section 3. 4. Services Agreement. If (i) the Proposal is approved at the Special Meeting and the actions contemplated thereby are consummated, (ii) the merger (the "Merger") of Impac Commercial Holdings, Inc., a Maryland corporation, with and into AMRESCO Capital Trust, a Texas real estate investment trust ("AMRESCO"), is consummated and (iii) Fortress has not exercised either the Fortress Put or the Change in Control Put and Capstead has not exercised the Capstead Call, then Fortress (or its designated Affiliate), the surviving entity of the Merger and Capstead (or a subsidiary thereof) shall promptly enter into a Services Agreement mutually satisfactory to the parties thereto for the provision of services at fair market prices by Capstead to the surviving entity of the Merger, including, but not limited, to (a) office space in Capstead's existing offices at Lincoln Park, 8401North Central Expressway, Dallas, Texas; (b) office management, including payroll; (c) stockholder relations; (d) financial reporting; (e) accounting and tax services; (f) mail room services; and (g) receptionist services. 5. Employment Matters. a. Subject to approval of the Proposal at the Special Meeting, Capstead shall take all necessary action as soon as practicable thereafter to: i. Have an individual designated by Fortress appointed to the position of Chief Investment Officer of Capstead; ii. Have Andrew F. Jacobs appointed to the positions of Executive Vice President and Chief Financial Officer of Capstead; and b. Subject to approval of the Proposal at the Special Meeting, Capstead will take all necessary action to, and Fortress will not take any action to prevent Capstead from taking any action to: i. For at least three years after the date of the Special Meeting, maintain all of Capstead's obligations, arrangements, policies or practices to provide benefits, including officer grade, salary, bonus and incentive compensation, as compensation for services rendered by employees of Capstead at levels that are no less favorable than those in place as of the date hereof and set forth on a side letter delivered to Fortress concurrently herewith, provided, that this obligation shall cease to exist upon a Change in Control of Capstead; ii. For at least three years after the date of the Special Meeting, provide coverage of medical, dental, life insurance accidental death and disability insurance, long term disability, Flexible Spending Account, 401k, deferred compensation plan and travel accident insurance at levels that are no less favorable than those in place as of the date hereof and set forth on a side letter delivered to Fortress concurrently herewith, provided, that this obligation shall cease to exist upon a Change in Control of Capstead. 6. Common Stock Acquisition. Subject to approval of the Proposal at the Special Meeting, Fortress or its designated Affiliate will, within the six-month period following the date of the Special Meeting, acquire no less than five million shares of Common Stock through, at Fortress' option, (i) open-market purchases, (ii) the conversion of Preferred Stock or (iii) any combination thereof; provided, that purchases by Fortress and/or its Affiliates of Common Stock from and after the date hereof and to and including the date of the Special Meeting (which shall not exceed 3,300,000 shares) shall be considered as part of such five million shares of Common Stock; and provided, further, that this Section 6 and Fortress' obligation hereunder shall terminate and be of no further force and effect upon exercise of the Fortress Put, Change in Control Put or Capstead Call. 7. Notices. All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and mailed or facsimiled or delivered by hand or courier service: If to Fortress, to: Fortress Investment Corp. 1301 Avenue of the Americas, 42nd Street New York, New York 10019 Attn: Randal Nardone Facsimile No. (212) 798-6120 With a copy to: Skadden, Arps, Slate, Meagher & Flom LLP 919 Third Avenue New York, New York 10022 Attn: J. Gregory Milmoe, Esq. Facsimile No. (212) 735-2000 If to Capstead, to: Capstead Mortgage Corporation 8401 North Central Expressway, Suite 800 Dallas, TX 75225-4410 Attn: Andrew F. Jacobs Facsimile No. (214) 874-2398 With a copy to: Andrews & Kurth L.L.P. 1717 Main Street, Suite 3700 Dallas, Texas 75201 Attn: David Barbour Facsimile No. (214) 659-4401 8. Entire Agreement. This Agreement (including the attachments hereto) constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior or contemporary agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. 9. Termination. This Agreement will automatically terminate and be of no further force and effect at such time that (i) Fortress has received payment of the applicable payment pursuant to exercise of the Fortress Put, Capstead Call or Change in Control Put or (ii) Fortress no longer owns Preferred Stock or Common Stock acquired pursuant to the Preferred Stock Purchase Agreement. 10. Validity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, each of which shall remain in full force and effect. 11. Assignment. This Agreement and the rights hereunder shall not be assignable or transferable by either party (except (i) by Fortress to any of its Affiliates and (ii) by operation of law in connection with a merger, consolidation, or sale of all or substantially all the assets of either party) without the prior written consent of the other party. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and permitted assigns. 12. Amendment and Modification. This Agreement may be amended, modified, or supplemented at any time only by an instrument in writing signed on behalf of the parties hereto. 13. Specific Performance. The parties hereto agree that if any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached, irreparable damage would occur, no adequate remedy at law would exist, and damages would be difficult to determine, and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity. 14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. 15. Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. 16. Certain Definitions. a. An "Affiliate" of any Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person; b. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Purchase Agreement. 17. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. 18. Third-Party Beneficiaries. Nothing contained in this Agreement shall be construed to give any person other than Fortress and Capstead, and their successors and assigns, any legal or equitable right, remedy, or claim under or with respect to this Agreement. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. CAPSTEAD MORTGAGE CORPORATION By:________________________ Andrew F. Jacobs Executive Vice President-Finance FORTRESS INVESTMENT CORP. By: _______________________ Randal A. Nardone Chief Operating Officer EX-99 5 EXHIBIT 4 - AMENDMENT NO 1 AMENDMENT NO. 1 TO THE SUPPLEMENTAL AGREEMENT TO THE STOCK PURCHASE AGREEMENT THIS AMENDMENT NO.1 TO THE SUPPLEMENTAL AGREEMENT TO THE STOCK PURCHASE AGREEMENT (this "Amendment"), dated as of January , 2000, is by and among FORTRESS CAP LLC, a Maryland corporation ("Fortress"), and CAPSTEAD MORTGAGE CORPORATION, a Maryland corporation ("Capstead"). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Supplemental Agreement to the Stock Purchase Agreement, dated as of December 9, 1999 (the "Agreement"). WHEREAS, in connection with Fortress' Investment Corp.'s investment in the Preferred Stock, the Fortress' Investment Corp. and Capstead entered into the Agreement in order to set forth certain rights and obligations in connection with the purchase of Preferred Stock and the ongoing management of Capstead; WHEREAS, Fortress Investment Corp. has assigned the Preferred Stock and its rights and obligations associated therewith to Fortress pursuant to an Assignment Agreement dated as of January 12, 2000 and attached hereto as Exhibit A; WHEREAS, the Board has determined not to hold the Special Meeting as provided in the Agreement and instead to submit the matters to be approved by Capstead's stockholders at its annual meeting of stockholders; NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, representations, warranties, covenants and conditions set forth in the Agreement, and other good, valid and binding consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. All references in the Agreement to "Special Meeting" shall mean "Annual Meeting." 2. The third "Whereas" clause is hereby deleted it its entirety and replaced with the following: WHEREAS, the Board of Directors of Capstead (the "Board") has determined to submit for approval at Capstead's annual meeting of stockholders (the "Annual Meeting"), a slate of seven nominees, which shall include Wesley R. Edens, Robert I. Kauffman, Ronn K. Lytle, Paul M. Low, two persons recommended to the nominating committee of the Board by Messrs. Edens and Kauffman (both of whom shall be an independent director for purposes of the Securities Exchange Act of 1934, as amended, Section 162(m) of the Internal Revenue Code and the rules of the New York Stock Exchange (an "Independent Director")) and one nominee recommended to the nominating committee of the Board by Messrs. Lytle and Low (who shall also be an Independent Director). Messrs. Edens and Kauffman and the two persons recommended to the nominating committee of the Board by them shall be referred to herein collectively as the "Fortress Nominees" and the election of all of the Fortress Nominees at the Annual Meeting by a vote of a majority of the shares represented at the meeting and entitled to vote shall be referred to herein as the Proposal. 3. Section 1(ii) of the Agreement is hereby amended by replacing the reference to subsection 2(c) with 2(d). 4. Section 2 of the Agreement is hereby amended as follows: (a) Section 2(a)(ii) is hereby amended and restated in full as follows" "The Proposal shall have been approved at the Annual Meeting, which Annual Meeting shall be held no later than May 31, 2000." (b) Section 2(a)(iii) of the Agreement is hereby amended and restated in full as follows: "As of the date of or before the Annual Meeting, the Board shall have adopted resolutions (a) reducing the number of Board members from eight to seven and (b) appointing Wesley R. Edens Chairman of the Board and Chief Executive Officer and Ronn K. Lytle Vice Chairman of the Board; and". (c) Section 2(d) of the Agreement is hereby amended and restated in full as follows: "The rights and obligations, if any, of Capstead and Fortress under this Section 2 shall terminate and be of no further force and effect upon the expiration of the 30 day period following the date of the Annual Meeting." (d) A new subsection (e) is hereby added: "e. If each of the Fortress Nominees are not elected at the Annual Meeting, then none of them will qualify to serve as director and Bevis Longstreth, Harriet E. Miers, William R. Smith and John C. Tolleson will remain on the Board until their successors are duly elected and qualified. If all of the Fortress Nominees are elected and Fortress shall then exercise the Fortress Put, each Fortress Nominee, if any, elected to the Board by the stockholders at the Annual Meeting shall resign from their position as director on the Board, effective upon receipt by Fortress of the Put/Call Payment." 5. Section 4 of the Agreement is deleted in its entirety and replaced with the following: "Fortress agrees that it shall not, and shall cause its executive officers, directors, Affiliates, Subsidiaries and the executive officers and directors of its Affiliates and Subsidiaries not to, (i) enter into any material transaction with Capstead in which such entity or person has an interest unless such transaction has been approved by a majority of the disinterested directors of Capstead or (ii) enter into any other transaction with Capstead, unless such transaction is fair and reasonable to Capstead. As of the date hereof the only Fortress interested directors are Wesley Edens and Robert Kauffman." 6. All other terms and provisions of the Agreement shall remain in full force and effect without any amendment or supplement thereto or restatement thereof. IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first written above. CAPSTEAD MORTGAGE CORPORATION By: /s/ Andrew F. Jacobs ----------------------------- Andrew F. Jacobs Executive Vice President- Finance FORTRESS CAP LLC By: /s/ Randal A. Nardone ------------------------------ Randal A. Nardone as Secretary and Chief Operating Officer of Fortress Registered Investment Trust., sole member of Fortress Cap LLC 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 1. EDEFINITIONS. Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Purchase Agreement. Section 2. EASSIGNMENT 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 3. EACCEPTANCE 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 4. E 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 5. ENO 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 6. ENO 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 7. EAMENDMENT. This Agreement may only be amended or modified by a written instrument executed by the parties hereto. Section 8. EGOVERNING 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 9. EBINDING 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 -------------------------- 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 EX-99 6 EXHIBIT 5 - JOINT FILING AGREEMENT EXHIBIT 5 JOINT FILING AGREEMENT This JOINT FILING AGREEMENT, dated as of January 21, 2000, is made by and between Fortress Cap LLC, a Delaware limited liability company ("Fortress Cap") Fortress Registered Investment Trust, a Delaware business trust and the sole member of Fortress Cap LLC ("Fortress Trust"), Fortress Investment Fund LLC, a Delaware limited liability company ("Fortress Fund") and Fortress Principal Investment Holdings LLC ("FPIH"). Fortress Cap, Fortress Trust and Fortress Fund are collectively referred to herein as the "Parties" and each individually as a "Party." Pursuant to Rule 13d- 1(k)(1)(iii) promulgated under the Securities Exchange Act of 1934, as amended, the Parties hereby acknowledge and agree that the foregoing Amendment No.1 to Statement on Schedule 13D is filed on behalf of each such Party and that all subsequent amendments to the Statement on Schedule 13D shall be filed on behalf of each of the Parties without the necessity of filing additional joint acquisition statements. The Parties hereby acknowledge that each Party shall be responsible for timely filing of such amendments, and for the completeness and accuracy of the information concerning such Party contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the other Party, except to the extent that such Party knows or has reason to believe that such information is inaccurate. IN WITNESS WHEREOF, the Parties hereto have executed this Joint Filing Agreement as of the day and year first above written. FORTRESS CAP LLC By: /s/ Randal A. Nardone -------------------------------------------------- Randal A. Nardone as Secretary and Chief Operating Officer of Fortress Registered Investment Trust, sole member of Fortress Cap LLC FORTRESS REGISTERED INVESTMENT TRUST By: /s/ Randal A. Nardone --------------------------------------------- Randal A. Nardone as Secretary and Chief Operating Officer FORTRESS INVESTMENT FUND LLC By: /s/ Randal A. Nardone --------------------------------------------- Randal A. Nardone as Secretary and Chief Operating Officer of Fortress Fund MM, LLC, managing member of Fortress Investment Fund, LLC FORTRESS PRINCIPAL INVESTMENT HOLDINGS LLC By: /s/ Randal A. Nardone -------------------------------------------- Randal A. Nardone as Secretary
-----END PRIVACY-ENHANCED MESSAGE-----