AMENDED AND RESTATED
MANAGEMENT AND ADVISORY AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT AND ADVISORY AGREEMENT, is made as of
June 23, 2003 (the "Agreement") by and among NEWCASTLE INVESTMENT CORP., a
Maryland corporation (the "Company"), and FORTRESS INVESTMENT GROUP LLC, a
Delaware limited liability company (together with its permitted assignees, the
"Manager").
W I T N E S S E T H :
WHEREAS, the Company and the Manager entered into that certain
Management and Advisory Agreement, dated as of June 6, 2002 (the "Original
Management Agreement"), as amended on March 4, 2003; and
WHEREAS, the Company and the Manager desire to amend and restate the
Original Management Agreement in its entirety on the terms and conditions
hereinafter set forth.
NOW THEREFORE, in consideration of the mutual agreements herein set
forth, the parties hereto agree as follows:
I. The Original Management Agreement is hereby modified so that all
of the terms and conditions of the aforesaid Original Management Agreement shall
be restated in their entirety as set forth herein.
II. This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and assigns, and shall be
deemed to be effective as of the date hereof.
III. Any reference in any other document executed in connection with
the Original Management Agreement or this Agreement to the Original Management
Agreement shall be deemed to refer to this Agreement.
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS HEREIN SET
FORTH, THE PARTIES HERETO AGREE AS FOLLOWS:
SECTION 1. DEFINITIONS. The following terms have the meanings assigned
them:
(a) "Agreement" means this Management and Advisory Agreement, as
amended from time to time.
(b) "Board of Directors" means the Board of Directors of the
Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Common Share" means a share of capital stock of the Company now
or hereafter authorized as common voting stock of the Company.
(e) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(f) "Funds from Operations" is as defined by the National
Association of Real Estate Investment Trusts and means net income (computed in
accordance with GAAP) excluding gains (or losses) from debt restructuring and
sales of property, plus depreciation and amortization on real estate assets, and
after adjustments for unconsolidated partnerships and joint ventures.
(g) "Governing Instruments" means, with regard to any entity, the
articles of incorporation and bylaws in the case of a corporation, certificate
of limited partnership (if applicable) and the partnership agreement in the case
of a general or limited partnership or the articles of formation and the
operating agreement in the case of a limited liability company.
(h) "Independent Directors" means the members of the Board of
Directors who are not officers or employees of the Manager.
(i) "Investments" means the investments of the Company.
(j) "Junior Share" means a share of capital stock of the Company
now or hereafter authorized or reclassified that has dividend rights, or rights
upon liquidation, winding up and dissolution, that are inferior or junior to the
REIT Shares.
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(k) "Preferred Share" means a share of capital stock of the Company
now or hereafter authorized or reclassified that has dividend rights, or rights
upon liquidation, winding up and dissolution, that are superior or prior to the
REIT Shares.
(l) "Prospectus" means the prospectus of the Company relating to
the Company's initial public offering of common stock.
(m) "Real Estate Securities" and "credit sensitive real
estate-related securities" have the respective meanings ascribed to such terms
in the Prospectus.
(n) "REIT Share" means a share of the Company's Common Shares, par
value $.01 per share. Where relevant in this Agreement, "REIT Shares" includes
shares of the Company's Common Shares, par value $.01 per share, issued upon
conversion of Preferred Shares or Junior Shares.
(o) "Subsidiary" means any subsidiary of the Company and any
partnership, the general partner of which is the Company or any subsidiary of
the Company and any limited liability company, the managing member of which is
the Company or any subsidiary of the Company.
SECTION 2. APPOINTMENT AND DUTIES OF THE MANAGER.
(a) The Company hereby appoints the Manager to manage the assets of
the Company subject to the further terms and conditions set forth in this
Agreement and the Manager hereby agrees to use its commercially reasonable
efforts to perform each of the duties set forth herein. The appointment of the
Manager shall be exclusive to the Manager except to the extent that the Manager
otherwise agrees, in its sole and absolute discretion, and except to the extent
that the Manager elects, pursuant to the terms of this Agreement, to cause the
duties of the Manager hereunder to be provided by third parties.
(b) The Manager, in its capacity as manager of the assets and the
day-to-day operations of the Company, at all times will be subject to the
supervision of the Company's Board of Directors and will have only such
functions and authority as the Company may delegate to it including, without
limitation, the functions and authority identified herein and delegated to the
Manager hereby. The Manager will be responsible for the day-to-day operations of
the Company and will
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perform (or cause to be performed) such services and activities relating to the
assets and operations of the Company as may be appropriate, including, without
limitation:
(i) serving as the Company's consultant with respect to the
periodic review of the investment criteria and parameters for Investments,
borrowings and operations, any modifications to which shall be approved by
a majority of the independent members of the Board of Directors (such
policy guidelines as are in effect on the date hereof, as the same may be
modified with such approval, the "Guidelines") and other policies for
approval by the Board of Directors;
(ii) investigation, analysis and selection of investment
opportunities;
(iii) with respect to prospective investments by the Company and
dispositions of Investments, conducting negotiations with real estate
brokers, sellers and purchasers and their respective agents and
representatives, investment bankers and owners of privately and publicly
held real estate companies;
(iv) engaging and supervising, on behalf of the Company and at
the Company's expense, independent contractors which provide real estate
brokerage, investment banking and leasing services, mortgage brokerage,
securities brokerage and other financial services and such other services
as may be required relating to the Investments;