The following table presents certain information on the Company’s portfolio of mortgage securities – available-for-sale as of March 31, 2009 and December 31, 2008 (dollars in thousands):
During the three months ended March 31, 2009 and 2008, management concluded that the decline in value on certain securities in the Company’s mortgage securities – available-for-sale portfolio were other-than-temporary. As a result, the Company recognized impairments on mortgage securities – available-for-sale of $0.2 million and $19.4 million during the three months ended March 31, 2009 and 2008, respectively.
Maturities of mortgage securities owned by the Company depend on repayment characteristics and experience of the underlying financial instruments.
As of March 31, 2009 and December 31, 2008, mortgage securities – trading consisted of the NMFT Series 2007-2 residual security and subordinated securities retained by the Company from securitization transactions as well as subordinated securities purchased from other issuers in the open market. Management estimates the fair value of the residual securities by discounting the expected future cash flows of the collateral and bonds. The fair value of the subordinated securities is estimated based on quoted broker prices. Refer to Note 9 for a description of the valuation methods as of March 31, 2009 and December 31, 2008.
The following table summarizes the Company’s mortgage securities – trading as of March 31, 2009 and December 31, 2008 (dollars in thousands):
(A) Calculated from the ending fair value of the securities.
The Company recognized net trading losses of $7.7 million and $51.6 million for the three months ended March 31, 2009 and 2008, respectively. These net trading losses are included in the fair value adjustments line on the company’s condensed consolidated statements of operations.
There were no trading securities pledged as collateral as of March 31, 2009 and December 31, 2008.
NFI’s wholly owned subsidiary NovaStar Mortgage, Inc. (“NMI”) has approximately $77.4 million in principal amount of unsecured notes (collectively, the “Notes”) outstanding to NovaStar Capital Trust I and NovaStar Capital Trust II (collectively, the “Trusts”) which secure trust preferred securities issued by the Trusts. NFI has guaranteed NMI's obligations under the Notes.
NMI failed to make quarterly interest payments that were due on March 30, April 30, June 30, July 30, September 30, October 30 and December 30, 2008, and January 30 and March 30, 2009 totaling, for all payment dates combined, approximately $6.1 million on the Notes. As a result, NMI was in default under the related indentures and NFI was in default under the related guarantees as of March 31, 2009.
On September 12, 2008, a petition for involuntary Chapter 7 bankruptcy entitled In re NovaStar Mortgage, Inc. (Case No. 08-12125-CSS) was filed against NMI by the holders of the trust preferred securities in U.S. Bankruptcy Court for the District of Delaware in Wilmington, Delaware. The filing did not include NFI or any other subsidiary or affiliate of NFI.
On February 18, 2009, the Company, NMI, the Trusts and the trust preferred security holders entered into agreements to settle the claims of the trust preferred security holders arising from NMI’s failure to make the scheduled quarterly interest payments on the Notes. As part of the settlement, the existing preferred obligations would be exchanged for new preferred obligations. The settlement and exchange were contingent upon, among other things, the dismissal of the involuntary Chapter 7 bankruptcy. On March 9, 2009, the Bankruptcy Court entered an order dismissing the involuntary proceeding. On April 24, 2009 (the “Exchange Date”), the parties executed the necessary documents to complete the Exchange. On the Exchange Date, the Company paid interest due through December 31, 2008, in the aggregate amount of $5.3 million. In addition, the Company paid $0.3 million in legal and administrative costs on behalf of the Trusts.
The new preferred obligations require quarterly distributions of interest to the holders at a rate equal to 1.0% per annum beginning January 1, 2009 through December 31, 2009, subject to reset to a variable rate equal to the three-month LIBOR plus 3.5% upon the occurrence of an “Interest Coverage Trigger.” For purposes of the new preferred obligations, an Interest Coverage Trigger occurs when the ratio of EBITDA for any quarter ending on or after December 31, 2008 and on or prior to December 31, 2009 to the product as of the last day of such quarter, of the stated liquidation value of all outstanding 2009 Preferred Securities (i) multiplied by 7.5%, (ii) multiplied by 1.5 and (iii) divided by 4, equals or exceeds 1.00 to 1.00. Beginning January 1, 2010 until the earlier of February 18, 2019 or the occurrence of an Interest Coverage Trigger, the unpaid principal amount of the new preferred obligations will bear interest at a rate of 1.0% per annum and, thereafter, at a variable rate, reset quarterly, equal to the three-month LIBOR plus 3.5% per annum.
Note 7. Commitments and Contingencies
Contingencies
Trust Preferred Settlement.See Note 6—Borrowings for a detailed discussion of the settlement terms and restructuring of the Company’s junior subordinated debentures, including the dismissal of the involuntary Chapter 7 bankruptcy filed against NovaStar Mortgage, Inc. (Case No. 08-12125-CSS) by the holders of the trust preferred securities in U.S. Bankruptcy Court for the District of Delaware in Wilmington, Delaware.
Litigation.
At this time, the Company cannot predict the probable outcome of the following claims and as such no amounts have been accrued in the consolidated financial statements.
In February 2007, a number of substantially similar putative class actions were filed in the United States District Court for the Western District of Missouri. The complaints name the Company and three of the Company’s former and current executive officers as defendants and generally allege, among other things, that the defendants made materially false and misleading statements regarding the Company’s business and financial results. The plaintiffs purport to have brought the actions on behalf of all persons who purchased or otherwise acquired the Company’s common stock during the period May 4, 2006 through February 20, 2007. Following consolidation of the actions, a consolidated amended complaint was filed on October 19, 2007. On December 29, 2007, the defendants moved to dismiss all of plaintiffs’ claims. On June 4, 2008, the Court dismissed the plaintiffs’ complaints without leave to amend. The plaintiffs have filed an appeal of the Court’s ruling. The Company believes that these claims are without merit and will vigorously defend against them.
In May 2007, a lawsuit entitledNational Community Reinvestment Coalition v. NovaStar Financial, Inc.,et al., was filed against the Company in the United States District Court for the District of Columbia. Plaintiff, a non-profit organization, alleges that the Company maintains corporate policies of not making loans on Indian reservations, on dwellings used for adult foster care or on rowhouses in Baltimore, Maryland in violation of the federal Fair Housing Act. The lawsuit seeks injunctive relief and damages, including punitive damages, in connection with the lawsuit. On May 30, 2007, the Company responded to the lawsuit by filing a motion to dismiss certain of plaintiff’s claims. On March 31, 2008 that motion was denied by the Court. The Company believes that these claims are without merit and will vigorously defend against them.
On January 10, 2008, the City of Cleveland, Ohio filed suit against the Company and approximately 20 other mortgage, commercial and investment bankers alleging a public nuisance had been created in the City of Cleveland by the operation of the subprime mortgage industry. The case was filed in state court and promptly removed to the United States District Court for the Northern District of Ohio. The plaintiff seeks damages for loss of property values in the City of Cleveland, and for increased costs of providing services and infrastructure, as a result of foreclosures of subprime mortgages. On October 8, 2008, the City of Cleveland filed an amended complaint in federal court which did not include claims against the Company but made similar claims against NovaStar Mortgage, Inc., a wholly owned subsidiary of NFI. On November 24, 2008 the Company filed a motion to dismiss. On May 15, 2009 the Court granted Company’s motion to dismiss. The City of Cleveland has filed a notice of intent to appeal. The Company believes that these claims are without merit and will vigorously defend against them.
13
On January 31, 2008, two purported shareholders filed separate derivative actions in the Circuit Court of Jackson County, Missouri against various former and current officers and directors and named the Company as a nominal defendant. The essentially identical petitions seek monetary damages alleging that the individual defendants breached fiduciary duties owed to the Company, alleging insider selling and misappropriation of information, abuse of control, gross mismanagement, waste of corporate assets, and unjust enrichment between May 2006 and December 2007. On June 24, 2008 a third, similar case was filed in United States District Court for the Western District of Missouri. The Company believes that these claims are without merit and will vigorously defend against them.
On May 6, 2008, the Company received a letter written on behalf of J.P. Morgan Mortgage Acceptance Corp. and certain affiliates ("Morgan") demanding indemnification for claims asserted against Morgan in a case entitled Plumbers & Pipefitters Local #562 Supplemental Plan and Trust v. J.P. Morgan Acceptance Corp. et al, filed in the Supreme Court of the State of New York, County of Nassau. The case seeks class action certification for alleged violations by Morgan of sections 11 and 15 of the Securities Act of 1933, on behalf of all persons who purchased certain categories of mortgage backed securities issued by Morgan in 2006 and 2007. Morgan's indemnity demand alleges that any liability it might have to plaintiffs would be based, in part, upon alleged misrepresentations made by the Company with respect to certain mortgages that make up a portion of the collateral for the securities at issue. The Company believes it has meritorious defenses to this demand and expects to defend vigorously any claims asserted.
On May 21, 2008, a purported class action case was filed in the Supreme Court of the State of New York, New York County, by the New Jersey Carpenters' Health Fund, on behalf of itself and all others similarly situated. Defendants in the case include NovaStar Mortgage Funding Corporation and its individual directors, several securitization trusts sponsored by the Company, and several unaffiliated investment banks and credit rating agencies. The case was removed to the United States District Court for the Southern District of New York. On June 16, 2009, the plaintiff filed an amended complaint. Plaintiff seeks monetary damages, alleging that the defendants violated sections 11, 12 and 15 of the Securities Act of 1933 by making allegedly false statements regarding mortgage loans that served as collateral for securities purchased by plaintiff and the purported class members. The Company believes it has meritorious defenses to the case and expects to defend the case vigorously.
On July 7, 2008, plaintiff Jennifer Jones filed a purported class action case in the United States District Court for the Western District of Missouri against the Company, certain former and current officers of the Company, and unnamed members of the Company's "Retirement Committee". Plaintiff, a former employee of the Company, seeks class action certification on behalf of all persons who were participants in or beneficiaries of the Company's 401(k) plan from May 4, 2006 until November 15, 2007 and whose accounts included investments in the Company's common stock. Plaintiff seeks monetary damages alleging that the Company's common stock was an inappropriately risky investment option for retirement savings, and that defendants breached their fiduciary duties by allowing investment of some of the assets contained in the 401(k) plan to be made in the Company's common stock. On November 12, 2008, the Company filed a motion to dismiss which was denied by the Court on February 11, 2009. On April 6, 2009 the Court granted the plaintiff’s motion for class certification. The Company sought permission from the 8thCircuit Court of Appeals to appeal the order granting class certification. On May 11, 2009 the Court of Appeals granted the Company permission to appeal the class certification order. The Company believes it has meritorious defenses to the case and expects to defend the case vigorously.
On October 21, 2008, EHD Holdings, LLC (“EHD”), the purported owner of the building which leases the Company its former principal office space in Kansas City, filed an action for unpaid rent in the Circuit Court of Jackson County, Missouri. On April 24, 2009, EHD filed a motion for summary judgment seeking approximately $3.3 million, in past due rent and charges, included in the Accounts payable and other liabilities line item of the balance sheet, plus accruing rent and charges for future periods, plus attorney fees. On June 30, 2009, the Company executed a settlement agreement with EHD whereby the Company is released from all past and future obligations under its lease agreement and paid $5 million to EHD in July 2009. EHD and the Company also agreed to take the necessary steps for the dismissal of all legal proceedings related to the lease agreement.
In addition to those matters listed above, the Company is currently a party to various other legal proceedings and claims, including, but not limited to, breach of contract claims, tort claims, and claims for violations of federal and state consumer protection laws. Furthermore, the Company has received indemnification and loan repurchase demands with respect to alleged violations of representations and warranties made in loan sale and securitization agreements. These indemnification and repurchase demands have been addressed without significant loss to the Company, but such claims can be significant when multiple loans are involved. Continued deterioration of the housing market may increase the risk of such claims.
14
Note 8. Comprehensive Income
The following is a rollforward of accumulated other comprehensive income for the three months ended March 31, 2009 and 2008 (dollars in thousands):
| For the Three Months |
| Ended March 31, |
| 2009 | | 2008 |
| Net loss | $ | (91,698 | ) | | $ | (282,669 | ) |
| Other comprehensive income (loss): | | | | | | | |
| Change in unrealized loss on mortgage securities – available-for-sale | | (2,322 | ) | | | (16,128 | ) |
| Impairment on mortgage securities - available-for-sale reclassified to earnings | | 202 | | | | 19,380 | |
| Change in unrealized gain on derivative instruments used in cash flow hedges | | 8 | | | | (1,419 | ) |
| Net settlements of derivative instruments used in cash flow hedges reclassified to | | | | | | | |
| earnings | | 84 | | | | 757 | |
| Other comprehensive income (loss) | | (2,028 | ) | | | 2,590 | |
| Total comprehensive loss | | (93,726 | ) | | | (280,079 | ) |
| Comprehensive loss attributable to noncontrolling interests | | 334 | | | | - | |
| Total comprehensive loss attributable to NovaStar Financial, Inc. | $ | (93,392 | ) | | $ | (280,079 | ) |
| |
Note 9. Fair Value Accounting
Fair Value Measurements (SFAS 157)
SFAS 157 defines fair value, establishes a consistent framework for measuring fair value and expands disclosure requirements about fair value measurements. SFAS 157, among other things, requires the Company to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value.
These valuation techniques are based upon observable and unobservable inputs. Observable inputs reflect market data obtained from independent sources, while unobservable inputs reflect the Company's market assumptions. These two types of inputs create the following fair value hierarchy:
- Level 1—Quoted prices for identical instruments in active markets
- Level 2—Quoted prices for similar instruments in active markets; quoted prices for identical or similar instruments in markets that are not active; and model-derived valuations whose inputs are observable or whose significant value drivers are observable.
- Level 3—Instruments whose significant value drivers are unobservable.
The Company determines fair value based upon quoted broker prices when available or through the use of alternative approaches, such as discounting the expected cash flows using market interest rates commensurate with the credit quality and duration of the investment. The methods the Company uses to determine fair value on an instrument specific basis are detailed in “Valuation Methods” below.
The following tables present for each of the fair value hierarchy levels, the Company’s assets and liabilities related to continuing operations which are measured at fair value on a recurring basis as of March 31, 2009 and December 31, 2008 (dollars in thousands).
| | | | Fair Value Measurements at Reporting Date Using |
| | | | Quoted Prices | | Significant | | | |
| | | | in Active | | Other | | Significant |
| Fair Value | | Markets for | | Observable | | Unobservable |
| at March 31, | | Identical Assets | | Inputs | | Inputs |
| Description | 2009 | | (Level 1) | | (Level 2) | | (Level 3) |
| Assets: | | | | | | | | | | | |
| Mortgage securities -trading | $ | 3,767 | | $ | - | | $ | - | | $ | 3,767 |
| Mortgage securities – available-for-sale | | 11,091 | | | - | | | - | | | 11,091 |
| Total assets | $ | 14,858 | | $ | - | | $ | - | | $ | 14,858 |
| | | | | | | | | | | | |
Liabilities: | | | | | | | | | | | |
| Asset-backed bonds secured by mortgage | | | | | | | | | | | |
| securities | $ | 3,073 | | $ | - | | $ | - | | $ | 3,073 |
| Derivative instruments, net | | 8,564 | | | - | | | 8,564 | | | - |
| Total liabilities | $ | 11,637 | | $ | - | | $ | 8,564 | | $ | 3,073 |
| |
15
| | | | Fair Value Measurements at Reporting Date Using |
| | | | Quoted Prices | | Significant | | | |
| | | in Active | | Other | | Significant |
| Fair Value at | | Markets for | | Observable | | Unobservable |
| December | | Identical Assets | | Inputs | | Inputs |
| Description | 31, 2008 | | (Level 1) | | (Level 2) | | (Level 3) |
| Assets: | | | | | | | | | | | |
| Mortgage securities -trading | $ | 7,085 | | $ | - | | $ | - | | $ | 7,085 |
| Mortgage securities – available-for-sale | | 12,788 | | | - | | | - | | | 12,788 |
| Total assets | $ | 19,873 | | $ | - | | $ | - | | $ | 19,873 |
| |
| Liabilities: | | | | | | | | | | | |
| Asset-backed bonds secured by mortgage | | | | | | | | | | | |
| securities | $ | 5,376 | | $ | - | | $ | - | | $ | 5,376 |
| Derivative instruments, net | | 9,102 | | | - | | | 9,102 | | | - |
| Total liabilities | $ | 14,478 | | $ | - | | $ | 9,102 | | $ | 5,376 |
| |
The following tables provide a reconciliation of the beginning and ending balances for the Company’s mortgage securities – trading which are measured at fair value on a recurring basis using significant unobservable inputs (Level 3) for the three months ended March 31, 2009 and 2008 (dollars in thousands):
| | | | | | | | | Estimated Fair |
| | | | | | | | | Value of |
| | | | | | | | | Mortgage |
| Cost Basis | | Unrealized Loss | | Securities |
| As of December 31, 2008 | $ | 433,968 | | | $ | (426,883 | ) | | $ | 7,085 | |
| Increases (decreases) to mortgage securities – trading: | | | | | | | | | | | |
| Accretion of income | | 6,917 | | | | - | | | | 6,917 | |
| Proceeds from paydowns of securities | | (2,485 | ) | | | - | | | | (2,485 | ) |
| Mark-to-market value adjustment | | - | | | | (7,750 | ) | | | (7,750 | ) |
| Net (decrease) increase to mortgage securities - trading | | 4,432 | | | | (7,750 | ) | | | (3,318 | ) |
| As of March 31, 2009 | $ | 438,400 | | | $ | (434,633 | ) | | $ | 3,767 | |
| |
| |
| | | | | | | | | Estimated Fair |
| | | | | | | | | Value of |
| | | | | | | | | Mortgage |
| Cost Basis | | Unrealized Loss | | Securities |
| As of December 31, 2007 | $ | 41,275 | | | $ | (16,534 | ) | | $ | 24,741 | |
| Increases (decreases) to mortgage securities – trading: | | | | | | | | | | | |
| Accretion of income | | 2,286 | | | | - | | | | 2,286 | |
| Proceeds from paydowns of securities | | (12,578 | ) | | | - | | | | (12,578 | ) |
| Mark-to-market value adjustment | | - | | | | 2,585 | | | | 2,585 | |
| Net (decrease) increase to mortgage securities - trading | | (10,292 | ) | | | 2,585 | | | | (7,707 | ) |
| As of March 31, 2008 | $ | 30,983 | | | $ | (13,949 | ) | | $ | 17,034 | |
| |
16
The following tables provide a reconciliation of the beginning and ending balances for the Company’s mortgage securities – available-for-sale which are measured at fair value on a recurring basis using significant unobservable inputs (Level 3) for the three months ended March 31, 2009 and 2008 (dollars in thousands):
| | | | | | | | | Estimated Fair |
| | | | | | | | | Value of |
| | | | | | | | | Mortgage |
| Cost Basis | | Unrealized Gain | | Securities |
| As of December 31, 2008 | $ | 3,771 | | | $ | 9,017 | | | $ | 12,788 | |
| Increases (decreases) to mortgage securities – available-for-sale: | | | | | | | | | | | |
| Accretion of income (A) | | 4,522 | | | | - | | | | 4,522 | |
| Proceeds from paydowns of securities (A) (B) | | (3,897 | ) | | | - | | | | (3,897 | ) |
| Impairment on mortgage securities – available-for-sale | | (202 | ) | | | - | | | | (202 | ) |
| Mark-to-market value adjustment | | - | | | | (2,120 | ) | | | (2,120 | ) |
| Net (decrease) increase to mortgage securities – available-for-sale | | 423 | | | | (2,120 | ) | | | (1,697 | ) |
| As of March 31, 2009 | $ | 4,194 | | | $ | 6,897 | | | $ | 11,091 | |
| |
| (A) | | Cash received on mortgage securities with no cost basis was $32,000 for the three months ended March 31, 2009. |
| (B) | | For mortgage securities with a remaining cost basis, the Company reduces the cost basis by the amount of cash that is contractually due from the securitization trusts. In contrast, for mortgage securities in which the cost basis has previously reached zero, the Company records in interest income the amount of cash that is contractually due from the securitization trusts. In both cases, there are instances where the Company may not receive a portion of this cash until after the balance sheet reporting date. Therefore, these amounts are recorded as receivables from the securitization trusts. As of March 31, 2009, the Company had no receivables from securitization trusts related to mortgage securities available-for-sale with a remaining cost basis. |
| | | | | | | | | Estimated Fair |
| | | | | | | | | Value of |
| | | | | | | Mortgage |
| Cost Basis | | Unrealized Gain | | Securities |
| As of December 31, 2007 | $ | 33,302 | | | $ | 69 | | | $ | 33,371 | |
| Increases (decreases) to mortgage securities – available-for-sale: | | | | | | | | | | | |
| Accretion of income (A) | | 1,940 | | | | - | | | | 1,940 | |
| Proceeds from paydowns of securities (A) | | (4,049 | ) | | | - | | | | (4,049 | ) |
| Impairment on mortgage securities – available-for-sale | | (19,380 | ) | | | 19,380 | | | | - | |
| Mark-to-market value adjustment | | - | | | | (16,128 | ) | | | (16,128 | ) |
| Net (decrease) increase to mortgage securities – available-for-sale | | (21,489 | ) | | | 3,252 | | | | (18,237 | ) |
| As of March 31, 2008 | $ | 11,813 | | | $ | 3,321 | | | $ | 15,134 | |
| |
| (A) | | For mortgage securities with a remaining cost basis, the Company reduces the cost basis by the amount of cash that is contractually due from the securitization trusts. In contrast, for mortgage securities in which the cost basis has previously reached zero, the Company records in interest income the amount of cash that is contractually due from the securitization trusts. In both cases, there are instances where the Company may not receive a portion of this cash until after the balance sheet reporting date. Therefore, these amounts are recorded as receivables from the securitization trusts. As of March 31, 2008 and December 31, 2007, the Company had receivables from securitization trusts of $2.7 million and $12.5 million, respectively, related to mortgage securities available-for-sale with a remaining cost basis. |
17
The following table provides quantitative disclosures about the fair value measurements for the Company’s assets related to continuing operations which are measured at fair value on a nonrecurring basis as of March 31, 2009 and December 31, 2008 (dollars in thousands):
| | | | | |
| | | | Fair Value Measurements at Reporting Date Using |
| | | | Quoted Prices in | | Significant | | |
| | | | Active Markets for | | Other | | Significant |
| | | Real Estate | | Identical Assets | | Observable | | Unobservable |
| Fair Value at | | | Owned | | (Level 1) | | Inputs (Level 2) | | Inputs (Level 3) |
| March 31, 2009 | | $ | 91,279 | | $ | - | | $ | - | | $ | 91,279 |
| December 31, 2008 | | | 70,480 | | | - | | | - | | | 70,480 |
At the time a mortgage loan held-in-portfolio becomes real estate owned, the Company records the property at the lower of its carrying amount or fair value. Upon foreclosure and through liquidation, the Company evaluates the property's fair value as compared to its carrying amount and records a valuation adjustment when the carrying amount exceeds fair value. Any valuation adjustments at the time the loan becomes real estate owned is charged to the allowance for credit losses.
The following table provides a summary of the impact to earnings for the three months ended March 31, 2009 and 2008 from the Company’s assets and liabilities related to continuing operations which are measured at fair value on a recurring and nonrecurring basis as of March 31, 2009 (dollars in thousands):
| | | Fair Value | | Fair Value Adjustments For the | | |
| Asset or Liability Measured | | Measurement | | Three Months Ended March 31, | | Statement of Operation Line |
| at Fair Value | | Frequency | | 2009 | | | 2008 | | | Item Impacted |
| Mortgage securities - trading | | Recurring | | $ | (7,750 | ) | | $ | (51,604 | ) | | Fair value adjustments |
| | | | | | | | | | | | | Impairment on mortgage |
| Mortgage securities – available-for-sale | | Recurring | | | (202 | ) | | | (19,380 | ) | | securities – available-for-sale |
| | | | | | | | | | | | (Losses) gains on derivative |
| Derivative instruments, net | | Recurring | | | (4,195 | ) | | | (12,554 | ) | | instruments |
| Asset-backed bonds secured by | | | | | | | | | | | | |
| mortgage securities | | Recurring | | | 2,040 | | | | 38,888 | | | Fair value adjustments |
| Total fair value gains (losses) | | | | $ | (10,107 | ) | | $ | (44,650 | ) | | |
Valuation Methods
Mortgage securities – trading.Trading securities are recorded at fair value with gains and losses, realized and unrealized, included in earnings. The Company uses the specific identification method in computing realized gains or losses. Prior to September 30, 2008, the Company estimated fair value for its subordinated securities solely from quoted market prices. Commencing September 30, 2008, the Company estimated fair value for its subordinated securities based on quoted broker prices compared to estimates based on discounting the expected future cash flows of the collateral and bonds. The Company determined this change in valuation method caused a change from Level 2 to Level 3 due to the unobservable inputs used by the Company in determining the expected future cash flows. The Company determined its valuation methodology for residual securities would also qualify as Level 3.
In addition, upon the closing of its NMFT Series 2007-2 securitization, the Company classified the residual security it retained as trading. Management estimates the fair value of its residual securities by discounting the expected future cash flows of the collateral and bonds. Due to the unobservable inputs used by the Company in determining the expected future cash flows, the Company determined its valuation methodology for residual securities would qualify as Level 3. See “Mortgage securities – available-for-sale" for further discussion of the Company’s valuation policies relating to residual securities.
Mortgage securities – available-for-sale.Mortgage securities – available-for-sale represent beneficial interests theCompany retains in securitization and resecuritization transactions which include residual securities. The Company had no subordinated securities included within the mortgage securities – available-for-sale classification as of March 31, 2009 or December 31, 2008. Mortgage securities classified as available-for-sale are reported at their estimated fair value with unrealized gains and losses reported in accumulated other comprehensive income. To the extent that the cost basis of mortgage securities exceeds the fair value and the unrealized loss is considered to be other-than-temporary, an impairment charge is recognized and the amount recorded in accumulated other comprehensive income or loss is reclassified to earnings as a realized loss. The specific identification method is used in computing realized gains or losses.
At each reporting period subsequent to the initial valuation of the residual securities, the fair value of the residual securities is estimated based on the present value of future expected cash flows to be received. Management’s best estimate of key assumptions, including credit losses, prepayment speeds, the market discount rates and forward yield curves commensurate with the risks involved, are used in estimating future cash flows.
18
Derivative instruments.The fair value of derivative instruments is estimated by discounting the projected future cash flows using appropriate market rates.
Asset-backed bonds secured by mortgage securities.See discussion under Fair Value Option for Financial Assets and Financial Liabilities (SFAS 159).
Real estate owned.Real estate owned is carried at the lower of cost or fair value less estimated selling costs. The Company estimates fair value at the asset’s liquidation value less selling costs using management’s assumptions which are based on historical loss severities for similar assets.
Fair Value Option for Financial Assets and Financial Liabilities (SFAS 159)
The Company elected the fair value option for the asset-backed bonds issued from NovaStar ABS CDO I, which closed in the first quarter of 2007. The Company elected the fair value option for these liabilities to help reduce earnings volatility which otherwise would arise if the accounting method for this debt was not matched with the fair value accounting for the related mortgage securities - trading. The asset-backed bonds which are being carried at fair value are included in the “Asset-backed bonds secured by mortgage securities“ line item on the condensed consolidated balance sheets. The Company recognized a fair value adjustment of $2.0 million and $38.9 million during the three months ended March 31, 2009 and 2008, respectively, which is included in the “Fair value adjustments” line item on the condensed consolidated statements of operations. The Company calculates interest expense for these asset-backed bonds based on the prevailing coupon rates of the specific classes of debt and records interest expense in the period incurred. Interest expense amounts are included in the “Interest expense” line item of the condensed consolidated statements of operations.
The Company has not elected fair value accounting for any other balance sheet items as allowed by SFAS 159.
The following table shows the difference between the unpaid principal balance and the fair value of the asset-backed bonds secured by mortgage securities for which the Company has elected fair value accounting as of March 31, 2009 and December 31, 2008 (dollars in thousands):
| | | Asset-Backed | | | | |
| | Bonds Secured by | | | | | |
| | | Mortgage | | Year to Date Gain | | |
| Unpaid Principal Balance as of | | Securities | | Recognized | | Fair Value |
| March 31, 2009 | | $ | 323,707 | | $ | 2,040 | | $ | 3,073 |
| December 31, 2008 | | | 324,243 | | | 38,888 | | | 5,376 |
Substantially all of the $2.0 million change in fair value of the asset-backed bonds is considered to be related to specific credit risk as all of the bonds are floating rate.
Note 10. Derivative Instruments and Hedging Activities
The Company’s objective and strategy for using derivative instruments is to mitigate the risk of increased costs on its variable rate liabilities during a period of rising rates, subject to cost and liquidity risk constraints. The Company’s primary goals for managing interest rate risk are to maintain the net interest margin between its assets and liabilities and diminish the effect of changes in general interest rate levels on the market value of the Company.
The derivative instruments used by the Company to manage this risk are interest rate caps and interest rate swaps. Interest rate caps are contracts in which the Company pays either an upfront premium or monthly or quarterly premium to a counterparty. In return, the Company receives payments from the counterparty when interest rates rise above a certain rate specified in the contract. During the three months ended March 31, 2009 and 2008, premiums paid pursuant to interest rate cap agreements related to continuing operations aggregated $20,000 and $0.1 million, respectively. When premiums are financed by the Company, a liability is recorded for the premium obligation. Premiums due to counterparties as of March 31, 2009 and December 31, 2008, respectively were $40,000 and $0.1 million, respectively, and had a weighted average interest rate of 3.9% for both periods. The future contractual maturities of premiums due to counterparties as of March 31, 2009 are $40,000 due during 2009. There is no future contractual maturities premium due in 2010 or thereafter. The interest rate swap agreements to which the Company is party stipulate that the Company pay a fixed rate of interest to the counterparty and the counterparty pays the company a variable rate of interest based on the notional amount of the contract. The liabilities the Company hedges are asset-backed bonds as discussed in Note 3.
19
During 2007, the Company entered into several inter-related transactions involving credit default swaps (“CDS”) and other investments. A CDS is an agreement to provide credit event protection based on a specific security in exchange for receiving an upfront premium and a fixed-rate fee over the life of the contract. The additional investments purchased bear yields that mirror LIBOR. The result of the transaction is to create an instrument that mirrors the results of thereferenced securities underlying the CDS. The CDS had a notional amount of $16.5 million and a fair value of $6.1 million at the date of purchase and are pledged as collateral against the CDO ABB. The fair value was $0.1 million and $0.2 million as of March 31, 2009 and December 31, 2008, respectively. The Company recorded losses related to fair value adjustments of $0.1 million and $1.1million for the three months ended March 31, 2009 and 2008, respectively. These losses are included in the “Losses on derivative instruments” line item of the Company’s condensed consolidated statements of operations.
These CDS are accounted for as non-cash flow hedging derivative instruments, reported at fair value with the changes in fair value recognized through the Company’s statements of operations. The value of these contracts decrease for a variety of reasons, including when the probability of the occurrence of a specific credit event increases, when the market’s perceptions of default risk in general change, or when there are changes in the supply and demand of these instruments.
The Company also has derivative instruments that do not meet the requirements for hedge accounting. However, these derivative instruments do contribute to the Company’s overall risk management strategy by serving to reduce interest rate risk on asset-backed bonds collateralized by the Company’s loans held-in-portfolio.
The following tables present derivative instruments as of March 31, 2009 and 2008 (dollars in thousands):
| | | | | | | Maximum |
| | | | | | Days to |
| | Notional Amount | | Fair Value | | Maturity |
| As of March 31, 2009: | | | | | | | | | | |
| Non-hedge derivative instruments | | $ | 461,500 | | $ | (8,564 | ) | | | 300 |
| |
| As of December 31, 2008: | | | | | | | | | | |
| Non-hedge derivative instruments | | $ | 461,500 | | $ | (9,034 | ) | | | 390 |
| Cash flow hedge derivative instruments | | | 40,000 | | | (68 | ) | | | 25 |
The Company recognized net expense of $1.4 million and $0.8 million during the three months ended March 31, 2009 and March 31, 2008, respectively, on derivative instruments qualifying as cash flow hedges, which is recorded as a component of interest expense.
During the three months ended March 31, 2009 and 2008, respectively, hedge ineffectiveness was insignificant.
The Company’s derivative instruments involve, to varying degrees, elements of credit and market risk in addition to the amount recognized in the consolidated financial statements.
Credit RiskThe Company’s exposure to credit risk on derivative instruments is equal to the amount of deposits (margin) held by the counterparty, plus any net receivable due from the counterparty, plus the cost of replacing the contracts should the counterparty fail. The Company seeks to minimize credit risk through the use of credit approval and review processes, the selection of only the most creditworthy counterparties, continuing review and monitoring of all counterparties, exposure reduction techniques and thorough legal scrutiny of agreements. Before engaging in negotiated derivative transactions with any counterparty, the Company has in place fully executed written agreements. Agreements with counterparties also call for full two-way netting of payments. Under these agreements, on each payment exchange date all gains and losses of counterparties are netted into a single amount, limiting exposure to the counterparty to any net receivable amount due.
20
Market RiskThe potential for financial loss due to adverse changes in market interest rates is a function of the sensitivity of each position to changes in interest rates, the degree to which each position can affect future earnings under adverse market conditions, the source and nature of funding for the position, and the net effect due to offsetting positions. The derivative instruments utilized leave the Company in a market position that is designed to be a better position than if the derivative instrument had not been used in interest rate risk management.
Other Risk ConsiderationsThe Company is cognizant of the risks involved with derivative instruments and has policies and procedures in place to mitigate risk associated with the use of derivative instruments in ways appropriate to its business activities, considering its risk profile as a limited end-user.
Note 11. Income Taxes
Based on the evidence available as of March 31, 2009 and December 31, 2008, including the significant pre-tax losses incurred by the Company since 2007, the liquidity issues facing the Company and the decision by the Company to close all of its mortgage lending and loan servicing operations, the Company believes that it is more likely than not that the Company will not realize its deferred tax assets. Based on these conclusions, the Company recorded a valuation allowance against its entire net deferred tax assets as of March 31, 2009 and December 31, 2008.
The Company recognizes tax benefits in accordance with FIN 48, “Accounting for Uncertainty in Income Taxes,” an interpretation of SFAS No. 109, “Accounting for Income Taxes” (“FIN 48”). FIN 48 establishes a “more-likely-than-not” recognition threshold that must be met before a tax benefit can be recognized in the financial statements. As of March 31, 2009 and December 31, 2008, the total gross amount of unrecognized tax benefits was $0.5 million and $0.5 million, respectively.
Note 12. Segment Reporting
As of March 31, 2009, the Company reviews, manages and operates its business in one segment: portfolio management. Portfolio management operating results come from the income generated on the mortgage assets the Company manages less associated costs. The portfolio management segment’s operating results for the three months ended March 31, 2009 and 2008 are the same as the Company’s condensed consolidated statements of operations.
21
Note 13. Loss Per Share
The computations of basic and diluted loss per share for the three months ended March 31, 2009 and 2008 (dollars in thousands, except per share amounts):
| | | For the Three Months Ended |
| | March 31, | |
| | 2009 | | | 2008 | |
| Numerator: | | | | | | | | |
| Loss from continuing operations | | $ | (91,698 | ) | | $ | (277,299 | ) |
| Less loss attributable to noncontrolling interests | | | (334 | ) | | | - | |
| Dividends on preferred shares | | | (3,696 | ) | | | (3,288 | ) |
| Loss from continuing operations available to common shareholders | | | (95,060 | ) | | | (280,587 | ) |
| Loss from discontinued operations, net of income tax | | | - | | | | (5,370 | ) |
| Loss available to common shareholders | | $ | (95,060 | ) | | $ | (285,957 | ) |
| |
| Denominator: | | | | | | | | |
| Weighted average common shares outstanding – basic | | | 9,368,053 | | | | 9,414,418 | |
| |
| Weighted average common shares outstanding – dilutive: | | | | | | | | |
| Weighted average common shares outstanding – basic | | | 9,368,053 | | | | 9,414,418 | |
| Stock options | | | - | | | | - | |
| Restricted stock | | | - | | | | - | |
| Weighted average common shares outstanding – dilutive | | | 9,368,053 | | | | 9,414,418 | |
| |
| Basic earnings per share: | | | | | | | | |
| Loss from continuing operations | | $ | (9.79 | ) | | $ | (29.45 | ) |
| Less loss attributable to noncontrolling interests | | | (0.04 | ) | | | - | |
| Dividends on preferred shares | | | (0.39 | ) | | | (0.35 | ) |
| Loss from continuing operations available to common shareholders | | | (10.14 | ) | | | (29.80 | ) |
| Loss from discontinued operations, net of income tax | | | - | | | | (0.57 | ) |
| Net loss available to common shareholders | | $ | (10.14 | ) | | $ | (30.37 | ) |
| |
| Diluted earnings per share: | | | | | | | | |
| Loss from continuing operations | | $ | (9.79 | ) | | $ | (29.45 | ) |
| Less loss attributable to noncontrolling interests | | | (0.04 | ) | | | - | |
| Dividends on preferred shares | | | (0.39 | ) | | | (0.35 | ) |
| Loss from continuing operations available to common shareholders | | | (10.14 | ) | | | (29.80 | ) |
| Loss from discontinued operations, net of income tax | | | - | | | | (0.57 | ) |
| Net loss available to common shareholders | | $ | (10.14 | ) | | $ | (30.37 | ) |
| |
The following stock options to purchase shares of common stock were outstanding during each period presented, but were not included in the computation of diluted earnings per share because the number of shares assumed to be repurchased, as calculated was greater than the number of shares to be obtained upon exercise, therefore, the effect would be antidilutive (in thousands, except exercise prices):
| | | For the Three Months Ended |
| | | March 31, |
| | | 2009 | | 2008 |
| Number of stock options (in thousands) | | | 155 | | | 289 |
| Weighted average exercise price | | $ | 57.36 | | $ | 34.12 |
22
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion should be read in conjunction with the preceding unaudited condensed consolidated financial statements of NovaStar Financial, Inc. and its subsidiaries (the “Company”, “NovaStar Financial”, “NFI”, “we” or “us”) and the notes thereto as well as NovaStar Financial’s Annual Report to Shareholders and Annual Report on Form 10-K, as amended, for the fiscal year ended December 31, 2008.
Executive Overview
Corporate Overview, Background and Strategy - We are a Maryland corporation formed on September 13, 1996. Prior to significant changes in our business during 2007 and the first quarter of 2008, we originated, purchased, securitized, sold, invested in and serviced residential nonconforming mortgage loans and mortgage securities. We retained, through our mortgage securities investment portfolio, significant interests in the nonconforming loans we originated and purchased, and through our servicing platform, serviced all of the loans in which we retained interests. During 2007, we discontinued our mortgage lending operations and sold our mortgage servicing rights which subsequently resulted in the closing of our servicing operations.
Because of severe declines in housing prices and national and international economic crises, we have suffered significant losses since 2007 because of declining values of our investments in mortgage loans and securities. Liquidity constraints forced us to reduce operations and administrative staff and take other measures to conserve cash.
Management’s focus is building its newly acquired operating businesses, reducing corporate operating cash needs, clearing follow-on matters arising from our legacy lending and servicing operations and evaluating investment opportunities.
Management made significant steps in the rebuilding process by investing in StreetLinks National Appraisal Services, LLC (“StreetLinks”) and Advent Financial Services, LLC (“Advent”). StreetLinks is a national residential appraisal management company. A fee for appraisal services is collected from lenders and borrowers and StreetLinks passes most of the fee through to an independent residential appraiser. StreetLinks retains a portion of the fee to cover its costs of managing the process of fulfilling the appraisal order. Management believes that StreetLinks is situated to take advantage of growth opportunities in the residential appraisal management business. We have added significant new customers for StreetLinks, which have produced significant increases in revenue for StreetLinks during 2009. Advent is in its start-up phase and will provide access to tailored banking accounts, small dollar banking products and related services to meet the needs of low and moderate income level individuals. Advent is currently developing systems and a network of business partners for the distribution of its services.
Going Concern Considerations -If the cash flows from our mortgage securities are less than currently anticipated, and if we are unable to generate positive cash flow and earnings from our operations and/or restructure our contractual obligations, there can be no assurance that we will be able to continue as a going concern and avoid seeking the protection of applicable federal and state bankruptcy laws. Due to the fact that we have a negative net worth, and that we do not currently have ongoing significant business operations that are profitable, it is unlikely that we will be able to obtain additional equity or debt financing on favorable terms, or at all, for the foreseeable future. To the extent we require additional liquidity and cannot obtain it, we will be forced to file for bankruptcy.
Our condensed consolidated financial statements have been prepared on a going concern basis of accounting which contemplates continuity of operations, realization of assets, liabilities and commitments in the normal course of business. There is substantial doubt that we will be able to continue as a going concern and, therefore, may be unable to realize our assets and discharge our liabilities in the normal course of business. The financial statements do not reflect any adjustments relating to the recoverability and classification of recorded asset amounts nor to the amounts and classification of liabilities that may be necessary should we be unable to continue as a going concern.
Impact of Recently Issued Accounting Pronouncements - In June 2009, the FASB issued SFAS No. 167,“Amendments to FASB Interpretation No. 46(R)” (“SFAS 167”), which amends the consolidation guidance applicable to variable interest entities (“VIEs”). The amendments to the consolidation guidance affect all entities currently within the scope of FIN 46(R), as well as qualifying special-purpose entities (“QSPEs”) that are currently excluded from the scope of FIN 46(R). SFAS 167 is effective as of the beginning of the first fiscal year that begins after November 15, 2009. The Company is continuing to evaluate the impact that SFAS 167 would have on its financial condition and results of operation upon adoption.
In June 2009, the FASB issued SFAS No. 166, “Accounting for Transfers of Financial Assets – an amendment of FASB Statement No. 140” (“SFAS 166”). SFAS 166 amends the derecognition accounting and disclosure guidance relating to SFAS 140. SFAS 166 eliminates the exemption from consolidation for QSPEs, it also requires a transferor to evaluate all existing QSPEs to determine whether it must be consolidated in accordance with SFAS 167. SFAS 166 is effective for financial asset transfers occurring after the beginning of an entity’s first fiscal year that begins after November 15, 2009. The Company is continuing to evaluate the impact that SFAS 166 would have on its financial condition and results of operation upon adoption.
23
In May 2009, the FASB issued SFAS No. 165, “Subsequent Events” (“SFAS 165”), which establish general standards of accounting for and disclosure of events that occur after the balance sheet date but before financial statements are issued. SFAS 165 is for interim or annual periods ending after June 15, 2009. The adoption of SFAS 165 is not expected to have a material effect on the Company’s financial statements.
In June 2008, the FASB issued FASB Staff Position No. EITF 03-6-1 "Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities" (“FSP EITF 03-6-1”). FSP EITF 03-6-1 was issued to clarify that instruments granted in share-based payment transactions can be participating securities prior to the requisite service having been rendered. The guidance in FSP EITF 03-6-1 applies to the calculation of Earnings Per Share ("EPS") under Statement 128 for share-based payment awards with rights to dividends or dividend equivalents. Unvested share-based payment awards that contain non-forfeitable rights to dividends or dividend equivalents (whether paid or unpaid) are participating securities and shall be included in the computation of EPS pursuant to the two-class method. FSP EITF 03-6-1 is effective January 1, 2009. All prior-period EPS data presented shall be adjusted retrospectively (including interim financial statements, summaries of earnings, and selected financial data) to conform with the provisions of FSP EITF 03-6-1. The adoption of FSP EITF 03-6-1 required the Company to include certain restricted stock shares in its earnings per share calculations but did not have a significant impact on the Company’s financial statements.
In March 2008, the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments and Hedging Activities” (“SFAS 161”). The new standard is intended to improve financial reporting about derivative instruments and hedging activities by requiring enhanced disclosures to enable investors to better understand their effects on an entity’s financial position, financial performance, and cash flows. It is effective for the Company as of January 1, 2009. SinceSFAS No. 161 only requires certain additional disclosures, it did not have an effect on the Company’s financial statements. See Note 10 for further information regarding these disclosures.
In December 2007, the FASB issued SFAS No. 160, “Noncontrolling Interests in Consolidated Financial Statements” (“SFAS 160”), which requires consolidated net income to be reported at amounts that include the amounts attributable to both the parent and non-controlling interest. SFAS 160 is effective January 1, 2009. The adoption of SFAS 160 required the Company to present the noncontrolling interests on the condensed consolidated balance sheet, statement of operations, and statement of shareholders deficit.
In December 2007, FASB issued Statement of Financial Accounting Standards No. 141 (R), “Business Combinations” (“SFAS 141(R)”). In summary, SFAS 141(R) requires the acquirer of a business combination to measure at fair value the assets acquired, the liabilities assumed, and any non-controlling interest in the acquiree at the acquisition date, with limited exceptions. In addition, this standard will require acquisition costs to be expensed as incurred. The standard is effective for fiscal years beginning after December 15, 2008, and is to be applied prospectively, with no earlier adoption permitted. The Company adopted SFAS 141(R) effective January 1, 2009. The adoption of this standard may have an impact on the accounting for certain costs related to any future acquisitions.
Strategy -Management is focused on building the operations of StreetLinks and Advent. If and when opportunities arise, available cash resources will be used to invest in or start businesses that can generate income and cash. Additionally, management will attempt to renegotiate and/or restructure the components of our equity in order to realign the capital structure with our current business model.
The key performance measures for executive management are:
- maintaining and/or generating adequate liquidity to sustain us and allow us to take advantage of investment opportunity, and
- generating income for our shareholders.
The following selected key performance metrics are derived from our condensed consolidated financial statements for the periods presented and should be read in conjunction with the more detailed information therein and with the disclosure included elsewhere in “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” Management’s Discussion and Analysis of Financial Condition and Results of Operations, along with other portions of this report, are designed to provide information regarding our performance and these key performance measures.
24
| Table 1 — Summary of Financial Highlights and Key Performance Metrics |
| (dollars in thousands; except per share amounts) | |
| | | March 31, | | | December 31, | |
| | | 2009 | | | 2008 | |
| Cash and cash equivalents, including restricted cash | | $ | 26,067 | | | $ | 21,684 | |
| |
| | | For the Quarter Ended | |
| | | March 31, | |
| | | 2009 | | | 2008 | |
| Net loss available to common shareholders, per diluted share | | $ | (10.18 | ) | | $ | (30.63 | ) |
Liquidity –During the first quarter of 2009, we received $6.1 million in cash on our securities portfolio. We received $1.7 million in gross appraisal fee income. We used cash to pay for current operating and administrative costs, invest in StreetLinks and pay for costs related to our legacy mortgage lending and servicing operations. As of March 31, 2009, we had $26.1 million in cash, cash equivalents and restricted cash, a decrease of $4.8 million from December 31, 2008. As of July 10, 2009, we have $20.7 million in cash and cash equivalents (including restricted cash of $6.1 million). See “Liquidity and Capital Resources” for further discussion of our liquidity position and steps we have taken to preserve liquidity levels.
As part of our near-term future strategy, we will focus on building our operating businesses, minimizing losses, preserving liquidity and, if and when cash is available, investing in opportunities that can contribute positively to our liquidity position. Our mortgage securities are a primary source of new cash flows. Based on the current projections, the cash flows from our mortgage securities will decrease in the next several months as the underlying mortgage loans are repaid and could be significantly less than the current projections if losses on the underlying mortgage loans exceed the current assumptions. While StreetLinks is generating significant cash, it is using all cash generated in building its infrastructure to sustain growth. We have no outstanding lending facilities available for liquidity purposes. We have significant outstanding obligations relating to our discontinued operations, as well as payment obligations with respect to unsecured debt. Our liquidity consists solely of cash and cash equivalents.
Significant Recent Events –In April 2009, we restructured our junior subordinated debenture. See Note 6 to the condensed consolidated financial statements for discussion of the restructuring. As discussed above, subsequent to March 31, 2009, we acquired a majority ownership in Advent Financial Services LLC. On June 30, 2009, the Company executed a settlement agreement with EHD whereby the Company is released from all past and future obligations under its lease agreement and paid $5 million to EHD in July 2009. EHD and the Company also agreed to take the necessary steps for the dismissal of all legal proceedings related to the lease agreement.
Impact of Consolidation of Securitized Mortgage Assets on Our Financial Statements
The discussions of our financial condition and results of operation below provide analysis for the changes in our balance sheet and income statement as presented using Generally Accepted Accounting Principles in the United States of America ("GAAP"). Mortgage loans – held-in-portfolio and certain of our mortgage securities – trading are owned by trusts established when those assets were securitized. The trusts issued asset-backed bonds to finance the assets. In accordance with GAAP, we have consolidated these trusts. Due to significant events that have occurred subsequent to the securitization of these assets, we no longer have a significant economic benefit from these assets. We have provided additional disclosure in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” under the heading “Assets and Liabilities of Consolidated Securitization Trusts” to demonstrate the impact of the trusts on our consolidated financial statements.
Financial Condition as of March 31, 2009 as Compared to December 31, 2008
The following provides explanations in material changes in the components of our balance sheet when comparing amounts from March 31, 2009 and December 31, 2008.
Cash and Cash Equivalents.See “Liquidity and Capital Resources” for discussion of our cash and cash equivalents.
25
Mortgage Loans - Held-in-Portfolio.Mortgage loans – held-in-portfolio consist of subprime mortgage loans which have been securitized and are owned by three separate trusts – NHES 2006-1, NHES 2006MTA-1 and NHES 2007-1. We consolidate these trusts for GAAP reporting.
The mortgage loans – held-in-portfolio balance has declined as their value has decreased significantly. The value is dependent largely in part on their credit quality and the borrowers’ repayment performance. The credit quality of the portfolio continues to decline. Specifically, during recent months, the loss severity rate on foreclosed and liquidated loans has increased. Therefore, we continue to increase the allowance for losses on these loans. The allowance has increased from $776.0 as of December 31, 2008 to $793.7 million as of March 31, 2009. Additionally, the balance of mortgage loans – held-in-portfolio has decreased due to regular borrower repayments. During the first quarter of 2009 the trusts received repayments of the mortgage loans totaling $25.6 million. These balances will continue to decline either through normal borrower repayments or through continued devaluation as delinquencies, foreclosures and losses occur.
As discussed under the heading “Assets and Liabilities of Consolidated Securitization Trusts”, these assets have no economic benefit to us and we have no control over these assets. We have also provided the assets and liabilities of the trusts on a separate and combined basis.
Mortgage Securities – Trading and Available-for-Sale.During the first quarter of 2009, the value of the securities continued to decline as the estimated future cash flow from the securities is decreasing. The decrease is attributable largely to the continued poor credit quality and repayment performance of the mortgage loans underlying these securities. In general, the default rate on the underlying loans has increased dramatically over the past two years. Defaults are the result of national economic conditions that have led to job losses, severe declines in housing prices and the inability for credit-challenged individuals to refinance mortgage loans. In many cases, the securities we own have ceased to generate cash flow and, for the securities generating cash, we expect cash flow to decline during the coming year. We have consistently written the value of our securities down over the past two years.
The following tables provide details of our mortgage securities.
| Table 2 – Values of Individual Mortgage Securities – Available-for-Sale |
| (dollars in thousands) |
| | | March 31, 2009 | | December 31, 2008 |
| | | | | | | | | | Constant | | Expected | | | | | | | | | Constant | | Expected |
| Securitization | | Estimated | | Discount | | Pre-payment | | Credit | | Estimated | | Discount | | Pre-payment | | Credit |
| Trust (A) | | Fair Value | | Rate | | Rate | | Losses | | Fair Value | | Rate | | Rate | | Losses |
| NMFT Series: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| 2002-3 | | $ | 1,594 | | | 25 | % | | | 17 | % | | | 0.8 | % | | $ | 2,041 | | | 25 | % | | | 16 | % | | | 0.8 | % |
| 2003-1 | | | 4,742 | | | 25 | | | | 14 | | | | 2.1 | | | | 5,108 | | | 25 | | | | 13 | | | | 2.0 | |
| 2003-2 | | | 2,000 | | | 25 | | | | 13 | | | | 1.9 | | | | 2,272 | | | 25 | | | | 12 | | | | 1.9 | |
| 2003-3 | | | 2,167 | | | 25 | | | | 12 | | | | 2.7 | | | | 2,402 | | | 25 | | | | 12 | | | | 2.7 | |
| 2003-4 | | | - | | | 25 | | | | 14 | | | | 2.7 | | | | 1 | | | 25 | | | | 13 | | | | 2.7 | |
| 2004-1 | | | 2 | | | 25 | | | | 15 | | | | 3.3 | | | | 16 | | | 25 | | | | 15 | | | | 3.4 | |
| 2004-2 | | | 12 | | | 25 | | | | 14 | | | | 3.6 | | | | 27 | | | 25 | | | | 14 | | | | 3.5 | |
| 2004-3 | | | 51 | | | 25 | | | | 15 | | | | 4.5 | | | | 73 | | | 25 | | | | 15 | | | | 4.4 | |
| 2004-4 | | | 8 | | | 25 | | | | 16 | | | | 4.3 | | | | 11 | | | 25 | | | | 16 | | | | 4.3 | |
| 2005-1 | | | - | | | 25 | | | | 17 | | | | 6.3 | | | | - | | | 25 | | | | 17 | | | | 6.2 | |
| 2005-2 | | | - | | | 25 | | | | 16 | | | | 7.3 | | | | - | | | 25 | | | | 16 | | | | 7.0 | |
| 2005-3 | | | - | | | 25 | | | | 17 | | | | 9.8 | | | | - | | | 25 | | | | 17 | | | | 9.3 | |
| 2005-4 | | | - | | | 25 | | | | 18 | | | | 12.2 | | | | 3 | | | 25 | | | | 18 | | | | 11.5 | |
| 2006-2 | | | 22 | | | 25 | | | | 20 | | | | 18.0 | | | | 73 | | | 25 | | | | 19 | | | | 17.0 | |
| 2006-3 | | | 62 | | | 25 | | | | 20 | | | | 20.8 | | | | 125 | | | 25 | | | | 20 | | | | 19.8 | |
| 2006-4 | | | 81 | | | 25 | | | | 20 | | | | 21.0 | | | | 136 | | | 25 | | | | 20 | | | | 20.0 | |
| 2006-5 | | | 144 | | | 25 | | | | 20 | | | | 25.2 | | | | 214 | | | 25 | | | | 20 | | | | 24.0 | |
| 2006-6 | | | 206 | | | 25 | | | | 19 | | | | 25.8 | | | | 286 | | | 25 | | | | 19 | | | | 24.4 | |
| Total | | $ | 11,091 | | | | | | | | | | | | | | $ | 12,788 | | | | | | | | | | | | |
| |
| | | | | | |
| (A) We established the trust upon securitization of the underlying loans, which generally were originated by us. |
26
| Table 3 — Mortgage Securities - Trading | | | | | | | | | | | |
| (dollars in thousands) | | | | | | | | | | | | | | |
| As of March 31, 2009 | | | | | | | | | | | | | | |
| | | | | Amortized Cost | | | | | Number of | | Weighted |
| S&P Rating | | Original Face | | Basis | | Fair Value | | Securities | | Average Yield |
| Subordinated Securities: | | | | | | | | | | | | | | |
| Investment Grade (A) | | $ | 12,505 | | $ | 12,040 | | $ | 345 | | 3 | | 7.24 | % |
| Non-investment Grade (B) | | | 422,609 | | | 411,112 | | | 2,894 | | 87 | | 7.35 | |
| Total Subordinated Securities | | | 435,114 | | | 423,152 | | | 3,239 | | 90 | | 7.34 | |
| Residual Securities: | | | | | | | | | | | | | | |
| Unrated | | | 59,500 | | | 15,247 | | | 528 | | 1 | | 25.00 | |
| Total | | $ | 494,614 | | $ | 438,399 | | $ | 3,767 | | 91 | | 9.81 | % |
| |
| As of December 31, 2008 | | | | | | | | | | | | | | |
| | | | | Amortized Cost | | | | | Number of | | Weighted |
| S&P Rating | | Original Face | | Basis | | Fair Value | | Securities | | Average Yield |
| Subordinated Securities: | | | | | | | | | | | | | | |
| Investment Grade (A) | | $ | 12,505 | | $ | 11,891 | | $ | 833 | | 3 | | 6.25 | % |
| Non-investment Grade (B) | | | 422,609 | | | 406,125 | | | 5,547 | | 87 | | 8.08 | |
| Total Subordinated Securities | | | 435,114 | | | 418,016 | | | 6,380 | | 90 | | 7.84 | |
| Residual Securities: | | | | | | | | | | | | | | |
| Unrated | | | 59,500 | | | 15,952 | | | 705 | | 1 | | 25.00 | |
| Total | | $ | 494,614 | | $ | 433,968 | | $ | 7,085 | | 91 | | 9.55 | % |
| | | | | | | | | | | | | | | |
| | |
| (A) | | Investment grade includes all securities with S&P ratings above BB+. |
| (B) | | Non-investment grade includes all securities with S&P ratings below BBB-. |
We re-securitized, by way of a Collateralized Debt Obligation (“CDO”), some of the mortgage securities – trading we owned in the first quarter of 2007. We retained a residual interest in the CDO. However, due to the poor performance of the securities within the CDO, our residual interest in the CDO is not providing any cash flow to us and has no value. As discussed under the heading Assets and Liabilities of Consolidated Securitization Trusts, the assets in the CDO have no economic benefit to us and we have no control over these assets. We have also provided the assets and liabilities of the trusts on a separate and combined basis.
Real Estate Owned.Real estate owned includes the value of properties for foreclosed loans owned by securitization trusts, as discussed under Mortgage Loans – Held-in-Portfolio. We consolidate the assets and liabilities as part of the securitization trust. A servicer that is independent from us and the trusts services the mortgage loans and processes defaults for liquidation. Proceeds from liquidation of this real estate will flow through the trust and will generally be paid to third party bondholders. The amount of real estate owned is dependent upon the number of the overall mortgage loans outstanding, the rate of defaults, the timing of liquidations and the estimated value of the real estate.
Under the heading “Assets and Liabilities of Consolidated Securitization Trusts”, we have provided the assets and liabilities of the trusts on a separate and combined basis.
Accrued Interest Receivable.Accrued interest receivable includes the interest due from individual borrowers to the trusts who own the mortgage loans – held-in-portfolio. For all mortgage loans that do not carry mortgage insurance, the accrual of interest on loans is discontinued when, in management’s opinion, the interest is not collectible in the normal course of business, but in no case beyond when a loan becomes 90 days delinquent. For mortgage loans that do carry mortgage insurance, the accrual of interest is only discontinued when in management’s opinion, the interest is not collectible. Management generally deems all of the accrued interest on loans with mortgage interest to be collectible. The quantity of delinquent loans has significantly increased, as a percent of total loans outstanding, from December 31, 2008 to March 31, 2009. Therefore, the amount of accrued interest has also increased.
Under the heading “Assets and Liabilities of Consolidated Securitization Trusts”, we have provided the assets and liabilities of the trusts on a separate and combined basis.
Asset-backed Bonds Secured by Mortgage Assets.The balances of the asset-backed bonds have decreased as the bonds have repaid. We record the value of the bonds secured by loans at the value of the proceeds, less repayments. We record the CDO (secured by mortgage securities) at its estimated fair value. These balances will decrease going forward as the underlying assets repay or may be charged off as the assets are deemed to be insufficient to fully repay the bond obligations.
Under the heading “Assets and Liabilities of Consolidated Securitization Trusts”, we have provided the assets and liabilities of the trusts on a separate and combined basis.
Due to Servicer.The mortgage loans – held-in-portfolio on our balance sheet have been securitized and we consolidate the securitized trust. In accordance with the agreements for the securitized mortgage loans, the servicer of the loans is required to make regularly scheduled payments to the bondholders, regardless of whether the borrower has made payments as required. The servicer is required to make advances from its own funds. Upon liquidation of defaulted loans, the servicer is repaid the advanced funds. Until such time as the loans liquidate, the trust has an obligation to the servicer, which we have classified as “Due to Servicer” on the balance sheet. The amount of the obligation is dependent on the rate and timing of delinquencies of the individual borrowers. The trusts continue to experience a significant increase in the amount of delinquencies, which increases the amount of advances the servicer has made to the bondholders and therefore increases the liability to the servicer.
27
Stockholders’ Deficit.As of March 31, 2009 our total liabilities exceeded our total assets under GAAP by $973.7 million.
The liabilities of the securitization trusts exceed the assets of those trusts as of March 31, 2009 and December 31, 2008 by $994.5 million and $932.1 million, respectively. These amounts do include any adjustments for intercompany eliminations, see table 9 for further detail. The severe devaluation of the mortgage assets, as discussed in the respective categories above, has resulted in the significant deficit of these trusts. The assets and liabilities of these trusts are consolidated under GAAP. Due to the significant impact to our financial statements of these trusts, we have also provided the assets and liabilities of the trusts on a separate and combined basis under the heading “Assets and Liabilities of Consolidated Securitization Trusts.”
The significant increase in our shareholders’ deficit during the first quarter of 2009 results from our large net loss, driven primarily by valuation allowances taken on our mortgage loans.
Results of Operations – Consolidated Earnings Comparisons
Quarter Ended March 31, 2009 as Compared to the Quarter Ended March 31, 2008
Net Interest (Expense) Income.As discussed above, in general, our mortgage assets have been significantly impaired due to national and international economic crises, housing price deterioration and mortgage loan credit defaults. Interest income has declined as these assets have become impaired and due to repayments and liquidations. Interest expense has declined as the related principals balances have declined. We repaid all short-term borrowings during 2008. Interest expense is adjustable, generally based on a spread to LIBOR.
| Table 4 — Net Interest Expense | | | | | | | |
| (dollars in thousands) | | | | | | | |
| For the Quarter Ended |
| March 31, |
| 2009 | | 2008 |
| Interest income: | | | | | | | |
| Mortgage securities | $ | 11,407 | | | $ | 14,730 | |
| Mortgage loans held-in-portfolio | | 29,273 | | | | 56,025 | |
| Other interest income | | 187 | | | | 710 | |
| Total interest income | | 40,867 | | | | 71,465 | |
| Interest expense: | | | | | | | |
| Short-term borrowings secured by mortgage securities | | - | | | | 376 | |
| Asset-backed bonds secured by mortgage loans | | 5,289 | | | | 30,359 | |
| Asset-backed bonds secured by mortgage securities | | 1,878 | | | | 3,685 | |
| Junior subordinated debentures | | 1,192 | | | | 1,861 | |
| Total interest expense | | 8,359 | | | | 36,281 | |
| Net interest income before provision for credit losses | | 32,508 | | | | 35,184 | |
| Provision for credit losses | | (101,474 | ) | | | (249,316 | ) |
| Net interest (expense) income | $ | (68,966 | ) | | $ | (214,132 | ) |
| | | | | | | | |
Provision for Credit Losses.The provision for credit losses relates to mortgage loans which have been securitized. As discussed above, in general, the credit quality of the securitized mortgage loans significantly deteriorated beginning in 2007 due to national and international economic crises, housing price deterioration and mortgage loan credit defaults. The performance of the loans continues to deteriorate. A significant portion of the securitized loans have become uncollectible or will only be partially collected. For the NHEL 0601, MTA 0601 and NHEL 2007-1 transactions, we valued REO property at 50%, 50% and 40% of its current principal balance as of March 31, 2009 compared to 55%, 55% and 40% as of December 31, 2008, respectively. Provisions for these losses have increased in connection with the declining credit quality of the loans.
28
(Losses) Gains on Derivative Instruments. We have entered into derivative instrument contracts that do not meet the requirements for hedge accounting treatment, but contribute to our overall risk management strategy by serving toreduce interest rate risk related to short-term borrowing rates. The derivative instruments for which the value is on our balance sheet are owned by securitization trusts. Derivative instruments transferred into a securitization trust are administered by the trustee in accordance with the trust documents. These derivative instruments are used to mitigate interest rate risk within the related securitization trust and will generally increase in value as short-term interest rates increase and decrease in value as rates decrease.
We also entered into three credit default swaps (“CDS”) during 2007 as part of our CDO transaction previously discussed. The CDS had a notional amount of $16.5 million and a fair value of $6.1 million at the date of purchase and are pledged as collateral against the CDO ABB.
The losses on derivative instruments from continuing operations resulted from declining interest rates and declining values of the CDS. The lower loss in 2009 compared to 2008 is generally due to the declining notional amount of the outstanding derivatives.
Fair Value Adjustments.Adjustment for changes in value on our trading securities and the asset-backed bonds issued in our CDO are recorded as Fair Value Adjustments. The significant value declines are a result of significant spread widening in the subprime mortgage market for these types of asset-backed securities as well as poor credit performance of the underlying mortgage loans. By the end of 2007, the total value of the trading securities and the asset-backed bonds had declined significantly, resulting in a lower overall adjustment in the first quarter of 2009 when compared to the first quarter of 2008.
Impairment on Mortgage Securities – Available-for-Sale.To the extent that the cost basis of mortgage securities – available-for-sale exceeds the fair value and the unrealized loss is considered to be other than temporary, an impairment charge is recognized and the amount recorded in accumulated other comprehensive income or loss is reclassified to earnings as a realized loss. The large impairment in the first quarter of 2008 was primarily driven by an increase in actual and projected losses due to the deteriorating credit quality of the loans underlying the securities. By the end of 2007, the total value of the available-for-sale securities had declined significantly, resulting in a lower overall impairment in the first quarter of 2009 when compared to the first quarter of 2008.
Appraisal Fee Income and Expense.We acquired a majority interest in StreetLinks on August 1, 2008. Fees are collected from customers (borrowers or lenders), a portion of which is paid to independent mortgage loan appraisers. Fee income and expense is recognized when the appraisal is completed and delivered to the customer.
General and Administrative Expenses.During late 2007 and into early 2008, we eliminated a significant portion of our administrative overhead. We terminated officers and staff in our executive, information systems, legal, human resource and finance/accounting departments. We also terminated numerous contracts for professional services. One of management’s key focuses during 2008 was to reduce or eliminate all unnecessary general and administrative expenses. As a result, excluding the impact on operating expenses for StreetLinks, operating expenses have declined when comparing general and administrative expenses for the quarters ended March 31, 2009 and 2008.
Contractual Obligations
We have entered into certain long-term debt, hedging and lease agreements, which obligate us to make future payments to satisfy the related contractual obligations.
The following table summarizes our contractual obligations for both continuing and discontinued operations, as of March 31, 2009, other than short-term borrowing arrangements.
| Table 5 — Contractual Obligations | | | | | | | | | | | | | | | | | | | | |
| (dollars in thousands) | | | | | | | | | | | | | | | | | | | | |
| | Payments Due by Period |
| | | | | | Less than 1 | | | | | | | | | | | | |
| Contractual Obligations | | Total | | Year | | 1-3 Years | | 3-5 Years | | After 5 Years |
| Long-term debt paydown (A) | | $ | 3,031,164 | | | $ | 674,376 | | | $ | 918,986 | | | $ | 487,849 | | | $ | 949,953 | |
| Junior subordinated debentures (B) | | | 181,533 | | | | 10,160 | | | | 7,331 | | | | 7,331 | | | | 156,711 | |
| Operating leases (C) | | | 14,268 | | | | 6,515 | | | | 6,475 | | | | 746 | | | | 532 | |
| Total, consolidated obligations | | | 3,226,965 | | | | 691,051 | | | | 932,792 | | | | 495,926 | | | | 1,107,196 | |
| Non-recourse obligations | | | (3,031,164 | ) | | | (674,376 | ) | | | (918,986 | ) | | | (487,849 | ) | | | (949,953 | ) |
| |
| Recourse obligations | | $ | 195,801 | | | $ | 16,675 | | | $ | 13,806 | | | $ | 8,077 | | | $ | 157,243 | |
| | | | | | | | | | | | | | | | | | | | | |
| (A) | | The asset-backed bonds will be repaid only to the extent there is sufficient cash receipts on the underlying mortgage loans, which collateralize the debt. The trusts that own these assets and asset-backed obligations have no recourse to us for any shortfall. The timing of the repayment of these mortgage loans is affected by prepayments. These amounts include expected interest payments on the obligations. Interest obligations on our variable-rate long-term debt are based on the prevailing interest rate as of March 31, 2009 for each respective obligation. |
29
| (B) | | The junior subordinated debentures are assumed to mature in 2035 and 2036 in computing the future payments. These amounts include expected interest payments on the obligations. Interest obligations on our junior subordinated debentures are based on the prevailing interest rate as of March 31, 2009 for each respective obligation. On February 18, 2009, the Company, NMI, NovaStar Capital Trust I and NovaStar Capital Trust II (the “Trusts”) and the trust preferred security holders entered into agreements to exchange the existing preferred obligations for new preferred obligations. The new preferred obligations require quarterly distributions of interest to the holders at a rate equal to 1.0% per annum beginning January 1, 2009 through December 31, 2009, subject to reset to a variable rate equal to the three-month LIBOR plus 3.5% upon the occurrence of an “Interest Coverage Trigger.” See Note 6 to the condensed consolidated financial statements for additional details. |
| |
| (C) | | The operating lease obligations do not include rental income of $1.7 million to be received under sublease contracts. The operating lease obligations do not reflect the settlement of the lease with EHD, see Note 7 to the condensed consolidated financial statements for additional information. |
Liquidity and Capital Resources
We have taken numerous actions to reduce our cash needs and liquidity risk. However, we continue to have liquidity risk as our operating businesses are generally not providing net positive cash flow and the cash from our mortgage securities is expected to decline.
Our residual and subordinated mortgage securities are a primary source of significant cash flows. Based on the current projections, the cash flows from our mortgage securities will decrease in the next several months as the underlying mortgage loans are repaid, and could be significantly less than the current projections if losses on the underlying mortgage loans exceed the current assumptions or if short-term interest rates increase significantly. We have operating expenses associated with our administration, as well as payment obligations with respect to unsecured debt, including periodic interest payments with respect to junior subordinated debentures. As discussed in “Item 1. Legal Proceedings” we are the subject of various legal proceedings, the outcome of which is uncertain. We may also face demands in the future that are unknown to us today related to our legacy lending and servicing operations. If the cash flows from our mortgage securities are less than currently anticipated, our operating businesses do not generate positive cash flow and we cannot restructure our unsecured debt and contractual obligations, there can be no assurance that we will be able to continue as a going concern and avoid seeking the protection of applicable federal and state bankruptcy laws.
As of July 10, 2009, we had approximately $20.7 million in cash on hand (including restricted cash of $6.1 million). In addition to our operating expenses, which currently range from approximately $750,000 to $1.5 million per month we have quarterly interest payments due on our trust preferred securities. The next payment on the trust preferred securities is due on September 30, 2009 and totals $0.2 million. Our current projections indicate sufficient available cash and cash flows from our mortgage assets to meet these payment needs. However, our mortgage asset cash flows are currently volatile and uncertain in nature, and the amounts we receive could vary materially from our projections. Therefore, no assurances can be given that we will be able to meet our cash flow needs, in which case we would be required to seek protection of applicable bankruptcy laws.
Overview of Cash Flow for the Quarter Ended March 31, 2009
During 2007 and early 2008, we discontinued our mortgage lending operations and sold our mortgage servicing rights which subsequently resulted in the closing of our servicing operations. Prior to exiting the lending business, we sold the majority of the loans we originated to securitization trusts. Three of these securitization trusts are consolidated for financial reporting under GAAP, which means all of the assets and the liabilities of the trust are included in our consolidated financial statements. Our results of operations and cash flows include the activity of these trusts. The cash proceeds from the repayment of the loan collateral are owned by the trust and serve to only repay the obligations of the trust. We do not collect the cash and we are not responsible for the obligations of the trust. Principal and interest on the bonds (securities) of the trust can only be paid if there is sufficient cash flow the underlying collateral. We own some of the securities issued by the trust, which are our only source of available cash flow. As a result of the national economic crises, the loans within these trusts have very high rates of default. Therefore, the cash flow on the securities we own has declined significantly within the past two years.
We have provided a summary of the cash flow for the securitization trusts under the heading Assets and Liabilities of Consolidated Securitization Trusts.
Following are the primary and simplified sources of cash receipts and disbursements, excluding the impact of the securitization trusts.
30
| Table 6 – Primary Sources Cash Receipts and Disbursements | | | |
| (dollars in thousands) | | | |
| For the |
| Quarter |
| Ended March |
| Primary sources: | 31, 2009 |
| Payments received on mortgage securities | $ | 6,382 | |
| Receipts for appraisal management services | | 1,483 | |
| |
| Primary uses: | | | |
| Payment of corporate general, administrative and capital | | | |
| expenditures | | (9,779 | ) |
| Payments for appraisals and related administrative costs | | (2,891 | ) |
Statement of Cash Flows - Operating, Investing and Financing Activities
The following table provides a summary of our operating, investing and financing cash flows as taken from our consolidated statements of cash flows for the three months ended March 31, 2009 and 2008.
| Table 7 — Summary of Operating, Investing and Financing Cash Flows | |
| (dollars in thousands) | | | | | | | |
| For the Three Months |
| Ended March 31, |
| 2009 | | 2008 |
| Consolidated Statements of Cash Flows: | | | | | | | |
| Cash provided by (used in) operating activities | $ | 20,552 | | | $ | (6,920 | ) |
| Cash flows provided by investing activities | | 52,873 | | | | 166,012 | |
| Cash flows used in financing activities | | (78,207 | ) | | | (171,932 | ) |
Operating Activities. Net cash used in operating activities increased by $27.5 million in 2009 as compared to 2008. The increase was substantially related to the increase in the balance of the amounts due to servicer. See a discussion of the impact of the consolidated loan trusts under the heading “Assets and Liabilities of Consolidated Securitization Trusts”.
Investing Activities. In the first quarter of 2009, net cash provided by investing activities decreased to $52.9 million as compared to $166.0 million in the first quarter of 2008. Our mortgage loan portfolio declined significantly and borrower defaults increased, resulting in lower repayments of our mortgage loans held-in-portfolio. Cash proceeds from the sale of assets acquired through foreclosure have increased as our foreclosed loan activity has increased significantly. We also experienced a decrease in paydowns on our mortgage securities – available-for-sale during 2009 as compared to 2008 as a result of poor credit performance of the underlying loans.
Financing Activities. Net cash used in financing activities decreased to $78.2 million in 2009 as compared 2008. All short term borrowings were paid off in 2008 and we also experienced a decrease in paydowns of our asset-backed bonds during the year.
Future Sources and Uses of Cash
Primary Sources of Cash
Cash Received From Our Mortgage Securities Portfolio.A major driver of cash flows is the proceeds we receive from our mortgage securities. For the three months ended March 31, 2009 we received $6.1 million in proceeds from repayments on mortgage securities. The cash flows we receive on our mortgage securities—available-for-sale are highly dependent on the interest rate spread between the underlying collateral and the bonds issued by the securitization trusts and default and prepayment experience of the underlying collateral. The following factors have been the significant drivers in the overall fluctuations in these cash flows:
- Higher credit losses have decreased cash available to distribute with respect to our securities,
- As short-term interest rates decline, the net spread to us increases and if short-term interest rates increase, the spread we receive will decline,
- We have lower average balances of our mortgage securities—available-for-sale portfolio as the securities have paid down and we have not acquired new bonds.
31
Collateral Returned from Surety Bond Holders.See discussion under “Restricted Cash”. We have $6.0 million collateral outstanding for surety bond holders. When the cash collateralizing the surety bond letters of credit is released, it will become unrestricted and available for general corporate purposes. We cannot predict the timing of the release.
Proceeds from Repayments of Mortgage Loans. As we discussed above, significant cash is collected by the securitization trusts from the payment of principal and interest on securitized loans and securities. The cash is held by the trust and is used to repay obligations (primarily to bondholders) of the trust. The cash is not available to us and we are not responsible for the obligations of the trust.
Primary Uses of Cash
Payments of General and Administrative Expenses.We continue to have significant general and administrative expenses associated with managing and operating our business. These expenses include staff and management compensation and related benefit payments, professional expenses for audit, tax and related services, legal services, rent and general office operational costs.
Investment in Assets or Operating Businesses.To the extent we have cash available to invest in assets or operating businesses, management intends to do so. During the first quarter of 2009, we invested $1.4 million in StreetLinks. Subsequent to the first quarter of 2009, we invested $2 million to acquire Advent.
Repayments of Long-Term Borrowings.As of March 31, 2009, we had $78.1 million in outstanding principal of junior subordinated debentures relating to the trust preferred securities of NovaStar Capital Trust I and NovaStar Capital Trust II We have unamortized debt issue costs of $700,000 and therefore a carrying value for the debt of $77.4 million.Subsequent to the first quarter of 2009, we restructured our obligations under the junior subordinated debentures, which we expect to reduce cash requirements for interest in the near term. As part of the restructuring, we repaid all interest accrued through December 31, 2008, totaling $5.3 million. Details of the restructuring are included in Note 6 to the condensed consolidated financial statements. See Table 5 for an estimate of our contractual obligations related to these junior subordinated debentures.
Assets and Liabilities of Consolidated Securitization Trusts
During 2006 and 2007, we executed loan securitization transactions that did not meet the criteria necessary for derecognition of the securitized assets and liabilities pursuant to Statement of Financial Accounting Standards No. 140, “Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities – a replacement of FASB Statement No. 125” (“SFAS 140”) and related authoritative accounting literature. As a result, the assets and liabilities relating to this securitization are included in our consolidated financial statements.
At the time these loans were securitized, we owned significant beneficial interests in the securitized loan pools, including various subordinated bond classes and the residual interests in these pools. For the 2006 securitized loan pools, we owned the right to unilaterally place certain derivative instruments into the securitization trust and to repurchase a limited number of loans from the trust for any reason and at any time. For the 2007 securitized loan pool, we determined that it excessively benefited from the derivatives transferred to the trust at inception.
During 2007, we also securitized certain mortgage securities through a Collateralized Debt Obligation structure.
32
During and prior to 2008, the following events occurred that have significantly changed the economics of these securitized loan pools including:
| | 1. | | We sold a portion of the beneficial interests we owned, |
| 2. | | The credit losses on the securitized loans increased to the point where the remaining beneficial interests we own are not significant, |
| 3. | | We sold the right to service all securitized loans, |
| 4. | | We executed amendments to the securitization agreements for the 2006 loan pools whereby we relinquished all rights to place certain derivative instruments into the securitization trust and to repurchase a limited number of loans from the trust for any reason and at any time, and |
| 5. | | For the 2007 securitized loan pool, a significant portion of the derivatives placed into the trust have expired and the remaining derivatives will expire by January 2010. |
While the securities, loans and bond liabilities, along with miscellaneous related assets and liabilities, remain on our balance sheet as presented in accordance with accounting principles generally accepted in the United States of America, we have no ability to control the assets, no obligations related to the trust payables, and no significant economic benefit from our ownership interests issued by the trust. Likewise, the income and expenses associated with these assets and liabilities represent earnings and costs of the securitization trust, but have no impact on our cash and liquidity due to the current economic condition of the trusts.
Below is financial information for each of the securitization trusts we consolidate and for the total of all consolidated trust balance sheets. The discussion of the individual line items within this financial information is included in the discussion of our consolidated financial statements in the applicable forgoing sections of this report and is considered non-GAAP financial information.
33
| Table 8 – Assets and Liabilities of Securitization Trusts (A) (B) | | | | | | | | | | | | | | | | | | | | | |
| (dollars in thousands) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | March 31, 2009 | | December 31, 2008 |
| | | | | | | | | | NHES | | | | | | | | | | | | | | | | | | NHES | | | | | | | | |
| | | | NHES | | 2006 | | NHES | | | | | | | | NHES | | 2006 | | NHES | | | | |
| | CDO | | 2006-1 | | MTA1 | | 2007-1 | | Total | | CDO | | 2006-1 | | MTA1 | | 2007-1 | | Total |
| Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Mortgage loans – held | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| in portfolio, net of | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| allowance | | $ | - | | | $ | 363,362 | | | $ | 479,596 | | | $ | 770,008 | | | $ | 1,612,966 | | | $ | - | | | $ | 411,146 | | | $ | 523,183 | | | $ | 847,962 | | | $ | 1,782,291 | |
| Trading securities | | | 3,023 | | | | - | | | | - | | | | - | | | | 3,023 | | | | 5,199 | | | | - | | | | - | | | | - | | | | 5,199 | |
| Real estate owned | | | - | | | | 29,022 | | | | 12,765 | | | | 49,315 | | | | 91,102 | | | | - | | | | 23,289 | | | | 9,233 | | | | 37,958 | | | | 70,480 | |
| Accrued interest | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| receivable | | | - | | | | 21,453 | | | | 9,277 | | | | 45,323 | | | | 76,053 | | | | - | | | | 22,566 | | | | 10,134 | | | | 44,592 | | | | 77,292 | |
| Other assets | | | 911 | | | | - | | | | - | | | | - | | | | 911 | | | | 2,043 | | | | - | | | | - | | | | - | | | | 2,043 | |
| Total assets | | $ | 3,934 | | | $ | 413,837 | | | $ | 501,638 | | | $ | 864,646 | | | $ | 1,784,055 | | | $ | 7,242 | | | $ | 457,001 | | | $ | 542,550 | | | $ | 930,512 | | | $ | 1,937,305 | |
| |
| Liabilities and net deficiency in assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Liabilities: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Asset-backed | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| bonds secured | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| by mortgage | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| loans | | $ | - | | | $ | 540,691 | | | $ | 685,115 | | | $ | 1,342,525 | | | $ | 2,568,331 | | | $ | - | | | $ | 566,577 | | | $ | 700,335 | | | $ | 1,398,115 | | | $ | 2,665,027 | |
| Asset-backed | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| bonds secured | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| by mortgage | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| securities | | | 3,073 | | | | - | | | | - | | | | - | | | | 3,073 | | | | 5,384 | | | | - | | | | - | | | | - | | | | 5,384 | |
| Other liabilities | | | 24,872 | | | | 50,558 | | | | 26,127 | | | | 114,301 | | | | 215,858 | | | | 24,748 | | | | 47,418 | | | | 22,401 | | | | 104,439 | | | | 199,006 | |
| Total liabilities | | | 27,945 | | | | 591,249 | | | | 711,242 | | | | 1,456,826 | | | | 2,787,262 | | | | 30,132 | | | | 613,995 | | | | 722,736 | | | | 1,502,554 | | | | 2,869,417 | |
| Total net deficiency | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| in assets | | | (24,011 | ) | | | (177,412 | ) | | | (209,604 | ) | | | (592,180 | ) | | | (1,003,207 | ) | | | (22,890 | ) | | | (156,994 | ) | | | (180,186 | ) | | | (572,042 | ) | | | (932,112 | ) |
| |
| Total liabilities and | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| net deficiency in | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| assets | | $ | 3,934 | | | $ | 413,837 | | | $ | 501,638 | | | $ | 864,646 | | | $ | 1,784,055 | | | $ | 7,242 | | | $ | 457,001 | | | $ | 542,550 | | | $ | 930,512 | | | $ | 1,937,305 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (A) | | Stand-alone balances do not include impact of intercompany eliminations. |
| (B) | | The above financial information is considered non-GAAP. |
34
| Table 9 – Operating Results of Securitization Trusts (A) (B) |
| (dollars in thousands) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | For the Quarter Ended March 31, |
| | 2009 | | 2008 |
| | | | | | | | | | NHES | | | | | | | | | | | | | | | | | | NHES | | | | | | | | |
| | | | | | NHES | | 2006 | | NHES | | | | | | | | | | NHES | | 2006 | | NHES | | | | |
| | CDO | | 2006-1 | | MTA1 | | 2007-1 | | Total | | CDO | | 2006-1 | | MTA1 | | 2007-1 | | Total |
| Interest Income | | $ | 5,580 | | | $ | 6,817 | | | $ | 3,701 | | | $ | 18,610 | | | $ | 34,708 | | | $ | 8,910 | | | $ | 15,803 | | | $ | 10,293 | | | $ | 29,722 | | | $ | 64,728 | |
| Interest expense | | | 2,124 | | | | 1,393 | | | | 2,067 | | | | 3,812 | | | | 9,396 | | | | 3,998 | | | | 7,785 | | | | 8,122 | | | | 17,088 | | | | 36,993 | |
| Provision for credit | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| losses | | | - | | | | (31,648 | ) | | | (30,271 | ) | | | (39,555 | ) | | | (101,474 | ) | | | - | | | | (50,120 | ) | | | (84,571 | ) | | | (114,626 | ) | | | (249,317 | ) |
| Servicing fee | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| expense | | | - | | | | 659 | | | | 648 | | | | 1,684 | | | | 2,991 | | | | - | | | | 887 | | | | 708 | | | | 2,101 | | | | 3,696 | |
| Mortgage insurance | | | - | | | | 860 | | | | 68 | | | | 2,410 | | | | 3,338 | | | | - | | | | 1,195 | | | | 75 | | | | 3,005 | | | | 4,275 | |
| Other income | | | (4,510 | ) | | | 7,332 | | | | - | | | | 8,727 | | | | 11,549 | | | | (5,752 | ) | | | - | | | | - | | | | (14,447 | ) | | | (20,199 | ) |
| General and | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| administrative | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| expenses | | | 67 | | | | 7 | | | | 7 | | | | 14 | | | | 95 | | | | 333 | | | | 10 | | | | 8 | | | | 16 | | | | 367 | |
| Net loss before tax | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| expense | | | (1,121 | ) | | | (20,418 | ) | | | (29,360 | ) | | | (20,138 | ) | | | (71,037 | ) | | | (1,173 | ) | | | (44,194 | ) | | | (83,191 | ) | | | (121,561 | ) | | | (250,119 | ) |
| |
| Tax expense | | | - | | | | - | | | | 58 | | | | - | | | | 58 | | | | - | | | | - | | | | - | | | | - | | | | - | |
| |
| Net loss | | $ | (1,121 | ) | | $ | (20,418 | ) | | $ | (29,418 | ) | | $ | (20,138 | ) | | $ | (71,095 | ) | | $ | (1,173 | ) | | $ | (44,194 | ) | | $ | (83,191 | ) | | $ | (121,561 | ) | | $ | (250,119 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (A) | | Stand-alone balances do not include impact of intercompany eliminations. |
| (B) | | The above financial information is considered non-GAAP. |
| |
| Table 10 – Cash Flows of Securitization Trusts (A) (B) |
| (dollars in thousands) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | For the Quarter Ended March 31, |
| | 2009 | | 2008 |
| | | | | | | | | | NHES | | | | | | | | | | | | | | | | | | NHES | | | | | | | | |
| | | | | | NHES | | 2006 | | NHES | | | | | | | | | | NHES | | 2006 | | NHES | | | | |
| Net cash flow from: | | CDO | | 2006-1 | | MTA1 | | 2007-1 | | Total | | CDO | | 2006-1 | | MTA1 | | 2007-1 | | Total |
| Operating activities | | $ | (452 | ) | | $ | 15,588 | | | $ | 5,889 | | | $ | 16,355 | | | $ | 37,380 | | | $ | (2,962 | ) | | $ | 4,838 | | | $ | (4,115 | ) | | $ | 8,084 | | | $ | 5,845 | |
| Investing activities | | | 1,291 | | | | 10,478 | | | | 9,447 | | | | 27,043 | | | | 48,259 | | | | 5,337 | | | | 56,819 | | | | 23,410 | | | | 53,733 | | | | 139,299 | |
| Financing activities | | | (839 | ) | | | (26,066 | ) | | | (15,336 | ) | | | (43,398 | ) | | | (85,639 | ) | | | (2,375 | ) | | | (61,657 | ) | | | (19,295 | ) | | | (61,817 | ) | | | (145,144 | ) |
| |
| Net cash flow | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | |
| Cash, beginning of year | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | |
| |
| Cash, end of year | | $ | - | | | $ | - | | | $ | - | | | $ | - | | | $ | - | | | $ | - | | | $ | - | | | $ | - | | | $ | - | | | $ | - | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (A) | | Stand-alone balances do not include impact of intercompany eliminations. |
| (B) | | The above financial information is considered non-GAAP. |
35
Item 3. Quantitative and Qualitative Disclosures About Market Risk
As a small business filer, we are not required to provide the information required by this Item.
Item 4. Controls and Procedures
Disclosure Controls and Procedures
The Company maintains a system of disclosure controls and procedures which are designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the federal securities laws, including this report, is recorded, processed, summarized and reported on a timely basis. These disclosure controls and procedures include controls and procedures designed to ensure that information required to be disclosed under the federal securities laws is accumulated and communicated to the Company’s management on a timely basis to allow decisions regarding required disclosure. The Company’s principal executive officer and principal financial officer evaluated the Company’s disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(d)) as of the end of the period covered by this report and concluded that the Company’s controls and procedures were effective.
Internal Control over Financial Reporting
Management’s Report on Internal Control over Financial Reporting
Management of NovaStar Financial, Inc. and subsidiaries (the “Company”) is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) of the Securities Exchange Act of 1934. This internal control system has been designed to provide reasonable assurance to the Company’s management and board of directors regarding the preparation and fair presentation of the Company’s published financial statements.
All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation.
Management of the Company has assessed the effectiveness of the Company’s internal control over financial reporting as of March 31, 2009. To make this assessment, management used the criteria for effective internal control over financial reporting described inInternal Control—Integrated Framework, issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on our assessment under the framework inInternal Control—Integrated Framework, management concluded that the Company’s internal control over financial reporting was not effective as of March 31, 2009 because of the existence of a material weakness in internal controls over financial reporting related to the lack of segregation of duties within our accounting department
A material weakness is a deficiency, or combination of deficiencies, in internal controls over financial reporting, such that there is a reasonable possibility a material misstatement of the company’s annual or interim financial statements will not be prevented or detected on a timely basis.
The Company identified a control deficiency that was deemed a material weakness in internal controls over financial reporting at September 30, 2008. The deficiency relates to the inadequate segregation of duties amongst the Company's employees with respect to accounting, financial reporting and disclosure. The material weakness was a result of the reduction in our accounting staff which occurred during the third quarter ended September 30, 2008. The material weakness identified above did not result in the restatement of prior period financial statements or any other related financial disclosure, nor did it disclose any errors or misstatements.
Management has taken steps to remedy the material weakness by hiring additional accounting department staff, and reallocating duties, including responsibilities for financial reporting, among the Company’s employees. However, based on the overall lack of accounting department resources, this material weakness was not remediated as of March 31, 2009.
Changes in Internal Control over Financial Reporting
There were no changes in our internal controls over financial reporting during the quarter ended March 31, 2009 that have materially affected, or are reasonably likely to materially affect, our internal controls over financial reporting.
36
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
Trust Preferred Settlement.See Note 6—Borrowings for a detailed discussion of the settlement terms and restructuring of the Company’s junior subordinated debentures, including the dismissal of the involuntary Chapter 7 bankruptcy filed against NovaStar Mortgage, Inc. (Case No. 08-12125-CSS) by the holders of the trust preferred securities in U.S. Bankruptcy Court for the District of Delaware in Wilmington, Delaware.
Litigation.
At this time, the Company cannot predict the probable outcome of the following claims and as such no amounts have been accrued in the consolidated financial statements.
In February 2007, a number of substantially similar putative class actions were filed in the United States District Court for the Western District of Missouri. The complaints name the Company and three of the Company’s former and current executive officers as defendants and generally allege, among other things, that the defendants made materially false and misleading statements regarding the Company’s business and financial results. The plaintiffs purport to have brought the actions on behalf of all persons who purchased or otherwise acquired the Company’s common stock during the period May 4, 2006 through February 20, 2007. Following consolidation of the actions, a consolidated amended complaint was filed on October 19, 2007. On December 29, 2007, the defendants moved to dismiss all of plaintiffs’ claims. On June 4, 2008, the Court dismissed the plaintiffs’ complaints without leave to amend. The plaintiffs have filed an appeal of the Court’s ruling. The Company believes that these claims are without merit and will vigorously defend against them.
In May 2007, a lawsuit entitledNational Community Reinvestment Coalition v. NovaStar Financial, Inc.,et al., was filed against the Company in the United States District Court for the District of Columbia. Plaintiff, a non-profit organization, alleges that the Company maintains corporate policies of not making loans on Indian reservations, on dwellings used for adult foster care or on rowhouses in Baltimore, Maryland in violation of the federal Fair Housing Act. The lawsuit seeks injunctive relief and damages, including punitive damages, in connection with the lawsuit. On May 30, 2007, the Company responded to the lawsuit by filing a motion to dismiss certain of plaintiff’s claims. On March 31, 2008 that motion was denied by the Court. The Company believes that these claims are without merit and will vigorously defend against them.
On January 10, 2008, the City of Cleveland, Ohio filed suit against the Company and approximately 20 other mortgage, commercial and investment bankers alleging a public nuisance had been created in the City of Cleveland by the operation of the subprime mortgage industry. The case was filed in state court and promptly removed to the United States District Court for the Northern District of Ohio. The plaintiff seeks damages for loss of property values in the City of Cleveland, and for increased costs of providing services and infrastructure, as a result of foreclosures of subprime mortgages. On October 8, 2008, the City of Cleveland filed an amended complaint in federal court which did not include claims against the Company but made similar claims against NovaStar Mortgage, Inc., a wholly owned subsidiary of NFI. On November 24, 2008 the Company filed a motion to dismiss. On May 15, 2009 the Court granted Company’s motion to dismiss. The City of Cleveland has filed a notice of intent to appeal. The Company believes that these claims are without merit and will vigorously defend against them.
On January 31, 2008, two purported shareholders filed separate derivative actions in the Circuit Court of Jackson County, Missouri against various former and current officers and directors and named the Company as a nominal defendant. The essentially identical petitions seek monetary damages alleging that the individual defendants breached fiduciary duties owed to the Company, alleging insider selling and misappropriation of information, abuse of control, gross mismanagement, waste of corporate assets, and unjust enrichment between May 2006 and December 2007. On June 24, 2008 a third, similar case was filed in United States District Court for the Western District of Missouri. The Company believes that these claims are without merit and will vigorously defend against them.
On May 6, 2008, the Company received a letter written on behalf of J.P. Morgan Mortgage Acceptance Corp. and certain affiliates ("Morgan") demanding indemnification for claims asserted against Morgan in a case entitled Plumbers & Pipefitters Local #562 Supplemental Plan and Trust v. J.P. Morgan Acceptance Corp. et al, filed in the Supreme Court of the State of New York, County of Nassau. The case seeks class action certification for alleged violations by Morgan of sections 11 and 15 of the Securities Act of 1933, on behalf of all persons who purchased certain categories of mortgage backed securities issued by Morgan in 2006 and 2007. Morgan's indemnity demand alleges that any liability it might have to plaintiffs would be based, in part, upon alleged misrepresentations made by the Company with respect to certain mortgages that make up a portion of the collateral for the securities at issue. The Company believes it has meritorious defenses to this demand and expects to defend vigorously any claims asserted.
37
On May 21, 2008, a purported class action case was filed in the Supreme Court of the State of New York, New York County, by the New Jersey Carpenters' Health Fund, on behalf of itself and all others similarly situated. Defendants in the case include NovaStar Mortgage Funding Corporation and its individual directors, several securitization trusts sponsored by the Company, and several unaffiliated investment banks and credit rating agencies. The case was removed to the United States District Court for the Southern District of New York. On June 16, 2009, the plaintiff filed an amended complaint. Plaintiff seeks monetary damages, alleging that the defendants violated sections 11, 12 and 15 of the Securities Act of 1933 by making allegedly false statements regarding mortgage loans that served as collateral for securities purchased by plaintiff and the purported class members. The Company believes it has meritorious defenses to the case and expects to defend the case vigorously.
On July 7, 2008, plaintiff Jennifer Jones filed a purported class action case in the United States District Court for the Western District of Missouri against the Company, certain former and current officers of the Company, and unnamed members of the Company's "Retirement Committee". Plaintiff, a former employee of the Company, seeks class action certification on behalf of all persons who were participants in or beneficiaries of the Company's 401(k) plan from May 4, 2006 until November 15, 2007 and whose accounts included investments in the Company's common stock. Plaintiff seeks monetary damages alleging that the Company's common stock was an inappropriately risky investment option for retirement savings, and that defendants breached their fiduciary duties by allowing investment of some of the assets contained in the 401(k) plan to be made in the Company's common stock. On November 12, 2008, the Company filed a motion to dismiss which was denied by the Court on February 11, 2009. On April 6, 2009 the Court granted the plaintiff’s motion for class certification. The Company sought permission from the 8th Circuit Court of Appeals to appeal the order granting class certification. On May 11, 2009 the Court of Appeals granted the Company permission to appeal the class certification order. The Company believes it has meritorious defenses to the case and expects to defend the case vigorously.
On October 21, 2008, EHD Holdings, LLC (“EHD”), the purported owner of the building which leases the Company its former principal office space in Kansas City, filed an action for unpaid rent in the Circuit Court of Jackson County, Missouri. On April 24, 2009, EHD filed a motion for summary judgment seeking approximately $3.3 million, in past due rent and charges, included in the Accounts payable and other liabilities line item of the balance sheet, plus accruing rent and charges for future periods, plus attorney fees. On June 30, 2009, the Company executed a settlement agreement with EHD whereby the Company is released from all past and future obligations under its lease agreement and paid $5 million to EHD. EHD and the Company also agreed to take the necessary steps for the dismissal of all legal proceedings related to the lease agreement.
In addition to those matters listed above, the Company is currently a party to various other legal proceedings and claims, including, but not limited to, breach of contract claims, tort claims, and claims for violations of federal and state consumer protection laws. Furthermore, the Company has received indemnification and loan repurchase demands with respect to alleged violations of representations and warranties made in loan sale and securitization agreements. These indemnification and repurchase demands have been addressed without significant loss to the Company, but such claims can be significant when multiple loans are involved. Continued deterioration of the housing market may increase the risk of such claims.
Item 1A. Risk Factors
Risk Factors
There have been no material changes to the risk factors previously disclosed in our Annual Report on Form 10K, as amended, for the fiscal year ended December 31, 2008.
38
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
(dollars in thousands) |
| Issuer Purchases of Equity Securities |
| | | | | | Total Number of | | | |
| | | | | | Shares | | Approximate Dollar |
| | | | | | Purchased as | | Value of Shares |
| | | | | | Part of Publicly | | That May Yet Be |
| | Total Number | | Average | | Announced | | Purchased Under |
| | of Shares | | Price Paid | | Plans or | | the Plans or |
| | Purchased | | per Share | | Programs | | Programs (A) |
| January 1, 2009 – January 31, 2009 | | - | | - | | - | | $ | 1,020 |
| February 1, 2009 – February 28, 2009 | | - | | - | | - | | $ | 1,020 |
| March 1, 2009 – March 31, 2009 | | - | | - | | - | | $ | 1,020 |
| (A) | | A current report on Form 8-K was filed on October 2, 2000 announcing that the Board of Directors authorized the Company to repurchase its common shares, bringing the total authorization to $9 million. |
Item 3. Defaults Upon Senior Securities
NFI’s wholly owned subsidiary NovaStar Mortgage, Inc. (“NMI”) has approximately $77.4 million in principal amount of unsecured notes (collectively, the “Notes”) outstanding to NovaStar Capital Trust I and NovaStar Capital Trust II (collectively, the “Trusts”) which secure trust preferred securities issued by the Trusts. NFI has guaranteed NMI's obligations under the Notes.
NMI failed to make quarterly interest payments that were due on March 30, April 30, June 30, July 30, September 30, October 30 and December 30, 2008, and January 30 and March 30, 2009 totaling, for all payment dates combined, approximately $6.1 million on the Notes. As a result, NMI was in default under the related indentures and NFI was in default under the related guarantees as of March 31, 2009.
On September 12, 2008, a petition for involuntary Chapter 7 bankruptcy entitled In re NovaStar Mortgage, Inc. (Case No. 08-12125-CSS) was filed against NMI by the holders of the trust preferred securities in U.S. Bankruptcy Court for the District of Delaware in Wilmington, Delaware. The filing did not include NFI or any other subsidiary or affiliate of NFI.
On February 18, 2009, the Company, NMI, the Trusts and the trust preferred security holders entered into agreements to settle the claims of the trust preferred security holders arising from NMI’s failure to make the scheduled quarterly interest payments on the Notes. As part of the settlement, the existing preferred obligations would be exchanged for new preferred obligations. The settlement and exchange were contingent upon, among other things, the dismissal of the involuntary Chapter 7 bankruptcy. On March 9, 2009, the Bankruptcy Court entered an order dismissing the involuntary proceeding. On April 24, 2009 (the “Exchange Date”), the parties executed the necessary documents to complete the Exchange. On the Exchange Date, the Company paid interest due through December 31, 2008, in the aggregate amount of $5.3 million. In addition, the Company paid $0.3 million in legal and administrative costs on behalf of the Trusts.
The new preferred obligations require quarterly distributions of interest to the holders at a rate equal to 1.0% per annum beginning January 1, 2009 through December 31, 2009, subject to reset to a variable rate equal to the three-month LIBOR plus 3.5% upon the occurrence of an “Interest Coverage Trigger.” For purposes of the new preferred obligations, an Interest Coverage Trigger occurs when the ratio of EBITDA for any quarter ending on or after December 31, 2008 and on or prior to December 31, 2009 to the product as of the last day of such quarter, of the stated liquidation value of all outstanding 2009 Preferred Securities (i) multiplied by 7.5%, (ii) multiplied by 1.5 and (iii) divided by 4, equals or exceeds 1.00 to 1.00. Beginning January 1, 2010 until the earlier of February 18, 2019 or the occurrence of an Interest Coverage Trigger, the unpaid principal amount of the new preferred obligations will bear interest at a rate of 1.0% per annum and, thereafter, at a variable rate, reset quarterly, equal to the three-month LIBOR plus 3.5% per annum.
Item 4. Submission of Matters to a Vote of Security Holders
None
39
Item 5. Other Information
None
Item 6. Exhibits
Exhibit Listing
| Exhibit No. | | Description of Document |
3.1(1) | | Amendment to the Amended and Restated Bylaws of NovaStar Financial, Inc. |
| | |
10.1(2) | | Settlement Agreement, dated as of February 18, 2009, among NovaStar Mortgage, Inc., NovaStar Financial, Inc., Taberna Preferred Funding I, Ltd., Taberna Preferred Funding II, Ltd. and Kodiak CDO I, Ltd. |
| | |
10.2(3) | | Escrow Agreement, dated as of February 18, 2009, by an among NovaStar Mortgage, Inc., NovaStar Financial, Inc., Taberna Preferred Funding I, Ltd., Taberna Preferred Funding II, Ltd., Kodiak CDO I, Ltd. and WolfBlock LLP |
| | |
10.3(4) | | Exchange Agreement, dated as of February 18, 2009, by and among NovaStar Mortgage, Inc., NovaStar Financial, Inc., NovaStar Capital Trust I/B, NovaStar Capital Trust II/B, Taberna Preferred Funding I, Ltd., Taberna Preferred Funding II, Ltd. and Kodiak CDO I, Ltd. |
| | |
10.4(5) | | Amended and Restated Trust Agreement, dated as of February 18, 2009, by and among, NovaStar Mortgage, Inc., The Bank of New York Mellon Trust Company, National Association, BNY Mellon Trust of Delaware and certain administrative trustees (including the form of Preferred Securities Certificate) (I/B) |
| | |
10.5(6) | | Junior Subordinated Indenture, dated as of February 18, 2009, between NovaStar Mortgage, Inc. and The Bank of New York Mellon Trust Company, National Association (I/B) |
| | |
10.6(7) | | Parent Guarantee Agreement, dated as of February 18, 2009, between NovaStar Financial, Inc. and The Bank of New York Mellon Trust Company, National Association (I/B) |
| | |
10.6(8) | | Amended and Restated Trust Agreement, dated as of February 18, 2009, by and among, NovaStar Mortgage, Inc., The Bank of New York Mellon Trust Company, National Association, BNY Mellon Trust of Delaware and certain administrative trustees (including the form of Preferred Securities Certificate) (II/B) |
| | |
10.7(9) | | Junior Subordinated Indenture, dated as of February 18, 2009, between NovaStar Mortgage, Inc. and The Bank of New York Mellon Trust Company, National Association (II/B) |
| | |
10.8(10) | | Parent Guarantee Agreement, dated as of February 18, 2009, between NovaStar Financial, Inc. and The Bank of New York Mellon Trust Company, National Association (II/B) |
| | |
10.9(11) | | Securities Purchase Agreement, dated as of April 26, 2009, by and among NovaStar Financial, Inc., Advent Financial Services, LLC and Mark A. Ernst |
| | |
10.10(12) | | Release and Settlement Agreement dated as of June 30, 2009 by and between NovaStar Financial, Inc. and EHMD, LLC, EHD Holdings, LLC and EHD Properties, LLC |
| | |
11.1(13) | | Statement Regarding Computation of Per Share Earnings |
| | |
31.1 | | Chief Executive Officer Certification - Section 302 of the Sarbanes-Oxley Act of 2002 |
| | |
31.2 | | Principal Financial Officer Certification - Section 302 of the Sarbanes-Oxley Act of 2002 |
| | |
| 32.1 | | Chief Executive Officer Certification - Section 906 of the Sarbanes-Oxley Act of 2002 |
| | |
| 32.2 | | Principal Financial Officer Certification - Section 906 of the Sarbanes-Oxley Act of 2002 |
40
____________________
| (1) | | Incorporated by reference to Exhibit 3.2.1 to Form 8-K filed by the Registrant with the SEC on March 16, 2009. |
| | |
| (2) | | Incorporated by reference to Exhibit 10.53 to Form 8-K filed by the Registrant with the SEC on February 24, 2009. |
| |
| (3) | | Incorporated by reference to Exhibit 10.54 to Form 8-K filed by the Registrant with the SEC on February 24, 2009. |
| |
| (4) | | Incorporated by reference to Exhibit 10.55 to Form 8-K filed by the Registrant with the SEC on February 24, 2009. |
| |
| (5) | | Incorporated by reference to Exhibit 10.56 to Form 8-K filed by the Registrant with the SEC on February 24, 2009. |
| |
| (6) | | Incorporated by reference to Exhibit 10.57 to Form 8-K filed by the Registrant with the SEC on February 24, 2009. |
| |
| (7) | | Incorporated by reference to Exhibit 10.58 to Form 8-K filed by the Registrant with the SEC on February 24, 2009. |
| |
| (8) | | Incorporated by reference to Exhibit 10.59 to Form 8-K filed by the Registrant with the SEC on February 24, 2009. |
| |
| (9) | | Incorporated by reference to Exhibit 10.60 to Form 8-K filed by the Registrant with the SEC on February 24, 2009. |
| |
| (10) | | Incorporated by reference to Exhibit 10.61 to Form 8-K filed by the Registrant with the SEC on February 24, 2009. |
| |
| (11) | | Incorporated by reference to Exhibit 10.62 to Form 8-K filed by the Registrant with the SEC on April 30, 2009. |
| |
| (12) | | Incorporated by reference to Exhibit 10.1 to Form 8-K filed by the Registrant with the SEC on July 1, 2009. |
| |
| (13) | | See Note 13 to the condensed consolidated financial statements. |
41
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
NOVASTAR FINANCIAL, INC.
| DATE: July 10, 2009 | /s/ W. Lance Anderson | |
| W. Lance Anderson, Chairman of the |
| Board of Directors and Chief |
| Executive Officer |
| (Principal Executive Officer) |
| |
| DATE: July 10, 2009 | /s/ Rodney E. Schwatken | |
| Rodney E. Schwatken, Chief |
| Financial Officer |
| (Principal Financial Officer) |
42
