UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 10-Q

 

 

(Mark One)

þ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended March 31, 2015

OR

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                      to                     

Commission File Number: 001-35000

 

 

Walker & Dunlop, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Maryland   80-0629925

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

7501 Wisconsin Avenue, Suite 1200E

Bethesda, Maryland 20814

(301) 215-5500

(Address, including zip code, and telephone number, including

area code, of registrant’s principal executive offices)

Not Applicable

(Former name, former address, and former fiscal year if changed since last report)

 

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   þ     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   þ     No   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   ¨    Accelerated filer   þ
Non-accelerated filer   ¨   (Do not check if a smaller reporting company)    Smaller reporting company   ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨     No   þ

As of April 29, 2015, there were 30,276,413 total shares of common stock outstanding.

 

 

 


Walker & Dunlop, Inc.

Form 10-Q

INDEX

 

         Page  

PART I

  FINANCIAL INFORMATION   

Item 1.

  Financial Statements      1  

Item 2.

  Management’s Discussion and Analysis of Financial Condition and Results of Operations      17   

Item 3.

  Quantitative and Qualitative Disclosures About Market Risk      33   

Item 4.

  Controls and Procedures      33   

PART II

  OTHER INFORMATION   

Item 1.

  Legal Proceedings      34   

Item 1A.

  Risk Factors      34   

Item 2.

  Unregistered Sales of Equity Securities and Use of Proceeds      35   

Item 3.

  Defaults Upon Senior Securities      35   

Item 4.

  Mine Safety Disclosures      35   

Item 5.

  Other Information      35   

Item 6.

  Exhibits      35   
 

Signatures

     37   
 

Exhibit Index

  


PART I

FINANCIAL INFORMATION

Item 1. Financial Statements

Condensed Consolidated Balance Sheets

March 31, 2015 and December 31, 2014

(In thousands, except per share data)

 

     March 31,      December 31,  
     2015      2014  
     (unaudited)         

Assets

     

Cash and cash equivalents

   $ 65,516      $ 113,354  

Restricted cash

     21,794        13,854  

Pledged securities, at fair value

     68,103        67,719  

Loans held for sale, at fair value

     1,293,186        1,072,116  

Loans held for investment, net

     231,740        223,059  

Servicing fees and other receivables, net

     28,724        23,234  

Derivative assets

     38,495        14,535  

Mortgage servicing rights

     375,159        375,907  

Goodwill and other intangible assets

     76,205        76,586  

Other assets

     28,581        33,663  
  

 

 

    

 

 

 

Total assets

$ 2,227,503   $ 2,014,027  
  

 

 

    

 

 

 

Liabilities and stockholders’ equity

Liabilities

Accounts payable and other liabilities

$ 133,742   $ 145,141  

Performance deposits from borrowers

  20,431     13,668  

Derivative liabilities

  14,821     4,877  

Guaranty obligation, net of accumulated amortization

  25,333     24,975  

Allowance for risk-sharing obligations

  4,054     3,904  

Warehouse notes payable

  1,444,085     1,216,245  

Note payable

  171,393     171,766  
  

 

 

    

 

 

 

Total liabilities

$ 1,813,859   $ 1,580,576  
  

 

 

    

 

 

 

Stockholders’ equity

Preferred shares, Authorized 50,000, none issued.

$ —     $ —    

Common stock, $0.01 par value. Authorized 200,000; issued and outstanding 28,926 shares at March 31, 2015 and 31,822 shares at December 31, 2014

  289     318  

Additional paid-in capital

  202,140     224,164  

Retained earnings

  211,215     208,969  
  

 

 

    

 

 

 

Total stockholders’ equity

$ 413,644   $ 433,451  
  

 

 

    

 

 

 

Commitments and contingencies (Note 9)

  

 

 

    

 

 

 

Total liabilities and stockholders’ equity

$ 2,227,503   $ 2,014,027  
  

 

 

    

 

 

 

See accompanying notes to condensed consolidated financial statements.

 

1


Walker & Dunlop, Inc. and Subsidiaries

Condensed Consolidated Statements of Income

(In thousands, except per share data)

(Unaudited)

 

     For the three months ended
March 31,
 
     2015      2014  

Revenues

     

Gains from mortgage banking activities

   $ 72,720      $ 34,586  

Servicing fees

     26,841        23,343  

Net warehouse interest income

     4,354        2,236  

Escrow earnings and other interest income

     787        1,075  

Other

     7,419        3,593  
  

 

 

    

 

 

 

Total revenues

$ 112,121   $ 64,833  
  

 

 

    

 

 

 

Expenses

Personnel

$ 40,045   $ 24,535  

Amortization and depreciation

  24,674     18,459  

Provision (benefit) for credit losses

  84     (171 )

Interest expense on corporate debt

  2,477     2,573  

Other operating expenses

  9,435     7,527  
  

 

 

    

 

 

 

Total expenses

$ 76,715   $ 52,923  
  

 

 

    

 

 

 

Income from operations

$ 35,406   $ 11,910  

Income tax expense

  14,093     4,766  
  

 

 

    

 

 

 

Net income

$ 21,313   $ 7,144  
  

 

 

    

 

 

 

Basic earnings per share

$ 0.68    $ 0.21   
  

 

 

    

 

 

 

Diluted earnings per share

$ 0.66    $ 0.21   
  

 

 

    

 

 

 

Basic weighted average shares outstanding

  31,515     33,548   
  

 

 

    

 

 

 

Diluted weighted average shares outstanding

  32,464     33,859   
  

 

 

    

 

 

 

See accompanying notes to condensed consolidated financial statements.

 

2


Walker & Dunlop, Inc. and Subsidiaries

Condensed Consolidated Statements of Cash Flows

(In thousands)

(Unaudited)

 

     Three Months Ended March 31,  
     2015     2014  

Cash flows from operating activities

    

Net income

   $ 21,313     $ 7,144  

Adjustments to reconcile net income to net cash provided by (used in) operating activities:

    

Gains attributable to fair value of future servicing rights, net of guaranty obligation

     (31,317 )     (13,888 )

Change in fair value of premium and origination fees

     (7,381 )     785  

Provision (benefit) for credit losses

     84       (171 )

Amortization and depreciation

     24,674       18,459  

Other operating activities, net

     (228,032 )     (87,247 )
  

 

 

   

 

 

 

Net cash provided by (used in) operating activities

$ (220,659 ) $ (74,918 )
  

 

 

   

 

 

 

Cash flows from investing activities

Capital expenditures

$ (448 ) $ (152 )

Originations of loans held for investment

  (8,420 )   (81,250 )

Principal collected on loans held for investment

  —       29,720  
  

 

 

   

 

 

 

Net cash provided by (used in) investing activities

$ (8,868 ) $ (51,682 )
  

 

 

   

 

 

 

Cash flows from financing activities

Borrowings (repayments) of warehouse notes payable, net

$ 221,525   $ 16,333  

Borrowings of interim warehouse notes payable

  6,315     59,570  

Repayments of interim warehouse notes payable

  —       (21,653 )

Repayments of note payable

  (438 )   (438 )

Proceeds from issuance of common stock

  2,819     1,467  

Repurchase of common stock

  (47,804 )   (35,897 )

Debt issuance costs

  (662 )   —    

Tax benefit (shortfall) from vesting of equity awards

  (66 )   (96 )
  

 

 

   

 

 

 

Net cash provided by (used in) financing activities

$ 181,689   $ 19,286  
  

 

 

   

 

 

 

Net increase (decrease) in cash and cash equivalents

$ (47,838 ) $ (107,314 )

Cash and cash equivalents at beginning of period

  113,354     170,563  
  

 

 

   

 

 

 

Cash and cash equivalents at end of period

$ 65,516   $ 63,249  
  

 

 

   

 

 

 

Supplemental Disclosure of Cash Flow Information:

Cash paid to third parties for interest

$ 7,793   $ 5,135  

Cash paid for taxes

$ 9,114   $ 2,283  

See accompanying notes to condensed consolidated financial statements.

 

3


NOTE 1—ORGANIZATION AND BASIS OF PRESENTATION

These financial statements represent the condensed consolidated financial position and results of operations of Walker & Dunlop, Inc. and its subsidiaries. Unless the context otherwise requires, references to “we,” “us,” “our,” “Walker & Dunlop” and the “Company” mean the Walker & Dunlop consolidated companies. The statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) for interim financial information and with the instructions to Form 10-Q and Regulation S-X. Accordingly, they do not include all of the information and footnotes required by GAAP for complete financial statements. Because the accompanying condensed consolidated financial statements do not include all of the information and footnotes required by GAAP, they should be read in conjunction with the financial statements and notes thereto included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2014 (“2014 Form 10-K”). In the opinion of management, all adjustments (consisting only of normal recurring accruals except as otherwise noted herein) considered necessary for a fair presentation of the results for the Company in the interim periods presented have been included. Results of operations for the three months ended March 31, 2015 are not necessarily indicative of the results that may be expected for the year ending December 31, 2015, or thereafter.

Walker & Dunlop is one of the leading commercial real estate finance companies in the United States. The Company originates, sells, and services a range of multifamily and other commercial real estate financing products. The Company’s clients are owners and developers of commercial real estate across the country. The Company originates and sells loans pursuant to the programs of the Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac,” and together with Fannie Mae, the government-sponsored enterprises, or the “GSEs”), the Government National Mortgage Association (“Ginnie Mae”) and the Federal Housing Administration, a division of the U.S. Department of Housing and Urban Development (together with Ginnie Mae, “HUD”), with which Walker & Dunlop has long-established relationships. The Company retains servicing rights and asset-management responsibilities on nearly all loans that it sells to the GSEs and HUD. Walker & Dunlop is approved as a Fannie Mae Delegated Underwriting and Servicing (“DUS” TM ) lender nationally, a Freddie Mac Program Plus TM lender in 22 states and the District of Columbia, a Freddie Mac targeted affordable housing seller/servicer, a HUD Multifamily Accelerated Processing (“MAP”) lender nationally, a HUD Section 232 LEAN lender nationally, and a Ginnie Mae issuer. The Company also acts as a loan broker for a number of life insurance companies and other institutional investors, in which cases it does not fund the loan but rather acts as a loan broker. The Company retains the servicing rights on some of the loans where it acts as a broker.

The Company offers an interim loan program for floating-rate loans with original principal balances of generally up to $25.0 million, for terms of up to three years, to experienced borrowers seeking to acquire or reposition multifamily properties that do not currently qualify for permanent GSE or HUD financing (the “Interim Program”). The Company underwrites all loans originated through the Interim Program using similar underwriting standards used to underwrite loans it originates and sells. During the time they are outstanding, the Company assumes the full risk of loss on the loans. In addition, the Company services and asset-manages loans originated through the Interim Program, with the ultimate goal of providing permanent financing on the properties. These loans are classified as held for investment on the Company’s condensed consolidated balance sheet during such time that they are outstanding.

The Company offers a Commercial Mortgage Backed Securities (“CMBS”) lending program (“CMBS Program”) through a partnership with a large institutional investor, in which the Company owns a 20% interest (“CMBS Partnership”). The CMBS Program offers financing for all commercial property types throughout the United States. The loans in the CMBS Program are selected and funded by the CMBS Partnership and underwritten by the Company. The Company receives a fee for servicing the loans. The CMBS Partnership assumes the full risk of loss on the loans while it holds the loans. The Company accounts for the 20% interest using the equity method of accounting. Three loans with an aggregate UPB of $64.1 million were originated through the CMBS Program during the three months ended March 31, 2015. The Company recorded $0.8 million and $0 of revenue related to the CMBS Program within the accompanying Condensed Consolidated Statements of Income for the three months ended March 31, 2015 and 2014, respectively. Additionally, the Company’s recorded investment in the CMBS Partnership was $4.8 million and $9.0 million as of March 31, 2015 and December 31, 2014, respectively.

NOTE 2—SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Principles of Consolidation —The condensed consolidated financial statements include the accounts of the Company and all of its consolidated entities. All material intercompany transactions have been eliminated. The Company has evaluated all subsequent events.

Use of Estimates —The preparation of condensed consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses, including guaranty obligations, allowance for risk-sharing obligations, allowance for loan losses, capitalized mortgage servicing rights, derivative instruments, and the disclosure of contingent assets and liabilities. Actual results may vary from these estimates.

Comprehensive Income —For the three months ended March 31, 2015 and 2014, comprehensive income equaled net income; therefore, a separate statement of comprehensive income is not included in the accompanying condensed consolidated financial statements.

Loans Held for Investment, net —Loans held for investment are multifamily loans originated by the Company through the Interim Program for properties that currently do not qualify for permanent GSE or HUD financing. These loans have terms of up to three years and original principal balances of generally $25.0 million or less. The loans are carried at their unpaid principal balances, adjusted for net unamortized

 

4


loan fees and costs, and net of any allowance for loan losses. Interest income is accrued based on the actual coupon rate, adjusted for the amortization of net deferred fees and costs, and is recognized as revenue when earned and deemed collectible. All loans held for investment are multifamily loans with similar risk characteristics. As of March 31, 2015, the Loans held for investment, net balance consisted of $233.7 million of unpaid principal balance less $1.2 million of net unamortized deferred fees and costs and $0.8 million of allowance for loan losses. As of December 31, 2014, the Loans held for investment, net balance consisted of $225.3 million of unpaid principal balance less $1.4 million of net unamortized deferred fees and costs and $0.9 million of allowance for loan losses.

The allowance for loan losses is the Company’s estimate of credit losses inherent in the loan portfolio at the balance sheet date. The Company has established a process to determine the appropriateness of the allowance for loan losses that assesses the losses inherent in our portfolio. That process includes assessing the credit quality of each of the loans held for investment by monitoring the financial condition of the borrower and the financial trends of the underlying property. The allowance levels are influenced by loan origination volumes, delinquency status, historic loss experience, and other conditions influencing loss expectations, such as economic conditions. The allowance for loan losses is estimated collectively for loans with similar characteristics and for which there is no indication of impairment. The allowance for loan losses recorded as of March 31, 2015 and December 31, 2014 are based on the Company’s collective assessment of the portfolio.

Loans are placed on non-accrual status when full and timely collection of interest or principal is not probable. Loans held for investment are considered past due when contractually required principal or interest payments have not been made on the due dates and are charged off when the loan is considered uncollectible. The Company evaluates all loans held for investment for impairment. A loan is considered impaired when the Company believes that the facts and circumstances of the loan suggest that the Company will not be able to collect all contractually due principal and interest. Delinquency status and property financial condition are key components of the Company’s consideration of impairment status.

None of the loans held for investment was delinquent, specifically impaired, or on non-accrual status as of March 31, 2015 or December 31, 2014. Additionally, we have not experienced any delinquencies related to these loans or charged off any loan held for investment since the inception of the Interim Program.

Provision (Benefit) for Credit Losses— The Company records the income statement impact of the changes in the allowance for loan losses and the allowance for risk-sharing obligations within the Provision (benefit) for credit losses line item in the Condensed Consolidated Statements of Income. Provision (benefit) for credit losses consisted of the following activity for the three months ended March 31, 2015 and 2014:

 

     For the three months ended
March 31,
 
(in thousands)    2015      2014  

Provision (benefit) for loan losses

   $ (66    $ 169   

Provision (benefit) for risk-sharing obligations

     150         (340
  

 

 

    

 

 

 

Provision (benefit) for credit losses

$ 84    $ (171
  

 

 

    

 

 

 

Net Warehouse Interest Income— The Company presents warehouse interest income net of warehouse interest expense. Warehouse interest income is the interest earned from loans held for sale and loans held for investment. Substantially all loans that are held for sale are financed with matched borrowings under our warehouse facilities incurred to fund a specific loan held for sale. A portion of all loans that are held for investment is financed with matched borrowings under our warehouse facilities. The portion of loans held for investment not funded with matched borrowings is financed with the Company’s own cash. Warehouse interest expense is incurred on borrowings used to fund loans solely while they are held for sale or for investment. Warehouse interest income and expense are earned or incurred on loans held for sale after a loan is closed and before a loan is sold. Warehouse interest income and expense are earned or incurred on loans held for investment after a loan is closed and before a loan is repaid. Included in net warehouse interest income for the three months ended March 31, 2015 and 2014 are the following components:

 

     For the three months ended
March 31,
 
(in thousands)    2015      2014  

Warehouse interest income—loans held for sale

   $ 7,408      $ 3,165  

Warehouse interest expense—loans held for sale

     (4,954 )      (1,775 )
  

 

 

    

 

 

 

Net warehouse interest income—loans held for sale

$ 2,454   $ 1,390  
  

 

 

    

 

 

 

Warehouse interest income—loans held for investment

$ 3,057   $ 2,177  

Warehouse interest expense—loans held for investment

  (1,157 )   (1,331 )
  

 

 

    

 

 

 

Net warehouse interest income—loans held for investment

$ 1,900   $ 846  
  

 

 

    

 

 

 

Total net warehouse interest income

$ 4,354   $ 2,236  
  

 

 

    

 

 

 

 

5


Recently Issued Accounting Pronouncements —In April 2015, Accounting Standards Update (“ASU”) 2015-03, Simplifying the Presentation of Debt Issuance Costs , was issued. ASU 2015-03 requires that debt issuance costs related to a note be presented in the balance sheet as a direct deduction from the face amount of that note. Current GAAP requires that debt issuance costs be presented as an asset. The ASU is effective for the Company for the annual and interim periods beginning January 1, 2016, with early adoption permitted and full retrospective application required. ASU 2015-03 would reduce the March 31, 2015 balances of Other assets by $3.9 million, Warehouse notes payable by $0.7 million, and Note payable by $3.2 million. The Company expects a similar impact upon adoption.

In April 2015, ASU 2015-05, Customer’s Accounting for Fees Paid in a Cloud Computing Arrangement , was issued. ASU 2015-05 provides entities with guidance on determining whether a cloud computing arrangement contains a software license that should be accounted for as internal-use software. ASU 2015-05 is effective for the annual and interim periods beginning January 1, 2016, with early adoption permitted. Entities may select retrospective or prospective adoption of ASU 2015-05. The Company is still in the process of determining what impact, if any, the adoption of ASU 2015-05 will have on its financial statements and which adoption method it will select.

There have been no material changes to the accounting policies discussed in Note 2 of the Company’s 2014 Form 10-K, filed with the SEC on March 5, 2015.

NOTE 3—GAINS FROM MORTGAGE BANKING ACTIVITIES

The gains from mortgage banking activities consisted of the following activity for the three months ended March 31, 2015 and 2014:

 

     For the three months ended
March 31,
 
(in thousands)    2015      2014  

Contractual loan origination related fees, net

   $ 41,403      $ 20,698  

Fair value of expected cash flows from servicing recognized at commitment

     33,692        14,585  

Fair value of expected guaranty obligation recognized at commitment

     (2,375 )      (697 )
  

 

 

    

 

 

 

Total gains from mortgage banking activities

$ 72,720   $ 34,586  
  

 

 

    

 

 

 

The origination fees shown in the table above are net of co-broker fees of $6.4 million and $3.8 million for the three months ended March 31, 2015 and 2014.

NOTE 4—MORTGAGE SERVICING RIGHTS

Mortgage Servicing Rights (“MSRs”) represent the carrying value of the servicing rights retained by the Company for mortgage loans originated and sold. The initial capitalized amount is equal to the estimated fair value of the expected net cash flows associated with the servicing rights. The following describes the key assumptions used in calculating each loan’s MSR:

Discount rate —Depending upon loan type, the discount rate used is management’s best estimate of market discount rates. The rates used for loans originated were 10% to 15% for each of the periods presented.

Estimated Life —The estimated life of the MSRs is derived based upon the stated yield maintenance and/or prepayment protection term of the underlying loan and may be reduced by 6 to 12 months based upon the expiration of various types of prepayment penalty and/or lockout provisions prior to that stated maturity date. The Company’s historical experience is that the prepayment provisions typically do not provide a significant deterrent to a borrower’s refinancing the loan within 6 to 12 months of the expiration of the prepayment provisions.

 

6


Servicing Cost —The estimated future cost to service the loan for the estimated life of the MSR is subtracted from the estimated future cash flows.

The fair values of the MSRs at March 31, 2015 and December 31, 2014 were $491.6 million and $469.9 million, respectively. The Company uses a discounted static cash flow valuation approach and the key economic assumption is the discount rate. For example, see the following sensitivities:

The impact of a 100 basis point increase in the discount rate at March 31, 2015 is a decrease in the fair value of $16.1 million.

The impact of a 200 basis point increase in the discount rate at March 31, 2015 is a decrease in the fair value of $31.2 million.

These sensitivities are hypothetical and should be used with caution. These estimates do not include interplay among assumptions and are estimated as a portfolio rather than individual assets.

Activity related to capitalized MSRs for the three months ended March 31, 2015 and 2014 was as follows:

 

     For the three months ended
March 31,
 
(in thousands)    2015      2014  

Beginning balance

   $ 375,907      $ 353,024  

Additions, following the sale of loan

     24,182        13,675  

Amortization

     (18,820 )      (16,701 )

Pre-payments and write-offs

     (6,110 )      (2,022 )
  

 

 

    

 

 

 

Ending balance

$ 375,159   $ 347,976  
  

 

 

    

 

 

 

The following summarizes the components of the net carrying value of the Company’s acquired and originated MSRs as of March 31, 2015:

 

     As of March 31, 2015  
(in thousands)    Gross carrying
value
     Accumulated
amortization
     Net carrying
value
 

Acquired MSRs

   $ 132,837      $ (66,630 )    $ 66,207  

Originated MSRs

     437,854        (128,902 )      308,952  
  

 

 

    

 

 

    

 

 

 

Total

$ 570,691   $ (195,532 ) $ 375,159  
  

 

 

    

 

 

    

 

 

 

The expected amortization of MSRs recorded as of March 31, 2015 is shown in the table below. Actual amortization may vary from these estimates.

 

     Originated MSRs      Acquired MSRs      Total MSRs  
(in thousands)    Amortization      Amortization      Amortization  

Nine Months Ending December 31,

        

2015

   $ 43,267      $ 11,661      $ 54,928  

Year Ending December 31,

        

2016

     54,160        14,672        68,832  

2017

     47,090        13,080        60,170  

2018

     42,549        9,895        52,444  

2019

     36,627        8,307        44,934  

2020

     29,839        6,261        36,100  

Thereafter

     55,420        2,331        57,751  
  

 

 

    

 

 

    

 

 

 

Total

$ 308,952   $ 66,207   $ 375,159  
  

 

 

    

 

 

    

 

 

 

NOTE 5—GUARANTY OBLIGATION AND ALLOWANCE FOR RISK-SHARING OBLIGATIONS

When a loan is sold under the Fannie Mae DUS program, the Company typically agrees to guarantee a portion of the ultimate loss incurred on the loan should the borrower fail to perform. The compensation for this risk is a component of the servicing fee on the loan. No guaranty is provided for loans sold under the Freddie Mac or HUD loan programs.

 

7


Activity related to the guaranty obligation for the three months ended March 31, 2015 and 2014 was as follows:

 

     For the three months ended
March 31,
 
(in thousands)    2015      2014  

Beginning balance

   $ 24,975      $ 23,489  

Additions, following the sale of loan

     1,755        484  

Amortization

     (1,397 )      (1,064 )
  

 

 

    

 

 

 

Ending balance

$ 25,333   $ 22,909  
  

 

 

    

 

 

 

The Company evaluates the allowance for risk-sharing obligations by monitoring the performance of each loan for triggering events or conditions that may signal a potential default. In situations where payment under the guaranty is probable and estimable on a specific loan, the Company records an allowance for the estimated risk-sharing loss through a charge to the provision for risk-sharing obligations, which is a component of the Provision (benefit) for credit losses line item in the Condensed Consolidated Statements of Income, along with a write-off of the loan-specific MSR and guaranty obligation. The amount of the provision reflects our assessment of the likelihood of payment by the borrower, the estimated disposition value of the underlying collateral, and the level of risk sharing. Historically, the loss recognition occurs at or before the loan becomes 60 days delinquent. Activity related to the allowance for risk-sharing obligations for the three months ended March 31, 2015 and 2014 follows:

 

     For the three months ended
March 31,
 
(in thousands)    2015      2014  

Beginning balance

   $ 3,904      $ 7,363  

Provision (benefit) for risk-sharing obligations

     150        (340 )

Write-offs

     —          (1,361 )
  

 

 

    

 

 

 

Ending balance

$ 4,054   $ 5,662  
  

 

 

    

 

 

 

As of March 31, 2015, the maximum quantifiable contingent liability associated with the Company’s guarantees under the Fannie Mae DUS agreement was $4.1 billion. The maximum quantifiable contingent liability is not representative of the actual loss the Company would incur. The Company would be liable for this amount only if all of the loans it services for Fannie Mae, for which the Company retains some risk of loss, were to default and all of the collateral underlying these loans was determined to be without value at the time of settlement.

NOTE 6—SERVICING

The total unpaid principal balance of loans the Company was servicing for various institutional investors was $46.1 billion as of March 31, 2015 compared to $44.0 billion as of December 31, 2014.

 

8


NOTE 7—WAREHOUSE NOTES PAYABLE

At March 31, 2015, to provide financing to borrowers under GSE and HUD programs, the Company has arranged for warehouse lines of credit in the amount of $1.9 billion with certain national banks and a $0.4 billion uncommitted facility with Fannie Mae (“Agency Warehouse Facilities”). In support of these agency warehouse facilities, the Company has pledged substantially all of its loans held for sale under the Company’s approved programs. Additionally, at March 31, 2015, the Company has arranged for warehouse lines of credit in the amount of $0.3 billion with certain national banks to assist in funding loans held for investment under the Interim Program (“interim warehouse facilities”). The Company has pledged substantially all of its loans held for investment against these interim warehouse facilities. The maximum amount and outstanding borrowings under the warehouse notes payable at March 31, 2015 follow:

 

     March 31, 2015            
(dollars in thousands)    Maximum      Outstanding      Loan Type     
Facility    Amount      Balance      Funded (1)   

Interest rate

Agency warehouse facility #1

   $ 1,095,000      $ 824,829      LHFS    30-day LIBOR plus 1.50%

Agency warehouse facility #2

     650,000        244,554      LHFS    30-day LIBOR plus 1.50%

Agency warehouse facility #3

     200,000        160,013      LHFS    30-day LIBOR plus 1.40%

Fannie Mae repurchase agreement, uncommited line and open maturity

     400,000        47,202      LHFS    30-day LIBOR plus 1.15%
  

 

 

    

 

 

       

Total agency warehouse facilities

$ 2,345,000   $ 1,276,598  

Interim warehouse facility #1

$ 75,000   $ 59,815   LHFI 30-day LIBOR plus 2.00%

Interim warehouse facility #2

  135,000     81,123   LHFI 30-day LIBOR plus 2.00%

Interim warehouse facility #3

  50,000     26,549   LHFI 30-day LIBOR plus 2.00% to 2.50%
  

 

 

    

 

 

       

Total interim warehouse facilities

$ 260,000   $ 167,487  
  

 

 

    

 

 

       

Total warehouse facilities

$ 2,605,000   $ 1,444,085  
  

 

 

    

 

 

       

 

(1) Type of loan the borrowing facility is used to fully or partially fund – loans held for sale (“LHFS”) or loans held for investment (“LHFI”).

On March 25, 2015, the Company executed a temporary commitment increase agreement to the warehousing credit and security agreement related to Agency Warehouse Facility #1. The agreement provides a temporary $670.0 million increase in the maximum borrowing capacity to allow the Company to fund a specific portfolio of loans. The temporary increase is effective from the date of execution and expires on the earlier of the date the specific portfolio is sold or 50 days after execution. No other material modifications were made to the agreement.

On April 10, 2015, the Company executed the second amendment to the credit and security agreement related to Interim Warehouse Facility #2. The amendment increased the maximum borrowing capacity to $200.0 million. No other material modifications were made to the agreement.

On April 15, 2015, the Company executed the second amendment to the credit and security agreement related to Agency Warehouse Facility #3. The amendment increased the maximum borrowing capacity to $240.0 million and extended the maturity date to April 30, 2016. No other material modifications were made to the agreement.

The warehouse notes payable and the note payable are subject to various financial covenants, all of which the Company was in compliance with as of March 31, 2015.

NOTE 8—FAIR VALUE MEASUREMENTS

The Company uses valuation techniques that are consistent with the market approach, the income approach, and/or the cost approach to measure assets and liabilities that are measured at fair value. Inputs to valuation techniques refer to the assumptions that market participants would use in pricing the asset or liability. Inputs may be observable, meaning those that reflect the assumptions market participants would use in pricing the asset or liability developed based on market data obtained from independent sources, or unobservable, meaning those that reflect the reporting entity’s own assumptions about the assumptions market participants would use in pricing the asset or liability developed based on the best information available in the circumstances. In that regard, accounting standards establish a fair value hierarchy for valuation inputs that gives the highest priority to quoted prices in active markets for identical assets or liabilities and the lowest priority to unobservable inputs. The fair value hierarchy is as follows:

 

    Level 1 —Financial assets and liabilities whose values are based on unadjusted quoted prices in active markets for identical assets or liabilities that the Company has the ability to access.

 

    Level 2 —Financial assets and liabilities whose values are based on inputs other than quoted prices included in Level 1 that are observable for the asset or liability, either directly or indirectly. These might include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that are observable for the asset or liability (such as interest rates, volatilities, prepayment speeds, credit risks, etc.) or inputs that are derived principally from or corroborated by market data by correlation or other means.

 

    Level 3 —Financial assets and liabilities whose values are based on inputs that are both unobservable and significant to the overall valuation.

 

9


The Company’s MSRs are measured at fair value on a nonrecurring basis. That is, the instruments are not measured at fair value on an ongoing basis but are subject to fair value adjustments in certain circumstances (for example, when there is evidence of impairment). The Company’s MSRs do not trade in an active, open market with readily observable prices. While sales of multifamily MSRs do occur, precise terms and conditions vary with each transaction and are not readily available. Accordingly, the estimated fair value of the Company’s MSRs was developed using discounted cash flow models that calculate the present value of estimated future net servicing income. The model considers contractually specified servicing fees, prepayment assumptions, delinquency rates, late charges, other ancillary revenue, costs to service, and other economic factors. The Company reassesses and periodically adjusts the underlying inputs and assumptions used in the model to reflect observable market conditions and assumptions that a market participant would consider in valuing an MSR asset. MSRs are carried at the lower of amortized cost or estimated fair value.

A description of the valuation methodologies used for assets and liabilities measured at fair value, as well as the general classification of such instruments pursuant to the valuation hierarchy, is set forth below. These valuation methodologies were applied to all of the Company’s assets and liabilities carried at fair value:

 

    Derivative Instruments —The derivative positions consist of interest rate lock commitments and forward sale agreements. These instruments are valued using a discounted cash flow model developed based on changes in the U.S. Treasury rate and other observable market data. The value was determined after considering the potential impact of collateralization, adjusted to reflect nonperformance risk of both the counterparty and the Company, and are classified within Level 3 of the valuation hierarchy.

 

    Loans held for sale —The loans held for sale are reported at fair value. The Company determines the fair value of the loans held for sale using discounted cash flow models that incorporate quoted observable prices from market participants. Therefore, the Company classifies these loans held for sale as Level 2.

 

    Pledged Securities —The pledged securities are valued using quoted market prices from recent trades. Therefore, the Company classifies pledged securities as Level 1.

The following table summarizes financial assets and financial liabilities measured at fair value on a recurring basis as of March 31, 2015, and December 31, 2014, segregated by the level of the valuation inputs within the fair value hierarchy used to measure fair value:

 

     Quoted Prices in      Significant      Significant         
     Active Markets      Other      Other         
     For Identical      Observable      Unobservable         
     Assets      Inputs      Inputs      Balance as of  
(in thousands)    (Level 1)      (Level 2)      (Level 3)      Period End  

March 31, 2015

           

Assets

           

Loans held for sale

   $ —        $ 1,293,186      $ —        $ 1,293,186  

Pledged securities

     68,103         —          —          68,103   

Derivative assets

     —          —          38,495        38,495  
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

$ 68,103   $ 1,293,186   $ 38,495   $ 1,399,784  
  

 

 

    

 

 

    

 

 

    

 

 

 

Liabilities

Derivative liabilities

$ —     $ —     $ 14,821   $ 14,821  
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

$ —     $ —     $ 14,821   $ 14,821  
  

 

 

    

 

 

    

 

 

    

 

 

 

December 31, 2014

Assets

Loans held for sale

$ —     $ 1,072,116   $ —     $ 1,072,116  

Pledged securities

  67,719     —       —       67,719  

Derivative assets

  —       —       14,535     14,535  
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

$ 67,719   $ 1,072,116   $ 14,535   $ 1,154,370  
  

 

 

    

 

 

    

 

 

    

 

 

 

Liabilities

Derivative liabilities

$ —     $ —     $ 4,877   $ 4,877  
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

$ —     $ —     $ 4,877   $ 4,877  
  

 

 

    

 

 

    

 

 

    

 

 

 

 

10


There were no transfers between any of the levels within the fair value hierarchy during the three months ended March 31, 2015 and 2014.

Derivative instruments (Level 3) are outstanding for short periods of time (generally less than 60 days) and are not outstanding for more than one period. A roll forward of derivative instruments which require valuations based upon significant unobservable inputs, is presented below for the three months ended March 31, 2015 and 2014:

 

     Fair Value Measurements
Using Significant
Unobservable Inputs:
Derivative Instruments
 
     Three Months Ended March 31,  
(in thousands)    2015      2014  

Derivative assets and liabilities, net

     

Beginning balance

   $ 9,658      $ 19,341  

Settlements

     (58,704 )      (40,368 )

Realized gains recorded in earnings (1)

     49,046        21,027  

Unrealized gains recorded in earnings (1)

     23,674        13,559  
  

 

 

    

 

 

 

Ending balance

$ 23,674   $ 13,559  
  

 

 

    

 

 

 

 

(1) Realized and unrealized gains from derivatives are recognized in the Gains from mortgage banking activities line item in the Condensed Consolidated Statements of Income.

The following table presents information about significant unobservable inputs used in the measurement of the fair value of the Company’s Level 3 assets and liabilities as of March 31, 2015:

 

     Quantitative Information about Level 3 Measurements  
(in thousands)    Fair Value      Valuation
Technique
   Unobservable
Input (1)
   Input Value (1)  

Derivative assets

   $ 38,495      Discounted cash
flow
   Counterparty
credit risk
     —    

Derivative liabilities

     14,821      Discounted cash
flow
   Counterparty
credit risk
     —    

 

(1) Significant increases (decreases) in this input may lead to significantly lower (higher) fair value measurements.

The carrying amounts and the fair values of the Company’s financial instruments as of March 31, 2015 and December 31, 2014 are presented below:

 

     March 31, 2015      December 31, 2014  
(in thousands)    Carrying
Amount
     Fair
Value
     Carrying
Amount
     Fair
Value
 

Financial assets:

           

Cash and cash equivalents

   $ 65,516      $ 65,516      $ 113,354      $ 113,354  

Restricted cash

     21,794        21,794        13,854        13,854  

Pledged securities

     68,103        68,103        67,719        67,719  

Loans held for sale

     1,293,186        1,293,186        1,072,116        1,072,116  

Loans held for investment, net

     231,740        233,738        223,059        225,318  

Derivative assets

     38,495        38,495        14,535        14,535  
  

 

 

    

 

 

    

 

 

    

 

 

 

Total financial assets

$ 1,718,834   $ 1,720,832   $ 1,504,637   $ 1,506,896  
  

 

 

    

 

 

    

 

 

    

 

 

 

Financial liabilities:

Derivative liabilities

$ 14,821   $ 14,821   $ 4,877   $ 4,877  

Warehouse notes payable

  1,444,085     1,444,085     1,216,245     1,216,245  

Note payable

  171,393     172,813     171,766     173,250  
  

 

 

    

 

 

    

 

 

    

 

 

 

Total financial liabilities

$ 1,630,299   $ 1,631,719   $ 1,392,888   $ 1,394,372  
  

 

 

    

 

 

    

 

 

    

 

 

 

 

11


The following methods and assumptions were used to estimate the fair value of each class of financial instruments for which it is practicable to estimate that value:

Cash and Cash Equivalents and Restricted Cash —The carrying amounts, at face value or cost plus accrued interest, approximate fair value because of the short maturity of these instruments (Level 1).

Pledged Securities —Consist of highly liquid investments in commercial paper of AAA rated entities, investments in money market accounts invested in government securities, and investments in government guaranteed securities. Investments typically have maturities of 90 days or less and are valued using quoted market prices from recent trades.

Loans Held For Sale —Consist of originated loans that are generally transferred or sold within 60 days from the date that a mortgage loan is funded and are valued using discounted cash flow models that incorporate observable prices from market participants.

Loans Held For Investment —Consist of originated interim loans which the Company expects to hold for investment for the term of the loan, which is three years or less, and are valued using discounted cash flow models that incorporate primarily observable inputs from market participants and also credit-related adjustments, if applicable (Level 3). As of March 31, 2015 and December 31, 2014, no credit-related adjustments were required.

Derivative Instruments —Consist of interest rate lock commitments and forward sale agreements. These instruments are valued using discounted cash flow models developed based on changes in the U.S. Treasury rate and other observable market data. The value is determined after considering the potential impact of collateralization, adjusted to reflect nonperformance risk of both the counterparty and the Company.

Warehouse Notes Payable —Consist of borrowings outstanding under warehouse line agreements. The borrowing rates on the warehouse lines are based upon 30-day LIBOR plus a margin. The carrying amounts approximate fair value because of the short maturity of these instruments and the monthly resetting of the index rate to prevailing market rates (Level 2).

Note Payable —Consist of borrowings outstanding under a term note agreement. The borrowing rate on the note payable is based upon 30-day LIBOR plus an applicable margin. The Company estimates the fair value by discounting the future cash flows at market rates (Level 2).

Fair Value of Derivative Instruments and Loans Held for Sale —In the normal course of business, the Company enters into contractual commitments to originate (purchase) and sell multifamily mortgage loans at fixed prices with fixed expiration dates. The commitments become effective when the borrowers “lock-in” a specified interest rate within time frames established by the Company. All mortgagors are evaluated for creditworthiness prior to the extension of the commitment. Market risk arises if interest rates move adversely between the time of the “lock-in” of rates by the borrower and the sale date of the loan to an investor.

To mitigate the effect of the interest rate risk inherent in providing rate lock commitments to borrowers, the Company’s policy is to enter into a sale commitment with the investor simultaneous with the rate lock commitment with the borrower. The sale contract with the investor locks in an interest rate and price for the sale of the loan. The terms of the contract with the investor and the rate lock with the borrower are matched in substantially all respects, with the objective of eliminating interest rate risk to the extent practical. Sale commitments with the investors have an expiration date that is longer than our related commitments to the borrower to allow, among other things, for the closing of the loan and processing of paperwork to deliver the loan into the sale commitment.

Both the rate lock commitments to borrowers and the forward sale contracts to buyers are undesignated derivatives and, accordingly, are marked to fair value through the Gains on mortgage banking activities line item in the Condensed Consolidated Statements of Income. The fair value of the Company’s rate lock commitments to borrowers and loans held for sale and the related input levels includes, as applicable:

 

    the assumed gain/loss of the expected resultant loan sale to the investor;

 

    the expected net cash flows associated with servicing the loan (Level 2);

 

    the effects of interest rate movements between the date of the rate lock and the balance sheet date (Level 2); and

 

    the nonperformance risk of both the counterparty and the Company (Level 3).

The fair value of the Company’s forward sales contracts to investors considers effects of interest rate movements between the trade date and the balance sheet date (Level 2). The market price changes are multiplied by the notional amount of the forward sales contracts to measure the fair value.

The assumed gain/loss considers the amount that the Company has discounted the price to the borrower from par for competitive reasons, if at all, and the expected net cash flows from servicing to be received upon securitization of the loan. The fair value of the expected net cash flows associated with servicing the loan is calculated pursuant to the valuation techniques described previously for mortgage servicing rights.

 

12


To calculate the effects of interest rate movements, the Company uses applicable published U.S. Treasury prices, and multiplies the price movement between the rate lock date and the balance sheet date by the notional loan commitment amount.

The fair value of the Company’s forward sales contracts to investors considers the market price movement of the same type of security between the trade date and the balance sheet date (Level 2). The market price changes are multiplied by the notional amount of the forward sales contracts to measure the fair value.

The fair value of the Company’s interest rate lock commitments and forward sales contracts is adjusted to reflect the risk that the agreement will not be fulfilled. The Company’s exposure to nonperformance in rate lock and forward sale contracts is represented by the contractual amount of those instruments. Given the credit quality of our counterparties, the short duration of interest rate lock commitments and forward sale contracts, and the Company’s historical experience with the agreements, the risk of nonperformance by the Company’s counterparties is not significant.

 

            Fair Value Adjustment Components     Balance Sheet Location  
(in thousands)    Notional or
Principal
Amount
     Assumed
Gain (Loss)
on Sale
     Interest Rate
Movement
Effect
    Total
Fair Value
Adjustment
    Derivative
Assets
     Derivative
Liabilities
    Fair Value
Adjustment
To Loans
Held for Sale
 

March 31, 2015

                 

Rate lock commitments

   $ 1,170,610      $ 28,412      $ 8,935     $ 37,347     $ 37,347      $ —        $ —     

Forward sale contracts

     2,447,266        —           (13,673 )     (13,673 )     1,148        (14,821 )     —     

Loans held for sale

     1,276,656        11,792        4,738       16,530       —           —          16,530  
     

 

 

    

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

Total

$ 40,204   $ —      $ 40,204   $ 38,495   $ (14,821 ) $ 16,530  
     

 

 

    

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

December 31, 2014

Rate lock commitments

$ 472,558   $ 11,279   $ 273   $ 11,552   $ 11,552   $ —      $ —     

Forward sale contracts

  1,529,241     —        (1,894 )   (1,894 )   2,983     (4,877 )   —     

Loans held for sale

  1,056,683     13,812     1,621     15,433     —        —        15,433  
     

 

 

    

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

Total

$ 25,091   $ —      $ 25,091   $ 14,535   $ (4,877 ) $ 15,433  
     

 

 

    

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

NOTE 9—LITIGATION, COMMITMENTS, AND CONTINGENCIES

Fannie Mae DUS Related Commitments —Commitments for the origination and subsequent sale and delivery of loans to Fannie Mae represent those mortgage loan transactions where the borrower has locked an interest rate and scheduled closing and the Company has entered into a mandatory delivery commitment to sell the loan to Fannie Mae. As discussed in Note 8, the Company accounts for these commitments as derivatives recorded at fair value.

The Company is generally required to share the risk of any losses associated with loans sold under the Fannie Mae DUS program (the DUS risk-sharing obligations). The Company is required to secure this obligation by assigning restricted cash balances and securities to Fannie Mae. The amount of collateral required by Fannie Mae is a formulaic calculation at the loan level and considers the balance of the loan, the risk level of the loan, the age of the loan, and the level of risk-sharing. Fannie Mae requires restricted liquidity for Tier 2 loans of 75 basis points, which is funded over a 48-month period that begins upon delivery of the loan to Fannie Mae. Restricted liquidity held in the form of money market funds holding US Treasuries is discounted 5% for purposes of calculating compliance with the restricted liquidity requirements. As of March 31, 2015, the Company held all of its restricted liquidity in money market funds holding US Treasuries. Additionally, substantially all of the loans for which the Company has risk sharing are Tier 2 loans.

The Company is in compliance with the March 31, 2015 collateral requirements as outlined above. As of March 31, 2015, reserve requirements for the March 31, 2015 DUS loan portfolio will require the Company to fund $39.5 million in additional restricted liquidity over the next 48 months, assuming no further principal paydowns, prepayments, or defaults within our at risk portfolio. Fannie Mae periodically reassesses the DUS Capital Standards and may make changes to these standards in the future. The Company generates sufficient cash flow from its operations to meet these capital standards and does not expect any future changes to have a material impact on its future operations; however, any future changes to collateral requirements may adversely impact the Company’s available cash.

Fannie Mae has established benchmark standards for capital adequacy, and reserves the right to terminate the Company’s servicing authority for all or some of the portfolio if at any time it determines that the Company’s financial condition is not adequate to support its obligation under the DUS agreement. The Company is required to maintain acceptable net worth as defined in the agreement, and the Company satisfied the requirements as of March 31, 2015. The net worth requirement is derived primarily from unpaid balances on Fannie Mae loans and the level of risk sharing. At March 31, 2015, the net worth requirement was $99.8 million, and the Company’s net worth was $361.8 million, as measured at our wholly owned operating subsidiary, Walker & Dunlop, LLC. As of March 31, 2015, the Company was required to maintain at least $19.2 million of liquid assets to meet operational liquidity requirements for Fannie Mae, Freddie Mac, HUD, and Ginnie Mae. As of March 31, 2015, the Company had operational liquidity of $76.9 million, as measured at our wholly owned operating subsidiary, Walker & Dunlop, LLC.

 

13


Litigation Capital Funding litigation —On February 17, 2010, Capital Funding Group, Inc. (“Capital Funding”) filed a lawsuit in the Circuit Court for Montgomery County, Maryland against Walker & Dunlop, LLC, our wholly owned operating subsidiary, for alleged breach of contract, unjust enrichment and unfair competition arising out of an alleged agreement that Capital Funding had with Column Guaranteed, LLC (“Column”) to refinance a large portfolio of senior healthcare facilities located throughout the United States (the “Golden Living Facilities”). On November 17, 2010, Capital Funding filed an amended complaint adding Credit Suisse Securities (USA) LLC and its affiliates Column and Column Financial, Inc. as defendants. In December 2010, Column assumed the defense of the Company pursuant to an indemnification agreement. Capital Funding alleges that a contract existed between it and Column (and its affiliates) whereby Capital Funding allegedly had the right to perform the HUD refinancing for the Golden Living Facilities and according to which Capital Funding provided certain alleged proprietary information to Column and its affiliates relating to the acquisition of the Golden Living Facilities on a confidential basis. Capital Funding further alleges that Walker & Dunlop, LLC, as the alleged successor by merger to Column, is bound by Column’s alleged agreement with Capital Funding, and breached the agreement by taking for itself the opportunity to perform the HUD refinancing for the Golden Living Facilities.

Capital Funding further claims that Column and its affiliates and Walker & Dunlop, LLC breached the contract, were unjustly enriched, and committed unfair competition by using Capital Funding’s alleged proprietary information for certain allegedly unauthorized purposes. Capital Funding also asserts a separate unfair competition claim against Walker & Dunlop, LLC in which it alleges that Walker & Dunlop, LLC is improperly “taking credit” on its website for certain work actually performed by Capital Funding. Capital Funding seeks damages in excess of $30.0 million on each of the three claims asserted against all defendants, and an unspecified amount of damages on the separate claim for unfair competition against Walker & Dunlop, LLC. Capital Funding also seeks injunctive relief in connection with its unjust enrichment and unfair competition claims.

Pursuant to an agreement, dated January 30, 2009 (the “Column Transaction Agreement”), among Column, Walker & Dunlop, LLC, W&D, Inc. and Green Park Financial Limited Partnership, Column generally agreed to indemnify Walker & Dunlop, LLC against liability arising from Column’s conduct prior to Column’s transfer of the assets to Walker & Dunlop, LLC. However, pursuant to the Column Transaction Agreement, Column’s indemnification obligation arises only after Column receives a claim notice following the resolution of the litigation that specifies the amount of Walker & Dunlop, LLC’s claim.

To provide for greater certainty regarding Column’s indemnification obligations before the resolution of this litigation and to cap our total loss exposure, the Company secured a further agreement from Column in November 2010 confirming that it will indemnify the Company for any liabilities that arise as a result of this litigation. As part of this further indemnification agreement, in the event Column is required to pay the Company for any liabilities under the Capital Funding litigation that it otherwise would not have been obligated to pay under the Column Transaction Agreement, the Company will indemnify Column for an amount up to $3.0 million. Also as part of this further indemnification agreement, William Walker, our Chairman and Chief Executive Officer, and Mallory Walker, former Chairman and current stockholder, in their individual capacities, agreed that if Column is required to indemnify the Company under this agreement and otherwise would not have been obligated to pay such amounts under the Column Transaction Agreement, Messrs. William Walker and Mallory Walker will pay any such amounts in excess of $3.0 million but equal to or less than $6.0 million. As a result of this agreement, the Company will have no liability or other obligation for any damage amounts in excess of $3.0 million arising out of this litigation. Although Column has assumed defense of the case for all defendants, and is paying applicable counsel fees, as a result of the indemnification claim procedures described above, the Company could be required to bear the significant costs of the litigation and any adverse judgment unless and until the Company is able to prevail on our indemnification claim. The Company believes that it will fully prevail on its indemnification claims against Column, and that the Company ultimately will incur no material loss as a result of this litigation, although there can be no assurance that this will be the case. Accordingly, we have not recorded a loss contingency for this litigation.

On July 19, 2011, the Circuit Court for Montgomery County, Maryland issued an order granting the defendants’ motion to dismiss the case without prejudice. After the initial case was dismissed without prejudice, Capital Funding filed an amended complaint. In November 2011, the Circuit Court for Montgomery County, Maryland rejected the defendants’ motion to dismiss the amended complaint. Capital Funding filed a Second Amended Complaint that did not alter the claims at issue but revised their alleged damages. Defendants moved for summary judgment on all claims, including two counts of breach of contract, two counts of promissory estoppel, two counts of unjust enrichment, and two counts of unfair competition. On April 30, 2013, the Court issued an Opinion and Order which granted the motion as to the promissory estoppel counts and one count of unjust enrichment. The Court denied the motion as to all remaining claims.

A two-week jury trial was held in July 2013. In the course of the trial, all but two of Capital Funding’s remaining claims were dismissed. Following the trial, the Court entered (i) a $1.8 million judgment against Credit Suisse and its affiliates on Capital Funding’s breach of contract claim and (ii) a $10.4 million judgment against Credit Suisse and its affiliates on Capital Funding’s unjust enrichment claim. Because the two claims arise from the same facts, Capital Funding agreed it may only collect on one of the judgments; following the verdict, Capital Funding “elected” to collect the $10.4 million judgment. The defendants filed a post judgment motion to reduce or set aside the judgment. On January 31, 2014 the Court ruled that the $10.4 million unjust enrichment judgment is vacated, and awarded Capital Funding the $1.8 million breach of contract judgment. On February 10, 2014, Capital Funding filed a motion with the Court seeking a new trial. On March 13, 2014, the Court denied Capital Funding’s motion for a new trial. Capital Funding filed an appeal with Maryland’s Court of Special Appeals, which was heard on December 10, 2014. We are awaiting a ruling on the appeal. As a result of an indemnification arrangement with Column, the Company’s loss exposure is limited to $3.0 million, and the Company believes that the indemnification fully covers the $1.8 million judgment.

 

14


Litigation CA Funds Group Litigation —In March 2012, the Company’s wholly owned operating subsidiary, Walker & Dunlop Investment Advisory Services, LLC (“IA Services”) engaged CA Funds Group, Inc. (“CAFG”) to provide, among other things, consulting services in connection with expanding the Company’s investment advisory services business. The engagement letter was supplemented in June 2012 to retain CAFG to engage in certain capital raising activities, primarily with respect to a potential commingled, open-ended Fund (“Fund”). The Fund was never launched by the Company. However, the Company independently formed a large loan bridge program (the “Bridge Program”), which is focused primarily on making floating-rate loans of up to three years of $25.0 million or more to experienced owners of multifamily properties. CAFG filed a breach of contract action captioned CA Funds Group, Inc. v. Walker & Dunlop Investment Advisory Services, LLC and Walker & Dunlop, LLC in the United States District Court for the Northern District of Illinois, Eastern Division, seeking a placement fee in the amount of $5.1 million (plus interest and the costs of the suit) based upon the $380.0 million allegedly obtained for the Bridge Program. The Company filed a motion to dismiss the complaint on January 3, 2014, CAFG filed a response to the motion on January 31, 2014, and on March 21, 2014, the Court denied the Company’s motion to dismiss the complaint. Discovery has concluded. The Company intends to vigorously defend the matter and to file a motion for summary judgment.

The Company has not recorded a loss reserve for the aforementioned litigation as the Company does not believe that a loss is probable in either case. The Company cannot predict the outcome of any pending litigation and may be subject to consequences that could include fines, penalties, and other costs, and the Company’s reputation and business may be impacted. The Company believes that any liability that could be imposed on the Company in connection with the disposition of any pending lawsuits would not have a material adverse effect on its business, results of operations, liquidity or financial condition.

In the normal course of business, the Company may be party to various other claims and litigation, none of which the Company believes is material.

NOTE 10—EARNINGS PER SHARE

The following weighted average shares and share equivalents are used to calculate basic and diluted earnings per share for the three months ended March 31, 2015 and 2014:

 

     For the three months ended
March 31,
 
(in thousands)    2015      2014  

Weighted average number of shares outstanding used to calculate basic earnings per share

     31,515        33,548  

Dilutive securities

     

Stock options

     949        311  
  

 

 

    

 

 

 

Weighted average number of shares and share equivalents outstanding used to calculate diluted earnings per share

  32,464     33,859  
  

 

 

    

 

 

 

The assumed proceeds used for calculating the dilutive impact of restricted stock awards under the treasury method includes the unrecognized compensation costs and excess tax benefits associated with the awards. The following table presents any average outstanding options to purchase shares of common stock and average restricted shares that were not included in the computation of diluted earnings per share because the effect would have been anti-dilutive (the exercise price of the options or the grant date market price of the restricted shares was greater than the average market price of the Company’s shares during the periods presented).

 

     For the three months ended
March 31,
 
(in thousands)    2015      2014  

Average options

     776        493  

Average restricted shares

     —          159  

 

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NOTE 11—STOCKHOLDERS’ EQUITY

A summary of changes in stockholders’ equity is presented below:

 

                 Additional           Total  
     Common Stock     Paid-In     Retained     Stockholders’  
(in thousands)    Shares     Amount     Capital     Earnings     Equity  

Balances at December 31, 2014

     31,822     $ 318     $ 224,164     $ 208,969     $ 433,451  

Net income

     —         —         —         21,313       21,313  

Stock-based compensation

     —         —         3,931       —         3,931  

Issuance of common shares in connection with equity incentive plans

     162       2       2,817       —         2,819  

Repurchase and retirement of common stock

     (3,058 )     (31 )     (28,706 )     (19,067 )     (47,804 )

Tax shortfall from vesting of restricted shares

     —         —         (66 )     —         (66 )
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balances at March 31, 2015

  28,926   $ 289   $ 202,140   $ 211,215   $ 413,644  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

During the three months ended March 31, 2015, the Company repurchased 3.0 million shares of the Company’s common stock at a price of $15.60 per share, which was below the market price at the time, and immediately retired the shares, reducing stockholders’ equity by $46.8 million.

NOTE 12—GOODWILL

A summary of the Company’s goodwill as of and for the three months ended March 31, 2015 and 2014 follows:

 

     As of and for the three months ended March 31,  
(in thousands)    2015      2014  

Beginning balance

   $ 74,525      $ 60,212  

Additions from acquisitions

     —          —    

Retrospective adjustments

     100        —    

Impairment

     —          —    
  

 

 

    

 

 

 

Ending balance

$ 74,625   $ 60,212  
  

 

 

    

 

 

 

On September 25, 2014, the Company executed a purchase agreement to acquire certain assets and assume certain liabilities of Johnson Capital Group, Inc. (“Johnson Capital”). The acquisition of Johnson Capital closed on November 1, 2014 (the “JC Acquisition”). The Company provisionally allocated the purchase price to the assets acquired, separately identifiable intangible assets, and liabilities assumed related to the JC Acquisition based on their estimated acquisition date fair values. A change to the provisional amounts recorded for assets acquired, identifiable intangible assets, and liabilities assumed during the measurement period affects the amount of the purchase price allocated to goodwill. Such changes to the purchase price allocation during the measurement period are recorded as retrospective adjustments to the consolidated financial statements. During the three months ended March 31, 2015, the Company identified immaterial adjustments to certain of the provisional amounts recorded as shown in the table above. The adjustments were recorded based on information obtained subsequent to the acquisition date that related to information that existed as of the acquisition date.

As of March 31, 2015, the Company has completed the accounting for the JC Acquisition as the Company has obtained all of the information it was seeking about facts and circumstances that existed as of the acquisition date.

 

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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

The following discussion should be read in conjunction with the historical financial statements and the related notes thereto included elsewhere in this Quarterly Report on Form 10-Q. The following discussion contains, in addition to historical information, forward-looking statements that include risks and uncertainties. Our actual results may differ materially from those expressed or contemplated in those forward looking statements as a result of certain factors, including those set forth under the headings “Forward-Looking Statements” and “Risk Factors” elsewhere in this Quarterly Report on Form 10-Q and in the 2014 Form 10-K.

Forward-Looking Statements

Some of the statements in this quarterly report on Form 10-Q of Walker & Dunlop, Inc. and subsidiaries (the “Company,” “Walker & Dunlop,” “we,” “us”), may constitute forward-looking statements within the meaning of the federal securities laws. Forward-looking statements relate to expectations, projections, plans and strategies, anticipated events or trends and similar expressions concerning matters that are not historical facts. In some cases, you can identify forward-looking statements by the use of forward-looking terminology such as “may,” “will,” “should,” “expects,” “intends,” “plans,” “anticipates,” “believes,” “estimates,” “predicts,” or “potential” or the negative of these words and phrases or similar words or phrases which are predictions of or indicate future events or trends and which do not relate solely to historical matters. You can also identify forward-looking statements by discussions of strategy, plans, or intentions.

The forward-looking statements contained in this Form 10-Q reflect our current views about future events and are subject to numerous known and unknown risks, uncertainties, assumptions and changes in circumstances that may cause actual results to differ significantly from those expressed or contemplated in any forward-looking statement. Statements regarding the following subjects, among others, may be forward-looking:

 

    the future of the GSEs, including their origination capacities, and their impact on our business;

 

    the future funding level of HUD, including whether such funding level will be sufficient to support future firm commitment requests, and its impact on our business;

 

    changes to the interest rate environment and its impact on our business;

 

    our growth strategy;

 

    our projected financial condition, liquidity and results of operations;

 

    our ability to obtain and maintain warehouse and other loan funding arrangements;

 

    availability of and our ability to retain qualified personnel and our ability to develop and retain relationships with borrowers, key principals and lenders;

 

    degree and nature of our competition;

 

    the outcome of pending litigation;

 

    changes in governmental regulations and policies, tax laws and rates, and similar matters and the impact of such regulations, policies, and actions;

 

    our ability to comply with the laws, rules, and regulations applicable to us;

 

    trends in the commercial real estate finance market, interest rates, commercial real estate values, the credit and capital markets, or the general economy; and

 

    general volatility of the capital markets and the market price of our common stock.

While forward-looking statements reflect our good faith projections, assumptions, and expectations, they are not guarantees of future results. Furthermore, we disclaim any obligation to publicly update or revise any forward-looking statement to reflect changes in underlying assumptions or factors, new information, data or methods, future events or other changes, except as required by applicable law. For a further discussion of these and other factors that could cause future results to differ materially from those expressed or contemplated in any forward-looking statements, see “Risk Factors.”

Business

We are one of the leading commercial real estate finance companies in the United States, with a primary focus on multifamily lending. We originate, sell, and service a range of multifamily and other commercial real estate financing products. Our clients are owners and developers of commercial real estate across the country. We originate and sell loans through the programs of Fannie Mae, Freddie Mac, Ginnie Mae, and the Federal Housing Administration, a division of the U.S. Department of Housing and Urban Development, with which we have long-established relationships. We retain servicing rights and asset management responsibilities on substantially all loans that we originate for GSE and HUD programs. We are approved as a Fannie Mae Delegated Underwriting and Servicing (“DUS” ™) lender nationally, a Freddie Mac Program Plus™ lender in 22 states and the District of Columbia, a HUD Multifamily Accelerated Processing (“MAP”) lender nationally, a HUD LEAN lender nationally, and a Ginnie Mae issuer. We also broker loans for a number of life insurance companies, commercial banks, and other institutional investors, in which cases we do not fund the loan but rather act as a loan broker. We service some of the loans for which we act as a loan broker.

 

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We fund loans for GSE and HUD programs, generally through warehouse facility financings, and sell them to investors in accordance with the related loan sale commitment, which we obtain prior to loan closing. Proceeds from the sale of the loan are used to pay off the warehouse facility. The sale of the loan is typically completed within 60 days after the loan is closed, and we retain the right to service substantially all of these loans.

We recognize gains from mortgage banking activities when we commit to both make a loan to a borrower and sell that loan to an investor. The gains from mortgage banking activities reflect the fair value attributable to loan origination fees, premiums or losses on the sale of loans, net of any co-broker fees, and the fair value of the expected net cash flows associated with servicing the loans, net of any guaranty obligations retained. We also generate revenue from net warehouse interest income we earn while the loan is held for sale through one of our warehouse facilities. Additionally, we generate net warehouse interest income from loans held for investment while they are outstanding.

We retain servicing rights on substantially all of the loans we originate and sell and generate revenues from the fees we receive for servicing the loans, from the interest income on escrow deposits held on behalf of borrowers, from late charges, and from other ancillary fees. Servicing fees are set at the time an investor agrees to purchase the loan and are generally paid monthly for the duration of the loan. Our Fannie Mae and Freddie Mac servicing arrangements generally provide for prepayment penalties to the Company in the event of a voluntary prepayment. For loans serviced outside of Fannie Mae and Freddie Mac, we typically do not share in any such payments.

We are currently not exposed to interest rate risk during the loan commitment, closing, and delivery process. The sale or placement of each loan to an investor is negotiated prior to establishing the coupon rate for the loan. We also seek to mitigate the risk of a loan not closing. We have agreements in place with the GSEs and HUD that specify the cost of a failed loan delivery, also known as a pair off fee, in the event we fail to deliver the loan to the investor. To protect us against such pair off fees, we require a deposit from the borrower at rate lock that is typically more than the potential pair off fee. The deposit is returned to the borrower only once the loan is closed. Any potential loss from a catastrophic change in the property condition while the loan is held for sale using warehouse facility financing is mitigated through property insurance equal to replacement cost. We are also protected contractually from an investor’s failure to purchase the loan. We have experienced only two failed deliveries in our history and have not incurred a loss.

In cases where we do not fund the loan, we act as a loan broker and retain the right to service some of the loans. Our originators who focus on loan brokerage are engaged by borrowers to work with a variety of institutional lenders to find the most appropriate loan instrument for the borrowers’ needs. These loans are then funded directly by the institutional lender, and we receive an origination fee for placing the loan and a servicing fee for any loans we service.

We have risk-sharing obligations on substantially all loans we originate under the Fannie Mae DUS program. When a Fannie Mae DUS loan is subject to full risk-sharing, we absorb losses on the first 5% of the unpaid principal balance of a loan at the time of loss settlement, and above 5% we share a percentage of the loss with Fannie Mae, with our maximum loss capped at 20% of the original unpaid principal balance of the loan (subject to doubling or tripling if the loan does not meet specific underwriting criteria or if the loan defaults within 12 months of its sale to Fannie Mae). We may, however, request modified risk-sharing at the time of origination, which reduces our potential risk-sharing losses from the levels described above. We occasionally request modified risk-sharing based on the size of the loan. We may also request modified risk-sharing on large transactions if we do not believe that we are being fully compensated for the risks of the transactions or to manage overall risk levels. Our current credit management policy is to cap each loan balance subject to full risk-sharing at $60 million. Accordingly, we generally elect to use modified risk-sharing for loans of more than $60 million in order to limit our maximum loss exposure on any one loan to $12 million (such exposure would occur in the event that the underlying collateral is determined to be completely without value at the time of loss). However, we may on occasion elect to originate a loan with full risk sharing even when the loan balance is greater than $60 million if we believe the loan characteristics support such an approach.

Our servicing fees for risk-sharing loans include compensation for the risk-sharing obligations and are larger than the servicing fees we receive from Fannie Mae for loans with no risk-sharing obligations. We receive a lower servicing fee for modified risk-sharing than for full risk-sharing.

We have an interim loan program offering floating-rate debt with original principal balances of generally up to $25.0 million, for terms of up to three years, to experienced borrowers seeking to acquire or reposition multifamily properties that do not currently qualify for permanent financing (the “Interim Program”). We underwrite all loans originated through the Interim Program. During the time that they are outstanding, we assume the full risk of loss on the loans. In addition, we service and asset-manage loans originated through the Interim Program, with the ultimate goal of providing permanent financing on the properties.

Through a partnership in which we own a 5% interest (the “Bridge Partnership”), we offer large floating-rate loans to experienced borrowers seeking to acquire or reposition multifamily properties that do not currently qualify for permanent financing (the “Bridge Program”). The Bridge Program is generally offered for loans of $25.0 million or more and for terms of up to three years. The loans in the Bridge Program are selected and funded by the partnership and underwritten by us. We receive an asset management fee on the invested capital for managing the Bridge Program and servicing the loans. The Bridge Partnership assumes the full risk of loss on the loans while it holds the loans.

 

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We own a 20% interest in a partnership with a large institutional investor (the “CMBS Partnership”). The CMBS Partnership offers financing through a commercial mortgage backed securities (“CMBS”) platform for all commercial property types throughout the United States (the “CMBS Program”). The CMBS Partnership expects to sell all loans originated by it into secondary securitization offerings within 90 days of origination. The loans in the CMBS Partnership are selected and funded by the CMBS Partnership and underwritten by us. We receive a fee for servicing the loans. The CMBS Partnership assumes the full risk of loss on the loans while it holds the loans.

Basis of Presentation

The accompanying condensed consolidated financial statements include all of the accounts of the Company and its wholly owned subsidiaries, and all material intercompany transactions have been eliminated.

Critical Accounting Policies

Our condensed consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”), which require management to make estimates and assumptions that affect reported amounts. The estimates and assumptions are based on historical experience and other factors management believes to be reasonable. Actual results may differ from those estimates and assumptions. We believe the following critical accounting policies represent the areas where more significant judgments and estimates are used in the preparation of our consolidated financial statements.

Mortgage Servicing Rights (MSRs) and Guaranty Obligations.  MSRs are recorded at fair value at loan sale. The fair value is based on estimates of expected net cash flows associated with the servicing rights and takes into consideration an estimate of loan prepayment. The estimated net cash flows are discounted at a rate that reflects the credit and liquidity risk of the MSR over the estimated life of the underlying loan. The discount rates used throughout the periods presented were between 10-15% and varied based on the loan type. The life of the underlying loan is estimated giving consideration to the prepayment provisions in the loan. Our model assumes full prepayment of the loan at or near the point where the prepayment provisions have expired. We only recognize MSRs for GSE and HUD originations. We do not recognize MSRs for brokered transactions since we do not originate and sell the loan.

In addition to the MSR, for all Fannie Mae DUS loans with risk-sharing obligations, upon sale we record the greater of (1) the fair value of the obligation to stand ready to perform over the term of the guaranty (non-contingent obligation) and (2) the fair value of the expected loss from the risk-sharing obligations in the event of a borrower default (contingent obligation). In determining the fair value of the guaranty obligation, we consider the risk profile of the collateral, historical loss experience, and various market indicators. Generally, the estimated fair value of the guaranty obligation is based on the present value of the cash flows expected to be paid under the guaranty over the life of the loan (three to five basis points annually for the periods presented), discounted using a 12-15% discount rate for the periods presented. Historically, the contingent obligation has been de minimis upon loan sale and thus not recognized at that time. The discount rate used to calculate the guaranty obligation is consistent with what is used to calculate the corresponding MSR. The estimated life of the guaranty obligation is the estimated period over which we believe we will be required to stand ready under the guaranty.

The assumptions used to estimate the fair value of MSRs and guaranty obligations at loan sale are based on internal models and are compared to assumptions used by other market participants periodically. Due to the relatively few transactions in the multifamily MSR market, we have experienced little volatility in the assumptions we use during the periods presented, including the most-significant assumption – the discount rate. Additionally, we do not expect to see much volatility in the assumptions for the foreseeable future. Management actively monitors the assumptions used and makes adjustments to those assumptions when market conditions change or other factors indicate such adjustments are warranted. We carry MSRs at the lower of amortized cost or fair value and evaluate the carrying value for impairment on a portfolio basis quarterly. We engage a third party to assist in determining an estimated fair value of our MSRs on a semi-annual basis.

The MSR and associated guaranty obligation are amortized into expense over the estimated life of the loan and presented as a component of the Amortization and depreciation line item in the Condensed Consolidated Statements of Income. The MSR is amortized using the interest method over the period that servicing income is expected to be received. The guaranty obligation is amortized evenly over its expected life. If a loan defaults and is not expected to become current or pays off prior to the estimated life, the unamortized MSR and guaranty obligation balances are written off through the Amortization and depreciation line item in the Condensed Consolidated Statements of Income.

Allowance for Risk-sharing Obligations and Allowance for Loan Losses. The allowance for risk-sharing obligations relates to our at risk servicing portfolio and is presented as a separate liability within the Condensed Consolidated Balance Sheets. The allowance for loan losses relates to our loans held for investment from our Interim Program and is included as a component of Loans held for investment, net within the Condensed Consolidated Balance Sheets. The amount of each of these allowances considers our assessment of the likelihood of repayment by the borrower or key principal(s), the risk characteristics of the loan, the loan’s risk rating, historical loss experience, adverse situations affecting individual loans, the estimated disposition value of the underlying collateral, and the level of risk sharing, which for loans held for investment is 100%. Historically, initial loss recognition occurs at or before a loan becomes 60 days delinquent. We regularly monitor each allowance on all applicable loans and update loss estimates as current information is received. The Provision (benefit) for credit losses line item in the Condensed Consolidated Statements of Income reflects the income statement impact of changes to both the allowance for risk-sharing obligations and allowance for loan losses.

 

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We evaluate all of our loans held for investment for impairment quarterly. Our impairment evaluation focuses primarily on payment status and property financial performance. We consider a loan impaired when the current facts and circumstances suggest it is not probable that we will collect all contractually due principal and interest payments. When a loan is not considered impaired, we apply a collective allowance that is based on recent historical loss probability and historical loss rates incurred in our risk-sharing portfolio, adjusted as needed for current market conditions (“loss factors”). We use the loss experience from our risk-sharing portfolio as a proxy for losses incurred in our loans held for investment portfolio since (i) we have not experienced any actual losses related to our loans held for investment to date and (ii) the loans in the loans held for investment portfolio have similar characteristics to loans held in the risk-sharing portfolio. Since the inception of the Interim Program, we have not had any delinquent or impaired loans or charged off any loans. The historical loss factors are updated quarterly. We have not experienced significant change in the loss factors during the periods presented in the financial statements. These loss factors may change in the future as economic and market conditions change and as the Interim Program matures.

We perform a quarterly evaluation of all of our risk-sharing loans to determine whether a loss is probable. Our process for identifying which risk-sharing loans may be probable of loss consists of an assessment of several qualitative and quantitative factors including payment status, property financial performance, local real estate market conditions, loan to value ratio, debt service coverage ratio, and property condition. When we believe a loss is probable for a specific loan, we record an allowance for that loan. The allowance is based on the estimate of the property fair value less selling and property preservation costs and considers the loss-sharing requirements detailed below in the “Credit Quality and Allowance for Risk-Sharing Obligations” section. The estimate of property fair value at initial recognition of the allowance for risk-sharing obligations is based on broker opinions of value or appraisals. The allowance for risk-sharing obligations is updated as any additional information is received until the loss is settled with Fannie Mae. The settlement with Fannie Mae is based on the actual sales price of the property and selling and property preservation costs and considers the Fannie Mae loss-sharing requirements. Historically, the initial allowance for risk-sharing obligation has not varied significantly from the final settlement. We are uncertain whether such a trend will continue in the future.

Overview of Current Business Environment

The fundamentals of the commercial and multifamily real estate market are strong. Multifamily occupancy rates and effective rents continue to increase based upon strengthening rental market demand while delinquency rates remain at historic lows, all of which aid loan performance due to their importance to the cash flows of the underlying properties. Most other commercial real estate asset classes saw similar improvements. The increased demand and cash flows have boosted the value of many commercial and multifamily properties towards the high end of the historical ranges.

In addition to the improved property fundamentals, for the last several years, the U.S. commercial mortgage market has experienced historically low interest rates, leading many borrowers to seek refinancing prior to the scheduled maturity date of their loans. As borrowers have sought to take advantage of the interest rate environment and improved property fundamentals, the number of lenders and amount of capital available to lend have increased dramatically. According to the Mortgage Bankers Association, commercial and multifamily loan maturities are expected to increase dramatically beginning in 2015 and continuing through the end of 2017, as the loans originated at the height of the CMBS market begin maturing a decade later. All of these factors have benefited our origination volumes over the past few quarters, and in particular this quarter, as evidenced by the 175% year-over-year growth in origination volumes during the first quarter of 2015. Competition amongst banks, life insurance companies, the GSEs, HUD, and CMBS conduits remains fierce, putting downward pressure on our gains from mortgage banking margins during this period.

With property values for many fully leased commercial and multifamily assets at their highest point in recent years with near historic lows in capitalization rates and greatly improved property fundamentals, it has been difficult for borrowers to generate desired returns. As a result, many of our borrowers are seeking higher returns by identifying and acquiring the transitional properties that the Interim Program and the Bridge Program are designed to address. The growth in transitional lending was evident in 2014, as we originated $339.8 million of interim loans for our balance sheet compared to $147.8 million in 2013. We expect interim loan financing to be an active market in 2015. The demand for transitional lending has brought increased competition from lenders, specifically banks, life insurance companies, and, more recently, the GSEs. All are actively pursuing transitional properties by leveraging their low cost of capital and desire for short-term, high-yield commercial real estate investments.

The GSEs remain the most significant providers of capital to the multifamily market. The Federal Housing Finance Agency’s (“FHFA”) 2014 GSE Scorecard, released in May 2014, limited Fannie Mae to $30.0 billion of multifamily loan originations and Freddie Mac to $26.0 billion of multifamily loan originations (the “2014 Caps”). Affordable housing loans, loans to small multifamily properties, and manufactured housing rental community loans were not subject to the limitations of the 2014 Caps. Combined, the GSEs originated $57.2 billion of business in 2014. The FHFA released its 2015 GSE Scorecard in January 2015. Fannie Mae’s loan origination caps remained unchanged, while Freddie Mac’s cap increased to $30.0 billion (“2015 Caps”). Affordable housing loans, loans to small multifamily properties, and manufactured housing rental community loans continue to be outside of the loan origination caps.

In 2014, we originated $7.6 billion of multifamily mortgages with the GSEs, up $3.2 billion, or 71% year over year. In the first half of 2014, GSE originations were negatively impacted by the trough in mortgage maturities as well as the uncertainty caused by the delayed release of the 2014 scorecard. The uncertainty resulted in a decrease in GSE loan origination volume for the first half of 2014 compared to the same period in 2013. Following the release of the scorecard in May 2014, the GSEs actively competed for new deal flow and originated new loans at an increased level during the second half of 2014 compared to the same period in 2013. Given the early announcement of the 2015 Caps and the positive market fundamentals underlying multifamily real estate, the GSEs were very active during the first quarter of 2015, originating $20.4 billion of multifamily loans.

 

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Due to the GSEs’ strong start to the year, there has been significant discussion about whether or when they will hit the 2015 Caps. This issue is being actively discussed by the GSEs and the industry with the FHFA. It is unknown whether any action will be taken by the FHFA relative to the 2015 Caps. In the meantime, however, the GSEs are managing to the current caps through a combination of increased pricing and enhanced underwriting. The GSEs continue to actively quote affordable, manufactured housing, and small loan business as those asset classes are not subject to the 2015 Caps. We expect the GSEs to remain active and competitive for new deals in 2015. Our originations with the GSEs are some of our most profitable executions as they provide significant non-cash gains from mortgage servicing rights. While it is not expected, a decline in GSE originations would negatively impact our financial results as our non-cash revenues would decrease disproportionately with loan origination volumes. We do not know whether the FHFA will impose stricter limitations on GSE multifamily production volume in 2016 and beyond.

In response to increased demand from life insurance companies, banks, and CMBS for long-term, fixed-rate commercial and multifamily loans, and in preparation for the 2015-2017 wave of maturities, we have significantly grown our Capital Markets platform over the past few years, adding origination talent across the United States. 2014 was a down year for commercial real estate loan maturities, with maturities hitting their lowest levels since 2009. As a result, our brokered originations increased only a 1% in 2014. Commercial and multifamily loan maturities are expected to increase over 30% in 2015 when compared to 2014. In addition, notes from recent Federal Reserve meetings suggest that an increase in interest rates may not occur until late in 2015. As a result, some borrowers appear to be accelerating their refinancing in order to take advantage of the current rate environment, leading to higher loan origination volumes than anticipated across the industry. While we expect the GSEs to continue to be very active in 2015, the apparent appetite for debt funding within the broader commercial real estate market coupled with the acquisition of Johnson Capital should allow for significant growth in our brokered originations in 2015, as evidenced by the 83% year-over-year growth in brokered origination volumes we experienced in the first quarter of 2015.

In addition to banks and life insurance companies, there has been a recent increase in demand for CMBS bonds backed by commercial and multifamily mortgages. The peak of the CMBS market was between 2005 and 2007, and after its collapse in 2008, CMBS originations were close to zero. However, in recent years, the demand for commercial and multifamily bonds has increased and we have experienced increased competition from an ever-growing CMBS mortgage origination market. According to Commercial Mortgage Alert (“CMA”), there are 36 CMBS lenders today, and originations from commercial and multifamily CMBS lenders were $94.1 billion in 2014, up 9% from 2013 and up from almost zero five years ago. CMA also forecasts that the CMBS origination market will increase to $124.0 billion in 2015 as the first wave of CMBS refinancing begins. It is the increased demand for CMBS bonds backed by commercial and multifamily mortgages and the expected wave of refinancing activity upcoming in the next three years that led us to form the CMBS Partnership. We originated $89.5 million of loans for the CMBS Partnership in 2014, and the CMBS Partnership participated in two third-party securitizations in 2014, contributing $116.1 million of assets to the securitizations. During the first quarter of 2015, the CMBS Partnership participated in one third-party securitization, contributing $46.8 million of assets to the securitization. Participating in these securitizations in 2014 and 2015 is an important step for our CMBS Partnership and positions us to actively participate in the upcoming wave of refinancing.

The positive market dynamics that have benefitted the GSEs and broader capital markets have had the opposite effect on HUD’s multifamily business. As the economy has recovered and bank and CMBS capital has re-entered the market, borrowers have shied away from the long lead times required to secure a HUD loan. As a result, we originated $156.9 million of loans with HUD in the first quarter of 2015, down 39% from the first quarter of 2014. As HUD’s multifamily business has declined, several of our competitors have diverted resources and capital away from their HUD businesses. We, on the other hand, have remained active in the HUD multifamily business, adding resources and scale to our HUD business, particularly in the area of seniors housing and skilled nursing, where HUD remains the dominant provider of capital. HUD maintains its $30.0 billion capital allocation for its 2015 fiscal year, although we believe it is unlikely HUD will reach that limit.

Results of Operations

Following is a discussion of our results of operations for the three months ended March 31, 2015 and 2014. The financial results are not necessarily indicative of future results. Our quarterly results have fluctuated in the past and are expected to fluctuate in the future, reflecting the interest-rate environment, the volume of transactions, regulatory actions, and general economic conditions. Please refer to the table below, which provides supplemental data regarding our financial performance.

 

21


SUPPLEMENTAL OPERATING DATA

 

     For the three months
ended March 31,
 
(dollars in thousands )    2015     2014  

Origination Data:

    

Fannie Mae

   $ 1,362,664     $ 459,281  

Freddie Mac

     1,996,002       368,437  

Ginnie Mae - HUD

     156,949       257,783  

Brokered (1)

     760,263       415,825  

Interim Loans

     8,420       81,250  

CMBS (2)

     64,100       —    
  

 

 

   

 

 

 

Total Originations

$ 4,348,398   $ 1,582,576  
  

 

 

   

 

 

 

Key Performance Metrics:

Operating margin

  32   18

Return on equity

  20   7

Net income

$ 21,313    $ 7,144   

Adjusted EBITDA (3)

$ 35,408    $ 19,793   

Diluted EPS

$ 0.66    $ 0.21   

Key Expense Metrics (as a percentage of total revenues):

Personnel expenses

  36   38

Other operating expenses

  8   12

Key Origination Metrics (as a percentage of origination volume):

Origination related fees

  0.95   1.31

Fair value of MSRs created, net

  0.72   0.88

Fair value of MSRs created, net as a percentage of GSE and HUD origination volume (4)

  0.89   1.28
     As of March 31,  
     2015     2014  

Servicing Portfolio by Product:

    

Fannie Mae

   $ 20,801,580     $ 19,046,644  

Freddie Mac

     14,545,426       10,472,763  

Ginnie Mae - HUD

     5,775,968       5,099,601  

Brokered (1)

     4,498,161       4,102,707  

Interim Loans

     233,738       187,150  

CMBS (5)

     211,787       —    
  

 

 

   

 

 

 

Total Servicing Portfolio

$ 46,066,660   $ 38,908,865  
  

 

 

   

 

 

 

Key Servicing Metric (end of period):

Weighted-average servicing fee rate

  0.24   0.24

 

(1) Brokered transactions for commercial mortgage backed securities, life insurance companies, and commercial banks.
(2) Brokered transactions for the CMBS Partnership. For the three months ended March 31, 2015, the CMBS Partnership’s loan originations totaled $95.9 million.
(3) This is a non-GAAP financial measure. For more information on adjusted EBITDA, refer to the section below titled “Non-GAAP Financial Measures.”
(4) The fair value of the expected net cash flows associated with the servicing of the loan, net of any guaranty obligations retained, as a percentage of GSE and HUD volume. No MSRs are recorded for “brokered” transactions or Interim Program originations.
(5) All loans originated by the CMBS Partnership, whether brokered by us or not, are serviced by us.

 

22


The following table presents a period-to-period comparison of our financial results for the three months ended March 31, 2015 and 2014.

FINANCIAL RESULTS

 

     For the three months
ended March 31,
     Dollar      Percentage  
(dollars in thousands)    2015      2014      Change      Change  

Revenues

           

Gains from mortgage banking activities

   $ 72,720      $ 34,586      $ 38,134        110

Servicing fees

     26,841        23,343        3,498        15

Net warehouse interest income

     4,354        2,236        2,118        95

Escrow earnings and other interest income

     787        1,075        (288 )      -27

Other

     7,419        3,593        3,826        106
  

 

 

    

 

 

    

 

 

    

Total revenues

$ 112,121   $ 64,833   $ 47,288     73
  

 

 

    

 

 

    

 

 

    

Expenses

Personnel

$ 40,045   $ 24,535   $ 15,510     63

Amortization and depreciation

  24,674     18,459     6,215     34

Provision (benefit) for credit losses

  84     (171 )   255     -149

Interest expense on corporate debt

  2,477     2,573     (96 )   -4

Other operating expenses

  9,435     7,527     1,908     25
  

 

 

    

 

 

    

 

 

    

Total expenses

$ 76,715   $ 52,923   $ 23,792     45
  

 

 

    

 

 

    

 

 

    

Income from operations before income taxes

  35,406     11,910     23,496     197

Income tax expense

  14,093     4,766     9,327     196
  

 

 

    

 

 

    

 

 

    

Net income

$ 21,313   $ 7,144   $ 14,169     198
  

 

 

    

 

 

    

 

 

    

Overview

The increase in revenues was primarily attributable to increases in gains from mortgage banking activities, servicing fees, and other revenues. The increase in gains from mortgage banking activities was due to the significant growth in loan origination volumes period over period. The increase in loan origination volumes is largely attributable to an increase in GSE loan origination volumes, which was the result of the GSEs more actively competing for new deal flow during the current period and the wave of refinancing activity as more fully discussed above in the Overview of Business Environment section. The increase in servicing fees was due to an increase in the average servicing portfolio, and the increase in other revenues was due to an increase in prepayment fees. The increase in expenses was primarily the result of increased commission costs due to increased loan origination volumes and increased bonus expense due to our improved financial results year over year. Additionally, amortization and depreciation expense increased primarily due to a rise in net write-offs of MSRs due to prepayment.

Revenues

Gains from Mortgage Banking Activities. Gains from mortgage banking activities reflect the fair value of loan origination fees, the fair value of loan premiums, net of any co-broker fees, and the fair value of the expected net cash flows associated with the servicing of the loan, net of any guaranty obligations retained (“MSR income”). The increase was primarily attributable to a 175% increase in the volume of loans originated year over year, partially offset by an 18% decrease in MSR income as a percentage of loan origination volumes (“MSR rate”) and a 27% decrease in origination fees as a percentage of loan origination volumes (“origination fee rate”).

Loan origination volume increased to $4.3 billion in 2015 from $1.6 billion in 2014, a 175% increase. The increase is principally attributable to increases in GSE and brokered loan origination volumes. See the Overview of Business Environment section above for a detailed discussion of the increases in GSE and brokered loan origination volumes. The decreases in the MSR rate and the origination fee rate were the result of (i) the increased competition for multifamily and other commercial real estate loan originations as discussed more fully above in the Overview of Current Business Environment section, (ii) a large increase in adjustable rate loan origination volume as a percentage of loan origination volume, and (iii) a larger average size of loans originated year over year. We generally receive lower origination and servicing fees for larger loans, and we record smaller MSR income for adjustable rate loans than we do for fixed rate loans.

Servicing Fees.  The increase was primarily attributable to an increase in the servicing portfolio due to new loan originations. The average servicing portfolio during the three months ended March 31, 2015 was $45.0 billion compared to $39.0 billion during the three months ended March 31, 2014.

Net Warehouse Interest Income. The increase is related to a $1.1 million increase in net warehouse interest income from loans held for sale and a $1.0 million increase in net warehouse interest income from loans held for investment. The increase in net warehouse interest income from loans held for sale was primarily attributable to a 257% increase in the average daily outstanding warehouse balance, partially offset by a 51% decrease in the net warehouse margin. The average loans held for sale balance increased from $0.3 billion during 2014 to $1.0 billion during 2015. The increase in net warehouse interest income from loans held for investment was substantially the result of an increase in the average balance of loans outstanding from $154.9 million during 2014 to $227.4 million during 2015.

 

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Other.  The increase was primarily attributable to an increase in prepayment fees of $3.3 million from 2014 to 2015.

Expenses

Personnel.  The increase was principally the result of higher commission costs due to higher loan origination volumes year over year and increased bonus expense due to our improved financial results year over year.

Amortization and Depreciation.  The increase was primarily attributable to loan origination activity and the resulting growth in the capitalization of MSRs year over year. Also included in amortization and depreciation are write-offs of MSRs resulting from the prepayment or default of the underlying loan prior to its scheduled maturity. During 2015, write-offs of MSRs increased $4.2 million from the prior year to $5.7 million.

Other Operating Expenses.  The increase was primarily attributable to an increase in travel and entertainment expense and professional fees. The increase in travel and entertainment expense relates to an increase in average headcount year over year. The increase in professional fees is due to accounting, tax, and legal costs associated with acquisitions and the secondary offering of our stock, for which there was no comparable expense in the prior year.

Income Tax Expense. The increase in income tax expense was primarily due to the increase in income from operations.

Non-GAAP Financial Measures

To supplement our financial statements presented in accordance with GAAP, we use adjusted EBITDA, a non-GAAP financial measure. The presentation of adjusted EBITDA financial information is not intended to be considered in isolation or as a substitute for, or superior to, the financial information prepared and presented in accordance with GAAP. When analyzing our operating performance, readers should use adjusted EBITDA in addition to, and not as an alternative to, net income. Adjusted EBITDA represents GAAP net income before income taxes, adjusted for interest expense on our term loan facility, amortization and depreciation, provision (benefit) for credit losses net of write-offs, stock-based incentive compensation charges, and non-cash revenues such as gains attributable to MSRs. Because not all companies use identical calculations, our presentation of adjusted EBITDA may not be comparable to similarly titled measures of other companies. Furthermore, adjusted EBITDA is not intended to be a measure of free cash flow for our management’s discretionary use, as it does not reflect certain cash requirements such as tax and debt service payments. The amounts shown for adjusted EBITDA may also differ from the amounts calculated under similarly titled definitions in our debt instruments, which are further adjusted to reflect certain other cash and non-cash charges that are used to determine compliance with financial covenants.

We use adjusted EBITDA to evaluate the operating performance of our business, for comparison with forecasts and strategic plans, and for benchmarking performance externally against competitors. We believe that adjusted EBITDA, when read in conjunction with our GAAP financials, provides useful information to investors by offering:

 

    the ability to make more meaningful period-to-period comparisons of our on-going operating results;

 

    the ability to better identify trends in our underlying business and perform related trend analyses; and

 

    a better understanding of how management plans and measures our underlying business.

We believe that adjusted EBITDA has limitations in that it does not reflect all of the amounts associated with our results of operations as determined in accordance with GAAP and that adjusted EBITDA should only be used to evaluate our results of operations in conjunction with the corresponding GAAP measure. The presentation of this additional information is not meant to be considered in isolation or as a substitute for net income.

 

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Adjusted EBITDA is calculated as follows:

ADJUSTED FINANCIAL METRIC RECONCILIATION TO GAAP

 

     For the three months ended
March 31,
 
(in thousands)    2015      2014  

Reconciliation of GAAP Net Income to Adjusted EBITDA

     

GAAP net income

   $ 21,313       $ 7,144   

Recurring Adjustments:

     

Income tax expense

     14,093         4,766   

Interest expense

     2,477         2,573   

Amortization and depreciation

     24,674         18,459   

Provision (benefit) for credit losses

     84         (171

Net write-offs

     —          (1,361

Stock compensation expense

     4,084         2,271   

Gains attributable to mortgage servicing rights (1)

     (31,317      (13,888
  

 

 

    

 

 

 

Adjusted EBITDA

$     35,408    $     19,793   
  

 

 

    

 

 

 

 

(1) Represents the fair value of the expected net cash flows from servicing recognized at commitment, net of the expected guaranty obligation.

The following table presents a period-to-period comparison of our non-GAAP financial results for the three months ended March 31, 2015 and 2014.

NON-GAAP FINANCIAL RESULTS

 

     For the three months
ended March 31,
     Dollar      Percentage  
(dollars in thousands)    2015      2014      Change      Change  

Origination fees

   $ 41,403      $ 20,698      $ 20,705        100

Servicing fees

     26,841        23,343        3,498        15

Net warehouse interest income

     4,354        2,236        2,118        95

Escrow earnings and other interest income

     787        1,075        (288 )      -27

Other

     7,419        3,593        3,826        106

Personnel

     (35,961 )      (22,264 )      (13,697 )      62

Net write-offs

     —          (1,361 )      1,361        -100

Other operating expenses

     (9,435 )      (7,527 )      (1,908 )      25
  

 

 

    

 

 

    

 

 

    

Adjusted EBITDA

$ 35,408   $ 19,793   $ 15,615     79
  

 

 

    

 

 

    

 

 

    

Adjusted EBITDA. See the table above for the components of the change in adjusted EBITDA. The increase in origination fees is largely related to the significant increase in the volume of loans originated, partially offset by a decrease in the origination fee rate year over year. Servicing fees increased due to an increase in the average servicing portfolio year over year as a result of new loan originations. Net warehouse interest income increased largely due to an increase in the average outstanding balances of loans held for sale and loans held for investment year over year. Other revenues increased primarily due to a rise in prepayment fees. The increase in personnel expense was primarily due to an increase in commission costs due to higher loan origination volume and increased bonus expense due to our improved financial results year over year. The decrease in net write offs was due to a decrease in the volume of risk-sharing losses settled with Fannie Mae. During the three months ended March 31, 2015, we did not settle any losses with Fannie Mae. During the three months ended March 31, 2014, we settled the losses related to three risk-sharing loans that had previously defaulted. Other operating expenses increased primarily as a result of increases in travel and entertainment expense and professional fees.

Financial Condition

Cash Flows from Operating Activities

Our cash flows from operations are generated from loan sales, servicing fees, escrow earnings, net warehouse interest income and other income, net of loan purchases and operating costs. Our cash flows from operations are impacted by the fees generated by our loan originations, the timing of loan closings, and the period of time loans are held for sale in the warehouse loan facility, prior to delivery to the investor.

 

25


Cash Flow from Investing Activities

We usually lease facilities and equipment for our operations. However, when necessary and cost effective, we invest cash in property, plant and equipment.

Cash Flow from Financing Activities

We use our warehouse loan facilities and our corporate cash to fund loan closings. We believe that our current warehouse loan facilities are adequate to meet our increasing loan origination needs. Historically, we have used long-term debt to fund acquisitions, repurchase shares, and fund loans held for investment.

We currently do not pay dividends on our common stock and historically have not done so either.

Three Months Ended March 31, 2015 Compared to Three Months Ended March 31, 2014

The following table presents a period-to-period comparison of the significant components of cash flows for the three months ended March 31, 2015 and 2014.

SIGNIFICANT COMPONENTS OF CASH FLOWS

 

     Three Months Ended March 31,      Dollar      Percentage  
(dollars in thousands)    2015      2014      Change      Change  

Net cash provided by (uesd in) operating activities

   $ (220,659 )    $ (74,918 )    $ (145,741 )      195

Net cash provided by (used in) investing activities

     (8,868 )      (51,682 )      42,814        -83

Net cash provided by (used in) financing activities

     181,689        19,286        162,403        842

Cash and cash equivalents at end of period

   $ 65,516      $ 63,249      $ 2,267        4

Cash flows from operating activities

           

Net receipt (use) of cash for loan origination activity

   $ (219,973 )    $ (73,618 )    $ (146,355 )      199

Net cash provided by (used in) operating activities, excluding loan origination activity

   $ (686 )    $ (1,300 )    $ 614        -47

Cash flows from investing activities

           

Originations of loans held for investment

   $ (8,420 )    $ (81,250 )    $ 72,830        -90

Principal collected on loans held for investment

     —          29,720        (29,720 )      -100
  

 

 

    

 

 

    

 

 

    

 

 

 

Net investment in loans held for investment

$ (8,420 ) $ (51,530 ) $ 43,110     -84

Cash flows from financing activities

Borrowings (repayments) of warehouse notes payable, net

$     221,525   $     16,333   $ 205,192     1256

Borrowings of interim warehouse notes payable

  6,315     59,570     (53,255 )   -89

Repayments of interim warehouse notes payable

  —       (21,653 )   21,653     -100

Repurchase of common stock

$ (47,804 ) $ (35,897 ) $ (11,907 )   33

Changes in cash flows from operations were driven primarily by loans acquired and sold. Such loans are held for short periods of time, generally less than 60 days, and impact cash flows presented as of a point in time. The decrease in cash flows from operations for the three months ended March 31, 2015 is primarily attributable to the net use of $220.0 million for the funding of loan originations, net of sales of loans to third parties during 2015 compared to the net use of $73.6 million from funding loan originations, net of sales to third parties during 2014. Excluding cash provided by and used for the sale and purchase of loans, cash flows used in operations was $0.7 million during 2015 compared to $1.3 million during 2014.

The decrease in cash used in investing activities is primarily attributable to the net investment of $8.4 million in loans held for investment during 2015 compared to $51.5 million during 2014. Of the $8.4 million net investment in loans held for investment during 2015, $6.3 million was funded using interim warehouse borrowings, with the other $2.1 million funded using corporate cash. Of the $51.5 million of the net investment in loans held for investment during 2014, $38.5 was funded using interim warehouse borrowings, with the remaining $13.0 million funded using corporate cash.

The increase in cash provided by financing activities was primarily attributable to increased borrowings of warehouse notes payable and a reduction in repayments of interim warehouse notes payable, partially offset by an increase in cash used to repurchase and retire shares of our common stock and a decrease in borrowings of interim warehouse notes payable. The increase in borrowings of warehouse notes payable was largely attributable to the increased loan origination volume year over year. The decrease in net borrowings of interim warehouse notes payable was due to a decrease in the net investment in loans held for investment noted above.

 

26


Liquidity and Capital Resources

Uses of Liquidity, Cash and Cash Equivalents

Our cash flow requirements consist of (i) short-term liquidity necessary to fund mortgage loans and (ii) working capital to support our day-to-day operations, including debt service payments, servicing advances consisting of principal and interest advances for Fannie Mae or HUD loans that become delinquent, and advances on insurance and tax payments if the escrow funds are insufficient.

We also require working capital to satisfy collateral requirements for our Fannie Mae DUS risk-sharing obligations and to meet the operational liquidity requirements of Fannie Mae, Freddie Mac, HUD, Ginnie Mae, and our warehouse facility lenders. Congress and other governmental authorities have also suggested that lenders may be required to retain on their balance sheet a portion of the loans that they originate, although no regulation has yet been implemented.

Fannie Mae has established benchmark standards for capital adequacy, and reserves the right to terminate our servicing authority for all or some of the portfolio if at any time it determines that our financial condition is not adequate to support our obligations under the DUS agreement. We are required to maintain acceptable net worth as defined in the standards, and we satisfied the requirements as of March 31, 2015. The net worth requirement is derived primarily from unpaid balances on Fannie Mae loans and the level of risk-sharing. At March 31, 2015, the net worth requirement was $99.8 million and our net worth was $361.8 million, as measured at our wholly owned operating subsidiary, Walker & Dunlop, LLC. As of March 31, 2015, we were required to maintain at least $19.2 million of liquid assets to meet our operational liquidity requirements for Fannie Mae, Freddie Mac, HUD, Ginnie Mae and our warehouse facility lenders. As of March 31, 2015, we had operational liquidity of $76.9 million, as measured at our wholly owned operating subsidiary, Walker & Dunlop, LLC.

We currently retain all future earnings for the operation and expansion of our business and therefore do not pay cash dividends on our common stock. Over the past 15 months, we have repurchased 5.5 million shares of our common stock for an aggregate cost of $82.3 million. We may opportunistically repurchase additional stock if we believe market conditions support such activity.

Historically, our cash flows from operations and warehouse facilities have been sufficient to enable us to meet our short-term liquidity needs and other funding requirements. We believe that cash flows from operations will continue to be sufficient for us to meet our current obligations for the foreseeable future.

Restricted Cash and Pledged Securities

Restricted cash consists primarily of good faith deposits held on behalf of borrowers between the time we enter into a loan commitment with the borrower and the investor purchases the loan. We are generally required to share the risk of any losses associated with loans sold under the Fannie Mae DUS program (the DUS risk-sharing obligations). We are required to secure this obligation by assigning collateral to Fannie Mae. We meet this obligation by assigning pledged securities to Fannie Mae. The amount of collateral required by Fannie Mae is a formulaic calculation at the loan level and considers the balance of the loan, the risk level of the loan, the age of the loan, and the level of risk-sharing. Fannie Mae requires collateral for Tier 2 loans of 75 basis points, which is funded over a 48-month period that begins upon delivery of the loan to Fannie Mae. Collateral held in the form of money market funds holding US Treasuries is discounted 5% for purposes of calculating compliance with the collateral requirements. As of March 31, 2015, we held substantially all of our restricted liquidity in money market funds holding US Treasuries in the aggregate amount of $66.5 million. Additionally, substantially all of the loans for which we have risk sharing are Tier 2 loans. We fund any growth in our Fannie Mae required operational liquidity and collateral requirements from our working capital.

We are in compliance with the March 31, 2015 collateral requirements as outlined above. As of March 31, 2015, reserve requirements for the March 31, 2015 DUS loan portfolio will require us to fund $39.5 million in additional restricted liquidity over the next 48 months, assuming no further principal paydowns, prepayments, or defaults within our at risk portfolio. Fannie Mae periodically reassesses the DUS Capital Standards and may make changes to these standards in the future. We generate sufficient cash flow from our operations to meet these capital standards and do not expect any future changes to have a material impact on our future operations; however, any future changes to collateral requirements may adversely impact our available cash.

Under the provisions of the DUS agreement, we must also maintain a certain level of liquid assets referred to as the operational and unrestricted portions of the required reserves each year. We satisfied these requirements as of March 31, 2015.

 

27


Sources of Liquidity: Warehouse Facilities

The following table provides information related to our warehouse facilities as of March 31, 2015.

 

     March 31, 2015       
     Maximum      Outstanding       
(dollars in thousands)    Amount      Balance     

Interest rate

Facility

        

Agency warehouse facility #1

   $ 1,095,000      $ 824,829      30-day LIBOR plus 1.50%

Agency warehouse facility #2

     650,000        244,554      30-day LIBOR plus 1.50%

Agency warehouse facility #3

     200,000        160,013      30-day LIBOR plus 1.40%

Fannie Mae repurchase agreement, uncommited line and open maturity

     400,000        47,202      30-day LIBOR plus 1.15%
  

 

 

    

 

 

    

Total agency warehouse facilities

$ 2,345,000   $ 1,276,598  

Interim warehouse facility #1

$ 75,000   $ 59,815   30-day LIBOR plus 2.00%

Interim warehouse facility #2

  135,000     81,123   30-day LIBOR plus 2.00%

Interim warehouse facility #3

  50,000     26,549   30-day LIBOR plus 2.00% to 2.50%
  

 

 

    

 

 

    

Total interim warehouse facilities

$ 260,000   $ 167,487  
  

 

 

    

 

 

    

Total warehouse facilities

$ 2,605,000   $ 1,444,085  
  

 

 

    

 

 

    

Agency Warehouse Facilities

To provide financing to borrowers under GSE and HUD programs, we have four warehouse facilities that we use to fund substantially all of our loan originations. As of March 31, 2015, we had three committed warehouse lines of credit in the aggregate amount of $1.9 billion with certain national banks and a $0.4 billion uncommitted facility with Fannie Mae (“Agency Warehouse Facilities”). Consistent with industry practice, three of these facilities are revolving commitments we expect to renew annually and the other facility is provided on an uncommitted basis without a specific maturity date. Our ability to originate mortgage loans depends upon our ability to secure and maintain these types of short-term financings on acceptable terms.

Agency Warehouse Facility #1:

We have a warehousing credit and security agreement with a national bank for a committed warehouse line that is scheduled to mature on November 2, 2015. The total commitment amount of $1.1 billion as of March 31, 2015 consists of a base committed amount of $425.0 million and a temporary increase of $670.0 million, as more fully described below. The warehousing credit and security agreement provides us with the ability to fund Fannie Mae, Freddie Mac, HUD, and FHA loans. Advances are made at 100% of the loan balance and borrowings under this line bear interest at 30-day London Interbank Offered Rate (“LIBOR”) plus 150 basis points. On March 25, 2015, we executed a temporary commitment increase agreement to the warehousing credit and security agreement that provides a temporary $670.0 million increase in the maximum borrowing capacity to allow us to fund a specific portfolio of loans. The temporary increase is effective from the date of execution and expires on the earlier of the date the specific portfolio is sold or 50 days after execution. No other material modifications were made to the agreement.

Agency Warehouse Facility #2:

We have a $650.0 million committed warehouse agreement with a national bank that is scheduled to mature on June 23, 2015. The committed warehouse facility provides us with the ability to fund Fannie Mae, Freddie Mac, HUD and FHA loans. Advances are made at 100% of the loan balance and borrowings under this line bear interest at 30-day LIBOR plus 150 basis points. No material modifications have been made to the agreement during 2015.

Agency Warehouse Facility #3:

We have a $200.0 million committed warehouse agreement with a national bank. The committed warehouse facility provides us with the ability to fund Fannie Mae, Freddie Mac, HUD and FHA loans. The borrowings under the warehouse agreement bear interest at a rate of 30-day LIBOR plus 1.40%. On April 15, 2015, we executed the second amendment to the credit and security agreement that increased the maximum borrowing capacity to $240.0 million and extended the maturity date from September 23, 2015 to April 30, 2016. No other material modifications were made to the agreement.

Uncommitted Agency Warehouse Facility:

We have a $400.0 million uncommitted facility with Fannie Mae under its ASAP funding program. After approval of certain loan documents, Fannie Mae will fund loans after closing and the advances are used to repay the primary warehouse line. Fannie Mae will advance 99% of the loan balance, and borrowings under this program bear interest at 30-day LIBOR, with a minimum LIBOR rate of 35 basis points, plus 115 basis points. There is no expiration date for this facility.

 

28


Interim Warehouse Facilities

To assist in funding loans held for investment under the Interim Program, we have three warehouse facilities with certain national banks in the aggregate amount of $260.0 million as of March 31, 2015. Consistent with industry practice, one of these facilities is a revolving commitment we expect to renew annually and two are revolving commitments we expect to renew every two years. Our ability to originate loans held for investment depends upon our ability to secure and maintain these types of short-term financings on acceptable terms.

Interim Warehouse Facility #1:

We have a $75.0 million committed warehouse line agreement that is scheduled to mature on September 21, 2015. The facility provides us with the ability to fund first mortgage loans on multifamily real estate properties for periods of up to three years, using available cash in combination with advances under the facility. All borrowings bear interest at the average 30-day LIBOR plus 200 basis points. Borrowings under the facility are full recourse to the Company. Repayments under the credit agreement are interest-only, with principal repayments made upon the earlier of the refinancing of an underlying mortgage or the maturity of an advance under the credit agreement. No material modifications have been made to the agreement during 2015.

Interim Warehouse Facility #2:

We have a $135.0 million committed warehouse line agreement that is scheduled to mature on December 13, 2015. The agreement provides us with the ability to fund first mortgage loans on multifamily real estate properties for periods of up to three years, using available cash in combination with advances under the facility. All borrowings originally bear interest at 30-day LIBOR plus 200 basis points. The lender retains a first priority security interest in all mortgages funded by such advances on a cross-collateralized basis. Repayments under the credit agreement are interest-only, with principal repayments made upon the earlier of the refinancing of an underlying mortgage or the maturity of an advance under the credit agreement. On April 10, 2015, we executed the second amendment to the credit and security agreement that increased the maximum borrowing capacity to $200.0 million. No other material modifications were made to the agreement.

Interim Warehouse Facility #3:

We have a $50.0 million repurchase agreement with a national bank that is scheduled to mature on May 19, 2016. The agreement provides us with the ability to fund first mortgage loans on multifamily real estate properties for periods of up to three years, using available cash in combination with advances under the facility. The borrowings under the agreement bear interest at a rate of 30-day LIBOR plus 2.00% to 2.50% (“the spread”). The spread varies according to the type of asset the borrowing finances. Repayments under the credit agreement are interest-only, with principal repayments made upon the earlier of the refinancing of an underlying mortgage or the maturity of an advance under the credit agreement. No material modifications have been made to the agreement during 2015.

The agreements above contain cross-default provisions, such that if a default occurs under any of our debt agreements, generally the lenders under our other debt agreements could also declare a default. As of March 31, 2015, we were in compliance with all of our warehouse line covenants.

We believe that the combination of our capital and warehouse facilities is adequate to meet our loan origination needs.

Debt Obligations

We have a senior secured term loan credit agreement (the “Term Loan Agreement”). The Term Loan Agreement provides for a $175.0 million term loan that was issued at a discount of 1.0% (the “Term Loan”). At any time, we may also elect to request the establishment of one or more incremental term loan commitments to make up to three additional term loans (any such additional term loan, an “Incremental Term Loan”) in an aggregate principal amount for all such Incremental Term Loans not to exceed $60.0 million.

We are obligated to repay the aggregate outstanding principal amount of the Term Loan in consecutive quarterly installments equal to $0.4 million on the last business day of each of March, June, September, and December commencing on March 31, 2014. The term loan also requires other prepayments in certain circumstances pursuant to the terms of the Term Loan Agreement. In April of 2015, we made a mandatory prepayment of $3.6 million. In connection with the mandatory repayment, our quarterly principal installments were reduced to $0.3 million, beginning with the June 30, 2015 principal payment. The final principal installment of the Term Loan is required to be paid in full on December 20, 2020 (or, if earlier, the date of acceleration of the Term Loan pursuant to the terms of the Term Loan Agreement) and will be in an amount equal to the aggregate outstanding principal of the Term Loan on such date (together with all accrued interest thereon).

At our election, the Term Loan will bear interest at either (i) the “Base Rate” plus an applicable margin or (ii) the London Interbank Offered Rate (“LIBOR Rate”) plus an applicable margin, subject to adjustment if an event of default under the Term Loan Agreement has occurred and is continuing with a minimum LIBOR Rate of 1.0%. The “Base Rate” means the highest of (a) the administrative agent’s “prime rate,” (b) the federal funds rate plus 0.50% and (c) LIBOR for an interest period of one month plus 1%. In each case, the applicable margin is determined by our Consolidated Corporate Leverage Ratio (as defined in the Term Loan Agreement). If such Consolidated Corporate Leverage Ratio is greater than 2.50 to 1.00, the applicable margin will be 4.50% for LIBOR Rate loans and 3.50% for Base Rate loans, and if such Consolidated Corporate Leverage Ratio is less than or equal to 2.50 to 1.00, the applicable margin will be 4.25% for LIBOR Rate loans and 3.25% for Base Rate loans. The calculated Consolidated Corporate Leverage Ratio dropped to below 2.50 in 2014. Consequently, the applicable margin is 4.25% as of March 31, 2015.

 

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Our obligations under the Term Loan Agreement are guaranteed by Walker & Dunlop Multifamily, Inc., Walker & Dunlop, LLC, Walker & Dunlop Capital, LLC, and W&D BE, Inc., each of which is a direct or indirect wholly owned subsidiary of the Company (together with the Company, the “Loan Parties”), pursuant to a Guarantee and Collateral Agreement entered into on December 20, 2013 among the Loan Parties and the Agent (the “Guarantee and Collateral Agreement”).

As of March 31, 2015, the outstanding principal balance of the note payable was $172.8 million.

The note payable and the warehouse facilities are senior obligations of the Company. The Term Loan Agreement contains affirmative and negative covenants, including financial covenants. As of March 31, 2015, we were in compliance with all such covenants.

 

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Credit Quality and Allowance for Risk-Sharing Obligations

The following table sets forth certain information useful in evaluating our credit performance.

 

     As of and for the three months
ended March 31,
 
(dollars in thousands)    2015     2014  

Key Credit Metrics

    

Risk-sharing servicing portfolio:

    

Fannie Mae Full Risk

   $ 15,076,417     $ 13,179,100  

Fannie Mae Modified Risk

     4,871,997       4,291,304  

Freddie Mac Modified Risk

     53,629       68,553  

GNMA - HUD Full Risk

     4,693       4,830  
  

 

 

   

 

 

 

Total risk-sharing servicing portfolio

$ 20,006,736   $ 17,543,787  

Non risk-sharing servicing portfolio:

Fannie Mae No Risk

$ 853,166   $ 1,576,240  

Freddie Mac No Risk

  14,491,797     10,404,210  

GNMA - HUD No Risk

  5,771,275     5,094,771  

Brokered

  4,498,161     4,102,707  

CMBS

  211,787     —    
  

 

 

   

 

 

 

Total non risk-sharing servicing portfolio

$ 25,826,186   $ 21,177,928  

Total loans serviced for others

$ 45,832,922   $ 38,721,715  

Interim loans (full risk) servicing portfolio

  233,738     187,150  
  

 

 

   

 

 

 

Total servicing portfolio unpaid principal balance

$ 46,066,660   $ 38,908,865  
  

 

 

   

 

 

 

At risk servicing portfolio (1)

$ 17,486,146   $ 15,079,283  

Maximum exposure to at risk portfolio (2)

  4,121,863     3,673,700  

60+ Day delinquencies, within at risk portfolio

  22,531     —    

At risk loan balances associated with allowance for risk-sharing obligations

$ 25,609   $ 36,036  

Allowance for risk-sharing obligations:

Beginning balance

$ 3,904   $ 7,363  

Provision (benefit) for risk-sharing obligations

  150     (340 )

Net write-offs

  —       (1,361 )
  

 

 

   

 

 

 

Ending balance

$ 4,054   $ 5,662  
  

 

 

   

 

 

 

60+ Day delinquencies as a percentage of the at risk portfolio

  0.13   0.00

Allowance for risk-sharing as a percentage of the at risk portfolio

  0.02   0.04

Net write-offs as a percentage of the at risk portfolio

  0.00   0.01

Allowance for risk-sharing as a percentage of the specifically identified at risk balances

  15.83   15.71

Allowance for risk-sharing as a percentage of maximum exposure

  0.10   0.15

Allowance for risk-sharing and guaranty obligation as a percentage of maximum exposure

  0.71   0.78

 

(1) At risk servicing portfolio is defined as the balance of Fannie Mae DUS loans subject to the risk-sharing formula described below, as well as a small number of Freddie Mac and GNMA—HUD loans on which we share in the risk of loss. Use of the at risk portfolio provides for comparability of the full risk-sharing and modified risk-sharing loans because the provision and allowance for risk-sharing obligations are based on the at risk balances of the associated loans. Accordingly, we have presented the key statistics as a percentage of the at risk portfolio.

For example, a $15 million loan with 50% risk-sharing has the same potential risk exposure as a $7.5 million loan with full DUS risk-sharing. Accordingly, if the $15 million loan with 50% risk-sharing was to default, we would view the overall loss as a percentage of the at risk balance, or $7.5 million, to ensure comparability between all risk-sharing obligations. To date, all but three of the risk-sharing obligations that we have settled have been from full risk-sharing loans.

 

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  (2) Represents the maximum loss we would incur under our risk-sharing obligations if all of the loans we service, for which we retain some risk of loss, were to default and all of the collateral underlying these loans was determined to be without value at the time of settlement. The maximum exposure is not representative of the actual loss we would incur.

Fannie Mae DUS risk-sharing obligations are based on a tiered formula and represent substantially all of our risk-sharing activities. The risk-sharing tiers and amount of the risk-sharing obligations we absorb under full risk-sharing are provided below. Except as described in the following paragraph, the maximum amount of risk-sharing obligations we absorb at the time of default is 20% of the original unpaid principal balance (“UPB”) of the loan.

 

Risk-Sharing Tier

   Percentage Absorbed by Us

First 5% of UPB at the time of loss settlement

   100%

Next 20% of UPB at the time of loss settlement

   25%

Losses above 25% of UPB at the time of loss settlement

   10%

Maximum loss

   20% of original UPB

Fannie Mae can double or triple our risk-sharing obligation if the loan does not meet specific underwriting criteria or if a loan defaults within 12 months of its sale to Fannie Mae. We may request modified risk-sharing at the time of origination, which reduces our potential risk-sharing obligation from the levels described above.

We use several techniques to manage our risk exposure under the Fannie Mae DUS risk-sharing program. These techniques include maintaining a strong underwriting and approval process, evaluating and modifying our underwriting criteria given the underlying multifamily housing market fundamentals, limiting our geographic market and borrower exposures and electing the modified risk-sharing option under the Fannie Mae DUS program.

We may request modified risk-sharing based on such factors as the size of the loan, market conditions and loan pricing. Our current credit management policy is to cap the loan balance subject to full risk-sharing at $60.0 million. Accordingly, we currently elect to use modified risk-sharing for loans of more than $60.0 million in order to limit our maximum loss on any loan to $12.0 million (such exposure would occur in the event that the underlying collateral is determined to be completely without value at the time of loss). However, we occasionally elect to originate a loan with full risk sharing even when the loan balance is greater than $60.0 million if we believe the loan characteristics support such an approach.

A provision for risk-sharing obligations is recorded, and the allowance for risk-sharing obligations is increased, when it is probable that we have incurred risk-sharing obligations. We regularly monitor the credit quality of all loans for which we have a risk-sharing obligation. Loans with indicators of underperforming credit are placed on watch lists, assigned a numerical risk rating based on our assessment of the relative credit weakness, and subjected to additional evaluation or loss mitigation. Indicators of underperforming credit include poor financial performance, poor physical condition, and delinquency.

The provisions have been primarily for Fannie Mae loans with full risk-sharing. The amount of the provision considers our assessment of the likelihood of payment by the borrower, the value of the underlying collateral and the level of risk-sharing. Historically, the loss recognition occurs at or before the loan becoming 60 days delinquent. Our estimates of value are determined considering broker opinions and other sources of market value information relevant to underlying property and collateral. Risk-sharing obligations are written off against the allowance at final settlement with Fannie Mae.

As of March 31, 2015, $22.5 million of our at risk balances was more than 60 days delinquent, while none of our at risk balances was more than 60 days delinquent as of March 31, 2014. For the three months ended March 31, 2015, the provision for risk-sharing obligations was $0.2 million, or less than one basis point of the at risk balance, compared to a net benefit of $0.3 million, or less than one basis point of the at risk balance, for the three months ended March 31, 2014.

As of March 31, 2015 and 2014, our allowance for risk-sharing obligations was $4.1 million and $5.7 million, respectively, or 2 basis points and 4 basis points of the at risk balance, respectively. Our risk-sharing obligation with Fannie Mae requires, in the event of delinquency or default, that we advance principal and interest payments to Fannie Mae on behalf of the borrower. Advances made by us are used to reduce the proceeds required to settle any ultimate loss incurred. As of March 31, 2015, we had advanced $0.4 million of principal and interest payments on the loans associated with our $4.1 million allowance. Accordingly, if the $4.1 million in estimated losses is ultimately realized, we would be required to fund an additional $3.7 million. As of March 31, 2014, we had advanced $1.1 million of principal and interest payments on the loans associated with our $5.7 million allowance at that time.

We have never been required to repurchase a loan.

 

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Off-Balance Sheet Risk

We do not have any off-balance sheet arrangements.

New/Recent Accounting Pronouncements

In April 2015, Accounting Standards Update (“ASU”) 2015-03, Simplifying the Presentation of Debt Issuance Costs , was issued. ASU 2015-03 requires that debt issuance costs related to a note be presented in the balance sheet as a direct deduction from the face amount of that note. Current GAAP requires that debt issuance costs be presented as an asset. The ASU is effective for us for the annual and interim periods beginning January 1, 2016, with early adoption permitted and full retrospective application required. ASU 2015-03 would reduce the March 31, 2015 balances of Other assets by $3.9 million, Warehouse notes payable by $0.7 million, and Note payable by $3.2 million. We expect a similar impact upon adoption.

In April 2015, ASU 2015-05, Customer’s Accounting for Fees Paid in a Cloud Computing Arrangement , was issued. ASU 2015-05 provides entities with guidance on determining whether a cloud computing arrangement contains a software license that should be accounted for as internal-use software. ASU 2015-05 is effective for the annual and interim periods beginning January 1, 2016, with early adoption permitted. Entities may select retrospective or prospective adoption of ASU 2015-05. We are still in the process of determining what impact, if any, the adoption of ASU 2015-05 will have on our financial statements and which adoption method we will select.

Item 3. Quantitative and Qualitative Disclosure About Market Risk

We are not currently exposed to interest rate risk during the loan commitment, closing and delivery process. The sale or placement of each loan to an investor is negotiated prior to closing on the loan with the borrower, and the sale or placement is typically effectuated within 60 days of closing. The coupon rate for the loan is set after we have established the interest rate with the investor.

Some of our assets and liabilities are subject to changes in interest rates. Earnings from escrows are generally based on LIBOR. 30-day LIBOR as of March 31, 2015 and 2014 was 18 basis points and 15 basis points, respectively. A 100 basis point increase in the 30-day LIBOR would increase our annual earnings by approximately $9.9 million based on our escrow balance as of March 31, 2015 compared to $7.6 million based on our escrow balance as of March 31, 2014. A decrease in 30-day LIBOR to zero would decrease our annual earnings by approximately $1.7 million based on the escrow balance as of March 31, 2015 compared to $1.1 million based on our escrow balance as of March 31, 2014.

The borrowing cost of our warehouse facilities used to fund loans held for sale and loans held for investment is based on LIBOR. The interest income on our loans held for investment is based on LIBOR. The LIBOR reset date for loans held for investment is the same date as the LIBOR reset date for the corresponding warehouse facility. A 100 basis point increase in 30-day LIBOR would decrease our annual net warehouse interest income by approximately $1.5 million based on our outstanding warehouse balance as of March 31, 2015 compared to $0.7 million based on our outstanding warehouse balance as of March 31, 2014. A decrease in 30-day LIBOR to zero would increase our annual earnings by approximately $0.3 million based on our outstanding warehouse balance as of March 31, 2015 compared to $0.1 million as of March 31, 2014.

All of our corporate debt is based on 30-day LIBOR. A 100 basis point increase in 30-day LIBOR would decrease our annual earnings by approximately $0.3 million based on our outstanding corporate debt as of March 31, 2015 compared to $0.3 million based on our outstanding corporate debt as of March 31, 2014. A decrease in 30-day LIBOR to zero would not have an impact on our 2015 annual earnings as our corporate debt outstanding as of March 31, 2015 had a LIBOR floor of 100 bps. A decrease in the average 30-day LIBOR to zero would not have an impact on our 2014 annual earnings either for the same reason.

The fair value of our MSRs is subject to market risk. A 100 basis point increase or decrease in the weighted average discount rate would decrease or increase, respectively, the fair value of our MSRs by approximately $16.1 million as of March 31, 2015, compared to $13.0 million as of March 31, 2014. Our Fannie Mae and Freddie Mac servicing engagements provide for make-whole payments in the event of a voluntary prepayment prior to the expiration of the prepayment protection period. Our servicing contracts with institutional investors and HUD do not require payment of a make-whole amount. As of March 31, 2015 and 2014, 84% of the servicing fees are protected from the risk of prepayment through make-whole requirements; given this significant level of prepayment protection, we do not hedge our servicing portfolio for prepayment risk.

Item 4. Controls and Procedures

As of the end of the period covered by this report, an evaluation was performed under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures pursuant to Exchange Act Rule 13a-15(e) and 15d-15(e). Based on that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that the design and operation of these disclosure controls and procedures were effective. There have been no changes in our internal controls over financial reporting in the last fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal controls over financial reporting.

 

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PART II

OTHER INFORMATION

Item 1. Legal Proceedings

Capital Funding Litigation —On February 17, 2010, Capital Funding Group, Inc. (“Capital Funding”) filed a lawsuit in the Circuit Court for Montgomery County, Maryland against Walker & Dunlop, LLC, our wholly owned operating subsidiary, for alleged breach of contract, unjust enrichment and unfair competition arising out of an alleged agreement that Capital Funding had with Column Guaranteed, LLC (“Column”) to refinance a large portfolio of senior healthcare facilities located throughout the United States. Capital Funding further alleged that Walker & Dunlop, LLC, as the alleged successor by merger to Column, is bound by Column’s alleged agreement with Capital Funding. On November 17, 2010, Capital Funding filed an amended complaint adding Credit Suisse Securities (USA) LLC and its affiliates Column and Column Financial, Inc. as defendants. In December 2010, Column assumed the defense of the Company pursuant to an indemnification agreement. Capital Funding sought damages in excess of $30.0 million on each of the three claims, and an unspecified amount of damages on a separate claim for unfair competition against Walker & Dunlop, LLC. Capital Funding also sought injunctive relief in connection with its unjust enrichment and unfair competition claims.

On July 19, 2011, the Circuit Court for Montgomery County, Maryland issued an order granting the defendants’ motion to dismiss the case, without prejudice. After the initial case was dismissed without prejudice, Capital Funding filed an amended complaint. In November 2011, the Circuit Court for Montgomery County, Maryland rejected the defendants’ motion to dismiss the amended complaint. Capital Funding filed a Second Amended Complaint that did not alter the claims at issue but revised their alleged damages. Defendants moved for summary judgment on all claims, including two counts of breach of contract, two counts of promissory estoppel, two counts of unjust enrichment, and two counts of unfair competition. On April 30, 2013, the Court issued an Opinion and Order which granted the motion to dismiss as to the promissory estoppel counts and one count of unjust enrichment. The Court denied the motion as to all remaining claims.

A two-week jury trial was held in July 2013. In the course of the trial, all but two of Capital Funding’s claims were dismissed. The jury awarded Capital Funding (i) a $1.8 million judgment against defendants on Capital Funding’s breach of contract claim and (ii) a $10.4 million judgment against Credit Suisse Securities (USA) LLC (“Credit Suisse”), Column’s parent, on Capital Funding’s unjust enrichment claim. Because the two claims arise from the same facts, Capital Funding agreed it may only collect on one of the judgments; following the verdict, Capital Funding “elected” to collect the $10.4 million judgment against Credit Suisse. The defendants filed a post judgment motion to reduce or set aside the judgment. On January 31, 2014 the Court ruled that the $10.4 million unjust enrichment judgment is vacated, and awarded Capital Funding the $1.8 million breach of contract judgment. On February 10, 2014, Capital Funding filed a motion with the Court seeking a new trial. On March 13, 2014, the Court denied Capital Funding’s motion for a new trial. Capital Funding filed an appeal with Maryland’s Court of Special Appeals, which was heard on December 10, 2014. We are awaiting a ruling on the appeal. As a result of an indemnification arrangement with Column, our loss exposure is limited to $3.0 million, and we believe that the indemnification fully covers the $1.8 million judgment.

CA Funds Group Litigation —In March 2012, our wholly owned operating subsidiary, Walker & Dunlop Investment Advisory Services, LLC (“IA Services”) engaged CA Funds Group, Inc. (“CAFG”) to provide, among other things, consulting services in connection with expanding our investment advisory services business. The engagement letter was supplemented in June 2012 to retain CAFG to engage in certain capital raising activities, primarily with respect to a potential commingled, open-ended Fund (“Fund”). The Fund was never launched by us. However, we independently formed a large loan bridge program (the “Bridge Program”), which is focused primarily on making floating-rate loans of up to three years of $25.0 million or more to experienced owners of multifamily properties. CAFG filed a breach of contract action captioned CA Funds Group, Inc. v. Walker & Dunlop Investment Advisory Services, LLC and Walker & Dunlop, LLC in the United States District Court for the Northern District of Illinois, Eastern Division, seeking a placement fee in the amount of $5.1 million (plus interest and the costs of the suit) based upon the $380.0 million allegedly obtained for the Bridge Program. We filed a motion to dismiss the complaint on January 3, 2014, CAFG filed a response to the motion on January 31, 2014, and on March 21, 2014, the Court denied our motion to dismiss the complaint. Discovery has concluded. We intend to vigorously defend the matter and to file a motion for summary judgment.

We cannot predict the outcome of any pending litigation and may be subject to consequences that could include fines, penalties and other costs, and our reputation and business may be impacted. Our management believes that any liability that could be imposed on us in connection with the disposition of any pending lawsuits would not have a material adverse effect on our business, results of operations, liquidity or financial condition.

In the normal course of business, we may be party to various other claims and litigation, none of which we believe is material.

Item 1A. Risk Factors

We have included in Part I, Item 1A of our 2014 Form 10-K descriptions of certain risks and uncertainties that could affect our business, future performance or financial condition (the “Risk Factors”). There have been no material changes from the disclosures provided in the 2014 Form 10-K with respect to the Risk Factors. Investors should consider the Risk Factors prior to making an investment decision with respect to the Company’s stock.

 

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Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

Issuer Purchases of Equity Securities

Under the 2010 Equity Incentive Plan, subject to the Company’s approval, grantees have the option of electing to satisfy minimum tax withholding obligations at the time of vesting or exercise by allowing us to withhold and purchase the shares of stock otherwise issuable to the grantee. During the quarter ended March 31, 2015, we repurchased and retired 58 thousand shares of restricted stock at market prices, upon grantee vesting. During the quarter ended March 31, 2015, we also repurchased 3.0 million shares of our common stock at a price of $15.60 per share, which was below the market price at the time, and immediately retired the shares. The following table provides information regarding common stock repurchases for the quarter ended March 31, 2015:

 

Period

   Total Number of
Shares
Purchased
     Average Price
Paid per Share
     Total Number of
Shares Purchased
as Part of Publicly
Announced Plans or
Programs
     Maximum Number
(or Approximate
Dollar Value) of
Shares that May Yet
Be Purchased

January 1-31, 2015

     10,810      $ 16.39        10,810      N/A

February 1-28, 2015

     47,587        16.72        47,587      N/A

March 1-31, 2015

     3,000,000        15.60        —        N/A
  

 

 

       

 

 

    
  3,058,397     58,397  
  

 

 

       

 

 

    

Item 3. Defaults Upon Senior Securities

None.

Item 4. Mine Safety Disclosures

Not applicable.

Item 5. Other Information

On May 5, 2015, amendments to our Amended and Restated Bylaws (the “Bylaws”) became effective. The Bylaws were amended to delete provisions that were added on September 4, 2012, in connection with our acquisition of CWCapital LLC. The provisions deleted consisted of (i) paragraph 4 in Article II, Section 10, to exempt any acquisitions of shares of our common stock issued to CW Financial Services LLC in connection with the acquisition of CWCapital LLC from the Maryland Control Share Acquisition Act, and (ii) Article III, Section 16, wherein we renounced any interest or expectancy in certain corporate opportunities in which Fortress Investment Group LLC (“Fortress”) and certain persons affiliated with Fortress participate or desire to seek to participate.

A copy of the Bylaws is filed as Exhibit 3.2 to this Quarterly Report on Form 10-Q and incorporated herein by reference. The description of the Bylaws in this Item 5 is qualified in its entirety by reference to Exhibit 3.2.

Item 6. Exhibits

(a) Exhibits:

 

2.1

Contribution Agreement, dated as of October 29, 2010, by and among Mallory Walker, Howard W. Smith, William M. Walker, Taylor Walker, Richard C. Warner, Donna Mighty, Michael Yavinsky, Edward B. Hermes, Deborah A. Wilson and Walker & Dunlop, Inc. (incorporated by reference to Exhibit 2.1 to Amendment No. 4 to the Company’s Registration Statement on Form S-1 (File No. 333-168535) filed on December 1, 2010)

2.2

Contribution Agreement, dated as of October 29, 2010, between Column Guaranteed LLC and Walker & Dunlop, Inc. (incorporated by reference to Exhibit 2.2 to Amendment No. 4 to the Company’s Registration Statement on Form S-1 (File No. 333-168535) filed on December 1, 2010)

2.3

Amendment No. 1 to Contribution Agreement, dated as of December 13, 2010, by and between Walker & Dunlop, Inc. and Column Guaranteed LLC. (incorporated by reference to Exhibit 2.3 to Amendment No. 6 to the Company’s Registration Statement on Form S-1 (File No. 333-168535) filed on December 13, 2010)

2.4

Purchase Agreement, dated June 7, 2012, by and among Walker & Dunlop, Inc., Walker & Dunlop, LLC, CW Financial Services LLC and CWCapital LLC (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on June 15, 2012)

 

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    3.1

Articles of Amendment and Restatement of Walker & Dunlop, Inc. (incorporated by reference to Exhibit 3.1 to Amendment No. 4 to the Company’s Registration Statement on Form S-1 (File No. 333-168535) filed on December 1, 2010)

    3.2*

Amended and Restated Bylaws of Walker & Dunlop, Inc.

    4.1

Specimen Common Stock Certificate of Walker & Dunlop, Inc. (incorporated by reference to Exhibit 4.1 to Amendment No. 2 to the Company’s Registration Statement on Form S-1 (File No. 333-168535) filed on September 30, 2010)

    4.2

Registration Rights Agreement, dated December 20, 2010, by and among Walker & Dunlop, Inc. and Mallory Walker, Taylor Walker, William M. Walker, Howard W. Smith, III, Richard C. Warner, Donna Mighty, Michael Yavinsky, Ted Hermes, Deborah A. Wilson and Column Guaranteed LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 20, 2010)

    4.3

Stockholders Agreement, dated December 20, 2010, by and among William M. Walker, Mallory Walker, Column Guaranteed LLC and Walker & Dunlop, Inc. (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on December 27, 2010)

    4.4

Piggy Back Registration Rights Agreement, dated June 7, 2012, by and among Column Guaranteed, LLC, William M. Walker, Mallory Walker, Howard W. Smith, III, Deborah A. Wilson, Richard C. Warner, CW Financial Services LLC and Walker & Dunlop, Inc. (incorporated by reference to Exhibit 4.3 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2012)

    4.5

Voting Agreement, dated as of June 7, 2012, by and among Walker & Dunlop, Inc., Mallory Walker, William M. Walker, Richard Warner, Deborah Wilson, Richard M. Lucas, and Howard W. Smith, III, and CW Financial Services LLC (incorporated by reference to Annex C of the Company’s proxy statement filed on July 26, 2012)

    4.6

Voting Agreement, dated as of June 7, 2012, by and among Walker & Dunlop, Inc., Walker & Dunlop, LLC, Column Guaranteed, LLC and CW Financial Services LLC (incorporated by reference to Annex D of the Company’s proxy statement filed on July 26, 2012)

  10.1†*

Management Deferred Stock Unit Purchase Plan, as amended

  10.2†*

Form of Deferred Stock Unit Award Agreement (Purchase Plan, as amended)

  10.3†*

Amendment to Restricted Stock Award Agreement (Employee) (2010 Equity Incentive Plan)

  10.4†*

Amendment to Restricted Stock Award Agreement (Director) (2010 Equity Incentive Plan)

  10.5†*

Form of Amendment to Deferred Stock Unit Award Agreement (Purchase Plan)

  10.6

First Amendment to Credit Agreement, dated as of March 10, 2015, by and between Walker & Dunlop, Inc., certain subsidiary guarantors, the lenders party thereto, and Wells Fargo Bank, National Association, as Administrative Agent (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on March 12, 2015)

  10.7

Temporary Commitment Increase Agreement, dated as of March 25, 2015, by and between Walker & Dunlop, LLC, as borrower, and Bank of America, N.A., as credit agent and lender (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on March 30, 2015)

  31.1*

Certification of Walker & Dunlop, Inc.‘s Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

  31.2*

Certification of Walker & Dunlop, Inc.‘s Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

  32*

Certification of Walker & Dunlop, Inc.‘s Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

101.1*

XBRL Instance Document

101.2*

XBRL Taxonomy Extension Schema Document

101.3*

XBRL Taxonomy Extension Calculation Linkbase Document

101.4*

XBRL Taxonomy Extension Definition Linkbase Document

101.5*

XBRL Taxonomy Extension Label Linkbase Document

101.6*

XBRL Taxonomy Extension Presentation Linkbase Document

 

†: Denotes a management contract or compensation plan, contract, or arrangement.
*: Filed herewith.

 

36


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.

 

Date: May 6, 2015 By:

/s/ William M. Walker

William M. Walker
Chairman and Chief Executive Officer
By:

/s/ Stephen P. Theobald

Stephen P. Theobald

Executive Vice President, Chief Financial Officer

and Treasurer

 

37


Exhibit Index

 

    2.1

Contribution Agreement, dated as of October 29, 2010, by and among Mallory Walker, Howard W. Smith, William M. Walker, Taylor Walker, Richard C. Warner, Donna Mighty, Michael Yavinsky, Edward B. Hermes, Deborah A. Wilson and Walker & Dunlop, Inc. (incorporated by reference to Exhibit 2.1 to Amendment No. 4 to the Company’s Registration Statement on Form S-1 (File No. 333-168535) filed on December 1, 2010)

    2.2

Contribution Agreement, dated as of October 29, 2010, between Column Guaranteed LLC and Walker & Dunlop, Inc. (incorporated by reference to Exhibit 2.2 to Amendment No. 4 to the Company’s Registration Statement on Form S-1 (File No. 333-168535) filed on December 1, 2010)

    2.3

Amendment No. 1 to Contribution Agreement, dated as of December 13, 2010, by and between Walker & Dunlop, Inc. and Column Guaranteed LLC. (incorporated by reference to Exhibit 2.3 to Amendment No. 6 to the Company’s Registration Statement on Form S-1 (File No. 333-168535) filed on December 13, 2010)

    2.4

Purchase Agreement, dated June 7, 2012, by and among Walker & Dunlop, Inc., Walker & Dunlop, LLC, CW Financial Services LLC and CWCapital LLC (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on June 15, 2012)

    3.1

Articles of Amendment and Restatement of Walker & Dunlop, Inc. (incorporated by reference to Exhibit 3.1 to Amendment No. 4 to the Company’s Registration Statement on Form S-1 (File No. 333-168535) filed on December 1, 2010)

    3.2*

Amended and Restated Bylaws of Walker & Dunlop, Inc.

    4.1

Specimen Common Stock Certificate of Walker & Dunlop, Inc. (incorporated by reference to Exhibit 4.1 to Amendment No. 2 to the Company’s Registration Statement on Form S-1 (File No. 333-168535) filed on September 30, 2010)

    4.2

Registration Rights Agreement, dated December 20, 2010, by and among Walker & Dunlop, Inc. and Mallory Walker, Taylor Walker, William M. Walker, Howard W. Smith, III, Richard C. Warner, Donna Mighty, Michael Yavinsky, Ted Hermes, Deborah A. Wilson and Column Guaranteed LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 20, 2010)

    4.3

Stockholders Agreement, dated December 20, 2010, by and among William M. Walker, Mallory Walker, Column Guaranteed LLC and Walker & Dunlop, Inc. (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on December 27, 2010)

    4.4

Piggy Back Registration Rights Agreement, dated June 7, 2012, by and among Column Guaranteed, LLC, William M. Walker, Mallory Walker, Howard W. Smith, III, Deborah A. Wilson, Richard C. Warner, CW Financial Services LLC and Walker & Dunlop, Inc. (incorporated by reference to Exhibit 4.3 to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2012)

    4.5

Voting Agreement, dated as of June 7, 2012, by and among Walker & Dunlop, Inc., Mallory Walker, William M. Walker, Richard Warner, Deborah Wilson, Richard M. Lucas, and Howard W. Smith, III, and CW Financial Services LLC (incorporated by reference to Annex C of the Company’s proxy statement filed on July 26, 2012)

    4.6

Voting Agreement, dated as of June 7, 2012, by and among Walker & Dunlop, Inc., Walker & Dunlop, LLC, Column Guaranteed, LLC and CW Financial Services LLC (incorporated by reference to Annex D of the Company’s proxy statement filed on July 26, 2012)

  10.1†*

Management Deferred Stock Unit Purchase Plan, as amended

  10.2†*

Form of Deferred Stock Unit Award Agreement (Purchase Plan, as amended)

  10.3†*

Amendment to Restricted Stock Award Agreement (Employee) (2010 Equity Incentive Plan)

  10.4†*

Amendment to Restricted Stock Award Agreement (Director) (2010 Equity Incentive Plan)

  10.5†*

Form of Amendment to Deferred Stock Unit Award Agreement (Purchase Plan)

  10.6

First Amendment to Credit Agreement, dated as of March 10, 2015, by and between Walker & Dunlop, Inc., certain subsidiary guarantors, the lenders party thereto, and Wells Fargo Bank, National Association, as Administrative Agent (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on March 12, 2015)

  10.7

Temporary Commitment Increase Agreement, dated as of March 25, 2015, by and between Walker & Dunlop, LLC, as borrower, and Bank of America, N.A., as credit agent and lender (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on March 30, 2015)

  31.1*

Certification of Walker & Dunlop, Inc.‘s Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

  31.2*

Certification of Walker & Dunlop, Inc.‘s Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

  32*

Certification of Walker & Dunlop, Inc.‘s Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

101.1*

XBRL Instance Document

101.2*

XBRL Taxonomy Extension Schema Document

101.3*

XBRL Taxonomy Extension Calculation Linkbase Document

101.4*

XBRL Taxonomy Extension Definition Linkbase Document

101.5*

XBRL Taxonomy Extension Label Linkbase Document

101.6*

XBRL Taxonomy Extension Presentation Linkbase Document

 

†: Denotes a management contract or compensation plan, contract, or arrangement.
*: Filed herewith.

Exhibit 3.2

WALKER & DUNLOP, INC.

AMENDED AND RESTATED BYLAWS

ARTICLE I

OFFICES

Section 1. PRINCIPAL OFFICE . The principal office of Walker & Dunlop, Inc. (the “ Corporation ”) shall be located at such place or places as the board of directors (the “ Board of Directors ”) may designate.

Section 2. ADDITIONAL OFFICES . The Corporation may have additional offices at such places as the Board of Directors may from time to time determine or the business of the Corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1. PLACE . All meetings of stockholders shall be held at the principal office of the Corporation or at such other place within the United States as shall be set by the Board of Directors and stated in the notice of the meeting.

Section 2. ANNUAL MEETING . An annual meeting of the stockholders for the election of directors (the “ Directors ”) and the transaction of any business within the powers of the Corporation shall be held each year at a convenient location and on proper notice, on a date and at the time set by the Board of Directors, beginning with the year 2011. Failure to hold an annual meeting does not invalidate the Corporation’s existence or affect any otherwise valid acts of the Corporation.

Section 3. SPECIAL MEETINGS . The chairman of the board, the chief executive officer, the president or a majority of the Directors then in office may call special meetings of the stockholders. A special meeting of the stockholders shall be called by the secretary of the Corporation upon the written request of stockholders entitled to cast not less than a majority of all votes entitled to be cast at any such meeting. Such request shall state the purpose or purposes of the meeting and the matters proposed to be acted on at such meeting. Upon receipt of such request, the Corporation shall inform such stockholders of the reasonably estimated cost of preparing and mailing a notice of the meeting and, upon payment of such costs to the Corporation, the Corporation shall deliver such notice to each stockholder entitled to notice of such meeting. The Board of Directors shall have the sole power to fix the record date for determining stockholders entitled to request a special meeting of stockholders and the date, time and place of the special meeting; provided, however, that the date of any special meeting shall not be more than 90 days after the record date for such meeting; and provided further, that if the Board of Directors fails to designate, within 20 days after the date that a valid request for a special meeting is received by the secretary, a date and time for the special meeting, then such meeting shall be held at 2:00 p.m. local time on the 90th day after the meeting record date, or if such 90th day is not a business day, on the first preceding business day; and provided further, that in the event that the Board of Directors fails to designate a place for the special meeting, then such meeting shall be held at the principal office of the Corporation.

Section 4. NOTICE . Not less than ten nor more than 90 days before each meeting of stockholders, the secretary shall give to each stockholder entitled to vote at such meeting and to each stockholder not entitled to vote who is entitled to notice of the meeting written or printed notice stating the time and place (if any) of the meeting, the means of remote communication (if any) by which the stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting or as otherwise may be required by any statute, the purpose for which the meeting is called. Such notice shall be written and may be delivered either by mail or nationally recognized private delivery service, by presenting it to such stockholder personally, by leaving it at his or her residence or usual place of business, or by any other means permitted under Maryland law, including by transmitting it to such stockholder by electronic mail to any electronic mail address of such stockholder or through any other electronic transmission by the Corporation. If mailed, such notice shall be deemed to be given when deposited in the United States mail addressed to the stockholder at his or her post office address as it appears on the records of the Corporation, with postage thereon prepaid. If transmitted electronically, such notice shall be deemed to be given when transmitted to the stockholder by an electronic transmission to any address or number of the stockholder at which the stockholder receives electronic transmissions. The Corporation may

 

1


give a single notice to all stockholders who share an address, which single notice shall be effective as to any stockholder at such address, unless a stockholder objects to receiving such single notice or revokes a prior consent to receiving such single notice. Failure to give notice of any meeting to one or more stockholders, or any irregularity in such notice, shall not affect the validity of any meeting fixed in accordance with this Article II or the validity of any proceedings at any such meeting.

Section 5. SCOPE OF NOTICE . Subject to Section 12(a) of this Article II, any business of the Corporation may be transacted at an annual meeting of stockholders without being specifically designated in the notice, except such business as is required by any statute to be stated in such notice. No business shall be transacted at a special meeting of stockholders except as specifically designated in the notice. The Corporation may postpone or cancel a meeting of shareholders by making a public announcement (as defined in Section 12(c)(3) of this Article II) of such postponement or cancellation prior to the meeting. Notice of the date, time and place to which the meeting is postponed shall be given not less than 10 days prior to such date and otherwise in the manner set forth in this section.

Section 6. ORGANIZATION AND CONDUCT . At every meeting of the stockholders, the chairman of the board, if there be one, shall conduct the meeting or, in the case of vacancy in office or absence of the chairman of the board, one of the following officers present shall conduct the meeting in the order stated: the chief executive officer, the president, the chief operating officer, if there be one, the vice presidents in their order of rank and seniority, or, if no such officer is present, a chairman chosen by the stockholders entitled to cast a majority of the votes which all stockholders present in person or by proxy are entitled to cast. The secretary, or, in his or her absence, an assistant secretary, or in the absence of both the secretary and assistant secretaries, a person appointed by the chairman, shall act as secretary.

The order of business and all other matters of procedure at any meeting of stockholders shall be determined by the chairman of the meeting. The chairman of the meeting may prescribe such rules, regulations and procedures and take such action as, in the discretion of such chairman and without any action by the stockholders, are appropriate for the proper conduct of the meeting, including, without limitation, (a) restricting admission to the time set for the commencement of the meeting; (b) limiting attendance at the meeting to stockholders of record of the Corporation, their duly authorized proxies or other such persons as the chairman of the meeting may determine; (c) limiting participation at the meeting on any matter to stockholders of record of the Corporation entitled to vote on such matter, their duly authorized proxies or other such persons as the chairman of the meeting may determine; (d) limiting the time allotted to questions or comments by participants; (e) maintaining order and security at the meeting; (f) removing any stockholder or any other person who refuses to comply with meeting procedures, rules or guidelines as set forth by the chairman of the meeting; (g) determining when and for how long the polls should be open and closed; (h) recessing or adjourning the meeting to a later date and time and place announced at the meeting; (i) concluding a meeting; and (j) complying with any state and local laws and regulations concerning safety and security. Unless otherwise determined by the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

Section 7. QUORUM . At any meeting of stockholders, the presence in person or by proxy of stockholders entitled to cast a majority of all the votes entitled to be cast at such meeting on any matter shall constitute a quorum, but this section shall not affect any requirement under any statute or under the charter of the Corporation for the vote necessary for the adoption of any measure. If, however, such quorum shall not be present at any meeting of the stockholders, the stockholders entitled to vote at such meeting, present in person or by proxy, shall have the power to adjourn the meeting from time to time to a date not more than 120 days after the original record date without a new record date and without notice other than announcement at the meeting. At such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally notified.

The stockholders present either in person or by proxy, at a meeting which has been duly called and at which a quorum was established, may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.

Section 8. VOTING . A plurality of all the votes cast at a meeting of stockholders duly called and at which a quorum is present shall be sufficient to elect a Director. Each share of stock may be voted for as many individuals as there are Directors to be elected and for whose election the share of stock is entitled to be voted, without any right to cumulate votes. A majority of the votes cast at a meeting of stockholders duly called and at which a quorum is present shall be sufficient to approve any other matter which may properly come before the meeting, unless a different proportion of the votes cast or entitled to be cast is required herein or by statute or by the charter of the Corporation. Unless otherwise provided in the charter of the Corporation, each outstanding share of stock, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of stockholders. Voting on any question or in any election may be by voice unless the presiding officer shall order that voting be by ballot.

 

2


Section 9. PROXIES . A stockholder may cast the votes entitled to be cast by the shares of stock owned of record by the stockholder in person or by proxy executed by the stockholder or by the stockholder’s duly authorized agent in any manner permitted by law. Such proxy or evidence of authorization of such proxy shall be filed with the secretary of the Corporation before or at the meeting. No proxy shall be valid more than eleven months after its date unless otherwise provided in the proxy.

Section 10. VOTING OF STOCK BY CERTAIN HOLDERS . Shares of stock of the Corporation registered in the name of a corporation, partnership, limited liability company, corporation or other entity, if entitled to be voted, may be voted by the president or a vice president, a general partner, manager or director thereof, as the case may be, or a proxy appointed by any of the foregoing individuals, unless some other person (1) has been appointed to vote such shares pursuant to a bylaw or a resolution of the governing board of such corporation or other entity or pursuant to an agreement of the partners of the partnership or of the members of the limited liability company, and (2) presents a certified copy of such bylaw, resolution or agreement, in which case such person may vote such shares. Any director or other fiduciary may vote shares of stock registered in his or her name as such fiduciary, either in person or by proxy.

Shares of stock of the Corporation directly or indirectly owned by it shall not be voted at any meeting and shall not be counted in determining the total number of outstanding shares entitled to be voted at any given time, unless they are held in a fiduciary capacity, in which case they may be voted and shall be counted in determining the total number of outstanding shares at any given time.

The Board of Directors may adopt by resolution a procedure by which a stockholder may certify in writing to the Corporation that any shares of stock registered in the name of the stockholder are held for the account of a specified person other than the stockholder. The resolution shall set forth the class of stockholders who may make the certification, the purpose for which the certification may be made, the form of certification and the information to be contained in it; if the certification is with respect to a record date or closing of the share transfer books, the time after the record date or closing of the stock transfer books within which the certification must be received by the Corporation; and any other provisions with respect to the procedure which the Board of Directors considers necessary or desirable. On receipt of such certification, the person specified in the certification shall be regarded as, for the purposes set forth in the certification, the stockholder of record of the specified shares in place of the stockholder who makes the certification.

Section 11. INSPECTORS . At any meeting of stockholders, the chairman of the meeting may, or upon the request of any stockholder shall, appoint one or more persons as inspectors for such meeting. Such inspectors shall ascertain and report the number of shares of stock represented at the meeting based upon their determination of the validity and effect of proxies, count all votes, report the results, hear and determine all challenges and questions arising in connection with the right to vote and perform such other acts as are proper to conduct the election and voting with impartiality and fairness to all the stockholders. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the Board of Directors in advance of the meeting or at the meeting by the chairman of the meeting.

Each report of an inspector shall be in writing and signed by him or her or by a majority of them if there is more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors. The report of the inspector or inspectors on the number of shares represented at the meeting and the results of the voting shall be prima facie evidence thereof.

Section 12. ADVANCE NOTICE OF STOCKHOLDER NOMINEES FOR DIRECTOR AND OTHER PROPOSALS BY STOCKHOLDERS .

(a) Annual Meetings of Stockholders .

(1) Nominations of individuals for election to the Board of Directors and the proposal of business other than nominations of Directors to be considered by the stockholders at an annual meeting of stockholders shall be made: (i) pursuant to the notice of the meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (ii) otherwise by or at the direction of the Board of Directors or (iii) by a stockholder of the Corporation who was a stockholder of record both at the time of giving of notice of the meeting and at the time of the annual meeting, who is entitled to vote at

 

3


the meeting in the election of directors or on the proposal of other business, as the case may be, and who complied with the notice procedures set forth in Sections 12(a)(2), (4) and (5), in the case of nominations of Directors, and Sections 12(a)(3) and (4), in the case of business other than the nomination of Directors.

(2) For nominations to be properly brought before an annual meeting by a stockholder pursuant to Section 12(a)(1)(iii), the stockholder must have given timely notice thereof in writing to the secretary of the Corporation (the “ Stockholder Notice ”) containing the information specified in this Section 12(a)(2). To be timely, such Stockholder Notice shall be delivered to the secretary at the principal executive offices of the Corporation not later than 5:00 p.m., Eastern Time, on the 120th day prior to the first anniversary of the date of the proxy statement for the preceding year’s annual meeting nor earlier than the 150th day prior to the first anniversary of the date of the proxy statement for the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced or delayed by more than 30 days from the first anniversary of the date of the preceding year’s annual meeting, such Stockholder Notice to be timely must be so delivered not earlier than the 150th day prior to such annual meeting and not later than 5:00 p.m., Eastern Time, on the later of the 120th day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made. Such Stockholder Notice shall set forth: (i) as to each person whom the stockholder proposes to nominate for election or reelection as a Director, (A) a description of all agreements, arrangements or understandings between such stockholder and such beneficial owner (if any) on whose behalf the nomination is made, on the one hand, and such potential nominee and any other person or persons (naming such person or persons), on the other hand, pursuant to which the nomination is to be made by such stockholder, and (B) all other information relating to such potential nominee that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), including such person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; and (ii) as to the stockholder giving such Stockholder Notice and the beneficial owner (if any) on whose behalf the nomination is made, the additional information specified in Section 12(a)(4) below.

(3) For business other than the nomination of Directors to be properly brought before an annual meeting by a stockholder pursuant to Section 12(a)(1)(iii), the stockholder must have given a timely Stockholder Notice in writing to the secretary of the Corporation containing the information specified in this Section 12(a)(3). To be timely, such Stockholder Notice shall be delivered to the secretary at the principal executive offices of the Corporation not later than 5:00 p.m., Eastern Time, on the 120th day prior to the first anniversary of the date of the proxy statement for the preceding year’s annual meeting nor earlier than the 150th day prior to the first anniversary of the date of the proxy statement for the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced or delayed by more than 30 days from the first anniversary of the date of the preceding year’s annual meeting, such Stockholder Notice to be timely must be so delivered not earlier than the 150th day prior to such annual meeting and not later than 5:00 p.m., Eastern Time, on the later of the 120th day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made. Such Stockholder Notice shall set forth: (i) a brief description of the business desired to be brought before the meeting (including the complete text of any proposed resolutions or proposed amendments to these Bylaws or other governing documents of the Corporation), the reasons for conducting such business at the meeting, a brief written statement of the reasons why the stockholder and the beneficial owner (if any) on whose behalf the proposal is made support such business, and any material interest in such business of such stockholder and of such beneficial owner (if any); (ii) a description of any agreement, arrangement or understanding with respect to such business between or among the stockholder and the beneficial owner (if any) on whose behalf the proposal is made, on the one hand, and any of their respective affiliates or associates and any others (including their names) acting in concert with any of the foregoing, on the other hand, and a representation that such stockholder and such beneficial owner (if any) will notify the Corporation in writing of any such agreement, arrangement or understanding in effect as of the record date for the meeting promptly following the later of the record date or the date on which public announcement of the record date is first made; and (iii) as to the stockholder giving such Stockholder Notice and the beneficial owner (if any) on whose behalf the proposal is made, the additional information specified in Section 12(a)(4) below.

(4) Each Stockholder Notice delivered pursuant to Section 12(a)(2) or Section 12(a)(3) also must contain the following information as to the stockholder giving the Stockholder Notice and the beneficial owner (if any) on whose behalf the nomination is made (in the case of Section 12(a)(2)) or the business other than the nomination of Directors is desired to be brought (in the case of Section 12(a)(3)):

 

  (A) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner (if any);

 

4


  (B) the class or series and number of shares of stock of the Corporation which are, directly or indirectly, owned beneficially and of record by such stockholder and such beneficial owner (if any), including the proportionate interest in the shares of stock of the Corporation held, directly or indirectly, by a general or limited partnership in which such stockholder or such beneficial owner (if any) is a general partner or a direct or indirect beneficial owner of an interest in a general partner, as of the date of the Stockholder Notice, and a representation that such stockholder and such beneficial owner (if any) will notify the Corporation in writing of the class or series and number of such shares (including the proportionate interest in the shares held through a general or limited partnership) owned of record and beneficially as of the record date for the meeting promptly following the later of the record date or the date on which public announcement of the record date is first made;

 

  (C) a description of any agreement, arrangement or understanding (including, without limitation, any derivative or short positions, profit interests, options, hedging transactions, and borrowed or loaned shares) that has been entered into by such stockholder and/or such beneficial owner (if any) as of the date of the Stockholder Notice, the effect or intent of which is to mitigate loss to, manage the risk or benefit of share price changes for, or increase or decrease the voting power of such stockholder or beneficial owner or any of their respective affiliates, and a representation that such stockholder and such beneficial owner (if any) will notify the Corporation in writing of any such agreement, arrangement or understanding in effect as of the record date for the meeting promptly following the later of the record date or the date on which public announcement of the record date is first made;

 

  (D) a representation that such stockholder intends to appear at the meeting in person or by proxy to make the nomination or propose the other business specified in such Stockholder Notice, as the case may be; and

 

  (E) a representation as to whether such stockholder or such beneficial owner (if any) intends, or is intended to be part of a group (within the meaning ascribed to such term under Section 13(d)(3) of the Exchange Act) that intends, (i) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding shares of stock required to elect the proposed Director nominee or to approve or adopt the other business proposal, as the case may be, and/or (ii) otherwise to solicit proxies from stockholders in support of such nominee or other business proposal, as the case may be.

(5) Notwithstanding anything to the contrary in this Section 12(a), in the event that the number of directors to be elected to the Board of Directors is increased and there is no public announcement by the Corporation of such action or specifying the size of the increased Board of Directors at least 130 days prior to the first anniversary of the date of the proxy statement for the preceding year’s annual meeting, a stockholder’s notice required by Section 12(a)(2) shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if the notice is delivered to the secretary at the principal executive offices of the Corporation not later than 5:00 p.m., Eastern Time, on the tenth day immediately following the day on which such public announcement is first made by the Corporation.

(b) Special Meetings of Stockholders . Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which Directors are to be elected only (i) pursuant to the Corporation’s notice of the meeting, (ii) by or at the direction of the Board of Directors or (iii) provided that the Board of Directors has determined that Directors shall be elected at such special meeting, by any stockholder of the Corporation who is a stockholder of record both at the time of giving of notice provided for in this Section 12(b) and at the time of the special meeting, who is entitled to vote at the meeting and who has complied with the notice procedures set forth in this Section 12(b). In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more Directors to the Board of Directors, any such stockholder may nominate a person or persons (as the case may be) for election as a Director as specified in the Corporation’s notice of meeting, if the stockholder’s notice containing the information required by paragraph (a)(2) of this Section 12 shall be delivered to the secretary at the principal executive offices of the Corporation not earlier than the 150th day prior to such special meeting and not later than 5:00 p.m.,

 

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Eastern Time, on the later of the 120th day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of a postponement or adjournment of a special meeting to a later date or time commence a new time period for the giving of a stockholder’s notice as described above.

(c) General .

(1) Upon written request by the secretary or the Board of Directors or any committee thereof, any stockholder proposing a nominee for election as a Director or any proposal for other business at a meeting of stockholders shall provide, within five business days of delivery of such request (or such other period as may be specified in such request), written verification, satisfactory to the secretary or the Board of Directors or any committee thereof, in his, her or its sole discretion, of the accuracy of any information submitted by the stockholder pursuant to this Section 12. If a stockholder fails to provide such written verification within such period, the secretary or the Board of Directors or any committee thereof may treat the information as to which written verification was requested as not having been provided in accordance with the procedures set forth in this Section 12.

(2) Only such persons who are nominated in accordance with the procedures set forth in this Section 12 shall be eligible for election by stockholders as directors, and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 12. The presiding officer of the meeting shall have the power and duty to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 12 and, if any proposed nomination or other business is not in compliance with this Section 12, to declare that such defective nomination or proposal be disregarded.

(3) For purposes of this Section 12, “public announcement” shall mean disclosure (i) in a press release reported by the Dow Jones News Service, Associated Press or comparable news service or (ii) in a document publicly filed by the Corporation with the United States Securities and Exchange Commission pursuant to the Exchange Act.

(4) Sections 12(a) and (b) shall be the exclusive means for a stockholder to make nominations or submit business before an annual meeting of the stockholders. Notwithstanding the foregoing provisions of this Section 12, a stockholder shall also comply with all applicable requirements of state law and of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 12; provided, however, that any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations or proposals as to any other business to be considered pursuant to Sections 12(a) and (b). Nothing in this Section 12 shall be deemed to affect any right of a stockholder to request inclusion of a proposal in, nor the right of the Corporation to omit a proposal from, the Corporation’s proxy statement pursuant to Rule 14a-8, or any successor provision, under the Exchange Act.

Section 13. TELEPHONE MEETINGS . The Board of Directors or the chairman of the meeting may permit stockholders to participate in a meeting by means of a conference telephone or other communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence in person at the meeting.

Section 14. INFORMAL ACTION BY STOCKHOLDERS . Any action required or permitted to be taken at a meeting of the stockholders may be taken without a meeting if a unanimous consent which sets forth the action is given in writing or by electronic transmission by each stockholder entitled to vote on the matter and is filed with the records of the stockholders meetings.

ARTICLE III

DIRECTORS

Section 1. GENERAL POWERS . The business and affairs of the Corporation shall be managed under the direction of its Board of Directors. In case of failure to elect Directors at an annual meeting of the shareholders, the Directors holding over shall continue to direct the management of the business and affairs of the Corporation until their successors are elected and qualify.

 

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Section 2. NUMBER, ELECTION, AND QUALIFICATIONS . At any regular meeting or at any special meeting called for that purpose, a majority of the entire Board of Directors may establish, increase or decrease the number of Directors; provided, that the number thereof shall never be fewer than the minimum number required by the Maryland General Corporation Law (the “ MGCL ”), nor more than 15; and further provided, that the tenure of office of a Director shall not be affected by any decrease in the number of directors. Unless otherwise provided in the charter of the Corporation or these Bylaws, the Directors shall be elected at the annual meeting of the stockholders, and each Director shall be elected to serve until the next annual meeting of the stockholders and until his or her successor is elected and qualifies or until his or her earlier death, resignation or removal. At least a majority of the Board of Directors shall be directors whom the Board of Directors has determined are independent under the standards established by the Board of Directors and in accordance with the then applicable listing requirements of the New York Stock Exchange. A Director shall be an individual at least 21 years of age who is not under legal disability. The third sentence of this Article III, Section 2 shall be effective from and after the commencement of trading of securities of the Corporation on the New York Stock Exchange, and not prior thereto.

Section 3. ANNUAL AND REGULAR MEETINGS . An annual meeting of the Board of Directors shall be held immediately after and at the same place as the annual meeting of stockholders, no notice other than this Bylaw being necessary. The Board of Directors may provide, by resolution, the time and place, either within or without the State of Maryland, for the holding of regular meetings of the Board of Directors without other notice than such resolution.

Section 4. SPECIAL MEETINGS . Special meetings of the Board of Directors may be called by or at the request of the chairman of the board, the chief executive officer or the president or by a majority of the Directors then in office. The person or persons authorized to call special meetings of the Board of Directors may fix any place, either within or without the State of Maryland, as the place for holding any special meeting of the Board of Directors called by them. The Board of Directors may provide, by resolution, the time and place for the holding of special meetings of the Board of Directors without other notice than such resolution.

Section 5. NOTICE . Notice of any special meeting of the Board of Directors shall be delivered personally or by telephone, electronic mail, facsimile transmission, U.S. mail or courier to each Director at his or her business or residence address or by any other means permitted under Maryland law. Notice by personal delivery, telephone, electronic mail or facsimile transmission shall be given at least 24 hours prior to the meeting. Notice by U.S. mail shall be given at least five days prior to the meeting. Notice by courier shall be given at least two days prior to the meeting. Telephone notice shall be deemed to be given when the Director or his or her agent is personally given such notice in a telephone call to which the Director or his or her agent is a party. Electronic mail notice shall be deemed to be given upon transmission of the message to the electronic mail address given to the Corporation by the director. Facsimile transmission notice shall be deemed to be given upon completion of the transmission of the message to the number given to the Corporation by the director and receipt of a completed answer-back indicating receipt. Notice by U.S. mail shall be deemed to be given when deposited in the U.S. mail properly addressed, with postage thereon prepaid. Notice by courier shall be deemed to be given when deposited with or delivered to a courier properly addressed. Neither the business to be transacted at, nor the purpose of, any annual, regular or special meeting of the Board of Directors need be stated in the notice, unless specifically required by statute or these Bylaws.

Section 6. QUORUM . A majority of the Board of Directors shall constitute a quorum for transaction of business at any meeting of the Board of Directors, provided that, if less than a majority of such Directors are present at said meeting, a majority of the Directors present may adjourn the meeting from time to time without further notice, and provided further that if, pursuant to applicable law, the charter of the Corporation or these Bylaws, the vote of a majority or other proportion of a particular group of Directors is required for action, a quorum must also include a majority of such group.

The Directors present at a meeting which has been duly called and at which a quorum was established may continue to transact business until adjournment, notwithstanding the withdrawal from the meeting of enough Directors to leave less than a quorum.

Section 7. VOTING . The action of a majority of the Directors present at a meeting at which a quorum is present shall be the action of the Board of Directors, unless the concurrence of a greater proportion is required for such action by applicable law, the charter of the Corporation or these Bylaws. If enough Directors have withdrawn from a meeting to leave less than a quorum but the meeting is not adjourned, the action of the majority of that number of Directors necessary to constitute a quorum at such meeting shall be the action of the Board of Directors, unless the concurrence of a greater proportion is required for such action by applicable law, the charter of the Corporation or these Bylaws.

 

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Section 8. TELEPHONE MEETINGS . Directors may participate in a meeting by means of a conference telephone or other communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence in person at the meeting.

Section 9. INFORMAL ACTION BY DIRECTORS . Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting, if a consent in writing to such action is signed or submitted by electronic transmission to the Corporation by each Director and such written consent is filed with the minutes of proceedings of the Board of Directors.

Section 10. ORGANIZATION . At each meeting of the Board of Directors, the chairman of the board or, in the absence of the chairman of the board, the vice chairman, if any, of the Board of Directors, or, in the absence of both the chairman and the vice chairman, if any, the chief executive officer or, in the absence of the chief executive officer, the president or, in the absence of the president, a Director chosen by a majority of the remaining Directors present, shall act as chairman of the meeting. The secretary or, in his or her absence, an assistant secretary of the Corporation, or in the absence of the secretary and all assistant secretaries, a person appointed by the chairman, shall act as secretary of the meeting.

Section 11. VACANCIES . If for any reason any or all the Directors cease to be Directors, such event shall not terminate the Corporation, or affect these Bylaws or the powers of the remaining Directors hereunder (even if fewer than a quorum of Directors remain). Any vacancy (including a vacancy created by an increase in the number of Directors) shall be filled, at any regular meeting or at any special meeting called for that purpose, by a majority of the Directors, even if the remaining Directors do not constitute a quorum. Any individual so elected as Director shall hold office for the unexpired term of the Director he or she is replacing and until a successor is elected and qualifies.

Section 12. COMPENSATION . Directors shall not receive any stated salary for their services as Directors but, by resolution of the Board of Directors or a duly authorized committee thereof, may receive compensation per year and/or per meeting and for any service or activity they performed or engaged in as Directors. Directors may be reimbursed for expenses of attendance, if any, at each annual, regular or special meeting of the Board of Directors or of any committee thereof; and for their expenses, if any, in connection with any service or activity performed or engaged in as Directors; but nothing herein contained shall be construed to preclude any Directors from serving the Corporation in any other capacity and receiving compensation therefor.

Section 13. LOSS OF DEPOSITS . No director shall be liable for any loss which may occur by reason of the failure of the bank, trust company, savings and loan association or other institution with whom moneys or stock have been deposited.

Section 14. SURETY BONDS . Unless required by law, no Director shall be obligated to give any bond or surety or other security for the performance of any of his or her duties.

Section 15. RELIANCE . Each Director, officer, employee and agent of the Corporation shall, in the performance of his or her duties with respect to the Corporation, be fully justified and protected with regard to any act or failure to act in reliance in good faith upon the books of account or other records of the Corporation, upon an opinion of counsel or upon reports made to the Corporation by any of its officers or employees or by the adviser, accountants, appraisers or other experts or consultants selected by the Directors or officers of the Corporation, as to matters which the Director, officer, employee or agent reasonably believes to be within the person’s professional or expert competence, regardless of whether such counsel or expert may also be a Director.

 

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ARTICLE IV

COMMITTEES

Section 1. NUMBER, TENURE AND QUALIFICATIONS . The Board of Directors may appoint from among its members a Nominating and Corporate Governance Committee, an Audit Committee and a Compensation Committee and may appoint other committees, composed of one or more Directors, to serve at the pleasure of the Board of Directors; provided, however, that the membership of each of the Nominating and Corporate Governance Committee, the Audit Committee and the Compensation Committee at all times shall comply with the independence and other listing requirements and rules and regulations of the New York Stock Exchange and the rules and regulations promulgated under the federal securities laws, and any other independence and other requirements set forth in the Company’s corporate governance guidelines and applicable committee charters.

Section 2. POWERS . The Board of Directors may delegate to committees appointed under Section 1 of this Article IV any of the powers of the Directors, except as prohibited by law.

Section 3. MEETINGS . In the absence of any member of any such committee, the members thereof present at any meeting, whether or not they constitute a quorum, may appoint another Director to act in the place of such absent member provided that such Director meets the requirements of such committee. Notice of committee meetings shall be given in the same manner as notice for special meetings of the Board of Directors. Each committee shall keep minutes of its proceedings and shall report the same to the Board of Directors at the next succeeding meeting, and any action by the committee shall be subject to revision and alteration by the Board of Directors, provided that no rights of third persons shall be affected by any such revision or alteration.

Section 4. QUORUM . A majority of the members of any committee shall constitute a quorum for the transaction of business at a committee meeting, and the act of a majority present shall be the act of such committee. The Board of Directors, or the members of a committee to which such power has been duly delegated by the Board of Directors, may designate a chairman of any committee, and such chairman or any two members of any committee may fix the time and place of its meetings unless the Board of Directors shall otherwise provide.

Section 5. TELEPHONE MEETINGS . Members of a committee of the Board of Directors may participate in a meeting by means of a conference telephone or other communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence in person at the meeting.

Section 6. INFORMAL ACTION BY COMMITTEES . Any action required or permitted to be taken at any meeting of a committee of the Board of Directors may be taken without a meeting, if a consent in writing to such action is signed or submitted by electronic transmission to the Corporation by each member of the committee and such written consent is filed with the minutes of proceedings of such committee.

Section 7. VACANCIES, REMOVAL AND DISSOLUTION . Subject to the provisions hereof, the Board of Directors shall have the power at any time to change the membership of any committee, to fill all vacancies, to designate alternate members to replace any absent or disqualified member or to dissolve any such committee.

ARTICLE V

OFFICERS

Section 1. GENERAL PROVISIONS . The officers of the Corporation shall include a president, a secretary and a treasurer and may include a chairman of the board, a vice chairman of the board, a chief executive officer, a chief operating officer, a chief financial officer, one or more vice presidents, one or more assistant secretaries and one or more assistant treasurers. In addition, the Board of Directors may from time to time appoint such other officers with such powers and duties as they shall deem necessary or desirable. The officers of the Corporation shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of stockholders, except that the chief executive officer or president may appoint one or more vice presidents, assistant secretaries and assistant treasurers or other officers. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as may be convenient. Each officer shall hold office until his or her successor is elected and qualifies or until his or her death, resignation or removal in the manner hereinafter provided. Any two or more offices except (1) president and vice president and (2) chief executive officer and vice president may be held by the same person. In its discretion, the Board of Directors may leave any office unfilled. Election of an officer or agent shall not of itself create contract rights between the Corporation and such officer or agent.

 

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Section 2. REMOVAL AND RESIGNATION . Any officer or agent of the Corporation may be removed by the Board of Directors, with or without cause, if in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Any officer of the Corporation may resign at any time by giving written notice of his or her resignation to the Board of Directors, the chairman of the board, the chief executive officer, the president or the secretary. Any resignation shall take effect immediately upon its receipt or at such later time specified in the notice of resignation. The acceptance of a resignation shall not be necessary to make it effective unless otherwise stated in the resignation. Such resignation shall be without prejudice to the contract rights, if any, of the Corporation.

Section 3. VACANCIES . A vacancy in any office may be filled by the Board of Directors for the balance of the term.

Section 4. CHIEF EXECUTIVE OFFICER . The Board of Directors may designate a chief executive officer. The chief executive officer shall have responsibility for implementation of the policies of the Corporation, as determined by the Board of Directors, for the general management and administration of the business and affairs of the Corporation, and for the supervision of other officers. The chief executive officer may execute any deed, mortgage, bond, contract or other instrument, except in cases where the execution thereof shall be expressly delegated by the Board of Directors or these Bylaws to some other officer or agent of the Corporation or shall be required by law to be otherwise executed; and in general shall perform all duties incident to the office of chief executive officer and such other duties as may be prescribed by the Board of Directors from time to time. In the absence of the chairman of the board or the vice chairman of the board, if there be one, the chief executive officer shall preside over the meetings of the Board of Directors and of the stockholders at which he or she shall be present.

Section 5. CHIEF OPERATING OFFICER . The Board of Directors may designate a chief operating officer. The chief operating officer shall have the responsibilities and duties as set forth by the Board of Directors or the chief executive officer. In the absence of both the chief executive officer and president, or in the event of a vacancy in both offices, the chief operating officer shall perform the duties of the president and when so acting shall have all the powers of and be subject to all the restrictions upon the president; and shall perform such other duties as from time to time may be assigned to him or her by the chief executive officer or by the Board of Directors.

Section 6. CHIEF FINANCIAL OFFICER . The Board of Directors may designate a chief financial officer. The chief financial officer shall have the responsibilities and duties as set forth by the Board of Directors or the chief executive officer.

Section 7. CHAIRMAN OF THE BOARD . The Board of Directors may designate a chairman of the board and shall provide whether the chairman of the board shall also be an officer of the Corporation. The chairman of the board shall preside over the meetings of the Board of Directors and of the stockholders at which he or she shall be present and shall in general oversee all of the business and affairs of the Corporation. The chairman of the board, if designated as an officer of the Corporation, may execute any deed, mortgage, bond, contract or other instrument, except in cases where the execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation or shall be required by law to be otherwise executed. The chairman of the board shall perform such other duties as may be assigned to him or her by the Board of Directors.

Section 8. PRESIDENT . In the absence of the chairman of the board and the chief executive officer, the president shall preside over the meetings of the Board of Directors and of the stockholders at which he or she shall be present. In the absence of a designation of a chief executive officer by the Board of Directors, the president shall be the chief executive officer. The president may execute any deed, mortgage, bond, contract or other instrument, except in cases where the execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation or shall be required by law to be otherwise executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the Board of Directors or the chief executive officer from time to time.

Section 9. VICE PRESIDENTS . In the absence of each of the chief executive officer, the chief operating officer and the president or in the event of a vacancy in all three offices, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated at the time of their election or, in the absence of any designation, then in the order of their election) shall perform the duties of the president and when so acting shall have all the

 

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powers of and be subject to all the restrictions upon the president; and shall perform such other duties as from time to time may be assigned to him or her by the chief executive officer or by the Board of Directors. The Board of Directors may designate one or more vice presidents as executive vice president, as senior vice president or as vice president for particular areas of responsibility. The chief executive officer or, in the event there is no chief executive officer, the president may designate one or more vice presidents as vice president for particular areas of responsibility.

Section 10. SECRETARY . The secretary shall (a) keep the minutes of the proceedings of the stockholders, the Board of Directors and committees of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the Corporation; (d) keep a register of the post office address of each stockholder which shall be furnished to the secretary by such stockholder; (e) have general charge of the share transfer books of the Corporation; and (f) in general perform such other duties as from time to time may be assigned to him or her by the chief executive officer, the president or the Board of Directors.

Section 11. TREASURER . The treasurer shall have the custody of the funds and securities of the Corporation and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors.

The treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the chief executive officer and Board of Directors, at the regular meetings of the Board of Directors or whenever they may require it, an account of all his or her transactions as treasurer and of the financial condition of the Corporation.

Section 12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS . The assistant secretaries and assistant treasurers, in general, shall perform such duties as shall be assigned to them by the secretary or treasurer, respectively, or by the president, the chief executive officer or the Board of Directors. The assistant treasurers shall, if required by the Board of Directors, give bonds for the faithful performance of their duties in such sums and with such surety or sureties as shall be satisfactory to the Board of Directors.

Section 13. COMPENSATION . The compensation of the officers shall be fixed from time to time by the Board of Directors or a committee thereof and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a Director.

ARTICLE VI

CONTRACTS, CHECKS AND DEPOSITS

Section 1. CONTRACTS . The Board of Directors may authorize any officer or agent to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the Corporation and such authority may be general or confined to specific instances. Any agreement, deed, mortgage, lease or other document executed by one or more of the Directors or by an authorized person shall be valid and binding upon the Board of Directors and upon the Corporation.

Section 2. CHECKS AND DRAFTS . All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or agent of the Corporation in such manner as shall from time to time be determined by the Board of Directors.

Section 3. DEPOSITS . All funds of the Corporation not otherwise employed shall be deposited or invested from time to time to the credit of the Corporation as the Board of Directors, the chief executive officer, the chief financial officer or any other officer designated by the Board of Directors may determine.

 

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ARTICLE VII

STOCK

Section 1. CERTIFICATES . Except as may be otherwise provided by the Board of Directors, stockholders of the Corporation are not entitled to certificates representing the shares of stock held by them. In the event that the Corporation issues shares of stock represented by certificates, such certificates shall be in such form as prescribed by the Board of Directors or a duly authorized officer, shall contain the statements and information required by the MGCL and shall be signed by the officers of the Corporation in the manner permitted by the MGCL. In the event that the Corporation issues shares of stock without certificates, to the extent then required by the MGCL, the Corporation shall provide to the record holders of such shares a written statement of the information required by the MGCL to be included on stock certificates. There shall be no differences in the rights and obligations of stockholders based on whether or not their shares are represented by certificates.

Section 2. TRANSFERS . All transfers of shares of stock shall be made on the books of the Corporation, by the holder of the shares of stock, in person or by his or her attorney, in such manner as the Board of Directors or any officer of the Corporation may prescribe and, if such shares of stock are certificated, upon surrender of certificates duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer. The Board of Directors may require that outstanding certificated shares upon surrender for transfer be issued without certificates Upon the transfer of uncertificated shares of stock, to the extent then required by the MGCL, the Corporation shall provide to record holders of such shares of stock a written statement of the information required by the MGCL to be included on share certificates.

The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Maryland.

Notwithstanding the foregoing, transfers of shares of any class or series of stock of the Corporation will be subject in all respects to the charter of the Corporation and all of the terms and conditions contained therein.

Section 3. REPLACEMENT CERTIFICATE . Any officer designated by the Board of Directors may direct a new certificate to be issued in place of any certificate previously issued by the Corporation alleged to have been lost, stolen, destroyed or mutilated upon the making of an affidavit of that fact by the person claiming the certificate to be lost, stolen, destroyed or mutilated; provided, however, if such shares of stock have ceased to be certificated, no new certificate shall be issued unless requested in writing by such stockholder and the Board of Directors has determined such certificates may be issued. When authorizing the issuance of a new certificate, an officer designated by the Board of Directors may, in his or her discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, destroyed or mutilated certificate or the owner’s legal representative to advertise the same in such manner as he or she shall require and/or to give bond, with sufficient surety, to the Corporation to indemnify it against any loss or claim which may arise as a result of the issuance of a new certificate.

Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE . The Board of Directors may set, in advance, a record date for the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or determining stockholders entitled to receive payment of any dividend or the allotment of any other rights, or in order to make a determination of stockholders for any other proper purpose. Such date, in any case, shall not be prior to 5:00 p.m., Eastern Time, on the day the record date is fixed and shall be not more than 90 days and, in the case of a meeting of stockholders not less than ten days, before the date on which the meeting or particular action requiring such determination of stockholders of record is to be held or taken.

In lieu of fixing a record date, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but not longer than 20 days. If the share transfer books are closed for the purpose of determining stockholders entitled to notice of or to vote at a meeting of stockholders, such books shall be closed for at least ten days before the date of such meeting.

 

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If no record date is fixed and the share transfer books are not closed for the determination of stockholders, (a) the record date for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall be at 5:00 p.m., Eastern Time, on the day on which the notice of meeting is mailed or the 30th day before the meting, whichever is the closer date to the meeting; and (b) the record date for the determination of stockholders entitled to receive payment of a dividend or an allotment of any other rights shall be the close of business on the day on which the resolution of the Board of Directors, declaring the dividend or allotment of rights, is adopted.

When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof, except when (i) the determination has been made through the closing of the transfer books and the stated period of closing has expired or (ii) the meeting is adjourned to a date more than 120 days after the record date fixed for the original meeting, in either of which case a new record date shall be determined as set forth herein.

Section 5. STOCK LEDGER . The Corporation shall maintain at its principal office or at the office of its counsel, accountants or transfer agent, an original or duplicate stock ledger containing the name and address of each stockholder and the number of shares of each class of stock held by such stockholder.

Section 6. FRACTIONAL STOCK; ISSUANCE OF UNITS . The Board of Directors may issue fractional stock or provide for the issuance of scrip, all on such terms and under such conditions as they may determine. Notwithstanding any other provision of the charter of the Corporation or these Bylaws, the Board of Directors may issue units consisting of different securities of the Corporation. Any security issued in a unit shall have the same characteristics as any identical securities issued by the Corporation, except that the Board of Directors may provide that for a specified period securities of the Corporation issued in such unit may be transferred to the books of the Corporation only in such unit.

ARTICLE VIII

ACCOUNTING YEAR

The Board of Directors shall have the power, from time to time, to fix the fiscal year of the Corporation by a duly adopted resolution.

ARTICLE IX

DISTRIBUTIONS

Section 1. AUTHORIZATION . Dividends and other distributions upon the stock of the Corporation may be authorized and declared by the Board of Directors, subject to the applicable provisions of law and the charter of the Corporation. Dividends and other distributions may be paid in cash, property or stock of the Corporation, subject to the applicable provisions of law and the charter of the Corporation.

Section 2. CONTINGENCIES . Before payment of any dividends or other distributions, there may be set aside out of any assets of the Corporation available for dividends or other distributions such sum or sums as the Board of Directors may from time to time, in its absolute discretion, think proper as a reserve fund for contingencies, for equalizing dividends or other distributions, for repairing or maintaining any property of the Corporation or for such other purpose as the Board of Directors shall determine to be in the best interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.

ARTICLE X

INVESTMENT POLICY

Subject to the provisions of the charter of the Corporation, the Board of Directors may from time to time adopt, amend, revise or terminate any policy or policies with respect to investments by the Corporation as it shall deem appropriate in its sole discretion.

 

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ARTICLE XI

SEAL

Section 1. SEAL . The Board of Directors may authorize the adoption of a seal by the Corporation. The seal shall contain the name of the Corporation and the year and state of its incorporation. The Board of Directors may authorize one or more duplicate seals and provide for the custody thereof.

Section 2. AFFIXING SEAL . Whenever the Corporation is permitted or required to affix its seal to a document, it shall be sufficient to meet the requirements of any law, rule or regulation relating to a seal to place the word “(SEAL)” adjacent to the signature of the person authorized to execute the document on behalf of the Corporation.

ARTICLE XII

INDEMNIFICATION AND ADVANCE OF EXPENSES

To the maximum extent permitted by Maryland law in effect from time to time, and in accordance with applicable provisions of the Bylaws and any indemnification agreement in effect from time to time, the Corporation shall indemnify, and pay or reimburse the reasonable expenses in advance of final disposition of a proceeding to, (a) any present or former director or officer of the Corporation against any claim or liability to which he or she may become subject by reason of service in such capacity, and (b) any individual who, while a director or officer of the Corporation and at the request of the Corporation, serves or has served as a director, officer, partner or trustee of another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan, limited liability company or any other enterprise from and against any claim or liability to which such person may become subject or which such person may incur by reason of his or her service in such capacity. The indemnification and payment or reimbursement of expenses provided in these Bylaws shall not be deemed exclusive of or limit in any way other rights to which any person seeking indemnification or payment or reimbursement of expenses may be or may become entitled under any bylaw, regulation, insurance, agreement or otherwise.

Neither the amendment nor repeal of this Article, nor the adoption or amendment of any other provision of the charter of the Corporation or these Bylaws inconsistent with this Article, shall apply to or affect in any respect the applicability of this Article with respect to any act or omission that occurred prior to the effective date of such amendment, repeal or adoption.

ARTICLE XIII

WAIVER OF NOTICE

Whenever any notice is required to be given pursuant to the charter of the Corporation or these Bylaws or pursuant to applicable law, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at nor the purpose of any meeting need be set forth in the waiver of notice, unless specifically required by statute. The attendance of any person at any meeting shall constitute a waiver of notice of such meeting, except where such person attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

ARTICLE XIV

AMENDMENT OF BYLAWS

The Board of Directors shall have the exclusive power to adopt, alter or repeal any provision of these Bylaws and to make new Bylaws.

 

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ARTICLE XV

BOOKS AND RECORDS

The Corporation shall keep correct and complete books and records of its accounts and transactions and minutes of the proceedings of its stockholders and Board of Directors and of an executive or other committee when exercising any of the powers of the Board of Directors. The books and records of the Corporation may be in written form or in any other form which can be converted within a reasonable time into written form for visual inspection. Minutes shall be recorded in written form but may be maintained in the form of a reproduction.

ARTICLE XVI

SEVERABILITY

If any provision of the Bylaws shall be held invalid or unenforceable in any respect, such holding shall apply only to the extent of any such invalidity or unenforceability and shall not in any manner affect, impair or render invalid or unenforceable any other provision of the Bylaws in any jurisdiction.

*    *    *    *

Approved May 5, 2015

 

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Exhibit 10.1

WALKER & DUNLOP, INC.

MANAGEMENT DEFERRED STOCK UNIT PURCHASE PLAN

AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2016

 

1. INTRODUCTION

(a) Adoption of the Plan . The Board of Directors (the “ Board ”) of Walker & Dunlop, Inc. (the “ Company ”) adopted the Company’s Management Deferred Stock Unit Purchase Plan (the “ Plan ”), effective January 10, 2013 (the “ Effective Date ”) and as amended and restated effective January 1, 2016, to facilitate the purchase of shares of common stock of the Company, par value $0.01 per share (the “ Stock ”), by eligible executives of the Company and its Affiliates. “ Affiliate ” means, with respect to the Company, any company or other trade or business that controls, is controlled by, or is under common control with the Company within the meaning of Regulation 405 of Regulation C under the Securities Act of 1933, as amended (the “ Securities Act ”).

(b) Overview of the Plan . Eligible executives are given the opportunity to purchase shares of Stock with all or a portion of their annual incentive bonus and/or Eligible Sales Commissions (the “ Bonus ”). “ Eligible Sales Commissions ” are the sales commissions for the calendar year that exceed the minimum established by the Company in an individual’s Election Agreement (as defined below) and include only sales commissions the individual actually receives by December 31 of the calendar year in which the sales commissions are earned. Delivery of the Stock is delayed to the payment date elected by the eligible executives, as further described below, but the executive’s right to receive the Stock is fully vested and non-forfeitable. It is intended that the portion of the Bonus used to purchase Stock would not be taxable for income tax purposes when the purchase is made. Instead, income taxation would be deferred to the date of delivery of the Stock, as elected by the executive. Each eligible executive who makes a purchase would therefore receive Deferred Stock Units (as defined below) in lieu of a portion of his or her Bonus. Each “ Deferred Stock Unit ” is a right to receive one share of Stock, which provides for delivery of the underlying share of Stock at a future date consistent with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”) and all regulations, guidance, and other interpretive authority issued thereunder (collectively, “ Section 409A ”).

(c) Summary . This document is the Plan document and part of the prospectus for the Plan.

(d) Applicable Law . The Plan is not a qualified retirement plan under Section 401(a) of the Code and it is not subject to any provision of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”).

 

2. ADMINISTRATION; AMENDMENT AND TERMINATION

(a) The Committee . The Plan will be administered under the supervision of the Compensation Committee of the Board (the “ Committee ”). The Committee will prescribe guidelines and forms for the implementation and administration of the Plan, interpret the terms of the Plan, and make all other substantive decisions regarding the operation of the Plan. The Committee’s decisions in its administration of the Plan are conclusive and binding on all persons.

(b) Amendment and Termination . The Board may amend, suspend, or terminate the Plan at any time and for any reason. No amendment, suspension, or termination will, without the consent of the Participant (as defined below), impair rights or obligations under any Deferred Stock Units previously awarded to the Participant under the Plan.


3. PARTICIPATION

An employee of the Company or an Affiliate is eligible to participate in the Plan if (a) the employee is designated as an “officer” for purposes of Section 16 of the Securities Exchange Act of 1934, as amended, or (b) the employee is both (i) a member of a select group of management or a highly compensated employee under Section 201 of ERISA and (ii) designated by the Company’s Chief Executive Officer as eligible to participate in the Plan. An eligible executive of the Company or an Affiliate becomes a participant in the Plan (a “ Participant ”) if the Company notifies the executive of his or her eligibility to participate in the Plan and the executive properly files a completed Bonus Deferral Election Agreement or Sales Commission Deferral Election Agreement (each, an “ Election Agreement ”) with the Company, on a form prescribed by the Committee, during the Open Enrollment Period. For purposes of the Plan, “ Open Enrollment Period ” means (i) the period of time beginning on December 1 and ending on December 31 of the calendar year preceding the calendar year for which a Bonus is earned, or (ii) if otherwise determined by the Committee or an officer of the Company designated by the Committee, a period of 30 consecutive days ending no later than December 31 of the calendar year preceding the calendar year for which a Bonus is earned. For purposes of a Bonus that consists of Eligible Sales Commissions, the Bonus is treated as earned in the calendar year in which the transaction giving rise to the sales commission is rate locked and delivered to the investor. The “ Election Date ” is the last day of the Open Enrollment Period of the applicable calendar year.

 

4. SHARE RESERVE

(a) Number of Shares Available . Subject to adjustment as provided in Section 4(b), the number of shares of Stock available for issuance under the Plan is 530,000. Shares of Stock to be issued under the Plan will be shares acquired on the open market or newly issued shares of the Company.

(b) Changes in Stock . If the number of outstanding shares of Stock is increased or decreased or the shares of Stock are changed into or exchanged for a different number or kind of stock or other securities of the Company on account of any recapitalization, reclassification, stock split, reverse split, combination of stock, exchange of stock, stock dividend, or other distribution payable in capital stock, or other increase or decrease in such stock effected without receipt of consideration by the Company occurring after the Effective Date, the Committee will make appropriate adjustments to (i) the number and kind of shares of Stock for which Deferred Stock Units may be granted under the Plan, (ii) the number and kind of shares of Stock for which Deferred Stock Units are outstanding, and (iii) the number of Deferred Stock Units credited to each Participant’s Account (as defined below).

 

5. DEFERRAL ELECTIONS

(a) Deferrals . Subject to Section 5(c) of this Plan, each Participant may voluntarily elect to receive up to 100% of his or her Bonus in Deferred Stock Units, subject to any conditions and limitations the Committee determines, including, but not limited to, a cap on deferrals under the Plan. The Participant will make the election to receive all or a portion of his or her Bonus in Deferred Stock Units by filing a completed Election Agreement on or before the Election Date of the calendar year for which a Bonus is earned. A Participant’s election to defer all or a portion of his or her Bonus and receive Deferred Stock Units is irrevocable and may not be changed.

(b) New Participants . If the Participant was not previously eligible to participate in the Plan or any plan that must be aggregated with the Plan for purposes of Section 409A, the Participant may elect to defer all or a portion of his or her Bonus for the calendar year. The Participant’s initial Election Agreement must be filed with the Company within 30 days after the date on which the Participant is

 

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notified that he or she is eligible to participate in the Plan. The initial deferral election will be, for the remainder of the then-current calendar year, prorated based on the number of days remaining in the calendar year after the date the Election Agreement is filed with the Company, compared to the total number of days in the calendar year.

(c) Deferral Limitation . Notwithstanding anything contrary in the Plan, in the event that the Participant’s actual Bonus (i) for purposes of a Bonus that consists of an annual incentive bonus, is less than 51% of such Participant’s target annual incentive bonus for a calendar year under the applicable incentive arrangement with the Company or any Affiliate or (ii) for purposes of a Bonus that consists of Eligible Sales Commissions, is equal to or less than the Eligible Sales Commissions threshold (as that threshold is set by the Company or an Affiliate in the applicable agreement designating the individual as eligible to participate in the Plan), the Participant shall not be permitted to defer any portion of his or her Bonus for such calendar year. In this case, the Participant’s previously-filed Election Agreement with respect to such Bonus and such calendar year shall be cancelled, and no deferrals will be made with respect to such Election Agreement.

 

6. AWARD OF DEFERRED STOCK UNITS

(a) Crediting Participant Accounts . If the executive elects to purchase Stock under the Purchase Plan, on the date that the annual incentive bonus is paid or the Eligible Sales Commissions are treated as paid (generally in the first quarter of the calendar year after the calendar year in which the Bonus is earned, referred to as the “ Award Date ”), the Company will credit a bookkeeping account established and maintained for each Participant (an “ Account ”) with the number of Deferred Stock Units determined by dividing (i) the portion of the Bonus that the Participant elected to defer (up to 100% of such Bonus), by (ii) the Fair Market Value (as defined below) of a share of Stock on such date, rounded down to the nearest whole Deferred Stock Unit. For purposes of the Plan, “ Fair Market Value ” will be determined under the same methodology reflected in the Company’s 2015 Equity Incentive Plan (as may be amended from time to time, the “ 2015 Plan ”). For purposes of a Bonus that consists of Eligible Sales Commissions, the Eligible Sales Commissions shall be treated as paid in the calendar year following the calendar year in which the Eligible Sales Commissions are earned and on the same Award Date as a Bonus that consists of an annual incentive bonus.

(b) Fractional Shares . No fractional Deferred Stock Units will be credited to a Participant’s Account. Unused cash attributable to a fractional Deferred Stock Unit will be refunded to the Participant, in cash, as soon as practicable following the Award Date.

(c) Vesting of Deferred Stock Units . A Participant will be fully vested in each Deferred Stock Unit credited to the Participant’s Account at all times.

(d) Distribution Election; Issuance of Shares . Each Participant may specify a distribution date with respect to the Deferred Stock Units (the “ Distribution Date ”). The election of such Distribution Date will be specified in the Election Agreement with the Company. Any election of a Distribution Date with respect to the Deferred Stock Units is irrevocable as of the Election Date. The Distribution Date specified in the Election Agreement will be either:

(i) January 31 of the year immediately following the date of the Participant’s “separation from service” from the Company or an Affiliate, as applicable, within the meaning of Section 409A (the “ Separation from Service ” and this election, the “ Termination Date Election ”);

 

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(ii) the first to occur of the following: (A) March 15 of the third calendar year following the Award Date and (B) January 31 of the year immediately following the date of the Participant’s Separation from Service (this election, the “ Vesting Date Election ”); or

(iii) the first to occur of the following: (A) January 31 of the fifth or tenth, as elected by the Participant, calendar year after the Award Date and (B) January 31 of the year immediately following the date of the Participant’s Separation from Service (this election, the “ Deferred Distribution Date Election ”).

The Company will issue to the Participant one share of Stock for each Deferred Stock Unit on the Distribution Date. Notwithstanding anything to the contrary in the Plan, if on the date of the Participant’s Separation from Service, the Participant is a “specified employee” within the meaning of Section 409A, the shares will be issued on the later to occur of (A) the scheduled Distribution Date and (B) the first day of the seventh month following the date of the Participant’s Separation from Service or, if earlier, the date of the Participant’s death.

(e) Change in Control .

(i) The Plan and Deferred Stock Units that are outstanding will continue in the manner and under the terms so provided in the event of any Change in Control (as defined below) to the extent that provision is made in writing in connection with such Change in Control for the assumption or continuation of the Deferred Stock Units or for the substitution of the Deferred Stock Units for new common stock units relating to the stock of a successor entity, or a parent or subsidiary thereof, with appropriate adjustments as to the number of shares underlying the award (disregarding any consideration that is not common stock).

(ii) Upon the occurrence of a Change in Control (as defined below) in which outstanding Deferred Stock Units are not being assumed or continued, shares of Stock subject to such Deferred Stock Units will be delivered immediately prior to the occurrence of the Change in Control.

For purposes of the Plan, “ Change in Control ” will have the same meaning as defined in the 2015 Plan. Notwithstanding the foregoing, for purposes of the Plan, in no event will a Change in Control be deemed to have occurred if the transaction is not also a “change in the ownership or effective control of” the Company or “a change in the ownership of a substantial portion of the assets of” the Company as determined under Treasury Regulation Section 1.409A-3(i)(5) (without regard to any alternative definition thereunder).

(f) Award Agreements . Each award of Deferred Stock Units granted under the Plan will be evidenced by a written agreement between the Company and the Participant memorializing the terms and conditions of the Deferred Stock Units (an “ Award Agreement ”).

 

7. ISSUANCE OF SHARES OF STOCK DUE TO UNFORESEEABLE EMERGENCY

(a) Request for Issuance . If a Participant suffers an Unforeseeable Emergency (as defined below), he or she may submit a written request to the Committee for the issuance of the shares of Stock underlying the Deferred Stock Units in the Participant’s Account. For purposes of the Plan, “ Unforeseeable Emergency ” means a severe financial hardship of the Participant resulting from (i) an illness or accident of the Participant, the Participant’s spouse, or the Participant’s dependent; (ii) a loss of the Participant’s property due to casualty; or (iii) such other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant, as determined in the sole discretion of the Committee and in accordance with the requirements of Section 409A.

 

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(b) No Payment if Other Relief is Available . The Committee will evaluate the Participant’s request for payment due to an Unforeseeable Emergency taking into account the Participant’s hardship and the requirements of Section 409A. In no event will shares of Stock be issued under this Section 7 to the extent the Participant’s hardship can be relieved: (i) through reimbursement or compensation by insurance or otherwise; or (ii) by liquidation of the Participant’s assets, to the extent that liquidation of the Participant’s assets would not itself cause severe financial hardship.

(c) Limitation on Issuance of Shares of Stock . The number of shares of Stock issued on account of an Unforeseeable Emergency will not exceed the amount reasonably necessary to satisfy the Participant’s financial need, including amounts necessary to pay any federal, state, local, or foreign taxes or penalties reasonably anticipated to result from the issuance of shares of Stock, as determined by the Committee.

(d) Cancellation of Deferrals . If a Participant receives an issuance of shares of Stock on account of an Unforeseeable Emergency, the Participant’s Election Agreement for the Election Date in the same calendar year as the date of such issuance will be cancelled, and no deferrals will be made with respect to such Election Agreement.

 

8. BENEFICIARY DESIGNATION

In the event of a Participant’s death, the Company will issue the shares of Stock underlying the Deferred Stock Units in the Participant’s Account to the Participant’s designated beneficiaries. If the Participant fails to complete a valid beneficiary designation, the Participant’s beneficiary will be his or her estate.

 

9. TRANSFERABILITY

During a Participant’s lifetime, any issuance of shares of Stock under the Plan will be made only to the Participant. Deferred Stock Units may not be transferred, assigned, pledged, or hypothecated, whether by operation of law or otherwise, nor may the Deferred Stock Units be made subject to execution, attachment, or similar process.

 

10. WITHHOLDING

In the event that the Company or an Affiliate determines that any federal, state, local, or foreign tax or withholding payment is required relating to the award of Deferred Stock Units under the Plan or the issuance of shares with respect to Deferred Stock Units under the Plan, the Company or an Affiliate will have the right to (a) require the Participant to tender a cash payment, (b) deduct from payments of any kind otherwise due to a Participant, (c) permit or require the Participant to enter into a “same day sale” commitment with a broker-dealer that is a member of the Financial Industry Regulatory Authority (a “ FINRA Dealer ”) whereby the Participant irrevocably elects to sell a portion of the shares of Stock to be delivered in connection with the Deferred Stock Units to satisfy withholding obligations and whereby the FINRA Dealer irrevocably commits to forward the proceeds necessary to satisfy the withholding obligations directly to the Company or an Affiliate, or (d) withhold from the delivery of shares of Stock otherwise deliverable to a Participant under the Plan to meet such obligations; provided , that shares of Stock so withheld will have an aggregate Fair Market Value not exceeding the minimum amount of tax required to be withheld by applicable law.

 

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11. FORFEITURE; RECOUPMENT; CLAWBACK

(a) The Committee may reserve the right in an Award Agreement to cause a forfeiture of the gain realized by a Participant with respect to Deferred Stock Units on account of actions taken by, or failed to be taken by, the Participant in violation or breach of, or in conflict with, any (i) employment agreement, (ii) non-competition agreement, (iii) agreement prohibiting solicitation of employees or clients of the Company or any Affiliate, (iv) confidentiality obligation with respect to the Company or an Affiliate, (v) Company or Affiliate policy or procedure, (vi) other agreement, or (vii) any other obligation of the Participant to the Company or any Affiliate, as and to the extent specified in the Award Agreement. The Committee may annul an outstanding award of Deferred Stock Units if the Participant is terminated for Cause (as defined below) or for “cause” as defined in any other written agreement between the Company or any Affiliate and the Participant, as applicable. For purposes of the Plan, “ Cause ” means, as determined by the Committee or the Board and unless otherwise provided in an applicable written agreement with the Company or any Affiliate, (A) gross negligence or willful misconduct in connection with the performance of duties, (B) conviction of, or pleading guilty or nolo contendere to, a criminal offense (other than minor traffic offenses), (c) a material violation of a Company policy, or (D) a material breach of any term of any employment, consulting, or other services, confidentiality, intellectual property, or non-competition agreements, if any, between the Participant and the Company or any Affiliate.

(b) Any award of Deferred Stock Units granted under the Plan will be subject to mandatory repayment by the Participant to the Company (i) to the extent set forth in the Plan or an Award Agreement or (ii) to the extent the Participant is, or in the future becomes, subject to (A) any Company or Affiliate “clawback” or recoupment policy that is adopted to comply with the requirements of any applicable law, rule, or regulation, or otherwise, or (B) any law, rule, or regulation that imposes mandatory recoupment, under circumstances set forth in such law, rule, or regulation.

(c) If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of misconduct, with any financial reporting requirement under the securities laws, the individuals subject to automatic forfeiture under Section 304 of the Sarbanes-Oxley Act of 2002 and any Participant who knowingly engaged in the misconduct, was grossly negligent in engaging in the misconduct, knowingly failed to prevent the misconduct, or was grossly negligent in failing to prevent the misconduct, will reimburse the Company the amount of any payment in settlement of an award of Deferred Stock Units earned or accrued during the 12-month period following the first public issuance or filing with the United States Securities and Exchange Commission (whichever first occurred) of the financial document that contained such material noncompliance.

(d) Notwithstanding any other provision of the Plan or any provision of any Award Agreement, if the Company is required to prepare an accounting restatement, then Participants will forfeit any Stock received in connection with an award of Deferred Stock Units (or an amount equal to the Fair Market Value of such Stock on the date of delivery if the Participant no longer holds the shares of Stock) if pursuant to the terms of the Award Agreement for such award of Deferred Stock Units, the Bonus used to purchase Deferred Stock Units was explicitly based on the achievement of pre-established performance goals or other benchmarks set forth in the applicable arrangement governing the Bonus (including earnings, gains, or other criteria) that are later determined, as a result of the accounting restatement, not to have been achieved.

 

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12. GENERAL PROVISIONS

(a) Requirements of Law . The Company will not be required to sell or issue any shares of Stock with respect to Deferred Stock Units if the sale or issuance of such shares of Stock would constitute a violation by the Participant, any other individual or entity, or the Company or any Affiliate of any provision of any law or regulation of any governmental authority, including without limitation any federal or state securities laws or regulations. If at any time the Company determines, in its discretion, that the listing, registration, or qualification of any shares of Stock with respect to any Deferred Stock Unit upon any securities exchange or market or under any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the sale, issuance, or purchase of shares of Stock under the Plan, no shares of Stock may be sold or issued to the Participant or any other individual or entity with respect to such Deferred Stock Units unless such listing, registration, or qualification has been effected or obtained free of any conditions not acceptable to the Company. The Company may, but will in no event be obligated to, register any securities covered by the Plan pursuant to the Securities Act. The Company is not obligated to take any affirmative action to cause the issuance of shares of Stock pursuant to the Plan to comply with any law or regulation of any governmental authority.

(b) No Right to Continued Service . No provision in the Plan, any Award Agreement, or in any Election Agreement will be construed to confer upon any individual or entity the right to remain in the employ or service of the Company or any Affiliate, or to interfere in any way with any contractual or other right or authority of the Company or any Affiliate either to increase or decrease the compensation or other payments to any individual or entity at any time, or to terminate any employment or other relationship between any individual or entity and the Company or any Affiliate.

(c) Disclaimer of Rights . The obligation of the Company to pay any benefits pursuant to this Plan will be interpreted as a contractual obligation to pay only those amounts described in the Plan, in the manner and under the conditions prescribed in the Plan. The Plan and the award of Deferred Stock Units under the Plan will in no way be interpreted to require the Company to transfer any amounts to a third party trustee or otherwise hold any amounts in trust or escrow for payment to any Participant or beneficiary under the Plan. Participants in the Plan will have no rights under the Plan other than those of a general unsecured creditor of the Company. Deferred Stock Units represent unfunded and unsecured obligations of the Company, subject to the terms and conditions of the Plan, the applicable Award Agreement, and the Election Agreement.

(d) No Obligation to Minimize Taxes . The Company has no duty or obligation to minimize the tax consequences of a Deferred Stock Unit award under the Plan and makes no guarantee regarding the tax treatment of any such Deferred Stock Unit award.

(e) Other Provisions . Each award of Deferred Stock Units under the Plan may contain such other terms and conditions not inconsistent with the Plan as the Committee determines, in its sole discretion, and specifies in the applicable Award Agreement.

(f) Severability . If any provision of the Plan, any Award Agreement, or any Election Agreement is determined to be illegal or unenforceable by any court of law in any jurisdiction, the remaining provisions of the Plan, the Award Agreement, and the Election Agreement will be severable and enforceable in accordance with their terms, and all provisions will remain enforceable in any other jurisdiction.

 

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(g) Governing Law . The validity and construction of the Plan and the instruments evidencing the award of Deferred Stock Units granted under the Plan will be governed by, and construed and interpreted in accordance with, the laws of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of the Plan and the instruments evidencing the award of Deferred Stock Units granted under the Plan to the substantive laws of any other jurisdiction.

(h) Section 409A . The Plan is intended to comply with Section 409A to the extent subject thereto, and, accordingly, to the maximum extent permitted, the Plan will be interpreted and administered to be in compliance with Section 409A. Notwithstanding anything to the contrary in the Plan, neither the Company, its Affiliates, the Board, nor the Committee will have any obligation to take any action to prevent the assessment of any excise tax or penalty on any Participant under Section 409A, and neither the Company, its Affiliates, the Board, nor the Committee will have any liability to any Participant for such tax or penalty.

 

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Exhibit 10.2

WALKER & DUNLOP, INC.

MANAGEMENT DEFERRED STOCK UNIT PURCHASE PLAN

DEFERRED STOCK UNIT AGREEMENT

COVER SHEET

Walker & Dunlop, Inc., a Maryland corporation (the “ Company ”), hereby grants fully vested deferred stock units (the “ Deferred Stock Units ”) relating to shares of the Company’s common stock, par value $0.01 per share (the “ Stock ”), to the Participant named below in respect of the Participant’s election to purchase shares of Stock with the Participant’s annual incentive bonus. Additional terms and conditions of the Deferred Stock Units are set forth on this cover sheet and in the attached Deferred Stock Unit Agreement (together, the “ Agreement ”) and in the Company’s Management Deferred Stock Unit Purchase Plan (as amended from time to time, the “ Purchase Plan ”).

 

Grant Date:

 

Name of Participant:

 

Last Four Digits of Participant’s Social Security Number:

 

Number of Deferred Stock Units:

 

Vesting Schedule:

The Deferred Stock Units are 100% vested on the Grant Date.

You agree to all of the terms and conditions described in the Agreement and in the Purchase Plan, a copy of which will be provided on request, unless you deliver a notice in writing within thirty (30) days of receipt of this Agreement to the Company stating that you do not accept the terms and conditions described in this Agreement and in the Purchase Plan. You acknowledge that you have carefully reviewed the Purchase Plan and agree that the Purchase Plan will control in the event any provision of this Agreement should appear to be inconsistent.

Attachment

This is not a stock certificate or a negotiable instrument.


WALKER & DUNLOP, INC.

MANAGEMENT DEFERRED STOCK UNIT PURCHASE PLAN

DEFERRED STOCK UNIT AGREEMENT

 

Deferred Stock Units

This Agreement evidences an award of Deferred Stock Units in the number set forth on the cover sheet and subject to the terms and conditions set forth in the Agreement and in the Purchase Plan.

Deferred Stock Unit

Transferability

Your Deferred Stock Units may not be sold, assigned, transferred, pledged, hypothecated, or otherwise encumbered, whether by operation of law or otherwise, nor may the Deferred Stock Units be made subject to execution, attachment, or similar process. If you attempt to do any of these things, you will immediately and automatically forfeit your Deferred Stock Units.

Vesting

Your Deferred Stock Units are fully vested at all times.

Delivery

Delivery of the shares of Stock represented by your Deferred Stock Units will be made in accordance with your deferral election under the Purchase Plan (the “ Deferral Election ”), which is attached to this Agreement as Exhibit A .

 

Notwithstanding the foregoing, the Participant may request for the issuance of the shares of Stock underlying the Deferred Stock Units as a result of an Unforeseeable Emergency in accordance with Section 7 of the Purchase Plan.

Evidence of Issuance

The issuance of the shares of Stock with respect to the Deferred Stock Units will be evidenced in such a manner as the Company, in its discretion, deems appropriate, including, without limitation, book-entry, registration, or issuance of one or more share certificates.

Withholding

In the event that the Company or any Affiliate determines that any federal, state, local, or foreign tax or withholding payment is required relating to the Deferred Stock Units, or the issuance of shares of Stock with respect to this grant, the Company or any Affiliate will have the right to (i) require you to tender a cash payment, (ii) deduct from payments of any kind otherwise due to you, (iii) permit or require you to enter into a “same day sale” commitment with a broker-dealer that is a member of the Financial Industry Regulatory Authority (a “ FINRA Dealer ”) whereby you irrevocably elect to sell a portion of the shares of Stock to be delivered in connection with the Deferred Stock Units to satisfy withholding obligations and whereby the FINRA Dealer irrevocably commits to forward the proceeds necessary to satisfy the withholding obligations directly to the Company or any Affiliate, or (iv)

 

2


withhold the delivery of vested shares of Stock otherwise deliverable under this Agreement to meet such obligations; provided that the shares of Stock so withheld will have an aggregate Fair Market Value not exceeding the minimum amount of tax required to be withheld by applicable law.

Retention Rights

This Agreement and the grant of Deferred Stock Units evidenced by this Agreement do not give you the right to be retained by the Company or an Affiliate in any capacity. Unless otherwise specified in an employment or other written agreement between the Company or any Affiliate, as applicable, and you, the Company or an Affiliate, as applicable, reserves the right to terminate your employment or other relationship with the Company or an Affiliate at any time and for any reason.

Stockholder Rights

You have no rights as a stockholder with respect to the Deferred Stock Units unless and until the Stock relating to the Deferred Stock Units has been delivered to you. You will, however, be entitled to receive, upon the Company’s payment of a cash dividend on outstanding Stock, a dividend equivalent for each Deferred Stock Unit that you hold as of the record date for such dividend equal to the per-share dividend paid on the Stock. Such dividend equivalent shall be paid in cash at the same time paid to other stockholders of the Company as of the record date for such dividend and shall not be subject to the Deferral Election.

Clawback

The Deferred Stock Units are subject to mandatory repayment by you to the Company to the extent you are or in the future become subject to any Company or Affiliate “clawback” or recoupment policy or applicable law that requires the repayment by you to the Company of compensation paid by the Company to you in the event that you fail to comply with, or violate, the terms or requirements of such policy or applicable law.

 

If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of misconduct, with any financial reporting requirement under the securities laws, and you are subject to automatic forfeiture under Section 304 of the Sarbanes-Oxley Act of 2002 or you knowingly engaged in the misconduct, were grossly negligent in engaging in the misconduct, knowingly failed to prevent the misconduct, or were grossly negligent in failing to prevent the misconduct, you shall reimburse the Company the amount of any payment in settlement of the Deferred Stock Units earned or accrued during the twelve (12)-month period following the first public issuance or filing with the Securities and Exchange Commission (whichever first occurred) of the financial document that contained such material noncompliance.

 

3


Applicable Law

This Agreement will be interpreted and enforced under the laws of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction.

The Purchase Plan

The text of the Purchase Plan is incorporated into this Agreement by reference.

 

Certain capitalized terms used in this Agreement are defined in the Purchase Plan and have the meaning set forth in the Purchase Plan .

 

This Agreement and the Purchase Plan constitute the entire understanding between you and the Company regarding this grant. Any prior agreements, commitments, or negotiations concerning the Deferred Stock Units are superseded.

Data Privacy

To administer the Purchase Plan, the Company may process personal data about you. Such data includes, but is not limited to, information provided in this Agreement and any changes thereto, other appropriate personal and financial data about you, such as your contact information, payroll information, and any other information that might be deemed appropriate by the Company to facilitate the administration of the Purchase Plan. By accepting the Deferred Stock Units, you give explicit consent to the Company to process any such personal data.

Disclaimer of Rights

The grant of Deferred Stock Units under this Agreement will in no way be interpreted to require the Company to transfer any amounts to a third party trustee or otherwise hold any amounts in trust or escrow for payment to you. You will have no rights under this Agreement or the Purchase Plan other than those of a general unsecured creditor of the Company. Deferred Stock Units represent unfunded and unsecured obligations of the Company, subject to the terms and conditions of the Purchase Plan and this Agreement.

Electronic Delivery

By accepting the Deferred Stock Units, you consent to receive documents related to the Deferred Stock Units by electronic delivery and, if requested, agree to participate in the Purchase Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company, and your consent shall remain in effect throughout your term of employment or other service relationship and thereafter until you withdraw such consent in writing to the Company.

 

4


Code Section 409A

The grant of Deferred Stock Units under this Agreement is intended to comply with Section 409A to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement will be interpreted and administered to be in compliance with Section 409A. Notwithstanding anything to the contrary in the Purchase Plan or this Agreement, neither the Company, its Affiliates, the Board, nor the Committee will have any obligation to take any action to prevent the assessment of any excise tax or penalty on you under Section 409A, and neither the Company, its Affiliates, the Board, nor the Committee will have any liability to you for such tax or penalty. For purposes of this grant, a termination of employment or other service relationship only occurs upon an event that would be a Separation from Service within the meaning of Section 409A.

By accepting this Agreement, you agree to all of the terms and conditions described above and in the Purchase Plan.

 

5


Exhibit A

[See posted Deferral Election Agreement]

 

A-1

Exhibit 10.3

WALKER & DUNLOP, INC.

2010 EQUITY INCENTIVE PLAN, AS AMENDED

RESTRICTED STOCK AGREEMENT

AMENDMENT

WHEREAS, Walker & Dunlop, Inc., a Maryland corporation (the “ Company ”), previously granted restricted shares of the Company’s common stock, par value $0.01 per share (the “ Stock ”), to certain Grantees under the Company’s 2010 Equity Incentive Plan, as amended (the “ Plan ”), and pursuant to certain Restricted Stock Agreements (the “ Agreements ”);

WHEREAS, pursuant to the Plan, the Compensation Committee (the “ Committee ”) of the Company’s Board of Directors may amend the terms of any outstanding award; and

WHEREAS, the Company desires to amend the Agreements to provide that, upon the Company’s declaration and payment of a cash dividend on outstanding Stock, such dividend shall be paid in cash at the same time paid to other stockholders of the Company as of the record date for such dividend and shall not be subject to the conditions and restrictions applicable to the unvested Restricted Stock.

NOW, THEREFORE, the Committee hereby amends the Agreements (the “ Amendment ”) as follows:

 

  1. The section of the Agreements titled “Stockholder Rights” is hereby amended in its entirety to read as follows:

You have the right to vote the shares of Restricted Stock and to receive any dividends declared or paid on such shares. Any stock distributions you receive with respect to unvested Restricted Stock as a result of any stock split, stock dividend, combination of shares, or other similar transaction shall be deemed to be a part of the Restricted Stock and subject to the same conditions and restrictions applicable thereto. Any cash dividends paid on unvested Restricted Stock you hold on the record date for such dividend shall be paid to you in cash at the same time paid to other stockholders of the Company as of the record date for such dividend and shall not be subject to the conditions and restrictions applicable to the unvested Restricted Stock. Except as described in the Plan, no adjustments are made for dividends or other rights if the applicable record date occurs before an appropriate book entry is made (or your certificate is issued).

Your Restricted Stock grant shall be subject to the terms of any applicable agreement of merger, liquidation, or reorganization in the event the Company is subject to such corporate activity.

 

  2. Except as set forth above in this Amendment, the Agreements shall remain in full force and effect.

Exhibit 10.4

WALKER & DUNLOP, INC.

2010 EQUITY INCENTIVE PLAN, AS AMENDED

RESTRICTED STOCK AGREEMENT (DIRECTORS)

AMENDMENT

WHEREAS, Walker & Dunlop, Inc., a Maryland corporation (the “ Company ”), previously granted restricted shares of the Company’s common stock, par value $0.01 per share (the “ Stock ”), to certain Grantees under the Company’s 2010 Equity Incentive Plan, as amended (the “ Plan ”), and pursuant to certain Restricted Stock Agreements (Directors) (the “ Agreements ”);

WHEREAS, pursuant to the Plan, the Compensation Committee (the “ Committee ”) of the Company’s Board of Directors may amend the terms of any outstanding award; and

WHEREAS, the Company desires to amend the Agreements to provide that, upon the Company’s declaration and payment of a cash dividend on outstanding Stock, such dividend shall be paid in cash at the same time paid to other stockholders of the Company as of the record date for such dividend and shall not be subject to the conditions and restrictions applicable to the unvested Restricted Stock.

NOW, THEREFORE, the Committee hereby amends the Agreements (the “ Amendment ”) as follows:

 

  1. The section of the Agreements titled “Stockholder Rights” is hereby amended in its entirety to read as follows:

You have the right to vote the shares of Restricted Stock and to receive any dividends declared or paid on such shares. Any stock distributions you receive with respect to unvested Restricted Stock as a result of any stock split, stock dividend, combination of shares, or other similar transaction shall be deemed to be a part of the Restricted Stock and subject to the same conditions and restrictions applicable thereto. Any cash dividends paid on unvested Restricted Stock you hold on the record date for such dividend shall be paid to you in cash at the same time paid to other stockholders of the Company as of the record date for such dividend and shall not be subject to the conditions and restrictions applicable to the unvested Restricted Stock. Except as described in the Plan, no adjustments are made for dividends or other rights if the applicable record date occurs before an appropriate book entry is made (or your certificate is issued).

Your Restricted Stock grant shall be subject to the terms of any applicable agreement of merger, liquidation, or reorganization in the event the Company is subject to such corporate activity.

 

  2. Except as set forth above in this Amendment, the Agreements shall remain in full force and effect.

Exhibit 10.5

WALKER & DUNLOP, INC.

MANAGEMENT DEFERRED STOCK UNIT PURCHASE PLAN

DEFERRED STOCK UNIT AGREEMENT

AMENDMENT

WHEREAS, Walker & Dunlop, Inc., a Maryland corporation (the “ Company ”), previously granted deferred stock units (the “ Deferred Stock Units ”) relating to shares of its common stock, par value $0.01 per share (the “ Stock ”), to the undersigned Participant under the Company’s Management Deferred Stock Unit Purchase Plan and pursuant to the Deferred Stock Unit Agreement(s) set forth on the signature page hereto (the “ Agreement ”), in respect of the Participant’s election to purchase shares of Stock with the Participant’s annual incentive bonus; and

WHEREAS, the Company and the Participant desire to amend the Agreement to provide that, upon the Company’s declaration and payment of a cash dividend on outstanding Stock, the Participant will be entitled to receive a dividend equivalent right for each Deferred Stock Unit the Participant holds as of the record date equal to the per-share dividend paid on the Stock, and such dividend equivalent right shall be paid in cash at the same time paid to other stockholders of the Company as of the record date for such dividend.

NOW, THEREFORE, the Company and the undersigned Participant hereby agree to amend the Agreement (the “ Amendment ”), effective as of the date set forth below, as follows:

 

  1. The section of the Agreement titled “Stockholder Rights” is hereby amended in its entirety to read as follows:

You have no rights as a stockholder with respect to the Deferred Stock Units unless and until the Stock relating to the Deferred Stock Units has been delivered to you. You will, however, be entitled to receive, upon the Company’s payment of a cash dividend on outstanding Stock, a dividend equivalent for each Deferred Stock Unit that you hold as of the record date for such dividend equal to the per-share dividend paid on the Stock. Such dividend equivalent shall be paid in cash at the same time paid to other stockholders of the Company as of the record date for such dividend and shall not be subject to the Deferral Election.

 

  2. Except as set forth above in this Amendment, the Agreement shall remain in full force and effect.


IN WITNESS WHEREOF, the Company and the undersigned Participant have executed this Amendment as of this              day of                  , 2015.

 

Company:

 

(Signature)
Name:

 

Title:

 

Participant:

 

(Signature)
Name:

 

Deferred Stock Unit

Agreement, dated:

 

Deferred Stock Unit

Agreement, dated:

 

 

2

EXHIBIT 31.1

SARBANES-OXLEY ACT SECTION 302 CERTIFICATIONS

I, William M. Walker, certify that:

 

1. I have reviewed this report on Form 10-Q of Walker & Dunlop, Inc.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures as defined in Exchange Act Rules 13a-15(e) and 15d-15(e) and internal control over financial reporting as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: May 6, 2015 By:

/s/ William M. Walker

William M. Walker
Chairman and Chief Executive Officer

EXHIBIT 31.2

SARBANES-OXLEY ACT SECTION 302 CERTIFICATIONS

I, Stephen P. Theobald, certify that:

 

1. I have reviewed this report on Form 10-Q of Walker & Dunlop, Inc.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures as defined in Exchange Act Rules 13a-15(e) and 15d-15(e) and internal control over financial reporting as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: May 6, 2015 By:

/s/ Stephen P. Theobald

Stephen P. Theobald
Executive Vice President, Chief Financial Officer and Treasurer

EXHIBIT 32

CERTIFICATION OF THE

CHIEF EXECUTIVE OFFICER AND

CHIEF FINANCIAL OFFICER

OF WALKER & DUNLOP, INC.

PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED

PURSUANT TO SECTION 906 OF THE

SARBANES-OXLEY ACT OF 2002

In connection with the quarterly report on Form 10-Q of Walker & Dunlop, Inc. for the period ended March 31, 2015 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), each of the undersigned officers of Walker & Dunlop, Inc., hereby certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

1. The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Walker & Dunlop, Inc.

 

Date: May 6, 2015 By:

/s/ William M. Walker

William M. Walker
Chairman and Chief Executive Officer
By:

/s/ Stephen P. Theobald

Stephen P. Theobald
Executive Vice President, Chief Financial Officer and Treasurer