BIMINI CAPITAL MANAGEMENT, INC.
10-Ks and 10-Qs
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2013
Commission File Number
: 001-32171
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Bimini Capital Management, Inc.
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(Exact name of registrant as specified in its charter)
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Maryland
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72-1571637
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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3305 Flamingo Drive, Vero Beach, Florida 32963
(Address of principal executive offices) (Zip Code)
(772) 231-1400
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act
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Title of Each Class
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Class A Common Stock, $0.001 par value
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Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes
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No
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Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes
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No
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Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes
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No
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Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes
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No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller Reporting Company
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes
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No
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State the aggregate market value of the voting stock held by non-affiliates of the Registrant as of June 30, 2013:
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Title of each Class
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Shares held by non-affiliates
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Aggregate market value held by non-affiliates
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Class A Common Stock, $0.001 par value
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8,881,723 | $ | 2,600,000 | (a) | ||||
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Class B Common Stock, $0.001 par value
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20,760 | $ | 1,000 | (b) | ||||
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Class C Common Stock, $0.001 par value
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31,938 | $ | 1,500 | (b) | ||||
(a) The aggregate market value was calculated by using the last sale price of the Class A Common Stock as of June 30, 2013.
(b)
The market value of the Class B and Class C Common Stock is an estimate based on their initial purchase price.
Indicate the number of shares outstanding of each of the Registrant’s classes of common stock, as of the latest practicable date:
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Title of each Class
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Latest Practicable Date
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Shares Outstanding
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Class A Common Stock, $0.001 par value
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March 12, 2014
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12,267,651 | |||
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Class B Common Stock, $0.001 par value
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March 12, 2014
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31,938 | |||
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Class C Common Stock, $0.001 par value
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March 12, 2014
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31,938 | |||
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant’s definitive Proxy Statement for its 2014 Annual Meeting of Stockholders of the Registrant are incorporated by reference into Part III of this Annual Report on Form 10-K.
BIMINI CAPITAL MANAGEMENT, INC.
INDEX
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PART I
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ITEM 1. Business.
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2 | |||
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ITEM 1A. Risk Factors
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12 | |||
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ITEM 1B. Unresolved Staff Comments.
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39 | |||
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ITEM 2. Properties.
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39 | |||
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ITEM 3. Legal Proceedings.
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39 | |||
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ITEM 4. Mine Safety Disclosures.
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40 | |||
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PART II
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ITEM 5. Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
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41 | |||
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ITEM 6. Selected Financial Data.
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43 | |||
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ITEM 7. Management's Discussion and Analysis of Financial Condition and Results of Operations.
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43 | |||
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ITEM 7A. Quantitative and Qualitative Disclosures About Market Risk.
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69 | |||
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ITEM 8. Financial Statements and Supplementary Data.
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70 | |||
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ITEM 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure.
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102 | |||
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ITEM 9A. Controls and Procedures.
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102 | |||
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ITEM 9B. Other Information.
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105 | |||
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PART III
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ITEM 10. Directors, Executive Officers and Corporate Governance.
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106 | |||
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ITEM 11. Executive Compensation.
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106 | |||
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ITEM 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
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106 | |||
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ITEM 13. Certain Relationships and Related Transactions, and Director Independence.
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106 | |||
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ITEM 14. Principal Accountant Fees and Services.
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106 | |||
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PART IV
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ITEM 15. Exhibits and Financial Statement Schedules.
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107 | |||
Overview
Bimini Capital Management, Inc., a Maryland corporation (“Bimini Capital” and, collectively with its subsidiaries, the “Company,” “we”, “us” or “our”), is a specialty finance company that primarily invests in mortgage-backed securities (“MBS”). The principal and interest payments of these MBS are guaranteed by the Federal National Mortgage Association (“Fannie Mae”), the Federal Home Loan Mortgage Corporation, (“Freddie Mac”) or the Government National Mortgage Association (“Ginnie Mae”) and are backed primarily by single-family residential mortgage loans. We refer to these types of MBS as Agency MBS. Our investment strategy focuses on, and our portfolio consists of, two categories of Agency MBS: (i) traditional pass-through Agency MBS and (ii) structured Agency MBS, such as collateralized mortgage obligations (“CMOs”), interest only securities (“IOs”), inverse interest only securities (“IIOs”) and principal only (“POs”), among other types of structured Agency MBS.
Information on our website is not part of this Annual Report on Form 10-K.
We are organized and operate as a real estate investment trust (“REIT”) for federal income tax purposes, and as of December 31, 2013, our corporate structure included a separately taxed REIT subsidiary, Orchid Island Capital, Inc. (“Orchid”), and two taxable REIT subsidiaries (“TRS”). Bimini Capital’s website is located at http://www.biminicapital.com.
History – Inception Through 2007
We were originally formed in September 2003 as Bimini Mortgage Management, Inc. (“Bimini Mortgage”) for the purpose of creating and managing a leveraged investment portfolio consisting of residential mortgage-backed securities (“MBS”). Through November 2, 2005, we operated solely as a REIT.
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On November 3, 2005, Bimini Mortgage acquired Opteum Financial Services, LLC (“OFS”). Upon closing of the transaction, OFS became a wholly-owned taxable REIT subsidiary. From November 3, 2005 to June 30, 2007, we operated a mortgage banking business through OFS. This entity ceased originating loans during the second quarter of 2007, and other parts of the business were sold. This entity was renamed Orchid Island TRS, LLC (“OITRS”) effective July 3, 2007 and then renamed MortCo TRS, LLC (“MortCo”) effective March 8, 2011. Hereinafter, any historical mention, discussion or references to Opteum Financial Services, LLC, Orchid Island TRS, LLC, OFS or to OITRS (such as in previously filed documents or Exhibits) now means MortCo.
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On February 10, 2006, Bimini Mortgage changed its name to Opteum Inc. (“Opteum”). On September 28, 2007, Opteum changed its name to Bimini Capital Management, Inc.
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History – 2008 to the Present
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In August 2008, the Company began employing an alternative investment strategy utilizing structured MBS with comparable borrower and prepayment characteristics to the securities historically held in its pass-through (“PT”) MBS portfolio. Structured securities are not typically funded in the repurchase market but instead are purchased directly, thus reducing – but not eliminating - the Company’s reliance on access to repurchase agreement funding. The leverage inherent in the structured securities replaces the leverage obtained by acquiring PT securities and funding them in the repurchase market. This structured MBS strategy has been a core element of the Company’s overall investment strategy since 2008.
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During the second quarter of 2011, the Company took steps related to a proposed public offering of Orchid common stock. Due to several market factors and economic events beyond the Company’s control, the offering was withdrawn.
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In July 2012, the Company and Orchid entered into an Agreement and Plan of Reorganization with FlatWorld Acquisition Corp. (“FlatWorld”). The proposed business transaction, which was structured as the merger of Orchid into a wholly-owned subsidiary of FlatWorld, was expected to be completed in early September 2012. On September 6, 2012, FlatWorld terminated the tender offer, as conditions to closing the proposed merger were not met and the merger was not consummated.
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On February 20, 2013, Orchid sold 2,360,000 shares of its common stock in an initial public offering (“IPO”) for aggregate proceeds of approximately $35.4 million. After the closing of the offering, and through December 31, 2013, Bimini owned approximately 29.38% of Orchid’s common stock. At the closing of the offering, Orchid entered into a management agreement with Bimini Advisors, LLC, a wholly-owned subsidiary of Bimini. Under the management agreement, Bimini Advisors will oversee the business affairs of Orchid and in return will receive a fee for these services.
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We have concluded that, after the close of its public offering, and continuing through December 31, 2013, Orchid is a variable interest entity (“VIE”) pursuant to generally accepted accounting principles. We have reached this conclusion because Orchid's equity holders lack the ability through voting rights to make decisions about its activities that have a significant effect on its success. We have also concluded that Bimini is the primary beneficiary of Orchid because, under the terms of the management agreement, Bimini has the power to direct the activities of Orchid that most significantly impact its economic performance including asset selection, asset and liability management and investment portfolio risk management. As a result, we continue to consolidate Orchid in our Consolidated Financial Statements.
Structure
Bimini Capital and Orchid have each elected to be taxed as a REIT under the Internal Revenue Code of 1986, as amended (the “Code”). Our qualification as a REIT depends upon our ability to meet, on an annual or in some cases quarterly basis, various complex requirements under the Code relating to, among other things, the sources of our gross income, the composition and values of our assets, our distribution levels and the diversity of ownership of our shares.
MortCo has been treated as a TRS since its acquisition. Bimini Advisors, Inc. and its wholly owned subsidiary, Bimini Advisors, LLC, (together “Bimini Advisors”) is a TRS incorporated in 2011. Bimini Capital, Orchid, MortCo, and Bimini Advisors are all treated as separate entities for tax purposes.
As used in this document, discussions related to “Bimini Capital,” the parent company, the registrant, and the REIT qualifying activities or the general management of our portfolio of MBS refer to Bimini Capital Management, Inc. Further, discussions related to our taxable REIT subsidiary or non-REIT eligible assets refer to MortCo and its consolidated subsidiaries and Bimini Advisors. Discussions relating to the “Company” refer to the consolidated entity (the combination of Bimini Capital, Orchid, MortCo and its subsidiaries and Bimini Advisors).
Our Investment and Capital Allocation Strategy
Investment Strategy
Our business objective is to provide attractive risk-adjusted total returns to our investors over the long term through a combination of capital appreciation and the payment of regular monthly distributions. We intend to achieve this objective by investing in and strategically allocating capital between pass-through Agency MBS and structured Agency MBS. We seek to generate income from (i) the net interest margin on our leveraged pass-through Agency MBS portfolio and the leveraged portion of our structured Agency MBS portfolio, and (ii) the interest income we generate from the unleveraged portion of our structured Agency MBS portfolio. We also seek to minimize the volatility of both the net asset value of, and income from, our portfolio through a process which emphasizes capital allocation, asset selection, liquidity and active interest rate risk management.
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We fund our pass-through Agency MBS and certain of our structured Agency MBS, such as fixed and floating rate tranches of CMOs and POs, through repurchase agreements. However, we generally do not employ leverage on our structured Agency MBS that have no principal balance, such as IOs and IIOs. We may pledge a portion of these assets to increase our cash balance, but we do not intend to invest the cash derived from pledging the assets. Otherwise, we do not use leverage in these instances because the securities contain structural leverage.
Our target asset categories and principal assets in which we intend to invest are as follows:
Pass-through Agency MBS
We invest in pass-through securities, which are securities secured by residential real property in which payments of both interest and principal on the securities are generally made monthly. In effect, these securities pass through the monthly payments made by the individual borrowers on the mortgage loans that underlie the securities, net of fees paid to the issuer or guarantor of the securities. Pass-through certificates can be divided into various categories based on the characteristics of the underlying mortgages, such as the term or whether the interest rate is fixed or variable.
The payment of principal and interest on mortgage pass-through securities issued by Ginnie Mae, but not the market value, is guaranteed by the full faith and credit of the federal government. Payment of principal and interest on mortgage pass-through certificates issued by Fannie Mae and Freddie Mac, but not the market value, is guaranteed by the respective agency issuing the security.
A key feature of most mortgage loans is the ability of the borrower to repay principal earlier than scheduled. This is called a prepayment. Prepayments arise primarily due to sale of the underlying property, refinancing or foreclosure. Prepayments result in a return of principal to pass-through certificate holders. This may result in a lower or higher rate of return upon reinvestment of principal. This is generally referred to as prepayment uncertainty. If a security purchased at a premium prepays at a higher-than-expected rate, then the value of the premium would be eroded at a faster-than-expected rate. Similarly, if a discount mortgage prepays at a lower-than-expected rate, the amortization towards par would be accumulated at a slower-than-expected rate. The possibility of these undesirable effects is sometimes referred to as “prepayment risk.”
In general, declining interest rates tend to increase prepayments, and rising interest rates tend to slow prepayments. Like other fixed-income securities, when interest rates rise, the value of Agency MBS generally declines. The rate of prepayments on underlying mortgages will affect the price and volatility of Agency MBS and may shorten or extend the effective maturity of the security beyond what was anticipated at the time of purchase. If interest rates rise, our holdings of Agency MBS may experience reduced returns if the borrowers of the underlying mortgages pay off their mortgages later than anticipated. This is generally referred to as extension risk.
The mortgage loans underlying pass-through certificates can generally be classified into the following three categories:
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Fixed-Rate Mortgages
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Fixed-rate mortgages are those where the borrower pays an interest rate that is constant throughout the term of the loan. Traditionally, most fixed-rate mortgages have an original term of 30 years. However, shorter terms (also referred to as final maturity dates) have become common in recent years. Because the interest rate on the loan never changes, even when market interest rates change, over time there can be a divergence between the interest rate on the loan and current market interest rates. This in turn can make fixed-rate mortgages price sensitive to market fluctuations in interest rates. In general, the longer the remaining term on the mortgage loan, the greater the price sensitivity
to movements in interest rates and, therefore, the likelihood for greater price variability.
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ARMs
. ARMs are mortgages for which the borrower pays an interest rate that varies over the term of the loan. The interest rate usually resets based on market interest rates, although the adjustment of such an interest rate may be subject to certain limitations. Traditionally, interest rate resets occur at regular intervals (for example, once per year). We refer to such ARMs as “traditional” ARMs. Because the interest rates on ARMs fluctuate based on market conditions, ARMs tend to have interest rates that do not deviate from current market rates by a large amount. This in turn can mean that ARMs have less price sensitivity to interest rates
and, consequently, are less likely to experience significant price volatility.
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Hybrid Adjustable-Rate Mortgages
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Hybrid ARMs have a fixed-rate for the first few years of the loan, often three, five, seven or ten years, and thereafter reset periodically like a traditional ARM. Effectively, such mortgages are hybrids, combining the features of a pure fixed-rate mortgage and a traditional ARM. Hybrid ARMs have price sensitivity to interest rates similar to that of a fixed-rate mortgage during the period when the interest rate is fixed and similar to that of an ARM when the interest rate is in its periodic reset stage. However, because many hybrid ARMs are structured with a relatively short initial time span during which the interest rate is fixed, even during that segment of its existence, the price sensitivity may be high.
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Structured Agency MBS
We also invest in structured Agency MBS, which include CMOs, IOs, IIOs and POs. The payment of principal and interest, as appropriate, on structured Agency MBS issued by Ginnie Mae, but not the market value, is guaranteed by the full faith and credit of the federal government. Payment of principal and interest, as appropriate, on structured Agency MBS issued by Fannie Mae and Freddie Mac, but not the market value, is guaranteed by the respective agency issuing the security. The types of structured Agency MBS in which we invest are described below.
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CMOs
. CMOs are a type of MBS the principal and interest of which are paid, in most cases, on a monthly basis. CMOs may be collateralized by whole mortgage loans, but are more typically collateralized by portfolios of mortgage pass-through securities issued directly by or under the auspices of Ginnie Mae, Freddie Mac or Fannie Mae. CMOs are structured into multiple classes, with each class bearing a different stated maturity. Monthly payments of principal, including prepayments, are first returned to investors holding the shortest maturity class. Investors holding the longer maturity classes receive principal only after the first class has been retired. Generally, fixed-rate mortgages are used to collateralize CMOs. However, the CMO tranches need not all have fixed-rate coupons. Some CMO tranches have floating rate coupons that adjust based on market interest rates, subject to some limitations. Such tranches, often called “CMO floaters,” can have relatively low price sensitivity to interest rates.
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IOs
. IOs represent the stream of interest payments on a pool of mortgages, either fixed-rate mortgages or hybrid ARMs. Holders of IOs have no claim to any principal payments. The value of IOs depends primarily on two factors, which are prepayments and interest rates. Prepayments on the underlying pool of mortgages reduce the stream of interest payments going forward, hence IOs are highly sensitive to prepayment rates. IOs are also sensitive to changes in interest rates. An increase in interest rates reduces the present value of future interest payments on a pool of mortgages. On the other hand, an increase in interest rates has a tendency to reduce prepayments, which increases the expected absolute amount of future interest payments.
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IIOs
. IIOs represent the stream of interest payments on a pool of mortgages, either fixed-rate mortgages or hybrid ARMs. Holders of IIOs have no claim to any principal payments. The value of IIOs depends primarily on three factors, which are prepayments, LIBOR rates and term interest rates. Prepayments on the underlying pool of mortgages reduce the stream of interest payments, making IIOs highly sensitive to prepayment rates. The coupon on IIOs is derived from both the coupon interest rate on the underlying pool of mortgages and 30-day LIBOR. IIOs are typically created in conjunction with a floating rate CMO that has a principal balance and which is entitled to receive all of the principal payments on the underlying pool of mortgages. The coupon on the floating rate CMO is also based on 30-day LIBOR. Typically, the coupon on the floating rate CMO and the IIO, when combined, equal the coupon on the pool of underlying mortgages. The coupon on the pool of underlying mortgages typically represents a cap or ceiling on the combined coupons of the floating rate CMO and the IIO. Accordingly, when the value of 30-day LIBOR increases, the coupon of the floating rate CMO will increase and the coupon on the IIO will decrease. When the value of 30-day LIBOR falls, the opposite is true. Accordingly, the value of IIOs are sensitive to the level of 30-day LIBOR and expectations by market participants of future movements in the level of 30-day LIBOR. IIOs are also sensitive to changes in interest rates. An increase in interest rates reduces the present value of future interest payments on a pool of mortgages. On the other hand, an increase in interest rates has a tendency to reduce prepayments, which increases the expected absolute amount of future interest payments.
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POs
. POs represent the stream of principal payments on a pool of mortgages. Holders of POs have no claim to any interest payments, although the ultimate amount of principal to be received over time is known — it equals the principal balance of the underlying pool of mortgages. What is not known is the timing of the receipt of the principal payments. The value of POs depends primarily on two factors, which are prepayments and interest rates. Prepayments on the underlying pool of mortgages accelerate the stream of principal repayments, making POs highly sensitive to the rate at which the mortgages in the pool are prepaid. POs are also sensitive to changes in interest rates. An increase in interest rates reduces the present value of future principal payments on a pool of mortgages. Further, an increase in interest rates has a tendency to reduce prepayments, which decelerates, or pushes further out in time, the ultimate receipt of the principal payments. The opposite is true when interest rates decline.
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Our investment strategy consists of the following components:
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investing in pass-through Agency MBS and certain structured Agency MBS, such as fixed and floating rate tranches of CMOs and POs, on a leveraged basis to increase returns on the capital allocated to this portfolio;
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investing in certain structured Agency MBS, such as IOs and IIOs, generally on an unleveraged basis in order to (i) increase returns due to the structural leverage contained in such securities, (ii) enhance liquidity due to the fact that these securities will be unencumbered or, when encumbered, retain the cash from such borrowings and (iii) diversify portfolio interest rate risk due to the different interest rate sensitivity these securities have compared to pass-through Agency MBS;
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investing in Agency MBS in order to minimize credit risk;
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investing in assets that will cause us to maintain our exclusion from regulation as an investment company under the Investment Company Act of 1940, as amended (the “Investment Company Act”); and
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investing in assets that will allow us to qualify and maintain our qualification as a REIT.
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Our management makes investment decisions based on various factors, including, but not limited to, relative value, expected cash yield, supply and demand, costs of hedging, costs of financing, liquidity requirements, expected future interest rate volatility and the overall shape of the U.S. Treasury and interest rate swap yield curves. We do not attribute any particular quantitative significance to any of these factors, and the weight we give to these factors depends on market conditions and economic trends.
Over time, we will modify our investment strategy as market conditions change to seek to maximize the returns from our investment portfolio. We believe that this strategy will enable us to provide attractive long-term returns to our stockholders.
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Capital Allocation Strategy
The percentage of capital invested in our two asset categories will vary and will be managed in an effort to maintain the level of income generated by the combined portfolios, the stability of that income stream and the stability of the value of the combined portfolios. Typically, pass-through Agency MBS and structured Agency MBS exhibit materially different sensitivities to movements in interest rates. Declines in the value of one portfolio may be offset by appreciation in the other, although we cannot assure you that this will be the case. Additionally, we will seek to maintain adequate liquidity as we allocate capital.
We allocate our capital to assist our interest rate risk management efforts. The unleveraged portfolio does not require unencumbered cash or cash equivalents to be maintained in anticipation of possible margin calls. To the extent more capital is deployed in the unleveraged portfolio, our liquidity needs will generally be less.
During periods of rising interest rates, refinancing opportunities available to borrowers typically decrease because borrowers are not able to refinance their current mortgage loans with new mortgage loans at lower interest rates. In such instances, securities that are highly sensitive to refinancing activity, such as IOs and IIOs, typically increase in value. Our capital allocation strategy allows us to redeploy our capital into such securities when and if we believe interest rates will be higher in the future, thereby allowing us to hold securities the value of which we believe is likely to increase as interest rates rise. Also, by being able to re-allocate capital into structured Agency MBS, such as IOs, during periods of rising interest rates, we may be able to offset the likely decline in the value of our pass-through Agency MBS, which are negatively impacted by rising interest rates.
Financing Strategy
We borrow against our Agency MBS and certain of our structured Agency MBS using short-term repurchase agreements. Our borrowings currently consist of short-term repurchase agreements. We may use other sources of leverage, such as secured or unsecured debt or issuances of preferred stock. We do not have a policy limiting the amount of leverage we may incur. However, we generally expect that the ratio of our total liabilities compared to our equity, which we refer to as our leverage ratio, will be less than 12 to 1. Our amount of leverage may vary depending on market conditions and other factors that we deem relevant.
We allocate our capital between two sub-portfolios. The pass-through Agency MBS portfolio will be leveraged generally via repurchase agreement funding. The structured Agency MBS portfolio generally will not be leveraged. The leverage ratio is calculated by dividing our total liabilities by total stockholders’ equity at the end of each period. The amount of leverage will be a function of the capital allocated to the pass-through Agency MBS portfolio and the amount of haircuts required by our lenders on our borrowings. When the capital allocation to the pass-through Agency MBS portfolio is high, the leverage ratio will be high since more capital is being explicitly leveraged and less capital is un-leveraged. If the haircuts required by our lenders on our borrowings are higher, all else being equal, our leverage will be lower since our lenders will lend less against the value of the capital deployed to the pass-through Agency MBS portfolio. The allocation of capital between the two portfolios will be a function of several factors:
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The relative durations of the respective portfolios — We generally seek to have a combined duration at or near zero. If our pass-through securities have a longer duration, we will allocate more capital to the structured security portfolio to achieve a combined duration close to zero.
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The relative attractiveness of pass-through securities versus structured securities — To the extent we believe the expected returns of one type of security are higher than the other, we will allocate more capital to the more attractive securities, subject to the caveat that its combined duration remains at or near zero.
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Liquidity — We seek to maintain adequate cash and unencumbered securities relative to our repurchase agreement borrowings well in excess of anticipated price or prepayment related margin calls from our lenders. To the extent we feel price or prepayment related margin calls will be higher/lower, we will allocate less/more capital to the pass-through Agency MBS portfolio. Our pass-through Agency MBS portfolio likely will be our only source of price or prepayment related margin calls because we generally will not apply leverage to our structured Agency MBS portfolio. From time to time we may pledge a portion of our structured securities and retain the cash derived so it can be used to enhance our liquidity.
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Risk Management
We invest in Agency MBS to mitigate credit risk. Additionally, our Agency MBS are backed by a diversified base of mortgage loans to mitigate geographic, loan originator and other types of concentration risks.
Interest Rate Risk Management
We believe that the risk of adverse interest rate movements represents the most significant risk to our portfolio. This risk arises because (i) the interest rate indices used to calculate the interest rates on the mortgages underlying our assets may be different from the interest rate indices used to calculate the interest rates on the related borrowings, and (ii) interest rate movements affecting our borrowings may not be reasonably correlated with interest rate movements affecting our assets. We attempt to mitigate our interest rate risk by using the following techniques:
Agency MBS Backed by ARMs
. We seek to minimize the differences between interest rate indices and interest rate adjustment periods of our Agency MBS backed by ARMs and related borrowings. At the time of funding, we typically align (i) the underlying interest rate index used to calculate interest rates for our Agency MBS backed by ARMs and the related borrowings and (ii) the interest rate adjustment periods for our Agency MBS backed by ARMs and the interest rate adjustment periods for our related borrowings. As our borrowings mature or are renewed, we may adjust the index used to calculate interest expense, the duration of the reset periods and the maturities of our borrowings.
Agency MBS Backed by Fixed-Rate Mortgages
. As interest rates rise, our borrowing costs increase; however, the income on our Agency MBS backed by fixed-rate mortgages remains unchanged. Subject to qualifying and maintaining a qualification as a REIT, we may seek to limit increases to our borrowing costs through the use of interest rate swap or cap agreements, options, put or call agreements, futures contracts, forward rate agreements or similar financial instruments to effectively convert our floating-rate borrowings into fixed-rate borrowings.
Agency MBS Backed by Hybrid ARMs
. During the fixed-rate period of our Agency MBS backed by hybrid ARMs, the security is similar to Agency MBS backed by fixed-rate mortgages. During this period, subject to qualifying and maintaining a qualification as a REIT, we may employ the same hedging strategy that we employ for our Agency MBS backed by fixed-rate mortgages. Once our Agency MBS backed by hybrid ARMs convert to floating rate securities, we may employ the same hedging strategy as we employ for our Agency MBS backed by ARMs.
Eurodollar Futures Contracts.
We enter into Eurodollar futures contracts to economically hedge against the possibility that rising rates may adversely impact our repurchase agreement liabilities. Repurchase agreements are structured such that the rate resets on a short term basis, and selling Eurodollar futures in a rising rate environment works to offset the funding costs associated with repurchase agreements.
Additionally, our structured Agency MBS generally exhibit sensitivities to movements in interest rates different than our pass-through Agency MBS. To the extent they do so, our structured Agency MBS may protect us against declines in the market value of our combined portfolio that result from adverse interest rate movements, although we cannot assure you that this will be the case.
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Prepayment Risk Management
The risk of mortgage prepayments is another significant risk to our portfolio. When prevailing interest rates fall below the coupon rate of a mortgage, mortgage prepayments are likely to increase. Conversely, when prevailing interest rates increase above the coupon rate of a mortgage, mortgage prepayments are likely to decrease.
When prepayment rates increase, we may not be able to reinvest the money received from prepayments at yields comparable to those of the securities prepaid. Also, some ARMs and hybrid ARMs which back our Agency MBS may bear initial “teaser” interest rates that are lower than their fully-indexed interest rates. If these mortgages are prepaid during this “teaser” period, we may lose the opportunity to receive interest payments at the higher, fully-indexed rate over the expected life of the security. Additionally, some of our structured Agency MBS, such as IOs and IIOs, may be negatively affected by an increase in prepayment rates because their value is wholly contingent on the underlying mortgage loans having an outstanding principal balance.
A decrease in prepayment rates may also have an adverse effect on our portfolio. For example, if we invest in POs, the purchase price of such securities will be based, in part, on an assumed level of prepayments on the underlying mortgage loan. Because the returns on POs decrease the longer it takes the principal payments on the underlying loans to be paid, a decrease in prepayment rates could decrease our returns on these securities.
Prepayment risk also affects our hedging activities
. When an Agency MBS backed by a fixed-rate mortgage or hybrid ARM is acquired with borrowings, we may cap or fix our borrowing costs for a period close to the anticipated average life of the fixed-rate portion of the related Agency MBS. If prepayment rates are different than our projections, the term of the related hedging instrument may not match the fixed-rate portion of the security, which could cause us to incur losses.
Because our business may be adversely affected if prepayment rates are different than our projections, we seek to invest in Agency MBS backed by mortgages with well-documented and predictable prepayment histories. To protect against increases in prepayment rates, we invest in Agency MBS backed by mortgages that we believe are less likely to be prepaid. For example, we invest in Agency MBS backed by mortgages (i) with loan balances low enough such that a borrower would likely have little incentive to refinance, (ii) extended to borrowers with credit histories weak enough to not be eligible to refinance their mortgage loans, (iii) that are newly originated fixed-rate or hybrid ARMs or (iv) that have interest rates low enough such that a borrower would likely have little incentive to refinance. To protect against decreases in prepayment rates, we may also invest in Agency MBS backed by mortgages with characteristics opposite to those described above, which would typically be more likely to be refinanced. We may also invest in certain types of structured Agency MBS as a means of mitigating our portfolio-wide prepayment risks. For example, certain tranches of CMOs are less sensitive to increases in prepayment rates, and we may invest in those tranches as a means of hedging against increases in prepayment rates.
Liquidity Management Strategy
Because of our use of leverage, we manage liquidity to meet our lenders’ margin calls using the following measures:
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Maintaining cash balances or unencumbered assets well in excess of anticipated margin calls; and
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Making margin calls on our lenders when we have an excess of collateral pledged against our borrowings.
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We also attempt to minimize the number of margin calls we receive by:
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Deploying capital from our leveraged Agency MBS portfolio to our unleveraged Agency MBS portfolio;
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Investing in Agency MBS backed by mortgages that we believe are less likely to be prepaid to decrease the risk of excessive margin calls when monthly prepayments are announced. Prepayments are declared, and the market value of the related security declines, before the receipt of the related cash flows. Prepayment declarations give rise to a temporary collateral deficiency and generally result in margin calls by lenders;
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Obtaining funding arrangements which defer or waive prepayment-related margin requirements in exchange for payments to the lender tied to the dollar amount of the collateral deficiency and a predetermined interest rate; and
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Reducing our overall amount of leverage.
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To the extent we are unable to adequately manage our interest rate exposure and are subjected to substantial margin calls, we may be forced to sell assets at an inopportune time which in turn could impair our liquidity and reduce our borrowing capacity and book value.
Taxation Structure
Bimini Capital has elected to be taxed as a REIT under the federal income tax laws. Qualification as a REIT, and the maintenance of such qualification, will depend upon Bimini Capital’s ability to meet, on a continuing basis, various complex requirements under the Code relating to, among other things, the sources of its gross income, the composition and values of its assets, distribution levels and the concentration of ownership of its capital stock. We believe that Bimini Capital is organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and we intend to continue to operate it in such a manner, but no assurance can be given that we will operate it in a manner so as to remain qualified as a REIT.
As a REIT, Bimini Capital generally will not be subject to U.S. federal income tax on the REIT taxable income that is currently distributed to our stockholders. Taxable income generated by any new taxable REIT subsidiary (“TRS”) that we may form or acquire will be subject to federal, state and local income tax; Bimini Capital presently has two TRS’s, Bimini Advisors and MortCo. Under the Code, REITs are subject to numerous organizational and operational requirements, including a requirement that they distribute annually at least 90% of their REIT taxable income, determined without regard to the deduction for dividends paid and excluding any net capital gains. If Bimini Capital fails to qualify as a REIT in any calendar year and does not qualify for certain statutory relief provisions, its income would be subject to U.S. federal income tax, and it would likely be precluded from qualifying for treatment as a REIT until the fifth calendar year following the year in which it failed to qualify. Even if Bimini Capital qualifies as a REIT, it may still be subject to certain federal, state and local taxes on its income and assets and to U.S. federal income and excise taxes on its undistributed income.
Employees
As of December 31, 2013, we had 7 full-time employees.
Competition
Our net income largely depends on our ability to acquire Agency MBS at favorable spreads over our borrowing costs. When we invest in Agency MBS and other investment assets, we compete with a variety of institutional investors, including other REITs, insurance companies, mutual funds, pension funds, investment banking firms, banks and other financial institutions that invest in the same types of assets, the Federal Reserve Bank and other governmental entities or government sponsored entities. Many of these investors have greater financial resources and access to lower costs of capital than we do. The existence of these competitive entities, as well as the possibility of additional entities forming in the future, may increase the competition for the acquisition of mortgage related securities, resulting in higher prices and lower yields on assets.
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Distributions
To maintain a qualification as a REIT, Bimini Capital must distribute substantially all of our REIT taxable income (as defined in the Code) to our stockholders for each year. We intend to distribute all such taxable income to satisfy such requirement.
Available Information
Our investor relations website is www.biminicapital.com. We make available on the website under "Financial Information/SEC filings," free of charge, our annual report on Form 10-K, our quarterly reports on Form 10-Q, our current reports on Form 8-K and any other reports (including any amendments to such reports) as soon as reasonably practicable after we electronically file or furnish such materials to the SEC. Information on our website, however, is not part of this Annual Report on Form 10-K. All reports filed with the SEC may also be read and copied at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. Further information regarding the operation of the public reference room may be obtained by calling 1-800-SEC-0330. In addition, all of our filed reports can be obtained at the SEC’s website at www.sec.gov.
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You should carefully consider the risks described below and all other information contained in this Annual Report on Form 10-K, including our annual financial statements and related notes thereto, before making an investment decision regarding our common stock. Our business, financial condition or results of operations could be harmed by any of these risks. Similarly, these risks could cause the market price of our common stock to decline and you might lose all or part of your investment. Our forward-looking statements in this annual report are subject to the following risks and uncertainties. Our actual results could differ materially from those anticipated by our forward-looking statements as a result of the risk factors below.
Risks Related to Our Business
The U.S. Federal Reserve’s recent announcement that it would reduce its monthly purchases pursuant to QE3 could impact the market for and value of the Agency MBS in which we invest as well as our net asset value and net interest margin.
On September 13, 2012, the U.S. Federal Reserve announced a third round of quantitative easing, (“QE3”), which is an open-ended program designed to expand the Federal Reserve’s holdings of long-term securities by purchasing an additional $40 billion of Agency MBS per month until key economic indicators, such as the unemployment rate, show signs of improvement. In December 2012, the U.S. Federal Reserve announced that it would begin buying $45 billion of long-term Treasury bonds each month. On December 18, 2013, the U.S. Federal Reserve announced that it would reduce its purchases of Agency MBS by $5 billion per month and reduce its purchases of Treasury bonds by $5 billion per month beginning in January 2014. On January 29, 2014, the U.S. Federal Reserve announced $5 billion reductions to its monthly purchases of both Agency MBS and Treasury bonds to take effect in February 2014.
The immediate effect of the announcement of QE3 was an increase in Agency MBS prices. Since the initial price spike, prices for all securities have receded below the price levels that existed before the announcement of QE3. It is unclear what effect, if any, the incremental reduction in the rate of the U.S. Federal Reserve’s monthly purchases will have on the value of the Agency MBS in which we invest. However, it is possible that the market for such securities, the price of such securities and, as a result, our net asset value and net interest margin could be negatively affected.
Adverse developments in the broader residential mortgage market may materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
The residential mortgage market in the United States has experienced a variety of difficulties and changed economic conditions, including defaults, credit losses and liquidity concerns over the past few years. In addition, certain commercial banks, investment banks and insurance companies have announced extensive losses from exposure to the residential mortgage market. These losses have reduced financial industry capital, leading to reduced liquidity for some institutions. These factors have impacted investor perception of the risk associated with real estate-related assets, including Agency MBS. As a result, values for MBS, including some Agency MBS and other AAA-rated MBS assets, have been negatively impacted at times. Further increased volatility and deterioration in the broader residential mortgage and MBS markets may adversely affect the performance and market value of the Agency MBS in which we invest.
We rely on our Agency MBS as collateral for our financings. Any decline in their value, or perceived market uncertainty about their value, would likely make it difficult for us to obtain financing on favorable terms or at all or maintain our compliance with terms of any financing arrangements already in place. Additionally, we have elected to account for our investment in MBS under the fair value option and, therefore, such investment will be reported on our financial statements at fair value with unrealized gains or losses included in earnings. If market conditions result in a decline in the value of our Agency MBS, our business, financial position and results of operations and our ability to pay distributions to our stockholders could be materially adversely affected.
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Interest rate mismatches between our Agency MBS and our borrowings may reduce our net interest margin during periods of changing interest rates, which could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
Our portfolio includes Agency MBS backed by ARMs, hybrid ARMs and fixed-rate mortgages, and the mix of these securities in the portfolio may be increased or decreased over time. Additionally, the interest rates on ARMs and hybrid ARMs may vary over time based on changes in a short-term interest rate index, of which there are many.
We finance our acquisitions of PT Agency MBS with short-term financing. During periods of rising short-term interest rates, the income we earn on these securities will not change (with respect to Agency MBS backed by fixed-rate mortgage loans) or will not increase at the same rate (with respect to Agency MBS backed by ARMs and hybrid ARMs) as our related financing costs, which may reduce our net interest margin or result in losses.
Separate legislation has been introduced in both houses of the U.S. Congress, which would, among other things, revoke the charters of Fannie Mae and Freddie Mac, which could materially adversely affect us if these proposed laws were enacted.
On June 25, 2013, a bipartisan group of senators introduced the Housing Finance Reform and Taxpayer Protection Act of 2013, which may serve as a catalyst for congressional discussion on the reform of Fannie Mae and Freddie Mac, to the U.S. Senate. On July 11, 2013, members of the House Committee on Financial Services introduced the Protecting American Taxpayers and Homeowners Act to the U.S. House of Representatives.
While the two bills are distinguishable in many respects, they have some notable commonalities. Both bills call for the revocation of the charters of Fannie Mae and Freddie Mac and seek to increase the opportunities for private capital to participate in, and consequently bear the risk of loss in connection with, government-guaranteed mortgage back securities. Both bills also have considerable support in their respective houses of Congress, which suggests that efforts to reform and possibly eliminate Fannie Mae and Freddie Mac may be gaining momentum.
The passage of any new legislation affecting Fannie Mae and Freddie Mac may create market uncertainty and reduce the actual or perceived credit quality of securities issued or guaranteed by the U.S. government through a new or existing successor entity to Fannie Mae and Freddie Mac. If the charters of Fannie Mae and Freddie Mac were revoked, it is unclear what effect, if any, this would have on the value of the existing Fannie Mae and Freddie Mac Agency MBS. It is also possible that the above-referenced proposed legislation, if made law, could adversely impact the market for securities issued or guaranteed by the U.S. government and the spreads at which they trade. The foregoing could materially adversely affect the pricing, supply, liquidity and value of our target assets and otherwise materially adversely affect our business, operations and financial condition.
We cannot predict the impact, if any, on our earnings or cash available for distribution to our stockholders of the FHFA’s proposed revisions to Fannie Mae’s, Freddie Mac’s and Ginnie Mae’s existing infrastructures to align the standards and practices of the three entities.
On February 21, 2012, the FHFA released its Strategic Plan for Enterprise Conservatorships, which set forth three goals for the next phase of the Fannie Mae and Freddie Mac conservatorships. These three goals are to (i) build a new infrastructure for the secondary mortgage market, (ii) gradually contract Fannie Mae and Freddie Mac’s presence in the marketplace while simplifying and shrinking their operations, and (iii) maintain foreclosure prevention activities and credit availability for new and refinanced mortgages. On October 4, 2012, the FHFA released its white paper entitled Building a New Infrastructure for the Secondary Mortgage Market, which proposes a new infrastructure for Fannie Mae and Freddie Mac that has two basic goals.
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The first such goal is to replace the current, outdated infrastructures of Fannie Mae and Freddie Mac with a common, more efficient infrastructure that aligns the standards and practices of the two entities, beginning with core functions performed by both entities such as issuance, master servicing, bond administration, collateral management and data integration. The second goal is to establish an operating framework for Fannie Mae and Freddie Mac that is consistent with the progress of housing finance reform and encourages and accommodates the increased participation of private capital in assuming credit risk associated with the secondary mortgage market.
The FHFA recognizes that there are a number of impediments to their goals which may or may not be surmountable, such as the absence of any significant secondary mortgage market mechanisms beyond Fannie Mae, Freddie Mac and Ginnie Mae, and that their proposals are in the formative stages. As a result, it is unclear if the proposals will be enacted. If such proposals are enacted, it is unclear how closely what is enacted will resemble the proposals from the FHFA White Paper or what the effects of the enactment will be in terms of our total stockholders’ equity, earnings or cash available for distribution to our stockholders.
Mortgage loan modification programs and future legislative action may adversely affect the value of, and the returns on, our Agency MBS, which could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
During the second half of 2008, the U.S. Government commenced programs designed to provide homeowners with assistance in avoiding residential mortgage loan foreclosures. The programs involve, among other things, the modification of mortgage loans to reduce the principal amount of the loans or the rate of interest payable on the loans, or to extend the payment terms of the loans.
In addition, in February 2008, the U.S. Treasury announced the Homeowner Affordability and Stability Plan, or HASP, which is a multi-faceted plan intended to prevent residential mortgage foreclosures by, among other things:
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allowing certain homeowners whose homes are encumbered by Fannie Mae or Freddie Mac conforming mortgages to refinance those mortgages into lower interest rate mortgages with either Fannie Mae or Freddie Mac;
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creating the Homeowner Stability Initiative, which is intended to utilize various incentives for banks and mortgage servicers to modify residential mortgage loans with the goal of reducing monthly mortgage principal and interest payments for certain qualified homeowners; and
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allowing judicial modifications of Fannie Mae and Freddie Mac conforming residential mortgages loans during bankruptcy proceedings.
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In October 2011, the FHFA announced proposed changes to the Home Affordable Refinance Program, or HARP, that would expand access to refinancing for qualified individuals and families whose homes have lost value by, among other things, increasing the HARP loan-to-value ratio above 125%. However, this would only apply to mortgages guaranteed by the government-sponsored enterprises (“GSEs”). There are many challenging issues to this proposal, notably the question as to whether a loan with a loan-to-value ratio of 125% qualifies as a mortgage or an unsecured consumer loan.
On January 4, 2012, the U.S. Federal Reserve issued a white paper outlining additional ideas with regard to refinancings and loan modifications. It is likely that loan modifications would result in increased prepayments on some Agency MBS. As described elsewhere, prepayments could negatively affect the value of our Agency MBS, which could result in reduced earnings or losses and negatively affect the cash available for distribution to our stockholders. These initiatives, any future loan modification programs and future legislative or regulatory actions, including amendments to the bankruptcy laws, that result in the modification of outstanding mortgage loans may adversely affect the value of, and the returns on, the Agency MBS in which we invest.
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We invest in structured Agency MBS, including CMOs, IOs, IIOs and POs. Although structured Agency MBS are generally subject to the same risks as our PT MBS, certain types of risks may be enhanced depending on the type of structured Agency MBS in which we invest.
The structured Agency MBS in which we invest are securitizations (i) issued by Fannie Mae, Freddie Mac or Ginnie Mae, (ii) collateralized by Agency MBS and (iii) divided into various tranches that have different characteristics (such as different maturities or different coupon payments). These securities may carry greater risk than an investment in PT MBS. For example, certain types of structured Agency MBS, such as IOs, IIOs and POs, are more sensitive to prepayment risks than PT MBS. If we were to invest in structured Agency MBS that were more sensitive to prepayment risks relative to other types of structured Agency MBS or PT Agency MBS, we may increase our portfolio-wide prepayment risk.
Increased levels of prepayments on the mortgages underlying our Agency MBS might decrease net interest income or result in a net loss, which could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
In the case of residential mortgages, there are seldom any restrictions on borrowers’ ability to prepay their loans. Prepayment rates generally increase when interest rates fall and decrease when interest rates rise. Prepayment rates also may be affected by other factors, including, without limitation, conditions in the housing and financial markets, governmental action, general economic conditions and the relative interest rates on ARMs, hybrid ARMs and fixed-rate mortgage loans. With respect to PT Agency MBS, faster-than-expected prepayments could also materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders in various ways, including the following:
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A portion of our PT Agency MBS backed by ARMs and hybrid ARMs may initially bear interest at rates that are lower than their fully indexed rates, which are equivalent to the applicable index rate plus a margin. If a PT MBS backed by ARMs or hybrid ARMs is prepaid prior to or soon after the time of adjustment to a fully-indexed rate, we will have held that Agency MBS while it was less profitable and lost the opportunity to receive interest at the fully-indexed rate over the remainder of its expected life.
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If we are unable to acquire new Agency MBS to replace the prepaid Agency MBS, our returns on capital may be lower than if we were able to quickly acquire new Agency MBS.
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When we acquire structured Agency MBS, we anticipate that the underlying mortgages will prepay at a projected rate, generating an expected yield. When the prepayment rates on the mortgages underlying our structured Agency MBS are higher than expected, our returns on those securities may be materially adversely affected. For example, the value of our IOs and IIOs are extremely sensitive to prepayments because holders of these securities do not have the right to receive any principal payments on the underlying mortgages. Therefore, if the mortgage loans underlying our IOs and IIOs are prepaid, such securities would cease to have any value, which, in turn, could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
While we seek to minimize prepayment risk, we must balance prepayment risk against other risks and the potential returns of each investment. No strategy can completely insulate us from prepayment or other such risks.
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A decrease in prepayment rates on the mortgages underlying our Agency MBS might decrease net interest income or result in a net loss, which could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
Certain of our structured Agency MBS may be adversely affected by a decrease in prepayment rates. For example, because POs are similar to zero-coupon bonds, our expected returns on such securities will be contingent on our receiving the principal payments of the underlying mortgage loans at expected intervals that assume a certain prepayment rate. If prepayment rates are lower than expected, we will not receive principal payments as quickly as we anticipated and, therefore, our expected returns on these securities will be adversely affected, which, in turn, could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
Interest rate caps on the ARMs and hybrid ARMs backing our Agency MBS may reduce our net interest margin during periods of rising interest rates, which could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
ARMs and hybrid ARMs are typically subject to periodic and lifetime interest rate caps. Periodic interest rate caps limit the amount an interest rate can increase during any given period. Lifetime interest rate caps limit the amount an interest rate can increase through the maturity of the loan. Our borrowings typically are not subject to similar restrictions. Accordingly, in a period of rapidly increasing interest rates, our financing costs could increase without limitation while caps could limit the interest we earn on the ARMs and hybrid ARMs backing our Agency MBS. This problem is magnified for ARMs and hybrid ARMs that are not fully indexed because such periodic interest rate caps prevent the coupon on the security from fully reaching the specified rate in one reset. Further, some ARMs and hybrid ARMs may be subject to periodic payment caps that result in a portion of the interest being deferred and added to the principal outstanding. As a result, we may receive less cash income on Agency MBS backed by ARMs and hybrid ARMs than necessary to pay interest on our related borrowings. Interest rate caps on Agency MBS backed by ARMs and hybrid ARMs could reduce our net interest margin if interest rates were to increase beyond the level of the caps, which could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
We rely on analytical models and other data to analyze potential asset acquisition and disposition opportunities and to manage our portfolio. Such models and other data may be incorrect, misleading or incomplete, which could cause us to purchase assets that do not meet our expectations or to make asset management decisions that are not in line with our strategy.
We rely on analytical models and other data supplied by third parties. These models and data may be used to value assets or potential asset acquisitions and dispositions and in connection with our asset management activities. If our models and data prove to be incorrect, misleading or incomplete, any decisions made in reliance thereon could expose us to potential risks.
Our reliance on models and data may induce us to purchase certain assets at prices that are too high, to sell certain other assets at prices that are too low or to miss favorable opportunities altogether. Similarly, any hedging activities that are based on faulty models and data may prove to be unsuccessful.
Some models, such as prepayment models, may be predictive in nature. The use of predictive models has inherent risks. For example, such models may incorrectly forecast future behavior, leading to potential losses. In addition, the predictive models used by us may differ substantially from those models used by other market participants, resulting in valuations based on these predictive models that may be substantially higher or lower for certain assets than actual market prices. Furthermore, because predictive models are usually constructed based on historical data supplied by third parties, the success of relying on such models may depend heavily on the accuracy and reliability of the supplied historical data, and, in the case of predicting performance in scenarios with little or no historical precedent (such as extreme broad-based declines in home prices, or deep economic recessions or depressions), such models must employ greater degrees of extrapolation and are therefore more speculative and less reliable.
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All valuation models rely on correct market data input. If incorrect market data is entered into even a well-founded valuation model, the resulting valuations will be incorrect. However, even if market data is inputted correctly, “model prices” will often differ substantially from market prices, especially for securities with complex characteristics or whose values are particularly sensitive to various factors. If our market data inputs are incorrect or our model prices differ substantially from market prices, our business, financial condition and results of operations and our ability to make distributions to our stockholders could be materially adversely affected.
Valuations of some of our assets are inherently uncertain, may be based on estimates, may fluctuate over short periods of time and may differ from the values that would have been used if a ready market for these assets existed. As a result, the values of some of our assets are uncertain.
While in many cases our determination of the fair value of our assets is based on valuations provided by third-party dealers and pricing services, we can and do value assets based upon our judgment, and such valuations may differ from those provided by third-party dealers and pricing services. Valuations of certain assets are often difficult to obtain or are unreliable. In general, dealers and pricing services heavily disclaim their valuations. Additionally, dealers may claim to furnish valuations only as an accommodation and without special compensation, and so they may disclaim any and all liability for any direct, incidental or consequential damages arising out of any inaccuracy or incompleteness in valuations, including any act of negligence or breach of any warranty. Depending on the complexity and illiquidity of an asset, valuations of the same asset can vary substantially from one dealer or pricing service to another. The valuation process has been particularly difficult recently because market events have made valuations of certain assets more difficult and unpredictable and the disparity of valuations provided by third-party dealers has widened.
Our business, financial condition and results of operations and our ability to make distributions to our stockholders could be materially adversely affected if our fair value determinations of these assets were materially higher than the values that would exist if a ready market existed for these assets.
An increase in interest rates may cause a decrease in the volume of newly issued, or investor demand for, Agency MBS, which could materially adversely affect our ability to acquire assets that satisfy our investment objectives and our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
Rising interest rates generally reduce the demand for consumer credit, including mortgage loans, due to the higher cost of borrowing. A reduction in the volume of mortgage loans may affect the volume of Agency MBS available to us, which could affect our ability to acquire assets that satisfy our investment objectives. Rising interest rates may also result in Agency MBS that were issued prior to an interest rate increase having yields that do not exceed prevailing market interest rates. If rising interest rates cause us to be unable to acquire a sufficient volume of Agency MBS or Agency MBS with a yield that exceeds our borrowing costs, our ability to satisfy our investment objectives and to generate income and pay dividends, our business, financial condition and results of operations and our ability to pay distributions to our stockholders may be materially adversely affected.
Because the assets that we acquire might experience periods of illiquidity, we might be prevented from selling our Agency MBS at favorable times and prices, which could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
Agency MBS generally experience periods of illiquidity. Such conditions are more likely to occur for structured Agency MBS because such securities are generally traded in markets much less liquid than the PT Agency MBS market. As a result, we may be unable to dispose of our Agency MBS at advantageous times and prices or in a timely manner. The lack of liquidity might result from the absence of a willing buyer or an established market for these assets as well as legal or contractual restrictions on resale. The illiquidity of Agency MBS could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
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Our use of leverage could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
Under normal market conditions, we generally expect our leverage ratio to be less than 12 to 1, although at times our borrowings may be above this level. We incur this indebtedness by borrowing against a substantial portion of the market value of our PT Agency MBS and a portion of our structured Agency MBS. Our total indebtedness, however, is not expressly limited by our policies and will depend on our prospective lenders’ estimates of the stability of our portfolio’s cash flow. As a result, there is no limit on the amount of leverage that we may incur. We face the risk that we might not be able to meet our debt service obligations or a lender’s margin requirements from our income and, to the extent we cannot, we might be forced to liquidate some of our Agency MBS at unfavorable prices. Our use of leverage could materially adversely affect our business, financial condition and results of operation and our ability to pay distributions to our stockholders. For example:
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our repurchase agreement borrowings are secured by our PT Agency MBS and may be secured by a portion of our structured Agency MBS under repurchase agreements. A decline in the market value of the PT Agency MBS or structured Agency MBS used to secure these debt obligations could limit our ability to borrow or result in lenders requiring us to pledge additional collateral to secure our borrowings. In that situation, we could be required to sell Agency MBS under adverse market conditions in order to obtain the additional collateral required by the lender. If these sales are made at prices lower than the carrying value of the Agency MBS, we would experience losses.
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to the extent we are compelled to liquidate qualifying real estate assets to repay debts, our compliance with the REIT rules regarding our assets and our sources of gross income could be negatively affected, which could jeopardize our qualification as a REIT. Losing our REIT qualification would cause us to be subject to U.S. federal income tax (and any applicable state and local taxes) on all of our income and would decrease profitability and cash available for distributions to stockholders.
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If we experience losses as a result of our use of leverage, such losses could materially adversely affect our business, results of operations and financial condition and our ability to make distributions to our stockholders.
We may incur increased borrowing costs, which could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
Our borrowing costs under repurchase agreements are generally adjustable and correspond to short-term interest rates, such as LIBOR or a short-term U.S. Treasury index, plus or minus a margin. The margins on these borrowings over or under short-term interest rates may vary depending upon a number of factors, including, without limitation:
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the movement of interest rates;
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the availability of financing in the market; and
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the value and liquidity of our Agency MBS.
All of our short-term borrowings are collateralized borrowings in the form of repurchase agreements. If the interest rates on these repurchase agreements increase, our business, financial condition and results of operations and our ability to pay distributions to our stockholders could be materially adversely affected.
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Failure to procure adequate repurchase agreement financing, or to renew or replace existing repurchase agreement financing as it matures, could materially adversely affect our business, financial condition and results of operations and our ability to make distributions to our stockholders.
We currently have master repurchase agreements with five counterparties. We cannot provide assurance that any, or sufficient, repurchase agreement financing will be available to us in the future on terms that are acceptable to us. Any decline in the value of Agency MBS, or perceived market uncertainty about their value, would make it more difficult for us to obtain financing on favorable terms or at all, or maintain our compliance with the terms of any financing arrangements already in place. Additionally, our lenders may have owned or financed MBS that have declined in value and caused the lender to suffer losses as a result of the recent downturn in the residential mortgage market. If these conditions persist, these institutions may be forced to exit the repurchase market, further tighten lending standards or increase the amount of equity capital, or haircuts, required to obtain financing, and in such event, could make it more difficult for us to obtain financing on favorable terms or at all. Additionally, we may be unable to diversify the credit risk associated with our lenders. In the event that we cannot obtain sufficient funding on acceptable terms, our business, financial condition and results of operations and our ability to pay distributions to our stockholders may be materially adversely effected.
Furthermore, because we intend to rely primarily on short-term borrowings to fund our MBS, our ability to achieve our investment objective will depend not only on our ability to borrow money in sufficient amounts and on favorable terms, but also on our ability to renew or replace on a continuous basis our maturing short-term borrowings. If we are not able to renew or replace maturing borrowings, we will have to sell some or all of our assets, possibly under adverse market conditions. In addition, if the regulatory capital requirements imposed on our lenders change, they may be required to significantly increase the cost of the financing that they provide to us. Our lenders also may revise their eligibility requirements for the types of assets they are willing to finance or the terms of such financings, based on, among other factors, the regulatory environment and their management of perceived risk.
Adverse market developments could cause our lenders to require us to pledge additional assets as collateral. If our assets were insufficient to meet these collateral requirements, we might be compelled to liquidate particular assets at inopportune times and at unfavorable prices, which could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
Adverse market developments, including a sharp or prolonged rise in interest rates, a change in prepayment rates or increasing market concern about the value or liquidity of one or more types of Agency MBS, might reduce the market value of our portfolio, which might cause our lenders to initiate margin calls. A margin call means that the lender requires us to pledge additional collateral to re-establish the ratio of the value of the collateral to the amount of the borrowing. The specific collateral value to borrowing ratio that would trigger a margin call is not set in the master repurchase agreements and not determined until we engage in a repurchase transaction under these agreements. Our fixed-rate Agency MBS generally are more susceptible to margin calls as increases in interest rates tend to more negatively affect the market value of fixed-rate securities. If we are unable to satisfy margin calls, our lenders may foreclose on our collateral. The threat or occurrence of a margin call could force us to sell either directly or through a foreclosure our Agency MBS under adverse market conditions. Because of the significant leverage we expect to have, we may incur substantial losses upon the threat or occurrence of a margin call, which could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders. Additionally, the liquidation of collateral may jeopardize our ability to qualify or maintain our qualification as a REIT, as we must comply with requirements regarding our assets and our sources of gross income. If we are compelled to liquidate our Agency MBS, we may be unable to comply with these requirements, ultimately jeopardizing our ability to qualify or maintain our qualification as a REIT. Our failure to qualify as a REIT or maintain our qualification would cause us to be subject to U.S. federal income tax (and any applicable state and local taxes) on all of our income.
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Our use of repurchase agreements may give our lenders greater rights in the event that either we or any of our lenders file for bankruptcy, which may make it difficult for us to recover our collateral in the event of a bankruptcy filing.
Our borrowings under repurchase agreements may qualify for special treatment under the bankruptcy code, giving our lenders the ability to avoid the automatic stay provisions of the bankruptcy code and to take possession of and liquidate our collateral under the repurchase agreements without delay if we file for bankruptcy. Furthermore, the special treatment of repurchase agreements under the bankruptcy code may make it difficult for us to recover our pledged assets in the event that any of our lenders files for bankruptcy. Thus, the use of repurchase agreements exposes our pledged assets to risk in the event of a bankruptcy filing by either our lenders or us. In addition, if the lender is a broker or dealer subject to the Securities Investor Protection Act of 1970, or an insured depository institution subject to the Federal Deposit Insurance Act, our ability to exercise our rights to recover our investment under a repurchase agreement or to be compensated for any damages resulting from the lender’s insolvency may be further limited by those statutes.
If we fail to maintain our relationship with AVM, L.P. or if we do not establish relationships with other repurchase agreement trading, clearing and administrative service providers, our business, financial condition and results of operations and our ability to pay distributions to our stockholders could be materially adversely affected.
We have engaged AVM, L.P. to provide us with certain repurchase agreement trading, clearing and administrative services. If we are unable to maintain our relationship with AVM, L.P. or we are unable to establish successful relationships with other repurchase agreement trading, clearing and administrative service providers, our business, financial condition and results of operations and our ability to pay distributions to our stockholders could be materially adversely affected.
If our lenders default on their obligations to resell the Agency MBS back to us at the end of the repurchase transaction term, or if the value of the Agency MBS has declined by the end of the repurchase transaction term or if we default on our obligations under the repurchase transaction, we will lose money on these transactions, which, in turn, may materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
When we engage in a repurchase transaction, we initially sell securities to the financial institution under one of our master repurchase agreements in exchange for cash, and our counterparty is obligated to resell the securities to us at the end of the term of the transaction, which is typically from 24 to 90 days but may be up to 364 days or more. The cash we receive when we initially sell the securities is less than the value of those securities, which is referred to as the haircut. Many financial institutions from which we may obtain repurchase agreement financing have increased their haircuts in the past and may do so again in the future. If these haircuts are increased, we will be required to post additional cash or securities as collateral for our Agency MBS. If our counterparty defaults on its obligation to resell the securities to us, we would incur a loss on the transaction equal to the amount of the haircut (assuming there was no change in the value of the securities). We would also lose money on a repurchase transaction if the value of the underlying securities had declined as of the end of the transaction term, as we would have to repurchase the securities for their initial value but would receive securities worth less than that amount. Any losses we incur on our repurchase transactions could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
If we default on one of our obligations under a repurchase transaction, the counterparty can terminate the transaction and cease entering into any other repurchase transactions with us. In that case, we would likely need to establish a replacement repurchase facility with another financial institution in order to continue to leverage our portfolio and carry out our investment strategy. There is no assurance we would be able to establish a suitable replacement facility on acceptable terms or at all.
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We have issued long-term debt to fund our operations which can increase the volatility of our earnings and stockholders’ equity.
In October 2005, Bimini Capital completed a private offering of trust preferred securities of Bimini Capital Trust II, of which $26.8 million are still outstanding. The Company must pay interest on these junior subordinated notes on a quarterly basis at a rate equal to current three month LIBOR rate plus 3.5%. To the extent the Company’s does not generate sufficient earnings to cover the interest payments on the debt, our earnings and stockholders’ equity may be negatively impacted.
The Company considers the junior subordinated notes as part of its long-term capital base. Therefore, for purposes of all disclosure in this report concerning our capital or leverage, the Company considers both stockholders’ equity and the $26.8 million of junior subordinated notes to constitute capital.
The Company has also elected to account for its investments in MBS under the fair value option and, therefore, will report MBS on our financial statements at fair value with unrealized gains and losses included in earnings. Changes in the value of the MBS do not impact the outstanding balance of the junior subordinated notes but rather our stockholders’ equity. Therefore, changes in the value of our MBS will be absorbed solely by our stockholders’ equity. Because our stockholders equity is small in relation to our total capital, such changes may result in significant changes in our stockholders’ equity.
Hedging against interest rate exposure may not completely insulate us from interest rate risk and could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
To the extent consistent with qualifying and maintaining our qualification as a REIT, we may enter into interest rate cap or swap agreements or pursue other hedging strategies, including the purchase of puts, calls or other options and futures contracts in order to hedge the interest rate risk of our portfolio. In general, our hedging strategy depends on our view of our entire portfolio consisting of assets, liabilities and derivative instruments, in light of prevailing market conditions. We could misjudge the condition of our investment portfolio or the market. Our hedging activity will vary in scope based on the level and volatility of interest rates and principal prepayments, the type of Agency MBS we hold and other changing market conditions. Hedging may fail to protect or could adversely affect us because, among other things:
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hedging can be expensive, particularly during periods of rising and volatile interest rates;
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available interest rate hedging may not correspond directly with the interest rate risk for which protection is sought;
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the duration of the hedge may not match the duration of the related liability;
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certain types of hedges may expose us to risk of loss beyond the fee paid to initiate the hedge;
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the amount of gross income that a REIT may earn from certain hedging transactions is limited by federal income tax provisions governing REITs;
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the credit quality of the counterparty on the hedge may be downgraded to such an extent that it impairs our ability to sell or assign our side of the hedging transaction; and
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the counterparty in the hedging transaction may default on its obligation to pay.
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There are no perfect hedging strategies, and interest rate hedging may fail to protect us from loss. Alternatively, we may fail to properly assess a risk to our investment portfolio or may fail to recognize a risk entirely, leaving us exposed to losses without the benefit of any offsetting hedging activities. The derivative financial instruments we select may not have the effect of reducing our interest rate risk. The nature and timing of hedging transactions may influence the effectiveness of these strategies. Poorly designed strategies or improperly executed transactions could actually increase our risk and losses. In addition, hedging activities could result in losses if the event against which we hedge does not occur.
Because of the foregoing risks, our hedging activity could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
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Our use of certain hedging techniques may expose us to counterparty risks.
If an interest rate swap counterparty cannot perform under the terms of the interest rate swap, we may not receive payments due under that swap, and thus, we may lose any unrealized gain associated with the interest rate swap. The hedged liability could cease to be hedged by the interest rate swap. Additionally, we may also risk the loss of any collateral we have pledged to secure our obligations under the interest rate swap if the counterparty becomes insolvent or files for bankruptcy. Similarly, if an interest rate cap counterparty fails to perform under the terms of the interest rate cap agreement, we may not receive payments due under that agreement that would off-set our interest expense and then could incur a loss for the then remaining fair market value of the interest rate cap.
Clearing facilities or exchanges upon which some of our hedging instruments are traded may increase margin requirements on our hedging instruments in the event of adverse economic developments.
In response to events having or expected to have adverse economic consequences or which create market uncertainty, clearing facilities or exchanges upon which some of our hedging instruments, such as Eurodollar futures contracts, are traded may require us to post additional collateral against our hedging instruments. In response to the U.S. approaching its debt ceiling without resolution and the government shutdown, the Chicago Mercantile Exchange announced on October 15, 2013 that it would increase margin requirements by 12% for all over-the-counter interest rate swap portfolios that its clearinghouse guaranteed. This increase was subsequently rolled back on October 17, 2013 upon the news that Congress passed legislation to temporarily suspend the debt ceiling and reopen the government, which allowed time for broader negotiations concerning budgetary issues. In the event that future adverse economic developments or market uncertainty result in increased margin requirements for our hedging instruments, it could materially adversely affect our liquidity position, business, financial condition and results of operations.
Our ability to achieve our investment objectives will depend on our ability to manage future growth effectively.
Our ability to achieve our investment objectives will depend on our ability to grow, which will depend, in turn, on management’s ability to identify and invest in securities that meet our investment criteria. Accomplishing this result on a cost-effective basis largely will be a function of our management’s structuring and implementation of the investment process, its ability to provide competent, attentive and efficient services to us and our access to financing on acceptable terms. Management has substantial responsibilities, and, in order to grow, needs to hire, train, supervise and manage new employees successfully. Any failure to manage our future growth effectively could have a material adverse effect on our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
We may change our investment strategy, investment guidelines and asset allocation without notice or stockholder consent, which may result in riskier investments. In addition, our charter provides that our Board of Directors may revoke or otherwise terminate our REIT election, without the approval of our stockholders.
Our Board of Directors has the authority to change our investment strategy or asset allocation at any time without notice to or consent from our stockholders. To the extent that our investment strategy changes in the future, we may make investments that are different from, and possibly riskier than, the investments described in this annual report. A change in our investment strategy may increase our exposure to interest rate and real estate market fluctuations. Furthermore, a change in our asset allocation could result in our allocating assets in a different manner than as described in this annual report.
In addition, our charter provides that our Board of Directors may revoke or otherwise terminate our REIT election, without the approval of our stockholders, if it determines that it is no longer in our best interests to qualify as a REIT. These changes could materially adversely affect our business, financial condition, results of operations, the market value of our common stock and our ability to make distributions to our stockholders.
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Competition might prevent us from acquiring Agency MBS at favorable yields, which could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
We operate in a highly competitive market for investment opportunities. Our net income largely depends on our ability to acquire Agency MBS at favorable spreads over our borrowing costs. In acquiring Agency MBS, we compete with a variety of institutional investors, including other REITs, investment banking firms, savings and loan associations, banks, insurance companies, mutual funds, other lenders, other entities that purchase Agency MBS, the Federal Reserve, other governmental entities and government-sponsored entities, many of which have greater financial, technical, marketing and other resources than we do. Several other REITs have recently raised, or are expected to raise, significant amounts of capital, and may have investment objectives that overlap with ours, which may create additional competition for investment opportunities. Some competitors may have a lower cost of funds and access to funding sources that may not be available to us, such as funding from the U.S. Government. Additionally, many of our competitors are not subject to REIT tax compliance or required to maintain an exemption from the Investment Company Act. In addition, some of our competitors may have higher risk tolerances or different risk assessments, which could allow them to consider a wider variety of investments. Furthermore, competition for investments in Agency MBS may lead the price of such investments to increase, which may further limit our ability to generate desired returns. As a result, we may not be able to acquire sufficient Agency MBS at favorable spreads over our borrowing costs, which would materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
Actions of the U.S. Government for the purpose of stabilizing the financial markets may adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
The U.S. Government, through the Federal Reserve, the U.S. Treasury, the SEC, the Federal Housing Administration, or the FHA, the Federal Deposit Insurance Corporation, or the FDIC, and other governmental and regulatory bodies has taken or is considering taking various actions to address the recent financial crisis. For example, on July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Dodd-Frank Act. Many aspects of the Dodd-Frank Act are subject to rulemaking and will take effect over several years, making it difficult to anticipate the overall financial impact on us and, more generally, the financial services and mortgage industries. Additionally, we cannot predict whether there will be additional proposed laws or reforms that would affect us, whether or when such changes may be adopted, how such changes may be interpreted and enforced or how such changes may affect us. However, the costs of complying with any additional laws or regulations could have a material adverse effect on our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
In addition to the foregoing, the U.S. Congress and/or various state and local legislatures may enact additional legislation or regulatory action designed to address the current economic crisis or for other purposes that could have a material adverse effect on our ability to execute our business strategies. To the extent the market does not respond favorably to these initiatives or they do not function as intended, our business, financial condition and results of operations and our ability to pay distributions to our stockholders could be materially adversely affected.
Terrorist attacks and other acts of violence or war may materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
We cannot assure you that there will not be further terrorist attacks against the United States or U.S. businesses. These attacks or armed conflicts may directly impact the property underlying our Agency MBS or the securities markets in general. Losses resulting from these types of events are uninsurable. More generally, any of these events could cause consumer confidence and spending to decrease or result in increased volatility in the United States and worldwide financial markets and economies. They also could result in economic uncertainty in the United States or abroad. Adverse economic conditions could harm the value of the property underlying our Agency MBS or the securities markets in general, which could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
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We are highly dependent on communications and information systems operated by third parties, and systems failures could significantly disrupt our business, which may, in turn, adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
Our business is highly dependent on communications and information systems that allow us to monitor, value, buy, sell, finance and hedge our investments. These systems are operated by third parties and, as a result, we have limited ability to ensure their continued operation. In the event of a systems failure or interruption, we will have limited ability to affect the timing and success of systems restoration. Any failure or interruption of our systems could cause delays or other problems in our securities trading activities, including Agency MBS trading activities, which could have a material adverse effect on our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
We depend primarily on two individuals to operate our business, and the loss of one or both of such persons could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
We depend substantially on two individuals, Robert E. Cauley, our Chairman and Chief Executive Officer, and G. Hunter Haas, our President, Chief Investment Officer and Chief Financial Officer, to manage our business. We depend on the diligence, experience and skill of Mr. Cauley and Mr. Haas in managing all aspects of our business, including the selection, acquisition, structuring and monitoring of securities portfolios and associated borrowings. Although we have entered into contracts and compensation arrangements with Mr. Cauley and Mr. Haas that encourage their continued employment, those contracts may not prevent either Mr. Cauley or Mr. Haas from leaving our company. The loss of either of them could materially adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
If we issue debt securities, our operations may be restricted and we will be exposed to additional risk.
If we decide to issue debt securities in the future, it is likely that such securities will be governed by an indenture or other instrument containing covenants restricting our operating flexibility. Additionally, any convertible or exchangeable securities that we issue in the future may have rights, preferences and privileges more favorable than those of our Class A Common Stock. We, and indirectly our stockholders, will bear the cost of issuing and servicing such securities. Holders of debt securities may be granted specific rights, including but not limited to, the right to hold a perfected security interest in certain of our assets, the right to accelerate payments due under the indenture, rights to restrict dividend payments, and rights to approve the sale of assets. Such additional restrictive covenants and operating restrictions could have a material adverse effect on our business, financial condition and results of operations and our ability to pay distributions to our stockholders.
Adoption of the Basel III standards and other proposed supplementary regulatory standards may negatively impact our access to financing or affect the terms of our future financing arrangements.
In response to various financial crises and the volatility of financial markets, the Basel Committee on Banking Supervision adopted the Basel III standards several years ago. The final package of Basel III reforms was approved by the G20 leaders in November 2010. In January 2013, the Basel Committee agreed to delay implementation of the Basel III standards and expanded the scope of assets permitted to be included in a bank’s liquidity measurement.
U.S. regulators have elected to implement substantially all of the Basel III standards. Financial institutions will have until 2019 to fully comply with the Basel III standards, which could cause an increase in capital requirements for, and could place constraints on, the financial institutions from which we borrow.
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Shortly after approving the Basel III standards, U.S. regulators also issued a notice of proposed rule-making calling for enhanced supplementary leverage ratio standards, which would impose capital requirements more stringent than those of the Basel III standards for the most systematically significant banking organizations in the U.S. The enhanced standards are currently subject to public comment, and there can be no assurance that they will be adopted or, if adopted, that they will resemble the current proposal. Adoption and implementation of the Basel III standards and the supplemental regulatory standards proposed by U.S. regulators may negatively impact our access to financing or affect the terms of our future financing arrangements.
MortCo may be obligated to repurchase certain mortgage loans it originated if applicable underwriting requirements were not satisfied. Such repurchases could adversely affect the financial condition of MortCo and further limit its ability to repay amounts owed to us.
Prior to ceasing its operations in April 2007, MortCo originated residential mortgage loans. Those loans were typically sold to Fannie Mae, and the related mortgage servicing rights were typically sold to third-party servicing companies. Fannie Mae, servicing companies and certain investors have made repurchase claims to MortCo regarding certain residential mortgage loans that were originated by MortCo. These claims generally result from a default by a borrower under a loan followed by a rescission of mortgage insurance coverage due to an alleged underwriting deficiency. If MortCo is required to repurchase loans or pay losses incurred by Fannie Mae, servicing companies, investors or other third parties on a significant number of loans, then the financial condition of MortCo and its already limited ability to repay debt that it owes to us will be adversely affected.
Risks Related to Our Organization and Structure
Loss of our exemption from regulation under the Investment Company Act would negatively affect the value of shares of our common stock and our ability to pay distributions to our stockholders.
We have operated and intend to continue to operate our business so as to be exempt from registration under the Investment Company Act, because we are “primarily engaged in the business of purchasing or otherwise acquiring mortgages and other liens on and interests in real estate.” Specifically, we invest and intend to continue to invest so that at least 55% of the assets that we own on an unconsolidated basis consist of qualifying mortgages and other liens and interests in real estate, which are collectively referred to as “qualifying real estate assets,” and so that at least 80% of the assets we own on an unconsolidated basis consist of real estate-related assets (including our qualifying real estate assets). We treat Fannie Mae, Freddie Mac and Ginnie Mae whole-pool residential mortgage pass-through securities issued with respect to an underlying pool of mortgage loans in which we hold all of the certificates issued by the pool as qualifying real estate assets based on no-action letters issued by the SEC. To the extent that the SEC publishes new or different guidance with respect to these matters, we may fail to qualify for this exemption.
On August 31, 2011, the SEC issued a concept release (No. IC-29778; File No. SW7-34-11, Companies Engaged in the Business of Acquiring Mortgages and Mortgage-Related Instruments) pursuant to which it is reviewing whether certain companies that invest in MBS and rely on the exemption from registration under Section 3(c)(5)(C) of the Investment Company Act (such as us) should continue to be allowed to rely on such exemption from registration.
If we fail to qualify for this exemption, we could be required to restructure our activities in a manner that, or at a time when, we would not otherwise choose to do so, which could negatively affect the value of shares of our common stock and our ability to distribute dividends. For example, if the market value of our investments in CMOs or structured Agency MBS, neither of which are qualifying real estate assets for Investment Company Act purposes, were to increase by an amount that resulted in less than 55% of our assets being invested in pass-through Agency MBS, we might have to sell CMOs or structured Agency MBS in order to maintain our exemption from the Investment Company Act. The sale could occur during adverse market conditions, and we could be forced to accept a price below that which we believe is acceptable.
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Alternatively, if we fail to qualify for this exemption, we may have to register under the Investment Company Act and we could become subject to substantial regulation with respect to our capital structure (including our ability to use leverage), management, operations, transactions with affiliated persons (as defined in the Investment Company Act), portfolio composition, including restrictions with respect to diversification and industry concentration, and other matters.
We may be required at times to adopt less efficient methods of financing certain of our securities, and we may be precluded from acquiring certain types of higher yielding securities. The net effect of these factors would be to lower our net interest income. If we fail to qualify for an exemption from registration as an investment company or an exclusion from the definition of an investment company, our ability to use leverage would be substantially reduced, and we would not be able to conduct our business as described in this prospectus. Our business will be materially and adversely affected if we fail to qualify for and maintain an exemption from regulation pursuant to the Investment Company Act.
Failure to obtain and maintain an exemption from being regulated as a commodity pool operator could subject us to additional regulation and compliance requirements and may result in fines and other penalties which could materially adversely affect our business and financial condition.
The Dodd-Frank Act established a comprehensive new regulatory framework for derivative contracts commonly referred to as “swaps.” As a result, any investment fund that trades in swaps may be considered a “commodity pool,” which would cause its operators (in some cases the fund’s directors) to be regulated as “commodity pool operators,” (“CPOs”). Under new rules adopted by the U.S. Commodity Futures Trading Commission, (the “CFTC”), those funds that become commodity pools solely because of their use of swaps must register with the National Futures Association (the “NFA”). Registration requires compliance with the CFTC’s regulations and the NFA’s rules with respect to capital raising, disclosure, reporting, recordkeeping and other business conduct. However, the CFTC’s Division of Swap Dealer and Intermediary Oversight recently issued a no-action letter saying, although it believes that mortgage REITs are properly considered commodity pools, it would not recommend that the CFTC take enforcement action against the operator of a mortgage REIT who does not register as a CPO if, among other things, the mortgage REIT limits the initial margin and premiums required to establish its swaps, futures and other commodity interest positions to not more than five percent (5%) of its total assets, the mortgage REIT limits the net income derived annually from those commodity interest positions which are not qualifying hedging transactions to less than five percent (5%) of its gross income and interests in the mortgage REIT are not marketed to the public as or in a commodity pool or otherwise as or in a vehicle for trading in the commodity futures, commodity options or swaps markets.
We use hedging instruments in conjunction with our investment portfolio and related borrowings to reduce or mitigate risks associated with changes in interest rates, mortgage spreads, yield curve shapes and market volatility. These hedging instruments include interest rate swaps, interest rate futures and options on interest rate futures. We do not currently engage in any speculative derivatives activities or other non-hedging transactions using swaps, futures or options on futures. We do not use these instruments for the purpose of trading in commodity interests, and we do not consider our company or its operations to be a commodity pool as to which CPO registration or compliance is required. We have claimed the relief afforded by the above-described no-action letter. Consequently, we will be restricted to operating within the parameters discussed in the no-action letter and will not enter into hedging transactions covered by the no-action letter if they would cause us to exceed the limits set forth in the no-action letter. However, there can be no assurance that the CFTC will agree that we are entitled to the no-action letter relief claimed.
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The CFTC has substantial enforcement power with respect to violations of the laws over which it has jurisdiction, including their anti-fraud and anti-manipulation provisions. For example, the CFTC may suspend or revoke the registration of or the no-action relief afforded to a person who fails to comply with commodities laws and regulations, prohibit such a person from trading or doing business with registered entities, impose civil money penalties, require restitution and seek fines or imprisonment for criminal violations. In the event that the CFTC asserts that we are not entitled to the no-action letter relief claimed, we may be obligated to furnish additional disclosures and reports, among other things. Further, a private right of action exists against those who violate the laws over which the CFTC has jurisdiction or who willfully aid, abet, counsel, induce or procure a violation of those laws. In the event that we fail to comply with statutory requirements relating to derivatives or with the CFTC’s rules thereunder, including the no-action letter described above, we may be subject to significant fines, penalties and other civil or governmental actions or proceedings, any of which could have a materially adverse effect on our business, financial condition and results of operations.
Our ownership limitations and certain other provisions of applicable law and our charter and bylaws may restrict business combination opportunities that would otherwise be favorable to our stockholders.
Our charter and bylaws and Maryland law contain provisions that may delay, defer or prevent a change in control or other transaction that might involve a premium price for our common stock or otherwise be in the best interests of our stockholders, including business combination provisions, supermajority vote and cause requirements for removal of directors, provisions that vacancies on our Board of Directors may be filled only by the remaining directors, for the full term of the directorship in which the vacancy occurred, the power of our Board of Directors to increase or decrease the aggregate number of authorized shares of stock or the number of shares of any class or series of stock, to cause us to issue additional shares of stock of any class or series and to fix the terms of one or more classes or series of stock without stockholder approval, the restrictions on ownership and transfer of our stock and advance notice requirements for director nominations and stockholder proposals.
To assist us in qualifying as a REIT, among other purposes, ownership of our stock by any person will generally be limited to 9.8% in value or number of shares, whichever is more restrictive, of any class or series of our stock, except that Bimini may own up to 35.0% of our common stock so long as Bimini continues to qualify as a REIT. Additionally, our charter will prohibit beneficial or constructive ownership of our stock that would otherwise result in our failure to qualify as a REIT. The ownership rules in our charter are complex and may cause the outstanding stock owned by a group of related individuals or entities to be deemed to be owned by one individual or entity. As a result, these ownership rules could cause an individual or entity to unintentionally own shares beneficially or constructively in excess of our ownership limits. Any attempt to own or transfer shares of our common stock or preferred stock in excess of our ownership limits without the consent of our Board of Directors will result in such shares being transferred to a charitable trust. These provisions may inhibit market activity and the resulting opportunity for our stockholders to receive a premium for their stock that might otherwise exist if any person were to attempt to assemble a block of shares of our stock in excess of the number of shares permitted under our charter and that may be in the best interests of our security holders.
Our Board of Directors may, without stockholder approval, amend our charter to increase or decrease the aggregate number of our shares or the number of shares of any class or series that we have the authority to issue and to classify or reclassify any unissued shares of common stock or preferred stock, and set the preferences, rights and other terms of the classified or reclassified shares. As a result, our Board of Directors may take actions with respect to our common stock or preferred stock that may have the effect of delaying or preventing a change in control, including transactions at a premium over the market price of our shares, even if stockholders believe that a change in control is in their interest. These provisions, along with the restrictions on ownership and transfer contained in our charter and certain provisions of Maryland law described below, could discourage unsolicited acquisition proposals or make it more difficult for a third party to gain control of us, which could adversely affect the market price of our securities.
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Our rights and the rights of our stockholders to take action against our directors and officers are limited, which could limit your recourse in the event of actions not in your best interests.
Our charter limits the liability of our directors and officers to us and our stockholders for money damages, except for liability resulting from:
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actual receipt of an improper benefit or profit in money, property or services; or
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a final judgment based upon a finding of active and deliberate dishonesty by the director or officer that was material to the cause of action adjudicated.
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We have entered into indemnification agreements with our directors and executive officers that obligate us to indemnify them to the maximum extent permitted by Maryland law. In addition, our charter authorizes the Company to obligate itself to indemnify our present and former directors and officers for actions taken by them in those and other capacities to the maximum extent permitted by Maryland law. Our bylaws require us, to the maximum extent permitted by Maryland law, to indemnify each present and former director or officer in the defense of any proceeding to which he or she is made, or threatened to be made, a party by reason of his or her service to us. In addition, we may be obligated to advance the defense costs incurred by our directors and officers. As a result, we and our stockholders may have more limited rights against our directors and officers than might otherwise exist absent the provisions in our charter, bylaws and indemnification agreements or that might exist with other companies.
Certain provisions of Maryland law could inhibit changes in control.
Certain provisions of the Maryland General Corporation Law ( the “MGCL”), may have the effect of inhibiting a third party from making a proposal to acquire us or impeding a change of control under circumstances that otherwise could provide our stockholders with the opportunity to realize a premium over the then-prevailing market price of our common stock, including:
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“business combination” provisions that, subject to limitations, prohibit certain business combinations between us and an “interested stockholder” (defined generally as any person who beneficially owns 10% or more of the voting power of our outstanding voting stock or an affiliate or associate of ours who, at any time within the two-year period immediately prior to the date in question, was the beneficial owner of 10% or more of the voting power of our then-outstanding stock) or an affiliate of an interested stockholder for five years after the most recent date on which the stockholder became an interested stockholder, and thereafter require two supermajority stockholder votes to approve any such combination; and
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“control share” provisions that provide that a holder of “control shares” of the Company (defined as voting shares of stock which, when aggregated with all other shares of stock owned by the acquiror or in respect of which the acquiror is able to exercise or direct the exercise of voting power (except solely by virtue of a revocable proxy), entitle the acquiror to exercise one of three increasing ranges of voting power in electing directors) acquired in a “control share acquisition” (defined as the direct or indirect acquisition of ownership or control of issued and outstanding “control shares,” subject to certain exceptions) generally has no voting rights with respect to the control shares except to the extent approved by our stockholders by the affirmative vote of two-thirds of all the votes entitled to be cast on the matter, excluding all interested shares.
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We have elected to opt-out of these provisions of the MGCL, in the case of the business combination provisions, by resolution of our Board of Directors (provided that such business combination is first approved by our Board of Directors, including a majority of our directors who are not affiliates or associates of such person), and in the case of the control share provisions, pursuant to a provision in our bylaws. However, our Board of Directors may by resolution elect to repeal the foregoing opt-out from the business combination provisions of the MGCL, and we may, by amendment to our bylaws, opt in to the control share provisions of the MGCL in the future.
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We may be subject to adverse legislative or regulatory changes that could reduce the market price of our common stock.
At any time, laws or regulations, or the administrative interpretations of those laws or regulations, that impact our business and Maryland corporations may be amended. In addition, the markets for MBS and derivatives, including interest rate swaps, have been the subject of intense scrutiny in recent months. We cannot predict when or if any new law, regulation or administrative interpretation, or any amendment to any existing law, regulation or administrative interpretation, will be adopted or promulgated or will become effective. Additionally, revisions to these laws, regulations or administrative interpretations could cause us to change our investments. We could be materially adversely affected by any such change to any existing, or any new, law, regulation or administrative interpretation, which could reduce the market price of our common stock.
U.S. Federal Income Tax Risks
Your investment has various U.S. federal income tax risks.
This summary of certain tax risks is limited to the federal tax risks addressed below. Additional risks or issues may exist that are not addressed in this Form 10-K and that could affect the federal tax treatment of us or our stockholders. This is not intended to be used and cannot be used by any stockholder to avoid penalties that may be imposed on stockholders under the Code. Management strongly urges you to seek advice based on your particular circumstances from an independent tax advisor concerning the effects of federal, state and local income tax law on an investment in common stock and on your individual tax situation.
Failure to qualify or maintain its qualification as a REIT would subject Bimini Capital to U.S. federal income tax, which could adversely affect the value of the shares of its common stock and would substantially reduce the cash available for distribution to its stockholders.
Management believes that Bimini Capital has been organized and has operated in conformity with the requirements for qualification as a REIT under the Code, and it intends to operate in a manner that will enable it to meet the requirements for qualification and taxation as a REIT. However, management cannot assure you that Bimini Capital will remain qualified as a REIT. Moreover, Bimini Capital’s qualification and taxation as a REIT will depend upon its ability to meet on a continuing basis, through actual annual operating results, certain qualification tests set forth in the U.S. federal tax laws. Accordingly, given the complex nature of the rules governing REITs, the ongoing importance of factual determinations, including the potential tax treatment of investments we make, and the possibility of future changes in our circumstances, no assurance can be given that Bimini Capital’s actual results of operations for any particular taxable year will satisfy such requirements.
If Bimini Capital fails to qualify as a REIT in any calendar year, it would be required to pay U.S. federal income tax (and any applicable state and local tax), including any applicable alternative minimum tax, on its taxable income at regular corporate rates, and dividends paid to its stockholders would not be deductible by Bimini Capital in computing our taxable income. Further, if Bimini Capital fails to qualify as a REIT, it might need to borrow money or sell assets in order to pay any resulting tax. The payment of income tax would decrease the amount of Bimini Capital’s income available for distribution to its stockholders. Furthermore, if Bimini Capital fails to maintain its qualification as a REIT, it would no longer be required under U.S. federal tax laws to distribute substantially all of its REIT taxable income to our stockholders. Unless Bimini Capital’s failure to qualify as a REIT was subject to relief under U.S. federal tax laws, it could not re-elect to qualify as a REIT until the fifth calendar year following the year in which it failed to qualify.
Complying with REIT requirements may cause Bimini Capital to forego or liquidate otherwise attractive investments.
To qualify as a REIT, Bimini Capital must continually satisfy various tests regarding the sources of its income, the nature and diversification of its assets, the amounts it distributes to its stockholders and the ownership of its stock. In order to meet these tests, Bimini Capital may be required to forego investments it might otherwise make. Thus, compliance with the REIT requirements may hinder its investment performance.
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In particular, Bimini Capital must ensure that at the end of each calendar quarter, at least 75% of the value of our total assets consists of cash, cash items, government securities and qualified REIT real estate assets, including Agency MBS. The remainder of Bimini Capital’s investment in securities (other than government securities and qualified real estate assets) generally cannot include more than 10% of the outstanding voting securities of any one issuer or more than 10% of the total value of the outstanding securities of any one issuer. In addition, in general, no more than 5% of the value of Bimini Capital’s total assets (other than government securities, TRS securities, and qualified real estate assets) can consist of the securities of any one issuer, and no more than 25% of the value of its total assets can be represented by securities of one or more TRSs. Generally, if Bimini Capital fails to comply with these requirements at the end of any calendar quarter, it must correct the failure within 30 days after the end of the calendar quarter or qualify for certain statutory relief provisions to avoid losing its REIT qualification and becoming subject to U.S. federal income tax (and any applicable state and local taxes) on all of its income. As a result, Bimini Capital may be required to liquidate from its portfolio otherwise attractive investments or contribute such investments to a TRS. These actions could have the effect of reducing Bimini Capital’s income and amounts available for distribution to its stockholders.
Failure to make required distributions would subject Bimini Capital to tax, which would reduce the cash available for distribution to our stockholders.
To qualify as a REIT, Bimini Capital must distribute to its stockholders each calendar year at least 90% of its REIT taxable income (including certain items of non-cash income), determined without regard to the deduction for dividends paid and excluding net capital gain. To the extent that Bimini Capital satisfies the 90% distribution requirement, but distribute less than 100% of its taxable income, it will be subject to federal corporate income tax on its undistributed income. In addition, Bimini Capital will incur a 4% nondeductible excise tax on the amount, if any, by which its distributions in any calendar year are less than the sum of:
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85% of our REIT ordinary income for that year;
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95% of our REIT capital gain net income for that year; and
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any undistributed taxable income from prior years
Bimini Capital intends to distribute its REIT taxable income to its stockholders in a manner intended to satisfy the 90% distribution requirement and to avoid both corporate income tax and the 4% nondeductible excise tax. However, there is no requirement that TRSs distribute their after-tax net income to their parent REIT or their stockholders.
Bimini Capital’s taxable income may be substantially different than its net income as determined based on generally accepted accounting principles in the United States (“GAAP”), because, for example, realized capital losses will be deducted in determining its GAAP net income, but may not be deductible in computing its taxable income. In addition, unrealized portfolio gains and losses are included in GAAP net income, but are not included in REIT taxable income. Also, Bimini Capital may invest in assets that generate taxable income in excess of economic income or in advance of the corresponding cash flow from the assets. As a result of the foregoing, Bimini Capital may generate less cash flow than taxable income in a particular year. To the extent that Bimini Capital generates such non-cash taxable income in a taxable year, it may incur corporate income tax and the 4% nondeductible excise tax on that income if it does not distribute such income to stockholders in that year. In that event, Bimini Capital may be required to use cash reserves, incur debt, sell assets, make taxable distributions of its stock or debt securities or liquidate non-cash assets at rates or at times that it regards as unfavorable to satisfy the distribution requirement and to avoid corporate income tax and the 4% nondeductible excise tax in that year.
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Even if Bimini Capital qualifies as a REIT, we may face other tax liabilities that reduce our cash flows.
Even if Bimini Capital qualifies for taxation as a REIT, it may be subject to certain federal, state and local taxes on its income and assets, including taxes on any undistributed income, tax on income from some activities conducted as a result of a foreclosure, and state or local income, property and transfer taxes. In addition, any TRSs we form will be subject to regular corporate federal, state and local taxes. Any of these taxes would decrease cash available for distributions to stockholders.
The failure of Agency MBS subject to a repurchase agreement to qualify as real estate assets would adversely affect Bimini Capital’s ability to qualify as a REIT.
Bimini Capital has entered and intends to continue to enter into repurchase agreements under which it will nominally sell certain of our Agency MBS to a counterparty and simultaneously enter into an agreement to repurchase the sold assets. Management believes that for U.S. federal income tax purposes these transactions will be treated as secured debt and Bimini Capital will be treated as the owner of the Agency MBS that are the subject of any such agreement notwithstanding that such agreement may transfer record ownership of such assets to the counterparty during the term of the agreement. It is possible, however, that the IRS could successfully assert that Bimini Capital does not own the Agency MBS during the term of the repurchase agreement, in which case it could fail to qualify as a REIT.
Bimini Capital’s ability to invest in and dispose of contracts for delayed delivery transactions, or delayed delivery contracts, including “to be announced” securities, could be limited by the requirements necessary to qualify as a REIT, and Bimini Capital could fail to qualify as a REIT as a result of these investments.
Bimini Capital may purchase Agency MBS through delayed delivery contracts, including “to-be-announced” forward contracts, or TBAs. Bimini Capital may recognize income or gains on the disposition of delayed delivery contracts. For example, rather than take delivery of the Agency MBS subject to a TBA, Bimini Capital may dispose of the TBA through a “roll” transaction in which it agrees to purchase similar securities in the future at a predetermined price or otherwise, which may result in the recognition of income or gains. The law is unclear regarding whether delayed delivery contracts will be qualifying assets for the 75% asset test and whether income and gains from dispositions of delayed delivery contracts will be qualifying income for the 75% gross income test.
Until a favorable private letter ruling is received from the IRS or counsel advises that delayed delivery contracts should be treated as qualifying assets for purposes of the 75% asset test, Bimini Capital will limit its investment in delayed delivery contracts and any non-qualifying assets to no more than 25% of its total gross assets at the end of any calendar quarter and will limit the delayed delivery contracts issued by any one issuer to no more than 5% of its total gross assets at the end of any calendar quarter. Further, until we receive a favorable private letter ruling from the IRS or we are advised by counsel that income and gains from the disposition of delayed delivery contracts should be treated as qualifying income for purposes of the 75% gross income test, Bimini Capital will limit its income and gains from dispositions of delayed delivery contracts and any non-qualifying income to no more than 25% of its gross income for each calendar year. Accordingly, Bimini Capital’s ability to purchase Agency MBS through delayed delivery contracts and to dispose of delayed delivery contracts through roll transactions or otherwise, could be limited.
Moreover, even if Bimini Capital is advised by counsel that delayed delivery contracts should be treated as qualifying assets or that income and gains from dispositions of delayed delivery contracts should be treated as qualifying income, it is possible that the IRS could successfully take the position that such assets are not qualifying assets and such income is not qualifying income. In that event, Bimini Capital could be subject to a penalty tax or it could fail to qualify as a REIT if (i) the value of its delayed delivery contracts together with its non-qualifying assets for the 75% asset test, exceeded 25% of its total gross assets at the end of any calendar quarter, (ii) the value of its delayed delivery contracts, including TBAs, issued by any one issuer exceeds 5% of its total assets at the end of any calendar quarter, or (iii) its income and gains from the disposition of delayed delivery contracts together with its non-qualifying income for the 75% gross income test, exceeded 25% of its gross income for any taxable year.
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Complying with REIT requirements may limit Bimini Capital’s ability to hedge effectively.
The REIT provisions of the Code substantially limit Bimini Capital’s ability to hedge. Bimini Capital’s aggregate gross income from non-qualifying hedges, fees, and certain other non-qualifying sources cannot exceed 5% of its annual gross income. As a result, Bimini Capital might have to limit its use of advantageous hedging techniques or implement those hedges through a TRS. Any hedging income earned by a TRS would be subject to federal, state and local income tax at regular corporate rates. This could increase the cost of Bimini Capital’s hedging activities or expose it to greater risks associated with changes in interest rates than it would otherwise want to bear.
Bimini Capital’s ownership of and relationship with any TRSs that we form will be limited and a failure to comply with the limits would jeopardize its REIT qualification and may result in the application of a 100% excise tax.
A REIT may own up to 100% of the stock of one or more TRSs. A TRS may earn income that would not be qualifying income if earned directly by the parent REIT. Both the subsidiary and the REIT must jointly elect to treat the subsidiary as a TRS. A corporation (other than a REIT) of which a TRS directly or indirectly owns more than 35% of the voting power or value of the stock will automatically be treated as a TRS. Overall, no more than 25% of the value of a REIT’s total assets may consist of stock or securities of one or more TRSs. A domestic TRS will pay federal, state and local income tax at regular corporate rates on any income that it earns. In addition, the TRS rules limit the deductibility of interest paid or accrued by a TRS to its parent REIT to assure that the TRS is subject to an appropriate level of corporate taxation. The rules also impose a 100% excise tax on certain transactions between a TRS and its parent REIT that are not conducted on an arm’s length basis. Any domestic TRS that we may form will pay federal, state and local income tax on its taxable income, and its after-tax net income will be available for distribution to Bimini Capital but is not required to be distributed to it unless necessary to maintain its REIT qualification.
Bimini Capital may pay taxable dividends in cash and our common stock, in which case stockholders may sell shares of our common stock to pay tax on such dividends, placing downward pressure on the market price of our common stock.
Bimini Capital may make taxable dividends that are payable partly in cash and partly in its common stock. The IRS has issued private letter rulings to other REITs treating certain distributions that are paid partly in cash and partly in stock as dividends that would satisfy the REIT annual distribution requirement and qualify for the dividends paid deduction for U.S. federal income tax purposes. Those rulings may be relied upon only by the taxpayers to whom they were issued, but we could request a similar ruling from the IRS. In addition, the IRS previously issued a revenue procedure authorizing publicly traded REITs to make elective cash/stock dividends, but that revenue procedure has expired. Accordingly, it is unclear whether and to what extent Bimini Capital will be able to make taxable dividends payable in cash and common stock. Although Bimini Capital has no current intention of paying dividends in its own stock, if in the future it chooses to pay dividends in its common stock, its stockholders may be required to pay tax in excess of the cash that they receive. If a U.S. stockholder sells the shares that it receives as a dividend in order to pay this tax, the sales proceeds may be less than the amount included in income with respect to the dividend, depending on the market price of our common stock at the time of the sale. Furthermore, with respect to certain non-U.S. stockholders, Bimini Capital may be required to withhold U.S. federal income tax with respect to such dividends, including in respect of all or a portion of such dividend that is payable in common stock. If Bimini Capital pay dividends in its common stock and a significant number of its stockholders determine to sell shares of our common stock in order to pay taxes owed on dividends, it may put downward pressure on the trading price of its common stock.
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Bimini Capital’s ownership limitations may restrict change of control or business combination opportunities in which our stockholders might receive a premium for their stock.
In order for Bimini Capital to qualify as a REIT, no more than 50% in value of its outstanding stock may be owned, directly or indirectly, by five or fewer individuals during the last half of any calendar year. “Individuals” for this purpose include natural persons, private foundations, some employee benefit plans and trusts, and some charitable trusts. In order to assist Bimini Capital in qualifying as a REIT, among other purposes, ownership of its stock by any person is generally limited to 9.8% in value or number of shares, whichever is more restrictive, of any class or series of our stock.
These ownership limitations could have the effect of discouraging a takeover or other transaction in which holders of Bimini Capital’s common stock might receive a premium for their common stock over the then-prevailing market price or which holders might believe to be otherwise in their best interests.
Dividends payable by REITs do not qualify for the reduced tax rates available for some dividends.
The maximum tax rate applicable to “qualified dividend income” payable to U.S. stockholders that are taxed at individual rates is lower than ordinary income tax rates. Dividends payable by REITs, however, generally are not eligible for the reduced rates on qualified dividend income. The more favorable rates applicable to regular corporate qualified dividends could cause investors who are taxed at individual rates to perceive investments in REITs to be relatively less attractive than investments in the stocks of non-REIT corporations that pay dividends, which could adversely affect the value of the shares of REITs, including our common stock.
We may be subject to adverse legislative or regulatory tax changes that could reduce the market price of our common stock.
At any time, the U.S. federal income tax laws or regulations governing REITs or the administrative interpretations of those laws or regulations may be amended. We cannot predict when or if any new U.S. federal income tax law, regulation or administrative interpretation, or any amendment to any existing U.S. federal income tax law, regulation or administrative interpretation, will be adopted, promulgated or become effective and any such law, regulation or interpretation may take effect retroactively. We and our stockholders could be adversely affected by any such change in, or any new, U.S. federal income tax law, regulation or administrative interpretation.
Bimini Capital may recognize excess inclusion income that would increase the tax liability of its stockholders.
If Bimini Capital recognize excess inclusion income and that is allocated to its stockholders, this income cannot be offset by net operating losses of its stockholders. If the stockholder is a tax-exempt entity, then this income would be fully taxable as unrelated business taxable income under Section 512 of the Code. If the stockholder is a foreign person, such income would be subject to federal income tax withholding without reduction or exemption pursuant to any otherwise applicable income tax treaty. In addition, to the extent Bimini Capital’s stock is owned by tax-exempt "disqualified organizations," such as government-related entities that are not subject to tax on unrelated business taxable income, although Treasury regulations have not yet been drafted to clarify the law, it may incur a corporate level tax at the highest applicable corporate tax rate on the portion of our excess inclusion income that is allocable to such disqualified organizations.
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Excess inclusion income could result if Bimini Capital holds a residual interest in a real estate mortgage investment conduit, or REMIC. Excess inclusion income also could be generated if Bimini Capital were to issue debt obligations with two or more maturities and the terms of the payments on these obligations bore a relationship to the payments received on its mortgage-related securities securing those debt obligations (i.e., if Bimini Capital were to own an interest in a taxable mortgage pool). However, Treasury regulations have not been issued regarding the allocation of excess inclusion income to stockholders of a REIT that owns an interest in a taxable mortgage pool. Bimini Capital does not expect to acquire significant amounts of residual interests in REMICs, other than interests already owned by its taxable REIT subsidiary, which is treated as a separate taxable entity for these purposes. Bimini Capital intends to structure borrowing arrangements in a manner designed to avoid generating significant amounts of excess inclusion income. Bimini Capital does, however, expect to enter into various repurchase agreements that have differing maturity dates and afford the lender the right to sell any pledged mortgaged securities if Bimini Capital should default on its obligations.
Bimini Capital’s recognition of “phantom” income may reduce a stockholder’s after-tax return on an investment in our common stock.
Bimini Capital may recognize taxable income in excess of its economic income, known as phantom income, in the first years that it hold certain investments, and experience an offsetting excess of economic income over its taxable income in later years. As a result, stockholders at times may be required to pay U.S. federal income tax on distributions that economically represent a return of capital rather than a dividend. These distributions would be offset in later years by distributions representing economic income that would be treated as returns of capital for U.S. federal income tax purposes. Taking into account the time value of money, this acceleration of U.S. federal income tax liabilities may reduce a stockholder’s after-tax return on his or her investment to an amount less than the after-tax return on an investment with an identical before-tax rate of return that did not generate phantom income.
Liquidation of Bimini Capital’s assets may jeopardize its REIT qualification.
To qualify and maintain its qualification as a REIT, Bimini Capital must comply with requirements regarding its assets and its sources of income. If Bimini Capital were compelled to liquidate its assets to repay obligations to its lenders, it may be unable to comply with these requirements, thereby jeopardizing its qualification as a REIT, or it may be subject to a 100% tax on any resultant gain if it sell assets that are treated as inventory or property held primarily for sale to customers in the ordinary course of business.
Qualification as a REIT and exemption from U.S. federal income tax with respect to certain assets may be dependent on the accuracy of legal opinions or advice rendered or given or statements by the issuers of assets that Bimini Capital acquires, and the inaccuracy of any such opinions, advice or statements may adversely affect Bimini Capital’s REIT qualification and result in significant corporate-level tax.
When purchasing securities, we may rely on opinions or advice of counsel for the issuer of such securities, or statements made in related offering documents, for purposes of determining whether such securities represent debt or equity securities for U.S. federal income tax purposes, the value of such securities, and also to what extent those securities constitute qualified real estate assets for purposes of the REIT asset tests and produce income which qualifies under the 75% gross income test. The inaccuracy of any such opinions, advice or statements may adversely affect Bimini Capital’s REIT qualification and result in significant corporate-level tax.
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Risks Related to Conflicts of Interest in Our Relationship with Orchid
Bimini Capital and Orchid may compete for opportunities to acquire assets, which are allocated in accordance with the Investment Allocation Agreement by and among Orchid and Bimini Advisors.
From time to time we may seek to purchase for Bimini Capital the same or similar assets that we seek to purchase for Orchid. In such an instance, we may allocate such opportunities in a manner that preferentially favors Orchid. We will make available to either Bimini Capital or Orchid opportunities to acquire assets that we determine, in our reasonable and good faith judgment, based on the objectives, policies and strategies, and other relevant factors, are appropriate for either entity in accordance with the Investment Allocation Agreement.
Because many of Bimini Capital’s targeted assets are typically available only in specified quantities and because many of our targeted assets are also targeted assets for Orchid, we may not be able to buy as much of any given asset as required to satisfy the needs of both Bimini Capital and Orchid. In these cases, the Investment Allocation Agreement between Bimini Capital and Orchid will require the allocation of such assets to both accounts in proportion to their needs and available capital. The Investment Allocation Agreement will permit departure from such proportional allocation when (i) allocating purchases of whole-pool Agency MBS, because those securities cannot be divided into multiple parts to be allocated among various accounts, and (ii) such allocation would result in an inefficiently small amount of the security being purchased for an account. In that case, the Investment Allocation Agreement allows for a protocol of allocating assets so that, on an overall basis, each account is treated equitably.
There are conflicts of interest in our relationships with Orchid, which could result in decisions that are not in the best interests of Bimini Capital’s stockholders.
We are subject to conflicts of interest arising out of Bimini Advisors relationship as Manager of Orchid. All of our executive officers may have conflicts between their duties to Bimini Capital and their duties to Orchid as its Manager.
Bimini Capital may acquire or sell assets in which Orchid may have an interest. Similarly, Orchid may acquire or sell assets in which Bimini Capital has or may have an interest. Although such acquisitions or dispositions may present conflicts of interest, we nonetheless may pursue and consummate such transactions. Additionally, Bimini Capital may engage in transactions directly with Orchid, including the purchase and sale of all or a portion of a portfolio asset.
Our officers devote as much time to Bimini Capital and to Orchid as they deem appropriate. However, these officers may have conflicts in allocating their time and services among Bimini Capital and Orchid. During turbulent conditions in the mortgage industry, distress in the credit markets or other times when we will need focused support and assistance from employees, Orchid and other entities for which we may act as manager in the future will likewise require greater focus and attention, placing personnel resources in high demand. In such situations, Bimini Capital may not receive the necessary support and assistance it requires or would otherwise receive if it were not acting as manager of one or more other entities.
We, directly or through Orchid, may obtain confidential information about the companies or securities in which we have invested or may invest. If we possess confidential information about such companies or securities, there may be restrictions on our ability to dispose of, increase the amount of, or otherwise take action with respect to the securities of such companies. Our management of other accounts could create a conflict of interest to the extent our officers are aware of material non-public information concerning potential investment decisions. We have implemented compliance procedures and practices designed to ensure that investment decisions are not made while in possession of material non-public information. We cannot assure you, however, that these procedures and practices will be effective. In addition, this conflict and these procedures and practices may limit the freedom of our officers to make potentially profitable investments, which could have an adverse effect on Bimini Capital’s operations. These limitations imposed by access to confidential information could therefore materially adversely affect Bimini Capital’s business, financial condition and results of operations and its ability to make distributions to Bimini Capital’s stockholders.
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Mr. Cauley, Bimini Capital’s Chief Executive Officer and Chairman of our Board of Directors, also serves as Chief Executive Officer and Chairman of the Board of Directors of Orchid and owns shares of common stock of Orchid at the time of this filing and may continue to hold shares in the future. Mr. Haas, Bimini Capital’s Chief Financial Officer, Chief Investment Officer and President, is a member of the Board of Directors of Orchid, serves as the Chief Financial Officer, Chief Investment Officer and Treasurer of Orchid and owns shares of common stock of Orchid at the time of this filing and may continue to hold shares in the future. Mr. Dwyer and Mr. Jaumot, the two independent members of Bimini Capital’s Board of Directors, own shares of common stock of Orchid at the time of this filing and may continue to own shares in the future. Accordingly, Messrs. Cauley, Haas, Dwyer and Jaumot may have a conflict of interest with respect to actions by Bimini Capital’s Board of Directors that relate to Orchid as its Manager.
As of March 12, 2014, Bimini owned approximately 18.1% of the outstanding shares of common stock of Orchid. In evaluating opportunities for ourselves and Orchid, this may lead us to emphasize certain asset acquisition, disposition or management objectives over others, such as balancing risk or capital preservation objectives against return objectives. This could increase the risks or decrease the returns of your investment in our common stock.
Bimini Capital incurred considerable cost in sponsoring the initial public offering of Orchid. It did so in return for the ability to earn management fees and share a portion of our overhead costs in the future. If the independent board of Orchid elected to not renew or to cancel the management agreement with Bimini Advisors, Bimini Capital may not be able to recoup the costs incurred in bringing Orchid to market. Even if Orchid elected not to renew the management agreement without cause, and would be required to pay Bimini Advisors a substantial termination fee, this fee, in conjunction with any management fees collected or overhead costs shared prior to the early termination of the agreement, may not be sufficient to recoup the costs Bimini Capital incurred in bringing Orchid to market.
Orchid may elect not to renew the management agreement, even without cause. With the consent of the majority of their independent directors, Orchid may elect not to renew the management agreement after the initial term of the management agreement, which expires on February 20, 2016, or upon the expiration of any automatic renewal term, both upon 180-days’ prior written notice. If Orchid elects to not renew the agreement because of a decision by its Board of Directors that the management fee is unfair, Bimini Advisors will have the right to renegotiate a mutually agreeable management fee. If Orchid elects to not renew the management agreement without cause, it is required to pay Bimini Advisors a termination fee equal to three times the average annual management fee incurred during the prior 24-month period immediately preceding the most recently completed calendar quarter prior to the effective date of termination. While these provisions may increase the effective cost of electing to not renew the management agreement, the fee may be insufficient to recoup the costs Bimini Capital incurred in bringing Orchid to market and completing its initial public offering.
Under generally accepted accounting principles in the United States, we continue to consolidate Orchid in our consolidated financial statements. Since the board of directors of Orchid is comprised of a majority of directors that are independent, their actions may not always be in the best interests of the consolidated entity. Accordingly, their actions may lead to outcomes that cause our consolidated financial statements, after consolidating Orchid’s financial statements, to make it difficult to obtain needed financing, or to do so on unfavorable terms.
Under generally accepted accounting principles in the United States (“GAAP”), subsequent to the closing of Orchid’s IPO we continue to consolidate the financial statements of Orchid into our own. Because Bimini Capital owns a material interest in Orchid, approximately 18.1% at March 12, 2014, and plays a substantial role in directing the activities of Orchid as a result of being its Manager, we must consolidate the operations of Orchid onto our financial statements. This will cause the total assets and liabilities on our balance sheet to appear larger than they would otherwise and our statement of operations to reflect larger revenues and expenses than would be the case absent consolidation. However, since our consolidated operations of are also impacted by the board of directors of Orchid, the majority of whom are independent directors with no affiliation with Bimini, their actions could lead to outcomes that have a material negative impact on our operations or financial condition, thereby possibly impacting our ability to obtain needed financing for our operations, or our ability to do so on favorable terms.
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Risks Related to Our Common Stock
Investing in our common stock may involve a high degree of risk.
The investments we make in accordance with our investment objectives may result in a high amount of risk when compared to alternative investment options and volatility or loss of principal. Our investments may be highly speculative and aggressive, and therefore an investment in our common stock may not be suitable for someone with lower risk tolerance.
There is a limited market for our Class A Common Stock.
Since November 5, 2007, our Class A Common Stock has traded on the OTC bulletin board under the symbol “BMNM.OB”. We may apply to list our Class A Common Stock on a national securities market in the future; however, even if listed on a national securities market, the ability to buy and sell our Class A Common Stock may be limited due to our small public float, and significant sales may depress or result in a decline in the market price of our Class A Common Stock. Additionally, until such time that our Class A Common Stock is approved for listing on another national securities market, our ability to raise capital through the sale of additional securities may be limited. Accordingly, no assurance can be given as to:
·
the likelihood that an actual market for our common stock will develop, or be continued once developed;
·
the liquidity of any such market;
·
the ability of any holder to sell shares of our common stock; or
·
the prices that may be obtained for our common stock.
We have not established a minimum distribution payment level, and we cannot assure you of our ability to make distributions to our stockholders in the future.
We intend to make distributions to our stockholders in amounts such that we distribute all or substantially all of our REIT taxable income in each year, subject to certain adjustments. We have not established a minimum distribution payment level, and our ability to make distributions might be harmed by the risk factors described in this Annual Report on Form 10-K. All distributions will be made at the discretion of our Board of Directors out of funds legally available therefor and will depend on our earnings, our financial condition, qualifying and maintaining our qualification as a REIT and such other factors as our Board of Directors may deem relevant from time to time. We cannot assure you that we will have the ability to make distributions to our stockholders in the future. To the extent that we decide to pay distributions from the proceeds of any securities offerings, such distributions would generally be considered a return of capital for U.S. federal income tax purposes. A return of capital reduces the basis of a stockholder’s investment in our common stock to the extent of such basis and is treated as capital gain thereafter.
-37-
Future offerings of debt securities, which would be senior to our common stock upon liquidation, or equity securities, which would dilute our existing stockholders and may be senior to our common stock for the purposes of distributions, may harm the value of our common stock.
In the future, we may attempt to increase our capital resources by making additional offerings of debt or equity securities, including commercial paper, medium-term notes, senior or subordinated notes and classes of preferred stock or common stock, as well as warrants to purchase shares of common stock or convertible preferred stock. Upon the liquidation of the Company, holders of our debt securities and shares of preferred stock and lenders with respect to other borrowings will receive a distribution of our available assets prior to the holders of our common stock. Additional equity offerings by us may dilute the holdings of our existing stockholders or reduce the market value of our common stock, or both. Our preferred stock, if issued, would have a preference on distributions that could limit our ability to make distributions to the holders of our common stock. Furthermore, our Board of Directors may, without stockholder approval, amend our charter to increase the aggregate number of our shares or the number of shares of any class or series that we have the authority to issue, and to classify or reclassify any unissued shares of common stock or preferred stock. Because our decision to issue securities in any future offering will depend on market conditions and other factors beyond our control, we cannot predict or estimate the amount, timing or nature of our future offerings. Our stockholders are therefore subject to the risk of our future securities offerings reducing the market price of our common stock and diluting their common stock.
The market value of our common stock may be volatile.
The market value of shares of our common stock may be based primarily upon current and expected future cash dividends, and the market price of shares of our common stock will be influenced by the dividends on those shares relative to market interest rates. Rising interest rates may lead potential buyers of our common stock to expect a higher dividend rate, which could adversely affect the market price of shares of our common stock. As a result, the market price of our common stock may be highly volatile and subject to wide price fluctuations. In addition, the trading volume in our common stock may fluctuate and cause significant price variations to occur. Some of the factors that could negatively affect the share price or trading volume of our common stock include:
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actual or anticipated variations in our operating results or distributions;
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·
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changes in our earnings estimates or publication of research reports about us or the real estate or specialty finance industry;
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increases in market interest rates that lead purchasers of our common stock to expect a higher dividend yield;
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changes in market valuations of similar companies;
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adverse market reaction to any increased indebtedness we incur in the future;
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departures of key management personnel;
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actions by institutional stockholders;
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·
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speculation in the press or investment community; and
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general market and economic conditions.
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We cannot make any assurances that the market price of our common stock will not fluctuate or decline significantly in the future.
Broad market fluctuations could harm the market price of our common stock.
The stock market has experienced extreme price and volume fluctuations in the past that have affected the market price of many companies’ stock in industries similar or related to ours and that have been unrelated to these companies’ operating performances. These broad market fluctuations could occur again and could reduce the market price of our common stock. Furthermore, our operating results and prospects may be below the expectations of public market analysts and investors or may be lower than those of companies with comparable market capitalizations, which could harm the market price of our common stock.
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Shares of our common stock eligible for future sale may harm our share price.
We cannot predict the effect, if any, of future sales of shares of our common stock, or the availability of shares for future sales, on the market price of our common stock. Sales of substantial amounts of shares of our common stock, or the perception that these sales could occur, may harm prevailing market prices for our common stock. The 2011 Long Term Incentive Compensation Plan provides for grants of up to an aggregate of 10% of the issued and outstanding shares of our common stock (on a fully diluted basis) at the time of the award, subject to a maximum aggregate number of shares of common stock that may be issued under the 2011 Long Term Incentive Compensation Plan of 4,000,000 shares of common stock.
An increase in market interest rates may cause a material decrease in the market price of our common stock.
One of the factors that investors may consider in deciding whether to buy or sell shares of our common stock is our distribution rate as a percentage of our share price relative to market interest rates. If the market price of our common stock is based primarily on the earnings and returns that we derive from our investments and income with respect to our investments and our related distributions to stockholders, and not from the market value of the investments themselves, then interest rate fluctuations and capital market conditions are likely to adversely affect the market price of our common stock. For instance, if market rates rise without an increase in our distribution rate, the market price of our common stock could decrease as potential investors may require a higher distribution yield on our common stock or seek other securities paying higher distributions or interest. In addition, rising interest rates would result in increased interest expense on our variable rate debt, thereby reducing cash flow and our ability to service our indebtedness and pay distributions.
None
.
Our executive offices and principal administrative offices are located at 3305 Flamingo Drive, Vero Beach, Florida, 32963, in an office building which we own. This facility is shared with our subsidiaries and Orchid. This property is suitable and adequate for our business as currently conducted.
The Company is involved in various lawsuits and claims, both actual and potential, including some that it has asserted against others, in which monetary and other damages are sought. These lawsuits and claims relate primarily to contractual disputes arising out of the ordinary course of the Company’s business. The outcome of such lawsuits and claims is inherently unpredictable. However, management believes that, in the aggregate, the outcome of all lawsuits and claims involving the Company will not have a material effect on the Company’s consolidated financial position or liquidity; however, any such outcome may be material to the results of operations of any particular period in which costs, if any, are recognized.
-39-
A complaint by a note-holder in Preferred Term Securities XX (“PreTSL XX”) was filed on July 16, 2010 in the Supreme Court of the State of New York, New York County, against Bimini Capital Management, Inc. (“Bimini”), the Bank of New York Mellon (“BNYM”), PreTSL XX, Ltd. and Hexagon Securities, LLC (“Hexagon”). The complaint, filed by Hildene Capital Management, LLC and Hildene Opportunities Fund, Ltd. (“Hildene”), alleges that Hildene suffered losses as a result of Bimini’s repurchase of all outstanding fixed/floating rate capital securities of Bimini Capital Trust II for less than par value from PreTSL XX in October 2009. Hildene has alleged claims against BNYM for breach of the Indenture, breach of fiduciary duties and breach of covenant of good faith and fair dealing, and claims against Bimini for tortious interference with contract, aiding and abetting breach of fiduciary duty, unjust enrichment and “rescission/illegality.” Hildene also alleged derivative claims brought in the name of Nominal Defendant BNYM. (Subsequently, Hexagon and Nominal Defendant PreTSL XX were voluntarily dismissed without prejudice by Hildene.) PreTSL XX, Ltd. moved to intervene as an additional plaintiff in the action, and Bimini and BNYM opposed that motion. The court granted PreTSL XX, Ltd.’s motion to intervene, and the Appellate Division, First Department affirmed that decision. In May 2013, Hildene voluntarily dismissed its purported derivative claims brought in the name of BNYM, including its claim for “rescission/illegality.” Bimini denies that the repurchase was improper and intends to continue to defend the suit vigorously
On March 2, 2011, Orchid Island TRS, LLC, formerly known as Opteum Financial Services, LLC and presently known as Mortco, LLC (“Opteum Financial”) and Opteum Mortgage Acceptance Corporation (“Opteum Acceptance”) (collectively referred to herein as “MortCo”) received a cover letter dated March 1, 2011 from Massachusetts Mutual Life Insurance Company (“Mass Mutual”) enclosing a draft complaint against MortCo. In summary, Mass Mutual alleges that it purchased residential mortgage-backed securities offered by MortCo in August 2005 and the first quarter of 2006 and that MortCo made false representations and warranties in connection with the sale of the securities in violation of Mass Gen. Laws Ch. 110A § 410(a)(2) (the “Massachusetts Blue Sky Law”). In its cover letter, Mass Mutual claims it is entitled to damages in excess of $25 million. However, no monetary demand is contained within the enclosed draft complaint and the actual damages Mass Mutual claims to have incurred is uncertain.
Mass Mutual has not filed the complaint or initiated litigation. Pursuant to its request, on March 14, 2011 Mass Mutual and MortCo entered into a Tolling Agreement through June 1, 2011 so that Mass Mutual could address its allegations against MortCo without incurring litigation costs. Mass Mutual never contacted MortCo to schedule such discussions. On August 22, 2011, the parties extended the Tolling Agreement through June 1, 2013, and on May 31, 2013, the parties extended the Tolling Agreement through December 2, 2013. To date, MortCo is aware of no action taken by Mass Mutual, and the Tolling Agreement appears to have expired by its own terms. MortCo denies Opteum Financial or Opteum Acceptance, individually or collectively, made false representations and warranties in connection with the sale of securities to Mass Mutual. Mass Mutual has taken no action to prosecute its claim against MortCo, and the range of loss or potential loss, if any, cannot reasonably be estimated. Should Mass Mutual initiate litigation, MortCo will defend such litigation vigorously.
Not Applicable.
-40-
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Market Information
Our Class A Common Stock is traded over-the-counter under the symbol “BMNM.OB”. As of February 14, 2014, we had 12,267,651 shares of Class A Common Stock outstanding, which were held by approximately 2,486 holders of record.
The following table is a summary of historical prices of our Class A Common Stock.
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High
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Low
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Close
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Dividends Declared
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|||||||||||||
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2013
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||||||||||||||||
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First quarter
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$ | 0.48 | $ | 0.13 | $ | 0.35 | $ | - | ||||||||
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Second quarter
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0.43 | 0.19 | 0.29 | - | ||||||||||||
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Third quarter
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0.29 | 0.18 | 0.22 | - | ||||||||||||
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Fourth quarter
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0.35 | 0.10 | 0.27 | - | ||||||||||||
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2012
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. | |||||||||||||||
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First quarter
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$ | 0.43 | $ | 0.25 | $ | 0.29 | $ | - | ||||||||
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Second quarter
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0.33 | 0.07 | 0.24 | - | ||||||||||||
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Third quarter
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0.34 | 0.16 | 0.19 | - | ||||||||||||
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Fourth quarter
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0.20 | 0.11 | 0.13 | - | ||||||||||||
As of December 31, 2013, we had 31,938 shares of Class B Common Stock outstanding, which were held by 2 holders of record and 31,938 shares of Class C Common Stock outstanding, which were held by one holder of record. There is no established public trading market for our Class B Common Stock or Class C Common Stock.
Dividend Distribution Policy
To qualify as a REIT, we must distribute annually to our stockholders an amount at least equal to 90% of our REIT taxable income, determined without regard to the deduction for dividends paid and excluding any net capital gain. We will be subject to income tax on our taxable income that is not distributed and to an excise tax to the extent that certain percentages of our taxable income are not distributed by specified dates. Income as computed for purposes of the foregoing tax rules will not necessarily correspond to our income as determined for financial reporting purposes pursuant to GAAP.
Any additional distributions we make will be authorized by and at the discretion of our Board of Directors based upon a variety of factors deemed relevant by our directors, which may include:
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·
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actual results of operations;
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our financial condition;
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our level of retained cash flows;
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our capital requirements;
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the timing of the investment of the net proceeds of this offering;
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any debt service requirements;
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our taxable income;
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the annual distribution requirements under the REIT provisions of the Code;
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applicable provisions of Maryland law; and
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·
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other factors that our Board of Directors may deem relevant.
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-41-
We have not established a minimum distribution payment level, and we cannot assure you of our ability to make distributions to our stockholders in the future.
Our charter authorizes us to issue preferred stock that could have a preference over our common stock with respect to distributions. We currently have no intention to issue any preferred stock, but if we do, the distribution preference on the preferred stock could limit our ability to make distributions to the holders of our common stock.
Our ability to make distributions to our stockholders will depend upon the performance of our investment portfolio, and, in turn, upon our Manager’s management of our business. To the extent that our cash available for distribution is less than the amount required to be distributed under the REIT provisions of the Code, we may consider various funding sources to cover any shortfall, including selling certain of our assets, borrowing funds or using a portion of the net proceeds we receive in this offering or future offerings (and thus all or a portion of such distributions may constitute a return of capital for U.S. federal income tax purposes). We also may elect to pay all or a portion of any distribution in the form of a taxable distribution of our stock or debt securities. In addition, our Board of Directors may change our distribution policy in the future.
Securities Authorized For Issuance Under Equity Compensation Plans
On August 12, 2011, Bimini Capital’s shareholders approved the 2011 Long Term Compensation Plan (the “Plan”). The Plan is intended to permit the grant of stock options, stock appreciation rights (“SARs”), stock awards, performance units and other equity-based and incentive awards up to an aggregate of 4,000,000 shares, subject to adjustments and limitations as provided in the Plan. The following table provides information as of December 31, 2013 concerning shares of our common stock authorized for issuance under the Plan
.
|
Total number of securities to be issued upon exercise of outstanding options, warrants and rights
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Weighted-average exercise price of outstanding options, warrants and rights
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Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a))
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||||||||||
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Plan Category
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(a)
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(b)
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||||||||||
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Equity compensation plans approved by
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||||||||||||
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by security holders
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- | - | 3,450,000 | (2) | ||||||||
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Equity compensation plans not approved
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||||||||||||
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by security holders
(1)
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- | - | - | |||||||||
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Total
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- | - | 3,450,000 | |||||||||
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(1)
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We do not have any equity compensation plans that have not been approved by our stockholders.
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(2)
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Represents the maximum number of shares remaining available for future issuance under the terms of the Plan.
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Unregistered Sales Of Equity Securities
The Company did not issue or sell equity securities that were not registered under the Securities Act during the year ended December 31, 2013.
Issuer Purchases Of Equity Securities
The Company did not repurchase any shares of its stock during the three months ended December 31, 2013.
-42-
Not Applicable.
The following discussion of our financial condition and results of operations should be read in conjunction with the financial statements and notes to those statements included in Item 8 of this Form 10-K. The discussion may contain certain forward-looking statements that involve risks and uncertainties. Forward-looking statements are those that are not historical in nature. As a result of many factors, such as those set forth under “Risk Factors” in this Form 10-K, our actual results may differ materially from those anticipated in such forward-looking statements.
Overview
As used in this document, references to “Bimini Capital,” the parent company, and to or the general management of Bimini Capital’s portfolio of MBS refer to Bimini Capital Management, Inc. Through February 19, 2013, Bimini Capital's consolidated financial statements include Orchid Island Capital, Inc. ("Orchid") as a wholly-owned qualified REIT subsidiary. Orchid completed an initial public offering ("IPO") of its common stock effective February 20, 2013. After that date, Orchid continues to be consolidated as a variable interest entity (“VIE”) as described below. As used in this document, discussions related to REIT qualifying activities include the MBS portfolios of Bimini Capital and Orchid. References to Bimini Capital’s taxable REIT subsidiaries or non-REIT eligible assets refer to Bimini Advisors, Inc. and Bimini Advisors, LLC (together as “Bimini Advisors”) and to MortCo TRS, LLC (“MortCo”) and its consolidated subsidiaries. MortCo, which was previously named Opteum Financial Services, LLC, (referred to as “OFS”) was renamed Orchid Island TRS, LLC (referred to as “OITRS”) effective July 3, 2007 and then renamed MortCo TRS, LLC effective March 8, 2011. Hereinafter, any historical mention, discussion or references to Opteum Financial Services, LLC, Orchid Island TRS, LLC, OFS or to OITRS (such as in previously filed documents or Exhibits) now means MortCo. References to the “Company” refer to the consolidated entity which is the consolidation of Bimini Capital, Orchid, Bimini Advisors, MortCo and MortCo’s consolidated subsidiaries.
Bimini Capital was formed in September 2003 to invest primarily in residential mortgage related securities issued by the Federal National Mortgage Association (“Fannie Mae”), the Federal Home Loan Mortgage Corporation (“Freddie Mac”) and the Government National Mortgage Association (“Ginnie Mae”). The Company deploys its capital into two core strategies. The two strategies are a levered MBS portfolio and an unlevered structured MBS portfolio. The leverage applied to the MBS portfolio will typically be less than twelve to one. The Company manages its portfolio of agency MBS and structured MBS to generate income derived from the net interest margin of its MBS portfolio, levered predominantly under repurchase agreement funding, net of associated hedging costs, and the interest income derived from its unlevered portfolio of structured MBS. The Company treats its remaining junior subordinated notes as an equity capital equivalent. The Company is self-managed and self-advised and has elected to be taxed as a REIT for U.S. federal income tax purposes.
Factors that Affect our Results of Operations and Financial Condition
A variety of industry and economic factors may impact our results of operations and financial condition. These factors include:
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interest rate trends;
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prepayment rates on mortgages underlying our Agency MBS, and credit trends insofar as they affect prepayment rates;
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the difference between Agency MBS yields and our funding and hedging costs;
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competition for investments in Agency MBS;
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recent actions taken by the Federal Reserve and the U.S. Treasury; and
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other market developments.
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-43-
In addition, a variety of factors relating to our business may also impact our results of operations and financial condition. These factors include:
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our degree of leverage;
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our access to funding and borrowing capacity;
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our borrowing costs;
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our hedging activities;
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the market value of our investments; and
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the requirements to qualify as a REIT and the requirements to qualify for a registration exemption under the Investment Company Act.
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We anticipate that, for any period during which changes in the interest rates for our adjustable rate assets do not coincide with interest rate changes on the corresponding liabilities, such assets will re-price more slowly than the corresponding liabilities. Consequently, changes in interest rates, particularly short term interest rates, may significantly influence our net income.
Our net income may be affected by a difference between actual prepayment rates and our projections. Prepayments on loans and securities may be influenced by changes in market interest rates and homeowners’ abilities and desires to refinance their mortgages.
Consolidation of Orchid Island Capital, Inc.
Subsequent to Orchid’s IPO and as of December 31, 2013, management has concluded Orchid is a VIE, as defined in generally accepted accounting principles, because Orchid’s equity holders lack the ability through voting rights to make decisions about the activities that have a significant effect on the success of Orchid. Management has also concluded that Bimini Capital is the primary beneficiary of Orchid because, under the management agreement between Bimini Advisors and Orchid, Bimini Capital has the power to direct the activities of Orchid that most significantly impact its economic performance. As a result, subsequent to Orchid’s IPO and through December 31, 2013, the Company has continued to consolidate Orchid in its Consolidated Financial Statements even though, as of December 31, 2013, Bimini’s owned 29.38% of the outstanding common stock of Orchid.
The noncontrolling interests reported in the Company’s 2013 Consolidated Financial Statements represent the portion of equity ownership in Orchid held by stockholders other than Bimini Capital. Noncontrolling interests is presented in the equity section of the 2013 consolidated balance sheet, separate from equity attributed to Bimini Capital. Net income of Orchid is allocated between the noncontrolling interests and to Bimini Capital in proportion to their relative ownership interests in Orchid.
The consolidation of Orchid’s assets and liabilities with those of Bimini Capital and its wholly-owned subsidiaries gives the appearance of a much larger organization. However, the assets recognized as a result of consolidating Orchid do not represent additional assets that could be used to satisfy claims against Bimini Capital’s assets, nor do they represent amounts that are available to be distributed to Bimini Capital’s stockholders. Conversely, liabilities recognized as a result of consolidating Orchid do not represent additional claims on Bimini Capital’s assets; rather, they represent claims against the assets of Orchid. In addition to the presentation of the Company’s consolidated portfolio activities in this section, we have also provided additional discussion related to the portfolio activities of Bimini Capital on its own. We believe that this “parent-only” information along with the consolidated presentation provides useful information about the activities that are relevant to shareholders of Bimini Capital.
-44-
Dividends To Stockholders
In order to maintain its qualification as a REIT, Bimini Capital is required (among other provisions) to annually distribute dividends to its stockholders in an amount at least equal to, generally, 90% of Bimini Capital’s REIT taxable income. REIT taxable income is a term that describes Bimini Capital’s operating results calculated in accordance with rules and regulations promulgated pursuant to the Internal Revenue Code. Beginning with its initial short tax period ended December 31, 2013, Orchid expects to qualify and elect to be taxed as a REIT. As such, the same taxation rules apply separately to Orchid.
REIT taxable income is computed differently from net income as computed in accordance with generally accepted accounting principles ("GAAP net income"), as reported in the Company’s accompanying consolidated financial statements. Depending on the number and size of the various items or transactions being accounted for differently, the differences between REIT taxable income and GAAP net income can be substantial and each item can affect several reporting periods. Generally, these items are timing or temporary differences between years; for example, an item that may be a deduction for GAAP net income in the current year may not be a deduction for REIT taxable income until a later year. The most significant differences are as follows: the results of the Company’s taxable REIT subsidiaries do not impact REIT taxable income, unrealized gains or losses on the MBS do not impact REIT taxable income, interest income on MBS securities is computed differently for REIT taxable income and GAAP, and for tax reporting purposes Orchid’s IPO expenses are considered capital costs.
A REIT may be subject to a federal excise tax if it distributes less than 85% of its REIT taxable income by the end of the calendar year. Accordingly, dividends are based on its REIT taxable income (after considering the possible impact of applying NOLs to the income as described below in “Net Operating Losses”), as determined for federal income tax purposes, as opposed to its net income computed in accordance with GAAP (as reported in the accompanying consolidated financial statements).
During the year ended December 31, 2013, Bimini Capital made no dividend distributions as a separately reporting tax REIT. All distributions are made at the discretion of the Company’s Board of Directors and will depend on the Company’s results of operations, financial conditions, maintenance of REIT status, availability of net operating losses and other factors that may be deemed relevant. Bimini Capital declared a special dividend in December 2009 and a regular dividend in each of the six quarters thereafter. Bimini Capital continues to evaluate its dividend payment policy. However, as more fully described below, due to net operating losses incurred in prior periods, Bimini Capital is unlikely to declare and pay dividends to stockholders until such net operating losses have been consumed.
Orchid paid its first dividend on March 27, 2013 to stockholders of record as of March 25, 2013 in an amount of $0.135 per share of its common stock. Orchid has also paid dividends each month since then for a total amount of $1.395 per share of its common stock during 2013. During the year ended December 31, 2013, Bimini received $1.4 million in dividends from Orchid. Orchid intends to continue to pay regular monthly dividends to Orchid’s stockholders.
Net Operating Losses
As described above, a REIT may be subject to a federal excise tax if it distributes less than 85% of its REIT taxable income by the end of a calendar year. In calculating the amount of excise tax payable in a given year, if any, Bimini Capital reduces REIT taxable income by distributions made to stockholders in the form of dividends and/or net operating losses (“NOL’s”) carried-over from prior years, to the extent any are available. Since income subject to excise tax is REIT taxable income less qualifying dividends and the application of NOL’s, if a REIT has sufficient NOL’s it could apply such NOL’s against its taxable income and avoid excise taxes without paying qualifying dividends to stockholders. Accordingly, if in future periods Bimini Capital has taxable income, it can avoid the obligation to pay excise taxes by applying the estimated $17.9 million of NOL’s available as of December 31, 2013 against such taxable income until the NOL’s are exhausted in lieu of making distributions to stockholders. Further, Bimini Capital, could avoid the obligation to pay excise taxes through a combination of qualifying dividends and the application of NOL’s. In any case, future distributions to stockholders are expected to be less than REIT taxable income until the existing NOL’s are consumed.
-45-
Results of Operations
Described below are the Company’s results of operations for the year ended December 31, 2013, as compared to the year ended December 31, 2012.
Net Loss Summary
Consolidated net loss for the year ended December 31, 2013 was $2.3 million, or $0.21 basic and diluted loss per share of Class A Common Stock, as compared to consolidated net loss of $2.0 million, or $0.20 basic and diluted loss per share of Class A Common Stock, for the year ended December 31, 2012. The components of net loss for the years ended December 31, 2013 and 2012, along with the changes in those components are presented in the table below:
|
(in thousands)
|
||||||||||||
|
2013
|
2012
|
Change
|
||||||||||
|
Net portfolio interest
|
$ | 8,515 | $ | 3,803 | $ | 4,712 | ||||||
|
Interest expense on junior subordinated notes
|
(995 | ) | (1,049 | ) | 54 | |||||||
|
Losses on MBS and Eurodollar futures
|
(9,325 | ) | (3,067 | ) | (6,258 | ) | ||||||
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Net portfolio deficiency
|
(1,805 | ) | (313 | ) | (1,492 | ) | ||||||
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Other income
|
7,176 | 4,360 | 2,816 | |||||||||
|
Expenses, including income taxes
|
(7,916 | ) | (6,077 | ) | (1,839 | ) | ||||||
|
Net loss
|
(2,545 | ) | (2,030 | ) | (515 | ) | ||||||
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Less: Loss attributable to noncontrolling interests
|
(215 | ) | - | (215 | ) | |||||||
|
Net loss attributable to Bimini Capital Management, Inc.
|
$ | (2,330 | ) | $ | (2,030 | ) | $ | (300 | ) | |||
As described below, “other income” includes gains on fair value adjustments on retained interests in securitizations. The 2013 other income also includes the reversal of approximately $4.7 million of reserves related to MortCo’s obligation to repurchase certain loans it originated prior to its closure in 2007.
GAAP and Non-GAAP Reconciliation
To date, the Company has used derivatives, specifically Eurodollar futures contracts, to hedge the interest rate risk on its repurchase agreements and junior subordinate notes in a rising rate environment. Each Eurodollar contract covers a specific three month period, but the Company typically has many contracts in place at any point in time — usually covering several years in the aggregate. The Company has not elected to designate its derivative holdings for hedge accounting treatment under the Financial Accounting Standards Board, (the “FASB”), Accounting Standards Codification, (“ASC”), Topic 815,
Derivatives and Hedging
. Changes in fair value of these instruments are presented in a separate line item in the Company’s Consolidated Statements of Operations and not included in interest expense. As such, for financial reporting purposes, interest expense and cost of funds are not impacted by the fluctuation in value of the Eurodollar futures contracts. In the future, the Company may use other derivative instruments to hedge its interest expense and/or elect to designate its derivative holdings for hedge accounting treatment.
For the purpose of computing economic net interest income and ratios relating to cost of funds measures, GAAP interest expense has been adjusted to reflect the realized gains or losses on specific Eurodollar contracts that pertain to each period presented. As of December 31, 2013, the Company has Eurodollar futures contracts in place through 2018. Since the Company has taken short positions on these contracts, when interest rates move higher the value of our short position may increase in value. The opposite would be true if interest rates were to decrease. Adjusting our interest expense for the periods presented by the gains on all Eurodollar futures would not accurately reflect our economic interest expense for these periods. For each period presented the Company has combined the effects of the Eurodollar positions in place for the respective period with the actual interest expense incurred on repurchase agreements and junior subordinated notes to reflect total expense for the applicable period. Interest expense, including the effect of Eurodollar futures contracts for the period, is referred to as economic interest expense. Net interest income, when calculated to include the effect of Eurodollar futures contracts for the period, is referred to as economic net interest income.
-46-
However, under ASC 815, because the Company has not elected hedging treatment, the gains or losses on all of the Company’s Eurodollar futures contracts held during the period are reflected in our statements of operations. This presentation includes gains or losses on all contracts in effect during the reporting period — covering the current period as well as future periods.
The Company believes that economic interest expense and economic net interest income provides meaningful information to consider, in addition to the respective amounts prepared in accordance with GAAP. The non-GAAP measures help the Company to evaluate its financial position and performance without the effects of certain transactions and GAAP adjustments that are not necessarily indicative of its current investment portfolio or operations. The realized and unrealized gains or losses presented in the Company’s consolidated statements of operations are not necessarily representative of the total interest rate expense that the Company will ultimately realize. This is because as interest rates move up or down in the future, the gains or losses the Company ultimately realizes, and which will affect the Company’s total interest rate expense in future periods, may differ from the unrealized gains or losses recognized as of the reporting date.
The Company’s presentation of the economic value of its hedging strategy has important limitations. First, other market participants may calculate economic interest expense and economic net interest income differently than the Company calculate them. Second, while the Company believes that the calculation of the economic value of our hedging strategy described above helps to present our financial position and performance, it may be of limited usefulness as an analytical tool. Therefore, the economic value of the Company’s investment strategy should not be viewed in isolation and is not a substitute for interest expense and net interest income computed in accordance with GAAP.
The tables below present a reconciliation of the adjustments to interest expense shown for each period related to our Eurodollar futures, and the income statement line item, gains (losses) on Eurodollar futures, calculated in accordance with GAAP for the years ended December 31, 2013 and 2012 and for each quarter during 2013 and 2012.
|
Gains (Losses) on Eurodollar Futures Contracts - Recognized in Income Statement (GAAP)
|
||||||||||||
|
(in thousands)
|
||||||||||||
|
Junior
|
||||||||||||
|
Repurchase
|
Subordinated
|
|||||||||||
|
Agreements
|
Debt
|
Total
|
||||||||||
|
Three Months Ended
|
||||||||||||
|
December 31, 2013
|
$ | 729 | $ | (38 | ) | $ | 691 | |||||
|
September 30, 2013
|
(2,283 | ) | (167 | ) | (2,450 | ) | ||||||
|
June 30, 2013
|
6,841 | 230 | 7,071 | |||||||||
|
March 31, 2013
|
(481 | ) | 6 | (475 | ) | |||||||
|
December 31, 2012
|
(5 | ) | 2 | (3 | ) | |||||||
|
September 30, 2012
|
(100 | ) | (238 | ) | (338 | ) | ||||||
|
June 30, 2012
|
(31 | ) | (232 | ) | (263 | ) | ||||||
|
March 31, 2012
|
(100 | ) | (62 | ) | (162 | ) | ||||||
|
Years Ended
|
||||||||||||
|
December 31, 2013
|
$ | 4,806 | $ | 31 | $ | 4,837 | ||||||
|
December 31, 2012
|
(236 | ) | (530 | ) | (766 | ) | ||||||
-47-
|
Gains (Losses) on Eurodollar Futures Contracts - Attributed to Current Period (Non-GAAP)
|
||||||||||||
|
(in thousands)
|
||||||||||||
|
Junior
|
||||||||||||
|
Repurchase
|
Subordinated
|
|||||||||||
|
Agreements
|
Debt
|
Total
|
||||||||||
|
Three Months Ended
|
||||||||||||
|
December 31, 2013
|
$ | (153 | ) | $ | (94 | ) | $ | (247 | ) | |||
|
September 30, 2013
|
(121 | ) | (79 | ) | (200 | ) | ||||||
|
June 30, 2013
|
(79 | ) | (105 | ) | (184 | ) | ||||||
|
March 31, 2013
|
(121 | ) | (101 | ) | (222 | ) | ||||||
|
December 31, 2012
|
(96 | ) | (86 | ) | (182 | ) | ||||||
|
September 30, 2012
|
(23 | ) | (56 | ) | (79 | ) | ||||||
|
June 30, 2012
|
5 | (89 | ) | (84 | ) | |||||||
|
March 31, 2012
|
9 | (89 | ) | (80 | ) | |||||||
|
Years Ended
|
||||||||||||
|
December 31, 2013
|
$ | (474 | ) | $ | (379 | ) | $ | (853 | ) | |||
|
December 31, 2012
|
(105 | ) | (320 | ) | (425 | ) | ||||||
|
Gains (Losses) on Eurodollar Futures Contracts - Attributed to Future Periods (Non-GAAP)
|
||||||||||||
|
(in thousands)
|
||||||||||||
|
Junior
|
||||||||||||
|
Repurchase
|
Subordinated
|
|||||||||||
|
Agreements
|
Debt
|
Total
|
||||||||||
|
Three Months Ended
|
||||||||||||
|
December 31, 2013
|
$ | 882 | $ | 56 | $ | 938 | ||||||
|
September 30, 2013
|
(2,162 | ) | (88 | ) | (2,250 | ) | ||||||
|
June 30, 2013
|
6,920 | 335 | 7,255 | |||||||||
|
March 31, 2013
|
(360 | ) | 107 | (253 | ) | |||||||
|
December 31, 2012
|
91 | 88 | 179 | |||||||||
|
September 30, 2012
|
(77 | ) | (182 | ) | (259 | ) | ||||||
|
June 30, 2012
|
(36 | ) | (143 | ) | (179 | ) | ||||||
|
March 31, 2012
|
(109 | ) | 27 | (82 | ) | |||||||
|
Years Ended
|
||||||||||||
|
December 31, 2013
|
$ | 5,280 | $ | 410 | $ | 5,690 | ||||||
|
December 31, 2012
|
(131 | ) | (210 | ) | (341 | ) | ||||||
-48-
|
Economic Net Portfolio Interest Income
|
||||||||||||||||||||||||
|
(in thousands)
|
||||||||||||||||||||||||
|
Interest Expense on Repurchase Agreements
|
Net Portfolio
|
|||||||||||||||||||||||
|
Effect of
|
Interest Income
|
|||||||||||||||||||||||
|
Interest
|
GAAP
|
Non-GAAP
|
Economic
|
GAAP
|
Economic
|
|||||||||||||||||||
|
Income
|
Basis
|
Hedges
|
Basis
|
Basis
|
Basis
|
|||||||||||||||||||
|
Three Months Ended
|
||||||||||||||||||||||||
|
December 31, 2013
|
$ | 3,021 | $ | 343 | $ | 153 | $ | 496 | $ | 2,678 | $ | 2,525 | ||||||||||||
|
September 30, 2013
|
2,767 | 329 | 121 | 450 | 2,438 | 2,317 | ||||||||||||||||||
|
June 30, 2013
|
2,479 | 361 | 79 | 440 | 2,118 | 2,039 | ||||||||||||||||||
|
March 31, 2013
|
1,525 | 247 | 121 | 368 | 1,278 | 1,157 | ||||||||||||||||||
|
December 31, 2012
|
751 | 151 | 96 | 247 | 600 | 504 | ||||||||||||||||||
|
September 30, 2012
|
1,164 | 104 | 23 | 127 | 1,060 | 1,037 | ||||||||||||||||||
|
June 30, 2012
|
1,084 | 108 | (5 | ) | 103 | 976 | 981 | |||||||||||||||||
|
March 31, 2012
|
1,238 | 73 | (9 | ) | 64 | 1,165 | 1,174 | |||||||||||||||||
|
Years Ended
|
||||||||||||||||||||||||
|
December 31, 2013
|
$ | 9,792 | $ | 1,280 | $ | 474 | $ | 1,754 | $ | 8,512 | $ | 8,038 | ||||||||||||
|
December 31, 2012
|
4,237 | 436 | 105 | 541 | 3,801 | 3,696 | ||||||||||||||||||
|
Economic Net Interest Income
|
||||||||||||||||||||||||||||
|
(in thousands)
|
||||||||||||||||||||||||||||
|
Net Portfolio
|
Interest Expense on Junior Subordinated Notes
|
|||||||||||||||||||||||||||
|
Interest Income
|
Effect of
|
Net Interest Income
|
||||||||||||||||||||||||||
|
GAAP
|
Economic
|
GAAP
|
Non-GAAP
|
Economic
|
GAAP
|
Economic
|
||||||||||||||||||||||
|
Basis
|
Basis
|
Basis
|
Hedges
|
Basis
|
Basis
|
Basis
|
||||||||||||||||||||||
|
Three Months Ended
|
||||||||||||||||||||||||||||
|
December 31, 2013
|
$ | 2,678 | $ | 2,525 | $ | 249 | $ | (94 | ) | $ | 343 | $ | 2,429 | $ | 2,182 | |||||||||||||
|
September 30, 2013
|
2,438 | $ | 2,317 | 251 | (79 | ) | 330 | 2,187 | 1,987 | |||||||||||||||||||
|
June 30, 2013
|
2,118 | 2,039 | 248 | (105 | ) | 353 | 1,870 | 1,686 | ||||||||||||||||||||
|
March 31, 2013
|
1,278 | 1,157 | 247 | (101 | ) | 348 | 1,031 | 809 | ||||||||||||||||||||
|
December 31, 2012
|
600 | 504 | 257 | (86 | ) | 343 | 343 | 161 | ||||||||||||||||||||
|
September 30, 2012
|
1,060 | 1,037 | 266 | (56 | ) | 322 | 794 | 715 | ||||||||||||||||||||
|
June 30, 2012
|
976 | 981 | 261 | (89 | ) | 350 | 715 | 631 | ||||||||||||||||||||
|
March 31, 2012
|
1,165 | 1,174 | 265 | (89 | ) | 354 | 900 | 820 | ||||||||||||||||||||
|
Years Ended
|
||||||||||||||||||||||||||||
|
December 31, 2013
|
$ | 8,512 | $ | 8,038 | $ | 995 | $ | (379 | ) | $ | 1,374 | $ | 7,517 | $ | 6,664 | |||||||||||||
|
December 31, 2012
|
3,801 | 3,696 | 1,049 | (320 | ) | 1,369 | 2,752 | 2,327 | ||||||||||||||||||||
Net Portfolio Income
During the year ended December 31, 2013, the Company generated $8.5 million of net portfolio interest income, consisting of $9.8 million of interest income from MBS assets offset by $1.3 million of interest expense on repurchase liabilities. For the comparable period ended December 31, 2012, the Company generated $3.8 million of net portfolio interest income, consisting of $4.2 million of interest income from MBS assets offset by $0.4 million of interest expense on repurchase liabilities. The increases in interest income and interest expense for the year ended December 31, 2013 primarily reflects the deployment of Orchid’s IPO proceeds in MBS on a leveraged basis.
The Company’s economic interest expense on repurchase liabilities for the years ended December 31, 2013 and 2012 was $1.8 million and $0.5 million, respectively, resulting in $8.0 million and $3.7 million of economic net portfolio interest income, respectively.
During the year ended December 31, 2013, Bimini Capital generated $0.4 million of net portfolio interest income, consisting of $0.6 million of interest income from MBS assets offset by $0.2 million of interest expense on repurchase liabilities. For the comparable period ended December 31, 2012, Bimini Capital generated $1.4 million of net portfolio interest income, consisting of $1.5 million of interest income from MBS assets offset by $0.2 million of interest expense on repurchase liabilities.
Bimini’s economic interest expense on repurchase liabilities for the years ended December 31, 2013 and 2012 was $0.5 million and $0.2 million, respectively, resulting in $0.1 million and $1.4 million of economic net portfolio interest income, respectively.
-49-
The tables below provide consolidated information on our portfolio average balances, interest income, yield on assets, average repurchase agreement balances, interest expense, cost of funds, net interest income and net interest rate spread for each quarter in 2013 and 2012 and for the years ended December 31, 2013 and 2012 on both a GAAP and economic basis.
|
(dollars in thousands)
|
||||||||||||||||||||||||||||||||
|
Average
|
Yield on
|
|||||||||||||||||||||||||||||||
|
MBS
|
Average
|
Average
|
Interest Expense
|
Average Cost of Funds
|
||||||||||||||||||||||||||||
|
Securities
|
Interest
|
MBS
|
Repurchase
|
GAAP
|
Economic
|
GAAP
|
Economic
|
|||||||||||||||||||||||||
|
Held
(1)
|
Income
(2)
|
Securities
|
Agreements
(1)
|
Basis
|
Basis
(3)
|
Basis
|
Basis
(4)
|
|||||||||||||||||||||||||
|
Three Months Ended
|
||||||||||||||||||||||||||||||||
|
December 31, 2013
|
$ | 380,341 | $ | 3,021 | 3.18 | % | $ | 345,068 | $ | 343 | 496 | 0.40 | % | 0.57 | % | |||||||||||||||||
|
September 30, 2013
|
375,950 | 2,767 | 2.94 | % | 341,468 | 329 | 450 | 0.39 | % | 0.53 | % | |||||||||||||||||||||
|
June 30, 2013
|
392,429 | 2,479 | 2.53 | % | 350,714 | 361 | 440 | 0.41 | % | 0.50 | % | |||||||||||||||||||||
|
March 31, 2013
|
286,226 | 1,525 | 2.13 | % | 252,763 | 247 | 368 | 0.39 | % | 0.58 | % | |||||||||||||||||||||
|
December 31, 2012
|
146,947 | 751 | 2.04 | % | 128,708 | 151 | 247 | 0.47 | % | 0.77 | % | |||||||||||||||||||||
|
September 30, 2012
|
118,820 | 1,164 | 3.92 | % | 99,473 | 104 | 127 | 0.42 | % | 0.51 | % | |||||||||||||||||||||
|
June 30, 2012
|
116,753 | 1,084 | 3.71 | % | 96,778 | 108 | 103 | 0.45 | % | 0.42 | % | |||||||||||||||||||||
|
March 31, 2012
|
106,374 | 1,238 | 4.66 | % | 85,629 | 73 | 64 | 0.34 | % | 0.30 | % | |||||||||||||||||||||
|
Years Ended
|
||||||||||||||||||||||||||||||||
|
December 31, 2013
|
$ | 358,737 | $ | 9,792 | 2.73 | % | $ | 322,503 | $ | 1,280 | 1,754 | 0.40 | % | 0.54 | % | |||||||||||||||||
|
December 31, 2012
|
122,224 | 4,237 | 3.47 | % | 102,647 | 436 | 541 | 0.42 | % | 0.53 | % | |||||||||||||||||||||
|
(dollars in thousands)
|
||||||||||||||||
|
Net Portfolio
|
Net Portfolio
|
|||||||||||||||
|
Interest Income
|
Interest Spread
|
|||||||||||||||
|
GAAP
|
Economic
|
GAAP
|
Economic
|
|||||||||||||
|
Basis
|
Basis
(3)
|
Basis
|
Basis
(5)
|
|||||||||||||
|
Three Months Ended
|
||||||||||||||||
|
December 31, 2013
|
$ | 2,678 | $ | 2,525 | 2.78 | % | 2.61 | % | ||||||||
|
September 30, 2013
|
2,438 | 2,317 | 2.55 | % | 2.41 | % | ||||||||||
|
June 30, 2013
|
2,118 | 2,039 | 2.12 | % | 2.03 | % | ||||||||||
|
March 31, 2013
|
1,278 | 1,157 | 1.74 | % | 1.55 | % | ||||||||||
|
December 31, 2012
|
600 | 504 | 1.57 | % | 1.27 | % | ||||||||||
|
September 30, 2012
|
1,060 | 1,037 | 3.50 | % | 3.41 | % | ||||||||||
|
June 30, 2012
|
976 | 981 | 3.26 | % | 3.29 | % | ||||||||||
|
March 31, 2012
|
1,165 | 1,174 | 4.32 | % | 4.36 | % | ||||||||||
|
Years Ended
|
||||||||||||||||
|
December 31, 2013
|
$ | 8,512 | $ | 8,038 | 2.33 | % | 2.19 | % | ||||||||
|
December 31, 2012
|
3,801 | 3,696 | 3.05 | % | 2.94 | % | ||||||||||
|
(1)
|
Portfolio yields and costs of borrowings presented in the table above and the tables on pages 51 and 52 are calculated based on the average balances of the underlying investment portfolio/repurchase agreement balances and are annualized for the quarterly periods presented. Average balances for quarterly periods are calculated using two data points, the beginning and ending balances.
|
|
(2)
|
Interest income presented in the table above includes only interest earned on the Company’s MBS investments and excludes interest earned on cash balances and excludes the impact of discounts or premiums on MBS investments, as discounts or premiums are not amortized under the fair value option. Interest income and net portfolio interest income may not agree with the information presented in the consolidated statements of operations.
|
|
(3)
|
Economic interest expense and economic net interest income
presented in the table above and the tables on page 52 includes the effect of Eurodollar futures contract hedges for only the period presented.
|
|
(4)
|
Represents interest cost of our borrowings and the effect on Eurodollar futures contracts hedges attributed to the period related to hedging activities Divided by Average MBS Held.
|
|
(5)
|
Economic Net Interest Spread is calculated by subtracting Average Economic Cost of Funds from Yield on Average MBS Securities.
|
-50-
Interest Income and Average Earning Asset Yield
Interest income for the Company was $9.8 million for the year ended December 31, 2013 and $4.2 million for year ended December 31, 2012. Average MBS holdings were $358.7 million and $122.2 million for the years ended December 31, 2013 and 2012, respectively. The $5.6 million increase in interest income was due to a $236.5 million increase in average MBS holdings, which was partially offset by a 74 basis point decrease in yields. The increase in average MBS during the year ended December 31, 2013 reflects the deployment of Orchid’s IPO proceeds on a leveraged basis.
Interest income for Bimini Capital was $0.6 million for the years ended December 31, 2013 and $1.5 million for the years ended December 31, 2012. Average MBS holdings were $42.6 million and $47.3 million for the years ended December 31, 2013 and 2012, respectively. The $0.9 million decrease in interest income was due to a combination of a 186 basis point decrease in yields and a $4.7 million decrease in average MBS holdings.
The table below presents the consolidated average portfolio size, income and yields of our respective sub-portfolios, consisting of structured MBS and pass-through MBS (“PT MBS”).
|
(dollars in thousands)
|
||||||||||||||||||||||||||||||||||||
|
Average MBS Held
|
Interest Income
|
Realized Yield on Average MBS
|
||||||||||||||||||||||||||||||||||
|
PT
|
Structured
|
PT
|
Structured
|
PT
|
Structured
|
|||||||||||||||||||||||||||||||
|
MBS
|
MBS
|
Total
|
MBS
|
MBS
|
Total
|
MBS
|
MBS
|
Total
|
||||||||||||||||||||||||||||
|
Three Months Ended
|
||||||||||||||||||||||||||||||||||||
|
December 31, 2013
|
$ | 355,868 | $ | 24,473 | $ | 380,341 | $ | 3,011 | $ | 10 | $ | 3,021 | 3.38 | % | 0.16 | % | 3.18 | % | ||||||||||||||||||
|
September 30, 2013
|
352,252 | 23,698 | 375,950 | 2,703 | 64 | 2,767 | 3.07 | % | 1.07 | % | 2.94 | % | ||||||||||||||||||||||||
|
June 30, 2013
|
366,862 | 25,567 | 392,429 | 2,805 | (326 | ) | 2,479 | 3.06 | % | (5.09 | )% | 2.53 | % | |||||||||||||||||||||||
|
March 31, 2013
|
268,024 | 18,202 | 286,226 | 1,713 | (188 | ) | 1,525 | 2.56 | % | (4.13 | )% | 2.13 | % | |||||||||||||||||||||||
|
December 31, 2012
|
135,892 | 11,055 | 146,947 | 929 | (178 | ) | 751 | 2.73 | % | (6.48 | )% | 2.04 | % | |||||||||||||||||||||||
|
September 30, 2012
|
105,190 | 13,630 | 118,820 | 696 | 468 | 1,164 | 2.65 | % | 13.75 | % | 3.92 | % | ||||||||||||||||||||||||
|
June 30, 2012
|
101,991 | 14,762 | 116,753 | 863 | 221 | 1,084 | 3.38 | % | 6.00 | % | 3.71 | % | ||||||||||||||||||||||||
|
March 31, 2012
|
90,026 | 16,348 | 106,374 | 774 | 464 | 1,238 | 3.44 | % | 11.35 | % | 4.66 | % | ||||||||||||||||||||||||
|
Years Ended
|
||||||||||||||||||||||||||||||||||||
|
December 31, 2013
|
$ | 335,751 | $ | 22,986 | $ | 358,737 | $ | 10,232 | $ | (440 | ) | $ | 9,792 | 3.05 | % | (1.91 | )% | 2.73 | % | |||||||||||||||||
|
December 31, 2012
|
108,275 | 13,949 | 122,224 | 3,262 | 975 | 4,237 | 3.01 | % | 6.99 | % | 3.47 | % | ||||||||||||||||||||||||
Interest Expense on Repurchase Agreements and the Cost of Funds
Average outstanding repurchase agreements for the Company were $322.5 million and $102.6 million, generating interest expense of $1.3 million and $0.4 million for the years ended December 31, 2013 and 2012, respectively. Our average cost of funds was 0.40% and 0.42% for years ended December 31, 2013 and 2012, respectively. There was an 2 basis point decrease in the average cost of funds and a $219.9 million increase in average outstanding repurchase agreements during the year ended December 31, 2013 as compared to the year ended December 31, 2012. The increase in average outstanding repurchase agreements reflects the investment of Orchid’s IPO proceeds on a leveraged basis.
The Company’s economic interest expense was $1.8 million and $0.5 million for the years ended December 31, 2013 and 2012, respectively. There was a 1 basis point increase in the average economic cost of funds to 0.54% for the year ended December 31, 2013 from 0.53% for the previous year.
Average outstanding repurchase agreements for Bimini Capital were $38.0 million and total interest expense was $0.2 million for the year ended December 31, 2013. During the year ended December 31, 2012, average outstanding repurchase agreements for Bimini Capital were $38.8 million and total interest expense was $0.2 million. Bimini Capital’s average cost of funds was 0.40% and 0.41% for years ended December 31, 2013 and 2012, respectively.
-51-
Bimini Capital’s economic interest expense was $0.5 million and $0.2 million for the years ended December 31, 2013 and 2012, respectively. There was a 88 basis point increase in the average economic cost of funds to 1.29% for the year ended December 31, 2013 from 0.41% for the previous year.
Since all of the our repurchase agreements are short-term, changes in market rates directly affect our interest expense. The Company’s average cost of funds calculated on a GAAP basis was 23 basis points above average one-month LIBOR and 4 basis points above average six-month LIBOR for the quarter ended December 31, 2013. The Company’s average economic cost of funds was 40 basis points above average one-month LIBOR and 21 basis points above average six-month LIBOR for the quarter ended December 31, 2013. The average term to maturity of the outstanding repurchase agreements increased from 14 days at December 31, 2012 to 15 days at December 31, 2013.
The table below presents the consolidated average outstanding balance under all repurchase agreements, interest expense and average economic cost of funds, and average one-month and six-month LIBOR rates for each quarter in 2013 and 2012 and for the years ended December 31, 2013 and 2012 on both a GAAP and economic basis.
|
(dollars in thousands)
|
||||||||||||||||||||
|
Average
|
||||||||||||||||||||
|
Balance of
|
Interest Expense
|
Average Cost of Funds
|
||||||||||||||||||
|
Repurchase
|
GAAP
|
Economic
|
GAAP
|
Economic
|
||||||||||||||||
|
Agreements
|
Basis
|
Basis
|
Basis
|
Basis
|
||||||||||||||||
|
Three Months Ended
|
||||||||||||||||||||
|
December 31, 2013
|
$ | 345,068 | $ | 343 | $ | 496 | 0.40 | % | 0.57 | % | ||||||||||
|
September 30, 2013
|
341,468 | 329 | 450 | 0.39 | % | 0.53 | % | |||||||||||||
|
June 30, 2013
|
350,714 | 361 | 440 | 0.41 | % | 0.50 | % | |||||||||||||
|
March 31, 2013
|
252,763 | 247 | 368 | 0.39 | % | 0.58 | % | |||||||||||||
|
December 31, 2012
|
128,708 | 151 | 247 | 0.47 | % | 0.77 | % | |||||||||||||
|
September 30, 2012
|
99,473 | 104 | 127 | 0.42 | % | 0.51 | % | |||||||||||||
|
June 30, 2012
|
96,778 | 108 | 103 | 0.45 | % | 0.42 | % | |||||||||||||
|
March 31, 2012
|
85,629 | 73 | 64 | 0.34 | % | 0.30 | % | |||||||||||||
|
Years Ended
|
||||||||||||||||||||
|
December 31, 2013
|
$ | 322,503 | $ | 1,280 | 1,754 | 0.40 | % | 0.54 | % | |||||||||||
|
December 31, 2012
|
102,647 | 436 | 541 | 0.42 | % | 0.53 | % | |||||||||||||
|
Average GAAP Cost of Funds
|
Average Economic Cost of Funds
|
|||||||||||||||||||||||
|
Relative to Average
|
Relative to Average
|
|||||||||||||||||||||||
|
Average LIBOR
|
One-Month
|
Six-Month
|
One-Month
|
Six-Month
|
||||||||||||||||||||
|
One-Month
|
Six-Month
|
LIBOR
|
LIBOR
|
LIBOR
|
LIBOR
|
|||||||||||||||||||
|
Three Months Ended
|
||||||||||||||||||||||||
|
December 31, 2013
|
0.17 | % | 0.36 | % | 0.23 | % | 0.04 | % | 0.40 | % | 0.21 | % | ||||||||||||
|
September 30, 2013
|
0.19 | % | 0.40 | % | 0.20 | % | (0.01 | )% | 0.34 | % | 0.13 | % | ||||||||||||
|
June 30, 2013
|
0.20 | % | 0.43 | % | 0.21 | % | (0.02 | )% | 0.30 | % | 0.07 | % | ||||||||||||
|
March 31, 2013
|
0.21 | % | 0.48 | % | 0.18 | % | (0.09 | )% | 0.37 | % | 0.10 | % | ||||||||||||
|
December 31, 2012
|
0.22 | % | 0.59 | % | 0.25 | % | (0.12 | )% | 0.55 | % | 0.18 | % | ||||||||||||
|
September 30, 2012
|
0.23 | % | 0.70 | % | 0.19 | % | (0.28 | )% | 0.28 | % | (0.19 | )% | ||||||||||||
|
June 30, 2012
|
0.24 | % | 0.74 | % | 0.21 | % | (0.29 | )% | 0.18 | % | (0.32 | )% | ||||||||||||
|
March 31, 2012
|
0.26 | % | 0.76 | % | 0.08 | % | (0.42 | )% | 0.04 | % | (0.46 | )% | ||||||||||||
|
Years Ended
|
||||||||||||||||||||||||
|
December 31, 2013
|
0.19 | % | 0.42 | % | 0.21 | % | (0.02 | )% | 0.35 | % | 0.12 | % | ||||||||||||
|
December 31, 2012
|
0.24 | % | 0.70 | % | 0.18 | % | (0.28 | )% | 0.29 | % | (0.17 | )% | ||||||||||||
-52-
Junior Subordinated Notes
Interest expense on the Company’s junior subordinated debt securities was $1.00 million for the year ended December 31, 2013 compared to $1.05 million for the comparable period in 2012. The average rate of interest paid for the year ended December 31, 2013 was 3.78% compared to 3.97% for the comparable period in 2012. Interest expense decreased $0.05 million for the year ended December 31, 2013 when compared to the same period in 2012 due to the 19 basis point decrease in interest rates.
The junior subordinated debt securities pay interest at a floating rate. The rate is adjusted quarterly and set at a spread of 3.50% over the prevailing three-month LIBOR rate on the determination date. As of December 31, 2013, the interest rate was 3.74%.
Gains or Losses and Other Income
The table below presents the Company’s gains or losses for the years ended December 31, 2013 and 2012.
|
(in thousands)
|
||||||||||||
|
2013
|
2012
|
Change
|
||||||||||
|
Realized losses on sales of MBS
|
$ | (1,249 | ) | $ | (246 | ) | $ | (1,003 | ) | |||
|
Unrealized losses on MBS
|
(12,914 | ) | (2,055 | ) | (10,859 | ) | ||||||
|
Total losses on MBS
|
(14,163 | ) | (2,301 | ) | (11,862 | ) | ||||||
|
Gains (losses) on Eurodollar futures
|
4,837 | (766 | ) | 5,603 | ||||||||
|
Gains on retained interests
|
2,470 | 4,323 | (1,853 | ) | ||||||||
|
Gains on release of loan loss reserves
|
4,737 | - | 4,737 | |||||||||
During the year ended December 31, 2013, the Company received proceeds of $430.7 million from the sales of MBS compared to $185.1 million and for the year ended December 31, 2012. We do not expect to sell assets on a frequent basis, but may from time to time sell existing assets to acquire new assets, which our management believes might have higher risk-adjusted returns or to manage our balance sheet as part of our asset/liability management strategy.
As more fully described below under “Outlook” in this Management Discussion and Analysis, interest rates over the course of 2013 were volatile and moved higher during the last seven months of 2013. As a result of these movements, our PT MBS portfolio experienced significant realized and unrealized losses, as their prices generally decline as interest rates rise. Our Eurodollar funding hedges, whereby we are short futures contracts, moved up in value as interest rates rose. Finally, our structured securities, such as interest only and inverse interest only securities, increased in price as interest rates rose. The declines in value of the PT MBS exceeded the gains of the structured securities.
The retained interests in securitizations represent the residual net interest spread remaining after payments on the notes issued through the securitization. Fluctuations in value of retained interests are primarily driven by projections of future interest rates (the forward LIBOR curve), the discount rate used to determine the present value of the residual cash flows and prepayment and loss estimates on the underlying mortgage loans. During the year ended December 31, 2013, the Company recorded gains on retained interests of $2.5 million compared to gains of $4.3 million and for the year ended December 31, 2012.
During the year ended December 31, 2013, the Company evaluated its position related to MortCo’s obligation to repurchase loans originated through its former loan origination business. The Company determined that, due to the expiration of the statute of limitations for the counterparties to pursue claims related to these loans, it was unlikely to sustain losses at the level that was previously accrued. Therefore, the $4.7 million balance of this liability at December 31, 2012 was reversed and included in “other income” in the Company’s 2013 consolidated statement of operations.
-53-
Operating Expenses
For the year ended December 31, 2013, the Company’s total operating expenses were approximately $9.2 million compared to approximately $6.1 million for the year ended December 31, 2012.
|
(in thousands)
|
||||||||||||
|
2013
|
2012
|
Change
|
||||||||||
|
Compensation and benefits
|
$ | 2,298 | $ | 1,476 | $ | 822 | ||||||
|
Legal fees
|
850 | 356 | 494 | |||||||||
|
Accounting, auditing and other professional fees
|
892 | 2,420 | (1,528 | ) | ||||||||
|
Directors’ fees and liability insurance
|
836 | 528 | 308 | |||||||||
|
Direct REIT operating expenses
|
441 | 547 | (106 | ) | ||||||||
|
Other G&A expenses
|
843 | 749 | 94 | |||||||||
|
Orchid Island Capital, Inc. IPO expenses
(1)
|
3,042 | - | 3,042 | |||||||||
| $ | 9,202 | $ | 6,076 | $ | 3,126 | |||||||
|
(1)
|
Consists of underwriting, legal and other costs associated with the Orchid IPO, which was completed on February 20, 2013. Bimini Capital and Bimini Advisors acted as the sponsor of the offering by paying all such expenses.
|
Financial Condition:
Mortgage-Backed Securities
As of December 31, 2013, the Company’s MBS portfolio consisted of $389.3 million of agency or government MBS at fair value and had a weighted average coupon of 3.72%. During the year ended December 31, 2013, the Company received principal repayments of $39.9 million compared to $18.7 million for the comparable period ended December 31, 2012. The average prepayment speeds for the quarters ended December 31, 2013 and 2012 were 11.0% and 28.0%, respectively.
The following table presents the constant prepayment rate (“CPR”) experienced on the Company’s structured and PT MBS sub-portfolios, on an annualized basis, for the quarterly periods presented. Assets that were not owned for the entire period have been excluded from the calculation. The exclusion of certain assets during periods of high trading activity can create a very high, and often volatile, reliance on a small sample of underlying loans.
|
Structured
|
||||||||||||
|
PT MBS
|
MBS
|
Total
|
||||||||||
|
Three Months Ended
|
Portfolio (%)
|
Portfolio (%)
|
Portfolio (%)
|
|||||||||
|
December 31, 2013
|
5.1 | 19.2 | 11.0 | |||||||||
|
September 30, 2013
|
7.1 | 30.1 | 15.1 | |||||||||
|
June 30, 2013
|
7.2 | 33.0 | 19.5 | |||||||||
|
March 31, 2013
|
12.7 | 32.6 | 23.9 | |||||||||
|
December 31, 2012
|
5.0 | 36.8 | 28.0 | |||||||||
|
September 30, 2012
|
8.8 | 34.9 | 26.7 | |||||||||
|
June 30, 2012
|
1.1 | 36.4 | 34.7 | |||||||||
|
March 31, 2012
|
6.5 | 28.9 | 23.0 | |||||||||
-54-
The following tables summarize certain characteristics of the Company’s PT MBS and structured MBS as of December 31, 2013 and 2012:
|
(in thousands)
|
|||||||||
|
Weighted
|
Weighted
|
||||||||
|
Percentage
|
Average
|
Average
|
Weighted
|
Weighted
|
|||||
|
of
|
Weighted
|
Maturity
|
Coupon
|
Average
|
Average
|
||||
|
Fair
|
Entire
|
Average
|
in
|
Longest
|
Reset in
|
Lifetime
|
Periodic
|
||
|
Asset Category
|
Value
|
Portfolio
|
Coupon
|
Months
|
Maturity
|
Months
|
Cap
|
Cap
|
|
|
December 31, 2013
|
|||||||||
|
Adjustable Rate MBS
|
$
|
5,334
|
1.4%
|
3.92%
|
247
|
1-Sep-35
|
3.77
|
10.13%
|
2.00%
|
|
Fixed Rate MBS
|
267,481
|
68.7%
|
3.99%
|
314
|
1-Dec-43
|
NA
|
NA
|
NA
|
|
|
Hybrid Adjustable Rate MBS
|
90,487
|
23.2%
|
2.61%
|
349
|
1-Aug-43
|
108.23
|
7.61%
|
1.99%
|
|
|
Total PT MBS
|
363,302
|
93.3%
|
3.65%
|
322
|
1-Dec-43
|
102.41
|
7.75%
|
1.99%
|
|
|
Interest-Only Securities
|
20,443
|
5.3%
|
4.36%
|
262
|
25-Nov-40
|
NA
|
NA
|
NA
|
|
|
Inverse Interest-Only Securities
|
5,596
|
1.4%
|
5.91%
|
316
|
15-Dec-40
|
NA
|
6.07%
|
NA
|
|
|
Total Structured MBS
|
26,039
|
6.7%
|
4.69%
|
274
|
15-Dec-40
|
NA
|
NA
|
NA
|
|
|
Total Mortgage Assets
|
$
|
389,341
|
100.0%
|
3.72%
|
318
|
1-Dec-43
|
NA
|
NA
|
NA
|
|
December 31, 2012
|
|||||||||
|
Adjustable Rate MBS
|
$
|
20,857
|
12.4%
|
3.27%
|
267
|
1-Sep-35
|
5.91
|
9.73%
|
2.00%
|
|
Fixed Rate MBS
|
49,846
|
29.6%
|
3.21%
|
180
|
1-Dec-40
|
NA
|
NA
|
NA
|
|
|
Hybrid Adjustable Rate MBS
|
87,693
|
52.2%
|
2.75%
|
356
|
1-Nov-42
|
99.58
|
7.75%
|
1.98%
|
|
|
Total PT MBS
|
158,396
|
94.2%
|
2.96%
|
289
|
1-Nov-42
|
81.58
|
8.13%
|
1.98%
|
|
|
Interest-Only Securities
|
5,244
|
3.1%
|
3.79%
|
213
|
25-Dec-39
|
NA
|
NA
|
NA
|
|
|
Inverse Interest-Only Securities
|
4,515
|
2.7%
|
6.10%
|
301
|
25-Nov-40
|
NA
|
6.31%
|
NA
|
|
|
Total Structured MBS
|
9,759
|
5.8%
|
4.86%
|
254
|
25-Nov-40
|
NA
|
NA
|
NA
|
|
|
Total Mortgage Assets
|
$
|
168,155
|
100.0%
|
3.07%
|
287
|
1-Nov-42
|
NA
|
NA
|
NA
|
|
(in thousands)
|
||||||||||||||||
|
December 31, 2013
|
December 31, 2012
|
|||||||||||||||
|
Percentage of
|
Percentage of
|
|||||||||||||||
|
Agency
|
Fair Value
|
Entire Portfolio
|
Fair Value
|
Entire Portfolio
|
||||||||||||
|
Fannie Mae
|
$ | 236,660 | 60.78 | % | $ | 163,116 | 97.00 | % | ||||||||
|
Freddie Mac
|
133,689 | 34.34 | % | 3,396 | 2.02 | % | ||||||||||
|
Ginnie Mae
|
18,992 | 4.88 | % | 1,643 | 0.98 | % | ||||||||||
|
Total Portfolio
|
$ | 389,341 | 100.00 | % | $ | 168,155 | 100.00 | % | ||||||||
|
December 31, 2013
|
December 31, 2012
|
|||||||
|
Weighted Average Pass Through Purchase Price
|
$ | 105.64 | $ | 105.74 | ||||
|
Weighted Average Structured Purchase Price
|
$ | 7.52 | $ | 6.00 | ||||
|
Weighted Average Pass Through Current Price
|
$ | 102.71 | $ | 105.89 | ||||
|
Weighted Average Structured Current Price
|
$ | 12.15 | $ | 5.84 | ||||
|
Effective Duration
(1)
|
4.116 | 0.703 | ||||||
(1)
Effective duration of 4.116 indicates that an interest rate increase of 1.0% would be expected to cause a 4.116% decrease in the value of the MBS in the Company’s investment portfolio at December 31, 2013. An effective duration of 0.703 indicates that an interest rate increase of 1.0% would be expected to cause a 0.703% decrease in the value of the MBS in the Company’s investment portfolio at December 31, 2012. These figures include the structured securities in the portfolio but not the effect of the Company’s funding cost hedges.
-55-
The following table presents a summary of the Company’s portfolio assets acquired during the years ended December 31, 2013 and 2012.
|
(in thousands)
|
||||||||||||||||||||||||
|
2013
|
2012
|
|||||||||||||||||||||||
|
Total Cost
|
Average Price
|
Weighted Average Yield
|
Total Cost
|
Average Price
|
Weighted Average Yield
|
|||||||||||||||||||
|
PT MBS
|
$ | 661,363 | 104.98 | 2.39 | % | $ | 276,086 | 104.92 | 1.61 | % | ||||||||||||||
|
Structured MBS
|
44,679 | 15.44 | 1.69 | % | 7,036 | 8.07 | 13.12 | % | ||||||||||||||||
The Company’s portfolio of PT MBS is typically comprised of adjustable-rate MBS, fixed-rate MBS and hybrid adjustable-rate MBS. The Company generally seeks to acquire low duration assets that offer high levels of protection from mortgage prepayments provided they are reasonably priced by the market. Although the duration of an individual asset can change as a result of changes in interest rates, the Company strives to maintain a hedged PT MBS portfolio with an effective duration of less than 2.0. The stated contractual final maturity of the mortgage loans underlying the Company’s portfolio of PT MBS generally ranges up to 30 years. However, the effect of prepayments of the underlying mortgage loans tends to shorten the resulting cash flows from the Company’s investments substantially. Prepayments occur for various reasons, including refinancing of underlying mortgages and loan payoffs in connection with home sales.
The duration of the Company’s IO and IIO portfolio will vary greatly depending on the structural features of the securities. While prepayment activity will always affect the cash flows associated with the securities, the interest only nature of IO’s may cause their durations to become extremely negative when prepayments are high, and less negative when prepayments are low. Prepayments affect the durations of IIO’s similarly, but the floating rate nature of the coupon of IIOs (which is inversely related to the level of one month LIBOR) cause their price movements - and model duration - to be affected by changes in both prepayments and one month LIBOR - both current and anticipated levels. As a result, the duration of IIO securities will also vary greatly.
Prepayments on the loans underlying the Company’s MBS can alter the timing of the cash flows from the underlying loans to the Company. As a result, the Company gauges the interest rate sensitivity of its assets by measuring their effective duration. While modified duration measures the price sensitivity of a bond to movements in interest rates, effective duration captures both the movement in interest rates and the fact that cash flows to a mortgage related security are altered when interest rates move. Accordingly, when the contract interest rate on a mortgage loan is substantially above prevailing interest rates in the market, the effective duration of securities collateralized by such loans can be quite low because of expected prepayments.
The Company faces the risk that the market value of its PT MBS assets will increase or decrease at different rates than that of its structured MBS or liabilities, including its hedging instruments. Accordingly, the Company assesses its interest rate risk by estimating the duration of its assets and the duration of its liabilities. The Company generally calculates duration using various third party models. However, empirical results and various third party models may produce different duration numbers for the same securities.
-56-
The following sensitivity analysis shows the estimated impact on the fair value of our interest rate-sensitive investments and hedge positions as of December 31, 2013, assuming rates instantaneously fall 100 basis points (“bps”), rise 100 bps and rise 200 bps, adjusted to reflect the impact of convexity, which is the measure of the sensitivity of our hedge positions and Agency MBS’ effective duration to movements in interest rates.
|
(in thousands)
|
||||||||||||||||||||||||||||
|
Fair
|
$ Change in Fair Value
|
% Change in Fair Value
|
||||||||||||||||||||||||||
|
MBS Portfolio
|
Value
|
-100BPS
|
+100BPS
|
+200BPS
|
-100BPS
|
+100BPS
|
+200BPS
|
|||||||||||||||||||||
|
Adjustable Rate MBS
|
$ | 5,334 | $ | 11 | $ | (42 | ) | $ | (83 | ) | 0.20 | % | (0.78 | )% | (1.56 | )% | ||||||||||||
|
Hybrid Adjustable Rate MBS
|
90,487 | 4,281 | (5,855 | ) | (11,932 | ) | 4.73 | % | (6.47 | )% | (13.19 | )% | ||||||||||||||||
|
Fixed Rate MBS
|
267,481 | 11,306 | (16,708 | ) | (33,629 | ) | 4.23 | % | (6.25 | )% | (12.57 | )% | ||||||||||||||||
|
Interest-Only MBS
|
20,443 | (6,018 | ) | 3,973 | 5,244 | (29.44 | )% | 19.44 | % | 25.65 | % | |||||||||||||||||
|
Inverse Interest-Only MBS
|
5,596 | 205 | (507 | ) | (1,381 | ) | 3.67 | % | (9.06 | )% | (24.67 | )% | ||||||||||||||||
|
Total MBS Portfolio
|
$ | 389,341 | $ | 9,785 | $ | (19,139 | ) | $ | (41,781 | ) | 2.51 | % | (4.92 | )% | (10.73 | )% | ||||||||||||
|
(in thousands)
|
||||||||||||||||||||||||||||
|
Notional
|
$ Change in Fair Value
|
% Change in Fair Value
|
||||||||||||||||||||||||||
|
Amount
(1)
|
-100BPS
|
+100BPS
|
+200BPS
|
-
100BPS
|
+100BPS
|
+200BPS
|
||||||||||||||||||||||
|
Repurchase Agreement Hedges
|
$ | 4,375,000 | $ | (8,763 | ) | $ | 11,328 | $ | 22,655 | (0.80 | )% | 1.02 | % | 2.04 | % | |||||||||||||
|
Junior Subordinated Debt Hedges
|
234,000 | (387 | ) | 585 | 1,170 | (0.67 | )% | 1.01 | % | 2.01 | % | |||||||||||||||||
|
Total Portfolio
|
4,609,000 | (9,150 | ) | 11,913 | 23,825 | (0.69 | )% | 1.01 | % | 2.02 | % | |||||||||||||||||
(1) Represents the total cumulative contract/notional amount of Eurodollar futures contracts outstanding.
In addition to changes in interest rates, other factors impact the fair value of the Company’s interest rate-sensitive investments and hedging instruments, such as the shape of the yield curve, market expectations as to future interest rate changes and other market conditions. Accordingly, in the event of changes in actual interest rates, the change in the fair value of the Company’s assets would likely differ from that shown above and such difference might be material and adverse to the Company’s stockholders.
Repurchase Agreements
As of December 31, 2013, the Company had established borrowing facilities in the repurchase agreement market with twelve counterparties which we believe provide borrowing capacity in excess of our needs. None of these lenders are affiliated with the Company. As of December 31, 2013, we had funding in place with eleven of the twelve counterparties. These borrowings are secured by the Company’s MBS and bear interest rates that are based on a spread to LIBOR.
As of December 31, 2013, the Company had obligations outstanding under the repurchase agreements of approximately $353.4 million with a net weighted average borrowing cost of 0.39%. The remaining maturity of the Company’s outstanding repurchase agreement obligations ranged from 3 to 70 days, with a weighted average maturity of 15 days. Securing the repurchase agreement obligation as of December 31, 2013, are MBS with an estimated fair value, including accrued interest, of $373.4 million and a weighted average maturity of 322 months. Through March 12, 2014, the Company has been able to maintain its repurchase facilities with comparable terms to those that existed at December 31, 2013 with maturities through May 27, 2014.
-57-
The table below presents information about our period-end and average repurchase agreement obligations for each quarter in 2013 and 2012.
|
(dollars in thousands)
|
||||||||||||||||
|
Difference Between Ending
|
||||||||||||||||
|
Ending Balance
|
Average Balance
|
Repurchase Agreements and
|
||||||||||||||
|
of Repurchase
|
of Repurchase
|
Average Repurchase Agreements
|
||||||||||||||
|
Three Months Ended
|
Agreements
|
Agreements
|
Amount
|
Percent
|
||||||||||||
|
December 31, 2013
|
$ | 353,396 | $ | 345,068 | $ | 8,328 | 2.41 | % | ||||||||
|
September 30, 2013
|
336,739 | 341,468 | (4,729 | ) | (1.38 | )% | ||||||||||
|
June 30, 2013
|
346,197 | 350,714 | (4,517 | ) | (1.29 | )% | ||||||||||
|
March 31, 2013
|
355,231 | 252,763 | 102,468 | 40.54 | % (a) | |||||||||||
|
December 31, 2012
|
150,294 | 128,708 | 21,586 | 16.77 | % (b) | |||||||||||
|
September 30, 2012
|
107,121 | 99,473 | 7,648 | 7.69 | % | |||||||||||
|
June 30, 2012
|
91,825 | 96,778 | (4,953 | ) | (5.12 | )% (c) | ||||||||||
|
March 31, 2012
|
101,730 | 85,629 | 16,101 | 18.80 | % (d) | |||||||||||
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(a)
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The higher ending balance relative to the average balance during the quarter ended March 31, 2013 reflects the deployment of the proceeds of Orchid’s IPO. During the quarter ended March 31, 2013, the Company’s investment in PT MBS increased $219.3 million.
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(b)
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The higher ending balance relative to the average balance reflects a shift in the portfolio allocation towards PT MBS that the Company funds through the repo market. During the quarter ended December 31, 2012, the Company’s investment in PT MBS increased $45.0 million.
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(c)
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The lower ending balance relative to the average balance reflects a shift in the portfolio allocation towards assets that were not funded through the repo market. During the quarter ended June 30, 2012, the Company’s investment in PT MBS decreased $10.0 million.
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(d)
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The higher ending balance relative to the average balance reflects a shift in the portfolio allocation towards PT MBS that the Company funds through the repo market. During the quarter ended March 31, 2012, the Company’s investment in PT MBS increased $33.9 million.
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Liquidity and Capital Resources
Liquidity is our ability to turn non-cash assets into cash, purchase additional investments, repay principal and interest on borrowings, fund overhead, fulfill margin calls and pay dividends. Our principal immediate sources of liquidity include cash balances, unencumbered assets and borrowings under repurchase agreements. Our borrowing capacity will vary over time as the market value of our interest earning assets varies. Our balance sheet also generates liquidity on an on-going basis through payments of principal and interest we receive on our MBS portfolio, and from cash flows received from the retained interests and the collection of servicing advances. Management believes that we currently have sufficient liquidity and capital resources available for (a) the acquisition of additional investments consistent with the size and nature of our existing MBS portfolio, (b) the repayments on borrowings and (c) the payment of overhead and operating expenses.
Because our PT MBS portfolio consists entirely of government and agency securities, we do not anticipate having difficulty converting our assets to cash should our liquidity needs ever exceed our immediately available sources of cash. Our structured MBS portfolio also consists entirely of governmental agency securities, although they typically do not trade with comparable bid / ask spreads as PT MBS. However, we anticipate that we would be able to liquidate such securities readily, even in distressed markets, although we would likely do so at prices below where such securities could be sold in a more stable market. To enhance our liquidity even further, we may pledge a portion of our structured MBS as part of a repurchase agreement funding but retain the cash in lieu of acquiring additional assets. In this way, we can, at a modest cost, retain higher levels of cash on hand and decrease the likelihood we will have to sell assets in a distressed market in order to raise cash.
The Company’s master repurchase agreements have no stated expiration, but can be terminated at any time at the Company’s option or at the option of the counterparty. However, once a definitive repurchase agreement under a master repurchase agreement has been entered into, it generally may not be terminated by either party. A negotiated termination can occur, but may involve a fee to be paid by the party seeking to terminate the repurchase agreement transaction.
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Under our repurchase agreement funding arrangements, we are required to post margin at the initiation of the borrowing. The margin posted represents the haircut, which is a percentage of the market value of the collateral pledged. To the extent the market value of the asset collateralizing the financing transaction declines, the market value of our posted margin will be insufficient and we will be required to post additional collateral. Conversely, if the market value of the asset pledged increases in value, we would be over collateralized and we would be entitled to have excess margin returned to us by the counterparty. Our lenders typically value our pledged securities daily to ensure the adequacy of our margin and make margin calls as needed, as do we. Typically, but not always, the parties agree to a minimum threshold amount for margin calls so as to avoid the need for nuisance margin calls on a daily basis. At December 31, 2013, the weighted average haircut our repurchase agreement counterparties required us to hold was approximately 5.4% of the estimated fair value of the underlying collateral.
As discussed above, the Company invests a portion of its capital in structured MBS. We do not fund the purchase of these investments in the repurchase market but instead purchase them directly, thus reducing – but not eliminating - the Company’s reliance on access to repurchase agreement funding. The leverage inherent in the structured securities replaces the leverage obtained by acquiring PT securities and funding them in the repurchase market. This structured MBS strategy has been a core element of the Company’s overall investment strategy since 2008. However, we have and may continue to pledge a portion of our structured MBS in order to raise our cash levels, but will not pledge these securities in order to acquire additional assets.
In an effort to increase assets under management and generate additional revenues needed to cover operating costs, Bimini Capital and Bimini Advisors acted as the sponsor of the initial public offering of common stock for Orchid, which closed on February 20, 2013. Bimini Advisors paid all of the underwriting, legal and other costs incurred in connection with the offering. Bimini Advisors did so in anticipation of receiving fees from Orchid for acting as its manager as well as the ability to share certain overhead expenses. To the extent Orchid is able to increase its capital base over time, Bimini Advisors will benefit via increased management fees. The independent members of the Orchid Board of Directors have the ability to terminate the management agreement and thus end the ability of Bimini Advisors to collect management fees and share overhead costs. However, if Orchid were to terminate the management agreement without cause, Orchid would be required to pay a termination fee to Bimini Advisors.
In the coming periods, we expect to continue to finance our activities in a manner that is consistent with our operations via repurchase agreements. As of December 31, 2013, the Company had cash and cash equivalents of $12.0 million. We generated cash flows of $48.8 million from principal and interest payments on our MBS portfolio and $3.3 million from retained interests and had average repurchase agreements outstanding of $322.5 million during the year ended December 31, 2013. The table below summarizes the effect on our liquidity and cash flows from certain future contractual obligations as of December 31, 2013.
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(in thousands)
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||||||||||||||||||||
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Obligations Maturing
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Within One Year
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One to Three Years
|
Three to Five Years
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More than Five Years
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Total
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Repurchase agreements
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$ | 353,396 | $ | - | $ | - | $ | - | $ | 353,396 | ||||||||||
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Interest expense on repurchase agreements
(1)
|
152 | - | - | - | 152 | |||||||||||||||
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Junior subordinated notes
(2)
|
- | - | - | 26,000 | 26,000 | |||||||||||||||
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Interest expense on junior subordinated notes
(1)
|
1,030 | 1,976 | 1,973 | 16,741 | 21,720 | |||||||||||||||
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Totals
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$ | 354,578 | $ | 1,976 | $ | 1,973 | $ | 42,741 | $ | 401,268 | ||||||||||
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|
(1)
Interest expense on repurchase agreements and junior subordinated notes are based on current interest rates as of December 31, 2013 and the remaining term of liabilities existing at that date.
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|
|
(2)
The Company holds a common equity interest in Bimini Capital Trust II. The amount presented represents the net cash outlay of the Company.
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Outlook
Bimini Capital
As disclosed in previous years, MortCo incurred significant losses in the operation of a mortgage loan origination business. Bimini Capital materially downsized its investment portfolio to raise cash to fund the MortCo operations, leaving Bimini Capital with a significantly smaller capital base. This smaller capital base makes it difficult to generate sufficient net interest income to cover expenses. Since MortCo terminated its operations in 2007, Bimini Capital has taken several significant steps designed to increase its probability of generating profits going forward, including a re-structuring of the portfolio, reducing expenses, retiring debt, and settling various litigation matters. In general, Bimini Capital still needed to increase its capital base, and/or create alternative sources of revenues, to ensure the generation of profits over the long-term. However, primarily because of litigation arising out of MortCo’s prior mortgage business, raising capital directly into Bimini Capital was not possible.
Orchid Island Capital Inc.
On October 22, 2012, Orchid filed a Form S-11 Registration Statement with the Securities and Exchange Commission related to a proposed initial public offering of its common equity. The Registration Statement was declared effective on February 14, 2013 and Orchid closed on its initial public offering of common stock on February 20, 2013. Bimini Capital and Bimini Advisors acted as the sponsor of the offering by paying for the underwriting, legal and other costs associated with the offering. Included in other professional fees for the year ended December 31, 2012 are approximately $0.2 million of expenses related to this public offering. During the year ended December 31, 2013, the Company incurred additional costs related to this offering of approximately $3.0 million. On an economic basis, Bimini Capital and Bimini Advisors incurred these costs in anticipation of receiving fees from Orchid for acting as its manager as well as the ability to share certain overhead expenses. The economic benefit of the management fees and the expense reduction will be recorded to the extent they are realized over time. Although Bimini Capital believes it will ultimately recover the expenses associated with the Orchid public offering, the time frame for this recovery will extend into future periods and Bimini Capital’s stockholders’ equity and profitability will be negatively impacted in the near term. To the extent Orchid is able to increase its capital base over time, Bimini Capital will benefit via increased management fees. The independent Board of Directors of Orchid has the ability to terminate the management agreement and thus end the ability of the Bimini Advisors and Bimini Capital to collect management fees and share overhead costs. However, if Orchid were to terminate the management agreement without cause, Orchid would be required to pay a termination fee to Bimini Advisors.
Tax Matters
For the year ended December 31, 2013, Bimini Capital generated a REIT taxable loss. As more fully described in footnote 12 to the accompanying consolidated financial statements, REIT taxable income or loss generated by qualifying REIT activities is computed in accordance with the Internal Revenue Code, which is different from the Company’s financial statement income or loss as computed in accordance with GAAP. In addition, Bimini Capital had REIT tax net operating loss carryovers of approximately $17.9 million as of December 31, 2013 which are immediately available to offset future REIT taxable income.
The Company has used the term “REIT taxable income” throughout this document as being the amount available for distribution to its stockholders before any NOLs are applied, and before any distributions. In arriving at income that could be subjected to taxation at the REIT entity level for a given year, dividends paid in the current year and any NOL’s carried-over from prior periods are deducted (in that order) from current period income first. Net operating losses expire 20 years from the year they are incurred. Since Bimini Capital currently has NOL’s from prior periods available to offset income in 2014 and in future periods, Bimini Capital has the option, but not the obligation, to apply such NOL’s against REIT taxable income. As a result, Bimini Capital could have income in 2014 and in future years, but not make distributions to stockholders. This would occur if Bimini Capital had sufficient NOL’s available to entirely offset the REIT income earned in a given year and chose to apply such NOL’s. Bimini Capital could also apply available NOL’s against a portion of future period earnings and reduce the distributions to stockholders. Bimini Capital is unlikely to declare and pay dividends to stockholders until existing NOL’s have been consumed.
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Regulatory Developments with Respect to Fannie Mae and Freddie Mac and the Dodd-Frank Act
In response to the credit market disruption and the deteriorating financial conditions of Fannie Mae and Freddie Mac, Congress and the U.S. Treasury undertook a series of actions that culminated with putting Fannie Mae and Freddie Mac in conservatorship in September 2008. The Federal Housing Finance Agency (“FHFA”) now operates Fannie Mae and Freddie Mac as conservator, in an effort to stabilize the entities. The FHFA also noted that during the conservatorship period, it would work to enact new regulations for minimum capital standards, prudent safety and soundness standards and portfolio limits of Fannie Mae and Freddie Mac.
Although the U.S. Government has committed significant resources to Fannie Mae and Freddie Mac, Agency MBS guaranteed by either Fannie Mae or Freddie Mac are not backed by the full faith and credit of the United States. Moreover, the Secretary of the U.S. Treasury noted that the guarantee structure of Fannie Mae and Freddie Mac requires examination and that changes in the structures of the entities were necessary to reduce risk to the financial system. Such changes may involve an explicit U.S. Government backing of Fannie Mae and Freddie Mac Agency MBS or the express elimination of any implied U.S. Government guarantee and, therefore, creation of credit risk with respect to Fannie Mae and Freddie Mac Agency MBS. Additionally, on February 11, 2011, the U.S. Treasury issued a White Paper titled “Reforming America’s Housing Finance Market” that lays out, among other things, proposals to limit or potentially wind down the role that Fannie Mae and Freddie Mac play in the mortgage market.
On October 4, 2012, the FHFA released a white paper entitled
Building a New Infrastructure for the Secondary Mortgage Market
(the “FHFA White Paper”). This release follows up on the FHFA’s February 21, 2012
Strategic Plan for Enterprise Conservatorships
, which set forth three goals for the next phase of the Fannie Mae and Freddie Mac conservatorships. These three goals are to (i) build a new infrastructure for the secondary mortgage market, (ii) gradually contract Fannie Mae and Freddie Mac’s presence in the marketplace while simplifying and shrinking their operations, and (iii) maintain foreclosure prevention activities and credit availability for new and refinanced mortgages. The FHFA White Paper proposes a new infrastructure for Fannie Mae and Freddie Mac that has two basic goals.
The first such goal is to replace the current, outdated infrastructures of Fannie Mae and Freddie Mac with a common, more efficient infrastructure that aligns the standards and practices of the two entities, beginning with core functions performed by both entities such as issuance, master servicing, bond administration, collateral management and data integration. The second goal is to establish an operating framework for Fannie Mae and Freddie Mac that is consistent with the progress of housing finance reform and encourages and accommodates the increased participation of private capital in assuming credit risk associated with the secondary mortgage market. The FHFA recognizes that there are a number of impediments to their goals which may or may not be surmountable, such as the absence of any significant secondary mortgage market mechanisms beyond Fannie Mae, Freddie Mac and Ginnie Mae, and that their proposals are in the formative stages. As a result, it is unclear if the proposals will be enacted. If such proposals are enacted, it is unclear how closely what is enacted will resemble the proposals from the FHFA White Paper or what the effects of the enactment will be. As the economy has slowly recovered home prices have increased off the low levels seen in the aftermath of the financial crisis and a significant portion of the shadow inventory of homes that resulted from foreclosures are slowly being worked off. The combination of recovering home prices, attractive financing levels – albeit with still tight lending standards - and decreasing liquidations of home via foreclosures have resulted in an acceleration in refinancing activity. See “Risk Factors — Risks Related to Our Business — We cannot predict the impact, if any, on our earnings or cash available for distribution to our stockholders of the FHFA’s proposed revisions to Fannie Mae’s, Freddie Mac’s and Ginnie Mae’s existing infrastructures to align the standards and practices of the three entities.”
On June 25, 2013, Senators Bob Corker (R-TN) and Mark Warner (D-VA), with Senators Mike Johanns (R-NE), Jon Tester (D-MT), Dean Heller (R-NV), Heidi Heitkamp (D-ND), Jerry Moran (R-KS) and Kay Hagan (D-NC), formally introduced the Housing Finance Reform and Taxpayer Protection Act of 2013 (the “Corker-Warner Bill”) into the U.S. Senate. While the current draft of the Corker-Warner Bill will likely undergo significant changes as it is debated, it is expected to serve as a basis of discussion for congressional efforts to reform Fannie Mae and Freddie Mac.
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As currently drafted, the Corker-Warner Bill has three key provisions:
i. the establishment of the Federal Mortgage Insurance Corporation (the “FMIC”);
ii. the creation of a Mortgage Insurance Fund (the “Fund”); and
iii. the wind-down of Fannie Mae and Freddie Mac.
The FMIC would be a government guarantor modeled after the Federal Deposit Insurance Corporation (the “FDIC”) in that it would collect insurance premiums and maintain a deposit fund on all outstanding obligations. Every mortgage-backed security issued through the FMIC would have a private investor bearing the first risk of loss and holding at least $0.10 in equity capital for every dollar of risk. This private capital buffer would serve to protect taxpayers from the risk of default on the mortgages underlying securities issued by the FMIC. Thus, the ultimate purpose of the FMIC would be to bring in credit investors to bear the risk of default while providing liquidity, transparency and access to mortgage credit for the housing finance system.
The FHFA would be abolished after the establishment of the FMIC, and all current responsibilities of the FHFA, as well as its resources, would be transferred to the FMIC. In particular, the Corker-Warner Bill specifies that the FMIC would maintain a database of uniform loan-level information on eligible mortgages, develop standard uniform securitization agreements and oversee the common securitization platform currently being developed by the FHFA.
In the event losses due to default on underlying mortgages exceed the first position losses of private credit investors in securities issued by the FMIC, the FMIC would cover such losses out of the Fund. The Corker-Warner Bill specifies that the FMIC would endeavor to attain a reserve balance of 1.25% of the aggregate outstanding principal balance of covered securities within five years of the establishment of the FMIC and 2.50% of such amount within ten years of the establishment of the FMIC. The Fund would be paid with insurance premiums, akin to user fees, paid by private investors with various reporting and transparency requirements.
As currently proposed, the Corker-Warner Bill would revoke the charters of Fannie Mae and Freddie Mac upon the establishment of the FMIC. Fannie Mae and Freddie Mac would wind down as expeditiously as possible while maximizing returns to taxpayers as their assets are sold off.
On July 11, 2013, members of the U.S. House of Representatives introduced the Protecting American Taxpayers and Homeowners Act (“PATH”), a broad financing reform bill that serves as a counterpart to the Corker-Warner Bill. PATH would also revoke the charters of Fannie Mae and Freddie Mac and remove barriers to private investment. However, PATH would maintain the FHFA and give it oversight over a new non-government, not-for-profit National Mortgage Market Utility whose mission would be to develop best practices standards for the private origination, servicing, pooling and securitizing of mortgages and operate a publicly accessible securitization outlet to match loan originators with investors. Additional provisions of PATH include the reduction in size and scope of the Federal Housing Administration (“FHA”), targeting its mission specifically to first-time borrowers and low- and moderate- income borrowers except in periods of significant credit contraction.
There is no way to know if either proposal will become law or, should one of the proposals become law, if or how the enacted law will differ from the current draft of the bill. It is unclear how this proposal would impact housing finance, and what impact, if any, it would have on mortgage REITs.
The effect of the actions taken and to be taken by the U.S. Treasury, Congress or FHFA remains uncertain. Given the public reaction to the substantial funds made available to Fannie Mae and Freddie Mac, future funding for both is likely to face increased scrutiny. New and recently enacted laws, regulations and programs related to Fannie Mae and Freddie Mac may adversely affect the pricing, supply, liquidity and value of Agency MBS and otherwise materially harm our business and operations. See “Risk Factors — Risks Related to Our Business — Separate legislation has been introduced in both houses of the U.S. Congress, which would, among other things, revoke the charters of Fannie Mae and Freddie Mac, which could materially adversely affect us if these laws were enacted.”
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The Dodd-Frank Act provides for new regulations on financial institutions and creates new supervisory and advisory bodies, including the new Consumer Financial Protection Bureau. The Dodd-Frank Act tasks many agencies with issuing a variety of new regulations, including rules related to mortgage origination and servicing, securitization and derivatives. Because a significant number of regulations under the Dodd-Frank Act have either not yet been proposed or not yet been adopted in final form, it is not possible for us to predict how the Dodd-Frank Act will impact our business. See “Risk Factors — Risks Related to Our Business — Actions of the U.S. Government for the purpose of stabilizing the financial markets may adversely affect our business, financial condition and results of operations and our ability to pay distributions to our stockholders.”
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Interest Rates
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The Federal Reserve has taken a number of steps over the last few years to lower both short and long-term interest rates. In August 2011, the Federal Reserve announced that it expected to maintain the Federal Funds Rate at a low level at least through mid-2013, and on January 25, 2012 it extended that outlook through late 2014. Additionally, on September 21, 2011, the Federal Reserve announced the extension of the maturities of its U.S. Treasury securities portfolio by selling approximately $400 billion in short-term U.S. Treasury securities and purchasing an equivalent amount of longer-term U.S. Treasury securities. This program, known as “Operation Twist,” lasted through December 2012. The goal of Operation Twist was to lower the yields on longer-term U.S. Treasury securities, which the Federal Reserve believed would lower interest rates tied to such yields, such as mortgage rates and interest rates on commercial loans.
In September 2012, the Federal Reserve announced an open-ended program to expand its holdings of long-term securities by purchasing an additional $40 billion of Agency MBS per month until key economic indicators, such as the unemployment rate, showed signs of improvement. This program, known as “QE3”, when combined with other programs to extend the average maturity of the Federal Reserve’s holdings of securities and reinvest principal payments from the Federal Reserve’s holdings of agency debt and Agency MBS into Agency MBS, was expected to increase the Federal Reserve’s holdings of long-term securities by $85 billion each month. The Federal Reserve also announced that it would keep the target range for the Federal Funds Rate between zero and 0.25% through at least mid-2015, which was six months longer than previously expected.
The Federal Reserve provided further guidance to the market in December 2012 by stating that it intended to keep the Federal Funds Rate close to zero while the unemployment rate is above 6.5% and as long as inflation does not rise above 2.5%. In December 2012, the Federal Reserve also announced that it would initially begin buying $45 billion of long-term Treasury bonds each month and noted that such amount may increase in the future. This bond purchase program replaced Operation Twist.
The Federal Reserve Open Market Committee (the “FOMC”) meeting minutes released on April 10, 2013 revealed that the FOMC had begun considering when the Federal Reserve should begin tapering the pace of Agency MBS purchases set in September 2012. The FOMC meeting minutes released on May 22, 2013 announced that the Federal Reserve was considering beginning to taper such purchase as early as June 2013. In minutes released on June 25, 2013, the FOMC stated that the Federal Reserve would begin to scale back Agency MBS purchases later in 2013 and that such purchases would cease entirely when the unemployment rate reached 7%. On October 30, 2013, the FOMC announced that it would continue reinvesting principal payments from its holdings of agency debt and Agency MBS into Agency MBS and U.S. Treasury securities at the current pace indefinitely. The FOMC believes that these actions should maintain downward pressure on longer-term interest rates, support mortgage markets, and help to make broader financial conditions more accommodative, which in turn should promote a stronger economic recovery and help control the rate of inflation. The October 30, 2013 announcement provided no additional guidance as to when tapering might begin.
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Although historically correlated with movements in the Federal Funds Rate, European inter-bank lending rates, specifically LIBOR, are independently affected by the fiscal and budgetary problems of the member countries of the European Union. In recent years, the European Central Bank, International Monetary Fund and member countries have provided emergency funding mechanisms to support members facing the inability to raise new debt at acceptable levels (such as Greece, Ireland, Portugal and Spain). To the extent this crisis persists or worsens, LIBOR may increase substantially.
Although, long-term interest rates are currently at historically low levels, they are still high relative to short-term interest rates. We believe that the relationship between long and short-term interest rates will remain relatively unchanged so long as the U.S. economic recovery and inflation rates remain tepid. If the economic recovery were to strengthen or inflation rates increase, the Federal Reserve may decide to abandon its current low-interest rate policies and/or increase interest rates. Although an increase in the Federal Funds Rate would most likely result in an increase in LIBOR, other European-specific factors, such as a credit disruption in the European inter-bank credit market, could cause an increase in LIBOR independent of movements in the Federal Funds Rate.
At its December 18, 2013 meeting, the FOMC indicated that it saw improvement in economic activity and labor market conditions. As a result, the FOMC announced that, beginning in January 2014, it would reduce its monthly purchases of Agency MBS from $40 billion to $35 billion and U.S. Treasury securities from $45 billion to $40 billion. The FOMC further stated that it would continue reinvesting principal payments from its holdings of these securities in Agency MBS and rolling over maturing Treasury bonds at auction. On January 29, 2014, the FOMC announced additional $5 billion reductions to its monthly purchases of both Agency MBS and Treasury bonds to take effect in February 2014. The FOMC expects even the lower level of purchases to maintain downward pressure on longer-term interest rates, support mortgage markets and make broader financial conditions more accommodative, which it believes should promote economic recovery and control inflation.
Prepayment Rates, Refinancings and Loan Modification Programs
As a result of the Federal Reserve’s interest rate policy and global economic conditions, prevailing interest rates, especially mortgage interest rates, are at historically low levels. Generally, lower mortgage interest rates leads to increased refinancings and, consequently, prepayments on mortgages and MBS.
In addition to the proposed reforms and/or changes of Fannie Mae and Freddie Mac suggested by the U.S. Treasury and the FHFA, Congress has to date introduced three legislative proposals that seek to provide changes to the current housing finance infrastructure (as described above). However, as a result of the continuing depressed levels of home prices (due in part to the supply of new and existing homes for sale, plus the “shadow” inventory of homes expected to be on the market as a result of future foreclosures) and the tighter underwriting standards of lenders, refinancing activity has yet to react to prevailing interest rate incentives available to borrowers as market participants expected.
To further stimulate the level of refinancing activity, the Obama administration has instituted programs to assist borrowers struggling with their mortgage payments or unable to refinance. For example, the government has expanded the HARP program, which is a program whereby eligible borrowers who owe more money on their mortgage loans than the value of their homes (commonly known as being “underwater” on a mortgage loan) can receive assistance refinancing their mortgage loans by loosening the eligibility requirements for refinancing. On April 11, 2013, the FHFA extended the HARP program by two years to December 31, 2015. In response to the expanded HARP program, Fannie Mae and Freddie Mac have announced guidelines for compliance with the expanded program.
Current programs such as the Home Affordable Modification Program and the Principal Reduction Alternative are designed to assist borrowers in modifying their mortgage loans.
Effect on Us
Regulatory developments, movements in interest rates and prepayment rates as well as loan modification programs affect us in many ways, including the following:
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Effects on our Assets
A change in or elimination of the guarantee structure of Agency MBS may increase our costs (if, for example, guarantee fees increase) or require us to change our investment strategy altogether. For example, the elimination of the guarantee structure of Agency MBS may cause us to change our investment strategy to focus on non-Agency MBS, which in turn would require us to significantly increase our monitoring of the credit risks of our investments in addition to interest rate and prepayment risks.
Lower long-term interest rates can affect the value of our Agency MBS in a number of ways. If prepayment rates are relatively low (due, in part, to the refinancing problems described above), lower long-term interest rates can increase the value of higher-coupon Agency MBS. This is because investors typically place a premium on assets with yields that are higher than market yields. Although lower long-term interest rates may increase asset values in our portfolio, we may not be able to invest new funds in similarly-yielding assets.
If prepayment levels increase, the value of our Agency MBS affected by such prepayments may decline. This is because a principal prepayment accelerates the effective term of an Agency MBS, which would shorten the period during which an investor would receive above-market returns (assuming the yield on the prepaid asset is higher than market yields). Also, prepayment proceeds may not be able to be reinvested in similar-yielding assets. Agency MBS backed by mortgages with high interest rates are more susceptible to prepayment risk because holders of those mortgages are most likely to refinance to a lower rate. IOs and IIOs, however, may be the types of Agency MBS most sensitive to increased prepayment rates. Because the holder of an IO or IIO receives no principal payments, the values of IOs and IIOs are entirely dependent on the existence of a principal balance on the underlying mortgages. If the principal balance is eliminated due to prepayment, IOs and IIOs essentially become worthless. Although increased prepayment rates can negatively affect the value of our IOs and IIOs, they have the opposite effect on POs. Because POs act like zero-coupon bonds, meaning they are purchased at a discount to their par value and have an effective interest rate based on the discount and the term of the underlying loan, an increase in prepayment rates would reduce the effective term of our POs and accelerate the yields earned on those assets, which would increase our net income.
Because we base our investment decisions on risk management principles rather than anticipated movements in interest rates, in a volatile interest rate environment we may allocate more capital to structured Agency MBS with shorter durations, such as short-term fixed and floating rate CMOs. We believe these securities have a lower sensitivity to changes in long-term interest rates than other asset classes. We may always attempt to mitigate our exposure to changes in long-term interest rates by investing in IOs and IIOs, which typically have different sensitivities to changes in long-term interest rates than pass-through Agency MBS, particularly pass-through Agency MBS backed by fixed-rate mortgages.
We do not believe our investment portfolio will be materially affected by loan modification programs because Agency MBS backed by loans that would qualify for such programs (e.g. seriously delinquent loans) will be purchased by Fannie Mae and Freddie Mac at their par value prior to the implementation of such programs. However, if Fannie Mae and Freddie Mac were to modify or end their repurchase programs or if the U.S. Government modified its loan modification programs to modify non-delinquent mortgage loans, our investment portfolio could be negatively impacted.
Effects on our borrowing costs
We leverage our pass-through Agency MBS portfolio and a portion of our structured Agency MBS with principal balances through the use of short-term repurchase agreement transactions. The interest rates on our debt are determined by market levels of both the Federal Funds Rate and LIBOR. An increase in the U.S. Federal Funds Rate or LIBOR would increase our borrowing costs, which could affect our interest rate spread if there is no corresponding increase in the interest we earn on our assets. This would be most prevalent with respect to our Agency MBS backed by fixed rate mortgage loans because the interest rate on a fixed-rate mortgage loan does not change even though market rates may change.
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In order to protect our net interest margin against increases in short-term interest rates, we may enter into interest rate swaps, which effectively convert our floating-rate repurchase agreement debt to fixed-rate debt.
Summary
The relatively large spread between short and long-term interest rates has positively affected our net interest margin. However, changes in prepayment rates could negatively affect our net interest margin and the value of our assets. Furthermore, increases in the Federal Funds Rate and LIBOR could significant increase our financing costs, which could lower our net interest margin.
Critical Accounting Policies
Management’s discussion and analysis of financial condition and results of operations is based on the amounts reported in our financial statements. These financial statements are prepared in accordance with GAAP. The Company’s significant accounting policies are described in Note 1 to the Company’s accompanying Consolidated Financial Statements.
GAAP requires the Company’s management to make complex and subjective decisions and assessments. The Company’s most critical accounting policies involve decisions and assessments which could significantly affect reported assets and liabilities, as well as reported revenues and expenses. The Company believes that all of the decisions and assessments upon which its financial statements are based were reasonable at the time made based upon information available to it at that time.
Mortgage-Backed Securities
Our investments in MBS are accounted for under the fair value option. We acquire our MBS for the purpose of generating long-term returns, and not for the short-term investment of idle capital. Changes in the fair value of securities accounted for under the fair value option are reflected as part of our net income or loss in our statement of operations, as opposed to a component of other comprehensive income in our statement of stockholder’s equity if they were instead reclassified as available-for-sale securities. We elected to account for all of our MBS under the fair value option in order to reflect changes in the fair value of our MBS in our statement of operations, which we believe more appropriately reflects the results of our operations for a particular reporting period. GAAP requires the use of a three-level valuation hierarchy to disclose the classification of fair value measurements used for determining the fair value of our MBS. These levels include:
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Level 1 valuations, where the valuation is based on quoted market prices for identical assets or liabilities traded in active markets (which include exchanges and over-the-counter markets with sufficient volume),
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Level 2 valuations, where the valuation is based on quoted market prices for similar instruments traded in active markets, quoted prices for identical or similar instruments in markets that are not active and model-based valuation techniques for which all significant assumptions are observable in the market, and
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·
|
Level 3 valuations, where the valuation is generated from model-based techniques that use significant assumptions not observable in the market, but observable based on Company- specific data. These unobservable assumptions reflect the Company’s own estimates for assumptions that market participants would use in pricing the asset or liability. Valuation techniques typically include option pricing models, discounted cash flow models and similar techniques, but may also include the use of market prices of assets or liabilities that are not directly comparable to the subject asset or liability.
|
Our MBS are valued using Level 2 valuations, and such valuations currently are determined based on the average of third-party broker quotes and/or by independent pricing sources when available. Because the price estimates may vary, management must make certain judgments and assumptions about the appropriate price to use to calculate the fair values. Alternatively, the Company could opt to have the value of all of our positions in MBS determined by either an independent third-party or do so internally. In managing our portfolio, the Company employs the following four-step process at each valuation date to determine the fair value of our MBS.
-66-
|
·
|
First, the Company obtains fair values from subscription-based independent pricing services. These prices are used by both the Company as well as our repurchase agreement counterparty on a daily basis to establish margin requirements for our borrowings.
|
|
·
|
Second, the Company requests non-binding quotes from one to four broker-dealers for each of its MBS in order to validate the values obtained by the pricing service. The Company requests these quotes from broker-dealers that actively trade and make markets in the respective asset class for which the quote is requested.
|
|
·
|
Third, the Company reviews the values obtained by the pricing source and the broker-dealers for consistency across similar assets.
|
|
·
|
Finally, if the data from the pricing services and broker-dealers is not homogenous or if the data obtained is inconsistent with management’s market observations, the Company makes a judgment to determine which price appears the most consistent with observed prices from similar assets and selects that price. To the extent management believes that none of the prices are consistent with observed prices for similar assets, which is typically the case for only an immaterial portion of our portfolio each quarter, the Company may use a third price that is consistent with observed prices for identical or similar assets. In the case of assets that have quoted prices such as Agency MBS backed by fixed-rate mortgages, the Company generally uses the quoted or observed market price. For assets such as Agency MBS backed by ARMs or structured Agency MBS, the Company may determine the price based on the yield or spread that is identical to an observed transaction or a similar asset for which a dealer mark or subscription-based price has been obtained.
|
Management believes its pricing methodology to be consistent with the definition of fair value described in FASB ASC 820,
Fair Value Measurements
.
Derivative Financial Instruments
The Company has entered into Eurodollar futures contracts to manage interest rate risk, facilitate asset/liability strategies and manage other exposures, and it may continue to do so in the future. The Company has elected to not treat any of its derivative financial instruments as hedges. FASB ASC Topic 815,
Derivatives and Hedging
, requires that all derivative instruments be carried at fair value. Changes in fair value are recorded in earnings for each period.
Repurchase Agreements
We finance the acquisition of a portion of our MBS through repurchase transactions under master repurchase agreements. Repurchase transactions are treated as collateralized financing transactions and are carried at their contractual amounts, including accrued interest.
In instances where we acquire Agency MBS through repurchase agreements with the same counterparty from whom the Agency MBS were purchased, we account for the purchase commitment and repurchase agreement on a net basis and record a forward commitment to purchase Agency MBS as a derivative instrument if the transaction does not comply with the criteria in FASB ASC 860,
Transfers and Servicing
, for gross presentation. If the transaction complies with the criteria for gross presentation, we present the assets and the related financing on a gross basis in our statements of financial condition, and the corresponding interest income and interest expense in our statement of operations. Such forward commitments are recorded at fair value with subsequent changes in fair value recognized in income. Additionally, we record the cash portion of our investment in Agency MBS as a mortgage related receivable from the counterparty on our consolidated balance sheet.
-67-
Income Recognition
All of our MBS are either PT MBS or structured MBS, including CMOs, IOs, IIOs or POs. Income on PT MBS, POs and CMOs that contain principal balances is based on the stated interest rate of the security. As a result of accounting for our MBS under the fair value option, premium or discount present at the date of purchase is not amortized. For IOs, IIOs and CMOs that do not contain principal balances, income is accrued based on the carrying value and the effective yield. As cash is received it is first applied to accrued interest and then to reduce the carrying value of the security. At each reporting date, the effective yield is adjusted prospectively from the reporting period based on the new estimate of prepayments, current interest rates and current asset prices. The new effective yield is calculated based on the carrying value at the end of the previous reporting period, the new prepayment estimates and the contractual terms of the security. Changes in fair value of all of our MBS during the period are recorded in earnings and reported as unrealized gains or losses on mortgage-backed securities in the accompanying consolidated statements of operations. For IIO securities, effective yield and income recognition calculations also take into account the index value applicable to the security.
Income Taxes
Bimini Capital and its qualified REIT subsidiary have elected to be taxed as a REIT under the Code. As further described below, MortCo and Bimini Advisors are taxpaying entities for income tax purposes and are taxed separately from Bimini Capital. Bimini Capital will generally not be subject to federal income tax on its REIT taxable income (net of the application of net operating loss carryovers) to the extent that Bimini Capital distributes its REIT taxable income to its stockholders and satisfies the ongoing REIT requirements, including meeting certain asset, income and stock ownership tests. A REIT must generally distribute at least 90% of its REIT taxable income to its stockholders, of which 85% generally must be distributed within the taxable year, in order to avoid the imposition of an excise tax. The remaining balance may be distributed up to the end of the following taxable year, provided the REIT elects to treat such amount as a prior year distribution and meets certain other requirements.
MortCo, Bimini Advisors and their activities are subject to corporate income taxes and the applicable provisions of FASB ASC Topic 740,
Income Taxes
. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax basis. In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. To the extent management believes deferred tax assets will not be fully realized in future periods, a provision is recorded so as to reflect the net portion, if any, of the deferred tax asset management expects to realize.
Capital Expenditures
At December 31, 2013, we had no material commitments for capital expenditures.
Off-Balance Sheet Arrangements
At December 31, 2013, we did not have any off-balance sheet arrangements.
Inflation
Virtually all of our assets and liabilities are interest rate sensitive in nature. As a result, interest rates and other factors influence our performance far more so than does inflation. Changes in interest rates do not necessarily correlate with inflation rates or changes in inflation rates. Our financial statements are prepared in accordance with GAAP and our distributions will be determined by our Board of Directors consistent with our obligation to distribute to our stockholders at least 90% of our REIT taxable income on an annual basis in order to maintain our REIT qualification; in each case, our activities and balance sheet are measured with reference to historical cost and/or fair market value without considering inflation.
-68-
Not Applicable.
-69-
Index to Financial Statements
|
Page
|
||||
|
Report of Independent Registered Public Accounting Firm
|
71 | |||
|
Consolidated Balance Sheets at December 31, 2013 and 2012
|
72 | |||
|
Consolidated Statements of Operations for the years ended December 31, 2013 and 2012
|
73 | |||
|
Consolidated Statements of Equity for the years ended December 31, 2013 and 2012
|
74 | |||
|
Consolidated Statements of Cash Flows for the years ended December 31, 2013 and 2012
|
75 | |||
|
Notes to Consolidated Financial Statements
|
76 | |||
-70-
Report of Independent Registered Public Accounting Firm
Board of Directors and Stockholders
Bimini Capital Management, Inc.
Vero Beach, Florida
We have audited the accompanying consolidated balance sheets of Bimini Capital Management, Inc. and subsidiaries (the “Company”) as of December 31, 2013 and 2012 and the related consolidated statements of operations, equity, and cash flows for each of the two years in the period ended December 31, 2013. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company at December 31, 2013 and 2012, and the results of its operations and its cash flows for each of the two years in the period ended December 31, 2013
,
in conformity with accounting principles generally accepted in the United States of America.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Company's internal control over financial reporting as of December 31, 2013, based on criteria established in
Internal Control – Integrated Framework (1992)
issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) and our report dated March 12, 2014 expressed an unqualified opinion thereon.
|
West Palm Beach, Florida
March 12, 2014
|
/s/ BDO USA, LLP
Certified Public Accountants
|
-71-
BIMINI CAPITAL MANAGEMENT, INC.
|
2013
|
2012
|
|||||||
|
ASSETS:
|
||||||||
|
Mortgage-backed securities, at fair value
|
||||||||
|
Pledged to counterparties
|
$ | 372,102,248 | $ | 158,396,450 | ||||
|
Unpledged
|
17,238,710 | 9,758,557 | ||||||
|
Total mortgage-backed securities
|
389,340,958 | 168,155,007 | ||||||
|
Cash and cash equivalents
|
11,959,292 | 6,592,561 | ||||||
|
Restricted cash
|
2,557,165 | 840,500 | ||||||
|
Retained interests in securitizations
|
2,530,834 | 3,336,009 | ||||||
|
Accrued interest receivable
|
1,720,726 | 718,895 | ||||||
|
Property and equipment, net
|
3,663,437 | 3,774,310 | ||||||
|
Prepaid expenses and other assets, net
|
2,755,234 | 3,935,669 | ||||||
|
Total Assets
|
$ | 414,527,646 | $ | 187,352,951 | ||||
|
LIABILITIES AND EQUITY
|
||||||||
|
LIABILITIES:
|
||||||||
|
Repurchase agreements
|
$ | 353,396,075 | $ | 150,294,174 | ||||
|
Junior subordinated notes due to Bimini Capital Trust II
|
26,804,440 | 26,804,440 | ||||||
|
Accrued interest payable
|
142,055 | 123,446 | ||||||
|
Accounts payable, accrued expenses and other
|
826,660 | 6,614,119 | ||||||
|
Total Liabilities
|
381,169,230 | 183,836,179 | ||||||
|
EQUITY:
|
||||||||
|
Preferred stock, $0.001 par value; 10,000,000 shares authorized; designated, 1,800,000
|
||||||||
|
shares as Class A Redeemable and 2,000,000 shares as Class B Redeemable; no
|
||||||||
|
shares issued and outstanding as of December 31, 2013 and 2012
|
- | - | ||||||
|
Class A Common Stock, $0.001 par value; 98,000,000 shares designated: 11,509,756
|
||||||||
|
shares issued and outstanding as of December 31, 2013 and 10,616,912 shares
|
||||||||
|
issued and outstanding as of December 31, 2012
|
11,510 | 10,617 | ||||||
|
Class B Common Stock, $0.001 par value; 1,000,000 shares designated, 31,938 shares
|
||||||||
|
issued and outstanding as of December 31, 2013 and 2012
|
32 | 32 | ||||||
|
Class C Common Stock, $0.001 par value; 1,000,000 shares designated, 31,938 shares
|
||||||||
|
issued and outstanding as of December 31, 2013 and 2012
|
32 | 32 | ||||||
|
Additional paid-in capital
|
334,810,312 | 334,254,432 | ||||||
|
Accumulated deficit
|
(333,078,313 | ) | (330,748,341 | ) | ||||
|
Stockholders’ equity
|
1,743,573 | 3,516,772 | ||||||
|
Noncontrolling interests
|
31,614,843 | - | ||||||
|
Total Equity
|
33,358,416 | 3,516,772 | ||||||
|
Total Liabilities and Equity
|
$ | 414,527,646 | $ | 187,352,951 | ||||
|
The following table includes assets to be used to settle liabilities of the consolidated variable interest entity ("VIE"). These assets and liabilities are included in the 2013 consolidated balance sheet above. See Note 16 for additional information on our consolidated VIE.
|
||||||||
|
ASSETS:
|
||||||||
|
Mortgage-backed securities
|
$ | 351,222,512 | ||||||
|
Cash and cash equivalents and restricted cash
|
10,615,027 | |||||||
|
Accrued interest receivable and other assets
|
1,738,508 | |||||||
|
LIABILITIES:
|
||||||||
|
Repurchase agreements
|
318,557,054 | |||||||
|
Accrued interest payable and other liabilities
|
171,721 | |||||||
|
See Notes to Consolidated Financial Statements
|
||||||||
-72-
BIMINI CAPITAL MANAGEMENT, INC.
|
|
|
|
|
YEARS ENDED DECEMBER 31, 2013 AND 2012
|
|
2013
|
2012
|
|||||||
|
Interest income
|
$ | 9,794,654 | $ | 4,238,718 | ||||
|
Interest expense
|
(1,279,737 | ) | (436,098 | ) | ||||
|
Net interest income, before interest on junior subordinated notes
|
8,514,917 | 3,802,620 | ||||||
|
Interest expense on junior subordinated notes
|
(995,397 | ) | (1,049,403 | ) | ||||
|
Net interest income
|
7,519,520 | 2,753,217 | ||||||
|
Unrealized losses on mortgage-backed securities
|
(12,913,561 | ) | (2,055,132 | ) | ||||
|
Realized losses on mortgage-backed securities
|
(1,248,618 | ) | (245,690 | ) | ||||
|
Gains (losses) on Eurodollar futures
|
4,837,469 | (765,719 | ) | |||||
|
Net portfolio deficiency
|
(1,805,190 | ) | (313,324 | ) | ||||
|
Other income:
|
||||||||
|
Gains on retained interests in securitizations
|
2,469,701 | 4,323,329 | ||||||
|
Gains on release of loan loss reserves
|
4,737,260 | - | ||||||
|
Other (expense) income
|
(31,268 | ) | 36,733 | |||||
|
Total other income
|
7,175,693 | 4,360,062 | ||||||
|
Expenses:
|
||||||||
|
Compensation and related benefits
|
2,297,984 | 1,475,897 | ||||||
|
Directors' fees and liability insurance
|
836,473 | 527,934 | ||||||
|
Orchid Island Capital, Inc. IPO expenses
|
3,042,322 | - | ||||||
|
Audit, legal and other professional fees
|
1,741,587 | 2,776,842 | ||||||
|
Direct REIT operating expenses
|
440,733 | 546,666 | ||||||
|
Other administrative
|
843,247 | 748,960 | ||||||
|
Total expenses
|
9,202,346 | 6,076,299 | ||||||
|
Net loss before income tax benefit
|
(3,831,843 | ) | (2,029,561 | ) | ||||
|
Income tax benefit
|
(1,287,154 | ) | - | |||||
|
Net loss
|
(2,544,689 | ) | (2,029,561 | ) | ||||
|
Less: Loss attributable to noncontrolling interests
|
(214,717 | ) | - | |||||
|
Net Loss attributable to Bimini Capital stockholders
|
$ | (2,329,972 | ) | $ | (2,029,561 | ) | ||
|
Basic and Diluted Net Loss Per Share of:
|
||||||||
|
CLASS A COMMON STOCK
|
||||||||
|
Basic and Diluted
|
$ | (0.21 | ) | $ | (0.20 | ) | ||
|
CLASS B COMMON STOCK
|
||||||||
|
Basic and Diluted
|
$ | (0.21 | ) | $ | (0.20 | ) | ||
|
Weighted Average Shares Outstanding:
|
||||||||
|
CLASS A COMMON STOCK
|
||||||||
|
Basic and Diluted
|
10,966,076 | 10,267,885 | ||||||
|
CLASS B COMMON STOCK
|
||||||||
|
Basic and Diluted
|
31,938 | 31,938 | ||||||
|
See Notes to Consolidated Financial Statements
|
||||||||
-73-
BIMINI CAPITAL MANAGEMENT, INC.
CONSOLIDATED STATEMENTS OF EQUITY
YEARS ENDED DECEMBER 31, 2013 AND 2012
|
Stockholders' Equity
|
||||||||||||||||||||
|
Common
|
Additional
|
Accumulated
|
Noncontrolling
|
|||||||||||||||||
|
Stock
|
Paid-in Capital
|
Deficit
|
Interests
|
Total
|
||||||||||||||||
|
Balances, January 1, 2012
|
$ | 10,151 | $ | 334,075,197 | $ | (328,718,780 | ) | $ | - | $ | 5,366,568 | |||||||||
|
Net loss
|
- | - | (2,029,561 | ) | - | (2,029,561 | ) | |||||||||||||
|
Issuance of Class A common shares
|
||||||||||||||||||||
|
for board compensation and
|
||||||||||||||||||||
|
equity plan exercises
|
530 | 91,888 | - | - | 92,418 | |||||||||||||||
|
Amortization of equity plan compensation
|
- | 87,347 | - | - | 87,347 | |||||||||||||||
|
Balances, December 31, 2012
|
$ | 10,681 | $ | 334,254,432 | $ | (330,748,341 | ) | $ | - | $ | 3,516,772 | |||||||||
|
Net loss
|
- | - | (2,329,972 | ) | (214,717 | ) | (2,544,689 | ) | ||||||||||||
|
Issuance of common shares of
|
||||||||||||||||||||
|
Orchid Island Capital, Inc.
|
- | 278,238 | - | 35,121,762 | 35,400,000 | |||||||||||||||
|
Cash dividends paid to
|
||||||||||||||||||||
|
noncontrolling interests
|
- | - | - | (3,292,202 | ) | (3,292,202 | ) | |||||||||||||
|
Issuance of Class A common shares
|
||||||||||||||||||||
|
for equity plan exercises
|
893 | (893 | ) | - | - | - | ||||||||||||||
|
Amortization of equity plan compensation
|
- | 278,535 | - | - | 278,535 | |||||||||||||||
|
Balances, December 31, 2013
|
$ | 11,574 | $ | 334,810,312 | $ | (333,078,313 | ) | $ | 31,614,843 | $ | 33,358,416 | |||||||||
|
See Notes to Consolidated Financial Statements
|
||||||||||||||||||||
-74-
BIMINI CAPITAL MANAGEMENT, INC.
YEARS ENDED DECEMBER 31, 2013 AND 2012
|
2013
|
2012
|
|||||||
|
CASH FLOWS FROM OPERATING ACTIVITIES:
|
||||||||
|
Net loss
|
$ | (2,544,689 | ) | $ | (2,029,561 | ) | ||
|
Adjustments to reconcile net loss to net cash provided by (used in) operating activities:
|
||||||||
|
Stock based compensation and equity plan amortization
|
278,535 | 179,765 | ||||||
|
Depreciation
|
121,822 | 119,670 | ||||||
|
Losses on mortgage-backed securities
|
14,162,179 | 2,300,822 | ||||||
|
Gains on retained interests in securitizations
|
(2,469,701 | ) | (4,323,329 | ) | ||||
|
Gains on release of loan loss reserves
|
(4,737,260 | ) | - | |||||
|
Changes in operating assets and liabilities:
|
||||||||
|
Accrued interest receivable
|
(1,001,831 | ) | 182,490 | |||||
|
Prepaid expenses and other assets, net
|
1,230,608 | 1,162,342 | ||||||
|
Accrued interest payable
|
18,609 | 51,617 | ||||||
|
Accounts payable, accrued expenses and other
|
(1,050,199 | ) | (869,340 | ) | ||||
|
NET CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES
|
4,008,073 | (3,225,524 | ) | |||||
|
CASH FLOWS FROM INVESTING ACTIVITIES:
|
||||||||
|
From mortgage-backed securities investments:
|
||||||||
|
Purchases
|
(706,042,461 | ) | (283,121,938 | ) | ||||
|
Sales
|
430,697,721 | 185,082,961 | ||||||
|
Principal repayments
|
39,946,437 | 18,740,736 | ||||||
|
Payments received on retained interests in securitizations
|
3,274,876 | 4,482,791 | ||||||
|
Increase in restricted cash
|
(1,716,665 | ) | (423,500 | ) | ||||
|
Purchases of property and equipment
|
(10,949 | ) | (9,924 | ) | ||||
|
NET CASH USED IN INVESTING ACTIVITIES
|
(233,851,041 | ) | (75,248,874 | ) | ||||
|
CASH FLOWS FROM FINANCING ACTIVITIES:
|
||||||||
|
Proceeds from repurchase agreements
|
3,867,715,039 | 958,011,865 | ||||||
|
Principal repayments on repurchase agreements
|
(3,664,613,138 | ) | (877,245,691 | ) | ||||
|
Issuance of common shares of Orchid Island Capital, Inc.
|
35,400,000 | - | ||||||
|
Cash dividends paid to noncontrolling interests
|
(3,292,202 | ) | - | |||||
|
NET CASH PROVIDED BY FINANCING ACTIVITIES
|
235,209,699 | 80,766,174 | ||||||
|
NET INCREASE IN CASH AND CASH EQUIVALENTS
|
5,366,731 | 2,291,776 | ||||||
|
CASH AND CASH EQUIVALENTS, beginning of the year
|
6,592,561 | 4,300,785 | ||||||
|
CASH AND CASH EQUIVALENTS, end of the year
|
$ | 11,959,292 | $ | 6,592,561 | ||||
|
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
|
||||||||
|
Cash paid during the year for:
|
||||||||
|
Interest
|
$ | 2,256,525 | $ | 1,433,884 | ||||
|
Income taxes
|
$ | 39,386 | $ | 40,000 | ||||
|
See Notes to Consolidated Financial Statements
|
||||||||
-75-
BIMINI CAPITAL MANAGEMENT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013 AND 2012
Organization and Business Description
Bimini Capital Management, Inc., a Maryland corporation (“Bimini Capital”), was formed in September 2003 for the purpose of creating and managing a leveraged investment portfolio consisting of residential mortgage-backed securities (“MBS”). Bimini Capital has elected to be taxed as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”).
As a REIT, Bimini Capital is generally not subject to federal income tax on its REIT taxable income provided that it distributes to its stockholders at least 90% of its REIT taxable income on an annual basis. In addition, a REIT must meet other provisions of the Code to retain its special tax status. Bimini Capital’s website is located at http://www.biminicapital.com.
As used in this document, discussions related to the “Company”, refer to the consolidated entity, including Bimini Capital, our wholly-owned subsidiaries, and our consolidated variable interest entity (“VIE”). References to “Bimini Capital” and the “parent” refer to Bimini Capital Management, Inc. as a separate entity.
On February 20, 2013, Orchid Island Capital, Inc. (“Orchid”) completed the initial public offering (“IPO”) of its common stock. Prior to the completion of its IPO, Orchid was a wholly-owned qualified REIT subsidiary of Bimini Capital. Subsequent to the completion of the IPO and through December 31, 2013, Orchid continues to be consolidated as our VIE. As used in this document, discussions related to REIT qualifying activities include the MBS portfolios of Bimini Capital and Orchid.
Discussions related to Bimini Capital’s taxable REIT subsidiaries or non-REIT eligible assets refer to Bimini Advisors, Inc. and its wholly-owned subsidiary, Bimini Advisors, LLC (together “Bimini Advisors”) and MortCo TRS, LLC (“MortCo”) and its consolidated subsidiaries.
The accompanying consolidated financial statements include the accounts of Bimini Capital, Orchid, Bimini Advisors and MortCo, as well as the wholly-owned subsidiaries of MortCo. All inter-company accounts and transactions have been eliminated from the consolidated financial statements.
ASC Topic 810,
Consolidation
(“ASC 810”), requires the consolidation of a VIE by an enterprise if it is deemed the primary beneficiary of the VIE. Further, ASC 810 requires a qualitative assessment to determine the primary beneficiary of a VIE and ongoing assessments of whether an enterprise is the primary beneficiary of a VIE as well as additional disclosures for entities that have variable interests in VIEs.
-76-
At the time of Orchid’s IPO and as of December 31, 2013, management has concluded Orchid is a VIE because Orchid's equity holders lack the ability through voting rights to make decisions about its activities that have a significant effect on the success of Orchid. Management has also concluded that Bimini Capital is the primary beneficiary of Orchid because, under the management agreement between Bimini Advisors and Orchid, Bimini Capital has the power to direct the activities of Orchid that most significantly impact its economic performance. As a result, subsequent to Orchid’s IPO and through December 31, 2013, the Company has continued to consolidate Orchid in its Consolidated Financial Statements. While the results of operations of Orchid are included in the Company’s Consolidated Financial Statements, net loss attributable to Bimini Capital stockholders does not include the portion attributable to noncontrolling interests. Additionally, noncontrolling interests in Orchid are recorded in our 2013 Consolidated Balance Sheet and our 2013 Consolidated Statement of Equity within the equity section but separate from the stockholders’ equity.
Assets recognized as a result of consolidating Orchid do not represent additional assets that could be used to satisfy claims against Bimini Capital’s assets. Conversely, liabilities recognized as a result of consolidating Orchid do not represent additional claims on Bimini Capital’s assets; rather, they represent claims against the assets of Orchid. Creditors and stockholders of Orchid have no recourse to the assets of Bimini Capital.
As further described in Note 8, Bimini Capital has a common share investment in a trust used in connection with the issuance of Bimini Capital’s junior subordinated notes. Pursuant to ASC 810, Bimini Capital’s common share investment in the trust has not been consolidated in the financial statements of Bimini Capital, and accordingly, this investment has been accounted for on the equity method.
Liquidity
Material losses incurred by the Company in 2006 and 2007 attributable to the former mortgage origination operations of MortCo significantly reduced Bimini Capital’s equity capital base and the size of its MBS portfolio when compared to pre-2006 levels. Ongoing litigation costs stemming from both the former operations of MortCo and Bimini Capital itself have caused the Company’s overhead to be high in relation to its portfolio size. The smaller capital base has made it difficult to generate sufficient net interest income to cover expenses.
In response, beginning in 2007, the Company took significant steps to reduce the leverage in its balance sheet, reduce its debt service costs, reduce expenses, settle various litigation matters, and alter its investment strategy for holding MBS securities. In addition, the Company evaluated and pursued capital raising opportunities for Orchid. After pursuing previous efforts to raise capital at Orchid, Orchid completed its initial public offering of common stock on February 20, 2013. Bimini Capital and Bimini Advisors acted as sponsor to Orchid by agreeing to fund all underwriting, legal and other costs of the offering, which totaled approximately $3.0 million during the year ended December 31, 2013. Orchid has no obligation or intent to reimburse Bimini Capital and Bimini Advisors, either directly or indirectly, for the offering costs; therefore, they are expensed in the Company’s consolidated statement of operations. Once Orchid reaches $100 million of stockholders equity for the first time, Bimini Advisors will begin to allocate certain overhead costs to Orchid on a pro rata basis. Attracting external capital to Orchid will allow Bimini Advisors to receive fees for managing the Orchid portfolio, decrease the expenses of Bimini Capital and Bimini Advisors by allocating certain overhead costs to Orchid (once Orchid’s stockholders’ equity equals or exceeds $100 million), and share in distributions, if any, paid by Orchid to its stockholders.
Upon the closing of Orchid’s IPO, and at December 31, 2013, Bimini Capital owned approximately 29.38% of the outstanding common stock of Orchid.
-77-
At December 31, 2013, the Company had cash and cash equivalents of approximately $12.0 million, an MBS portfolio of approximately $389.3 million and equity capital base of approximately $33.4 million, including approximately $1.7 million attributable to the stockholders of Bimini Capital and $31.6 million attributable to noncontrolling interests. The Company generated cash flows of approximately $48.8 million from principal and interest payments on its MBS portfolio and approximately $3.3 million from retained interests in securitizations during the year ended December 31, 2013. However, if cash resources are, at any time, insufficient to satisfy the Company’s liquidity requirements, such as when cash flow from operations are materially negative, the Company may be required to pledge additional assets to meet margin calls, liquidate assets, sell additional debt or equity securities or pursue other financing alternatives.
The accompanying consolidated financial statements are prepared on the accrual basis of accounting in accordance with accounting principles generally accepted in the United States (“GAAP”).
In the opinion of management, all adjustments considered necessary for a fair presentation of the Company's consolidated financial position, results of operations and cash flows have been included and are of a normal and recurring nature.
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Significant estimates affecting the accompanying financial statements include the fair values of MBS, Eurodollar futures contracts, retained interests and asset valuation allowances.
In accordance with FASB ASC Topic 220,
Comprehensive Income
, a statement of comprehensive income has not been included as the Company has no items of other comprehensive income. Comprehensive loss is the same as net loss for all periods presented.
Cash and cash equivalents include cash on deposit with financial institutions and highly liquid investments with original maturities of three months or less. Restricted cash of approximately $2,557,000 and approximately $227,000 at December 31, 2013 and 2012, respectively, represents cash held by a broker as margin on Eurodollar futures contracts. Restricted cash, totaling $614,000 at December 31, 2012, represents cash held on deposit as collateral with repurchase agreement counterparties, which may be used to make principal and interest payments on the related repurchase agreements.
The Company maintains cash balances at three banks, and, at times, balances may exceed federally insured limits. The Company has not experienced any losses related to these balances. All non-interest bearing cash balances were fully insured at December 31, 2012 due to a temporary federal program in effect from December 31, 2010 through December 31, 2012. Under the program, there was no limit to the amount of insurance for eligible accounts. Beginning January 1, 2013, insurance reverted to $250,000 per depositor at each financial institution. At December 31, 2013, the Company’s cash deposits exceeded federally insured limits by approximately $10.4 million. Restricted cash balances are uninsured, but are held in separate customer accounts that are segregated from the general funds of the counterparty. The Company believes that it is not exposed to any significant credit risk on cash and cash equivalents or restricted cash balances.
-78-
Mortgage-Backed Securities
The Company invests primarily in mortgage pass-through (“PT”) certificates, collateralized mortgage obligations, and interest-only (“IO”) securities and inverse interest-only (“IIO”) securities representing interest in or obligations backed by pools of mortgage-backed loans (collectively, “MBS”). These investments meet the requirements to be classified as available for sale under ASC 320-10-25,
Debt and Equity Securities
(which requires the securities to be carried at fair value on the balance sheet with changes in fair value charged to other comprehensive income, a component of stockholders’ equity). However, the Company has elected to account for its investment in MBS under the fair value option. Electing the fair value option allows the Company to record changes in fair value in the consolidated statement of operations, which, in management’s view, more appropriately reflects the results of our operations for a particular reporting period and is consistent with the underlying economics and how the portfolio is managed.
The Company records MBS transactions on the trade date. Security purchases that have not settled as of the balance sheet date are included in the MBS balance with an offsetting liability recorded, whereas securities sold that have not settled as of the balance sheet date are removed from the MBS balance with an offsetting receivable recorded.
The fair value of the Company’s investment in MBS is governed by FASB ASC Topic 820,
Fair Value Measurement
. The definition of fair value in FASB ASC Topic 820 focuses on the price that would be received to sell the asset or paid to transfer the liability in an orderly transaction between market participants at the measurement date. The fair value measurement assumes that the transaction to sell the asset or transfer the liability either occurs in the principal market for the asset or liability, or in the absence of a principal market, occurs in the most advantageous market for the asset or liability. Estimated fair values for MBS are based on the average of third-party broker quotes received and/or independent pricing sources when available.
Income on PT MBS is based on the stated interest rate of the security. Premiums or discounts present at the date of purchase are not amortized. For IO securities, the income is accrued based on the carrying value and the effective yield. The difference between income accrued and the interest received on the security is characterized as a return of investment and serves to reduce the asset’s carrying value. At each reporting date, the effective yield is adjusted prospectively from the reporting period based on the new estimate of prepayments and the contractual terms of the security. For IIO securities, effective yield and income recognition calculations also take into account the index value applicable to the security. Changes in fair value of MBS during each reporting period are recorded in earnings and reported as unrealized gains or losses on mortgage-backed securities in the accompanying consolidated statements of operations.
From 2005 to 2007, MortCo participated in securitization transactions as part of its mortgage origination business. Retained interests in the securitization transactions were initially recorded at their fair value when issued by MortCo. Subsequent adjustments to fair value are reflected in earnings. Quoted market prices for these assets are generally not available, so the Company estimates fair value based on the present value of expected future cash flows using management’s best estimates of key assumptions, which include expected credit losses, prepayment speeds, weighted-average life, and discount rates commensurate with the inherent risks of the asset.
The Company has entered into derivative financial instruments to manage interest rate risk, facilitate asset/liability strategies, and manage other exposures, and it may continue to do so in the future. The Company has elected to not treat any of its derivative financial instruments as hedges. FASB ASC Topic 815,
Derivatives and Hedging
, requires that all derivative investments be carried at fair value. Changes in fair value are recorded in earnings for each period.
-79-
Financial Instruments
FASB ASC Topic 825
, Financial Instruments
, requires disclosure of the fair value of financial instruments for which it is practicable to estimate that value, either in the body of the financial statements or in the accompanying notes. MBS, Eurodollar futures contracts, retained interests in securitization transactions and mortgage loans held for sale are accounted for at fair value in the consolidated balance sheets. The methods and assumptions used to estimate fair value for these instruments are presented in Note 14 of the financial statements.
The estimated fair value of cash and cash equivalents, restricted cash, accrued interest receivable, repurchase agreements, accrued interest payable and accounts payable and other liabilities generally approximates their carrying value as of December 31, 2013 and 2012, due to the short-term nature of these financial instruments.
It is impractical to estimate the fair value of the Company’s junior subordinated notes. Currently, there is a limited market for these types of instruments and the Company is unable to ascertain what interest rates would be available to the Company for similar financial instruments. Information regarding carrying amount, effective interest rate and maturity date for these instruments is presented in Note 8 to the consolidated financial statements.
Property and equipment, net, consists of computer equipment with a depreciable life of 3 years, office furniture and equipment with depreciable lives of 8 to 20 years, land which has no depreciable life, and buildings and improvements with depreciable lives of 30 years. Property and equipment is recorded at acquisition cost and depreciated using the straight-line method over the estimated useful lives of the assets.
The Company finances the acquisition of the majority of its PT MBS through the use of repurchase agreements under master repurchase agreements. Pursuant to ASC Topic 860,
Transfers and Servicing
, the Company accounts for repurchase transactions as collateralized financing transactions, which are carried at their contractual amounts, including accrued interest, as specified in the respective agreements
.
The Company follows the provisions of FASB ASC Topic 718,
Compensation – Stock Compensation
, to account for stock and stock-based awards. For stock and stock-based awards issued to employees, a compensation charge is recorded against earnings over the vesting period based on the fair value of the award. Payments pursuant to dividend equivalent rights, which are granted along with certain equity based awards, are charged to stockholders’ equity when declared. The Company applies a zero forfeiture rate for its equity based awards, as such awards have been granted to a limited number of employees and historical forfeitures have been minimal. A significant forfeiture, or an indication that significant forfeitures may occur, would result in a revised forfeiture rate which would be accounted for prospectively as a change in an estimate. For transactions with non-employees in which services are performed in exchange for the Company’s common stock or other equity instruments, the transactions are recorded on the basis of the fair value of the service received or the fair value of the equity instruments issued, whichever is more readily measurable at the date of issuance.
-80-
Earnings Per Share
The Company follows the provisions of FASB ASC Topic 260,
Earnings Per Share
, which requires companies with complex capital structures, common stock equivalents or two (or more) classes of securities that participate in the declared dividends to present both basic and diluted earnings per share (“EPS”) on the face of the consolidated statement of operations. Basic EPS is calculated as income available to common stockholders divided by the weighted average number of common shares outstanding during the period. Diluted EPS is calculated using the “if converted” method for common stock equivalents. However, the common stock equivalents are not included in computing diluted EPS if the result is anti-dilutive.
Outstanding shares of Class B Common Stock, participating and convertible into Class A Common Stock, are entitled to receive dividends in an amount equal to the dividends declared on each share of Class A Common Stock if, as and when authorized and declared by the Board of Directors. Accordingly, shares of the Class B Common Stock are included in the computation of basic EPS using the two-class method and, consequently, are presented separately from Class A Common Stock.
The shares of Class C Common Stock are not included in the basic EPS computation as these shares do not have participation rights. The outstanding shares of Class B and Class C Common Stock are not included in the computation of diluted EPS for the Class A Common Stock as the conditions for conversion into shares of Class A Common Stock were not met.
Bimini Capital has elected to be taxed as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), and Orchid, until the closing of its IPO on February 20, 2013, was a “qualified REIT subsidiary” of Bimini Capital under the Code. Beginning with its short tax period commencing on February 20, 2013 and ending December 31, 2013, Orchid will elect and intends to qualify to be taxed as a REIT, and Orchid will file a REIT tax return separate from Bimini Capital. REITs are generally not subject to federal income tax on their REIT taxable income provided that they distribute to their stockholders at least 90% of their REIT taxable income on an annual basis. In addition, a REIT must meet other provisions of the Code to retain its tax status. At December 31, 2013, management believes that the Company has complied with Code requirements and Bimini Capital continues to qualify as a REIT. As further described in Note 12, Income Taxes, Bimini Advisors and MortCo are taxpaying entities for income tax purposes and are taxed separately from the REIT.
The Company’s U.S. federal income tax returns for years ended on or after December 31, 2010 remain open for examination. Although management believes its calculations for tax returns are correct and the positions taken thereon are reasonable, the final outcome of tax audits could be materially different from the tax returns filed by the Company, and those differences could result in significant costs or benefits to the Company.
The Company measures, recognizes and presents its uncertain tax positions in accordance with FASB ASC 740,
Income Taxes
. Under that guidance, the Company assesses the likelihood, based on their technical merit, that tax positions will be sustained upon examination based on the facts, circumstances and information available at the end of each period. The measurement of uncertain tax positions is adjusted when new information is available, or when an event occurs that requires a change.
-81-
Recent Accounting Pronouncements
In July 2013, the Financial Accounting Standards Board (“FASB”) issued Accounting Standard Update (“ASU”) 2013-11,
Income Taxes (Topic 740): Presentation of an Unrecognized Tax Benefit When a Net Operating Loss Carryforward, a Similar Tax Loss, or a Tax Credit Carryforward Exists
. This new standard requires the netting of unrecognized tax benefits against a deferred tax asset for a loss or other carryforward that would apply in settlement of the uncertain tax positions. Under the new standard, unrecognized tax benefits will be netted against all available same-jurisdiction loss or other tax carryforwards that would be utilized, rather than only against carryforwards that are created by the unrecognized tax benefits. The ASU is effective beginning January 1, 2014 on either a prospective or retrospective basis. The guidance represents a change in financial statement presentation only and the Company does not expect that this ASU will have a material impact on its consolidated financial results.
In June 2013, the FASB issued ASU 2013-08,
Financial Services – Investment Companies (Topic 946): Amendments to the Scope, Measurement, and Disclosure Requirements
. The amendments in this Update modify the guidance for determining whether an entity is an investment company, update the measurement requirements for noncontrolling interests in other investment companies and require additional disclosures for investment companies under US GAAP. The amendments in the Update develop a two-tiered approach for the assessment of whether an entity is an investment company which requires an entity to possess certain fundamental characteristics while allowing judgment in assessing other typical characteristics. The amendments in this Update also revise the measurement guidance in Topic 946 such that investment companies must measure noncontrolling ownership interests in other investment companies at fair value, rather than applying the equity method of accounting to such interests. The new guidance is effective for an entity’s interim and annual reporting periods in fiscal years that begin after December 15, 2013. Earlier application is prohibited. The Company does not expect that this ASU will have a material impact on its financial statements.
In February 2013, the FASB issued ASU 2013-04,
Liabilities (Topic 405) - Obligations Resulting from Joint and Several Liability Arrangements for Which the Total Amount of the Obligation Is Fixed at the Reporting Date ("ASU 2013-04")
. The objective of this ASU is to provide guidance for the recognition, measurement, and disclosure of obligations resulting from joint and several liability arrangements for which the total amount of the obligation within the scope of this guidance is fixed at the reporting date, except for obligations addressed within existing US GAAP. The amendments in ASU 2013-04 are effective for fiscal years, and interim periods within those years, beginning after December 15, 2013, and should be retrospectively applied to all prior periods presented for those obligations resulting from joint and several liability arrangements within the ASU's scope that exist at the beginning of an entity's fiscal year of adoption. Early adoption is permitted. The Company does not expect that this ASU will have a material impact on its consolidated financial statements.
|
(in thousands)
|
||||||||
|
2013
|
2012
|
|||||||
|
Pass-Through MBS:
|
||||||||
|
Hybrid Adjustable-rate Mortgages
|
$ | 90,487 | $ | 87,693 | ||||
|
Adjustable-rate Mortgages
|
5,334 | 20,857 | ||||||
|
Fixed-rate Mortgages
|
267,481 | 49,846 | ||||||
|
Total Pass-Through MBS
|
363,302 | 158,396 | ||||||
|
Structured MBS:
|
||||||||
|
Interest-Only Securities
|
20,443 | 5,244 | ||||||
|
Inverse Interest-Only Securities
|
5,596 | 4,515 | ||||||
|
Total Structured MBS
|
26,039 | 9,759 | ||||||
|
Total
|
$ | 389,341 | $ | 168,155 | ||||
-82-
Included in the table above at December 31, 2013 are $351.2 million of MBS assets that may only be used to settle liabilities of the consolidated VIE.
The following table summarizes the Company’s MBS portfolio as of December 31, 2013 and 2012, according to the contractual maturities of the securities in the portfolio. Actual maturities of MBS investments are generally shorter than stated contractual maturities and are affected by the contractual lives of the underlying mortgages, periodic payments of principal, and prepayments of principal.
|
(in thousands)
|
||||||||
|
2013
|
2012
|
|||||||
|
Less than one year
|
$ | 46 | $ | - | ||||
|
Greater than one year and less than five years
|
- | 163 | ||||||
|
Greater than five years and less than ten years
|
1,520 | 12,980 | ||||||
|
Greater than or equal to ten years
|
387,775 | 155,012 | ||||||
|
Total
|
$ | 389,341 | $ | 168,155 | ||||
|
(in thousands)
|
|||||||||
|
Series
|
Issue Date
|
2013
|
2012
|
||||||
|
HMAC 2004-1
|
March 4, 2004
|
$ | - | $ | 74 | ||||
|
HMAC 2004-2
|
May 10, 2004
|
- | 890 | ||||||
|
HMAC 2004-3
|
June 30, 2004
|
1,518 | 750 | ||||||
|
HMAC 2004-4
|
August 16, 2004
|
654 | 881 | ||||||
|
HMAC 2004-5
|
September 28, 2004
|
359 | 741 | ||||||
|
Total
|
$ | 2,531 | $ | 3,336 | |||||
|
(in thousands)
|
||||||||
|
2013
|
2012
|
|||||||
|
Land
|
$ | 2,247 | $ | 2,247 | ||||
|
Buildings and improvements
|
1,827 | 1,827 | ||||||
|
Computer equipment and software
|
394 | 383 | ||||||
|
Office furniture and equipment
|
248 | 248 | ||||||
| 4,716 | 4,705 | |||||||
|
Less accumulated depreciation and amortization
|
1,053 | 931 | ||||||
|
Total
|
$ | 3,663 | $ | 3,774 | ||||
-83-
|
(in thousands)
|
||||||||
|
2013
|
2012
|
|||||||
|
Prepaid expenses
|
$ | 298 | $ | 324 | ||||
|
Surety bonds, including accrued interest
|
- | 525 | ||||||
|
Servicing advances - net of allowance for doubtful accounts of
|
||||||||
|
$0 and $256 at December 31, 2013 and 2012
|
831 | 1,310 | ||||||
|
Servicing sale receivable, including accrued interest
|
464 | 793 | ||||||
|
Investment in Bimini Capital Trust II
|
804 | 804 | ||||||
|
Other
|
358 | 180 | ||||||
|
Total
|
$ | 2,755 | $ | 3,936 | ||||
Receivables are carried at their estimated collectible amounts. The Company maintains allowances for doubtful accounts for estimated losses resulting from the inability of the counterparty to make required payments. Management considers the following factors when determining the collectability of specific accounts: past transaction activity, current economic conditions and changes in payment terms. Amounts that the Company determines are no longer collectible are written off. Collections on amounts previously written off are included in income as received.
The Company’s repurchase agreements typically have maturities of less than six months at inception, with some having longer terms. Should a counterparty decide not to renew a repurchase agreement at maturity, the Company must either refinance with another lender or be in a position to satisfy the obligation.
As of December 31, 2013, the Company had outstanding repurchase agreement obligations of approximately $353.4 million with a net weighted average borrowing rate of 0.39%. These agreements were collateralized by MBS with a fair value, including accrued interest, of approximately $373.4 million. As of December 31, 2012, the Company had outstanding repurchase agreement obligations of approximately $150.3 million with a net weighted average borrowing rate of 0.49%. These agreements were collateralized by MBS with a fair value, including accrued interest, of approximately $158.8 million, and cash pledged to counterparties of approximately $0.6 million.
-84-
As of December 31, 2013 and 2012, the Company’s repurchase agreements had remaining maturities as summarized below:
|
(in thousands)
|
||||||||||||||||||||
|
OVERNIGHT
|
BETWEEN 2
|
BETWEEN 31
|
GREATER
|
|||||||||||||||||
|
(1 DAY OR
|
AND
|
AND
|
THAN
|
|||||||||||||||||
|
LESS)
|
30 DAYS
|
90 DAYS
|
90 DAYS
|
TOTAL
|
||||||||||||||||
|
December 31, 2013
|
||||||||||||||||||||
|
Fair value of securities pledged, including accrued
|
||||||||||||||||||||
|
interest receivable
|
$ | - | $ | 357,338 | $ | 16,081 | $ | - | $ | 373,419 | ||||||||||
|
Repurchase agreement liabilities associated with
|
||||||||||||||||||||
|
these securities
|
$ | - | $ | 337,977 | $ | 15,419 | $ | - | $ | 353,396 | ||||||||||
|
Net weighted average borrowing rate
|
- | 0.39 | % | 0.37 | % | - | 0.39 | % | ||||||||||||
|
December 31, 2012
|
||||||||||||||||||||
|
Fair value of securities pledged, including accrued
|
||||||||||||||||||||
|
interest receivable
|
$ | - | $ | 158,765 | $ | - | $ | - | $ | 158,765 | ||||||||||
|
Repurchase agreement liabilities associated with
|
||||||||||||||||||||
|
these securities
|
$ | - | $ | 150,294 | $ | - | $ | - | $ | 150,294 | ||||||||||
|
Net weighted average borrowing rate
|
- | 0.49 | % | - | - | 0.49 | % | |||||||||||||
As of December 31, 2013, the outstanding repurchase obligations of the consolidated VIE included in the table above was $318.6 million.
If, during the term of a repurchase agreement, a lender files for bankruptcy, the Company might experience difficulty recovering its pledged assets, which could result in an unsecured claim against the lender for the difference between the amount loaned to the Company plus interest due to the counterparty and the fair value of the collateral pledged to such lender, including the accrued interest receivable, and cash posted by the Company as collateral.
At December 31, 2013 and 2012, the Company had a maximum amount at risk (the difference between the amount loaned to the Company, including interest payable, and the fair value of securities pledged, including accrued interest on such securities and cash posted by the Company as collateral) of approximately $19.9 million and $9.0 million, respectively. Summary information regarding amounts at risk with individual counterparties greater than
10% of equity at December 31, 2013 and 2012 is as follows:
|
(in thousands)
|
||||||||
|
Weighted
|
||||||||
|
Average
|
||||||||
|
Amount
|
Maturity
|
|||||||
|
Repurchase Agreement Counterparties
|
at Risk
|
(in Days)
|
||||||
|
December 31, 2013
|
||||||||
|
Citigroup Global Markets, Inc.
|
$ | 5,487 | 11 | |||||
|
December 31, 2012
|
||||||||
|
Citigroup Global Markets, Inc.
|
$ | 3,714 | 18 | |||||
|
South Street Securities, LLC
|
1,802 | 7 | ||||||
|
Suntrust Robinson Humphrey, Inc.
|
1,123 | 7 | ||||||
|
The PrinceRidge Group, LLC
|
979 | 15 | ||||||
|
KGS - Alpha Capital Markets, L.P.
|
843 | 21 | ||||||
|
Cantor Fitzgerald & Co.
|
541 | 4 | ||||||
-85-
At December 31, 2013, Bimini Capital had a maximum amount at risk (the difference between the amount loaned to Bimini Capital, including interest payable, and the fair value of securities pledged, including accrued interest on such securities) of approximately $1.6 million.
Summary information regarding amounts at risk with individual counterparties greater than 10% of stockholders’ equity attributable to Bimini Capital equity at December 31, 2013 is as follows:
|
(in thousands)
|
||||||||
|
Weighted
|
||||||||
|
Average
|
||||||||
|
Amount
|
Maturity
|
|||||||
|
Repurchase Agreement Counterparties
|
at Risk
|
(in Days)
|
||||||
|
December 31, 2013
|
||||||||
|
Suntrust Robinson Humphrey, Inc.
|
$ | 715 | 3 | |||||
|
The PrinceRidge Group, LLC
|
559 | 21 | ||||||
In connection with its
interest rate risk management strategy, the Company economically hedges a portion of the cost of its repurchase agreement funding and junior subordinated notes by entering into derivative financial instrument contracts. The Company has not elected hedging treatment under GAAP, and as such all gains or losses (realized and unrealized) on these instruments are reflected in earnings for all periods presented.
As of December 31, 2013, such instruments were comprised entirely of
Eurodollar futures contracts. Eurodollar futures are cash settled futures contracts on an interest rate, with gains or losses credited or charged to the Company’s account on a daily basis and reflected in earnings as they occur. A minimum balance, or “margin”, is required to be maintained in the account on a daily basis. The Company is exposed to the changes in value of the futures by the amount of margin held by the broker. This margin represents the collateral the Company has posted for its open positions and is recorded on the consolidated balance sheet as part of restricted cash.
The tables below present information related to the Company’s Eurodollar futures positions at December 31, 2013 and 2012.
|
(in thousands)
|
||||||||||||||||||||||||
|
Eurodollar Futures Positions (Consolidated)
|
||||||||||||||||||||||||
|
As of December 31, 2013
|
||||||||||||||||||||||||
|
Repurchase Agreement Funding Hedges
|
Junior Subordinated Debt Funding Hedges
|
|||||||||||||||||||||||
|
Weighted
|
Average
|
Weighted
|
Average
|
|||||||||||||||||||||
|
Average
|
Contract
|
Average
|
Contract
|
|||||||||||||||||||||
|
LIBOR
|
Notional
|
Open
|
LIBOR
|
Notional
|
Open
|
|||||||||||||||||||
|
Expiration Year
|
Rate
|
Amount
|
Equity
(1)
|
Rate
|
Amount
|
Equity
(1)
|
||||||||||||||||||
|
2014
|
0.40 | % | $ | 262,500 | $ | (189 | ) | 0.35 | % | $ | 26,000 | $ | (428 | ) | ||||||||||
|
2015
|
0.80 | % | 275,000 | (146 | ) | 0.80 | % | 26,000 | (176 | ) | ||||||||||||||
|
2016
|
1.90 | % | 250,000 | 1,367 | 1.74 | % | 26,000 | 9 | ||||||||||||||||
|
2017
|
3.03 | % | 250,000 | 2,291 | - | - | - | |||||||||||||||||
|
2018
|
3.77 | % | 250,000 | 1,575 | - | - | - | |||||||||||||||||
| 2.02 | % | $ | 4,898 | 0.89 | % | $ | (595 | ) | ||||||||||||||||
|
Cash posted as collateral, included in restricted cash
|
$ | 2,557 | ||||||||||||||||||||||
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|
(in thousands)
|
||||||||||||||||||||||||
|
Eurodollar Futures Positions (Consolidated)
|
||||||||||||||||||||||||
|
As of December 31, 2012
|
||||||||||||||||||||||||
|
Repurchase Agreement Funding Hedges
|
Junior Subordinated Debt Funding Hedges
|
|||||||||||||||||||||||
|
Weighted
|
Average
|
Weighted
|
Average
|
|||||||||||||||||||||
|
Average
|
Contract
|
Average
|
Contract
|
|||||||||||||||||||||
|
LIBOR
|
Notional
|
Open
|
LIBOR
|
Notional
|
Open
|
|||||||||||||||||||
|
Expiration Year
|
Rate
|
Amount
|
Equity
(1)
|
Rate
|
Amount
|
Equity
(1)
|
||||||||||||||||||
|
2013
|
0.34 | % | $ | 30,000 | $ | (375 | ) | 0.34 | % | $ | 21,000 | $ | (341 | ) | ||||||||||
|
2014
|
- | - | - | 0.48 | % | 26,000 | (393 | ) | ||||||||||||||||
|
2015
|
- | - | - | 0.74 | % | 26,000 | (192 | ) | ||||||||||||||||
|
2016
|
- | - | - | 1.01 | % | 26,000 | (57 | ) | ||||||||||||||||
| 0.34 | % | $ | (375 | ) | 0.57 | % | $ | (983 | ) | |||||||||||||||
|
Cash posted as collateral, included in restricted cash
|
$ | 227 | ||||||||||||||||||||||
|
(in thousands)
|
||||||||||||||||||||||||
|
Eurodollar Futures Positions (Parent-Only)
|
||||||||||||||||||||||||
|
As of December 31, 2013
|
||||||||||||||||||||||||
|
Repurchase Agreement Funding Hedges
|
Junior Subordinated Debt Funding Hedges
|
|||||||||||||||||||||||
|
Weighted
|
Average
|
Weighted
|
Average
|
|||||||||||||||||||||
|
Average
|
Contract
|
Average
|
Contract
|
|||||||||||||||||||||
|
LIBOR
|
Notional
|
Open
|
LIBOR
|
Notional
|
Open
|
|||||||||||||||||||
|
Expiration Year
|
Rate
|
Amount
|
Equity
|
Rate
|
Amount
|
Equity
(1)
|
||||||||||||||||||
|
2014
|
- | $ | - | $ | - | 0.35 | % | $ | 26,000 | $ | (428 | ) | ||||||||||||
|
2015
|
- | - | - | 0.80 | % | 26,000 | (176 | ) | ||||||||||||||||
|
2016
|
- | - | - | 1.74 | % | 26,000 | 9 | |||||||||||||||||
| - | $ | - | 0.89 | % | $ | (595 | ) | |||||||||||||||||
|
Cash posted as collateral, included in restricted cash
|
$ | 112 | ||||||||||||||||||||||
The tables below present the effect of the Company’s derivative financial instruments on the consolidated statements of operations for the years ended December 31, 2013 and 2012.
|
(in thousands)
|
||||||||||||||||
|
Consolidated
|
Parent-Only
|
|||||||||||||||
|
Eurodollar futures contracts (short positions)
|
2013
|
2012
|
2013
|
2012
|
||||||||||||
|
Repurchase Agreement Hedges
|
$ | 4,806 | $ | (235 | ) | $ | (22 | ) | $ | (196 | ) | |||||
|
Junior Subordinated Notes Hedges
|
31 | (530 | ) | 31 | (530 | ) | ||||||||||
| $ | 4,837 | $ | (765 | ) | $ | 9 | $ | (726 | ) | |||||||
During 2005, Bimini Capital sponsored the formation of a statutory trust, known as Bimini Capital Trust II (“BCTII”) of which 100% of the common equity is owned by Bimini Capital. It was formed for the purpose of issuing trust preferred capital securities to third-party investors and investing the proceeds from the sale of such capital securities solely in junior subordinated debt securities of Bimini Capital. The debt securities held by BCTII are the sole assets of BCTII.
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As of December 31, 2013 and 2012, the outstanding principal balance on the junior subordinated debt securities owed to BCTII was $26.8 million. The BCTII trust preferred securities and Bimini Capital's BCTII Junior Subordinated Notes have a rate of interest that floats at a spread of 3.50% over the prevailing three-month LIBOR rate. As of December 31, 2013, the interest rate was 3.74%. The BCTII trust preferred securities and Bimini Capital's BCTII Junior Subordinated Notes require quarterly interest distributions and are redeemable at Bimini Capital's option, in whole or in part and without penalty, beginning December 15, 2010. Bimini Capital's BCTII Junior Subordinated Notes are subordinate and junior in right of payment of all present and future senior indebtedness.
The trust is a VIE because the holders of the equity investment at risk do not have adequate decision making ability over the trust's activities. Since Bimini Capital's investment in the trust's common equity securities was financed directly by the trust as a result of its loan of the proceeds to Bimini Capital, that investment is not considered to be an equity investment at risk. Since Bimini Capital's common share investment in BCTII is not a variable interest, Bimini Capital is not the primary beneficiary of BCTII. Therefore, Bimini Capital has not consolidated the financial statements of BCTII into its financial statements.
The accompanying consolidated financial statements present Bimini Capital's BCTII Junior Subordinated Notes issued to the trust as a liability and Bimini Capital's investment in the common equity securities of BCTII as an asset (included in prepaid expenses and other assets, net). For financial statement purposes, Bimini Capital records payments of interest on the Junior Subordinated Notes issued to BCTII as interest expense.
Authorized Shares
The total number of shares of capital stock which the Company has the authority to issue is 110,000,000 shares, classified as 100,000,000 shares of Common Stock, and 10,000,000 shares of preferred stock. The Board of Directors has the authority to classify any unissued shares by setting or changing in any one or more respects the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends, qualifications or terms or conditions of redemption of such shares.
Common Stock
Of the 100,000,000 authorized shares of common stock, 98,000,000 shares were designated as Class A Common Stock, 1,000,000 shares were designated as Class B Common Stock and 1,000,000 shares were designated as Class C Common Stock. Holders of shares of common stock have no sinking fund or redemption rights and have no pre-emptive rights to subscribe for any of the Company’s securities. All common shares have a $0.001 par value.
Class A Common Stock
Each outstanding share of Class A Common Stock entitles the holder to one vote on all matters submitted to a vote of stockholders, including the election of directors. Holders of shares of Class A Common Stock are not entitled to cumulate their votes in the election of directors.
Subject to the preferential rights of any other class or series of stock and to the provisions of the Company's charter, as amended, regarding the restrictions on transfer of stock, holders of shares of Class A Common Stock are entitled to receive dividends on such stock if, as and when authorized and declared by the Board of Directors.
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|
Class B Common Stock
|
Each outstanding share of Class B Common Stock entitles the holder to one vote on all matters submitted to a vote of common stockholders, including the election of directors. Holders of shares of Class B Common Stock are not entitled to cumulate their votes in the election of directors. Holders of shares of Class A Common Stock and Class B Common Stock shall vote together as one class in all matters except that any matters which would adversely affect the rights and preferences of Class B Common Stock as a separate class shall require a separate approval by holders of a majority of the outstanding shares of Class B Common Stock. Holders of shares of Class B Common Stock are entitled to receive dividends on each share of Class B Common Stock in an amount equal to the dividends declared on each share of Class A Common Stock if, as and when authorized and declared by the Board of Directors.
Each share of Class B Common Stock shall automatically be converted into one share of Class A Common Stock on the first day of the fiscal quarter following the fiscal quarter during which the Company's Board of Directors were notified that, as of the end of such fiscal quarter, the stockholders' equity attributable to the Class A Common Stock, calculated on a pro forma basis as if conversion of the Class B Common Stock (or portion thereof to be converted) had occurred, and otherwise determined in accordance with GAAP, equals no less than $150.00 per share (adjusted equitably for any stock splits, stock combinations, stock dividends or the like); provided, that the number of shares of Class B Common Stock to be converted into Class A Common Stock in any quarter shall not exceed an amount that will cause the stockholders' equity attributable to the Class A Common Stock calculated as set forth above to be less than $150.00 per share; provided further, that such conversions shall continue to occur until all shares of Class B Common Stock have been converted into shares of Class A Common Stock; and provided further, that the total number of shares of Class A Common Stock issuable upon conversion of the Class B Common Stock shall not exceed 3% of the total shares of common stock outstanding prior to completion of an initial public offering of Bimini Capital's Class A Common Stock.
Class C Common Stock
No dividends will be paid on the Class C Common Stock. Holders of shares of Class C Common Stock are not entitled to vote on any matter submitted to a vote of stockholders, including the election of directors, except that any matters that would adversely affect the rights and privileges of the Class C Common Stock as a separate class shall require the approval of a majority of the Class C Common Stock.
Each share of Class C Common Stock shall automatically be converted into one share of Class A Common Stock on the first day of the fiscal quarter following the fiscal quarter during which the Company's Board of Directors were notified that, as of the end of such fiscal quarter, the stockholders' equity attributable to the Class A Common Stock, calculated on a pro forma basis as if conversion of the Class C Common Stock had occurred and giving effect to the conversion of all of the shares of Class B Common Stock as of such date, and otherwise determined in accordance with GAAP, equals no less than $150.00 per share (adjusted equitably for any stock splits, stock combinations, stock dividends or the like); provided, that the number of shares of Class C Common Stock to be converted into Class A Common Stock shall not exceed an amount that will cause the stockholders' equity attributable to the Class A Common Stock calculated as set forth above to be less than $150.00 per share; and provided further, that such conversions shall continue to occur until all shares of Class C Common Stock have been converted into shares of Class A Common Stock and provided further, that the total number of shares of Class A Common Stock issuable upon conversion of the Class C Common Stock shall not exceed 3% of the total shares of common stock outstanding prior to completion of an initial public offering of Bimini Capital's Class A Common Stock.
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Preferred Stock
General
There are 10,000,000 authorized shares of preferred stock, with a $0.001 par value per share. The Company's Board of Directors has the authority to classify any unissued shares of preferred stock and to reclassify any previously classified but unissued shares of any series of preferred stock previously authorized by the Board of Directors. Prior to issuance of shares of each class or series of preferred stock, the Board of Directors is required by the Company’s charter to fix the terms, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications and terms or conditions of redemption for each such class or series.
Classified and Designated Shares
Pursuant to the Company’s supplementary amendment of its charter, effective November 3, 2005, and by resolutions adopted on September 29, 2005, the Company’s Board of Directors classified and designated 1,800,000 shares of the authorized but unissued preferred stock, $0.001 par value, as Class A Redeemable Preferred Stock and 2,000,000 shares of the authorized but unissued preferred stock as Class B Redeemable Preferred Stock.
Class A Redeemable Preferred Stock and Class B Redeemable Preferred Stock
The Class A Redeemable Preferred Stock and Class B Redeemable Preferred Stock rank equal to each other and shall have the same preferences, rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms; provided, however that the redemption provisions of the Class A Redeemable Preferred Stock and the Class B Redeemable Preferred Stock differ. Each outstanding share of Class A Redeemable Preferred Stock and Class B Redeemable Preferred Stock shall have one-fifth of a vote on all matters submitted to a vote of stockholders (or such lesser fraction of a vote as would be required to comply with the rules and regulations of the NYSE relating to the Company’s right to issue securities without obtaining a stockholder vote). Holders of shares of preferred stock shall vote together with holders of shares of common stock as one class in all matters that would be subject to a vote of stockholders.
The previously outstanding shares of Class A Redeemable Preferred Stock were converted into Class A Common Stock on April 28, 2006. No shares of the Class B Redeemable Preferred Stock have ever been issued.
-90-
Ownership Limitations
Bimini Capital’s amended charter, subject to certain exceptions, contains certain restrictions on the number of shares of stock that a person may own. Bimini Capital’s amended charter contains a stock ownership limit that prohibits any person from acquiring or holding, directly or indirectly, applying attribution rules under the Code, shares of stock in excess of 4.98% of the total number or value of the outstanding shares of Bimini Capital’s common stock, whichever is more restrictive, or Bimini Capital’s stock in the aggregate. Bimini Capital’s amended charter further prohibits (i) any person from beneficially or constructively owning shares of Bimini Capital’s stock that would result in Bimini Capital being "closely held" under Section 856(h) of the Code or otherwise cause Bimini Capital to fail to qualify as a REIT, and (ii) any person from transferring shares of Bimini Capital’s stock if such transfer would result in shares of Bimini Capital’s stock being owned by fewer than 100 persons. Bimini Capital’s Board of Directors, in its sole discretion, may exempt a person from the stock ownership limit. However, Bimini Capital’s Board of Directors may not grant such an exemption to any person whose ownership, direct or indirect, of in excess of 9.8% of the number or value of the outstanding shares of Bimini Capital’s stock (whichever is more restrictive) would result in Bimini Capital being "closely held" within the meaning of Section 856(h) of the Code or otherwise would result in failing to qualify as a REIT. The person seeking an exemption must represent to the satisfaction of Bimini Capital’s Board of Directors that it will not violate the aforementioned restriction. The person also must agree that any violation or attempted violation of any of the foregoing restrictions will result in the automatic transfer of the shares of stock causing such violation to the trust (as defined below). Bimini Capital’s Board of Directors may require a ruling from the IRS or an opinion of counsel, in either case in form and substance satisfactory to Bimini Capital’s Board of Directors in its sole discretion, to determine or ensure Bimini Capital’s qualification as a REIT.
Any person who acquires or attempts or intends to acquire beneficial or constructive ownership of shares of Bimini Capital’s stock that will or may violate any of the foregoing restrictions on transferability and ownership, or any person who would have owned shares of Bimini Capital’s stock that resulted in a transfer of shares to the trust in the manner described below, will be required to give notice immediately to Bimini Capital and provide Bimini Capital with such other information as Bimini Capital may request in order to determine the effect of such transfer on the Company.
If any transfer of shares of Bimini Capital’s stock occurs which, if effective, would result in any person beneficially or constructively owning shares of Bimini Capital’s stock in excess or in violation of the above transfer or ownership limitations, then that number of shares of Bimini Capital’s stock the beneficial or constructive ownership of which otherwise would cause such person to violate such limitations (rounded to the nearest whole share) shall be automatically transferred to a trust for the exclusive benefit of one or more charitable beneficiaries, and the prohibited owner shall not acquire any rights in such shares. Such automatic transfer shall be deemed to be effective as of the close of business on the business day prior to the date of such violative transfer. Shares of stock held in the trust shall be issued and outstanding shares of Bimini Capital’s stock. The prohibited owner shall not benefit economically from ownership of any shares of stock held in the trust, shall have no rights to dividends and shall not possess any rights to vote or other rights attributable to the shares of stock held in the trust. The trustee of the trust shall have all voting rights and rights to dividends or other distributions with respect to shares of stock held in the trust, which rights shall be exercised for the exclusive benefit of the charitable beneficiary. Any dividend or other distribution paid prior to the discovery by Bimini Capital that shares of stock have been transferred to the trustee shall be paid by the recipient of such dividend or distribution to the trustee upon demand, and any dividend or other distribution authorized but unpaid shall be paid when due to the trustee. Any dividend or distribution so paid to the trustee shall be held in trust for the charitable beneficiary. The prohibited owner shall have no voting rights with respect to shares of stock held in the trust and, subject to Maryland law, effective as of the date that such shares of stock have been transferred to the trust, the trustee shall have the authority (at the trustee's sole discretion) (i) to rescind as void any vote cast by a prohibited owner prior to the discovery by Bimini Capital that such shares have been transferred to the trust, and (ii) to recast such vote in accordance with the desires of the trustee acting for the benefit of the charitable beneficiary. However, if Bimini Capital has already taken irreversible corporate action, then the trustee shall not have the authority to rescind and recast such vote.
-91-
Within 20 days after receiving notice from Bimini Capital that shares of Bimini Capital’s stock have been transferred to the trust, the trustee shall sell the shares of stock held in the trust to a person, whose ownership of the shares will not violate any of the ownership limitations set forth in Bimini Capital’s amended charter. Upon such sale, the interest of the charitable beneficiary in the shares sold shall terminate and the trustee shall distribute the net proceeds of the sale to the prohibited owner and to the charitable beneficiary as follows. The prohibited owner shall receive the lesser of (i) the price paid by the prohibited owner for the shares or, if the prohibited owner did not give value for the shares in connection with the event causing the shares to be held in the trust (e.g., a gift, devise or other such transaction), the market price, as defined in Bimini Capital’s amended charter, of such shares on the day of the event causing the shares to be held in the trust and (ii) the price per share received by the trustee from the sale or other disposition of the shares held in the trust, in each case reduced by the costs incurred to enforce the ownership limits as to the shares in question. Any net sale proceeds in excess of the amount payable to the prohibited owner shall be paid immediately to the charitable beneficiary. If, prior to the discovery by Bimini Capital that shares of Bimini Capital’s stock have been transferred to the trust, such shares are sold by a prohibited owner, then (i) such shares shall be deemed to have been sold on behalf of the trust and (ii) to the extent that the prohibited owner received an amount for such shares that exceeds the amount that such prohibited owner was entitled to receive pursuant to the aforementioned requirement, such excess shall be paid to the trustee upon demand.
In addition, shares of Bimini Capital’s stock held in the trust shall be deemed to have been offered for sale to Bimini Capital, or Bimini Capital’s designee, at a price per share equal to the lesser of (i) the price per share in the transaction that resulted in such transfer to the trust (or, in the case of a devise or gift, the market price at the time of such devise or gift) and (ii) the market price on the date Bimini Capital, or Bimini Capital’s designee, accept such offer. Bimini Capital shall have the right to accept such offer until the trustee has sold the shares of stock held in the trust. Upon such a sale to Bimini Capital, the interest of the charitable beneficiary in the shares sold shall terminate and the trustee shall distribute the net proceeds of the sale to the prohibited owner.
|
Shares Issued Related To:
|
2013
|
2012
|
||||||
|
Directors' compensation
|
- | 505,058 | ||||||
|
Vesting incentive plan shares
|
892,844 | 25,000 | ||||||
|
Total shares of Class A Common Stock issued
|
892,844 | 530,058 | ||||||
On December 18, 2003, Bimini Capital adopted the 2003 Long Term Incentive Compensation Plan (the “2003 Plan”) to provide Bimini Capital with the flexibility to use stock options and other awards as part of an overall compensation package to provide a means of performance-based compensation to attract and retain qualified personnel. The 2003 Plan was amended and restated in March 2004. Key employees, directors and consultants are eligible to be granted stock options, restricted stock, phantom shares, dividend equivalent rights and other stock-based awards under the 2003 Plan. Subject to adjustment upon certain corporate transactions or events, a maximum of 1,448,050 shares of the Class A Common Stock (but not more than 10% of the Class A Common Stock outstanding on the date of grant) may be subject to stock options, shares of restricted stock, phantom shares and dividend equivalent rights under the 2003 Plan.
-92-
On August 12, 2011, Bimini Capital’s shareholders approved the 2011 Long Term Compensation Plan (the “2011 Plan”) to assist the Company in recruiting and retaining employees, directors and other service providers by enabling them to participate in the success of Bimini Capital and to associate their interest with those of the Company and its stockholders. After the approval of the 2011 Plan, the Board of Directors agreed that it would no longer issue awards under the 2003 Plan. The plan is intended to permit the grant of stock options, stock appreciation rights (“SARs”), stock awards, performance units and other equity-based and incentive awards. The maximum aggregate number of shares of Common Stock that may be issued under the 2011 Plan pursuant to the exercise of options and SARs, the grant of stock awards or other equity-based awards and the settlement of incentive awards and performance units is equal to 4,000,000 shares.
In October 2012, Orchid adopted the 2012 Equity Incentive Plan (the “2012 Plan”) to recruit and retain employees, directors and other service providers, including employees of Bimini Capital and other affiliates. The 2012 Plan provides for the award of stock options, stock appreciation rights, stock award, performance units, other equity-based awards (and dividend equivalents with respect to awards of performance units and other equity-based awards) and incentive awards. The 2012 Plan is administered by the Compensation Committee of Orchid’s Board of Directors except that Orchid’s full Board of Directors will administer awards made to directors who are not employees of Orchid or its affiliates. The 2012 Plan provides for awards of up to an aggregate of 10% of the issued and outstanding shares of Orchid’s common stock (on a fully diluted basis) at the time of the awards, subject to a maximum aggregate 4,000,000 shares of Orchid common stock that may be issued under the Incentive Plan. To date, no awards have been made under the Incentive Plan.
Phantom share awards represent a right to receive a share of Bimini Capital's Class A Common Stock. These awards do not have an exercise price and are valued at the fair value of Bimini Capital’s Class A Common Stock at the date of the grant. The grant date value is amortized to compensation expense on a straight-line basis over the vesting period of the respective award. The phantom shares vest, based on the employees’ continuing employment, following a schedule as provided in the individual grant agreements. Compensation expense recognized for phantom shares was approximately $279,000 and $87,000 for the years ended December 31, 2013 and 2012, respectively. Dividends paid on unsettled awards are charged to stockholders’ equity when declared.
|
2013
|
2012
|
|||||||||||||||
|
Weighted-
|
Weighted-
|
|||||||||||||||
|
Average
|
Average
|
|||||||||||||||
|
|
Grant-Date
|
Grant-Date
|
||||||||||||||
|
|
Shares
|
Fair Value
|
Shares
|
Fair Value
|
||||||||||||
|
Nonvested, at January 1
|
367,844 | $ | 1.11 | 367,844 | $ | 1.11 | ||||||||||
|
Granted during the year
|
525,000 | 0.23 | 25,000 | 0.11 | ||||||||||||
|
Vested during the year
|
(892,844 | ) | 0.60 | (25,000 | ) | 0.11 | ||||||||||
|
Nonvested, at December 31
|
- | $ | - | 367,844 | $ | 1.11 | ||||||||||
In July 2013, the Compensation Committee of the Board of Directors of Bimini Capital approved certain performance bonuses for members of management. These bonuses were awarded primarily in recognition of management’s efforts in completing the Orchid initial public offering. The bonuses, which were paid on August 13, 2013 (the “Bonus Date”), consisted of cash and fully vested shares of the Company’s common stock issued under the 2011 Plan. In particular, executive officers and senior employees received bonuses totaling approximately $167,000, consisting of 525,000 shares of the Company’s common stock with an approximate value of $122,000, and cash of approximately $45,000. For purposes of these bonuses, shares of the Company’s common stock were valued based on the closing price of the Company’s common stock on the Bonus Date.
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The Compensation Committee also approved the acceleration of the vesting of all outstanding, unvested equity awards held by management, as well as cash bonuses equal to 35% of the taxable income created by such vesting. The accelerated vesting date was the Bonus Date. Expenses associated with each of the transactions described above were recorded in the year ended December 31, 2013.
The Company is involved in various lawsuits and claims, both actual and potential, including some that it has asserted against others, in which monetary and other damages are sought. These lawsuits and claims relate primarily to contractual disputes arising out of the ordinary course of the Company’s business. The outcome of such lawsuits and claims is inherently unpredictable. However, management believes that, in the aggregate, the outcome of all lawsuits and claims involving the Company will not have a material effect on the Company’s consolidated financial position or liquidity; however, any such outcome may be material to the results of operations of any particular period in which costs, if any, are recognized.
A complaint by a note-holder in Preferred Term Securities XX (“PreTSL XX”) was filed on July 16, 2010 in the Supreme Court of the State of New York, New York County, against Bimini Capital Management, Inc. (“Bimini”), the Bank of New York Mellon (“BNYM”), PreTSL XX, Ltd. and Hexagon Securities, LLC (“Hexagon”). The complaint, filed by Hildene Capital Management, LLC and Hildene Opportunities Fund, Ltd. (“Hildene”), alleges that Hildene suffered losses as a result of Bimini’s repurchase of all outstanding fixed/floating rate capital securities of Bimini Capital Trust II for less than par value from PreTSL XX in October 2009. Hildene has alleged claims against BNYM for breach of the Indenture, breach of fiduciary duties and breach of covenant of good faith and fair dealing, and claims against Bimini for tortious interference with contract, aiding and abetting breach of fiduciary duty, unjust enrichment and “rescission/illegality.” Hildene also alleged derivative claims brought in the name of Nominal Defendant BNYM. (Subsequently, Hexagon and Nominal Defendant PreTSL XX were voluntarily dismissed without prejudice by Hildene.) PreTSL XX, Ltd. moved to intervene as an additional plaintiff in the action, and Bimini and BNYM opposed that motion. The court granted PreTSL XX, Ltd.’s motion to intervene, and the Appellate Division, First Department affirmed that decision. In May 2013, Hildene voluntarily dismissed its purported derivative claims brought in the name of BNYM, including its claim for “rescission/illegality.” Bimini denies that the repurchase was improper and intends to continue to defend the suit vigorously
On March 2, 2011, Orchid Island TRS, LLC, formerly known as Opteum Financial Services, LLC and presently known as Mortco, LLC (“Opteum Financial”) and Opteum Mortgage Acceptance Corporation (“Opteum Acceptance”) (collectively referred to herein as “MortCo”) received a cover letter dated March 1, 2011 from Massachusetts Mutual Life Insurance Company (“Mass Mutual”) enclosing a draft complaint against MortCo. In summary, Mass Mutual alleges that it purchased residential mortgage-backed securities offered by MortCo in August 2005 and the first quarter of 2006 and that MortCo made false representations and warranties in connection with the sale of the securities in violation of Mass Gen. Laws Ch. 110A § 410(a)(2) (the “Massachusetts Blue Sky Law”). In its cover letter, Mass Mutual claims it is entitled to damages in excess of $25 million. However, no monetary demand is contained within the enclosed draft complaint and the actual damages Mass Mutual claims to have incurred is uncertain.
Mass Mutual has not filed the complaint or initiated litigation. Pursuant to its request, on March 14, 2011 Mass Mutual and MortCo entered into a Tolling Agreement through June 1, 2011 so that Mass Mutual could address its allegations against MortCo without incurring litigation costs. Mass Mutual never contacted MortCo to schedule such discussions. On August 22, 2011, the parties extended the Tolling Agreement through June 1, 2013, and on May 31, 2013, the parties extended the Tolling Agreement through December 2, 2013. To date, MortCo is aware of no action taken by Mass Mutual, and the Tolling Agreement appears to have expired by its own terms.
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MortCo denies Opteum Financial or Opteum Acceptance, individually or collectively, made false representations and warranties in connection with the sale of securities to Mass Mutual. Mass Mutual has taken no action to prosecute its claim against MortCo, and the range of loss or potential loss, if any, cannot reasonably be estimated. Should Mass Mutual initiate litigation, MortCo will defend such litigation vigorously.
Loans Sold to Investors
.
Generally, MortCo was not exposed to significant credit risk on its loans sold to investors. In the normal course of business, MortCo provided certain representations and warranties during the sale of mortgage loans which included an obligation, under certain circumstances, to repurchase loans which were subsequently unable to be sold through the normal investor channels. MortCo had previously recorded a liability of approximately $4.7 million, which was included in “accounts payable, accrued expenses and other”, for the estimated fair value of this contingent obligation. During the year ended December 31, 2013, the Company evaluated this position and determined that the statute of limitations had expired for creditors to pursue claims related to this obligation. As such, this liability was reversed and included in “other income” in the accompanying 2013 consolidated statement of operations.
REIT Activities
Generally, REITs are not subject to federal income tax on REIT taxable income distributed to its shareholders. REIT taxable income or loss, as generated by qualifying REIT activities, is computed in accordance with the Internal Revenue Code, which is different from the financial statement net income or loss as computed in accordance with GAAP. Depending on the number and size of the various items or transactions being accounted for differently, the differences between the Company’s REIT taxable income or loss and its GAAP financial statement net income or loss can be substantial and each item can affect several years.
As of December 31, 2013, Bimini Capital had a REIT tax net operating loss carryforward of approximately $17.9 million that is immediately available to offset future REIT taxable income. The REIT tax net operating loss carryforwards will expire in years 2028 through 2033.
As discussed in Note 1, Orchid was a qualified REIT subsidiary of Bimini Capital until the closing of its IPO and all of its activities were included with the activities on Bimini Capital through that date. Subsequent to the closing of its IPO, Orchid is taxed separately from Bimini Capital.
Taxable REIT Subsidiaries
As taxable REIT subsidiaries (“TRS”), Bimini Advisors and MortCo are tax paying entities for income tax purposes and are taxed separately from Bimini Capital, Orchid and from each other. Therefore, Bimini Advisors and MortCo each separately report an income tax provision or benefit based on their own taxable activities. For the years ended December 31, 2013 and 2012, MortCo had no taxable income primarily due to the utilization of NOL carryforwards; and Bimini Advisors has losses from its inception for income tax purposes.
The TRS income tax provisions for the years ended December 31, 2013 and 2012 differ from the amount determined by applying the statutory Federal rate of 35% to the pre-tax income or loss due primarily to the recording of, and adjustments to, the deferred tax asset valuation allowance. During the years ended December 31, 2013 and 2012, a portion of the deferred tax asset valuation allowance was reversed, as the utilization of this portion of the deferred tax asset was deemed more likely than not, due to the utilization of NOLs to offset estimated taxable income.
-95-
As of December 31, 2013, MortCo has estimated federal NOL carryforwards of approximately $267.1 million, and estimated available Florida NOLs of approximately $39.6 million, both of which begin to expire in 2025, and are fully available to offset future federal and Florida taxable income, respectively. All other MortCo state NOLs have been abandoned. Bimini Advisors has estimated federal and Florida NOL carryforwards of approximately $2.2 million which begin to expire in 2031 and are fully available to offset future federal and Florida taxable income.
The net deferred tax assets and offsetting valuation allowances for MortCo at December 31, 2013 are both approximately $96.2 million.
The net deferred tax assets and offsetting valuation allowances for Bimini Advisors at December 31, 2013 are both approximately $2.1 million. The ultimate realization of the deferred tax assets is dependent upon the generation of future taxable income from the operations of each of the respective entities. At December 31, 2013 and December 31, 2012, management believed that it was more likely than not that neither TRS would realize the full benefits of all of the federal and Florida tax NOL carryforwards (which are the primary deferred tax assets); therefore, an allowance for the full amount of the deferred tax assets has been recorded in both periods. Management considers the projected future taxable income or losses, and tax planning strategies in making this assessment.
MortCo holds residual interests in various real estate mortgage investment conduits (“REMICs”), which were issued in 2004, 2005 and 2006, some of which generate excess inclusion income (“EII”), a type of taxable income pursuant to specific provisions of the Code. Through 2007, MortCo based its tax position on advice received from tax consultants regarding the taxability of EII. During 2008, MortCo re-evaluated its EII tax position, and concluded that it was no longer more likely than not that the pre-2008 tax position would be fully sustained upon examination. Based on this conclusion, MortCo recorded a liability of approximately $2.1 million for taxes, interest and penalties related to this uncertain tax position during 2008.
During 2010 (as part of the filing of its 2009 tax returns), MortCo reached a tax filing position related to this issue, reported EII taxable income of approximately $2.1 million, paid $0.8 million of income tax, interest and penalties, and included a notice of inconsistent treatment in its tax returns. Because of the continued uncertainty surrounding the taxation of EII, MortCo continued to account for the pre-2008 tax position as being more likely than not that the tax position would not be fully sustained upon examination. On September 15, 2013, the statute of limitations for the IRS to challenge MortCo’s pre-2008 tax position expired. As such, the remaining balance of this liability was reversed during the year ended December 31, 2013, which resulted in a tax benefit of $1.3 million.
Shares of Class B Common Stock, participating and convertible into Class A Common Stock, are entitled to receive dividends in an amount equal to the dividends declared on each share of Class A Common Stock if, and when, authorized and declared by the Board of Directors. Following the provisions of FASB ASC 260, the Class B Common Stock is included in the computation of basic EPS using the two-class method, and consequently is presented separately from Class A Common Stock. Shares of Class B Common Stock are not included in the computation of diluted Class A EPS as the conditions for conversion to Class A Common Stock were not met at December 31, 2013 and 2012.
Shares of Class C Common Stock are not included in the basic EPS computation as these shares do not have participation rights. Shares of Class C Common Stock are not included in the computation of diluted Class A EPS as the conditions for conversion to Class A Common Stock were not met at December 31, 2013 and 2012.
-96-
The Company has dividend eligible stock incentive plan shares that were outstanding during the years ended December 31, 2013 and 2012. The basic and diluted per share computations include these unvested incentive plan shares if there is income available to Class A Common Stock, as they have dividend participation rights. The stock incentive plan shares have no contractual obligation to share in losses. Since there is no such obligation, the incentive plan shares are not included in the basic and diluted EPS computations when no income is available to Class A Common Stock even though they are considered participating securities.
|
(in thousands, except per-share information)
|
||||||||
|
2013
|
2012
|
|||||||
|
Basic and diluted EPS per Class A common share:
|
||||||||
|
Loss attributable to Class A common shares:
|
||||||||
|
Basic and diluted
|
$ | (2,323 | ) | $ | (2,024 | ) | ||
|
Weighted average common shares:
|
||||||||
|
Class A common shares outstanding at the balance sheet date
|
11,510 | 10,617 | ||||||
|
Effect of weighting
|
(544 | ) | (349 | ) | ||||
|
Weighted average shares-basic and diluted
|
10,966 | 10,268 | ||||||
|
Loss per Class A common share:
|
||||||||
|
Basic and diluted
|
$ | (0.21 | ) | $ | (0.20 | ) | ||
|
(in thousands, except per-share information)
|
||||||||
|
2013
|
2012
|
|||||||
|
Basic and diluted EPS per Class B common share:
|
||||||||
|
Loss attributable to Class B common shares:
|
||||||||
|
Basic and diluted
|
$ | (7 | ) | $ | (6 | ) | ||
|
Weighted average common shares:
|
||||||||
|
Class B common shares outstanding at the balance sheet date
|
32 | 32 | ||||||
|
Effect of weighting
|
- | - | ||||||
|
Weighted average shares-basic and diluted
|
32 | 32 | ||||||
|
Loss per Class B common share:
|
||||||||
|
Basic and diluted
|
$ | (0.21 | ) | $ | (0.20 | ) | ||
Authoritative accounting literature establishes a framework for using fair value to measure assets and liabilities and defines fair value as the price that would be received to sell an asset or paid to transfer a liability (an exit price) as opposed to the price that would be paid to acquire the asset or received to assume the liability (an entry price). A fair value measure should reflect the assumptions that market participants would use in pricing the asset or liability, including the assumptions about the risk inherent in a particular valuation technique, the effect of a restriction on the sale or use of an asset and the risk of non-performance. Required disclosures include stratification of balance sheet amounts measured at fair value based on inputs the Company uses to derive fair value measurements. These stratifications are:
|
·
|
Level 1 valuations, where the valuation is based on quoted market prices for identical assets or liabilities traded in active markets (which include exchanges and over-the-counter markets with sufficient volume),
|
|
·
|
Level 2 valuations, where the valuation is based on quoted market prices for similar instruments traded in active markets, quoted prices for identical or similar instruments in markets that are not active and model-based valuation techniques for which all significant assumptions are observable in the market, and
|
-97-
|
·
|
Level 3 valuations, where the valuation is generated from model-based techniques that use significant assumptions not observable in the market, but observable based on Company-specific data. These unobservable assumptions reflect the Company’s own estimates for assumptions that market participants would use in pricing the asset or liability. Valuation techniques typically include option pricing models, discounted cash flow models and similar techniques, but may also include the use of market prices of assets or liabilities that are not directly comparable to the subject asset or liability.
|
The Company’s MBS are valued using Level 2 valuations, and such valuations currently are determined by the Company based on the average of third-party broker quotes and/or by independent pricing sources when available. Because the price estimates may vary, the Company must make certain judgments and assumptions about the appropriate price to use to calculate the fair values. Alternatively, the Company could opt to have the value of all of our MBS positions determined by either an independent third-party or do so internally.
Mortgage-backed securities, retained interests, Eurodollar futures contracts and mortgage loans held for sale were recorded at fair value on a recurring basis during 2013 and 2012. When determining fair value measurements, the Company considers the principal or most advantageous market in which it would transact and considers assumptions that market participants would use when pricing the asset. When possible, the Company looks to active and observable markets to price identical assets. When identical assets are not traded in active markets, the Company looks to market observable data for similar assets. Fair value measurements for the retained interests are generated by a model that requires management to make a significant number of assumptions.
The following table presents financial assets and liabilities measured at fair value on a recurring basis as of December 31, 2013 and 2012:
|
(in thousands)
|
||||||||||||||||
|
Quoted Prices
|
||||||||||||||||
|
in Active
|
Significant
|
|||||||||||||||
|
Markets for
|
Other
|
Significant
|
||||||||||||||
|
Identical
|
Observable
|
Unobservable
|
||||||||||||||
|
Fair Value
|
Assets
|
Inputs
|
Inputs
|
|||||||||||||
|
Measurements
|
(Level 1)
|
(Level 2)
|
(Level 3)
|
|||||||||||||
|
December 31, 2013
|
||||||||||||||||
|
Mortgage-backed securities
|
$ | 389,341 | $ | - | $ | 389,341 | $ | - | ||||||||
|
Eurodollar futures contracts
|
2,557 | 2,557 | - | - | ||||||||||||
|
Retained interests
|
2,531 | - | - | 2,531 | ||||||||||||
|
December 31, 2012
|
||||||||||||||||
|
Mortgage-backed securities
|
$ | 168,155 | $ | - | $ | 168,155 | $ | - | ||||||||
|
Eurodollar futures contracts
|
227 | 227 | - | - | ||||||||||||
|
Retained interests
|
3,336 | - | - | 3,336 | ||||||||||||
|
(in thousands)
|
||||||||||||
|
Retained Interests
|
Mortgage Loans Held for Sale
|
|||||||||||
|
2013
|
2012
|
2012
|
||||||||||
|
Balances, January 1
|
$ | 3,336 | $ | 3,495 | $ | 40 | ||||||
|
Gain (loss) included in earnings
|
2,470 | 4,323 | (18 | ) | ||||||||
|
Collections
|
(3,275 | ) | (4,482 | ) | (22 | ) | ||||||
|
Balances, December 31
|
$ | 2,531 | $ | 3,336 | $ | - | ||||||
-98-
During the years ended December 31, 2013 and 2012, there were no transfers of financial assets or liabilities between levels 1, 2 or 3.
Our retained interests are valued based on a discounted cash flow approach. These values are sensitive to changes in unobservable inputs, including: estimated prepayment speeds, default rates and loss severity, weighted-average life, and discount rates. Significant increases or decreases in any of these inputs may result in significantly different fair value measurements.
|
Retained interest fair value
(in thousands)
|
$
|
2,531
|
||
|
CPR Range
|
||||
|
Prepayment Assumption
|
(Weighted Average)
|
|||
|
Constant Prepayment Rate
|
10% (10%)
|
|||
|
Severity Range
|
||||
|
Default Assumptions
|
Probability of Default
|
(Weighted Average)
|
Range Of Loss Timing
|
|
|
Real Estate Owned
|
100%
|
34.69% - 74.16% (40.22%)
|
Next 10 Months
|
|
|
Loans in Foreclosure
|
100%
|
34.69% - 74.16% (40.22%)
|
Month 4 - 13
|
|
|
Loans 90 Day Delinquent
|
100%
|
45%
|
Month 11-28
|
|
|
Loans 60 Day Delinquent
|
85%
|
45%
|
Month 11-28
|
|
|
Loans 30 Day Delinquent
|
75%
|
45%
|
Month 11-28
|
|
|
Current Loans
|
2.84% - 4.71%
|
45%
|
Month 29 and Beyond
|
|
|
Remaining Life Range
|
Discount Rate Range
|
|||
|
Cash Flow Recognition
|
Valuation Technique
|
(Weighted Average)
|
(Weighted Average)
|
|
|
Nominal Cash Flows
|
Discounted Cash Flow
|
0.1 - 1.6 (0.5)
|
27.50% (27.50%)
|
|
|
Discounted Cash Flows
|
Discounted Cash Flow
|
0.1 - 1.3 (0.5)
|
27.50% (27.50%)
|
Frank E. Jaumot is a shareholder in an accounting firm from which the Company receives accounting and tax services. Mr. Jaumot is both a director and a shareholder of Bimini Capital and a shareholder of Orchid. Professional fees incurred with this firm were $99,000 and $114,000 for the years ended December 31, 2013 and 2012, respectively
.
As discussed in Note 1, Orchid completed its IPO on February 20, 2013. Bimini Capital owned 100% of the outstanding common stock of Orchid prior to the IPO, and approximately 29.38% after the IPO. Orchid operates as a mortgage REIT and was formed in order to increase Bimini Capital’s assets under management to generate additional revenues to cover operating costs. Orchid entered into a management agreement with Bimini Advisors under which Bimini Advisors will be responsible for administering the business activities and day-to-day operations of Orchid. Bimini Advisors receives a monthly management fee for these services. Bimini Capital and Bimini Advisors acted as sponsors of the Orchid IPO and paid approximately $
3.0 million of IPO related expenses during the year ended December 31, 2013. The Company did not provide any further financial or other support to Orchid.
-99-
The table below presents the effects of the above on the changes in equity attributable to Bimini Capital stockholders during the year ended December 31, 2013.
|
(in thousands)
|
||||
|
Net loss attributable to Bimini Capital
|
$ | (2,330 | ) | |
|
Transfers from the noncontrolling interests
|
||||
|
Increase in Bimini Capital's paid-in capital for the sale of 2,360,000 common shares of Orchid
|
278 | |||
|
Change from net loss attributable to Bimini Capital and transfers from noncontrolling interest
|
$ | (2,052 | ) | |
The noncontrolling interests reported in the Company’s Consolidated Financial Statements represent the portion of equity ownership in Orchid held by stockholders other than Bimini Capital. Noncontrolling interest is presented in the equity section of the consolidated balance sheet, separate from stockholders’ equity attributed to Bimini Capital. Net income of Orchid is allocated between the noncontrolling interests and to Bimini Capital in proportion to their relative ownership interests in Orchid.
|
(in thousands)
|
||||
|
Balance, January 1, 2013
|
$ | - | ||
|
Issuance of common shares of Orchid Island Capital, Inc.
|
35,122 | |||
|
Net loss attributed to noncontrolling interest
|
(215 | ) | ||
|
Cash dividends paid to noncontrolling interest
|
(3,292 | ) | ||
|
Balance, December 31, 2013
|
$ | 31,615 | ||
A VIE is an entity that either (i) has insufficient equity to permit the entity to finance its activities without additional subordinated financial support or (ii) has equity investors who lack the characteristics of a controlling financial interest. A VIE is consolidated by its primary beneficiary. The primary beneficiary has both the power to direct the activities that most significantly impact the entity's economic performance and the obligation to absorb losses or the right to receive benefits from the entity that could potentially be significant to the VIE.
Management has concluded that, after the close of its IPO, Orchid is a VIE because Orchid's equity holders lack the ability through voting rights to make decisions about its activities that have a significant effect on its success. Management has also concluded that Bimini Capital is the primary beneficiary of Orchid because, under the terms of the management agreement, Bimini Capital has the power to direct the activities of Orchid that most significantly impact its economic performance including asset selection, asset and liability management and investment portfolio risk management. As a result, subsequent to Orchid’s IPO and through December 31, 2013, the Company continued to consolidate Orchid in its Consolidated Financial Statements. This conclusion will be re-evaluated during subsequent reporting periods as the relationship between Bimini Capital and Orchid changes.
-100-
The following table presents the assets and liabilities of Orchid that are reflected on our consolidated balance sheet at December 31, 2013 (excluding intercompany balances).
|
(in thousands)
|
||||
|
ASSETS:
|
||||
|
Mortgage-backed securities, at fair value
|
||||
|
Pledged to counterparties
|
$ | 335,775 | ||
|
Unpledged
|
15,448 | |||
|
Total mortgage-backed securities
|
351,223 | |||
|
Cash and cash equivalents
|
8,169 | |||
|
Restricted cash
|
2,446 | |||
|
Accrued interest receivable
|
1,559 | |||
|
Prepaid expenses and other assets
|
179 | |||
|
Total Assets
|
$ | 363,576 | ||
|
LIABILITIES:
|
||||
|
Repurchase agreements
|
$ | 318,557 | ||
|
Accrued interest payable
|
91 | |||
|
Accounts payable, accrued expenses and other
|
80 | |||
|
Total Liabilities
|
$ | 318,728 | ||
The following table summarizes the operating results of Orchid (excluding intercompany transactions, including approximately $629,000 of management fees charged to Orchid) for the period beginning February 20, 2013 (the date of its IPO) through December 31, 2013 which are reflected in our consolidated statement of operations for the year ended December 31, 2013.
|
(in thousands)
|
||||
|
Interest income
|
$ | 8,817 | ||
|
Interest expense
|
(1,062 | ) | ||
|
Net interest income
|
7,755 | |||
|
Unrealized losses on mortgage-backed securities
|
(10,192 | ) | ||
|
Realized losses on mortgage-backed securities
|
(1,198 | ) | ||
|
Gains on Eurodollar futures
|
4,828 | |||
|
Net portfolio income
|
1,193 | |||
|
Expenses:
|
||||
|
Directors' fees and liability insurance
|
290 | |||
|
Audit, legal and other professional fees
|
321 | |||
|
Direct REIT operating expenses
|
142 | |||
|
Other administrative
|
115 | |||
|
Total expenses
|
868 | |||
|
Net income
|
$ | 325 | ||
Orchid completed a secondary offering of 1,800,000 common shares on January 23, 2014 at a price of $12.50 per share. The underwriters exercised their overallotment option in full for an additional 270,000 shares on January 29, 2014. The net proceeds to Orchid were approximately $24.2 million which were invested in Agency MBS securities on a leveraged basis.
-101-
We had no disagreements with our Independent Registered Public Accounting Firm on any matter of accounting principles or practices or financial statement disclosure.
Evaluation of Disclosure Controls and Procedures
As of the end of the period covered by this report (the “evaluation date”), the Company carried out an evaluation, under the supervision and with the participation of the Company’s management, including the Company’s Chief Executive Officer (“the CEO”) and Chief Financial Officer (“the CFO”), of the effectiveness of the design and operation of the Company’s disclosure controls and procedures, as defined in Rule 13a-15(e) under the Exchange Act. Based on this evaluation, the CEO and CFO concluded that the Company’s disclosure controls and procedures, as designed and implemented, were effective as of the evaluation date (1) in ensuring that information regarding the Company and its subsidiaries is accumulated and communicated to our management, including our CEO and CFO, by our employees, as appropriate to allow timely decisions regarding required disclosure and (2) in providing reasonable assurance that information the Company must disclose in its periodic reports under the Securities Exchange Act is recorded, processed, summarized and reported within the time periods prescribed by the SEC’s rules and forms.
Changes in Internal Controls over Financial Reporting
There were no significant changes in the Company’s internal control over financial reporting that occurred during the Company’s most recent fiscal quarter that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.
-102-
Management’s Report of Internal Control over Financial Reporting
Management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is defined in Rules 13a-15(f) under the Securities Exchange Act as a process designed by, or under the supervision of, the Company’s principal executive and principal financial officers and effected by the Company’s board of directors, management and other personnel to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes those policies and procedures that:
|
·
|
pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company;
|
|
·
|
provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and
|
|
·
|
provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the financial statements.
|
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. As a result, even systems determined to be effective can provide only reasonable assurance regarding the preparation and presentation of financial statements. Moreover, projections of any evaluation of effectiveness to future periods are subject to the risks that controls may become inadequate because of changes in conditions or that the degree of compliance with the policies or procedures may deteriorate.
The Company’s management assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2013. In making this assessment, the Company’s management used criteria set forth in
Internal Control—Integrated Framework (1992)
issued by the Committee of Sponsoring Organizations of the Treadway Commission.
Based on management’s assessment, the Company’s management believes that, as of December 31, 2013, the Company’s internal control over financial reporting was effective based on those criteria. The Company’s independent registered public accounting firm, BDO USA, LLP, has issued an attestation report on the Company’s internal control over financial reporting, which is included in this Annual Report.
-103-
Report of Independent Registered Public Accounting Firm
Board of Directors and Stockholders
Bimini Capital Management, Inc.
Vero Beach, Florida
We have audited Bimini Capital Management, Inc. and subsidiaries (the ”Company”) internal control over financial reporting as of December 31, 2013, based on criteria established in
Internal Control – Integrated Framework (1992)
issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Item 9A - Management’s Report on Internal Control Over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2013, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of the Company as of December 31, 2013 and 2012, and the related consolidated statements of operations, stockholders’ equity, and cash flows for each of the two years in the period ended December 31, 2013 and our report dated March 12, 2014 expressed an unqualified opinion thereon.
|
West Palm Beach, Florida
March 12, 2014
|
/s/ BDO USA, LLP
Certified Public Accountants
|
-104-
None.
-105-
The information required by this Item 10 and not otherwise set forth below is incorporated herein by reference to the Company's definitive Proxy Statement relating to the Company’s 2014 Annual Meeting of Stockholders, which the Company expects to file with the U.S. Securities and Exchange Commission, pursuant to Regulation 14A, not later than 120 days after December 31, 2013 (the "Proxy Statement").
The information required by this Item 11 is incorporated herein by reference to the Proxy Statement.
The information required by this Item 12 is incorporated herein by reference to the Proxy Statement and to Part II, Item 5 of this Form 10-K.
The information required by this Item 13 is incorporated herein by reference to the Proxy Statement.
The information required by this Item 14 is incorporated herein by reference to the Proxy Statement.
-106-
|
a.
|
Financial Statements. The consolidated financial statements of the Company, together with the report of Independent Registered Public Accounting Firm thereon, are set forth in Part II-Item 8 of this Form 10-K and are incorporated herein by reference.
|
The following information is filed as part of this Form 10-K:
|
Page
|
||||
|
Report of Independent Registered Public Accounting Firm
|
71 | |||
|
Consolidated Balance Sheets at December 31, 2013 and 2012
|
72 | |||
|
Consolidated Statements of Operations for the years ended December 31, 2013 and 2012
|
73 | |||
|
Consolidated Statements of Equity for the years ended December 31, 2013 and 2012
|
74 | |||
|
Consolidated Statements of Cash Flows for the years ended December 31, 2013 and 2012
|
75 | |||
|
Notes to Consolidated Financial Statements
|
76 | |||
b. Financial Statement Schedules.
Not applicable.
c. Exhibits.
Exhibit No
|
3.1
|
Articles of Amendment and Restatement, incorporated by reference to Exhibit 3.1 to the Company’s Form S-11/A, filed with the SEC on April 29, 2004
|
||
|
3.2
|
Articles Supplementary, incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated November 3, 2005, filed with the SEC on November 8, 2005
|
||
|
3.3
|
Articles of Amendment, incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated February 10, 2006, filed with the SEC on February 15, 2006
|
||
|
3.4
|
Articles of Amendment, incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated September 24, 2007, filed with the SEC on September 24, 2007
|
||
|
3.5
|
Certificate of Notice, incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated January 28, 2008, filed with the SEC on February 1, 2008
|
||
|
3.6
|
Amended and Restated Bylaws, incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K, dated September 24, 2007, filed with the SEC on September 24, 2007
|
||
|
10.1
|
Bimini Capital Management, Inc. 2011 Long Term Incentive Compensation Plan, incorporated by reference to Exhibit 10.23 to the Company’s Definitive Proxy Statement on Schedule 14A filed with the SEC on April 29, 2011*
|
||
|
10.2
|
Settlement Agreement and Mutual Release by an among First Bank (as successor to Coast Bank of Florida) and MortCo TRS, LLC dated January 20, 2012, incorporated by reference to Exhibit 10.14 to the Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2012, filed with the SEC on May 7, 2012
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||
-107-
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10.3
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Management Agreement between Orchid Island Capital, Inc. and Bimini Advisors, LLC date February 20, 2013, incorporated by reference to Exhibit 10.1
to the Company’s Current Report on Form 8-K, dated February 20, 2013, filed with the SEC on February 20, 2013.*
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||
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10.4
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Investment Allocation Agreement among the Company, Orchid Island Capital, Inc. and Bimini Advisors, LLC dated February 20, 2013, incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, dated February 20, 2013, filed with the SEC on February 20, 2013.*
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||
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21.1
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Subsidiaries of the Registrant**
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||
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23.1
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Consent of BDO USA, LLP**
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||
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31.1
|
Certification of the Principal Executive Officer, pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002**
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||
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31.2
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Certification of the Principal Financial Officer, pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002**
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||
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32.1
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Certification of the Chief Executive Officer, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002***
|
||
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32.2
|
Certification of the Chief Financial Officer, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002***
|
||
|
101.INS
|
Instance Document****
|
|
101.SCH
|
Taxonomy Extension Schema Document****
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101.CAL
|
Taxonomy Extension Calculation Linkbase Document****
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101.DEF
|
Additional Taxonomy Extension Definition Linkbase Document****
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101.LAB
|
Taxonomy Extension Label Linkbase Document****
|
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101.PRE
|
Taxonomy Extension Presentation Linkbase Document****
|
|
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*
|
Management compensatory plan or arrangement required to be filed by Item 601 of Regulation S-K.
|
|
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**
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Filed herewith.
|
|
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***
|
Furnished herewith
|
|
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****
|
Submitted electronically herewith. Users of this data are advised that, pursuant to Rule 406T of Regulation S-T, this interactive data file is deemed not filed as part of a registration statement or prospectus for purposes of sections 11 and 12 of the Securities Act of 1933, is deemed not filed for purposes of section 18 of the Securities and Exchange Act of 1934 and otherwise is not subject to liability under these sections
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-108-
Signatures
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
BIMINI CAPITAL MANAGEMENT, INC.
|
Date: March 12, 2014
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By:
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/s/ Robert E. Cauley | ||
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Robert E. Cauley
Chairman and Chief Executive Officer
|
||||
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Date: March 12, 2014
|
By:
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/s/ G. Hunter Haas, IV | ||
|
G. Hunter Haas IV
President, Chief Financial Officer, Chief Investment Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer)
|
||||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the registrant and in the capacities indicated on March 12, 2014.
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Signature
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Capacity
|
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| /s/ Robert E. Cauley | ||
|
Robert E. Cauley
|
Director, Chairman of the Board,
|
|
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Chief Executive Officer
|
||
| /s/ G. Hunter Haas IV | ||
|
G. Hunter Haas IV
|
President, Chief Financial Officer,
|
|
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Chief Investment Officer and Treasurer
|
||
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(Principal Financial Officer and Principal Accounting Officer)
|
||
| /s/ Robert J. Dwyer | ||
|
Robert J. Dwyer
|
Director
|
|
| /s/ Frank E. Jaumot | ||
|
Frank E. Jaumot
|
Director
|
TABLE OF CONTENTS
Part IItem 1. BusinessItem 1A. Risk FactorsItem 1B. Unresolved Staff CommentsItem 2. PropertiesItem 3. Legal ProceedingsItem 4. Mine Safety DisclosuresPart IIItem 5. Market For Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases Of Equity SecuritiesItem 6. Selected Financial DataItem 7. Management S Discussion and Analysis Of Financial Condition and Results Of OperationsItem 7A. Quantitative and Qualitative Disclosures About Market RiskItem 8. Financial Statements and Supplementary DataNote 1. Organization and Significant Accounting PoliciesNote 2. Mortgage-backed SecuritiesNote 3. Retained Interests in SecuritizationsNote 4. Property and EquipmentNote 5. Prepaid Expenses and Other Assets, NetNote 6. Repurchase AgreementsNote 7. Derivative Financial InstrumentsNote 8. Trust Preferred SecuritiesNote 9. Capital StockNote 10. Stock Incentive PlansNote 11. Commitments and Contingencies Outstanding LitigationNote 11. Commitments and ContingenciesNote 12. Income TaxesNote 13. Earnings Per ShareNote 14. Fair ValueNote 15. Related Party TransactionsNote 16. Consolidated Variable Interest Entity and Noncontrolling InterestsNote 17. Subsequent EventsItem 9. Changes in and Disagreements with Accountants on Accounting and Financial DisclosureItem 9A. Controls and ProceduresItem 9B. Other InformationPart IIIItem 10. Directors, Executive Officers and Corporate GovernanceItem 11. Executive CompensationItem 12. Security Ownership Of Certain Beneficial Owners and Management and Related Stockholder MattersItem 13. Certain Relationships and Related Transactions, and Director IndependenceItem 14. Principal Accountant Fees and ServicesPart IVItem 15. Exhibits, Financial Statement Schedules