SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): February 21, 2012
Capstead Mortgage Corporation
(Exact name of registrant as specified in its charter)
| MARYLAND | 001-08896 | 75-2027937 | ||
| (State of Incorporation) | (Commission File Number) |
(I.R.S. Employer Identification Number) | ||
| 8401 North Central Expressway Suite 800 Dallas, Texas |
75225 | |||
| (Address of principal executive offices) | (Zip Code) | |||
Registrant’s telephone number, including area code: (214) 874-2323
Check the appropriate box if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement
On June 1, 2011, Capstead Mortgage Corporation (the “Company”) entered into an Amended and Restated Sales Agreement (the “Original Agreement”) with Brinson Patrick Securities Corporation (the “Sales Manager”), in connection with the issuance and sale of shares of the Company’s common stock, par value $0.01 per share (“Common Stock”) and the Company’s $1.26 Cumulative Convertible Preferred Stock, Series B (the “Series B Preferred Stock”), from time to time through the Sales Manager. On February 21, 2011, the Company entered into the First Amendment to Sales Agreement with the Sales Manager (the “First Amendment” and the Original Agreement as amended, the “Sales Agreement”). The First Amendment adds a requirement that the Company furnish comfort letters from its independent accountants to the Sales Manager on a quarterly rather than annual basis. Additionally, the First Amendment extends the initial “Sales Period” through December 31, 2014. Finally, the First Amendment amends the provisions related to the Sales Manager’s commissions to allow for a commission rate mutually agreed upon in writing by the Sales Manager and the Company, not to exceed the existing compensation set forth in the Original Agreement.
The foregoing summary is qualified in its entirety by reference to the First Amendment attached hereto as Exhibit 10.1 and incorporated herein by reference.
Item 8.01. Other Events.
Reference is hereby made to the registration statement of the Company on Form S-3/ASR (File No. 333-179607), which became effective on February 21, 2012 (the “Registration Statement”), pursuant to which the Company registered the sale of debt and equity securities in accordance with the provisions of the Securities Act of 1933, as amended. Reference is also hereby made to the prospectus and the two related prospectus supplements, which were filed with the Commission pursuant to Rule 424(b)(5) on February 23, 2012 with respect to 15,000,000 shares of Common Stock and 1,495,548 shares of Series B Preferred Stock to be sold pursuant to the Sales Agreement.
On February 23, 2012, Hogan Lovells US LLP issued its opinion with respect to the legality of the issuance and sale by the Company of an additional 15,000,000 shares of the Company’s Common Stock and an additional 1,495,548 shares of Series B Preferred Stock to be sold pursuant to the Sales Agreement. Copies of each of these opinions are filed as exhibits to this Form 8-K.
Item 9.01. Financial Statements and Exhibits.
| (c) | Exhibits |
| Exhibit No. | Description | |
| 5.1.1 | Opinion of Hogan Lovells US LLP, dated February 23, 2012, as amended through the date hereof, with respect to the legality of the shares of Common Stock being issued. | |
| 5.1.2 | Opinion of Hogan Lovells US LLP, dated February 23, 2012, as amended through the date hereof, with respect to the legality of the shares of Series B Preferred Stock being issued. | |
| 10.1 | First Amendment to Sales Agreement, dated February 21, 2012, by and between the Company and the Sales Manager. | |
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: February 23, 2012
| CAPSTEAD MORTGAGE CORPORATION | ||
| By: | /s/ Phillip A. Reinsch | |
| Phillip A. Reinsch Executive Vice President, Chief Financial Officer and Secretary | ||
Exhibit 5.1.1
| Hogan Lovells US LLP Harbor East 100 International Drive, Suite 2000 Baltimore, Maryland 21202 T +1 410 659 2700 F +1 410 659 2701 www.hoganlovells.com |
February 23, 2012
Brinson Patrick Securities Corporation
1515 Broadway, 11th Floor
New York, New York 10036
| Re: | Capstead Mortgage Corporation – 15,000,000 Shares of Common Stock |
Ladies and Gentlemen:
This firm has acted as Maryland counsel to Capstead Mortgage Corporation, a Maryland corporation (the “Company”), in connection with the issuance and sale from time to time of 15,000,000 shares of Common Stock (par value $0.01 per share) of the Company (the “Shares”), pursuant to the terms of the Amended and Restated Sales Agreement dated June 1, 2011 by and between the Company and you, as amended by the First Amendment to the Amended and Restated Sales Agreement dated as of February 21, 2012 (the “Amendment” and, collectively, the “Agreement”). This opinion letter is furnished to you pursuant to the requirements set forth in Section 4(d)(i) of the Agreement in connection with the execution and delivery of the Amendment on the date hereof. Capitalized terms used herein which are defined in the Agreement shall have the meanings set forth in the Agreement, unless otherwise defined herein, including in Schedule I attached hereto.
For purposes of the opinions expressed in this letter, which are set forth in paragraphs (a) through (h) below (the “Opinions”), and other statements made in this letter, we have examined copies of the documents listed on Schedule 1 attached hereto (the “Documents”). We believe the Documents provide an appropriate basis on which to render the opinions hereinafter expressed.
In our examination of the Agreement and the other Documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all of the Documents, the authenticity of all originals of the Documents and the conformity to authentic originals of all of the Documents submitted to us as copies (including telecopies). We have also assumed the validity and constitutionality of each relevant statute, rule, regulation and agency action covered by this opinion letter. In our role as Maryland counsel to the Company, we have assumed that any shares of the Company’s common stock issued pursuant to the Agreement will not be issued in violation of the ownership limit contained in the Charter of the Company. As to matters of fact relevant to the Opinions expressed herein, we have relied on the representations and statements of fact made in the Documents, we have not independently established the facts so relied on, and we have not made any investigation or inquiry other than our examination of the Documents. The Opinions are given, and other statements are made, in the context of the foregoing.
The Opinions are based as to matters of law solely on applicable provisions of the Maryland General Corporation Law (the “MGCL”), as currently in effect.
Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. Hogan Lovells refers to the international legal practice comprising Hogan Lovells US LLP, Hogan Lovells International LLP, Hogan Lovells Worldwide Group (a Swiss Verein), and their affiliated businesses with offices in: Abu Dhabi Alicante Amsterdam Baltimore Beijing Berlin Boulder Brussels Caracas Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston London Los Angeles Madrid Miami Milan Moscow Munich New York Northern Virginia Paris Philadelphia Prague Rome San Francisco Shanghai Silicon Valley Singapore Tokyo Ulaanbaatar Warsaw Washington DC Associated offices: Budapest Jeddah Riyadh Zagreb
| Brinson Patrick Securities Corporation |
- 2 - | February 23, 2012 |
Based upon, subject to and limited by the foregoing, we are of the opinion that:
(a) The Company was duly incorporated and is validly existing as a corporation and in good standing under the MGCL as of the date of the certificate specified in paragraph 6 of Schedule 1.
(b) The Company has the corporate power to own, lease and operate its current properties and to conduct its business as described in the Registration Statement and Prospectus.
(c) The authorized capital stock of the Company as of February 23, 2012 was as set forth under the caption “Description of our Capital Stock – Authorized Stock” in the Prospectus. No holder of outstanding shares of capital stock of the Company has any statutory preemptive right under the MGCL, the Charter or By-laws of the Company to subscribe for any of the Shares.
(d) The Agreement has been duly authorized by the Company.
(e) The Shares have been duly authorized for issuance and sale by you under the Agreement and, when issued in accordance with the provisions of the Agreement, the Shares will be validly issued, fully paid and non-assessable.
(f) The information in the Registration Statement and the Prospectus under the captions “Description of Our Capital Stock,” “Description of our Common Stock” and “Material Provisions of Maryland Law and of our Charter and By-Laws” to the extent that such information constitutes matters of law or legal conclusions, has been reviewed by us and is accurate in all material respects. The Common Stock conforms and the Shares conform as to legal matters in all material respects to the description thereof set forth in the Pricing Prospectus and the Final Prospectus under the caption “Description of our Common Stock.” No holder of the Shares is subject to personal liability as such under the laws of the State of Maryland, which is the jurisdiction in which the Company is organized, except as such holder may be liable by reason of such holder’s own conduct and acts.
(g) The execution, delivery and performance on the date hereof by the Company of the Agreement do not violate (i) the MGCL or the Charter or By-Laws of the Company or (ii) violate any Maryland court or administrative order, judgment, or decree listed on Schedule 2 attached hereto that names the Company and is specifically directed to it or any of its property.
(h) No approval or consent of, or registration or filing with, any Maryland regulatory agency is required to be obtained or made by the Company under the MGCL in connection with the execution, delivery and performance on the date hereof by the Company of the Agreement.
Nothing herein shall be construed to cause us to be considered “experts” within the meaning of Section 11 of the Securities Act of 1933, as amended.
We express no opinion in this letter as to any other laws and regulations not specifically identified above as being covered hereby (and in particular, we express no opinion as to any effect that such other laws and regulations may have on the Opinions). We express no opinion in this letter as to federal or state securities laws or regulations, antitrust, unfair competition, banking or tax laws or regulations or laws or regulations of any political subdivision below the state level.
| Brinson Patrick Securities Corporation |
- 3 - | February 23, 2012 |
We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. This opinion letter has been prepared solely for your use in connection with the closing under the Agreement on the date hereof, and should not be quoted in whole or in part or otherwise be referred to, and should not be filed with or furnished to any governmental agency or other person or entity, without the prior written consent of this firm. The foregoing notwithstanding, to the extent our Opinions relate to matters of Maryland law, Andrews Kurth LLP may rely on our Opinions in rendering their opinions to you on the date hereof, provided that the full text of Andrews Kurth LLP’s opinion letter states that our Opinions speak only as of the date hereof and that no such reliance will have any effect on the scope, phrasing or originally intended use of our Opinions.
Very truly yours,
/s/ Hogan Lovells US LLP
HOGAN LOVELLS US LLP
Schedule 1
1. Executed copy of the Agreement.
2. The Registration Statement on Form S-3, as amended (No. 333-179607) (the “Registration Statement”) filed with the Commission on February 21, 2012.
3. The prospectus supplement, dated February 23, 2012 (the “Prospectus Supplement”), to the prospectus, dated February 23, 2012 (the “Base Prospectus”, and together with the Prospectus Supplement, the “Prospectus”), as filed pursuant to Rule 424(b)(5) under the Securities Act.
4. The charter of the Company (the “Charter”), as amended through June 21, 2011 and as certified by the Maryland State Department of Assessments and Taxation (the “MSDAT”) on June 21, 2011 and as certified by the Secretary of the Company on the date hereof as being complete, accurate and in effect.
5. The Amended and Restated By-laws of the Company, as certified by the Secretary of the Company on the date hereof as being complete, accurate and in effect.
6. A certificate of good standing of the Company issued by the MSDAT dated February 22, 2012 under the laws of the State of Maryland.
7. Certain resolutions of the Board of Directors of the Company (the “Board”) adopted at a meeting duly held or by unanimous written consent on February 20, 2012, as certified by the Secretary of the Company on the date hereof as being accurate and in effect, relating, among other things, to the authorization of the Agreement and the Shares.
8. A certificate, dated the date hereof, of certain officers of the Company as to the representations and warranties of the Company set forth in the Sales Agreement and other matters relating to the Shares and the authorization of the issuance thereof.
9. A certificate of the Secretary of the Company, dated the date hereof, as to the incumbency and signatures of certain officers of the Company.
Schedule 2
No items in these categories have been provided to us and identified as items which we should review in connection with rendering this opinion. We have been authorized to provide you with a copy of the Company Officer’s Certificate to the effect that there are no court or administrative orders, judgments or decrees of any Maryland court or administrative agency.
Exhibit 5.1.2
| Hogan Lovells US LLP Harbor East 100 International Drive, Suite 2000 Baltimore, Maryland 21202 T +1 410 659 2700 F +1 410 659 2701 www.hoganlovells.com |
February 23, 2012
Brinson Patrick Securities Corporation
1515 Broadway, 11th Floor
New York, New York 10036
| Re: | Capstead Mortgage Corporation – 1,495,548 Shares of Series B Preferred Stock |
Ladies and Gentlemen:
This firm has acted as Maryland counsel to Capstead Mortgage Corporation, a Maryland corporation (the “Company”), in connection with the issuance and sale from time to time of up to 1,495,548 shares of $1.26 Cumulative Convertible Preferred Stock, Series B (par value $0.10 per share) of the Company (the “Preferred Shares”), pursuant to the terms of the Amended and Restated Sales Agreement, dated June 1, 2011 by and between the Company and you, as amended by the First Amendment to the Amended and Restated Sales Agreement dated as of February 21, 2012 (the “Amendment” and, collectively, the “Agreement”). This opinion letter is furnished to you pursuant to the requirements set forth in Section 4.1(d)(i) of the Agreement in connection with the execution and delivery of the Amendment on the date hereof. Capitalized terms used herein which are defined in the Agreement shall have the meanings set forth in the Agreement, unless otherwise defined herein, including in Schedule I attached hereto.
For purposes of the opinions expressed in this letter, which are set forth in paragraphs (a) through (k) below (the “Opinions”), and other statements made in this letter, we have examined copies of the documents listed on Schedule 1 attached hereto (the “Documents”). We believe the Documents provide an appropriate basis on which to render the opinions hereinafter expressed.
In our examination of the Agreement and the other Documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all of the Documents, the authenticity of all originals of the Documents and the conformity to authentic originals of all of the Documents submitted to us as copies (including telecopies). We have also assumed the validity and constitutionality of each relevant statute, rule, regulation and agency action covered by this opinion letter. In our role as Maryland counsel to the Company, we have assumed that any shares of the Company’s capital stock issued pursuant to the Agreement will not be issued in violation of the ownership limit contained in the Charter of the Company. As to matters of fact relevant to the Opinions expressed herein, we have relied on the representations and statements of fact made in the Documents, we have not independently established the facts so relied on, and we have not made any investigation or inquiry other than our examination of the Documents. The Opinions are given, and other statements are made, in the context of the foregoing.
The Opinions are based as to matters of law solely on applicable provisions of the Maryland General Corporation Law (the “MGCL”), as currently in effect.
Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. Hogan Lovells refers to the international legal practice comprising Hogan Lovells US LLP, Hogan Lovells International LLP, Hogan Lovells Worldwide Group (a Swiss Verein), and their affiliated businesses with offices in: Abu Dhabi Alicante Amsterdam Baltimore Beijing Berlin Boulder Brussels Caracas Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston London Los Angeles Madrid Miami Milan Moscow Munich New York Northern Virginia Paris Philadelphia Prague Rome San Francisco Shanghai Silicon Valley Singapore Tokyo Ulaanbaatar Warsaw Washington DC Associated offices: Budapest Jeddah Riyadh Zagreb
| Brinson Patrick Securities Corporation |
- 2 - | February 23, 2012 |
Based upon, subject to and limited by the foregoing, we are of the opinion that:
(a) The Company was duly incorporated and is validly existing as a corporation and in good standing under the MGCL as of the date of the certificate specified in paragraph 6 of Schedule 1.
(b) The Company has the corporate power to own, lease and operate its current properties and to conduct its business as described in the Registration Statement and Prospectus.
(c) The authorized capital stock of the Company as of February 23, 2012 was as set forth under the caption “Description of our Capital Stock – Authorized Stock” in the Prospectus.
(d) The Agreement has been duly authorized by the Company.
(e) The Preferred Shares have been duly authorized for issuance and sale by you under the Agreement and, when issued in accordance with the provisions of the Agreement, the Preferred Shares will be validly issued, fully paid and non-assessable.
(f) The Board of Directors has duly adopted resolutions reserving up to 1,919,700 shares of Common Stock (the “Conversion Shares”) for issuance upon conversion of the Preferred Shares. The Conversion Shares have been duly authorized and, when issued in accordance with the Charter, will be validly issued, fully paid and non-assessable.
(g) No holder of outstanding shares of capital stock of the Company has any statutory preemptive right under the MGCL, the Charter or By-laws of the Company to subscribe for any of the Preferred Shares or any of the Conversion Shares.
(h) The information in the Registration Statement and the Prospectus under the captions “Description of Our Capital Stock,” “Description of Our Common Stock,” “Description of Our Preferred Stock” and “Material Provisions of Maryland Law and of Our Charter and By-Laws” to the extent that such information constitutes matters of law or legal conclusions, has been reviewed by us and is accurate in all material respects. The Preferred Shares and the Conversion Shares conform as to legal matters in all material respects to the description thereof set forth in the Base Prospectus and the Prospectus Supplement under the captions “Description of our Common Stock” and “Description of our Preferred Stock.”
(i) No holder of the Preferred Shares is subject to personal liability as such under the laws of the State of Maryland, which is the jurisdiction in which the Company is organized, except as such holder may be liable by reason of such holder’s own conduct and acts.
(j) The execution, delivery and performance on the date hereof by the Company of the Agreement do not violate (i) the MGCL or the Charter or By-Laws of the Company or (ii) violate any Maryland court or administrative order, judgment, or decree listed on Schedule 2 attached hereto that names the Company and is specifically directed to it or any of its property.
(k) No approval or consent of, or registration or filing with any Maryland regulatory agency, is required to be obtained or made by the Company under the MGCL in connection with the execution, delivery and performance on the date hereof by the Company of the Agreement.
Nothing herein shall be construed to cause us to be considered “experts” within the meaning of Section 11 of the Securities Act of 1933, as amended.
| Brinson Patrick Securities Corporation |
- 3 - | February 23, 2012 |
We express no opinion in this letter as to any other laws and regulations not specifically identified above as being covered hereby (and in particular, we express no opinion as to any effect that such other laws and regulations may have on the Opinions). We express no opinion in this letter as to federal or state securities laws or regulations, antitrust, unfair competition, banking or tax laws or regulations or laws or regulations of any political subdivision below the state level.
We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. This opinion letter has been prepared solely for your use in connection with the closing under the Agreement on the date hereof, and should not be quoted in whole or in part or otherwise be referred to, and should not be filed with or furnished to any governmental agency or other person or entity, without the prior written consent of this firm. The foregoing notwithstanding, to the extent our Opinions relate to matters of Maryland law, Andrews Kurth LLP may rely on our Opinions in rendering their opinions to you on the date hereof, provided that the full text of Andrews Kurth LLP’s opinion letter states that our Opinions speak only as of the date hereof and that no such reliance will have any effect on the scope, phrasing or originally intended use of our Opinions.
Very truly yours,
/s/ Hogan Lovells US LLP
HOGAN LOVELLS US LLP
Schedule 1
1. Executed copy of the Agreement.
2. The Registration Statement on Form S-3, as amended (No. 333-179607) (the “Registration Statement”) filed with the Commission on February 21, 2012.
3. The prospectus supplement, dated February 23, 2012 (the “Prospectus Supplement”), to the prospectus, dated February 23, 2012 (the “Base Prospectus”, and together with the Prospectus Supplement, the “Prospectus”), as filed pursuant to Rule 424(b)(5) under the Securities Act.
4. The charter of the Company (the “Charter”), as amended through June 21, 2011 and as certified by the Maryland State Department of Assessments and Taxation (the “MSDAT”) on June 21, 2011 and as certified by the Secretary of the Company on the date hereof as being complete, accurate and in effect.
5. The Amended and Restated By-laws of the Company, as certified by the Secretary of the Company on the date hereof as being complete, accurate and in effect.
6. A certificate of good standing of the Company issued by the MSDAT dated February 22, 2012 under the laws of the State of Maryland.
7. Certain resolutions of the Board of Directors of the Company (the “Board”) adopted at a meeting duly held or by unanimous written consent on February 20, 2012, as certified by the Secretary of the Company on the date hereof as being accurate and in effect, relating, among other things, to the authorization of the Agreement, the Preferred Shares and the Conversion Shares.
8. A certificate, dated the date hereof, of certain officers of the Company as to the representations and warranties of the Company set forth in the Sales Agreement and other matters relating to the Shares and the authorization of the issuance thereof.
9. A certificate of the Secretary of the Company, dated the date hereof, as to the incumbency and signatures of certain officers of the Company.
Schedule 2
No items in these categories have been provided to us and identified as items which we should review in connection with rendering this opinion. We have been authorized to provide you with a copy of the Company Officer’s Certificate to the effect that there are no court or administrative orders, judgments or decrees of any Maryland court or administrative agency.
Exhibit 10.1
FIRST AMENDMENT TO SALES AGREEMENT
THIS FIRST AMENDMENT TO SALES AGREEMENT (this “Amendment”) is entered into as of the 21st day of February, 2012, by and between CAPSTEAD MORTGAGE CORPORATION (the “Company”) and BRINSON PATRICK SECURITIES CORPORATION (the “Sales Manager”), as follows:
RECITALS:
WHEREAS, the Company and the Sales Manager have entered into an Amended and Restated Sales Agreement dated as of June 1, 2011 (the “Agreement”); and
WHEREAS, the Company and the Sales Manager desire to amend the Agreement;
NOW THEREFORE, in consideration of the premises and mutual agreements herein contained, intending to be legally bound, the Company and the Sales Manager agree as follows:
SECTION 1. Defined Terms. Capitalized terms not otherwise defined herein shall have the meaning attributed to them in the Agreement.
SECTION 2. Amendment to Section 2.1(c) of the Agreement. Section 2.1(c) of the Agreement is amended and restated to read as follows:
“(c) “The compensation to the Sales Manager for sales of Company Equity Securities sold under this Agreement shall be at the following commission rates: (i) 3.0% of the gross sales price per share (“sales proceeds”) for the first $8 million of aggregate sales proceeds raised in each Sales Period; 2.5% of sales proceeds for the next $4 million of aggregate sales proceeds raised in each Sales Period and 2.0% of sales proceeds for the next $88 million of aggregate sales proceeds raised in each Sales Period; 1.0% of sales proceeds for any additional aggregate sales proceeds raised in each Sales Period or (ii) such other commission rate as the Sales Manager and the Company may mutually agree in writing but not in excess of the compensation set forth in clause (i) of this sentence. For purposes of this section 2.1(c), the initial “Sales Period” shall commence on March 10, 2008 and shall end on December 31, 2014 and each subsequent Sales Period shall be for a two year period, commencing on January 1 and ending on December 31 of the following calendar year. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Company Equity Securities (the “Net Proceeds”). For purposes of the first sentence of this section 2.1(c), sales proceeds include sales proceeds from sales of Company Equity Securities by the Sales Manager for the account of the Company, whether under this Agreement, or otherwise.”
SECTION 3. Amendment to Section 3.1(o) of the Agreement. Section 3.1(o) of the Agreement is amended and restated to read as follows:
“(o) Each time that a post-effective amendment to the Registration Statement is declared effective or the Company files an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q, and at such other times as may be reasonably requested by the Sales Manager, the Company shall (unless the Company is not then selling Company Equity Securities through the
Sales Manager and has not requested the Sales Manager to sell Company Equity Securities) cause Ernst & Young LLP, or other independent accountants then retained by the Company, forthwith to furnish to the Sales Manager a letter, dated the date of effectiveness of such amendment, or the date of filing of such supplement or other document with the Commission, as the case may be, in form and substance satisfactory to the Sales Manager, of the same tenor as the letter referred to in Section 4.1(e) below but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.”
SECTION 4. Counterparts. This Amendment may be executed in separate counterparts, each of which shall be deemed an original and both of which shall constitute a single agreement.
SECTION 5. Binding Effect. Except as expressly amended hereby, the Agreement shall continue to be and shall remain in full force and effect in accordance with its terms. Any reference to the “Agreement” or the “Sales Agreement” in the Agreement shall be deemed to be a reference to the Agreement as amended hereby.
SECTION 6. Governing Law. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York.
IN WITNESS WHEREOF, the undersigned have executed this Amendment to Sales Agreement as of the day and year first written above.
| CAPSTEAD MORTGAGE CORPORATION | ||
| By: | /S/ PHILLIP A. REINSCH | |
| Name: Phillip A. Reinsch | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| BRINSON PATRICK SECURITIES CORPORATION | ||
| By: | /S/ TODD WYCHE | |
| Name: Todd Wyche | ||
| Title: Managing Director | ||
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