As filed with the Securities
and Exchange Commission on December 8, 2014
Registration
Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________
ANNALY CAPITAL MANAGEMENT, INC.
(Exact Name of Registrant as Specified in
its Charter)
Maryland |
22-3479661 |
(State or Other Jurisdiction of |
(I.R.S. Employer |
Incorporation or Organization) |
Identification No.) |
1211 Avenue of the Americas, 41st Floor
New York, New York 10036
(212) 696-0100
(Address, Including Zip Code, and Telephone
Number, including Area Code, of Registrant’s Principal Executive Offices)
______________
Wellington J. Denahan
Chairman of the Board and Chief
Executive Officer
Annaly Capital Management, Inc.
1211 Avenue of the Americas, 41st Floor
New York, New York 10036
(212) 696-0100
(Name, Address, Including Zip Code, and
Telephone Number, including Area Code, of Agent for Service)
______________
Copies to:
R. Nicholas Singh, Esq. |
Phillip J. Kardis, II, Esq. |
Annaly Capital Management, Inc. |
Robert K. Smith, Esq. |
1211 Avenue of the Americas, 41st Floor |
K&L Gates LLP |
New York, New York 10036 |
1601 K Street, N.W. |
(212) 696-0100 |
Washington, DC 20006 |
|
(202) 778-9401 |
Approximate date of commencement of proposed
sale to the public: From time to time or at one time after the effective date of the Registration Statement as the Registrant
shall determine.
If the only securities being registered
on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
o
If any of the securities being registered
on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box.
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering.
o
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. o
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
o
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, or a non-accelerated filer or a smaller reporting company. See definition of “accelerated
filer and large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer x |
Accelerated filer o |
Non-accelerated filer o |
Smaller reporting company o |
|
(Do not check if a smaller reporting company) |
|
CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be
Registered |
Amount to be
Registered |
Proposed Maximum
Aggregate
Price Per Share |
Proposed Maximum
Aggregate
Offering Price |
Amount of
Registration Fee (1) |
Common Stock (2) |
100,000,000 |
$11.47 |
$1,147,000,000 |
$133,281.40 |
| (1) | Calculated pursuant to Rule 457(c), based on the average high and low prices reported on the New York Stock Exchange on
December 5, 2014. |
| (2) | Plus such additional shares as may be issued by reason of stock splits, stock dividends or similar transactions. |
| (3) | Pursuant to Rule 457(p) under the Securities Act, filing fees aggregating $180,953.40 have already been paid with
respect to securities registered pursuant to the
Registrant’s registration statement on Form S-3 (File No. 333-178214)
initially filed with the Securities and Exchange Commission on November 29, 2011, of which $179,889.87 relate to unsold
securities and is being carried forward. As a result, the Registrant is offsetting all of the registration fee of
$133,281.40 due for this offering against the $179,889.87 that is remaining from the registration fee previously paid. |
PROSPECTUS
DIVIDEND REINVESTMENT AND SHARE PURCHASE
PLAN
The Dividend Reinvestment
and Share Purchase Plan, or the Plan, is designed to provide current holders of our common stock, par value $.01 per share, and
other interested investors with a convenient and economical method to invest funds and reinvest dividends in shares of our common
stock.
By participating in
the Plan, you may purchase additional shares of our common stock by reinvesting some or all of the cash dividends that you receive
on your shares of our common stock. If you elect to participate in the Plan, you may also make optional cash purchases of shares
of our common stock of between $250 and $10,000 per month and, with our prior approval, in excess of $10,000 per month. For purchases
under $10,000, (i) if the shares are purchased in the open market, the purchase price will be the weighted average price per share
of the shares of our common stock on the Investment Date, and (ii) if the shares are purchased directly from us, the purchase
price will be equal to 100% of the unsolicited volume weighted average price, rounded to four decimal places, of the shares of
our common stock as reported by the New York Stock Exchange only, obtained from Bloomberg, LP for the trading hours from 9:30 a.m.
to 4:00 p.m., Eastern Standard Time, on the Investment Date (including the last trade on the New York Stock Exchange even if reported
after 4:00 p.m.). Shares of our common stock purchased under the Plan in excess of $10,000 per month may be acquired at discounts
from the prevailing market price as determined by us from time to time, as described in this prospectus.
The terms of the Plan
include:
| • | Any holder of shares of our common stock may elect to participate in the Plan. |
| • | Interested new investors who are not currently holders of our common stock may make their initial
purchase through the Plan with a minimum initial investment of $1,000. |
| • | Up to a 3% discount on optional cash purchases of shares in excess of $10,000 per month purchased
under the Plan. |
| • | Full or partial dividend reinvestment options. |
| • | Optional cash purchases of between $250 and $10,000 per month and, with our prior approval, optional
cash purchases in excess of $10,000 per month. |
| • | Available certificate safekeeping in book-entry form at no charge to you. |
| • | Detailed recordkeeping and reporting will be provided at no charge to you. |
| • | Optional automatic investment withdrawals from your U.S. bank account. |
This prospectus relates
to the offer and sale of up to 100,000,000 authorized but unissued shares of our common stock under the Plan. Participants should
retain this prospectus for future reference.
The New York Stock
Exchange lists our common stock under the symbol “NLY.”
Investing in our
securities involves a high degree of risk. You should consider carefully the risk factors in our most recent Annual Report on Form
10-K, and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, which are incorporated by reference in
this prospectus.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is December 8, 2014.
TABLE OF CONTENTS
You should rely only
on the information contained in or incorporated by reference into this prospectus. We have not authorized any other person to provide
you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We
are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. The information
in this prospectus is accurate only as of the date such information is presented. Our business, financial condition, results of
operations and prospects may have changed since such dates.
A WARNING ABOUT FORWARD-LOOKING STATEMENTS
Certain statements
contained in this prospectus and in the documents incorporated by reference herein may not be based on historical facts and are
“forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (or the Securities
Act), and Section 21E of the Securities Exchange Act of 1934, as amended (or the Exchange Act). Forward-looking statements, which
are based on various assumptions (some of which are beyond our control), may be identified by reference to a future period or periods
or by the use of forward-looking terminology, such as “may,” “will,” “believe,” “expect,”
“anticipate,” “continue,” or similar terms or variations on those terms or the negative of those terms.
Actual results could differ materially from those set forth in forward-looking statements due to a variety of factors, including,
but not limited to:
| • | changes in interest rates; |
| • | changes in the yield curve; |
| • | changes in prepayment rates; |
| • | the availability of mortgage-backed securities and other securities for purchase; |
| • | the availability of financing and, if available, the terms of any financings; |
| • | changes in the market value of our assets; |
| • | changes in business conditions and the general economy; |
| • | our ability to grow the commercial mortgage business; |
| • | credit risks related to our investments in commercial real estate assets and corporate debt; |
| • | our ability to consummate any contemplated investment opportunities; |
| • | changes in government regulations affecting our business; |
| • | our ability to maintain our qualification as a real estate investment trust (or REIT) for federal
income tax purposes; |
| • | our ability to maintain our exemption from registration under the Investment Company Act of 1940,
as amended; and |
| • | risks associated with the businesses of our subsidiaries, including the investment advisory businesses
of a wholly-owned subsidiary and the broker-dealer business of a wholly-owned subsidiary. |
For a discussion of
the risks and uncertainties which could cause actual results to differ from those contained in the forward-looking statements,
please see the information under the caption “Risk Factors” described in our Annual Report on Form 10-K for the fiscal
year ended December 31, 2013 and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, which are incorporated
by reference in this prospectus. We do not undertake, and specifically disclaim any obligation, to publicly release the result
of any revisions which may be made to any forward-looking statements to reflect the occurrence of anticipated or unanticipated
events or circumstances after the date of such statements.
ABOUT ANNALY CAPITAL MANAGEMENT, INC.
We are a leading mortgage
REIT that is externally managed by Annaly Management Company LLC (or Manager). Our common stock is listed on the New York Stock
Exchange under the symbol “NLY.” Since our founding in 1997, we have strived to generate net income for distribution
to our stockholders through the prudent selection and management of our investments.
We own a portfolio
of real estate related investments. We use our capital coupled with borrowed funds to invest in real estate related investments,
earning the spread between the yield on our assets and the cost of our borrowings and hedging activities.
We are primarily organized
around the following operations:
Annaly, the parent company |
|
Invests primarily in various types of Agency mortgage-backed securities and related derivatives to hedge these investments. |
|
|
|
Annaly Commercial Real Estate Group, Inc. (or ACREG) (formerly known as CreXus Investment Corp. (or CreXus)) |
|
Wholly-owned subsidiary that was acquired during the second quarter of 2013 and specializes in acquiring, financing and managing commercial loans and other commercial real estate debt, commercial mortgage-backed securities and other commercial real estate-related assets. |
|
|
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RCap Securities, Inc. |
|
Wholly-owned subsidiary that operates as a broker-dealer, and is a member of the Financial Industry Regulatory Authority. |
|
|
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Fixed Income Discount Advisory Company (or FIDAC) |
|
Wholly-owned subsidiary that manages an affiliated REIT for which it earns fee income. |
|
|
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Annaly Middle Market Lending LLC |
|
Wholly-owned subsidiary that engages in corporate middle market lending transactions. |
|
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Shannon Funding LLC |
|
Wholly-owned subsidiary that acquires residential mortgage loans and provides warehouse financing to residential mortgage originators in the United States. |
We are a Maryland
corporation that commenced operations on February 18, 1997. We have elected to be taxed as a REIT under the Internal Revenue Code
of 1986, as amended (or the Code) and believe that we are organized and have operated in a manner that qualifies us to be taxed
as a REIT. If we qualify for taxation as a REIT, we generally will not be subject to federal income tax on our taxable income that
is distributed to our stockholders. Therefore, substantially all of our assets, other than our taxable REIT subsidiaries, consist
of qualified REIT real estate assets (of the type described in Section 856(c)(5)(B) of the Code).
To ensure we qualify
as a REIT, no person may own more than 9.8% of the outstanding shares of any class of our common stock or our preferred stock,
unless our Board of Directors waives this limitation.
Corporate Information
Our principal executive
offices are located at 1211 Avenue of the Americas, 41st Floor, New York, New York 10036. Our telephone number is (212)
696-0100.
RISK FACTORS
You should consider
carefully the risk factors incorporated into this prospectus by reference to our Annual Report on Form 10-K for the fiscal year
ended December 31, 2013, and any risk factors contained in subsequent Quarterly Reports on Form 10-Q or Current Reports on Form
8-K, before deciding to invest in our securities.
DIVIDEND REINVESTMENT AND SHARE PURCHASE
PLAN
The Plan provides
holders of record of our common stock an opportunity to automatically reinvest all or a portion of their cash distributions received
on common stock in additional shares of our common stock as well as to make optional cash payments to purchase shares of our common
stock. Persons who are not already stockholders may also purchase our common stock under the Plan through optional cash payments.
The Plan will be administered by the Administrator, which will be Computershare Trust Company, N.A., or any successor bank or trust
company that we may from time to time designate. The Administrator, or its designated affiliates, will buy, at our option, newly
issued common stock directly from us or common stock in the open market or in negotiated transactions with third parties. Our common
stock purchased directly from us under the Plan may be priced at a discount from market prices at the time of the investment (determined
in accordance with the Plan) ranging from 0% to 3% in connection with optional cash purchases in excess of $10,000 per month. We
refer to the date on which the Administrator purchases whole and fractional shares from your cash dividend, or initial and subsequent
additional cash purchases as being the Investment Date. Any discount established by us for any Investment Date may be adjusted
or suspended for any subsequent Investment Date. Please see “Description of the Plan” beginning on page 9 of this prospectus.
USE OF PROCEEDS
We
intend to use the net proceeds from the sale of the securities offered by this prospectus for the purchase of assets in accordance
with our investment strategy and, within the confines of the risk appetite statement, that are within our targeted asset classes.
Our investment strategy, risk appetite statement, and targeted asset classes are set forth in our Annual Report on Form 10-K for
the fiscal year ended December 31, 2013, and in subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K.
The board of directors has the power to modify or waive these policies and strategies without the
consent of the stockholders to the extent that the board of directors determines that the modification or waiver is in the best
interests of our stockholders. Among other factors, developments in the market which affect our policies and strategies or which
change our assessment of the market may cause our board of directors to revise our policies and strategies or targeted asset classes.
DESCRIPTION OF THE PLAN
The Plan offers a
variety of convenient, low-cost services to make it easier for you to invest in our common stock. The Plan, which is described
in this section, has various features and you can choose the Plan features that meet your investment needs. The Plan is designed
for long-term investors who wish to invest and build their share ownership over time. The Plan offers a convenient and economical
means to own shares. Unlike an individual stock brokerage account, the timing of purchases and sales is subject to the provisions
of the Plan, as discussed below. In addition, the Plan will provide us with a means of raising additional capital for general corporate
purposes through the sale of common stock under the Plan.
You can participate
in the Plan if you are a registered holder of our common stock. If you do not own our common stock, you can become a participant
by making your initial purchase directly through the Plan. The Plan offers you the opportunity to reinvest dividends and provides
an alternative to traditional methods of buying, holding and selling our common stock. The Administrator administers the Plan.
Key features of the Plan
Anyone can participate
If you currently own
our common stock registered in your name you may participate in the Plan. If you do not own any of our common stock, you can participate
in the Plan by making your initial investment in common stock through the Plan with an initial investment of at least $1,000 and,
unless we approve a Request for Waiver, not more than $10,000. Alternatively, you may authorize the recurring automatic monthly
investment feature and initiate your investment with only $250 and a commitment for at least four sequential purchases. We may
change these minimum and maximum amounts at any time in our sole discretion.
Automatic dividend reinvestment
You can reinvest your
dividends in additional shares of our common stock. Your dividends will be used to buy additional shares of our common stock on
the dividend reinvestment date.
Optional cash purchases up
to $10,000
You can buy shares
of our common stock without paying services charges if you are a participant in the Plan. You can make monthly investments of as
little as $250 (or $1,000 in the case of your initial investment), or as much as $10,000, and you can pay either by check or have
your payment automatically deducted from your bank account. We may change these minimum and maximum amounts at any time in our
sole discretion or we may suspend the right to make optional cash purchases for any monthly period or periods.
Optional cash purchases in
excess of $10,000
Optional cash purchases
in excess of $10,000 per month may be made pursuant to a written request and are not subject to a predetermined maximum limit on
the amount of the investment. The discount, if any, on optional cash purchases in excess of $10,000 per month made pursuant to
such requests will range from 0% to 3% and will be established at our discretion, along with, any other terms, after a review of
current market conditions, the level of participation and our current and projected capital needs.
Convenient share sales
You can sell our common
stock acquired through the Plan through the Administrator and pay fees that may be lower than those typically charged by stockbrokers
for small transactions.
Full investment
Full investment of
your funds is possible because you will be credited with both whole shares and fractional shares. Dividends will be paid not only
on whole shares but also proportionately on fractional shares.
Share safekeeping
You can deposit your
common stock certificates with the Administrator for safekeeping, at no cost to you. You can request withdrawal of any or all of
your whole shares of our common stock. A certificate for those shares will be sent to you, if you so request one.
Gifts and other share transfers
You can make gifts
to others of our common stock in your Plan account.
Transaction reporting
You will receive a
notice after each transaction showing the details and the share balance in your Plan account.
Questions and answers describing terms
and conditions of the Plan
| 1. | Can I participate in the Plan? |
If you already own
our common stock and the shares are registered in your name, you may participate immediately. If your shares are held for you in
a brokerage account, you may make arrangements with your stockbroker to have some or all of the shares of our common stock registered
directly in your name. If you do not currently own any of our common stock, you can participate by making an initial investment
in our common stock through the Plan. Please see Question 8 for details regarding an initial investment. If you live outside the
United States, you should first determine if there are any laws or governmental regulations that would prohibit your participation
in the Plan. We reserve the right to terminate participation of any stockholder if we deem it advisable under any applicable laws
or regulations.
Enrollment is available
on-line at www.computershare.com/investor through Investor Centre. Alternatively, you can get started in the Plan by completing
an enrollment form along with the items required and mailing them to the Administrator. Your participation will begin promptly
after your authorization is received. Once you have enrolled, your participation continues automatically, until you notify us otherwise.
| 3. | How do I reinvest dividends? |
You can choose to
reinvest all or a portion of the cash dividends paid on shares of our common stock you own in additional shares of our common stock.
To be effective with respect to a particular dividend, notice of your election must be received before the record date for that
dividend. A record date for a dividend normally precedes the payment of the dividend by approximately four weeks. You may change
your election at any time by notifying the Administrator. To be effective with respect to a particular dividend, any such change
must be received by the Administrator before the record date for that dividend. If you elect to reinvest your dividends, you must
choose one of the following options:
| - | Full dividend reinvestment. You may purchase additional shares of our common stock by reinvesting
all of your cash dividends. |
| - | Partial dividend reinvestment. You may purchase additional shares of our common stock by
reinvesting some of your dividends and receive the balance of your dividends in cash. You may, of course, choose not to reinvest
your dividends, in which case the Administrator will remit any dividends to you by check. |
| 4. | When are dividends reinvested? |
If you have chosen
the dividend reinvestment feature and notice of such change has been received by the Administrator before the record date for that
dividend, the Administrator will invest dividends in additional shares of our common stock purchased on the open market or directly
from us as promptly as practicable, on or after the dividend payment date. In the unlikely event that, due to unusual market conditions,
the Administrator is unable to invest the funds within 30 days, the Administrator will remit the funds to you by check. No interest
will be paid on funds held by the Administrator pending investment.
| 5. | What is the source of shares to be purchased under the
Plan? |
All dividends reinvested
through the Plan and all optional cash purchases will be used to purchase, in our sole discretion, either newly-issued shares directly
from us or shares on the open market or a combination thereof. Share purchases on the open market may be made on any stock exchange
where our common stock is traded or through negotiated transactions, on such terms as the Administrator determines. Shares purchased
directly from us will consist of authorized but unissued shares of common stock.
| 6. | At what price will shares be purchased? |
The price of shares
for dividend reinvestment and optional cash purchases of less than $10,000 will be determined as follows:
| • | If the shares are purchased in the open market, the purchase price will be the weighted average
price per share of shares on the Investment Date plus applicable trading fees. |
| • | If the shares are purchased from us, the purchase price will be equal to 100% of the unsolicited
volume weighted average price, rounded to four decimal places, of the shares of our common stock as reported by the New York Stock
Exchange only, obtained from Bloomberg, LP for the trading hours from 9:30 a.m. to 4:00 p.m., Eastern Standard Time, on the Investment
Date (including the last trade on the New York Stock Exchange even if reported after 4:00 p.m.). |
The purchase price
for optional cash purchases in excess of $10,000 per month is discussed in response to Question 10.
| 7. | When will shares be purchased under the Plan? |
The Investment
Date is the date or dates on which the Administrator purchases shares of our common stock for the Plan, as described below.
Dividend Reinvestments.
If the Administrator acquires shares directly from us, it will combine the dividend funds of all Plan participants whose dividends
are automatically reinvested and will generally invest such dividend funds on the dividend payment date. If the dividend payment
date falls on a day that is not a NYSE trading day, then the Investment Date will be the next trading day. If the Administrator
acquires shares from parties other than us through open market transactions, such purchases will occur during a period beginning
on the dividend payment date, and continue on and any succeeding trading days necessary to complete the order. To be effective
with respect to a particular dividend, notice of your election must be received before the record date for that dividend. A record
date for a dividend normally precedes the payment of the dividend by approximately four weeks.
Initial and Optional
Cash Purchases up to $10,000. If the Administrator acquires shares directly from us, then the Investment Date for optional
cash purchases up to $10,000 will be on the twenty-fifth calendar day of each month, or the next trading day if the twenty-fifth
day is not a trading day. If the Administrator acquires shares from third parties other than us through open market transactions,
it will attempt to buy our common stock in the open market through a registered broker-dealer. Such purchases will begin on the
twenty-fifth calendar day of each month, or the next trading day if the twenty-fifth day is not a trading day, and will be completed
no later than 35 days following such date, except where completion at a later date is necessary or advisable under any applicable
laws or regulations.
In the unlikely event
that, due to unusual market conditions, the Administrator is unable to invest the funds within 30 days for reinvested dividends
and 35 days for optional cash purchases, the Administrator will return the funds to you by check. No interest will be paid on funds
held by the Administrator pending investment.
To be effective with
respect to a particular Investment Date, initial investments and optional cash purchases must be received by the Administrator
at least one business day prior to the applicable Investment Date.
Initial and Optional
Cash Purchases in Excess of $10,000. The Investment Dates for optional cash purchases in excess of $10,000 per month are discussed
in response to Question 10.
| 8. | How do I make an initial investment? |
If you do not own
our common stock in a Plan account, you can make an initial cash purchase for as little as $1,000, but your initial cash purchase
cannot exceed $10,000 unless we approve a Request for Waiver. Your initial cash purchase can be made:
Via on-line enrollment
by:
| • | Opening your account on-line and sending your initial investment of $1,000 or more. |
Using
the Initial Enrollment Form and:
| • | Making one payment (minimum of $1,000) by check (in U.S. dollars and drawn on a U.S. bank) payable
to Computershare/Annaly Capital Management, Inc. |
Using
the Initial Enrollment Form and the Direct Debit Authorization Form:
| • | Authorizing the recurring automatic monthly investment
feature and initiating your investment with only $250 and a commitment for at least four sequential purchases. |
We may change these
minimum and maximum amounts at any time in our sole discretion or we may suspend the right to make optional cash payment or payments
for any monthly period. In addition, in certain instances, we may permit optional cash purchases in excess of the maximum amount
established by us.
All Plan accounts
that we believe to be under common control or management or to have common ultimate beneficial ownership may be aggregated for
purposes of determining compliance with the maximum purchase requirement limit. Unless we have determined that reinvestment of
dividends and optional cash purchases for each such account would be consistent with the purposes of the Plan, we will have the
right to aggregate all such accounts and to return, without interest, within thirty days of receipt, any amounts in excess of the
investment limitations applicable to a single account received in respect of all such accounts.
| 9. | How do I make optional cash purchases of less than $10,000? |
If you already own
our common stock and are enrolled in the Plan and want to make additional purchases, you can authorize a one-time online individual
automatic deduction from your U.S. bank account at www.computershare.com/investor through Investor Centre or send a check to the
Administrator for each purchase. If you choose to submit a check, please be sure to include the contribution form from your Plan
statement and mail it to the address specified on the statement. The check must be made payable to “Computershare/Annaly
Capital Management, Inc.” in U.S. dollars and drawn on a U.S. bank. The Administrator will not accept cash, money orders,
traveler’s checks or third party checks. Or, if you wish to make regular monthly purchases, you may authorize recurring automatic
monthly deductions from your U.S. bank account. This feature enables you to make ongoing investments in an amount that is comfortable
for you, without having to write a check. You may elect the recurring monthly automatic deduction option by completing and signing
a direct debit authorization form and returning this form to the Administrator, together with a voided blank check or savings account
deposit slip for the bank account from which the funds are to be withdrawn. Additional direct debit authorization forms are available
through the Administrator. You may also enroll online at www.computershare.com/investor through Investor Centre. Your direct debit authorization
forms will be processed and will become effective as promptly as practical. You should allow four to six weeks for the first investment
to be initiated using this recurring monthly automatic deduction feature. Additional cash purchases are subject to a minimum purchase
requirement of $250 per investment and a maximum of $10,000.
In the event that
any check, electronic funds transfer or other deposit is returned unpaid for any reason, or your designated U.S. bank account does
not have sufficient funds for an automatic debit, the Administrator will consider the request for investment of that purchase null
and void and will immediately remove from your account any shares already purchased in anticipation of receiving those funds. If
the net proceeds from the sale of those shares are insufficient to satisfy the balance of the uncollected amounts, the Administrator
may sell additional shares from your account as necessary to satisfy the uncollected balance. There is a $35.00 fee for any check
or other deposit that is returned unpaid by your bank and for any failed automatic deduction from your designated U.S. bank account.
This fee will be collected by the Administrator through the sale of the number of shares from your Plan account necessary to satisfy
the fee.
| 10. | How do I make monthly optional cash purchases in excess
of $10,000? |
You may ascertain
whether we are accepting requests to make optional cash purchases in excess of $10,000 in any given month, and certain other important
information, by contacting the Administrator at 1-800-301-5234. You should generally contact the Administrator on the first business
day of the month to determine whether we are accepting such requests.
Request for Waiver.
If you wish to make an optional cash purchase in excess of $10,000 (or other maximum amount established by us) for any month, you
must obtain our prior written approval and a copy of such written approval must accompany any such optional cash purchase. We refer
to such a request as being a Request for Waiver. We have sole discretion to grant any approval for optional cash purchases in excess
of the allowable maximum amount. Unless you have complied with these procedures, any amount you submit for investment over $10,000
will be returned to you without interest.
You may make a Request
for Waiver by contacting the Administrator at 1-800-301-5234. Completed Request for Waiver forms should be submitted to the Administrator
no later than two business days prior to the applicable Pricing Period.
The Administrator
will notify you as to whether your Request for Waiver has been granted or denied, either in whole or in part, within one business
day of the receipt of your request. If your Request for Waiver is granted in part, the Administrator will advise you of the maximum
amount that will be accepted from you in connection with your purchase. If your request is approved, the Administrator must receive
the funds for your purchase prior to or on the applicable date specified by the Administrator for the relevant Pricing Period (which
typically will be one business day prior to the applicable Pricing Period). If you do not receive a response from the Administrator
in connection with your Request for Waiver, you should assume that we have denied your request.
We may alter, amend,
supplement or waive, in our sole discretion, the time periods and/or other parameters relating to optional cash purchases in excess
of $10,000 made by one or more participants in the Plan or new investors, at any time and from time to time, prior to the granting
of any Request for Waiver. For more information regarding a particular Pricing Period (including applicable Pricing Period start
dates), please contact the Administrator at 1-800-301-5234.
Purchase Price
of Shares for Optional Cash Purchases in Excess of $10,000. Shares purchased pursuant to an approved Request for Waiver will
be purchased directly from us as described herein, including the establishment of a "Threshold Price" as more fully described
below. The Purchase Price may be reduced by the Waiver Discounts that we have provided for optional cash purchases in excess of
$10,000 on each Investment Date. If we grant your request to purchase shares pursuant to a Request for Waiver, there will be a
Pricing Period, which will generally consist of one to 12 separate days during which trading of our common stock is reported on
the New York Stock Exchange during the applicable Pricing Period. Each of these separate days will be an Investment Date, and an
equal proportion of your optional cash purchase will be invested on each trading day during such Pricing Period, subject to the
qualifications listed below. The purchase price for shares acquired on a particular Investment Date will be equal to 100% (subject
to change as provided below) of the unsolicited volume weighted average price, rounded to four decimal places, of our common stock
as reported by the New York Stock Exchange only, obtained from Bloomberg, LP for the trading hours from 9:30 a.m. to 4:00 p.m.,
Eastern Standard Time, for that Investment Date (including the last trade on the New York Stock Exchange even if reported after
4:00 p.m.).
The Administrator
will apply all optional cash purchases made pursuant to a Request for Waiver for which good funds are received on or before the
first business day before the Pricing Period to the purchase of shares of our common stock on each Investment Date of the applicable
Pricing Period.
Threshold Price.
We may establish for a Pricing Period a minimum price (or the Threshold Price) applicable to optional cash purchases made pursuant
to a Request for Waiver. At least three business days prior to the first day of the applicable Pricing Period, we will determine
whether to establish a Threshold Price, and if the Threshold Price is established, its amount, and will so notify the Administrator.
This determination will be made by us in our discretion after a review of current market conditions, the level of participation
in the Plan, and current and projected capital needs.
If established for
any Pricing Period, the Threshold Price will be stated as a dollar amount that the unsolicited volume weighted average price, rounded
to four decimal places, of our common stock as reported on the New York Stock Exchange, obtained from Bloomberg, LP for the trading
hours from 9:30 a.m. to 4:00 p.m., Eastern Standard Time (including the last trade on the New York Stock Exchange even if reported
after 4:00 p.m.), for each trading day of such Pricing Period (not adjusted for discounts, if any) must equal or exceed. Except
as provided below, we will exclude from the Pricing Period any trading day that the unsolicited volume weighted average price is
less than the Threshold Price. We also will exclude from the Pricing Period and from the determination of the purchase price any
day in which no trades of common stock are made on the New York Stock Exchange. For example, if the Threshold Price is not met
for two of the trading days in a 10 day Pricing Period, then we will return 20% of the funds you submitted in connection with your
Request for Waiver unless we have activated the pricing period extension feature for the Pricing Period which is described below.
Pricing Period
Extension Feature. We may elect to activate for any particular Pricing Period the pricing period extension feature which will
provide that the initial Pricing Period will be extended by the number of days that the Threshold Price is not satisfied, or on
which there are no trades of our common stock reported by the New York Stock Exchange, subject to a maximum of five trading days.
If we elect to activate the pricing period extension feature and the Threshold Price is satisfied for any additional day that has
been added to the initial Pricing Period, that day will be included as one of the trading days for the Pricing Period in lieu of
the day on which the Threshold Price was not met or trades of our common stock were not reported. For example, if the determined
Pricing Period is 10 days, and the Threshold Price is not satisfied for three out of those 10 days in the initial Pricing Period,
and we had previously announced at the time of the Request for Waiver acceptance that the pricing period extension feature was
activated, then the Pricing Period will automatically be extended, and if the Threshold Price is satisfied on the next three trading
days (or a subset thereof), then those three days (or a subset thereof) will become Investment Days in lieu of the three days on
which the Threshold Price was not met. As a result, because there were 10 trading days during the initial and extended Pricing
Period on which the Threshold Price was satisfied, all of the optional cash purchase will be invested.
Continuous Settlement
Feature. Newly issued shares purchased pursuant to a request for waiver will be posted to participants’ accounts within
three (3) business days following the end of the applicable pricing period, or, if we elect to activate the continuous settlement
feature, within three (3) business days of each separate investment date beginning on the first investment date in the relevant
pricing period and ending on the final investment date in the relevant pricing period, with an equal amount being invested on each
day, subject to the qualifications set forth above. During any month when we are proposing to grant requests for waiver for one
or more investments, we may elect to activate the continuous settlement feature for such investments by announcing in the bid-waiver
form that we will be doing so. The purchase price of shares acquired on each investment date will be equal to 100% of the unsolicited
volume weighted average price, rounded to four decimal places, of our common stock as reported by the New York Stock Exchange only,
obtained from Bloomberg, LP for the trading hours from 9:30 a.m. to 4:00 p.m., Eastern Standard Time (including the last trade
on the New York Stock Exchange even if reported after 4:00 p.m.), for each of the investment dates during the pricing period, assuming
the threshold price is met on that day, less any discount that we may decide to offer. For each pricing period (assuming the threshold
price is met on each trading day of that pricing period), we would have a separate settlement of each investment dates’ purchases,
each based on the volume-weighted average price for the trading day relating to each of the investment dates during the pricing
period.
Return of Unsubscribed
Funds. We will return a portion of each optional cash purchase in excess of $10,000 for each trading day of a Pricing Period
or extended Pricing Period, if applicable, for which the Threshold Price is not met or for each day in which no trades of common
stock are reported on the New York Stock Exchange ("unsubscribed funds"). Any unsubscribed funds will be returned within
five business days after the last day of the Pricing Period, or if applicable, the extended Pricing Period, without interest. The
amount returned will be based on the number of days during which the Threshold Price was not met with compared to the number of
days in the Pricing Period or extended Pricing Period. For example, the returned amount in a 10 day Pricing Period will equal one-tenth
(1/10) of the total amount of such optional cash purchase (not just the amount exceeding $10,000) for each trading day that the
Threshold Price is not met or for each trading day in which sales are not reported.
The establishment
of the Threshold Price and the possible return of a portion of the investment applies only to optional cash purchases in excess
of $10,000. Setting a Threshold Price for a Pricing Period will not affect the setting of a Threshold Price for any other Pricing
Period. We may waive our right to set a Threshold Price for any particular Pricing Period. Neither we nor the Administrator is
required to give you notice of the Threshold Price for any Pricing Period.
Waiver Discount.
Each month, at least three business days prior to the first day of the applicable Pricing Period, the same time the Threshold Price
is determined, we may establish discounts from the market price applicable to optional cash purchases made pursuant to a Request
for Waiver. These discounts (or the Waiver Discounts) may be between 0% and 3% of the purchase price, and may vary each month and
for each purchaser.
The Waiver Discounts
will be established at our sole discretion after a review of current market conditions, the level of participation in the Plan,
the attractiveness of obtaining such additional funds through the sale of common stock as compared to other sources of funds and
current and projected capital needs. You may obtain the Waiver Discounts applicable to the next month by contacting the Administrator
at 1-800-301-5234. Setting Waiver Discounts for a particular month shall not affect the setting of Waiver Discounts for any subsequent
month. The Waiver Discounts will apply only to optional cash purchases of more than $10,000 (or other applicable maximum monthly
amount). The Waiver Discounts will apply to the entire optional cash purchase and not just the portion of the optional cash purchase
that exceeds $10,000.
| 11. | Will I receive certificates for shares purchased? |
No, because the Plan
provides for share safekeeping. For your convenience, the Administrator will maintain shares purchased under the Plan in your name
in non-certificated form. You may, however, request a stock certificate from the Administrator at any time.
Shares of our common
stock that you buy under the Plan will be maintained in your Plan account in certificated form for safekeeping. Safekeeping protects
your shares against loss, theft or accidental destruction and also provides a convenient way for you to keep track of your shares.
Only shares held in safekeeping may be sold through the Plan.
If you own our common
stock in certificate form, you may deposit your certificates for those shares with the Administrator, free of charge. If you wish
to submit your stock certificate(s) to the Administrator for safekeeping, you should mail them (unendorsed) by registered or certified
mail, with return receipt requested, or some other form of traceable mail, and properly insured. You should also include a note
requesting that they be credited to your Plan account.
| 13. | Can I get stock certificates if I want them? |
Yes. If you should
ever want a stock certificate for all or a portion of the whole shares of our common stock in your Plan account, the Administrator
will send one to you, upon your request, within two days of the receipt of your instructions.
| 14. | How can I transfer or give gifts of shares? |
Please visit the Computershare
Transfer Wizard at www.computershare.com/transferwizard. The Transfer Wizard will guide you through the transfer process, assist
you in completing the transfer form and identify other necessary documentation you may need to provide.
You have four choices
when making a sale, depending on how you submit your sale request, as follows:
Market Order:
A market order is a request to sell shares promptly at the current market price. Market order sales are only available at www.computershare.com/investor
through Investor Centre or by calling the Administrator directly at 1-800-301-5234. Market order sale requests received at www.computershare.com/investor
through Investor Centre or by telephone will be placed promptly upon receipt during market hours (normally 9:30 a.m. to 4:00 p.m.
Eastern Standard Time). Any orders received after 4:00 p.m. Eastern Standard Time will be placed promptly on the next day the market
is open. Depending on the number of shares being sold and current trading volume in the shares, a market order may only be partially
filled or not filled at all on the trading day in which it is placed, in which case the order, or remainder of the order, as applicable,
will be cancelled at the end of such day. To determine if your shares were sold, you should check your account online at www.computershare.com/investor
through Investor Centre or call the Administrator directly at 1-800-301-5234. If your market order sale was not filled and you
still want the shares sold, you will need to re-enter the sale request. The price will be the market price of the sale obtained
by the Administrator’s broker, less a transaction fee of $25.00 per sale and a trading fee of $0.06 per share.
Batch Order:
A batch order is an accumulation of all sale requests for a security submitted together as a collective request. Batch orders are
submitted on each market day, assuming there are sale requests to be processed. Sale instructions for batch orders received by
the Administrator will be processed no later than five business days after the date on which the order is received (except where
deferral is required under applicable federal or state laws or regulations), assuming the applicable market is open for trading
and sufficient market liquidity exists. All sale requests received in writing will be submitted as batch order sales. The Administrator
will seek to sell shares in round lot (100 shares) transactions. For this purpose the Administrator may combine each selling Plan
participant’s shares with those of other selling participants. In every case of a batch order sale, the price to each selling
Plan participant will be the weighted average sale price obtained by the Administrator’s broker for each aggregate order
placed by the Administrator and executed by the broker, less a transaction fee of $15.00 per sale and a trading fee of $0.06 per
share.
Day Limit Order:
A day limit order is an order to sell securities when and if they reach a specific trading price on a specific day. The order is
automatically cancelled if the price is not met by the end of that day (or, for orders placed after-market hours, the next day
the market is open). Depending on the number of securities being sold and the current trading volume in the securities, such an
order may only be partially filled, in which case the remainder of the order will be cancelled. The order may be cancelled by the
applicable stock exchange, by the Administrator at its sole discretion or, if the Administrator’s broker has not filled the
order, at your request made online at www.computershare.com/investor through Investor Centre or by calling the Administrator directly
at 1-800-301-5234. Each day limit order sale will incur a transaction fee of $25.00 per sale and a trading fee of $0.06 per share.
Good-Til-Cancelled
(“GTC”) Limit Order: A GTC limit order is an order to sell securities when and if the securities reach a specific
trading price at any time while the order remains open (generally up to 30 days). Depending on the number of securities being sold
and current trading volume in the securities, sales may be executed in multiple transactions and over more than one day. If an
order remains open for more than one day during which the market is open, a separate fee will be charged for each such day. The
order (or any unexecuted portion thereof) is automatically cancelled if the trading price is not met by the end of the order period.
The order may be cancelled by the applicable stock exchange, by the Administrator at its sole discretion or, if the Administrator’s
broker has not filled the order, at your request made online at www.computershare.com/investor through Investor Centre or by calling
the Administrator directly at 1-800-301-5234. Each GTC limit order sale will incur a transaction fee of $25.00 per sale and a trading
fee of $0.06 per share.
Trading fees include
any applicable brokerage commissions the Administrator is required to pay. Any fractional share will be rounded up to a whole share
for purposes of calculating the trading fee. The Administrator may, for various reasons, require a sales request to be submitted
in writing. Please contact the Administrator to determine if there are any limitations applicable to your particular sale request.
An additional fee of $15.00 will be charged if the assistance of a Customer Service Representative is required when selling shares.
You should be aware
that the price of our common stock may rise or fall during the period between a request for sale, its receipt by the Administrator,
and the ultimate sale on the open market. Instructions for a market order or a batch sale are binding and may not be rescinded.
If you elect to sell
shares online at www.computershare.com/investor through Investor Centre, you may utilize the Administrator’s international
currency exchange service to convert your sale proceeds to your local currency prior to being sent to you. Receiving your sales
proceeds in a local currency and having your check drawn on a local bank avoids the time consuming and costly “collection”
process required for cashing U.S. dollar checks. This service is subject to additional terms and conditions and fees, which you
must agree to online.
The Administrator
reserves the right to decline to process a sale if it determines, in its sole discretion, that supporting legal documentation is
required. In addition, no one will have any authority or power to direct the time or price at which shares for the program are
sold (except for prices specified for day limit orders or GTC limit orders), and no one, other than the Administrator, will select
the broker(s) or dealer(s) through or from whom sales are to be made.
Alternatively, you
may choose to sell your shares through a stockbroker of your choice, in which case you would have to request that the Administrator
deliver to your stockbroker by electronic book-entry means the number of shares you propose to sell, or a stock certificate for
delivery to your stockholder prior to settlement of such sale.
Plan participants
must perform their own research and must make their own investment decisions. Neither we nor the Administrator nor any of its affiliates
will provide any investment recommendations or investment advice with respect to transactions made through the Plan.
| 16. | What are the costs for participation in the Plan? |
There is no fee for
enrolling in the Plan. Participation is voluntary and you may discontinue your participation at any time, however, there are fees
associated with some of the Plan’s services. Please see “Plan Service Fees” below.
| 17. | How can I vote my shares? |
You will receive proxy
material for all whole shares in your Plan account. Fractional shares may not be voted. The proxy will be voted in accordance with
your direction. The Administrator may vote your shares in certain cases if you do not return a proxy to the Administrator.
| 18. | If there is a rights offering related to the common stock,
how will a stockholder’s entitlement be computed? |
Your entitlement in
a rights offering related to the common stock will be based upon the number of whole shares credited to your Plan account. Rights
based on a fraction of a share credited to your Plan account will be sold for that account and the net proceeds will be invested
as an optional cash purchase on the next Investment Date. In the event of a rights offering, transaction processing may be curtailed
or suspended by the Administrator for a short period of time following the record date for such action to permit the Administrator
to calculate the rights allocable to each account.
| 19. | What provisions are made for non-U.S. residents? |
Cash purchases from
non-U.S. residents must be in United States currency and will be invested in the same manner as investments from other stockholders.
Each stockholder is responsible for reviewing the applicable laws of his or her country of residence prior to investing in our
common stock. All dividends will be subject to withholding at the rate of 30%, subject to reduction under the terms of any applicable
tax treaty provisions.
| 20. | How will I keep track of my investments? |
As soon as practicable
after each transaction, you will receive a statement with information about your Plan account, including amounts invested, the
purchase and/or sales prices, and the number of shares purchased and/or sold. This statement will provide a record of purchases
and sales transacted on your behalf under the Plan and you should retain it for income tax purposes. The statement will also include
specific cost basis information in accordance with applicable law. If you continue to participate in the Plan, but have no transactions,
the Administrator will send you an annual statement after the end of the year detailing the status of your holdings of our common
stock in your Plan account.
You are responsible
for any taxes which may be payable on dividends reinvested under the Plan. Additionally, under current tax rulings, your pro-rata
portion of the trading fees paid by us to purchase shares in the open market and any purchase discounts will be considered taxable
income to you. The Administrator will send a Form 1099-DIV to you and the Internal Revenue Service after each year-end, reporting
all dividend income you received during the year on your common stock, including any dividends reinvested, purchase discounts and
pro rata portion of trading fees paid by us to acquire shares in the open market. Trading fees include any applicable brokerage
commissions the Administrator is required to pay.
If you sell shares
through the Plan, the Administrator will send a Form 1099-B to you and the Internal Revenue Service after each year-end, showing
the total proceeds of the transactions.
We recommend that
you keep your transaction statements for record keeping and tax purposes. IRS regulations are subject to change and you should
consult with your tax advisor with respect to the tax treatment of dividends reinvested under the Plan. See the discussion below
under “Material Federal Income Tax Considerations” for more information regarding taxes.
| 22. | How would I terminate my participation in the Plan? |
You may discontinue
the reinvestment of your dividends at any time by giving notice to the Administrator. Notice may be made by telephone, in writing
or by changing your dividend election under the account management service when you access your account on-line at www.computershare.com/investor
through Investor Centre. To be effective for a given dividend payment, the Administrator must receive notice before the record
date of that dividend. If a notice of termination is received by the Administrator after the record date for a dividend payment,
the Administrator, in its sole discretion, may either pay such dividend in cash or reinvest it in shares on behalf of the discontinuing
participant. If such dividend is reinvested, the Administrator may sell the shares purchased and remit the proceeds to the participant,
less any applicable fees.
Upon termination,
the Administrator will continue to hold your whole shares in book-entry form and send you a check for the fractional share, less
any applicable fees, unless you request a certificate for any whole shares. If you request a certificate upon termination, you
will receive a check for any fractional share, less any applicable fees. There is a fee for certificate issuance. Please see “Plan
Service Fees” below. You may also request the sale of all or part of any such shares or have the Administrator transfer your
shares to your brokerage account. See Question 15 for information on selling shares. If your Plan account balance falls below one
full share, the Administrator reserves the right to liquidate the fraction and remit the proceeds, less any applicable fees, to
you at your address of record.
| 23. | Are there any risks associated with the Plan? |
Your investment in
shares purchased under the Plan is no different from any investment in shares you hold directly. Neither we nor the Administrator
can assure a profit or protect you against a loss on shares purchased. You bear the risk of loss and enjoy the benefits of any
gain from market price changes with respect to shares purchased under the Plan. Please see the carefully consider the risk factors
described in our most recent Annual Report on Form 10-K, and all subsequent Quarterly Reports on Form 10-Q or Current Reports on
Form 8-K, which are incorporated by reference in this prospectus.
| 24. | Can the Plan be amended, modified, suspended or terminated? |
We reserve the right
to amend, modify, suspend or terminate the Plan at any time and in any manner. You will receive written notice of any such amendment,
modification, suspension or termination. We and the Administrator also reserve the right to change any administrative procedures
of the Plan.
| 25. | What are Annaly’s responsibilities and those of
the Administrator? |
Neither we nor the
Administrator will be liable for any act we or they do in good faith or for any good faith omission to act including, in the case
of the Administrator, liability arising out of (i) failure to terminate a participant’s account upon such participant’s
death or adjudicated incompetence, prior to the receipt of notice in writing of such death or adjudicated incompetence, (ii) the
prices and times at which shares of common stock are purchased or sold (except for prices specified for day limit orders or GTC
limit orders) for the participant’s account or the terms under which such purchases or sales are made, or (iii) fluctuations
in the market value of our common stock. The payment of dividends is at the discretion of our Board of Directors and will depend
upon future earnings, our financial condition and other factors. Our Board of Directors may change the amount and timing of dividends
at any time without notice.
| 26. | What if I have questions about the Plan? |
Enrollment, purchase
or sale of share requests and other transactions or services offered by the Plan should be directed to the Administrator through
the following:
Internet
You can enroll, change
your dividends election, obtain information, and perform certain transactions on your account online via www.computershare.com/investor
through Investor Centre.
Telephone
Telephone shareholder
customer service, including sale of shares, toll-free within the United States and Canada:
1-800-301-5234
International Telephone
Inquiries:
1-201-680-6578
An automated voice
response system is available 24 hours a day, 7 days a week. Customer Service Representatives are available from 9:00 a.m. to 7:00
p.m., Eastern Standard Time, Monday through Friday (except holidays).
In Writing
You may also write
to the Administrator at the following address:
Computershare Trust
Company, N.A.
P.O. Box 30170
College Station,
TX 77842-3170
Be sure to include
your name, address, daytime phone number, social security or tax I.D. number and a reference to Annaly Capital Management, Inc.
on all correspondence.
This Plan is designed
for the long-term investor and does not afford the same flexibility as a stockbroker's account.
Annaly has appointed
Computershare Trust Company, N.A. as Administrator for the Plan. Securities held by the Administrator in your Plan account are
not subject to protection under the Securities Investor Protection Act of 1970. Commissions may be paid to a broker-dealer that
is affiliated with the Administrator. Investors must make independent investment decisions based upon their own judgment and research.
Annaly is listed on the New York Stock Exchange and trades under the ticker symbol “NLY.”
Plan Service Fees
Purchase of Shares |
|
Enrollment Fee for New Investors |
No Charge |
Initial Purchase of Shares: |
No Charge |
Reinvestment of Dividends: |
No Charge |
Optional cash purchases via check, recurring automatic debit or individual one-time online bank debit |
No Charge |
Trading fees (applicable when shares are acquired or sold in the open market): |
$0.06 per share |
Sale of Shares (partial or full): |
|
Batch Order |
$15.00 per transaction |
Market Order |
$25.00 per transaction |
Day Limit Order |
$25.00 per transaction |
GTC Limit Order |
$25.00 per transaction |
Alternative Currency Disbursement Fees: |
|
US$ or Foreign Currency Wire |
$50.00 per transaction |
Foreign Check |
$15.00 per transaction |
EFT (Direct Deposit – US$ only) |
$10.00 per transaction |
Convenience Fees: |
|
CSR Assisted Sale |
$15.00 per transaction |
Gift or Transfer of Shares |
No Charge |
Safekeeping of Stock Certificates |
No Charge |
Returned Checks for Insufficient Funds or Rejected Automatic Withdrawals |
$35.00 per item |
Duplicate Statements: |
No Charge |
Certificate issuance fee through customer service representative (if not using book-entry format) |
$40.00 per certificate |
Certificate issuance fee through Computershare website (if not using book-entry format) |
$25.00 per certificate |
Trading fees include
any applicable brokerage commissions the Administrator is required to pay. Any fractional share will be rounded up to a whole share
for purposes of calculating the trading fee.
The Administrator
will deduct the applicable fees from the proceeds from a sale and/or purchase amount.
We reserve the right
to amend or modify this Plan Service Fee schedule at any time and from time to time.
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS
This section summarizes
the material U.S. federal income tax considerations that (i) apply to you, as an Owner (as defined in the immediately succeeding
paragraph) of shares of our common stock and as a participant in the Plan and (ii) relate to our qualification as a REIT. K&L
Gates LLP has acted as our tax counsel, has reviewed this section and is of the opinion that the discussion contained herein fairly
summarizes the U.S. federal income tax consequences that are likely to be material to an Owner of our shares of common stock and
a participant in the Plan. Because this section is a summary, it does not address all aspects of taxation that may be relevant
to particular Owners of our common stock in light of their personal investment or tax circumstances, or to certain types of Owners
that are subject to special treatment under the U.S. federal income tax laws, such as insurance companies, tax-exempt organizations
(except to the extent discussed in “—Taxation of Owners,—Taxation of Tax-Exempt Owners” below), regulated
investment companies, partnerships and other pass-through entities (including entities classified as partnerships for U.S. federal
income tax purposes), financial institutions or broker-dealers, and non-U.S. individuals and foreign corporations (except to the
extent discussed in “—Taxation of Owners,—Taxation of Foreign Owners” below) and other persons subject
to special tax rules.
You should be aware
that in this section, when we use the term:
“Code,”
we mean the Internal Revenue Code of 1986, as amended;
“Disqualified
organization,” we mean any organization described in section 860E(e)(5) of the Code, including:
| ii. | any state or political subdivision of the United States; |
| iii. | any foreign government; |
| iv. | any international organization; |
| v. | any agency or instrumentality of any of the foregoing; |
| vi. | any charitable remainder trust or other tax-exempt organization, other than a farmer’s cooperative
described in section 521 of the Code, that is exempt both from income taxation and from taxation under the unrelated business taxable
income provisions of the Code; and |
vii. any rural
electrical or telephone cooperative;
“Domestic
Owner,” we mean an Owner that is a U.S. Person;
“Foreign
Owner,” we mean an Owner that is not a U.S. Person;
“IRS,”
we mean the Internal Revenue Service;
“Owner,”
we mean any person having a beneficial ownership interest in shares of our common stock;
“REMIC,”
we mean real estate mortgage investment conduit as that term is defined in section 860D of the Code;
“TMP,”
we mean a taxable mortgage pool as that term is defined in section 7701(i)(2) of the Code;
“TRS,”
we mean a taxable REIT subsidiary described under “—Effect of Subsidiary Entities—Taxable REIT Subsidiaries”
below;
“U.S. Person,”
we mean (i) a citizen or resident of the United States; (ii) a corporation (or entity treated as a corporation for U.S. federal
income tax purposes) created or organized in the United States or under the laws of the United States or of any state thereof,
including, for this purpose, the District of Columbia; (iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or of any state thereof, including, for this purpose, the
District of Columbia (unless provided otherwise by future Treasury regulations); (iv) an estate whose income is includible in gross
income for U.S. federal income tax purposes regardless of its source; or (v) a trust, if a court within the United States is able
to exercise primary supervision over the administration of the trust and one or more U.S. Persons have authority to control all
substantial decisions of the trust. Notwithstanding the preceding clause, to the extent provided in Treasury regulations, certain
trusts that were in existence on August 20, 1996, that were treated as U.S. Persons prior to such date, and that elect to continue
to be treated as U.S. Persons, also are U.S. Persons.
The statements in
this section are based on the current U.S. federal income tax laws. We cannot assure you that new laws, interpretations of law
or court decisions, any of which may take effect retroactively, will not cause any statement in this section to be inaccurate.
No assurance can be given that the IRS would not assert, or that a court would not sustain a position contrary to any of the tax
consequences described below. We have not sought and will not seek an advance ruling from the IRS regarding any matter in this
prospectus.
This summary provides
general information only and is not tax advice. We urge you to consult your tax advisor regarding the specific tax consequences
to you of the purchase, ownership and sale of our common stock and of our election to be taxed as a REIT. Specifically, you should
consult your tax advisor regarding the federal, state, local, foreign, and other tax consequences of such purchase, ownership,
sale and election, and regarding potential changes in applicable tax laws.
Federal Income Tax Considerations
Relating to the Plan
| • | Tax consequences of dividend reinvestment |
A participant
whose dividend distributions are reinvested in our common stock will be treated for federal income tax purposes as having
received a distribution notwithstanding that the distribution is used to purchase additional shares of common stock. Based on
several private letter rulings issued by the IRS concerning dividend reinvestment plans that are similar to ours, we believe
that the amount of the distribution will likely equal the fair market value, as of the Investment Date, of the shares of our
common stock purchased with reinvested dividends. This conclusion, however, is not free from doubt. Recently, the IRS has
issued a private letter ruling concluding that the amount of the distribution will equal the amount of the cash dividend
that, but for the reinvestment election made by the shareholder, would have been distributed on the dividend payment date. In
any event, with respect to our common stock purchased by the Administrator in open market transactions or in negotiated
transactions with third parties, the IRS has indicated in private letter rulings that the amount of distribution received by
a participant would include a pro rata share of any trading fees or other related charges paid by us in connection with the
Administrator’s purchase of our common stock on behalf of the participant. In such private letter rulings, the IRS has
also held that the payment by a company of a dividend reinvestment plan’s administrative expenses does not constitute a
distribution to stockholders. We intend to take the position that administrative expenses of the Plan paid by us do not
constitute constructive distributions; however, private letter rulings are not considered precedent and therefore no
assurance can be given that the IRS would agree with our position. The constructive distributions described above otherwise
will be treated in the same manner as non-reinvested cash distributions.
A participant’s
tax basis in each share of our common stock acquired under the Plan will generally equal the amount of the distribution a participant
is treated as receiving with respect to such share (as described above). A participant’s holding period in his common stock
generally begins on the day following the date on which the shares of our common stock are credited to the participant’s
Plan account.
| • | Tax consequences of optional cash payments |
The IRS has indicated
in somewhat similar situations that a participant who both makes an optional cash purchase of common stock and reinvests all or
a part of his dividends under a dividend reinvestment plan will be treated as having received a distribution equal to the excess
(if any) of the fair market value on the Investment Date of our common stock purchased in an optional cash purchase over the amount
of the optional cash payment made by the participant. Recently, however, the IRS has issued a private letter ruling concluding
that no deemed distribution will be deemed to result from such an optional cash purchase. Also, if the shares of common stock are
acquired by the Administrator in an open market transaction or in a negotiated transaction with third parties, then the IRS may
assert that a participant will be treated as receiving a distribution equal to a pro rata share of any trading fees or
other related charges paid by us on behalf of the participant. As with constructive distributions under the dividend reinvestment
aspect of the Plan, such distributions would otherwise also be treated in the same manner as non-reinvested cash distributions.
The IRS has held in
a private letter ruling that a participant who only makes optional cash purchases of common stock in a dividend reinvestment plan
(and does not participate in the dividend reinvestment aspect) will not be treated as having received a distribution reflecting
either the excess (if any) of the fair market value on the Investment Date of our common stock over the amount of the optional
cash payment made by the participant or a pro rata share of any trading fees or other related charges paid by us on behalf
of the participant. The IRS, however, did not explain in the private letter ruling its rationale for making such a distinction,
nor is one readily apparent (particularly if the participant is already a stockholder). Furthermore, private letter rulings are
not considered precedent by the IRS and therefore no assurance can be given that the IRS would take this position with respect
to other transactions, including those under the Plan.
A participant’s
tax basis in each share of our common stock acquired through an optional cash purchase under the Plan will generally equal the
amount of distributions a participant is treated as receiving with respect to such share (as described above), plus the amount
of the optional cash payment. A participant’s holding period for common stock purchased under the Plan generally will begin
on the day following the date on which the shares of our common stock are credited to the participant’s Plan account. In
addition, all cash distributions paid with respect to all common stock credited to a participant’s Plan account will be reinvested
automatically.
| • | Tax consequences to Annaly of the Plan |
The IRS has ruled
in connection with similar plans that a dividend reinvestment and optional cash purchase plan will not compromise our qualification
as a REIT. In addition, we should be able to receive a dividends-paid deduction for constructive distributions resulting from discounts
under the Plan to the extent such discounts are treated as deemed distributions. The dividends-paid deduction is generally not
available for the payment of preferential dividends; the IRS has held in a published ruling, however, that constructive dividends
arising from a discount under a dividend reinvestment or optional purchase plan are not preferential and will therefore qualify
for a dividends-paid deduction as long as the discount does not exceed 5% of the fair market value of the shares acquired under
such plan. The IRS has indicated in private letter rulings that the amount of brokerage fees and other charges paid by a company
as part of such a plan are included in calculating the discount for the purposes of applying this 5% limit. As a result, we should
be able to deduct constructive distributions, if any, resulting from discounts under the Plan with respect to shares that have
been purchased directly from us because the discount on such shares will not exceed 5% and no brokerage fees will be incurred.
With respect to shares purchased on the open market, however, the discount offered to participants and the brokerage fees allocated
to such shares may exceed the 5% limit. In such event, the amount of the entire distribution (including actual and constructive
distributions) may not be deductible by us, not merely the excess and, as a result, we might not satisfy the annual distribution
requirements for continued qualification as a REIT. However, we will not direct the Administrator to purchase shares on the open
market to the extent any trading fees and other related charges associated with such purchase would result in adverse tax consequences
to our continued qualification as a REIT.
| • | Backup withholding and administrative expenses |
In general, any distribution
reinvested under the Plan is not subject to federal income tax withholding. We or the Administrator may be required, however, to
deduct a “backup withholding” tax (currently at twenty-eight percent (28%)) on all distributions paid to any stockholder,
regardless of whether those distributions are reinvested pursuant to the Plan. Similarly, the Administrator may be required to
deduct backup withholding from all proceeds of sales of shares of common stock held in a Plan account. Backup withholding amounts
will be withheld from distributions before those distributions are reinvested under the Plan. Therefore, distributions to be reinvested
under the Plan by participants who are subject to backup withholding will be reduced by the backup withholding amount. The withholding
amounts constitute a credit on the participant’s income tax return.
| • | Tax consequences of dispositions |
A participant may
recognize a gain or loss upon receipt of a cash payment for a fractional share of common stock credited to a Plan account or when
the common stock held in an account is sold at the request of the participant. A gain or loss may also be recognized upon a participant’s
disposition of common stock received from the Plan. The amount of any such gain or loss will be the difference between the amount
realized (generally the amount of cash received) for the whole or fractional share of common stock and the tax basis of those shares
of common stock. Generally, gain or loss recognized on the disposition of common stock acquired under the Plan will be treated
for federal income tax purposes as a capital gain or loss.
Federal Income Tax Considerations
Relating to Our Treatment as a REIT
We have elected to
be taxed as a REIT under Sections 856 through 860 of the Code commencing with our short taxable year ending on December 31, 1997.
We believe that we were organized and have operated and will continue to operate in such a manner as to qualify for taxation as
a REIT under the federal income tax laws, but no assurances can be given that we will operate in a manner so as to qualify or remain
qualified as a REIT. This section discusses the laws governing the federal income tax treatment of a REIT and the owners of REIT
stock. These laws are highly technical and complex.
If we qualify as a
REIT, we generally will not be subject to U.S. federal income tax on our taxable income that we currently distribute to our stockholders,
but taxable income generated by our domestic TRSs, if any, will be subject to regular U.S. federal (and applicable state and local)
corporate income tax. However, we will be subject to U.S. federal tax in the following circumstances:
| 1. | We will pay U.S. federal income tax on our taxable income, including net capital gain that we do
not distribute to stockholders during, or within a specified time period after, the calendar year in which the income is earned. |
| 2. | We may be subject to the “alternative minimum tax”. |
| 3. | We will pay U.S. federal income tax at the highest corporate rate on: |
| • | net income from the sale or other disposition of property acquired through foreclosure, which we
refer to as foreclosure property, that we hold primarily for sale to customers in the ordinary course of business, and |
| • | other non-qualifying income from foreclosure property. |
| 4. | We will pay a 100% tax on net income earned from sales or other dispositions of property, other
than foreclosure property, that we hold primarily for sale to customers in the ordinary course of business. |
| 5. | If we fail to satisfy the 75% gross income test or the 95% gross income test, as described below
under “—Gross Income Tests,” but nonetheless continue to qualify as a REIT because we meet other requirements,
we will be subject to a 100% tax on: |
| • | the greater of the amount by which we fail the 75% gross income test or the 95% gross income test,
multiplied, in either case, by |
| • | a fraction intended to reflect our profitability. |
| 6. | If we fail to satisfy the asset tests by more than a de minimis amount, as described below under
“—Asset Tests,” as long as the failure was due to reasonable cause and not to willful neglect, we dispose of
the assets or otherwise comply with such asset tests within six months after the last day of the quarter in which we identify such
failure and we file a schedule with the IRS describing the assets that caused such failure, we will pay a tax equal to the greater
of $50,000 or 35% of the net income from the non-qualifying assets during the period in which we failed to satisfy such asset tests. |
| 7. | If we fail to satisfy one or more requirements for REIT qualification, other than the gross income
tests and the asset tests, and such failure was due to reasonable cause and not due to willful neglect, we will be required to
pay a penalty of $50,000 for each such failure. |
| 8. | We may be required to pay monetary penalties to the IRS in certain circumstances, including if
we fail to meet recordkeeping requirements intended to monitor our compliance with rules relating to the composition of a REIT’s
stockholders, as described below in “—Requirements for Qualification.” |
| 9. | If we fail to distribute during a calendar year at least the sum of: (i) 85% of our REIT ordinary
income for the year, (ii) 95% of our REIT capital gain net income for the year and (iii) any undistributed taxable income from
earlier periods, we will pay a 4% nondeductible excise tax on the excess of the required distribution over the amount we actually
distributed, plus any retained amounts on which income tax has been paid at the corporate level. |
| 10. | We may elect to retain and pay U.S. federal income tax on our net long-term capital gain. In that
case, a Domestic Owner would be taxed on its proportionate share of our undistributed long-term capital gain (to the extent that
we make a timely designation of such gain to the stockholder) and would receive a credit or refund for its proportionate share
of the tax we paid. |
| 11. | We will be subject to a 100% excise tax on transactions between us and any of our TRSs that are
not conducted on an arm’s-length basis. |
| 12. | If (a) we recognize excess inclusion income for a taxable year as a result of our ownership of
a 100% equity interest in a TMP or our ownership of a REMIC residual interest and (b) one or more Disqualified Organizations is
the record owner of shares of our common stock during that year, then we will be subject to tax at the highest corporate U.S. federal
income tax rate on the portion of the excess inclusion income that is allocable to the Disqualified Organizations. We do not anticipate
owning REMIC residual interests; we may, however, own 100% of the equity interests in one or more trusts formed in connection with
our securitization transactions that would be classified as a TMP. See “—Taxable Mortgage Pools.” |
| 13. | If we acquire any asset from a C corporation, or a corporation that generally is subject to full
corporate-level tax, in a merger or other transaction in which we acquire a basis in the asset that is determined by reference
either to the C corporation’s basis in the asset or to another asset, we will pay tax at the highest corporate U.S. federal
income tax rate if we recognize gain on the sale or disposition of the asset during the 10-year period after we acquire the asset.
The amount of gain on which we will pay tax is the lesser of: |
| • | the amount of gain that we recognize at the time of the sale or disposition, and |
| • | the amount of gain that we would have recognized if we had sold the asset at the time we acquired
it, assuming that the C corporation will not elect in lieu of this treatment to an immediate tax when the asset is acquired. |
In addition, notwithstanding
our qualification as a REIT, we may also have to pay certain state, local, and foreign income, property, and other taxes, because
not all states and localities treat REITs in the same manner that they are treated for U.S. federal income tax purposes. Moreover,
as further described below, any domestic TRS in which we own an interest will be subject to federal, state and local corporate
income tax on its taxable income. We could also be subject to tax in situations and on transactions not presently contemplated.
Requirements for Qualification
A REIT is a corporation,
trust, or association that meets each of the following requirements:
| 1. | It is managed by one or more trustees or directors. |
| 2. | Its beneficial ownership is evidenced by transferable shares or by transferable certificates of
beneficial interest. |
| 3. | It would be taxable as a domestic corporation, but for the REIT provisions of the U.S. federal
income tax laws. |
| 4. | It is neither a financial institution nor an insurance company subject to special provisions of
the U.S. federal income tax laws. |
| 5. | At least 100 persons are beneficial owners of its shares or ownership certificates. |
| 6. | Not more than 50% in value of its outstanding shares or ownership certificates is owned, directly
or indirectly, by five or fewer individuals, which the U.S. federal income tax laws define to include certain entities, during
the last half of any taxable year. For purposes of this requirement, indirect ownership will be determined by applying attribution
rules set out in section 544 of the Code, as modified by section 856(h) of the Code. |
| 7. | It elects to be taxed as a REIT, or has made such election for a previous taxable year, and satisfies
all relevant filing and other administrative requirements that must be met to elect and maintain REIT qualification. |
| 8. | It meets certain other qualification tests, described below, regarding the nature of its income
and assets. |
We must meet requirements
1 through 4 during our entire taxable year and must meet requirement 5 during at least 335 days of a taxable year of twelve months,
or during a proportionate part of a taxable year of less than twelve months. If we comply with all the requirements for ascertaining
the ownership of our outstanding stock in a taxable year and have no reason to know that we violated requirement 6, we will be
deemed to have satisfied requirement 6 for that taxable year. For purposes of determining share ownership under requirement 6,
an “individual” generally includes a supplemental unemployment compensation benefits plan, a private foundation, or
a portion of a trust permanently set aside or used exclusively for charitable purposes. An “individual” generally does
not include a trust that is a qualified employee pension or profit sharing trust under the U.S. federal income tax laws, however,
and beneficiaries of such a trust will be treated as owning our stock in proportion to their actuarial interests in the trust for
purposes of requirement 6.
We believe that we
have and have always had sufficient diversity of ownership to satisfy requirements 5 and 6. In addition, our charter restricts
the ownership and transfer of our stock so that we should continue to satisfy these requirements.
To monitor compliance
with the share ownership requirements, we generally are required to maintain records regarding the actual ownership of our shares.
To do so, we must demand written statements each year from the record holders of significant percentages of our stock pursuant
to which the record holders must disclose the actual owners of the shares (i.e., the persons required to include our dividends
in their gross income). We must maintain a list of those persons failing or refusing to comply with this demand as part of our
records. We could be subject to monetary penalties if we fail to comply with these record keeping requirements. If you fail or
refuse to comply with the demands, you will be required by Treasury Regulations to submit a statement with your tax return disclosing
your actual ownership of our shares and other information. In addition, we must satisfy all relevant filing and other administrative
requirements that must be met to elect and maintain REIT qualification and use a calendar year for U.S. federal income tax purposes.
We intend to continue to comply with these requirements.
Subsidiary Entities
Qualified REIT Subsidiaries
A corporation that
is a “qualified REIT subsidiary” is not treated as a corporation separate from its parent REIT. All assets, liabilities,
and items of income, deduction and credit of a qualified REIT subsidiary are treated as assets, liabilities, and items of income,
deduction and credit of the REIT, including for purposes of the gross income and asset tests applicable to REITs (see “—Gross
Income Tests” and “—Asset Tests”). A qualified REIT subsidiary is a corporation, other than a TRS, all
of the capital stock of which is owned, directly or indirectly, by the REIT. Thus, in applying the requirements described herein,
any qualified REIT subsidiary that we own will be ignored, and all assets, liabilities, and items of income, deduction and credit
of such subsidiary will be treated as our assets, liabilities, and items of income, deduction and credit.
Other Disregarded Entities
and Partnerships
An unincorporated
domestic entity, such as a partnership, limited liability company, or trust that has a single owner generally is not treated as
an entity separate from its parent for U.S. federal income tax purposes, including for purposes of the gross income and asset tests
applicable to REITs. An unincorporated domestic entity with two or more owners generally is treated as a partnership for U.S. federal
income tax purposes. Our proportionate share of the assets, liabilities, and items of income of any partnership, joint venture
or limited liability company that is treated as a partnership for U.S. federal income tax purposes in which we acquire an interest,
directly or indirectly, will be treated as our assets and gross income for purposes of applying the various REIT qualification
requirements. For purposes of the 10% value test (see “—Asset Tests”), our proportionate share is based on our
proportionate interest in the equity interests and certain debt securities issued by the partnership. For all of the other asset
and income tests, our proportionate share is based on our proportionate interest in the capital interests in the partnership.
If a disregarded subsidiary
of ours ceases to be wholly-owned—for example, if any equity interest in the subsidiary is acquired by a person other than
us or another disregarded subsidiary of ours—the subsidiary’s separate existence would no longer be disregarded for
U.S. federal income tax purposes. Instead, the subsidiary would have multiple owners and would be treated as either a partnership
or a taxable corporation. Such an event could, depending on the circumstances, adversely affect our ability to satisfy the various
asset and gross income requirements applicable to REITs, including the requirement that REITs generally may not own, directly or
indirectly, more than 10% of the securities of another corporation. See “—Asset Tests” and “—Gross
Income Tests.”
Taxable REIT Subsidiaries
A REIT is permitted
to own up to 100% of the stock of one or more TRSs. A TRS is a fully taxable corporation that may earn income that would not be
qualifying income if earned directly by the parent REIT. The subsidiary and the REIT must jointly elect to treat the subsidiary
as a TRS. A corporation with respect to which a TRS directly or indirectly owns more than 35% of the voting power or value of the
stock will automatically be treated as a TRS. Overall, no more than 25% of the value of a REIT’s assets may consist of stock
or securities of one or more TRSs.
The separate existence
of a TRS or other taxable corporation, unlike a qualified REIT subsidiary or other disregarded subsidiary as discussed above, is
not ignored for U.S. federal income tax purposes. Accordingly, a domestic TRS would generally be subject to U.S. federal income
tax (and applicable state and local taxes) on its earnings, which may reduce the cash flow generated by us and our subsidiaries
in the aggregate and our ability to make distributions to our stockholders.
A REIT is not treated
as holding the assets of a TRS or other taxable subsidiary corporation or as receiving any income that the subsidiary earns. Rather,
the stock issued by the subsidiary is an asset in the hands of the REIT, and the REIT generally recognizes as income the dividends,
if any, that it receives from the subsidiary. This treatment can affect the gross income and asset test calculations that apply
to the REIT, as described below. Because a parent REIT does not include the assets and income of such subsidiary corporations in
determining the parent’s compliance with the REIT requirements, such entities may be used by the parent REIT to undertake
indirectly activities that the REIT rules might otherwise preclude it from doing directly or indirectly through pass-through subsidiaries.
Certain restrictions
imposed on TRSs are intended to ensure that such entities will be subject to appropriate levels of U.S. federal income taxation.
If a TRS that has for any taxable year both (i) a debt-to-equity ratio in excess of 1.5 to 1, and (ii) accrued interest expense
in excess of accrued interest income, then the TRS may be denied an interest expense deduction for a portion of the interest expense
accrued on indebtedness owed to the parent REIT (although the TRS can carry forward the amount disallowed to subsequent taxable
years). In addition, if amounts are paid to a REIT or deducted by a TRS due to transactions between the REIT and a TRS that exceed
the amount that would be paid to or deducted by a party in an arm’s-length transaction, the REIT generally will be subject
to an excise tax equal to 100% of such excess. We intend to scrutinize all of our transactions with any of our subsidiaries that
are treated as a TRS in an effort to ensure that we do not become subject to this excise tax; however, we cannot assure you that
we will be successful in avoiding this excise tax.
Gross Income Tests
We must satisfy two
gross income tests annually to maintain qualification as a REIT. First, at least 75% of our gross income for each taxable year
must consist of defined types of income that we derive from investments relating to real property or mortgages on real property,
or from qualified temporary investments. Qualifying income for purposes of the 75% gross income test generally includes:
| • | rents from real property; |
| • | interest on debt secured by a mortgage on real property or on interests in real property; |
| • | dividends or other distributions on, and gain from the sale of, shares in other REITs; |
| • | gain from the sale of real estate assets; |
| • | any amount includible in gross income with respect to a regular or residual interest in a REMIC,
unless less than 95% of the REMIC’s assets are real estate assets, in which case only a proportionate amount of such income
will qualify; and |
| • | income derived from certain temporary investments. |
Second, in general,
at least 95% of our gross income for each taxable year must consist of income that is qualifying income for purposes of the 75%
gross income test, other types of interest and dividends, gain from the sale or disposition of stock or securities (provided that
such stock or securities are not inventory property, i.e., property held primarily for sale to customers in the ordinary course
of business) or any combination of these.
Gross income from
the sale of inventory property is excluded from both the numerator and the denominator in both income tests. Income and gain from
hedging transactions that we enter into to hedge indebtedness incurred or to be incurred to acquire or carry real estate assets
will generally be excluded from both the numerator and the denominator for purposes of the 95% gross income test and the 75% gross
income test. We intend to monitor the amount of our non-qualifying income and manage our investment portfolio to comply at all
times with the gross income tests but we cannot assure you that we will be successful in this effort.
Interest
The term “interest,”
as defined for purposes of both gross income tests, generally excludes any amount that is based in whole or in part on the income
or profits of any person. However, interest generally includes the following: (i) an amount that is based on a fixed percentage
or percentages of gross receipts or sales and (ii) an amount that is based on the income or profits of a borrower, where the borrower
derives substantially all of its income from the real property securing the debt by leasing substantially all of its interest in
the property, but only to the extent that the amounts received by the borrower would be qualifying “rents from real property”
if received directly by a REIT.
If a loan contains
a provision that entitles a REIT to a percentage of the borrower’s gain upon the sale of the real property securing the loan
or a percentage of the appreciation in the property’s value as of a specific date, income attributable to that loan provision
will be treated as gain from the sale of the property securing the loan, which generally is qualifying income for purposes of both
gross income tests, provided that the property is not held as inventory or dealer property.
Interest, including
original issue discount and market discount, on debt secured by a mortgage on real property or on interests in real property is
generally qualifying income for purposes of the 75% gross income test. Where a mortgage covers both real property and other property,
an apportionment of interest income must be made for purposes of the 75% gross income test. If a mortgage covers both real property
and other property and the fair market value of the real property securing the mortgage loan at the time we commit to originate
or acquire the mortgage loan equals or exceeds the highest principal amount of the loan during the year, then all of the interest
we accrue on the mortgage loan will qualify for purposes of the 75% gross income test. If, however, the value of the real property
were less than the highest principal amount, then only a portion of the interest income we accrue on the mortgage loan would qualify
for purposes of the 75% gross income test; such portion based on the percentage equivalent of a fraction, the numerator of which
is the fair market value of the real property and the denominator of which is the principal amount of the mortgage loan.
Interest, including
original issue discount or market discount, that we accrue on our real estate-related investments generally will be qualifying
income for purposes of both gross income tests. Interest income from investments that are not secured by mortgages on real property
will be qualifying income for purposes of the 95% gross income test but not the 75% gross income test.
MBS
We have acquired and
expect to continue to acquire mortgage backed securities (“MBS”), including Agency MBS, that will be treated either
as interests in a grantor trust or as REMIC regular interests. We expect that all income from the MBS in which we invest will be
qualifying income for purposes of the 95% gross income test. In the case of interests in grantor trusts, we will be treated as
owning an undivided beneficial ownership interest in the mortgage loans held by the grantor trust. Thus, to the extent those mortgage
loans are secured by real property or interests in real property, the income from the grantor trust will be qualifying income for
purposes of the 75% gross income test. Income that we accrue with respect to REMIC regular interests will generally be treated
as qualifying income for purposes of the 75% gross income tests. If, however, less than 95% of the assets of the REMIC are real
estate assets, then only a proportionate part of such income will qualify for purposes of the 75% gross income test. We expect
that substantially all of the income we have accrued and will accrue on our investments in MBS, and any gain from the disposition
of MBS, will be qualifying income for purposes of the both the 75% and the 95% gross income tests.
Foreign Currency Gains
Certain foreign currency
gains recognized after July 30, 2008 are excluded from gross income for purposes of one or both of the gross income tests. “Real
estate foreign exchange gain” is excluded from gross income for purposes of the 75% gross income test. Real estate foreign
exchange gain generally includes foreign currency gain attributable to any item of income or gain that is qualifying income for
purposes of the 75% gross income test, foreign currency gain attributable to the acquisition or ownership of (or becoming or being
the obligor under) obligations secured by mortgages on real property or on interest in real property and certain foreign currency
gain attributable to certain “qualified business units” of a REIT. “Passive foreign exchange gain” will
be excluded from gross income for purposes of the 95% gross income test. Passive foreign exchange gain generally includes real
estate foreign exchange gain as described above, and also includes foreign currency gain attributable to any item of income or
gain that is qualifying income for purposes of the 95% gross income test and foreign currency gain attributable to the acquisition
or ownership of (or becoming or being the obligor under) obligations. Because passive foreign exchange gain includes real estate
foreign exchange gain, real estate foreign exchange gain is excluded from gross income for purposes of both the 75% and 95% gross
income test. These exclusions for real estate foreign exchange gain and passive foreign exchange gain do not apply to foreign currency
gain derived from dealing, or engaging in substantial and regular trading, in securities. Such gain is treated as non-qualifying
income for purposes of both the 75% and 95% gross income tests.
Fee Income
We may receive various
fees in connection with our operations. The fees will be qualifying income for purposes of both the 75% gross income and 95% gross
income tests if they are received in consideration for entering into an agreement to make a loan secured by a mortgage on real
property or an interest in real property and the fees are not determined by income or profits of any person. Other fees are not
qualifying income for purposes of either gross income test. Any fees earned by our TRS will not be included for purposes of the
gross income tests.
Dividends
Our share of any dividends
received from any corporation (including any TRS, but excluding any qualified REIT subsidiary) in which we own an equity interest
will qualify for purposes of the 95% gross income test but not for purposes of the 75% gross income test. Our share of any dividends
received from any other REIT in which we own an equity interest will be qualifying income for purposes of both gross income tests.
Failure to Satisfy Gross Income
Tests
We have monitored
and will continue to monitor the amount of our non-qualifying income and manage our assets to comply with the gross income tests
for each taxable year for which we seek to maintain our REIT qualification. We cannot assure you, however, that we will be able
to satisfy the gross income tests. If we fail to satisfy one or both of the gross income tests for any taxable year, we may nevertheless
qualify as a REIT for such year if we qualify for relief under certain provisions of the Code. These relief provisions will be
generally available if (i) our failure to meet such tests was due to reasonable cause and not due to willful neglect, and (ii)
we file with the IRS a schedule describing the sources of our gross income in accordance with Treasury Regulations. We cannot predict,
however, whether in all circumstances, we would qualify for the benefit of these relief provisions. In addition, as discussed above
under “—Taxation of Our Company,” even if the relief provisions apply, a tax would be imposed upon the amount
by which we fail to satisfy the particular gross income test.
In addition, the Secretary
of the Treasury has been given broad authority to determine whether particular items of gain or income recognized after July 30,
2008, qualify or not under the 75% and 95% gross income tests, or are to be excluded from the measure of gross income for such
purposes.
Cash/Income Differences –
Phantom Income
Due to the nature
of the assets in which we will invest, we may be required to recognize taxable income from those assets in advance of our receipt
of cash flow on or proceeds from disposition of such assets, and may be required to report taxable income in early periods that
exceeds the economic income ultimately realized on such assets.
We may acquire MBS
in the secondary market for less than their face amount. The discount at which such debt instruments are acquired may reflect doubts
about their ultimate collectibility rather than current market interest rates. The amount of such discount will nevertheless generally
be treated as “market discount” for U.S. federal income tax purposes. Payments on mortgage loans are ordinarily made
monthly, and consequently accrued market discount generally will have to be included in income each month as if the debt instrument
were assured of ultimately being collected in full. If we collect less on the debt instrument than our purchase price plus the
market discount we had previously reported as income, we may not be able to benefit from any offsetting loss deductions.
Some of the MBS that
we acquire may have been issued with original issue discount. In general, we will be required to accrue original issue discount
based on the constant yield to maturity of the MBS, and to treat the accrued original issue discount as taxable income in accordance
with applicable U.S. federal income tax rules even though smaller or no cash payments are received on such debt instrument. As
in the case of the market discount discussed in the preceding paragraph, the constant yield in question will be determined and
we will be taxed based on the assumption that all future payments due on the MBS in question will be made, with consequences similar
to those described in the previous paragraph if all payments on the MBS are not made.
In addition, if any
debt instruments or MBS acquired by us are delinquent as to mandatory principal and interest payments, or if payments with respect
to a particular debt instrument are not made when due, we may nonetheless be required to continue to recognize the unpaid interest
as taxable income. Similarly, we may be required to accrue interest income with respect to subordinate MBS at the stated rate regardless
of whether corresponding cash payments are received.
Finally, we may be
required under the terms of indebtedness that we incur, whether to private lenders or pursuant to Government programs, to use cash
received from interest payments to make principal payments on that indebtedness, with the effect of recognizing income but not
having a corresponding amount of cash available for distribution to our shareholders.
Due to each of these
potential timing differences between income recognition or expense deduction and the related cash receipts or disbursements, there
is a significant risk that we may have substantial taxable income in excess of cash available for distribution. In that event,
we may need to borrow funds or take other actions to satisfy the REIT distribution requirements for the taxable year in which this
“phantom income” is recognized. See “—Annual Distribution Requirements.”
Asset Tests
To qualify as a REIT,
we also must satisfy the following asset tests at the end of each quarter of each taxable year. First, at least 75% of the value
of our total assets must consist of some combination of “real estate assets,” cash, cash items, government securities,
and, under some circumstances, stock or debt instruments purchased with new capital. For this purpose, the term “real estate
assets” includes interests in real property (including leaseholds and options to acquire real property and leaseholds), stock
of other corporations that qualify as REITs and interests in mortgage loans secured by real property (including certain types of
mortgage backed securities). Assets that do not qualify for purposes of the 75% test are subject to the additional asset tests
described below.
Second, the value
of our interest in any one issuer’s securities (other than debt and equity securities issued by any of our TRSs, qualified
REIT subsidiaries, any other entity that is disregarded as an entity separate from us, and any equity interest we may hold in a
partnership) may not exceed 5% of the value of our total assets. Third, we may not own more than 10% of the voting power or 10%
of the value of any one issuer’s outstanding securities (other than debt and equity securities issued by any of our TRSs,
qualified REIT subsidiaries, any other entity that is disregarded as an entity separate from us, and any equity interest we may
hold in a partnership). Solely for purposes of the 10% asset test, the determination of our interest in the assets of a partnership
or limited liability company in which we own an interest will be based on our proportionate interest in any securities issued by
the partnership or limited liability company, excluding for this purpose certain securities described in the Code. Fourth, no more
than 25% of the value of our total assets may consist of the securities of one or more TRSs. For purposes of the 10% value test,
the term “securities” does not include certain “straight debt” securities.
Notwithstanding the
general rule that, for purposes of the gross income and asset tests, a REIT is treated as owning its proportionate share of the
underlying assets of a partnership in which it holds a partnership interest, if a REIT holds indebtedness issued by a partnership,
the indebtedness will be subject to, and may cause a violation of the asset tests, unless it is a qualifying mortgage asset or
otherwise satisfies the rules for “straight debt.” Similarly, although stock of another REIT qualifies as a real estate
asset for purposes of the REIT asset tests, non-mortgage debt issued by another REIT may not so qualify (such debt, however, will
not be treated as a “security” for purposes of the 10% asset test).
Certain securities
will not cause a violation of the 10% asset test described above. Such securities include instruments that constitute “straight
debt,” which includes, among other things, securities having certain contingency features. A security does not qualify as
“straight debt” where a REIT (or a controlled TRS of the REIT) owns other securities of the same issuer which do not
qualify as straight debt, unless the value of those other securities constitute, in the aggregate, 1% or less of the total value
of that issuer’s outstanding securities. In addition to straight debt, the Code provides that certain other securities will
not violate the 10% asset test. Such securities include (i) any loan made to an individual or an estate, (ii) certain rental agreements
pursuant to which one or more payments are to be made in subsequent years (other than agreements between a REIT and certain persons
related to the REIT under attribution rules), (iii) any obligation to pay rents from real property, (iv) securities issued by governmental
entities that are not dependent in whole or in part on the profits of (or payments made by) a non-governmental entity, (v) any
security (including debt securities) issued by another REIT, and (vi) any debt instrument issued by a partnership if the partnership’s
income is of a nature that it would satisfy the 75% gross income test described above under “— Gross Income Tests.”
In applying the 10% asset test, a debt security issued by a partnership is not taken into account to the extent, if any, of the
REIT’s proportionate interest in the equity and certain debt securities issued by that partnership.
We intend to acquire
and manage, through our subsidiaries, MBS that are either interests in grantor trusts or REMIC regular interests. In the case of
interests in grantor trusts, we will be treated as owning an undivided beneficial ownership interest in the mortgage loans held
by the grantor trust, and we will be treated as owning an interest in real estate assets to the extent those mortgage loans held
by the grantor trust represent real estate assets. In the case of REMIC regular interests, such regular interests will generally
qualify as real estate assets. If, however, less than 95% of the REMIC’s assets are real estate assets, then only a proportionate
part of the regular interest will be a real estate asset. We expect that substantially all of the MBS we acquire will be treated
as real estate assets.
In addition, we have
and expect to continue to enter into repurchase agreements under which we will nominally sell certain of our assets to a counterparty
and simultaneously enter into an agreement to repurchase the sold assets. We believe that we will be treated for U.S. federal income
tax purposes as the owner of the assets that are the subject of any such repurchase agreement and the repurchase agreement will
be treated as a secured lending transaction notwithstanding that we may transfer record ownership of the assets to the counterparty
during the term of the agreement. It is possible, however, that the IRS could successfully assert that we did not own the assets
during the term of the repurchase agreement, in which case we could fail to qualify as a REIT.
We have monitored
and will continue to monitor the status of our assets for purposes of the various asset tests and will seek to manage our portfolio
to comply at all times with such tests. There can be no assurance, however, that we will be successful in this effort. In this
regard, to determine our compliance with these requirements, we will need to estimate the value of our assets to ensure compliance
with the asset tests. We will not obtain independent appraisals to support our conclusions concerning the values of our assets.
Moreover, some of the assets that we may own may not be susceptible to precise valuation. Although we will seek to be prudent in
making these estimates, there can be no assurance that the IRS will not disagree with these determinations and assert that a different
value is applicable, in which case we might not satisfy the 75% asset test and the other asset tests and would fail to qualify
as a REIT.
Failure to Satisfy Asset Tests
If we fail to satisfy
the asset tests as the end of a quarter, we will not lose our REIT qualification if:
| 1. | we satisfied the asset tests at the end of the preceding calendar quarter; and |
| 2. | the discrepancy between the value of our assets and the asset test requirements arose from changes
in the market values of our assets and was not wholly or partly caused by the acquisition of one or more non-qualifying assets. |
If we did not satisfy
the condition described in the second bullet above, we still could avoid disqualification by eliminating any discrepancy within
30 days after the close of the calendar quarter in which it arose.
If we violate the
5% value test, 10% voting test or 10% value test described above at the end of any calendar quarter, we will not lose our REIT
qualification if (i) the failure is de minimis (up to the lesser of 1% of our total assets or $10 million) and (ii) we dispose
of these assets or otherwise comply with the asset tests within six months after the last day of the quarter. In the event of a
more than de minimis failure of any of the asset tests, as long as the failure was due to reasonable cause and not to willful neglect,
we will not lose our REIT qualification if we (i) file with the IRS a schedule describing the assets that caused the failure, (ii)
dispose of these assets or otherwise comply with the asset tests within six months after the last day of the quarter and (iii)
pay a tax equal to the greater of $50,000 per failure or an amount equal to the product of the highest corporate income tax rate
(currently 35%) and the net income from the non-qualifying assets during the period in which we failed to satisfy the asset tests.
Annual Distribution Requirements
To qualify as a REIT,
we are required to distribute dividends (other than capital gain dividends) to our stockholders in an amount at least equal to:
(A) the
sum of
| (i) | 90% of our “REIT taxable income” (computed without regard to the dividends paid deduction
and our net capital gains), and |
| (ii) | 90% of the net income (after tax), if any, from foreclosure property (as described below), minus |
(B) the
sum of certain items of non-cash income.
In addition, if we
were to recognize “built-in-gain” (as defined below) on disposition of any assets acquired from a “C” corporation
in a transaction in which our basis in the assets was determined by reference to the “C” corporation’s basis
(for instance, if the assets were acquired in a tax-free reorganization), we would be required to distribute at least 90% of the
built-in-gain recognized net of the tax we would pay on such gain. “Built-in-gain” is the excess of (a) the fair market
value of an asset (measured at the time of acquisition) over (b) the basis of the asset (measured at the time of acquisition).
Such distributions
must be paid in the taxable year to which they relate, or in the following taxable year if either (i) we declare the distribution
before we file a timely U.S. federal income tax return for the year and pay the distribution with or before the first regular dividend
payment after such declaration or (ii) we declare the distribution in October, November or December of the taxable year, payable
to stockholders of record on a specified day in any such month, and we actually pay the dividends before the end of January of
the following year. The distributions under clause (i) are taxable to the Owners of our common stock in the year in which paid,
and the distributions in clause (ii) are treated as paid on December 31 of the prior taxable year. In both instances, these distributions
relate to our prior taxable year for purposes of the 90% distribution requirement.
For distributions
to be counted as satisfying the annual distribution requirements for REITs, and to provide us with a REIT-level tax deduction,
the distributions must not be “preferential dividends.” A dividend is not a preferential dividend if the distribution
is (i) pro rata among all outstanding shares of stock within a particular class, and (ii) in accordance with the preferences among
different classes of stock as set forth in our organizational documents.
We will pay U.S. federal
income tax at corporate tax rates on our taxable income, including net capital gain that we do not distribute to stockholders.
Furthermore, if we fail to distribute during each calendar year, or by the end of January following the calendar year in the case
of distributions with declaration and record dates falling in the last three months of the calendar year, at least the sum of (i)
85% of our REIT ordinary income for such year, (ii) 95% of our REIT capital gain income for such year and (iii) any undistributed
taxable income from prior periods, we will be subject to a 4% nondeductible excise tax on the excess of such required distribution
over the amounts actually distributed. We generally intend to make timely distributions sufficient to satisfy the annual distribution
requirements and to avoid corporate U.S. federal income tax and the 4% nondeductible excise tax.
We may elect to retain
rather than distribute our net capital gain and pay tax on such gains. In this case, we could elect to have our stockholders include
their proportionate share of such undistributed capital gains in income and to receive a corresponding credit or refund, as the
case may be, for their share of the tax paid by us. Stockholders would then increase the adjusted basis of their stock by the difference
between the designated amounts of capital gains from us that they include in their taxable income, and the tax paid on their behalf
by us with respect to that income.
To the extent that
a REIT has available net operating losses carried forward from prior tax years, such losses may reduce the amount of distributions
that it must make to comply with the REIT distribution requirements. Such losses, however, will generally not affect the character,
in the hands of stockholders, of any distributions that are actually made by the REIT, which are generally taxable to stockholders
to the extent that the REIT has current or accumulated earnings and profits. See “—Taxation of Stockholders, —Taxation
of Taxable Domestic Stockholders.”
We may find it difficult
or impossible to meet distribution requirements in certain circumstances. Due to the nature of the assets in which we will invest,
we may be required to recognize taxable income from those assets in advance of our receipt of cash flow on or proceeds from disposition
of such assets. For instance, we may be required to accrue interest and discount income on mortgage loans, mortgage backed securities,
and other types of debt securities or interests in debt securities before we receive any payments of interest or principal on such
assets. Moreover, in certain instances we may be required to accrue taxable income that we may not actually recognize as economic
income. For example, if we own a residual equity position in a mortgage loan securitization, we may recognize taxable income that
we will never actually receive due to losses sustained on the underlying mortgage loans. Although those losses would be deductible
for tax purposes, they would likely occur in a year subsequent to the year in which we recognized the taxable income. Thus, for
any taxable year, we may be required to fund distributions in excess of cash flow received from our investments. If such circumstances
arise, then to fund our distribution requirement and maintain our status as a REIT we may have to sell assets at unfavorable prices,
borrow at unfavorable terms, make taxable stock dividends, or pursue other strategies. We cannot be assured, however, that any
such strategy would be successful if our cash flow were to become insufficient to make the required distributions. Alternatively,
we may declare a taxable dividend payable in cash or stock at the election of each stockholder, where the aggregate amount of cash
to be distributed in such dividend may be subject to limitation. In such case, for U.S. federal income tax purposes, the amount
of the dividend paid in stock will be equal to the amount of cash that could have been received instead of stock.
Under certain circumstances,
we may be able to rectify a failure to meet the distribution requirement for a year by paying “deficiency dividends”
to stockholders in a later year, which may be included in our deduction for dividends paid for the earlier year. Thus, we may be
able to avoid being taxed on amounts distributed as deficiency dividends; however, we will be required to pay interest and a penalty
to the IRS based on the amount of any deduction taken for deficiency dividends.
Failure to Qualify
If we fail to satisfy
one or more requirements for REIT qualification, other than the gross income tests and the asset tests, we could avoid disqualification
if our failure is due to reasonable cause and not to willful neglect and we pay a penalty of $50,000 for each such failure. In
addition, there are relief provisions for a failure of the gross income tests and asset tests, as described in “—Gross
Income Tests” and “—Asset Tests.”
If we fail to qualify
for taxation as a REIT in any taxable year, and the relief provisions do not apply, we will be subject to tax (including any applicable
alternative minimum tax) on our taxable income at regular federal corporate income tax rates. Distributions to stockholders in
any year in which we fail to qualify will not be deductible by us nor will they be required to be made. In such event, to the extent
of current and accumulated earnings and profits, all distributions to stockholders will be taxable as ordinary income, and, subject
to certain limitations of the Code, corporate stockholders may be eligible for the dividends received deduction, and individual
stockholders and other non-corporate stockholders may be eligible to be taxed at the reduced 15% rate currently applicable to qualified
dividend income (through 2010). Unless entitled to relief under specific statutory provisions, we will also be disqualified from
taxation as a REIT for the four taxable years following the year during which qualification was lost. We cannot predict whether
in all circumstances we would be entitled to such statutory relief.
Prohibited Transactions
Net income derived
by a REIT from a prohibited transaction is subject to a 100% excise tax. The term “prohibited transaction” generally
includes a sale or other disposition of property (other than foreclosure property) that is held “primarily for sale to customers
in the ordinary course of a trade or business.” Although we do not expect that our assets will be held primarily for sale
to customers, these terms are dependent upon the particular facts and circumstances, and we cannot assure you that we will never
be subject to this excise tax. The 100% tax does not apply to gains from the sale of property that is held through a TRS or other
taxable corporation, although such income will be subject to tax in the hands of the corporation at regular federal corporate income
tax rates. We intend to structure our activities to avoid transactions that are prohibited transactions.
Foreclosure Property
A REIT is subject
to tax at the maximum corporate rate (currently 35%) on any income from foreclosure property, including gain from the disposition
of such foreclosure property, other than income that otherwise would be qualifying income for purposes of the 75% gross income
test. Foreclosure property is real property and any personal property incident to such real property (i) that is acquired by a
REIT as result of the REIT having bid on such property at foreclosure, or having otherwise reduced the property to ownership or
possession by agreement or process of law, after there was a default (or default was imminent) on a lease of such property or a
mortgage loan held by the REIT and secured by the property, (ii) for which the related loan or lease was acquired by the REIT at
a time when default was not imminent or anticipated and (iii) for which such REIT makes a proper election to treat the property
as foreclosure property. Any gain from the sale of property for which a foreclosure election has been made will not be subject
to the 100% excise tax on gains from prohibited transactions described above, even if the property would otherwise constitute inventory
or dealer property in the hands of the selling REIT. We do not expect to receive income from foreclosure property that is not qualifying
income for purposes of the 75% gross income test. However, if we do receive any such income, we intend to make an election to treat
the related property as foreclosure property.
Derivatives and Hedging Transactions
We and our subsidiaries
may enter into hedging transactions with respect to interest rate exposure on one or more of our assets or liabilities. Any such
hedging transactions could take a variety of forms, including the use of derivative instruments such as interest rate swap contracts,
interest rate cap or floor contracts, futures or forward contracts, and options. Except to the extent provided by Treasury regulations,
any income from a hedging transaction we enter into (i) in the normal course of our business primarily to manage risk of interest
rate or price changes or currency fluctuations with respect to borrowings made or to be made, or ordinary obligations incurred
or to be incurred, to acquire or carry real estate assets, which is clearly identified as specified in Treasury regulations before
the close of the day on which it was acquired, originated, or entered into, including gain from the sale or disposition of such
a transaction, and (ii) primarily to manage risk of currency fluctuations with respect to any item of income or gain that would
be qualifying income under the 75% or 95% income tests (or any asset that produces such income) which is clearly identified as
such before the close of the day on which it was acquired, originated, or entered into, will not constitute gross income for purposes
of the 75% or 95% gross income test. To the extent that we enter into other types of hedging transactions, the income from those
transactions is likely to be treated as non-qualifying income for purposes of both of the 75% and 95% gross income tests. We intend
to structure any hedging transactions in a manner that does not jeopardize our qualification as a REIT. We may conduct some or
all of our hedging activities (including hedging activities relating to currency risk) through a TRS or other corporate entity,
the income from which may be subject to U.S. federal income tax, rather than by participating in the arrangements directly or through
pass-through subsidiaries. No assurance can be given, however, that our hedging activities will not give rise to income that does
not qualify for purposes of either or both of the REIT gross income tests, or that our hedging activities will not adversely affect
our ability to satisfy the REIT qualification requirements.
Taxable Mortgage Pools
An entity, or a portion
of an entity, may be classified as a TMP under the Code if (i) substantially all of its assets consist of debt obligations or interests
in debt obligations, (ii) more than 50% of those debt obligations are real estate mortgage loans, interests in real estate mortgage
loans or interests in certain MBS as of specified testing dates, (iii) the entity has issued debt obligations that have two or
more maturities and (iv) the payments required to be made by the entity on its debt obligations “bear a relationship”
to the payments to be received by the entity on the debt obligations that it holds as assets. Under Treasury Regulations, if less
than 80% of the assets of an entity (or a portion of an entity) consists of debt obligations, these debt obligations are considered
not to comprise “substantially all” of its assets, and therefore the entity would not be treated as a TMP.
We may structure or
enter into securitization or financing transactions that will cause us to be viewed as owning interests in one or more TMPs. Generally,
if an entity or a portion of an entity is classified as a TMP, then the entity or portion thereof is treated as a taxable corporation
and it cannot file a consolidated U.S. federal income tax return with any other corporation. If, however, a REIT owns 100% of the
equity interests in a TMP, then the TMP is a qualified REIT subsidiary and, as such, ignored as an entity separate from the REIT.
As long as we owned
100% of the equity interests in the TMP, all or a portion of the income that we recognize with respect to our investment in the
TMP will be treated as excess inclusion income. Section 860E(c) of the Code defines the term “excess inclusion” with
respect to a residual interest in a REMIC. The IRS, however, has yet to issue guidance on the computation of excess inclusion income
on equity interests in a TMP held by a REIT. Generally, however, excess inclusion income with respect to our investment in any
TMP and any taxable year will equal the excess of (i) the amount of income we accrue on our investment in the TMP over (ii) the
amount of income we would have accrued if our investment were a debt instrument having an issue price equal to the fair market
value of our investment on the day we acquired it and a yield to maturity equal to 120% of the long-term applicable federal rate
in effect on the date we acquired our interest. The term “applicable federal rate” refers to rates that are based on
weighted average yields for treasury securities and are published monthly by the IRS for use in various tax calculations. If we
undertake securitization transactions that are TMPs, the amount of excess inclusion income we recognize in any taxable year could
represent a significant portion of our total taxable for that year.
If we recognized excess
inclusion income, then under guidance issued by the IRS we would be required to allocate the excess inclusion income proportionately
among the dividends we pay to our stockholders and we must notify our stockholders of the portion of our dividends that represents
excess inclusion income. The portion of any dividend you receive that is treated as excess inclusion income is subject to special
rules. First, your taxable income can never be less than the sum of your excess inclusion income for the year; excess inclusion
income cannot be offset with net operating losses or other allowable deductions. Second, if you are a tax-exempt organization and
your excess inclusion income is subject to the unrelated business income tax, then the excess inclusion portion of any dividend
you receive will be treated as unrelated business taxable income. Third, dividends paid to Foreign Owners who hold stock for investment
and not in connection with a trade or business conducted in the United Sates will be subject to United States federal withholding
tax without regard to any reduction in rate otherwise allowed by any applicable income tax treaty.
If we recognize excess
inclusion income, and one or more Disqualified Organizations are record holders of shares of common stock, we will be taxable at
the highest federal corporate income tax rate on the portion of any excess inclusion income equal to the percentage of our stock
that is held by Disqualified Organizations. In such circumstances, we may reduce the amount of our distributions to a Disqualified
Organization whose stock ownership gave rise to the tax. To the extent that our common stock owned by Disqualified Organizations
is held by a broker/dealer or other nominee, the broker/dealer or other nominee would be liable for a tax at the highest corporate
tax rate on the portion of our excess inclusion income allocable to our common stock held by the broker/dealer or other nominee
on behalf of the Disqualified Organizations.
If we own less than
100% of the equity interests in a TMP, the foregoing rules would not apply. Rather, the TMP would be treated as a corporation for
U.S. federal income tax purposes and would potentially be subject to federal corporate income tax. This could adversely affect
our compliance with the REIT gross income and asset tests described above. We currently do not have, and currently do not intend
to enter into any securitization or financing transaction that is a TMP in which we own some, but less than all, of the equity
interests, and we intend to monitor the structure of any TMPs in which we have an interest to ensure that they will not adversely
affect our status as a REIT. We cannot assure you that we will be successful in this regard.
Taxation of Owners
Taxation of Taxable Domestic
Owners
Distributions.
As long as we qualify as a REIT, distributions we make to our taxable Domestic Owners out of current or accumulated earnings and
profits (and not designated as capital gain dividends) will be taken into account by them as ordinary income. Dividends we pay
to a corporation will not be eligible for the dividends received deduction. In addition, distributions we make to individuals and
other Owners that are not corporations generally will not be eligible for the 15% reduced rate of tax currently (through 2010)
in effect for “qualified dividend income.” However, provided certain holding period and other requirements are met,
an individual or other non-corporate Owner will be eligible for the 15% reduced rate with respect to (i) distributions attributable
to dividends we receive from certain “C” corporations, such as our TRSs, and (ii) distributions attributable to income
upon which we have paid corporate income tax.
Distributions that
we designate as capital gain dividends will be taxed as long-term capital gains (to the extent that they do not exceed our actual
net capital gain for the taxable year) without regard to the period for which you have owned our common stock. However, corporate
Owners may be required to treat up to 20% of certain capital gain dividends as ordinary income. Long-term capital gains are generally
taxable at maximum federal rates of 15% (through 2010) in the case of individuals, trusts and estates, and 35% in the case of corporations.
Rather than distribute
our net capital gains, we may elect to retain and pay the U.S. federal income tax on them, in which case you will (i) include your
proportionate share of the undistributed net capital gains in income, (ii) receive a credit for your share of the U.S. federal
income tax we pay and (iii) increase the basis in your common stock by the difference between your share of the capital gain and
your share of the credit.
Distributions in excess
of our current and accumulated earnings and profits will not be taxable to you to the extent that they do not exceed your adjusted
tax basis in our common stock you own, but rather, will reduce your adjusted tax basis in your common stock. Assuming that the
common stock you own is a capital asset, to the extent that such distributions exceed your adjusted tax basis in the common stock
you own, you must include them in income as long-term capital gain (or short-term capital gain if the common stock has been held
for one year or less). Capital gains attributable to the sale of depreciable real property held for more than 12 months are subject
to a 25% maximum U.S. federal income tax rate for taxpayers who are taxed as individuals, to the extent of previously claimed depreciation
deductions.
If we declare a dividend
in October, November or December of any year that is payable to stockholders of record on a specified date in any such month, but
actually distribute the amount declared in January of the following year, then you must treat the January distribution as though
you received it on December 31 of the year in which we declared the dividend. In addition, we may elect to treat other distributions
after the close of the taxable year as having been paid during the taxable year, but you will be treated as having received these
distributions in the taxable year in which they are actually made.
To the extent that
we have available net operating losses and capital losses carried forward from prior tax years, such losses may reduce the amount
of distributions that we must make to comply with the REIT distribution requirements. See “—Annual Distribution Requirements.”
Such losses, however, are not passed through to you and do not offset your income from other sources, nor would they affect the
character of any distributions that you receive from us; you will be subject to tax on those distributions to the extent that we
have current or accumulated earnings and profits.
If we did recognize
excess inclusion income, we would identify a portion of the distributions that we make to you as excess inclusion income. Your
taxable income can never be less than the sum of your excess inclusion income for the year; excess inclusion income cannot be offset
with net operating losses or other allowable deductions. See “—Taxable Mortgage Pools.”
Dispositions of
Our Stock. Any gain or loss you recognize upon the sale or other disposition of our common stock will generally be capital
gain or loss for U.S. federal income tax purposes, and will be long-term capital gain or loss if you held the common stock for
more than one year. In addition, any loss you recognize upon a sale or exchange of our common stock that you have owned for six
months or less (after applying certain holding period rules) will generally be treated as a long-term capital loss to the extent
of distributions received from us that you are required to treat as long-term capital gain.
If you recognize a
loss upon a disposition of our common stock in an amount that exceeds a prescribed threshold, it is possible that the provisions
of recently adopted Treasury Regulations involving “reportable transactions” could apply, with a resulting requirement
to separately disclose the loss-generating transaction to the IRS. While these regulations are directed towards “tax shelters,”
they are written quite broadly, and apply to transactions that would not typically be considered tax shelters. In addition, recently
enacted legislation imposes significant penalties for failure to comply with these requirements. You should consult your tax advisor
concerning any possible disclosure obligation with respect to the receipt or disposition of our common stock, or transactions that
might be undertaken directly or indirectly by us. Moreover, you should be aware that we and other participants in the transactions
involving us (including our advisors) may be subject to disclosure or other requirements pursuant to these regulations.
Amounts that you are
required to include in taxable income with respect to our common stock you own, including taxable distributions and the income
you recognize with respect to undistributed net capital gain, and any gain recognized upon your disposition of our common stock,
will not be treated as passive activity income. You may not offset any passive activity losses you may have, such as losses from
limited partnerships in which you have invested, with income you recognize with respect to our shares of common stock. Generally,
income you recognize with respect to our common stock will be treated as investment income for purposes of the investment interest
limitations.
Information Reporting
and Backup Withholding. We will report to our stockholders and to the IRS the amount of distributions we pay during each calendar
year and the amount of tax we withhold, if any. Under the backup withholding rules, you may be subject to backup withholding at
a current rate of 28% with respect to distributions unless you:
| • | are a corporation or come within certain other exempt categories and, when required, demonstrate
this fact; or |
| • | provide a taxpayer identification number, certify as to no loss of exemption from backup withholding,
and otherwise comply with the applicable requirements of the backup withholding rules. |
Any amount paid as
backup withholding will be creditable against your income tax liability. For a discussion of the backup withholding rules as applied
to foreign owners, see “—Taxation of Foreign Owners.”
Taxation of Tax-Exempt Owners
Tax-exempt entities,
including qualified employee pension and profit sharing trusts and individual retirement accounts, are generally exempt from U.S.
federal income taxation. However, they are subject to taxation on their unrelated business taxable income (“UBTI”).
Provided that a tax-exempt Owner (i) has not held our common stock as “debt financed property” within the meaning of
the Code and (ii) has not used our common stock in an unrelated trade or business, amounts that we distribute to tax-exempt Owners
generally should not constitute UBTI. To the extent that we are (or a part of us, or a disregarded subsidiary of ours is) a TMP,
a portion of the dividends paid to a tax-exempt stockholder that is allocable to excess inclusion income may be treated as UBTI.
If, however, excess inclusion income is allocable to some categories of tax-exempt stockholders that are not subject to UBTI, we
might be subject to corporate level tax on such income, and, in that case, may reduce the amount of distributions to those stockholders
whose ownership gave rise to the tax. However, a tax-exempt Owner’s allocable share of any excess inclusion income that we
recognize will be subject to tax as UBTI. See “—Taxable Mortgage Pools.” As required by IRS guidance, we intend
to notify our stockholders if a portion of a dividend paid by us is attributable to excess inclusion income.
Tax-exempt Owners
that are social clubs, voluntary employee benefit associations, supplemental unemployment benefit trusts and qualified group legal
services plans, exempt from taxation under special provisions of the U.S. federal income tax laws, are subject to different UBTI
rules, which generally will require them to characterize distributions that they receive from us as UBTI.
In certain circumstances,
a qualified employee pension trust or profit sharing trust that owns more than 10% of our stock could be required to treat a percentage
of the dividends that it receives from us as UBTI if we are a “pension-held REIT.” We will not be a pension-held REIT
unless either (a) one pension trust owns more than 25% of the value of our stock or (b) a group of pension trusts individually
holding more than 10% of our stock collectively owns more than 50% of the value of our stock. However, the restrictions on ownership
and transfer of our stock, as described under “Description of Capital Stock—Restrictions on Ownership and Transfer”
are designed among other things to prevent a tax-exempt entity from owning more than 10% of the value of our stock, thus making
it unlikely that we will become a pension-held REIT.
Taxation of Foreign Owners
The following is a
summary of certain U.S. federal income and estate tax consequences of the ownership and disposition of our common stock applicable
to a Foreign Owner.
If a partnership,
including for this purpose any entity that is treated as a partnership for U.S. federal income tax purposes, holds our common stock,
the tax treatment of a partner in the partnership will generally depend upon the status of the partner and the activities of the
partnership. An investor that is a partnership having Foreign Owners as partners should consult its tax advisors about the U.S.
federal income tax consequences of the acquisition, ownership and disposition of our common stock.
This discussion is
based on current law and is for general information only. This discussion addresses only certain and not all aspects of U.S. federal
income and estate taxation.
For most foreign investors,
investment in a REIT that invests principally in mortgage loans and MBS is not the most tax-efficient way to acquire and manage,
through our subsidiaries, such assets. That is because receiving distributions of income derived from such assets in the form of
REIT dividends subjects most foreign investors to withholding taxes that direct investment in those asset classes, and the direct
receipt of interest and principal payments with respect to them, would not. The principal exceptions are foreign sovereigns and
their agencies and instrumentalities, which may be exempt from withholding taxes on REIT dividends under the Code, and certain
foreign pension funds or similar entities able to claim an exemption from withholding taxes on REIT dividends under the terms of
a bilateral tax treaty between their country of residence and the United States.
Ordinary Dividend
Distributions. The portion of dividends received by a Foreign Owner payable out of our current and accumulated earnings and
profits that are not attributable to our capital gains and that are not effectively connected with a U.S. trade or business of
the Foreign Owner will be subject to U.S. withholding tax at the rate of 30% (unless reduced by an applicable income tax treaty).
In general, a Foreign Owner will not be considered engaged in a U.S. trade or business solely as a result of its ownership of our
common stock. In cases where the dividend income from a Foreign Owner’s investment in our common stock is (or is treated
as) effectively connected with the Foreign Owner’s conduct of a U.S. trade or business, the Foreign Owner generally will
be subject to U.S. tax at graduated rates, in the same manner as Domestic Owners are taxed with respect to such dividends (and
may also be subject to the 30% branch profits tax in the case of a foreign owner that is a foreign corporation). If a Foreign Owner
is the record holder of shares of our common stock, we plan to withhold U.S. income tax at the rate of 30% on the gross amount
of any distribution paid to a Foreign Owner unless:
| • | a lower income treaty rate applies and the Foreign Owner provides us with an IRS Form W-8BEN evidencing
eligibility for that reduced rate; or |
| • | the Foreign Owner provides us with an IRS Form W-8ECI certifying that the distribution is effectively
connected income. |
Under some income
tax treaties, lower withholding tax rates do not apply to ordinary dividends from REITs. Furthermore, reduced treaty rates are
not available to the extent that distributions are treated as excess inclusion income. See “—Taxable Mortgage Pools.”
As required by IRS guidance, we intend to notify our stockholders if a portion of a dividend paid by us is excess inclusion income.
Non-Dividend Distributions.
Distributions we make to a Foreign Owner that are not considered to be distributions out of our current and accumulated earnings
and profits will not be subject to U.S. federal income or withholding tax unless the distribution exceeds the Foreign Owner’s
adjusted tax basis in our common stock at the time of the distribution and, as described below, the Foreign Owner would otherwise
be taxable on any gain from a disposition of our common stock. If it cannot be determined at the time a distribution is made whether
or not such distribution will be in excess of our current and accumulated earnings and profits, the entire distribution will be
subject to withholding at the rate applicable to dividends. A Foreign Owner may, however, seek a refund of such amounts from the
IRS if it is subsequently determined that the distribution was, in fact, in excess of our current and accumulated earnings and
profits, provided the proper forms are timely filed with the IRS by the Foreign Owner.
Capital Gain Dividends.
Distributions that we make to Foreign Owners that are attributable to our disposition of U.S. real property interests (“USRPI,”
which term does not include interests in mortgage loans and mortgage backed securities) are subject to U.S. federal income and
withholding taxes pursuant to the Foreign Investment in Real Property Act of 1980, or FIRPTA, and may also be subject to branch
profits tax if the Foreign Owner is a corporation that is not entitled to treaty relief or exemption. Although we do not anticipate
recognizing any gain attributable to the disposition of USRPI, as defined by FIRPTA, Treasury Regulations interpreting the FIRPTA
provisions of the Code could be read to impose a withholding tax at a rate of 35% on all of our capital gain dividends (or amounts
we could have designated as capital gain dividends) paid to Foreign Owners, even if no portion of the capital gains we recognize
during the year are attributable to our disposition of USRPI. However, in any event, the FIRPTA rules will not apply to distributions
to a Foreign Owner so long as (i) our common stock is regularly traded (as defined by applicable Treasury Regulations) on an established
securities market, and (ii) the Foreign Owner owns (actually or constructively) no more than 5% of our common stock at any time
during the one-year period ending with the date of the distribution.
Dispositions of
Our Stock. Unless our common stock constitutes a USRPI, a sale of our common stock by a Foreign Owner generally will not be
subject to U.S. federal income tax under FIRPTA. We do not expect that our common stock will constitute a USRPI. Our common stock
will not constitute a USRPI if less than 50% of our assets throughout a prescribed testing period consist of interests in real
property located within the United States, excluding, for this purpose, interest in real property solely in the capacity as a creditor.
Even if the foregoing test is not met, our common stock will not constitute a USRPI if we are a domestically controlled REIT. A
“domestically controlled REIT” is a REIT in which, at all times during a specified testing period, less than 50% in
value of its shares is held directly or indirectly by foreign owners. We believe that we will be a domestically controlled REIT,
and that a sale of our stock should not be subject to taxation under FIRPTA. However, no assurance can be given that we are or
will remain a domestically controlled REIT.
Even if we do not
constitute a domestically controlled REIT, a Foreign Owner’s sale of our common stock generally will still not be subject
to tax under FIRPTA as a sale of a USRPI provided that (i) our stock is “regularly traded” (as defined by applicable
Treasury Regulations) on an established securities market and (ii) the selling Foreign Owner has owned (actually or constructively)
5% or less of our outstanding common stock at all times during a specified testing period.
If gain on the sale
of our stock were subject to taxation under FIRPTA, the Foreign Owner would generally be subject to the same treatment as a Domestic
Owner with respect to such gain (subject to applicable alternative minimum tax and a special alternative minimum tax in the case
of nonresident alien individuals) and the purchaser of the common stock could be required to withhold 10% of the purchase price
and remit such amount to the IRS.
Capital gains not
subject to FIRPTA will nonetheless be taxable in the United States to a Foreign Owner in two cases. First, if the Foreign Owner’s
investment in our common stock is effectively connected with a U.S. trade or business conducted by such Foreign Owner, the Foreign
Owner will generally be subject to the same treatment as a Domestic Owner with respect to such gain. Second, if the Foreign Owner
is a nonresident alien individual who was present in the United States for 183 days or more during the taxable year and has a “tax
home” in the United States, the nonresident alien individual will be subject to a 30% tax on the individual’s capital
gain.
Estate Tax.
Our common stock owned or treated as owned by an individual who is not a citizen or resident of the United States (as specially
defined for U.S. federal estate tax purposes) at the time of death will be includible in the individual’s gross estate for
U.S. federal estate tax purposes, unless an applicable estate tax treaty provides otherwise. Such individual’s estate may
be subject to U.S. federal estate tax on the property includible in the estate for U.S. federal estate tax purposes.
Information Reporting
and Backup Withholding. Under current Treasury Regulations, information reporting and backup withholding will not apply to
payments on the common stock made by us or our paying agent (in its capacity as such) to you if you have provided the required
certification that you are a Foreign Owner provided that neither we nor our paying agent has actual knowledge or reason to know
that you are a Domestic Owner. However, we or our paying agent may be required to report to the IRS and you payments of dividends
on our common stock and the amount of tax, if any, withheld with respect to those payments. Copies of the information returns reporting
such payments and any withholding may also be made available to the tax authorities in the country in which you reside under the
provisions of a treaty or agreement. The gross proceeds from the disposition of your common stock may be subject to information
reporting and backup withholding tax (currently at a maximum rate of 28%). If you sell your common stock outside the United States
through a non-U.S. office of a non-U.S. broker and the sales proceeds are paid to you outside the United States, then the U.S.
information reporting and backup withholding requirements generally will not apply to that payment. However, U.S. information reporting,
but not backup withholding, will apply to a payment of sales proceeds, even if that payment is made outside the United States,
if you sell your debt securities or common stock through a non-U.S. office of a broker that:
| • | derives 50% or more of its gross income in specific periods from the conduct of a trade or business
in the United States; |
| • | is a “controlled foreign corporation” for U.S. federal income tax purposes; or |
| • | is a foreign partnership, if at any time during its tax year: |
| - | one or more of its partners are U.S. persons who in the aggregate hold more than 50% of the income
or capital interests in the partnership; or |
| - | the foreign partnership is engaged in a U.S. trade or business, |
unless the broker has documentary evidence
in its files that you are a Foreign Owner and certain other conditions are met or you otherwise establish an exemption. If you
receive payment of the proceeds of a sale of your common stock to or through a U.S. office of a broker, the payment is subject
to both U.S. backup withholding and information reporting unless you provide an IRS Form W-8BEN certifying that you are a Foreign
Owner or you otherwise establish an exemption, provided that the broker does not have actual knowledge or reason to know that you
are not a Foreign Owner or the conditions of any other exemption are not, in fact, satisfied.
You are encouraged
to consult your own tax advisor regarding application of backup withholding in your particular circumstance and the availability
of and procedure for obtaining an exemption from backup withholding under current Treasury Regulations. Any amounts withheld under
the backup withholding rules from a payment to you will be allowed as a refund or credit against your U.S. federal income tax liability,
provided the required information is timely furnished to the IRS.
Other Tax Consequences
Possible Legislative
or Other Actions Affecting Tax Consequences. Prospective investors should recognize that the present U.S. federal income tax
treatment of an investment in our common stock may be modified by legislative, judicial or administrative action at any time, and
that any such action may affect investments and commitments previously made. The rules dealing with U.S. federal income taxation
are constantly under review by persons involved in the legislative process and by the IRS and Treasury Department, resulting in
revisions of regulations and revised interpretations of established concepts as well as statutory changes. Revisions in U.S. federal
tax laws and interpretations thereof could adversely affect the tax consequences of an investment in our common stock.
U.S. tax legislation
enacted in 2010, the Foreign Account Tax Compliance Act, or FATCA, and subsequent IRS guidance regarding the implementation of
FATCA, provides that 30% withholding tax will be imposed on distributions (for payments made after June 30, 2014) and the gross
proceeds from a sale of shares (for payments made after December 31, 2016) to a foreign entity if such entity fails to satisfy
certain due diligence, disclosure and reporting rules. In the event of noncompliance with the FATCA requirements, as set forth
in Treasury Regulations, withholding at a rate of 30% on distributions in respect of our stock and gross proceeds from the sale
of our stock held by or through such foreign entities would be imposed. Non-U.S. persons that are otherwise eligible for an exemption
from, or a reduction of, U.S. withholding tax with respect to such distributions and sale proceeds would be required to seek a
refund from the IRS to obtain the benefit of such exemption or reduction. We will not pay any additional amounts in respect of
any amounts withheld (under FATCA or otherwise). Additional requirements and conditions may be imposed pursuant to an intergovernmental
agreement (if and when entered into) between the United States and the foreign entity’s home jurisdiction. Prospective investors
are urged to consult with their tax advisors regarding the application of these rules to an investment in our stock.
State and Local
Taxes. We and our stockholders may be subject to state or local taxation in various state or local jurisdictions, including
those in which we or they transact business or reside. The state and local tax treatment may not conform to the U.S. federal income
tax consequences discussed above. Consequently, prospective investors should consult their own tax advisors regarding the effect
of state and local tax laws on an investment in our common stock.
PLAN OF DISTRIBUTION
Except to the extent
the Administrator purchases shares of our common stock in the open market, we will sell directly to you through the Administrator
the common shares acquired under the Plan. The shares of our common stock may be resold in market transactions on any national
securities exchange on which common shares trade or in privately negotiated transactions. Our common shares of common stock currently
are listed on the New York Stock Exchange. In connection with the administration of the Plan, we may be requested to approve investments
made pursuant to requests for waiver by or on behalf of participants or other investors who may be engaged in the securities business.
Persons who acquire
shares of our common stock through the Plan and resell them shortly after acquiring them, including coverage of short positions,
under certain circumstances, may be participating in a distribution of securities that would require compliance with Regulation
M under the Exchange Act and may be considered to be underwriters within the meaning of the Securities Act. We will not extend
to any such person any rights or privileges other than those to which they would be entitled as a participant, nor will we enter
into any agreement with any such person regarding the resale or distribution by any such person of the shares of our common stock
so purchased.
In connection with
transactions executed under the Plan, you may be required to pay the applicable transaction and trading fees as discussed above
under “Description of the Plan – Plan Service Fees.”
Our common stock may
not be available under the Plan in all states or jurisdictions. We are not making an offer to sell our common stock in any jurisdiction
where the offer or sale is not permitted.
EXPERTS
The
consolidated statements of operations and comprehensive income (loss), stockholders’ equity and cash flows for the year
ended December 31, 2011 incorporated in this Prospectus by reference from our Annual Report on Form 10-K have been audited by
Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is incorporated
herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
The consolidated financial
statements as of December 31, 2013 and 2012, and for each of the two years in the period ended December 31, 2013, incorporated
in this Prospectus by reference from our Annual Report on Form 10-K, and the effectiveness of our internal control over financial
reporting, have been audited by Ernst & Young LLP, an independent registered public accounting firm, as stated in their report,
which is incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the
report of such firm given upon their authority as experts in accounting and auditing.
LEGAL MATTERS
The validity of the
securities offered hereby is being passed upon for us by K&L Gates LLP. The opinion of counsel described under the heading
“Material Federal Income Tax Considerations” is being rendered by K&L Gates LLP. This opinion is subject to various
assumptions and is based on current tax law.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly
and current reports, proxy statements and other information with the SEC. The public may read any materials we file with the SEC
at the SEC’s Public Reference Room at 100 F Street, N.E, Washington, D.C. 20549. The public may obtain information on the
operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site that contains reports,
proxy and information statements, and other information regarding issuers that file electronically with the SEC. The address of
that site is http://www.sec.gov. Our common stock is listed on the New York Stock Exchange under the symbol “NLY”
and all such reports, proxy statements and other information filed by us with the New York Stock Exchange may be inspected at the
New York Stock Exchange’s offices at 20 Broad Street, New York, New York 10005.
We have filed a registration
statement, of which this prospectus is a part, covering the securities offered hereby. As allowed by SEC rules, this prospectus
does not contain all of the information set forth in the registration statement and the exhibits, financial statements and schedules
thereto. We refer you to the registration statement, the exhibits, financial statements and schedules thereto for further information.
This prospectus is qualified in its entirety by such other information.
INCORPORATION OF CERTAIN DOCUMENTS
BY REFERENCE
The SEC allows us
to “incorporate by reference” information into this prospectus, which means that we can disclose important information
to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed
to be part of this prospectus, except for any information superseded by information in this prospectus. We have filed the documents
listed below with the SEC (File No. 1-13447) under the Securities Exchange Act of 1934 (or Exchange Act), and these documents are
incorporated herein by reference:
| • | Our Annual Report on Form 10-K for the year ended December 31, 2013 filed on February 27, 2014; |
| • | Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2014 filed on May 8,
2014; |
| • | Our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2014 filed on August
7, 2014; |
| • | Our Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2014 filed on November
6, 2014; and |
| • | Our Current Reports on Form 8-K and Form 8-K/A filed on January 6, January 30, February 13, March
18, April 3, May 22, July 2, and October 1, 2014. |
All documents we file
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and prior to the termination
of the offering of the securities to which this prospectus relates (other than information in such documents that is not deemed
to be filed) shall be deemed to be incorporated by reference into this prospectus and to be part hereof from the date of filing
of those documents. All documents we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
the initial registration statement that contains this prospectus and prior to the effectiveness of the registration statement shall
be deemed to be incorporated by reference into this prospectus and to be part hereof from the date of filing those documents.
Any statement contained
in this prospectus or in a document incorporated by reference shall be deemed to be modified or superseded for all purposes to
the extent that a statement contained in this prospectus or in any other document which is also incorporated by reference modifies
or supersedes that statement.
We will provide to
each person, including any beneficial owner, to whom a copy of this prospectus is delivered, a copy of any or all of the information
that has been incorporated by reference in this prospectus but not delivered with this prospectus (other than the exhibits to such
documents which are not specifically incorporated by reference herein); we will provide this information at no cost to the requester
upon written or oral request to Investor Relations, Annaly Capital Management, Inc., 1211 Avenue of the Americas, 41st Floor, New
York, New York 10036, telephone number (212) 696-0100.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The fees and expenses to be paid in connection
with the distribution of the securities being registered hereby are estimated as follows:
Registration fee | |
$ | 133,281 | |
Legal fees and expenses (including Blue Sky fees) | |
$ | 5,000 | |
Accounting fees and expenses | |
$ | 10,000 | |
Printing | |
$ | 5,000 | |
Miscellaneous | |
$ | 5,000 | |
Total | |
$ | 158,281 | |
Item 15. Indemnification of Directors and Officers.
Section 2-418 of the
Corporations and Associations Article of the Annotated Code of Maryland (or Maryland General Corporation Law) provides that a Maryland
corporation may indemnify any director or officer of a corporation who is made a party to any proceeding by reason of service in
that capacity unless it is established that the act or omission of the director or officer was material to the matter giving rise
to the proceeding and was the result of active and deliberate dishonesty; or the person actually received an improper personal
benefit in money, property or services; or, in the case of any criminal proceeding, the person had reasonable cause to believe
that the act or omission was unlawful. Indemnification may be against judgments, penalties, fines, settlements, and
reasonable expenses actually incurred by the director or officer in connection with the proceeding, but if the proceeding was one
by or in the right of the corporation, indemnification may not be made in respect of any proceeding in which the director or officer
shall have been adjudged to be liable to the corporation. Such indemnification may not be made unless authorized for
a specific proceeding after a determination has been made, in the manner prescribed by the law, that indemnification is permissible
in the circumstances because the director or officer has met the applicable standard of conduct. On the other hand,
unless limited by the corporation’s charter, the director or officer must be indemnified for expenses if he has been successful
in the defense of the proceeding or as otherwise ordered by a court. The law also prescribes the circumstances under
which the corporation may advance expenses to, or obtain insurance or similar protection for, directors and officers.
Our articles of incorporation,
as amended, provide that our directors and officers will, and our employees and agents in the discretion of our Board of Directors
may, be indemnified to the fullest extent required or permitted from time to time by the laws of Maryland.
The Maryland General
Corporation Law permits the charter of a Maryland corporation to include a provision limiting the liability of its directors and
officers to the corporation and its stockholders for money damages except to the extent that (i) it is proved that the person actually
received an improper benefit or profit in money, property or services for the amount of the benefit or profit in money, property
or services actually received, or (ii) a judgment or other final adjudication is entered in a proceeding based on a finding that
the person’s action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause
of action adjudicated in the proceeding. Our articles of incorporation, as amended, contain a provision providing for
elimination of the liability of our directors and officers to us or our stockholders for money damages to the maximum extent permitted
by Maryland law.
We maintain policies
of insurance under which our directors and officers are insured, within the limits and subject to the limitations of the policies,
against expenses in connection with the defense of actions, suits or proceedings resulting from such director or officer being
or having been a director or officer, and certain liabilities which might be imposed as a result of these actions, suits or proceedings.
Item 16. Exhibits.
Exhibit
Number |
Exhibit Description |
|
|
4.1 |
Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-11 (Registration No. 333-32913) filed with the SEC on September 17, 1997). |
|
|
5.1 |
Opinion of K&L Gates LLP (including consent of such firm). |
|
|
8.1 |
Tax Opinion of K&L Gates LLP (including consent of such firm). |
|
|
23.1 |
Consent of Deloitte & Touche LLP. |
|
|
23.2 |
Consent of Ernst & Young LLP. |
|
|
23.3 |
Consent of K&L Gates LLP (included in Exhibit 5.1). |
|
|
23.4 |
Consent of K&L Gates LLP (included in Exhibit 8.1). |
|
|
24.1 |
Power of Attorney (included on the signature page of the Registration Statement). |
Item 17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any
material information with respect to the plan of distribution not previously disclosed in the registration statement or any material
change to such information in this registration statement;
provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose
of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from
registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(4) That, for purposes
of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus
filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the
filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that
is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to
the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose
of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary
prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing
prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The portion of
any other free writing prospectus relating to the offering containing material information about the undersigned registrant or
its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication
that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant
to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on December 8, 2014.
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ANNALY CAPITAL MANAGEMENT, INC. |
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By: /s/ Wellington J. Denahan |
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Wellington J. Denahan |
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Chief Executive Officer, and |
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authorized officer of registrant |
Each person whose
signature appears below hereby authorizes Wellington J. Denahan and R. Nicholas Singh, and each of them, as attorney-in-fact, to
sign on his or her behalf, individually and in each capacity stated below, any amendment, including post-effective amendments to
this registration statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission.
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and
on the date indicated.
Signatures |
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Title |
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Date |
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/s/ Wellington J. Denahan |
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Chairman of the Board of Directors and Chief Executive Officer |
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December 8, 2014 |
Wellington J. Denahan |
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(principal executive officer) |
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/s/ Glenn A. Votek |
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Chief Financial Officer |
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December 8, 2014 |
Glenn A. Votek |
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(principal financial and accounting officer) |
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/s/ Kevin G. Keyes |
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Director and President |
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December 8, 2014 |
Keven G. Keyes |
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/s/ Kevin P. Brady |
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Director |
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December 8, 2014 |
Kevin P. Brady |
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/s/ Jonathan D. Green |
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Director |
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December 8, 2014 |
Jonathan D. Green |
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/s/ Michael Haylon |
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Director |
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December 8, 2014 |
Michael Haylon |
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/s/ E. Wayne Nordberg |
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Director |
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December 8, 2014 |
E. Wayne Nordberg |
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/s/ Donnell A. Segalas |
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Director |
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December 8, 2014 |
Donnell A. Segalas |
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/s/ John H. Schaefer |
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Director |
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December 8, 2014 |
John H. Schaefer |
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/s/ Francine J. Bovich |
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Director |
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December 8, 2014 |
Francine J. Bovich |
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EXHIBIT INDEX
Exhibit
Number |
Exhibit Description |
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4.1 |
Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-11 (Registration No. 333-32913) filed with the SEC on September 17, 1997). |
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5.1 |
Opinion of K&L Gates LLP (including consent of such firm). |
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8.1 |
Tax Opinion of K&L Gates LLP (including consent of such firm). |
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23.1 |
Consent of Deloitte & Touche LLP. |
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23.2 |
Consent of Ernst & Young LLP. |
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23.3 |
Consent of K&L Gates LLP (included in Exhibit 5.1). |
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23.4 |
Consent of K&L Gates LLP (included in Exhibit 8.1). |
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24.1 |
Power of Attorney (included on the signature page of the Registration Statement). |
Exhibit 5.1
Opinion of K&L Gates LLP
December 8, 2014
Annaly Capital Management, Inc.
1211 Avenue of the Americas, 41st Floor
New York, New York 10036
Ladies and Gentlemen:
We have acted as counsel
to Annaly Capital Management, Inc., a Maryland corporation (the “Company”), in connection with a Registration Statement
on Form S-3 filed by the Company on December 8, 2014 (the “Registration Statement”) with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the “Act”), for the registration of 100,000,000 shares (the
“Shares”) of the Company’s common stock, par value $0.01 per share (“Common Stock”), that may be
issued pursuant to the Company’s Dividend Reinvestment and Share Purchase Plan (the “Plan”).
In connection with
this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of:
(i) the
Registration Statement;
(ii) the
Articles of Incorporation of the Company, as amended and supplemented, as certified by the Secretary of the Company (the “Charter”);
(iii) the
Bylaws of the Company, as currently in effect, and as certified by the Secretary of the Company;
(iv) the
corporate actions of the Company that provide for the adoption and subsequent amendment of the Registration Statement;
(v) a
specimen certificate representing the Common Stock; and
(vi) the
Plan.
We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of corporate records of the Company, and certificates
of public officials and of officers or other representatives of the Company and others and such other documents, certificates and
records as we have deemed necessary or appropriate as a basis for the opinion set forth herein.
Annaly Capital Management, Inc.
December 8, 2014
Page 2
In our examination,
we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified,
conformed or photostatic copies, and the authenticity of the originals of such copies.
Our opinion set forth
herein are limited to the Maryland General Corporation Law, the applicable provisions of the Maryland Constitution and reported
judicial decisions interpreting those laws that, in our experience, are normally applicable to transactions of the type contemplated
by the Registration Statement (all of the foregoing being referred to as “Opined on Law”). We do not express any opinion
with respect to the law of any jurisdiction other than Opined on Law or as to the effect of any such non-Opined on Law on the opinion
herein stated.
Based upon and subject
to the foregoing, it is our opinion that the Shares have been duly authorized for issuance by the Company and, when and if issued
and delivered against payment therefor in accordance with the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to
the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also hereby consent to the use of
our name under the heading “Legal Matters” in the prospectus which forms a part of the Registration Statement. In giving
this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof unless
otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed
herein or of any subsequent changes in applicable laws.
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Very truly yours, |
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/s/ K&L Gates LLP |
Exhibit 8.1
Opinion of K&L Gates LLP
December 8, 2014
Annaly Capital Management, Inc.
1211 Avenue of the Americas
41st Floor
New York, New York 10036
Re: Status as a Real Estate Investment
Trust; Information in the
Registration
Statement under the heading “Material Federal
Income
Tax Considerations”
Dear Sir or Madam:
In connection with
the Registration Statement on Form S-3, dated December 8, 2014, (the “Registration Statement”) being filed by Annaly
Capital Management, Inc., a Maryland corporation (the “Company”) with the Securities Exchange Commission, you have
requested our opinion concerning (i) the qualification and taxation of the Company as a real estate investment trust (a “REIT”)
under the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) the information in the Company’s Registration
Statement under the heading “Material Federal Income Tax Considerations.”
In formulating our
opinions, we have reviewed and relied upon the charter of the Company and the Registration Statement. In addition, we have relied
upon the Company’s certificate (the “Officer’s Certificate”), executed by a duly appointed officer of the
Company, setting forth certain factual representations relating to the organization and proposed operation of the Company. Where
such factual representations in the Officer’s Certificate involve terms defined in the Code, the regulations promulgated
by the Department of the Treasury (the “Regulations”), published rulings of the Internal Revenue Service (the “Service”),
or other relevant authority, we have explained such terms to the Company’s representatives and we are satisfied that the
Company’s representatives understand such terms and are capable of making such factual representations. We have also relied
upon representations that the information presented in the Registration Statement accurately and completely describes all material
facts. We have not verified any of those assumptions.
In rendering these
opinions, we have assumed that the Company will be operated in the manner described in its organizational documents, including
but not limited to the charter, and in the Registration Statement.
Based upon and subject
to the foregoing, it is our opinion that:
| 1. | Commencing with its taxable year ending December 31, 1997, the Company has been organized in conformity
with the requirements for qualification as a REIT under the Code, and the Company’s proposed method of operation, as described
in the Registration Statement and as represented in the Officer’s Certificate, will enable it to satisfy the requirements
for qualification as a REIT under the Code. |
Annaly Capital Management, Inc.
December 8, 2014
Page 2
| 2. | The statements in the Registration Statement under the heading “Material Federal Income Tax
Considerations”, to the extent that such statements constitute matters of law, summaries of legal matters, or legal conclusions,
have been reviewed by us and are correct in all material respects and accurately describe the federal income tax considerations
that are likely to be material to a holder of the Company’s common stock. |
Our opinion is based
on the Code, the Regulations, and the interpretations of the Code and such Regulations by the courts and the Service, all as they
are in effect and exist at the date of this letter. It should be noted that statutes, regulations, judicial decisions, and administrative
interpretations are subject to change at any time and, in some circumstances, with retroactive effect. A material change that is
made after the date hereof in any of the foregoing bases for our opinions could affect our conclusions. Other than as expressly
stated above, we express no opinion on any issue relating to the Company or any investment therein.
We consent to the reference
to our firm under the caption “Material Federal Income Tax Considerations” in the Registration Statement and to the
reproduction and filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby
admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended,
nor do we admit we are experts with respect to any part of the Registration Statement within the meaning of the term “expert”
as used in the Securities Act of 1933, as amended.
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Very truly yours, |
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/s/ K&L Gates LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
We consent to the incorporation by reference
in this Registration Statement on Form S-3 of our report dated February 28, 2012, relating to the consolidated statements of operations
and comprehensive income (loss), stockholders’ equity and cash flows of Annaly Capital Management, Inc. and Subsidiaries
for the year ended December 31, 2011, appearing in the Annual Report on Form 10-K of Annaly Capital Management, Inc. for the year
ended December 31, 2013 and to the reference to us under the heading “Experts” in the Prospectus, which is part of
this Registration Statement.
/s/ Deloitte & Touche LLP
New York, New York
December 8, 2014
Exhibit 23.2
Consent of Independent Registered Public
Accounting Firm
We consent to the reference to our firm
under the caption “Experts” in the Prospectus of Annaly Capital Management,
Inc. for the registration of 100,000,000 shares of its common stock and to the incorporation by reference therein of our reports
dated February 27, 2014, with respect to the consolidated financial statements of Annaly Capital
Management, Inc., and the effectiveness of internal control over financial reporting of Annaly Capital Management, Inc., included
in its Annual Report (Form 10-K) for the year ended December 31, 2013, filed with the Securities and Exchange Commission.
/s/ Ernst and Young LLP
New York, New York
December 8, 2014
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