e10vq
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
|
|
|
þ |
|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 |
For the quarterly period ended June 30, 2008
OR
|
|
|
o |
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
COMMISSION FILE NUMBER: 001-32322
TOUSA, INC.
(Exact name of registrant as specified in its charter)
|
|
|
Delaware
|
|
76-0460831 |
(State or other jurisdiction of
|
|
(I.R.S. Employer |
incorporation or organization)
|
|
Identification No.) |
|
4000 Hollywood Blvd., Suite 400 N |
|
|
Hollywood, Florida
|
|
33021 |
(Address of principal executive offices)
|
|
(ZIP code) |
(954) 364-4000
(Registrants telephone number, including area code)
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for
such shorter period that the Registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes o No þ
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
|
|
|
|
|
|
|
Large accelerated filer o
|
|
Accelerated filer o
|
|
Non-accelerated filer þ (Do not check if a smaller reporting company)
|
|
Smaller reporting company o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act). Yes o No þ
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuers classes of common stock, as of
the latest practicable date: 59,604,169 shares of common stock as of March 8, 2009.
TOUSA, INC. AND SUBSIDIARIES
DEBTOR-IN-POSSESSION
INDEX
2
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
TOUSA, INC. AND SUBSIDIARIES
DEBTOR-IN-POSSESSION
CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION
(Dollars in millions, except par value)
|
|
|
|
|
|
|
|
|
|
|
June 30, 2008 |
|
|
December 31, 2007 |
|
|
|
(Unaudited) |
|
|
|
|
|
ASSETS |
|
|
|
|
|
|
|
|
HOMEBUILDING: |
|
|
|
|
|
|
|
|
Cash and cash equivalents: |
|
|
|
|
|
|
|
|
Unrestricted |
|
$ |
192.4 |
|
|
$ |
67.2 |
|
Restricted |
|
|
185.8 |
|
|
|
5.1 |
|
Inventory: |
|
|
|
|
|
|
|
|
Deposits |
|
|
30.2 |
|
|
|
56.9 |
|
Homesites and land under development |
|
|
288.1 |
|
|
|
633.0 |
|
Residences completed and under construction |
|
|
337.9 |
|
|
|
555.9 |
|
Inventory not owned |
|
|
10.3 |
|
|
|
26.0 |
|
|
|
|
|
|
|
|
|
|
|
666.5 |
|
|
|
1,271.8 |
|
Property and equipment, net |
|
|
19.0 |
|
|
|
24.6 |
|
Investments in unconsolidated joint ventures |
|
|
8.7 |
|
|
|
9.0 |
|
Receivables from unconsolidated joint ventures |
|
|
0.1 |
|
|
|
0.3 |
|
Other assets |
|
|
61.3 |
|
|
|
330.0 |
|
Goodwill |
|
|
|
|
|
|
11.2 |
|
Assets held for sale |
|
|
2.9 |
|
|
|
6.1 |
|
|
|
|
|
|
|
|
|
|
|
1,136.7 |
|
|
|
1,725.3 |
|
|
|
|
|
|
|
|
|
|
FINANCIAL SERVICES: |
|
|
|
|
|
|
|
|
Cash and cash equivalents: |
|
|
|
|
|
|
|
|
Unrestricted |
|
|
11.3 |
|
|
|
9.3 |
|
Restricted |
|
|
4.3 |
|
|
|
5.6 |
|
Mortgage loans held for sale |
|
|
6.1 |
|
|
|
15.0 |
|
Other assets |
|
|
4.1 |
|
|
|
6.8 |
|
|
|
|
|
|
|
|
|
|
|
25.8 |
|
|
|
36.7 |
|
|
|
|
|
|
|
|
Total assets |
|
$ |
1,162.5 |
|
|
$ |
1,762.0 |
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS (DEFICIT) EQUITY |
|
|
|
|
|
|
|
|
HOMEBUILDING: |
|
|
|
|
|
|
|
|
Accounts payable and other liabilities |
|
$ |
130.8 |
|
|
$ |
401.8 |
|
Customer deposits |
|
|
21.8 |
|
|
|
33.9 |
|
Obligations for inventory not owned |
|
|
|
|
|
|
32.0 |
|
Notes payable |
|
|
|
|
|
|
1,585.3 |
|
Bank borrowings |
|
|
|
|
|
|
168.5 |
|
Liabilities associated with assets held for sale |
|
|
0.2 |
|
|
|
0.9 |
|
|
|
|
|
|
|
|
|
|
|
152.8 |
|
|
|
2,222.4 |
|
|
|
|
|
|
|
|
|
|
FINANCIAL SERVICES: |
|
|
|
|
|
|
|
|
Accounts payable and other liabilities |
|
|
4.7 |
|
|
|
7.3 |
|
Bank borrowings |
|
|
|
|
|
|
7.8 |
|
|
|
|
|
|
|
|
|
|
|
4.7 |
|
|
|
15.1 |
|
|
|
|
|
|
|
|
Total liabilities not subject to compromise |
|
|
157.5 |
|
|
|
2,237.5 |
|
Liabilities subject to compromise (Note 2) |
|
|
2,143.8 |
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
|
2,301.3 |
|
|
|
2,237.5 |
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies |
|
|
|
|
|
|
|
|
Stockholders (deficit) equity: |
|
|
|
|
|
|
|
|
Preferred stock $0.01 par value; 3,000,000 shares
authorized; 117,500 issued and outstanding at June
30, 2008 and December 31, 2007 |
|
|
9.1 |
|
|
|
3.9 |
|
Common stock $0.01 par value; 975,000,000 shares
authorized; 59,604,169 shares issued and
outstanding at June 30, 2008 and December 31, 2007 |
|
|
0.6 |
|
|
|
0.6 |
|
Additional paid-in capital |
|
|
567.2 |
|
|
|
570.7 |
|
Accumulated deficit |
|
|
(1,715.7 |
) |
|
|
(1,050.7 |
) |
|
|
|
|
|
|
|
Total stockholders (deficit) equity |
|
|
(1,138.8 |
) |
|
|
(475.5 |
) |
|
|
|
|
|
|
|
Total liabilities and stockholders (deficit) equity |
|
$ |
1,162.5 |
|
|
$ |
1,762.0 |
|
|
|
|
|
|
|
|
See accompanying notes to unaudited consolidated financial statements.
3
TOUSA, INC. AND SUBSIDIARIES
DEBTOR-IN-POSSESSION
CONSOLIDATED STATEMENTS OF OPERATIONS
(Dollars in millions, except per share amounts)
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
HOMEBUILDING: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Home sales |
|
$ |
276.9 |
|
|
$ |
535.3 |
|
|
$ |
567.8 |
|
|
$ |
1,092.7 |
|
Land sales |
|
|
17.3 |
|
|
|
30.4 |
|
|
|
21.7 |
|
|
|
33.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
294.2 |
|
|
|
565.7 |
|
|
|
589.5 |
|
|
|
1,126.4 |
|
Cost of sales: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Home sales |
|
|
260.8 |
|
|
|
437.9 |
|
|
|
519.0 |
|
|
|
879.9 |
|
Land sales |
|
|
12.1 |
|
|
|
26.8 |
|
|
|
16.8 |
|
|
|
29.1 |
|
Inventory impairments and abandonment costs |
|
|
304.7 |
|
|
|
84.8 |
|
|
|
477.0 |
|
|
|
123.9 |
|
Other |
|
|
|
|
|
|
(1.6 |
) |
|
|
|
|
|
|
(4.2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
577.6 |
|
|
|
547.9 |
|
|
|
1,012.8 |
|
|
|
1,028.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit (loss) |
|
|
(283.4 |
) |
|
|
17.8 |
|
|
|
(423.3 |
) |
|
|
97.7 |
|
Selling, general and administrative expenses |
|
|
55.6 |
|
|
|
85.0 |
|
|
|
109.8 |
|
|
|
176.4 |
|
Loss (income) from unconsolidated joint ventures, net |
|
|
|
|
|
|
1.5 |
|
|
|
(0.3 |
) |
|
|
(0.4 |
) |
Impairment (recovery) of investments in and
receivables from unconsolidated joint ventures |
|
|
(9.3 |
) |
|
|
|
|
|
|
(8.8 |
) |
|
|
5.5 |
|
Provision for settlement of loss contingency |
|
|
|
|
|
|
32.0 |
|
|
|
|
|
|
|
110.9 |
|
Goodwill impairments |
|
|
11.2 |
|
|
|
38.2 |
|
|
|
11.2 |
|
|
|
38.2 |
|
Interest expense (see Note 3 for contractual interest) |
|
|
16.7 |
|
|
|
0.1 |
|
|
|
36.8 |
|
|
|
0.2 |
|
Other income, net |
|
|
(0.5 |
) |
|
|
(1.4 |
) |
|
|
(1.9 |
) |
|
|
(2.1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Homebuilding pretax loss |
|
|
(357.1 |
) |
|
|
(137.6 |
) |
|
|
(570.1 |
) |
|
|
(231.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FINANCIAL SERVICES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues |
|
|
3.3 |
|
|
|
11.0 |
|
|
|
9.1 |
|
|
|
23.0 |
|
Expenses |
|
|
6.4 |
|
|
|
8.7 |
|
|
|
13.4 |
|
|
|
18.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financial Services pretax income (loss) |
|
|
(3.1 |
) |
|
|
2.3 |
|
|
|
(4.3 |
) |
|
|
5.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations before reorganization
items and taxes |
|
|
(360.2 |
) |
|
|
(135.3 |
) |
|
|
(574.4 |
) |
|
|
(226.0 |
) |
Reorganization items, net (see Note 2) |
|
|
18.2 |
|
|
|
|
|
|
|
86.7 |
|
|
|
|
|
Provision (benefit) for income taxes |
|
|
0.7 |
|
|
|
(13.2 |
) |
|
|
0.7 |
|
|
|
(41.7 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations, net of taxes |
|
|
(379.1 |
) |
|
|
(122.1 |
) |
|
|
(661.8 |
) |
|
|
(184.3 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Discontinued operations: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from discontinued operations |
|
|
(0.6 |
) |
|
|
(2.0 |
) |
|
|
(3.2 |
) |
|
|
(7.9 |
) |
Loss from disposal of discontinued operations |
|
|
|
|
|
|
(13.6 |
) |
|
|
|
|
|
|
(13.6 |
) |
Benefit for income taxes |
|
|
|
|
|
|
(5.7 |
) |
|
|
|
|
|
|
(7.8 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from discontinued operations, net of taxes |
|
|
(0.6 |
) |
|
|
(9.9 |
) |
|
|
(3.2 |
) |
|
|
(13.7 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
|
(379.7 |
) |
|
|
(132.0 |
) |
|
|
(665.0 |
) |
|
|
(198.0 |
) |
Dividends and accretion of discount on preferred stock |
|
|
2.5 |
|
|
|
|
|
|
|
5.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss available to common stockholders |
|
$ |
(382.2 |
) |
|
$ |
(132.0 |
) |
|
$ |
(670.2 |
) |
|
$ |
(198.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LOSS PER COMMON SHARE, BASIC AND DILUTED: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations |
|
$ |
(6.40 |
) |
|
$ |
(2.04 |
) |
|
$ |
(11.19 |
) |
|
$ |
(3.09 |
) |
Loss from discontinued operations |
|
|
(0.01 |
) |
|
|
(0.17 |
) |
|
|
(0.05 |
) |
|
|
(0.23 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss per common share |
|
$ |
(6.41 |
) |
|
$ |
(2.21 |
) |
|
$ |
(11.24 |
) |
|
$ |
(3.32 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WEIGHTED AVERAGE NUMBER OF COMMON SHARES OUTSTANDING: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic |
|
|
59,604,169 |
|
|
|
59,604,169 |
|
|
|
59,604,169 |
|
|
|
59,599,569 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted |
|
|
59,604,169 |
|
|
|
59,604,169 |
|
|
|
59,604,169 |
|
|
|
59,599,569 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to unaudited consolidated financial statements.
4
TOUSA, INC. AND SUBSIDIARIES
DEBTOR-IN-POSSESSION
CONSOLIDATED STATEMENT OF STOCKHOLDERS (DEFICIT) EQUITY
(Dollars in millions)
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
|
|
|
|
Total |
|
|
|
Preferred Stock |
|
|
Common Stock |
|
|
Paid-In |
|
|
Accumulated |
|
|
Stockholders |
|
|
|
Shares |
|
|
Amount |
|
|
Shares |
|
|
Amount |
|
|
Capital |
|
|
Deficit |
|
|
(Deficit) Equity |
|
Balance at January 1,
2008 |
|
|
117,500 |
|
|
$ |
3.9 |
|
|
|
59,604,169 |
|
|
$ |
0.6 |
|
|
$ |
570.7 |
|
|
$ |
(1,050.7 |
) |
|
$ |
(475.5 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock option compensation expense |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1.7 |
|
|
|
|
|
|
|
1.7 |
|
Dividends and accretion
of preferred stock |
|
|
|
|
|
|
5.2 |
|
|
|
|
|
|
|
|
|
|
|
(5.2 |
) |
|
|
|
|
|
|
|
|
Net loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(665.0 |
) |
|
|
(665.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at June 30, 2008 |
|
|
117,500 |
|
|
$ |
9.1 |
|
|
|
59,604,169 |
|
|
$ |
0.6 |
|
|
$ |
567.2 |
|
|
$ |
(1,715.7 |
) |
|
$ |
(1,138.8 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to unaudited consolidated financial statements.
5
TOUSA, INC. AND SUBSIDIARIES
DEBTOR-IN-POSSESSION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in millions)
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
Cash flows from operating activities: |
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(665.0 |
) |
|
$ |
(198.0 |
) |
Loss from discontinued operations |
|
|
3.2 |
|
|
|
13.7 |
|
|
|
|
|
|
|
|
Loss from continuing operations |
|
|
(661.8 |
) |
|
|
(184.3 |
) |
Adjustments to reconcile loss from continuing operations to net cash provided by
(used in) operating activities: |
|
|
|
|
|
|
|
|
Depreciation and amortization expense |
|
|
7.6 |
|
|
|
7.4 |
|
Non-cash compensation expense |
|
|
1.7 |
|
|
|
2.1 |
|
Non-cash interest expense |
|
|
25.4 |
|
|
|
|
|
Reorganization items, net |
|
|
86.7 |
|
|
|
|
|
Provision for settlement of loss contingency |
|
|
|
|
|
|
110.9 |
|
Inventory impairments and abandonment costs |
|
|
477.0 |
|
|
|
123.9 |
|
Goodwill impairments |
|
|
11.2 |
|
|
|
38.2 |
|
Write-down of receivables |
|
|
5.7 |
|
|
|
|
|
Deferred income taxes |
|
|
|
|
|
|
(27.9 |
) |
Loss (income) from unconsolidated joint ventures |
|
|
(0.3 |
) |
|
|
9.4 |
|
Distributions of earnings from unconsolidated joint ventures |
|
|
0.2 |
|
|
|
0.6 |
|
Impairment of investments in and receivables from unconsolidated joint ventures |
|
|
(8.8 |
) |
|
|
5.5 |
|
Changes in operating assets and liabilities, net of effects of dispositions: |
|
|
|
|
|
|
|
|
Restricted cash |
|
|
(179.4 |
) |
|
|
0.7 |
|
Inventory |
|
|
113.1 |
|
|
|
(45.9 |
) |
Receivables from unconsolidated joint ventures |
|
|
(3.7 |
) |
|
|
(23.9 |
) |
Other assets |
|
|
222.8 |
|
|
|
(52.5 |
) |
Mortgage loans held for sale |
|
|
8.9 |
|
|
|
5.7 |
|
Accounts payable and other liabilities |
|
|
15.0 |
|
|
|
(45.4 |
) |
Customer deposits |
|
|
(12.1 |
) |
|
|
(7.7 |
) |
|
|
|
|
|
|
|
Net cash provided by (used in) operating activities |
|
|
109.2 |
|
|
|
(83.2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities: |
|
|
|
|
|
|
|
|
Net additions to property and equipment |
|
|
(0.4 |
) |
|
|
(7.5 |
) |
Investments in unconsolidated joint ventures |
|
|
(1.6 |
) |
|
|
(21.1 |
) |
Capital distributions from unconsolidated joint ventures |
|
|
|
|
|
|
9.7 |
|
|
|
|
|
|
|
|
Net cash used in investing activities |
|
|
(2.0 |
) |
|
|
(18.9 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities: |
|
|
|
|
|
|
|
|
Net borrowings from revolving credit facilities |
|
|
31.5 |
|
|
|
50.0 |
|
Net repayments of Financial Services bank borrowings |
|
|
(7.8 |
) |
|
|
(6.8 |
) |
Payments for deferred financing costs |
|
|
(2.9 |
) |
|
|
(11.2 |
) |
|
|
|
|
|
|
|
Net cash provided by financing activities |
|
|
20.8 |
|
|
|
32.0 |
|
|
|
|
|
|
|
|
Net cash provided by (used in) continuing operations |
|
|
128.0 |
|
|
|
(70.1 |
) |
|
Cash flows from discontinued operations: |
|
|
|
|
|
|
|
|
Net cash used in operating activities |
|
|
(0.8 |
) |
|
|
(8.5 |
) |
Net cash provided by investing activities |
|
|
|
|
|
|
52.3 |
|
|
|
|
|
|
|
|
Net cash provided by (used in) discontinued operations |
|
|
(0.8 |
) |
|
|
43.8 |
|
|
|
|
|
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
Increase (decrease) in cash and cash equivalents |
|
|
127.2 |
|
|
|
(26.3 |
) |
Cash and cash equivalents at beginning of period |
|
|
76.5 |
|
|
|
54.2 |
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period |
|
$ |
203.7 |
|
|
$ |
27.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosure of non-cash financing activities: |
|
|
|
|
|
|
|
|
Decrease in inventory not owned |
|
$ |
(15.7 |
) |
|
$ |
(79.5 |
) |
Decrease in obligations for inventory not owned |
|
$ |
(15.3 |
) |
|
$ |
(73.5 |
) |
|
|
|
|
|
|
|
|
|
Supplemental disclosure of non-cash investing activities: |
|
|
|
|
|
|
|
|
Refer to Note 3 for the consolidation of variable interest entities in accordance with FIN 46R. |
|
|
|
|
|
|
|
|
See accompanying notes to unaudited consolidated financial statements.
7
TOUSA, INC. AND SUBSIDIARIES
DEBTOR-IN-POSSESSION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2008
1. Business and Organization
Business
TOUSA, Inc. (TOUSA, the Company, we, us and our) is a homebuilder with a
geographically diversified national presence. We operate in various metropolitan markets in nine
states, located in four major geographic regions: Florida, the Mid-Atlantic, Texas and the West. We
design, build and market detached single-family residences, town homes and condominiums. We also
provide title insurance and mortgage brokerage services to our homebuyers and others. Generally, we
do not retain or service the mortgages that we originate but, rather, sell the mortgages and
related servicing rights. See Mortgage Joint Venture discussion below.
Organization
Technical Olympic S.A. owns approximately 67% of our outstanding common stock. Technical
Olympic S.A. is a publicly-traded Greek company whose shares are traded on the Athens Stock
Exchange. Our equity structure will likely change as a result of our Chapter 11 filings.
Chapter 11 Cases
The following discussion provides general background information regarding our cases under
Chapter 11 of the Bankruptcy Code, and is not intended to be an exhaustive description. Additional
information regarding our Chapter 11 cases, including access to court documents and other general
information about the Chapter 11 cases, is available at www.kccllc.net/tousa. Financial
information on the website is prepared according to requirements of federal bankruptcy law and the
United States Bankruptcy Court for the Southern District of Florida, Fort Lauderdale Division (the
Bankruptcy Court). While such financial information accurately reflects information required
under federal bankruptcy law, such information may be unconsolidated, unaudited and prepared in a
format different than that used in our unaudited consolidated financial statements prepared in
accordance with generally accepted accounting principles in the United States and filed under the
securities laws. Moreover, the materials filed with the Bankruptcy Court are not prepared for the
purpose of providing a basis for investment decisions relating to our stock or debt or for
comparison with other financial information filed with the Securities and Exchange Commission.
On January 29, 2008, TOUSA, Inc. and certain of our subsidiaries (excluding our financial
services subsidiaries and joint ventures) filed voluntary petitions for relief under Chapter 11 of
Title 11 of the United States Code in the Bankruptcy Court. The Chapter 11 cases have been
consolidated solely for procedural purposes and are pending as Case No. 08-10928-JKO.
We continue to operate our businesses and manage our properties as debtors-in-possession under
the jurisdiction of the Bankruptcy Court and in accordance with the applicable provisions of the
Bankruptcy Code and orders of the Bankruptcy Court. At the onset of the Chapter 11 cases, we
obtained Bankruptcy Court approval to, among other things, continue to pay certain critical vendors
and vendors with lien rights, meet our pre-petition payroll obligations, maintain our cash
management systems, sell homes free and clear of liens, pay our taxes, continue to provide employee
benefits and maintain our insurance programs. In addition, the Bankruptcy Court has approved
certain trading notification and transfer procedures designed to allow us to restrict trading in
our common stock (and related securities) and has also provided for potentially retroactive
application of notice and sell-down procedures for trading in claims against the debtors estates
(in the event that such procedures are approved in the future), which could negatively impact our
accumulated net operating losses and other tax attributes. The Bankruptcy Court has also entered
orders to establish procedures for the purchase and disposition of real property by us subject to
certain monetary limits without specific approval for each transaction.
On February 5, 2008, pursuant to an interim order from the Bankruptcy Court dated January 31,
2008, we entered into a Senior Secured Super-Priority Debtor in Possession Credit and Security
Agreement. The agreement provided for a first priority and priming secured revolving credit interim
commitment of up to $134.6 million. The agreement was subsequently amended to extend it to June 19,
2008. No funds were drawn under the agreement.
The agreement was subsequently terminated and we entered into an agreement with our
prepetition secured lenders to use cash collateral on hand (cash generated by our operations,
including the sale of excess inventory and the proceeds of our federal tax refund of $207.3 million
received in April 2008). We are authorized by the Bankruptcy Court to use cash collateral of our
first lien and second lien lenders in a manner consistent with a budget negotiated by the parties.
The order further provided for the pay-down of $175.0 million to our first lien term secured
lenders, subject to disgorgement provisions in the event that certain claims against the lenders
are successful and repayment is required. We also have the right to pay-down an additional
$15.0 million to our first lien secured lenders. As of March 6, 2009, we had paid-down
approximately $143.0 million to the first lien secured lenders. We may incur liens and enter into
sale/leaseback transactions for model homes subject to certain limitations. We have granted the
pre-petition agents and the lenders various forms of protection, including liens and claims to
protect against any diminution of the collateral value, payment of accrued, but unpaid interest on
the first priority indebtedness at the non-default rate and the payment of reasonable fees and
expenses of the agents under our secured facilities.
We and the first lien lenders reached an agreement to extend the use of cash collateral until
April 30, 2009 on terms substantially similar to those in the original cash collateral order. The
new cash collateral order was approved by the Bankruptcy Court on January 28, 2009. If we fail to
comply with the order, we will not have sufficient cash to enable us to operate our business and
effectuate our restructuring.
8
The Bankruptcy Court established May 19, 2008 as the bar date for filing proofs of claim
against the Debtors relating to obligations arising before January 29, 2008. As of February 25,
2009, approximately 4,400 claims have been filed against us totaling $7.3 billion in asserted
liabilities. These claims are comprised of approximately $5.0 million in administrative claims,
$219.0 million in secured claims, $75.0 million in priority claims and $7.0 billion in unsecured
claims. There are many claims (at least 700) that have been asserted in unliquidated amounts or
that contain an unliquidated component. Notably, among the unliquidated claims are the claims of
our secured first and second lien lenders. In addition, the indenture trustees under our
approximately $1.1 billion of unsecured debentures each filed an unliquidated claim with respect to
such obligations.
On October 13, 2008, we filed with the Bankruptcy Court the (a) Joint Plan of TOUSA, Inc. and
its Affiliated Debtors and Debtors in Possession under Chapter 11 of the Bankruptcy Code (as
modified or revised, the Plan) and (b) Disclosure Statement pursuant to Section 1125 of the
Bankruptcy Code relating to the Plan (as modified or revised, the Disclosure Statement). On
October 24, 2008 and November 12, 2008, the Debtors filed revised versions of the Plan and
Disclosure Statement (including projected financial information) with the Bankruptcy Court. Copies
of the Plan and Disclosure Statement, as filed with the Bankruptcy Court, are available at
http://www.tousa.com/reorg. We have the exclusive right to solicit acceptance thereof until April
30, 2009. Pursuant to Section 1121 of the Bankruptcy Code, the exclusivity periods may be expanded
or reduced by the Bankruptcy Court, but in no event can the exclusivity periods to file and solicit
acceptance of a plan or plans of reorganization be extended beyond June 29, 2009.
As a result of our Chapter 11 cases and other matters described herein, including
uncertainties related to the fact that our filed plan of reorganization has not been confirmed,
there is substantial doubt about our ability to continue as a going concern. Our ability to
continue as a going concern, including our ability to meet our ongoing operational obligations, is
dependent upon, among other things:
|
|
|
our ability to generate and maintain adequate cash; |
|
|
|
|
the cost, duration and outcome of the restructuring process; |
|
|
|
|
our ability to comply with the terms of our cash collateral order and
seek and receive extensions of our ability to use cash collateral; and |
|
|
|
|
our ability to retain key employees. |
These challenges are in addition to those operational and competitive challenges that we face
in connection with our business. In conjunction with our advisors, we are implementing strategies
to aid our liquidity and our ability to continue as a going concern. However, such efforts may not
be successful.
We have taken and will continue to take actions to maximize cash receipts and minimize cash
expenditures with the understanding that certain of these actions may make us less able to take
advantage of future improvements in the homebuilding market. We continue to take steps to reduce
our general and administrative expenses by streamlining activities and increasing efficiencies,
which have led and will continue to lead to major reductions in the workforce. However, much of our
efforts to reduce general and administrative expenses are being offset by professional and
consulting fees associated with our Chapter 11 cases. In addition, we are working with our existing
suppliers and seeking new suppliers, through competitive bid processes, to reduce construction
material and labor costs. We have and will continue to analyze each community based on anticipated
sales absorption rates, net cash flows and financial returns taking into consideration current
market factors in the homebuilding industry such as the oversupply of homes available for sale in
most of our markets, less demand, decreased consumer confidence, tighter mortgage loan underwriting
criteria and higher foreclosures. Subject to, in certain situations, receiving approvals from the
Bankruptcy Court, we have taken and will continue to take the following actions:
|
|
|
limiting new arrangements to acquire land (by submitting proposals to increased review); |
|
|
|
|
engaging in bulk sales of land and unsold homes; |
|
|
|
|
reducing the number of unsold homes under construction and limiting and/or curtailing
development activities in any development where we do not expect to deliver homes in
the near future or where development is necessary to retain entitlements or sell land; |
|
|
|
|
renegotiating terms or abandoning our rights under option and land bank contracts; |
|
|
|
|
considering other asset dispositions including the possible sale and/or wind down of
underperforming assets, communities, divisions and joint venture interests; and |
|
|
|
|
pursuing other initiatives designed to monetize our assets. |
9
Mortgage Joint Venture
On January 28, 2008, Preferred Home Mortgage Company, our wholly-owned residential mortgage
lending subsidiary, entered into an Amended and Restated Agreement of Limited Liability Company
with Wells Fargo Ventures, LLC. The limited liability company is known as PHMCWF, LLC but does
business as Preferred Home Mortgage Company, an affiliate of Wells Fargo. Preferred Home Mortgage
Company owns 49.9% of the venture with the balance owned by Wells Fargo. Effective April 1, 2008,
the venture began to carry on the mortgage business of Preferred Home Mortgage Company. The venture
is managed by a committee composed of six members, three from Preferred Home Mortgage Company and
three from Wells Fargo. The venture entered into a revolving credit agreement with Wells Fargo
Bank, N.A. providing for advances of up to $20.0 million. Wells Fargo Home Mortgage provides the
general and administrative support (as well as all loan related processing, underwriting and
closing functions), and is the end investor for the majority of the loans closed through the joint
venture. Prior to the joint venture, Preferred Home Mortgage Company had a centralized operations
center that provided those support functions. The majority of these support functions ceased in
June 2008. Effective April 1, 2008, we began to account for the venture as an equity-method
investment.
2. Summary of Significant Accounting Policies
Principles of Consolidation and Basis of Presentation
The unaudited consolidated financial statements include our accounts and those of our
subsidiaries. All significant intercompany balances and transactions have been eliminated in the
unaudited consolidated financial statements. For the three months ended June 30, 2008 and 2007, we
have eliminated inter-segment Financial Services revenues of $0.7 million and $4.5 million,
respectively. For the six months ended June 30, 2008 and 2007, we have eliminated inter-segment
Financial Services revenues of $2.3 million and $7.2 million, respectively.
The accompanying unaudited consolidated financial statements have been prepared in accordance
with accounting principles generally accepted in the United States of America (GAAP) on a going
concern basis. This contemplates the realization of assets and satisfaction of liabilities in the
ordinary course of business. Accordingly, we do not include any adjustments relating to the
recoverability of assets and satisfaction of liabilities that might be necessary should we be
unable to continue as a going concern. Due to our Chapter 11 cases, there is substantial doubt
about our ability to continue as a going concern and there is uncertainty about the realization of
assets and satisfaction of liabilities, without substantial adjustments and/or changes in capital
structure.
In accordance with GAAP, we have applied the provisions of American Institute of Certified
Public Accountants (AICPA) Statement of Position 90-7, Financial Reporting by Entities in
Reorganization Under the Bankruptcy Code (SOP 90-7), in preparing the unaudited consolidated
financial statements. SOP 90-7 requires that the financial statements, for periods subsequent to
the Chapter 11 filing, distinguish transactions and events that are directly associated with the
reorganization from the ongoing operations of the business. Accordingly, certain items of income,
expense, gain or loss realized or incurred because we are in Chapter 11 are recorded in
reorganization items, net on the accompanying unaudited consolidated statements of operations.
Also, pre-petition obligations that may be impacted by the bankruptcy reorganization process have
been classified in liabilities subject to compromise on the unaudited
consolidated statement of financial condition at
June 30, 2008. These liabilities are reported at the amounts expected to be allowed by the
Bankruptcy Court, in accordance with Statement of Financial Accounting Standards (SFAS) No. 5,
Accounting for Contingencies (SFAS 5), even if they may be settled for lesser amounts. As of
June 30, 2008, the pre-petition liabilities included in liabilities subject to compromise have not
been reduced.
The
following table summarizes the components included in reorganization items, net, in our
unaudited consolidated statements of operations for the three and six months ended June 30, 2008
(in millions):
|
|
|
|
|
|
|
|
|
|
|
Three Months |
|
|
Six Months |
|
|
|
Ended |
|
|
Ended |
|
|
|
June 30, 2008 |
|
|
June 30, 2008 |
|
Professional fees |
|
$ |
15.3 |
|
|
$ |
22.8 |
|
Write-off of deferred finance costs |
|
|
3.0 |
|
|
|
54.4 |
|
Write-off of debt premium and discounts |
|
|
|
|
|
|
11.9 |
|
Interest income |
|
|
(0.1 |
) |
|
|
(0.1 |
) |
Reversal of previously recorded interest expense |
|
|
|
|
|
|
(2.3 |
) |
|
|
|
|
|
|
|
Total reorganization items, net |
|
$ |
18.2 |
|
|
$ |
86.7 |
|
|
|
|
|
|
|
|
Net cash paid for reorganization items totaled $13.8 million related to professional fees and
$24.6 million ($21.7 million professional fees and $2.9 million deferred finance costs) for the
three and six months ended June 30, 2008, respectively.
10
The following table summarizes the components included in liabilities subject to compromise on
our unaudited consolidated statement of financial condition as of June 30, 2008 (in millions):
|
|
|
|
|
Revolving Loan Facility(1) |
|
$ |
272.8 |
|
First Lien Term Loan Facility due 2012(1) |
|
|
199.0 |
|
Second Lien Term Loan Facility due 2013(1) |
|
|
340.5 |
|
Senior notes due 2010, at 9% (1) |
|
|
300.0 |
|
Senior notes due 2011, at 8 1/4%(1) |
|
|
250.0 |
|
Senior subordinated notes due 2012, at 10 3/8%(1) |
|
|
185.0 |
|
Senior subordinated notes due 2011, at 7 1/2%(1) |
|
|
125.0 |
|
Senior subordinated notes due 2015, at 7 1/2%(1) |
|
|
200.0 |
|
Senior Subordinated PIK Notes due 2015, at 14 3/4%(1) |
|
|
23.1 |
|
Accrued interest on notes payable |
|
|
47.2 |
|
Accounts payable and other liabilities |
|
|
184.5 |
|
Obligations for inventory not owned(2) |
|
|
16.7 |
|
|
|
|
|
Total liabilities subject to compromise |
|
$ |
2,143.8 |
|
|
|
|
|
|
|
|
(1) |
|
See Note 9 |
|
(2) |
|
See Note 3 |
The preparation of financial statements in accordance with GAAP requires management to make
estimates and assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates. Those estimates and
assumptions which, in the opinion of management, are both significant to the underlying amounts
included in the financial statements and as to which future events or information could change
those estimates include:
|
|
|
impairment assessments of investments in unconsolidated joint ventures, long-lived
assets, including our inventory, and goodwill; |
|
|
|
|
loss exposures associated with the abandonment of our rights under option and/or land
bank contracts, the relinquishment of our rights under certain joint ventures and
obligations under joint venture debt agreements and under performance bonds; |
|
|
|
|
classification of liabilities subject to compromise; |
|
|
|
|
insurance and litigation related contingencies; |
|
|
|
|
realization of deferred income tax assets and liability for unrecognized tax benefits; and |
|
|
|
|
estimated costs associated with construction and development activities in connection
with our homebuilding operations. |
The accompanying unaudited consolidated financial statements do not purport to reflect or
provide for the consequences of our Chapter 11 cases. In particular, the financial statements do
not purport to show: (1) as to assets, their realizable value on a liquidation basis or their
availability to satisfy liabilities; (2) as to stockholders equity accounts, the effect of any
changes that may be made in our capitalization; or (3) as to operations, the effect of any changes
that may be made to our business. In addition, the financial statements do not reflect the amounts
that may be allowed with respect to pre-petition claims and liabilities which may, as a result of
the filing of proofs of claims by our creditors, result in liabilities in excess of those estimated
by us in preparing the accompanying unaudited consolidated financial statements.
Due to our normal operating cycle being in excess of one year, we present unclassified
unaudited consolidated statements of financial condition.
Interim Presentation
The accompanying unaudited consolidated financial statements reflect all adjustments,
consisting primarily of normal recurring items that, in the opinion of management, are considered
necessary for a fair presentation of the financial position, results from operations, and cash
flows for the periods presented. Results of operations achieved through June 30, 2008 are not
necessarily indicative of those that may be achieved for the year ending December 31, 2008. The
unaudited consolidated statement of financial condition as of December 31, 2007 was derived from
audited financial statements included in our 2007 Annual Report on Form 10-K, but does not include
all disclosures required under GAAP. The unaudited consolidated financial statements included as
part of this Form 10-Q should be read in conjunction with the financial statements and notes
thereto included in our Annual Report on Form 10-K for the year ended December 31, 2007.
Loss per Common Share
11
Basic loss per common share is computed by dividing loss available to common stockholders by
the weighted average number of common shares outstanding for the period. Diluted loss per common
share is computed based on the weighted average number of shares of common stock and dilutive
securities outstanding during the period. Dilutive securities are options or other common stock
equivalents that are freely exercisable into common stock at less than market prices or otherwise
dilute earnings if converted. Dilutive securities are not included in the weighted average number
of shares when inclusion would increase the earnings per share or decrease the loss per common
share.
For the three months ended June 30, 2008 and 2007, basic and diluted weighted average shares
outstanding were 59,604,169. For the six months ended June 30, 2008 and 2007, basic and diluted
weighted average shares outstanding were 59,604,169 and 59,599,569, respectively. There were no
dilutive common stock equivalents during the three and six months ended June 30, 2008 and 2007.
Revenue Recognition
Our primary source of revenue is the sale of homes to homebuyers. To a lesser degree, we
engage in the sale of land to other homebuilders and other third-parties. Revenue is recognized on
home sales and land sales at closing when title passes to the buyer and all of the following
conditions are met: a sale is consummated, a significant down payment is received, the earnings
process is complete, the receivable is not subject to future subordination, the collection of any
remaining receivables is reasonably assured and we do not have substantial continuing involvement
with the sold asset.
In accordance with SFAS No. 66, Accounting for the Sales of Real Estate (SFAS 66), at June
30, 2008 and December 31, 2007, we deferred approximately $0.5 million and $1.0 million,
respectively, in profit related to certain homes that were delivered for which our mortgage
subsidiary originated interest-only loans or loans with high loan to value ratios which did not
meet the initial and continuing investment requirements under SFAS 66, and the loans were still
held for sale at the respective balance sheet date.
Fair Value Disclosures
Effective January 1, 2008, we adopted SFAS No. 157, Fair Value Measurements (SFAS 157), for
our financial instruments measured at fair value on a recurring basis. SFAS 157 defines fair value,
establishes a framework for measuring fair value in generally accepted accounting principles,
expands disclosures about fair value measurements and establishes a fair value hierarchy summarized
below:
|
|
|
Level 1
|
|
Fair value determined based on quoted prices in active markets for identical assets or liabilities. |
|
|
|
Level 2
|
|
Fair value determined using significant observable inputs either directly or indirectly through corroboration with market data. |
|
|
|
Level 3
|
|
Fair value determined using significant unobservable inputs, such as pricing models, discounted cash flows, or similar
techniques. |
Our financial instruments measured at fair value on a recurring basis at June 30, 2008 are
summarized below (in millions):
|
|
|
|
|
|
|
|
|
|
|
Fair Value |
|
|
Financial Instrument |
|
Hierarchy |
|
Fair Value |
Assets: |
|
|
|
|
|
|
|
|
Mortgage loans held for sale |
|
Level 2 |
|
$ |
6.1 |
|
Mortgage loans held for sale of $6.1 million represents loans originated in prior years for
which the fair value is determined by third-party opinions establishing the market sales price for
the underlying collateral adjusted for customary sales and marketing costs.
Recent Accounting Pronouncements
In September 2006, the FASB issued SFAS 157. SFAS 157 was effective for financial statements
issued for fiscal years beginning after November 15, 2007 (our fiscal year beginning January 1,
2008), and interim periods within those fiscal years. We adopted SFAS 157 effective January 1,
2008 for our financial instruments measured at fair value on a recurring basis. For additional
information refer to the Fair Value Disclosures section above. In February 2008, the FASB issued
a final Staff Position to allow a one-year deferral of adoption of SFAS 157 for nonfinancial assets
and liabilities that are recognized or disclosed at fair value in the financial statements on a
nonrecurring basis. The FASB also decided to amend SFAS 157 to exclude SFAS No. 13, Accounting for
Leases, and its related interpretive accounting pronouncements that address leasing transactions.
We are currently reviewing the effects, if any, of SFAS 157 related to nonfinancial assets and
liabilities on our unaudited consolidated financial statements.
In November 2006, the FASB issued EITF No. 06-8, Applicability of the Assessment of a Buyers
Continuing Investment under FASB Statement No. 66, Accounting for Sales of Real Estate, for Sales
of Condominiums, (EITF 06-8). EITF 06-8 establishes that a company should evaluate the adequacy
of the buyers continuing investment in determining whether to recognize profit under the
percentage-of-completion method. EITF 06-8 was effective as of January 1, 2008 and had no impact on
our unaudited consolidated financial statements.
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and
Financial Liabilities, and (SFAS 159). SFAS 159 permits companies to measure many financial
instruments and certain other items at fair value. While SFAS 159 became effective for us on
January 1, 2008, we did not elect the fair value measurement option for any of our financial assets
or liabilities.
12
In December 2007, the FASB issued SFAS No. 141 (revised 2007), Business Combinations
(SFAS 141(R)). SFAS 141(R) establishes principles and requirements for how an acquirer recognizes
and measures in its financial statements the identifiable assets acquired, the liabilities assumed,
any non-controlling interest in the acquiree, and the goodwill acquired. SFAS 141(R) also
establishes disclosure requirements to enable the evaluation of the nature and financial effects of
the business combination. SFAS 141(R) is effective for fiscal years beginning after December 15,
2008. Adoption is prospective, and early adoption is not permitted. Adoption of SFAS 141(R) will
apply to any business combination beginning January 1, 2009.
In December 2007, the FASB issued SFAS No. 160, Noncontrolling Interests in Consolidated
Financial Statements an amendment of Accounting Research Bulletin No. 51 (SFAS 160). SFAS 160
establishes accounting and reporting standards for ownership interests in subsidiaries held by
parties other than the parent, the amount of consolidated net income attributable to the parent and
to the noncontrolling interest, changes in a parents ownership interest, and the valuation of
retained, noncontrolling equity investments when a subsidiary is deconsolidated. SFAS 160 also
establishes disclosure requirements that clearly identify and distinguish between the interests of
the parent and the interests of the noncontrolling owners. SFAS 160 is effective for fiscal years
beginning after December 15, 2008. We are currently reviewing the effect of this statement on our
unaudited consolidated financial statements.
On February 20, 2008, the FASB issued FASB Staff Position (FSP) SFAS No. 140-3, Accounting
for Transfers of Financial Assets and Repurchase Financing Transactions. The FSP addresses whether
there are circumstances that would permit a transferor and a transferee to evaluate the accounting
for the transfer of a financial asset separately from a repurchase financing when the
counterparties to the two transactions are the same. The FSP presumes that the initial transfer of
a financial asset and a repurchase financing are considered part of the same arrangement (a linked
transaction) under FASB Statement No. 140, Accounting for Transfers and Servicing of Financial
Assets and Extinguishments of Liabilities (SFAS 140"). However, if certain criteria specified in
the FSP are met, the initial transfer and repurchase financing may be evaluated separately under
SFAS 140. The FSP is effective for fiscal years beginning after November 15, 2008, and interim
periods within those fiscal years. Earlier application is not permitted. Adoption of the FSP is not
expected to have a material effect on our unaudited consolidated financial statements.
In March 2008, the FASB issued SFAS No. 161, Disclosures about Derivative Instruments and
Hedging Activities (SFAS 161). SFAS 161 requires enhanced disclosures regarding derivative
instruments and hedging activities to enable investors to better understand their effects on a
companys financial position, financial performance and cash flows. These requirements include the
disclosure of the fair values of derivative instruments and their gains and losses in a tabular
format. SFAS 161 is effective for fiscal years beginning after November 15, 2008. We are currently
evaluating the disclosure requirements of SFAS 161 and their impact on our unaudited consolidated
financial statements.
In April 2008, the FASB issued FASB Staff Position 90-7-1, An Amendment of AICPA Statement of
Position 90-7 (FSP 90-7-1). FSP 90-7-1, which was effective immediately and amends SOP 90-7,
paragraph 38 to nullify the requirement regarding changes in accounting principles. Previously
under paragraph 38 of SOP 90-7, changes in accounting principles that will be required in the
financial statements of an emerging entity within the 12 months following the adoption of
fresh-start accounting were required to be adopted at the time fresh-start reporting was adopted.
As a result of the amendment, an entity emerging from bankruptcy that applies fresh-start reporting
should follow only the accounting standards in effect at the date fresh-start reporting is adopted,
which include those standards eligible for early adoption if an election is made to adopt early.
This will be applicable to us on upon emergence from bankruptcy.
In November 2008, the FASB issued EITF Issue No. 08-6, Equity Method Investment Accounting
Considerations (EITF 08-6), which clarifies the accounting for certain transactions and
impairment considerations involving equity method investments. EITF 08-6 is effective for fiscal
years beginning after December 15, 2008, with early adoption prohibited. We are currently
evaluating the impact EITF 08-6 will have on our unaudited consolidated financial statements.
In December 2008, the FASB issued FSP FAS 140-4 and FIN 46(R)-8, Disclosures by Public
Entities (Enterprises) about Transfers of Financial Assets and Interests in Variable Interest
Entities (FSP 140-4 and FIN 46(R)-8). FSP 140-4 and FIN 46(R)-8 requires additional disclosures
about transfers of financial assets and involvement with variable interest entities. FSP 140-4 and
FIN 46(R)-8 is effective for the first reporting period ending after December 15, 2008. The
implementation of this standard is not expected to have a material impact on our unaudited
consolidated financial statements.
3. Inventory
The following is a breakdown of inventory (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2008 |
|
|
|
|
|
|
|
|
|
|
|
Residences |
|
|
|
|
|
|
|
|
|
|
|
|
|
Homesites and |
|
|
Completed and |
|
|
|
|
|
|
|
|
|
|
|
|
|
Land Under |
|
|
Under |
|
|
Inventory |
|
|
Total |
|
Region |
|
Deposits |
|
|
Development |
|
|
Construction |
|
|
Not Owned |
|
|
Inventory |
|
Florida |
|
$ |
0.1 |
|
|
$ |
140.0 |
|
|
$ |
146.7 |
|
|
$ |
|
|
|
$ |
286.8 |
|
Mid-Atlantic |
|
|
4.7 |
|
|
|
12.5 |
|
|
|
24.7 |
|
|
|
|
|
|
|
41.9 |
|
Texas |
|
|
11.9 |
|
|
|
56.1 |
|
|
|
103.1 |
|
|
|
1.2 |
|
|
|
172.3 |
|
West |
|
|
13.5 |
|
|
|
79.5 |
|
|
|
63.4 |
|
|
|
9.1 |
|
|
|
165.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
30.2 |
|
|
$ |
288.1 |
|
|
$ |
337.9 |
|
|
$ |
10.3 |
|
|
$ |
666.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2007 |
|
|
|
|
|
|
|
|
|
|
|
Residences |
|
|
|
|
|
|
|
|
|
|
|
|
|
Homesites and |
|
|
Completed and |
|
|
|
|
|
|
|
|
|
|
|
|
|
Land Under |
|
|
Under |
|
|
Inventory |
|
|
Total |
|
Region |
|
Deposits |
|
|
Development |
|
|
Construction |
|
|
Not Owned |
|
|
Inventory |
|
Florida |
|
$ |
10.2 |
|
|
$ |
294.7 |
|
|
$ |
320.1 |
|
|
$ |
8.1 |
|
|
$ |
633.1 |
|
Mid-Atlantic |
|
|
7.9 |
|
|
|
21.8 |
|
|
|
28.6 |
|
|
|
|
|
|
|
58.3 |
|
Texas |
|
|
15.6 |
|
|
|
73.3 |
|
|
|
111.9 |
|
|
|
3.1 |
|
|
|
203.9 |
|
West |
|
|
23.2 |
|
|
|
243.2 |
|
|
|
95.3 |
|
|
|
14.8 |
|
|
|
376.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
56.9 |
|
|
$ |
633.0 |
|
|
$ |
555.9 |
|
|
$ |
26.0 |
|
|
$ |
1,271.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A summary of homebuilding interest capitalized in inventory is as follows (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Interest capitalized, beginning of period |
|
$ |
78.6 |
|
|
$ |
76.3 |
|
|
$ |
77.8 |
|
|
$ |
68.7 |
|
Interest incurred(1)(2) |
|
|
27.9 |
|
|
|
29.4 |
|
|
|
65.2 |
|
|
|
56.7 |
|
Less interest included in: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales |
|
|
(19.8 |
) |
|
|
(23.1 |
) |
|
|
(35.8 |
) |
|
|
(43.4 |
) |
Interest expense |
|
|
(16.7 |
) |
|
|
(0.1 |
) |
|
|
(36.8 |
) |
|
|
(0.2 |
) |
Other adjustments |
|
|
0.1 |
|
|
|
(0.9 |
) |
|
|
(0.3 |
) |
|
|
(0.2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest capitalized, end of period(3) |
|
$ |
70.1 |
|
|
$ |
81.6 |
|
|
$ |
70.1 |
|
|
$ |
81.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Included in interest incurred is the amortization of deferred finance costs which
amounted to $1.5 million and $1.6 million for the three months ended June 30, 2008 and June
30, 2007, respectively, and $4.3 million and $2.7 million for the six months ended June 30,
2008 and June 30, 2007, respectively. |
|
(2) |
|
Had we not filed voluntary petitions for relief under Chapter 11, contractual
interest incurred for the three and six months ended June 30, 2008 is $36.7 million and
$91.6 million, respectively, a portion of which would have been capitalized. Interest on
our senior and senior subordinated notes stopped accruing upon filing for Chapter 11. See
Note 9. |
|
(3) |
|
We have incurred significant inventory impairments in recent years, which are
determined based on total inventory, including capitalized interest. However, the
capitalized interest amounts above are gross amounts before allocating any portion of the
impairments to capitalized interest. |
In the ordinary course of business, we enter into option contracts to purchase homesites and
land held for development. At June 30, 2008 and December 31, 2007, we had non-refundable cash
deposits totaling $30.2 million and $56.9 million, respectively, included in inventory in the
accompanying unaudited consolidated statements of financial condition. Under these option
contracts, we have the right to buy homesites at predetermined prices on a predetermined takedown
schedule. Option contracts generally require the payment of a cash deposit and/or the posting of a
letter of credit, which is typically less than 20% of the underlying purchase price, and may
require monthly maintenance payments. These option contracts are either with land sellers or third
party financial entities which have acquired the land to enter into the option contract with us.
Homesite option contracts are generally non-recourse, thereby limiting our financial exposure for
non-performance to our cash deposits and/or letters of credit. In certain instances, we have
entered into development agreements in connection with option contracts, which require us to
complete the development of the land, at a fixed reimbursable amount, even if we choose not to
exercise our option and forfeit our deposit and even if our costs exceed the reimbursable amount.
We have abandoned our rights under certain option contracts that require us to complete the
development of land for a fixed reimbursable amount. We recorded losses of $4.0 million for the six
months ended June 30, 2008 for our estimated obligations under these development agreements, which
is included in inventory impairments and abandonment costs in the accompanying unaudited
consolidated statement of operations. No such losses were recorded during the three months ended
June 30, 2008. At June 30, 2008 and December 31, 2007, $14.3 million and $10.3 million are included
in liabilities subject to compromise and accounts payable and other liabilities, respectively, in
the accompanying unaudited consolidated statements of financial condition related to these
development agreements.
Financing Transactions under SFAS 66
Certain of our option contracts give the other party the right to require us to purchase
homesites or guarantee certain minimum returns. We have abandoned our rights under certain of these
option contracts and we have not complied with the notices given to us. These option contracts were
previously recorded as financing transactions under SFAS 66 and the inventory was included in
inventory not owned and the corresponding liability was included in obligations for inventory not
owned. Since we defaulted under or terminated these contracts, we are no longer accounting for
these contracts as financing transactions. During the three and six months ended June 30, 2008, we
recorded losses of $4.8 million and $9.5 million, respectively, in connection with the abandonment
of these option contracts, for our estimated obligations, which is included in inventory
impairments and abandonment costs in the accompanying unaudited
consolidated statements of
operations. These amounts were computed based on the estimated deficiency between the fair value
of the underlying inventory compared to our required purchase price under the option contract. The
total required purchase price under these option contracts at June 30, 2008 and December 31, 2007
was $28.6 million and $25.0 million, respectively. At June 30, 2008 and December 31, 2007, $19.0
million and $9.5
million is included in liabilities subject to compromise and accounts payable and other
liabilities, respectively, in the accompanying unaudited consolidated statements of financial
condition.
14
From time to time, we transfer title to certain parcels of land to unrelated third parties or
enter into agreements pursuant to which third parties purchase land which we have the contractual
right to acquire. We then enter into options with the purchasers to acquire fully developed
homesites. As we have continuing involvement in these properties, in accordance with SFAS 66, we
have accounted for these transactions as financing arrangements. At June 30, 2008 and December 31,
2007, $8.3 million (net of $2.1 million in impairments) and $9.8 million (net of $6.0 million in
impairments), respectively, of inventory not owned and $10.4 million and $15.8 million,
respectively, of obligations for inventory not owned relate to sales where we have continuing
involvement.
Consolidation of Variable Interest Entities Under FIN 46(R)
Some of our option contracts for the purchase of land or homesites are with land sellers and
third party financial entities, which qualify as variable interest entities (VIEs) under FASB
Interpretation No. 46 (Revised), Consolidation of Variable Interest Entities (FIN 46(R)).
FIN 46(R) addresses consolidation by business enterprises of VIEs in which an entity absorbs a
majority of the expected losses, receives a majority of the entitys expected residual returns, or
both, as a result of ownership, contractual or other financial interests in the entity. Obligations
for inventory not owned in our unaudited consolidated statements of financial condition represent
liabilities associated with our land banking and similar activities, including obligations in VIEs
which have been consolidated by us and in which we have a less than 50% ownership interest, and the
creditors have no recourse against us.
In applying FIN 46(R) to our homesite option contracts and other transactions with VIEs, we
make estimates regarding cash flows and other assumptions. We believe that our critical assumptions
underlying these estimates are reasonable based on historical evidence and industry practice. Based
on our analysis of transactions entered into with VIEs, we determined that we are the primary
beneficiary of certain of these homesite option contracts. Consequently, FIN 46(R) requires us to
consolidate the assets (homesites) at their fair value, although (1) we have no legal title to the
assets, (2) our maximum exposure to loss is generally limited to the deposits or letters of credit
placed with these entities, and (3) creditors, if any, of these entities have no recourse against
us.
The effect of FIN 46(R) at June 30, 2008 was to increase inventory by $2.0 million, excluding
cash deposits of $0.2 million, which had been previously recorded, with a corresponding increase to
obligations for inventory not owned of $2.0 million in the accompanying unaudited consolidated
statement of financial condition. The effect of FIN 46(R) at December 31, 2007 was to increase
inventory by $16.2 million, excluding cash deposits of $3.8 million, which had been previously
recorded, with a corresponding increase to obligations for inventory not owned of $16.2 million in
the accompanying unaudited consolidated statement of financial condition. Additionally, we have
entered into arrangements with VIEs to acquire homesites in which our variable interest is
insignificant and, therefore, we have determined that we are not the primary beneficiary and are
not required to consolidate the assets of such VIEs. Our potential exposure to loss in VIEs where
we are not the primary beneficiary would primarily be the forfeiture of our deposit and/or letters
of credit placed on land purchase and option contracts. At June 30, 2008 and December 31, 2007, our
non-refundable cash deposits placed on land purchase and option contracts amounted to $30.2 million
and $56.9 million, respectively, and our letters of credit placed on land purchase and option
contracts amounted to $10.4 million and $44.9 million, respectively.
Inventory Impairments and Abandonment Costs
In accordance with SFAS No.144, Accounting for the Impairment or Disposal of Long-Lived
Assets (SFAS 144), we carry long-lived assets held for sale at the lower of the carrying amount
or fair value. For active communities (communities under development and construction), we evaluate
an asset for impairment when events and circumstances indicate that they may be impaired.
Impairment is evaluated by estimating future undiscounted cash flows expected to result from the
use of the asset and its eventual disposition. If the sum of the expected undiscounted future cash
flows is less than the carrying amount of the assets, an impairment loss is recognized. Fair value,
for purposes of calculating impairment, is measured based on estimated future cash flows,
discounted at a market rate of interest. During the three months ended June 30, 2008 and 2007, we
recorded impairment losses and abandonment costs of $175.5 million and $41.4 million, respectively,
on active communities. During the six months ended June 30, 2008 and 2007, we recorded impairment
losses and abandonment costs of $277.2 million and $49.4 million, respectively, on active
communities. These losses are included in cost of sales inventory impairments and abandonment
costs in the accompanying unaudited consolidated statements of operations.
In accordance with SFAS 144, we performed an evaluation of impairment on a large land parcel
located in Arizona as of June 30, 2008 and determined that it is was impaired as the future
undiscounted cash flows expected to result from the use of the asset and its eventual disposition
did not exceed the carrying value. We based our computation of the future undiscounted cash flows
on management estimates and projections which assume that the land parcel will be subdivided into
super-pads (entitled and engineered, level but not graded, subdivided land parcels with the
required master plan infrastructure and utilities for merchant builders to custom finish lots for
retail home construction) with super-pad sales estimated to commence in 2010 in anticipation of
retail new home demand in 2012. This computation also included other assumptions related to market
supply and demand, product type, homesite sizes, sales pace, sales prices, construction costs,
sales and marketing expenses, the local economy, competitive conditions, labor costs and costs of
materials. The undiscounted cash flows are based on a long-term project horizon of nine years;
accordingly, all project costs are variable. The undiscounted cash flows used to evaluate this
parcel, assume a nine-year average annual retail home price appreciation of 2.5%. As a result, an
impairment charge of $85.0 million was recognized during the three months ended June 30, 2008
related to this parcel, which is included in the write-off of deposits
and abandonment costs for the West region in the table below leaving a remaining book value of $19.6 million.
During the three and six months ended June 30, 2008, we also recorded charges of
$129.2 million and $199.8 million, respectively, in write-offs of deposits and abandonment costs
which are included in cost of sales inventory impairments and abandonment costs in the
accompanying unaudited consolidated statements of operations, related to land that we have
determined is not probable that we will purchase or build on
(including land to be sold as lots), compared to $43.4 million and $74.5
million, respectively, for the three and six months ended June 30, 2007. The following table
summarizes information related to impairment charges on active communities and write-offs of
deposits and abandonment costs by region (dollars in millions):
15
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Impairment charges on active communities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida |
|
$ |
132.0 |
|
|
$ |
23.6 |
|
|
$ |
205.9 |
|
|
$ |
28.7 |
|
Mid-Atlantic |
|
|
5.9 |
|
|
|
4.5 |
|
|
|
12.5 |
|
|
|
6.6 |
|
Texas |
|
|
2.1 |
|
|
|
0.5 |
|
|
|
3.1 |
|
|
|
0.6 |
|
West |
|
|
35.5 |
|
|
|
12.8 |
|
|
|
55.7 |
|
|
|
13.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
175.5 |
|
|
|
41.4 |
|
|
|
277.2 |
|
|
|
49.4 |
|
Write-offs of deposits and abandonment costs: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida |
|
|
14.3 |
|
|
|
12.1 |
|
|
|
36.4 |
|
|
|
12.8 |
|
Mid-Atlantic |
|
|
9.2 |
|
|
|
13.5 |
|
|
|
9.4 |
|
|
|
13.9 |
|
Texas |
|
|
5.5 |
|
|
|
0.2 |
|
|
|
6.8 |
|
|
|
0.3 |
|
West |
|
|
100.2 |
|
|
|
17.6 |
|
|
|
147.2 |
|
|
|
47.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
129.2 |
|
|
|
43.4 |
|
|
|
199.8 |
|
|
|
74.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Inventory impairments and abandonment costs |
|
$ |
304.7 |
|
|
$ |
84.8 |
|
|
$ |
477.0 |
|
|
$ |
123.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Remaining carrying value of inventory
impaired at end of period |
|
$ |
529.4 |
|
|
$ |
696.0 |
|
|
$ |
529.4 |
|
|
$ |
696.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of projects impaired during the period |
|
|
168 |
|
|
|
115 |
|
|
|
224 |
|
|
|
131 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total number of projects included in
inventory and reviewed for impairment during
the period |
|
|
354 |
|
|
|
457 |
|
|
|
354 |
|
|
|
457 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4. Transeastern Joint Venture
We acquired our 50% interest in the Transeastern Joint Venture (Transeastern JV) on August
1, 2005, when the Transeastern JV acquired substantially all of the homebuilding assets and
operations of Transeastern Properties, Inc. including work in process, finished lots and certain
land option rights. The Transeastern JV paid approximately $826.2 million for these assets and
operations (which included the assumption of $127.1 million of liabilities and certain transaction
costs, net of $30.1 million of cash). The other member of the joint venture was an entity
controlled by the former majority owners of Transeastern Properties, Inc. We functioned as the
managing member of the Transeastern JV through a wholly-owned subsidiary.
On October 31, 2006 and November 1, 2006, we received demand letters from the administrative
agent for the lenders to the Transeastern JV demanding payment under certain guarantees. The demand
letters alleged that potential defaults and events of default had occurred under the credit
agreements and that such potential defaults or events of default had triggered our obligations
under the guarantees. The lenders claimed that our guarantee obligations equaled or exceeded all of
the outstanding obligations under each of the credit agreements and that we were liable for default
interest, costs and expenses.
On July 31, 2007, we consummated transactions to settle the disputes regarding the
Transeastern JV with the lenders to the Transeastern JV, its land bankers and our joint venture
partner in the Transeastern JV. As a result, the Transeastern JV became a wholly-owned subsidiary
of ours by merger into one of our subsidiaries.
Pursuant to the settlement, among other things,
|
|
|
the Transeastern JV became a wholly-owned subsidiary of ours by merger
into one of our subsidiaries, which became a guarantor on our credit
facilities and note indentures (the acquisition was accounted for
using the purchase method of accounting and results of operations have
been included in our consolidated results beginning on July 31, 2007); |
|
|
|
|
the senior secured lenders of the Transeastern JV were repaid in full,
including accrued interest (approximately $400.0 million in cash); |
|
|
|
|
the senior mezzanine lenders to the Transeastern JV received $20.0
million in aggregate principal amount of 14.75% Senior Subordinated
PIK Election Notes due 2015 and $117.5 million in initial aggregate
liquidation preference of 8% Series A Convertible Preferred PIK
Preferred Stock; |
|
|
|
|
the junior mezzanine lenders to the Transeastern JV received warrants
to purchase shares of our common stock which had an estimated fair
value of $8.2 million at issuance (based on the Black-Scholes option
pricing model and before issuance costs); |
|
|
|
|
we entered into settlement and release agreements with the senior
mezzanine lenders and the junior mezzanine lenders to the Transeastern
JV which released us from our potential obligations to them; and |
16
|
|
|
we entered into a settlement and mutual release agreement with
Falcone/Ritchie LLC and certain of its affiliates (the Falcone
Entities) concerning the Transeastern JV, one of which owned 50% of
the equity interests in the Transeastern JV and, among other things,
released the Falcone Entities from claims under the 2005 asset
purchase agreement pursuant to which we acquired our interest in the
Transeastern JV. Pursuant to the settlement agreement, we remain
obligated on certain indemnification obligations, including, without
limitation, certain land bank arrangements. |
To effect the settlement of the Transeastern JV dispute, on July 31, 2007, we also entered
into:
|
|
|
an amendment to our $800.0 million revolving loan facility dated January 30, 2007; |
|
|
|
|
a new $200.0 million aggregate principal amount first lien term loan facility; and |
|
|
|
|
a new $300.0 million aggregate principal amount second lien term loan facility. |
The proceeds from the first and second lien term loans were used to satisfy claims of the
senior secured lenders against the Transeastern JV, and to pay related expenses. Our existing
$800.0 million revolving loan facility was amended and restated to reduce the revolving commitments
thereunder by $100.0 million and permit the incurrence of the first and second lien term loan
facilities (and make other conforming changes relating to the facilities). Net proceeds from these
financings at closing were $470.6 million which is net of a 1% discount and transaction costs.
We also paid:
|
|
|
$50.2 million in cash to purchase land under existing land bank
arrangements with the former Transeastern JV partner; and |
|
|
|
|
$33.5 million in interest and expenses. |
Additional descriptions of the facilities, preferred stock and the warrants are provided in
Notes 9 and 12 to the unaudited consolidated financial statements.
In connection with the Transeastern JV settlement, we recognized a loss of $426.6 million, of
which $32.0 million was recognized during the three months ended June 30, 2007, $119.6 million was
recognized during the remainder of 2007 and $275.0 million was recognized during 2006.
The consideration paid by us in connection with the TE Acquisition approximated $586.8
million, at the time of settlement (July 31, 2007), which included (in millions):
|
|
|
|
|
Purchase price: |
|
|
|
|
Cash consideration paid to Senior Lenders of the Transeastern JV |
|
$ |
400.0 |
|
Fair value of convertible preferred stock issued |
|
|
84.0 |
|
Fair value of senior subordinated notes issued |
|
|
10.9 |
|
Fair value of common stock warrants issued |
|
|
8.2 |
|
Payment to purchase land under existing land bank arrangements |
|
|
50.2 |
|
Transaction costs including accrued interest paid to the Senior Lenders |
|
|
33.5 |
|
|
|
|
|
Total estimated purchase price |
|
$ |
586.8 |
|
|
|
|
|
Allocation of purchase consideration: |
|
|
|
|
Cash and cash equivalents |
|
$ |
10.3 |
|
Restricted cash |
|
|
28.4 |
|
Inventory(1) |
|
|
149.8 |
|
Property and equipment |
|
|
1.0 |
|
Accounts payable and other liabilities |
|
|
(27.4 |
) |
Customer deposits |
|
|
(1.9 |
) |
Previously accrued loss contingency(2) |
|
|
385.9 |
|
Additional loss on TE Acquisition(3) |
|
|
40.7 |
|
|
|
|
|
|
|
$ |
586.8 |
|
|
|
|
|
|
|
|
(1) |
|
The fair value of the inventory was determined by estimating future cash flows expected to
result from the use of the asset and its eventual disposition, discounted at a market rate
of interest. |
|
(2) |
|
In accordance with SFAS 5 and other authoritative guidance, as of June 30, 2007, we accrued
$385.9 million for settlement of a loss contingency (determined by computing the difference
between the estimated fair value of the consideration paid in connection with the global
settlement less the estimated fair value of the business acquired). |
|
(3) |
|
There were no identifiable intangible assets or goodwill associated with the TE Acquisition. |
17
5. Investments in Unconsolidated Joint Ventures
We have entered into strategic joint ventures that acquire and develop land for our
Homebuilding operations and/or that also build and
market homes for sale to third parties. Our partners in these joint ventures generally are
unrelated homebuilders, land sellers, financial investors or other real estate entities. In some
cases our Chapter 11 filings have constituted an event of default under the joint venture lender
agreements which have resulted in the debt becoming immediately due and payable, limiting the joint
ventures access to future capital. In joint ventures where the assets are being financed with
debt, the borrowings are non-recourse to us except that in certain instances we have agreed to
complete certain property development commitments in the event the joint ventures default and to
indemnify the lenders for losses resulting from fraud, misappropriation, violations of
environmental laws and similar acts. In some cases, we have agreed to make capital contributions to
the joint venture sufficient to comply with a specified debt to value ratio. Our obligations become
full recourse upon certain bankruptcy events with respect to the joint venture. At June 30, 2008
and December 31, 2007, we had investments in unconsolidated joint ventures of $8.7 million and $9.0
million, respectively. We account for these investments under the equity method of accounting.
These unconsolidated joint ventures are limited liability companies or limited partnerships in
which we have a limited partnership interest and a minority interest in the general partner. At
June 30, 2008 and December 31, 2007, we had receivables of $0.1 million and $0.3 million net of
allowances, respectively, from these joint ventures due to loans and advances, unpaid management
fees and other items.
In many instances, we are appointed as the day-to-day manager of the unconsolidated entities
and receive management fees for performing this function. We earned management fees from these
unconsolidated entities of $0 and $4.5 million for the three months ended June 30, 2008 and 2007,
respectively, and $0.1 million and $8.1 million for the six months ended June 30, 2008 and 2007,
respectively. These fees are included in income (loss) from unconsolidated joint ventures in the
accompanying unaudited consolidated statements of operations.
We evaluated the recoverability of our investments in and receivables from unconsolidated
joint ventures under APB 18 and SFAS No. 114, Accounting by Creditors for Impairment of a Loan
(SFAS 114), and recorded total impairments of investments in unconsolidated joint ventures of
$2.3 million for the three months ended June 30, 2008 and $2.8 million and $5.5 million for the six
months ended June 30, 2008 and 2007, respectively. At June 30, 2008 and December 31, 2007, the
accrual related to joint venture obligations was $59.5 million and $74.6 million, respectively,
which primarily relates to limited guarantees we issued in connection with our unconsolidated joint
ventures. As explained in further detail below, the decrease in the accrual is primarily due to the reduction of loss
accruals totaling $11.6 million for certain joint venture
obilgations established in 2007 and reversed during the three months ended June
30, 2008.
Engle/Sunbelt Joint Venture
In December 2004, we entered into a joint venture agreement with Suntous Investors, LLC
(Suntous) to form Engle/Sunbelt Holdings, LLC (Engle/Sunbelt). Engle/Sunbelt was formed to
develop finished homesites and to build and deliver homes in the Phoenix, Arizona market. Upon its
inception, the venture acquired eight of our existing communities in Phoenix, Arizona.
At December 31, 2007, the joint venture had financing arrangements with an aggregate borrowing
capacity of $230.0 million, of which $200.0 million related to a revolving loan and $30.0 million
related to a mezzanine financing instrument. On January 16, 2008, the facility was amended to
reduce the revolving loan limit to $115.0 million and terminate the mezzanine financing instrument.
While the borrowings by Engle/Sunbelt were non-recourse to us, we had obligations to complete
construction of certain improvements and housing units in the event Engle/Sunbelt defaulted.
Additionally, we agreed to indemnify the lenders for, among other things, potential losses
resulting from violations of environmental laws, misappropriation, bankruptcy filings and similar
acts by Engle/Sunbelt.
Although Engle/Sunbelt was not included in our Chapter 11 filings, our Chapter 11 filings
constituted an event of default under the financing arrangements and Engle/Sunbelts debt became
immediately due and payable.
During 2007, we evaluated the recoverability of our investment in and receivables from
Engle/Sunbelt for impairment under APB 18 and SFAS 114, respectively, and recorded an impairment
charge of $60.7 million representing the full carrying value our investment in and receivables from
Engle/Sunbelt, net of deferred gains of $22.5 million.
In April 2008, we entered into a settlement agreement with the lenders pursuant to which
Engle/Sunbelt agreed to the appointment of a receiver and further agreed to either, at the election
of the lenders, deliver a deed in lieu of foreclosure to its assets or consent to a judicial
foreclosure. We also agreed to assist the lenders in their efforts to complete certain construction
for which we will receive arms length compensation. The Bankruptcy Court entered an order
approving the settlement agreement. Pursuant to the settlement agreement, on November 20, 2008, we
were relieved from our obligations under the completion and indemnity agreements.
TOUSA/Kolter Joint Venture
In January 2005, we entered into a joint venture with Kolter Real Estate Group LLC to form
TOUSA/Kolter Holdings, LLC (TOUSA/Kolter) for the purpose of acquiring, developing and selling
approximately 1,900 homesites and commercial property in a master planned community in South
Florida. The joint venture obtained senior and senior subordinated term loans. We entered into a
Performance and Completion Agreement in favor of the lenders under which we agreed, among other
things, to construct and complete the horizontal development of the lots and commercial property
and related infrastructure in accordance with certain plans. The loans required, among other
things, TOUSA/Kolter to have completed the development of certain lots by January 7, 2007. Due to
unforeseen and unanticipated delays in the entitlement process and additional development requests
by the county and water management district, TOUSA/Kolter was unable to complete the development of
these certain lots by the required deadline. On June 21, 2007, and in response to missing the
development deadline, TOUSA/Kolter amended the existing loan agreements and we amended the
Performance and Completion Agreement to extend the Performance and Completion Agreement development
deadline to May 31, 2008. The amendments to the term loan agreements increased the interest rate on
the senior term loan by 100 basis points to LIBOR plus 3.25% and by 50 basis points to LIBOR plus
8.5% for the senior subordinated term loan. As a condition to the amendment, we agreed with Kolter
Real Estate Group LLC to be responsible for the additional 150 basis points; accordingly, this
would be a cost of the lots we acquired from TOUSA/Kolter. The amendment also required us to
increase our existing letter of credit by an additional $1.8 million to $12.1 million and place an
additional $3.0 million cash deposit on the remaining lots under option. The $3.0 million was used
by TOUSA/Kolter to pay down
a portion of the senior term loan.
18
As we had abandoned our rights under the option contract due to non-performance, we recorded
an obligation of $12.1 million for the letter of credit we anticipated would be drawn, wrote-off
the $3.0 million cash deposit and $1.0 million in capitalized pre-acquisition costs in 2007. In
2008, the letter of credit was drawn and used to reduce the joint ventures term loan outstanding.
The lenders to the joint venture have declared the loan to the venture to be in default. The
Remargining Agreement requires us to pay to the Administrative Agent, upon default of the joint
venture, an amount necessary to decrease the principal balance of the loan so that the outstanding
balance does not exceed 70% of the value of the joint ventures assets. Based on the estimated fair
value of the assets of the joint venture, we recorded a $54.0 million obligation (which included
the $12.1 million letter of credit accrual) in 2007 in connection with our obligation under the
re-margining provisions of the loan agreement. We did not record any additional contingent
liability under the completion guarantee as the $54.0 million accrual represented the full debt
obligation of the joint venture. At December 31, 2007, the obligation of $54.0 million is included
in accounts payable and other liabilities in the accompanying unaudited consolidated statements of
financial condition. As result of the 2009 transaction discussed below, we reduced the obligation
for $8.5 million of loan forgiveness, $11.7 million of drawn letters of credit and $2.3 million of
escrowed interest applied to the loan balance, leaving a remaining obligation at June 30, 2008 of
$31.5 million, which is included in liabilities subject to compromise in the accompanying unaudited
consolidated statement of financial condition.
During 2007, we evaluated the recoverability of our investment and receivables from
TOUSA/Kolter for impairment under APB 18 and SFAS 114, respectively, and recorded an impairment
charge of $58.8 million representing the full carrying value of our investment in and receivables
from TOUSA/Kolter, net of deferred gains of $12.8 million, which were deferred as a result of the
contributed assets and contract assignments to TOUSA/Kolter. Additionally, in 2007 we recorded an
obligation of $18.9 million for performance bonds and letters of credit that we placed on behalf of
the joint venture, as we considered it probable that we would be required to reimburse these
amounts for development remaining to be completed. At June 30, 2008 and December 31, 2007, the
obligation for performance bonds and letters of credit of $13.7 million and $18.9 million,
respectively, is included in liabilities subject to compromise and accounts payable and other
liabilities, respectively, in the accompanying unaudited consolidated statements of financial
condition.
On January 28, 2009, we entered into an agreement with CC Loan Acquisition LLC, which had
purchased the loans to the joint venture and the Community Development District Bonds related to
the project. The joint venture deeded the property to CC Loan Acquisition LLC and received an
extension of the maturity of the B Bonds until May 1, 2013. A portion of the outstanding joint
venture indebtedness was also satisfied and the amount collectible from CC Loan Acquisition LLC
under filed proofs of claim related to the Completion Agreement was limited. This agreement was
approved by the Bankruptcy Court on January 9, 2009.
Centex/TOUSA at Wellington, LLC
In December 2005, we entered into a joint venture with Centex Corporation to form Centex/TOUSA
at Wellington, LLC (Centex/TOUSA at Wellington) for the purpose of acquiring, developing and
selling approximately 264 homesites in a community in South Florida. The joint venture obtained a
term loan of which $31.0 million was outstanding as of June 30, 2008 and December 31, 2007. The
credit agreement requires us to construct and complete the horizontal development of the lots and
related infrastructure in accordance with certain agreed upon plans. On August 31, 2007,
Centex/TOUSA at Wellington received a notice from the lender requiring the joint venture members to
contribute approximately $10.0 million to the joint venture to reduce the outstanding term loan in
order to comply with the 60% loan-to-value ratio covenant. We have not made the required equity
contribution.
We evaluated the recoverability of our investment in and receivables from Centex/TOUSA at
Wellington for impairment under APB 18 and SFAS 114 respectively, and recorded an impairment of
$27.0 million representing the full carrying value of our investment in and receivables from
Centex/TOUSA during 2007. Based on the estimated fair value of the assets of the joint venture, we
recorded a $15.5 million obligation in 2007, in connection with our obligation under the
re-margining provisions of the loan agreement which represents our portion of the joint ventures
outstanding debt. We did not record any additional contingent liability under the completion
guarantee as the $15.5 million accrual represents our portion of the full joint venture debt
obligation. At June 30, 2008 and December 31, 2007, the $15.5 million obligation is included in
liabilities subject to compromise and accounts payable and other liabilities, respectively, in the
accompanying unaudited consolidated statements of financial condition.
Layton Lakes Joint Venture
In connection with our joint venture with Lennar Corporation (the Layton Lakes Joint
Venture) to acquire and develop land, townhome properties and commercial property in Gilbert,
Arizona, we entered into a Completion and Limited Indemnity Agreement for the benefit of the lender
to the joint venture.
We evaluated the recoverability of our investment in and receivables from the Layton Lakes
Joint Venture for impairment under APB
18 and SFAS 114, respectively, and recorded an impairment charge of $24.9 million representing the
full carrying value of our investment in and receivables from the Layton Lakes Joint Venture during
2007. At that time, we did not record any obligation under the re-margining provision as we were
not a party to the re-margining agreement. The remargining agreement required that the outstanding
loan balance not exceed 65% of the value of the joint ventures assets. Additionally, in 2007 we
recorded an obligation of $4.4 million for performance bonds that we placed on behalf of the joint
venture, as we considered it probable that we would be required to reimburse these amounts for
development remaining to be completed. We did not record any additional contingent liability under
the completion guarantee as based on the estimated fair value of the assets of the joint venture,
we did not believe that it was probable that we would be called to perform under the completion
obligation.
The joint venture also breached various other loan covenants. As a result of our defaults,
including our failure to maintain a required net worth, we did not have the right to take down lots
or vote as a member of the joint venture.
19
Tousa, Tousa Homes, Inc., Lennar and the Town of Gilbert, Arizona entered into a series of
agreements pursuant to which, among other things, we have surrendered our interest in the joint
venture and have paid $1.3 million toward completion of certain offsite improvements. In exchange,
we have been granted an option to continue acquiring lots and the Town of Gilbert has agreed to
issue certificates of occupancy for certain homes under construction. Tousa, Tousa Homes, Inc.,
Lennar and Bank Midwest each agreed to mutual releases of claims related to the Layton Lakes Joint
Venture. The Bankruptcy Court approved these agreements on November 25, 2008. As a result of this
settlement and certain work performed by our joint venture, we reversed $4.3 million of our accrual for estimated obligations under the performance
bonds during the six months ended June 30, 2008.
Other
Certain of our other ongoing unconsolidated land development joint ventures have outstanding
debt obligations totaling $17.6 million and $20.6 million at June 30, 2008 and December 31, 2007,
respectively. These joint venture borrowings are non-recourse to us except that in certain
instances we have agreed to complete certain property development commitments in the event the
joint venture defaults and to indemnify the lenders for losses resulting from fraud,
misappropriation, violations of environmental laws and similar acts.
Summarized in the tables below is the unaudited condensed combined financial information
related to our ongoing unconsolidated land development joint ventures, primarily located in Texas,
for which we have investments that are accounted for under the equity method of accounting,
excluding those joint ventures discussed above in which we have written off our investment (in
millions):
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
December 31, |
|
|
|
2008 |
|
|
2007 |
|
Assets: |
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
2.8 |
|
|
$ |
3.2 |
|
Inventories |
|
|
38.1 |
|
|
|
39.0 |
|
Other assets |
|
|
5.1 |
|
|
|
0.9 |
|
|
|
|
|
|
|
|
Total assets |
|
$ |
46.0 |
|
|
$ |
43.1 |
|
|
|
|
|
|
|
|
Liabilities and equity: |
|
|
|
|
|
|
|
|
Accounts payable and other liabilities |
|
|
2.7 |
|
|
|
5.1 |
|
Notes payable |
|
|
17.6 |
|
|
|
20.6 |
|
Equity of: |
|
|
|
|
|
|
|
|
TOUSA, Inc. |
|
|
12.7 |
|
|
|
7.9 |
|
Others |
|
|
13.0 |
|
|
|
9.5 |
|
|
|
|
|
|
|
|
Total equity |
|
|
25.7 |
|
|
|
17.4 |
|
|
|
|
|
|
|
|
Total liabilities and equity |
|
$ |
46.0 |
|
|
$ |
43.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Revenues |
|
$ |
4.5 |
|
|
$ |
4.0 |
|
|
$ |
6.7 |
|
|
$ |
20.0 |
|
Cost and expenses |
|
|
3.9 |
|
|
|
4.0 |
|
|
|
5.8 |
|
|
|
20.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
0.6 |
|
|
$ |
|
|
|
$ |
0.9 |
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6. Other Assets
Other assets consist of the following (in millions):
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
December 31, |
|
|
|
2008 |
|
|
2007 |
|
Homebuilding: |
|
|
|
|
|
|
|
|
Income taxes receivable |
|
$ |
|
|
|
$ |
218.4 |
|
Accounts receivable |
|
|
25.8 |
|
|
|
34.7 |
|
Deferred finance costs, net |
|
|
|
|
|
|
55.8 |
|
Prepaid expenses |
|
|
17.7 |
|
|
|
20.3 |
|
Other assets |
|
|
17.8 |
|
|
|
0.8 |
|
|
|
|
|
|
|
|
Total other assets |
|
$ |
61.3 |
|
|
$ |
330.0 |
|
|
|
|
|
|
|
|
During the three and six months ended June 30, 2008, we wrote off $3.0 million and $54.4
million, respectively, of deferred finance costs related to our unsecured and under-secured debt
obligations which have been classified as liabilities subject to compromise and are recorded at
amounts expected to be allowed by the Bankruptcy Court.
In April 2008, we received a $207.3 million refund of previously paid income taxes for 2005
and 2006 through the carryback of our taxable loss from 2007 of which $175.0 million has been has
been included in restricted cash at June 30, 2008 as required by the cash collateral order (see
Note 1).
20
7. Goodwill
Goodwill represents the excess of the purchase price of our acquisitions over the fair value
of the net assets acquired. Additional consideration paid in subsequent periods under the terms of
purchase agreements is included as acquisition costs.
In accordance with SFAS No. 142, Goodwill and Other Intangible Assets, we test goodwill for
impairment annually or more frequently if certain impairment indicators are present. For purposes
of the impairment test, we consider each homebuilding and financial services entity a reporting
unit. Our impairment test is based on discounted cash flows derived from internal projections. This
process requires us to make assumptions on future revenues, costs, and timing of expected cash
flows. Due to the degree of judgment required and uncertainties surrounding such estimates, actual
results could differ from such estimates. To the extent additional information arises or our
strategies change, it is possible that our conclusion regarding goodwill impairment could change,
which could have a material adverse effect on our financial position and results of operations.
During the three months ended June 30, 2008, we determined that the challenging housing market and
the asset impairments taken in certain of our homebuilding divisions were indicators of impairment.
We performed our interim impairment tests and determined that there was a goodwill impairment for
the three months ended June 30, 2008 of $11.2 million ($1.6 million related to the Mid-Atlantic
region and $9.6 million related to the Texas region). During 2007, we recorded goodwill
impairments in our Virginia ($6.5 million), Mid-Atlantic ($21.2 million) and Las Vegas ($10.5
million) divisions; accordingly, we recognized a $38.2 million goodwill impairment charge for the
three and six months ended June 30, 2007. Additionally, during the six months ended June 30, 2007,
we wrote-off $3.1 million of goodwill related to our Dallas division that has been accounted for as
a discontinued operation.
At
June 30, 2008, there is no remaining goodwill. At December 31, 2007, total goodwill is $11.2 million,
which consists of $1.6 million related to the Mid-Atlantic region and $9.6 million related to the
Texas region.
8. Accounts Payable and Other Liabilities
Accounts payable and other liabilities consist of the following (in millions):
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
December 31, |
|
|
|
2008 |
|
|
2007 |
|
Homebuilding: |
|
|
|
|
|
|
|
|
Accounts payable |
|
$ |
36.4 |
|
|
$ |
41.8 |
|
Interest |
|
|
8.1 |
|
|
|
48.4 |
|
Compensation |
|
|
13.1 |
|
|
|
14.8 |
|
Taxes, including income and real estate |
|
|
13.2 |
|
|
|
22.6 |
|
Accrual for unpaid invoices on delivered homes |
|
|
20.0 |
|
|
|
27.9 |
|
Accrued expenses |
|
|
8.4 |
|
|
|
90.7 |
|
Community development district bond obligations |
|
|
27.7 |
|
|
|
29.6 |
|
Obligations related to unconsolidated joint ventures |
|
|
|
|
|
|
74.6 |
|
Accrued letters of credit expected to be drawn |
|
|
|
|
|
|
43.6 |
|
Warranty costs |
|
|
3.8 |
|
|
|
5.0 |
|
Deferred revenue |
|
|
0.1 |
|
|
|
2.8 |
|
|
|
|
|
|
|
|
Total accounts payable and other liabilities(1) |
|
$ |
130.8 |
|
|
$ |
401.8 |
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Certain accounts payable and other liabilities at June 30, 2008 have been
classified as liabilities subject to compromise (see Note 2). |
In connection with the development of certain of our communities, community development or
improvement districts may utilize tax-exempt bond financing to fund construction or acquisition of
certain on-site and off-site infrastructure improvements. Some bonds are repaid directly by us
while other bonds only require us to pay non-ad valorem assessments related to lots not yet
delivered to residents. These bonds are typically secured by the property and are repaid from
assessments levied on the property over time. We also guarantee district shortfalls under certain
bond debt service agreements when the revenues, fees and assessments, which are designed to cover
principal, interest and other operating costs of the bonds, are insufficient. In accordance with
EITF 91-10, Accounting for Special Assessments and Tax Increment Financing, we record a liability
for future assessments, which are fixed and determinable for a fixed or determinable period. In
addition and in accordance with SFAS 5, we evaluate whether we are contingently liable for any of
the debt related to the bond issuance. Community development district bond obligations were $27.7
million and $29.6 million at June 30, 2008 and December 31, 2007, respectively.
At June 30, 2008, we have total outstanding performance / surety bonds of $170.1 million
related to land development activities and have estimated our exposure on our outstanding surety
bonds to be $58.6 million based on land development remaining to be completed. At June 30, 2008 and
December 31, 2007, our accrual totaled $42.0 million and $48.0 million, respectively, for surety
bonds where we consider it probable that we will be required to reimburse the surety for amounts
drawn related to defaulted agreements, which is included as a liability subject to compromise and
accounts payable and other liabilities, respectively, in the accompanying unaudited consolidated
statements of financial condition.
21
9. Homebuilding and Financial Services Borrowings
Homebuilding Borrowings
Homebuilding borrowings consist of the following (in millions):
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
December 31, |
|
|
|
2008 |
|
|
2007 |
|
Revolving Loan Facility |
|
$ |
272.8 |
|
|
$ |
168.5 |
|
First Lien Term Loan Facility due 2012 |
|
|
199.0 |
|
|
|
199.0 |
|
Discount on First Lien Term Loan Facility(1) |
|
|
|
|
|
|
(1.8 |
) |
Second Lien Term Loan Facility due 2013 |
|
|
340.5 |
|
|
|
317.1 |
|
Discount on Second Lien Term Loan Facility(1) |
|
|
|
|
|
|
(2.8 |
) |
Senior notes due 2010, at 9% |
|
|
300.0 |
|
|
|
300.0 |
|
Senior notes due 2011, at 8 1/4% |
|
|
250.0 |
|
|
|
250.0 |
|
Discount on senior notes(1) |
|
|
|
|
|
|
(2.5 |
) |
Senior subordinated notes due 2012, at 10 3/8% |
|
|
185.0 |
|
|
|
185.0 |
|
Senior subordinated notes due 2011, at 7 1/2% |
|
|
125.0 |
|
|
|
125.0 |
|
Senior subordinated notes due 2015, at 7 1/2% |
|
|
200.0 |
|
|
|
200.0 |
|
Premium on senior subordinated notes(1) |
|
|
|
|
|
|
3.7 |
|
Senior Subordinated PIK Notes due 2015, at 14 3/4% |
|
|
23.1 |
|
|
|
21.3 |
|
Discount on Senior Subordinated PIK Notes(1) |
|
|
|
|
|
|
(8.7 |
) |
|
|
|
|
|
|
|
|
|
|
1,895.4 |
|
|
|
1,753.8 |
|
Less: Amounts classified as liabilities subject to compromise (see Note 2) |
|
|
(1,895.4 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
|
|
|
$ |
1,753.8 |
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
During the six months ended June 30, 2008, we wrote-off $11.9 million of debt
premium and discounts related to our debt obligations which have been classified as
liabilities subject to compromise (see Note 2). |
The filing of the Chapter 11 cases triggered repayment obligations under a number of
instruments and agreements relating to our direct and indirect financial obligations. As a result,
all our borrowings became automatically and immediately due and payable. We believe that any
efforts to enforce the payment obligations are stayed as a result of the filing of the Chapter 11
cases.
We are authorized by the Bankruptcy Court order to use cash collateral of our first lien and
second lien lenders in a manner consistent with a budget negotiated by the parties. The order
further provided for the pay-down of $175.0 million to our first lien term secured lenders, subject
to disgorgement provisions in the event that certain claims against the lenders are successful and
repayment is required. We also have the right to pay-down an additional $15.0 million to our first
lien secured lenders. As of March 6, 2009, we had paid-down approximately $143.0 million to the
first lien secured lenders. We may incur liens and enter into sale/leaseback transactions for model
homes subject to certain limitations. We have granted the pre-petition agents and the lenders
various forms of protection, including liens and claims to protect against any diminution of the
collateral value, payment of accrued, but unpaid interest on the first priority indebtedness at the
non-default rate and the payment of reasonable fees and expenses of the agents under our secured
facilities.
We and the first lien lenders reached an agreement to extend the use of cash collateral until
April 30, 2009 on terms substantially similar to those in the original cash collateral order. The
new cash collateral order was approved by the Bankruptcy Court on January 28, 2009. If we fail to
comply with the order, we will not have sufficient cash to enable us to operate our business and
effectuate our restructuring.
Revolving Loan Facility and First and Second Lien Term Loan Facilities
To effect the TE Acquisition, on July 31, 2007, we entered into (1) the $200.0 million
aggregate principal amount first lien term loan facility (the First Lien Term Loan Facility) and
(2) the $300.0 million aggregate principal amount second lien term loan facility (the Second Lien
Term Loan Facility), (First and Second Lien Term Loan Facilities taken together, the
Facilities). At June 30, 2008 and December 31, 2007, we had $272.8 million and $168.5 million,
respectively, outstanding under our revolving loan facility (the Revolving Loan Facility). There
is no additional capacity available under the Revolving Loan Facility other than for letters of
credit presented to the bank. The Revolving Loan Facility expires on March 9, 2010. The First
Lien Term Loan Facility expires on July 31, 2012 and the Second Lien Term Loan Facility expires on
July 31, 2013. At June 30, 2008, the Revolving Loan Facility and the Facilities are classified as
liabilities subject to compromise (see Note 2).
The interest rates on the Facilities and the Revolving Loan Facility are based on LIBOR plus a
margin or an alternate base rate plus a margin, at our option. For the Revolving Loan Facility, the
LIBOR rates are increased by between 2.50% and 5.25% depending on our leverage ratio (as defined in
the Agreement) and credit ratings. Loans bearing interest at the base rate (the rate announced by
Citibank as its base rate or 0.50% above the Federal Funds Rate) increase between 1.00% and 5.25%
in accordance with the same criteria. Based on our current leverage ratio and credit ratings, our
LIBOR loans bear interest at LIBOR plus 5.25% and our base rate loans bear interest at the Federal
Funds Rate plus 5.25%. For the First Lien Term Loan Facility, the interest rate is LIBOR plus 5.00%
or base rate plus 4.00%. For the Second Lien Term Loan Facility, the interest rate is LIBOR plus
7.25% or base rate plus 6.25%. The Second Lien Term Loan Facility allows us to pay interest, at our
option, (1) in cash, (2) entirely by increasing the principal amount of the Second Lien Term Loan
Facility, or (3) a combination thereof. The Facilities and the New Revolving Loan Facility are
guaranteed by substantially all of our domestic subsidiaries (Guarantor Subsidiaries). The
obligations are secured by substantially all of our assets, including those of our subsidiaries
other than our mortgage and title subsidiaries.
22
Senior Notes and Senior Subordinated Notes
Our outstanding senior notes are guaranteed, on a joint and several basis, by the Guarantor
Subsidiaries, which are all of our material domestic subsidiaries, other than our mortgage and
title subsidiaries (the Non-Guarantor Subsidiaries). Our outstanding senior subordinated notes are
guaranteed on a senior subordinated basis by all of the Guarantor Subsidiaries. The senior notes
rank pari passu in right of payment with all of our existing and future unsecured senior debt and
senior in right of payment to our senior subordinated notes and any future subordinated debt. The
senior subordinated notes rank pari passu in right of payment with all of our existing and future
unsecured senior subordinated debt. The indentures governing the senior notes and senior
subordinated notes generally require us to maintain a minimum consolidated net worth and place
certain restrictions on our ability, among other things, to incur additional debt, pay or declare
dividends or other restricted payments, sell assets, enter into transactions with affiliates,
invest in joint ventures above specified amounts and merge or consolidate with other entities.
Interest on our outstanding senior notes and senior subordinated notes is payable semi-annually.
In accordance with SOP 90-7, as of January 29, 2008, the petition date, we ceased accruing interest
on the senior notes and the senior subordinated notes as these are unsecured claims and are not
entitled to interest upon filing of petitions for relief under Chapter 11. At June 30, 2008, the
senior notes and senior subordinated notes are classified as liabilities subject to compromise (see
Note 2).
Special Interest
In connection with the issuance of the $250.0 million 8 1 / 4 % senior notes, we filed within
90 days of the issuance a registration statement with the SEC covering a registered offer to
exchange the notes for exchange notes of ours having terms substantially identical in all material
respects to the notes. The registration statement was not declared effective within the required
180 days of issuance and was withdrawn in 2008. As a result, on October 9, 2006, in accordance with
their terms, the notes became subject to special interest which accrues at a rate of 0.25% per
annum during the 90-day period immediately following the occurrence of such default, and increases
by 0.25% per annum at the end of each 90-day period, up to a maximum of 1.0% per annum. In
accordance with SOP 90-7, as of January 29, 2008, the petition date, we ceased accruing special
interest and reversed $2.3 million of the interest expense that had been previously accrued as
these are unsecured claims and not entitled to interest upon filing petitions for relief under
Chapter 11.
Senior Subordinated PIK Notes
As part of the transactions to settle the disputes regarding the Transeastern JV, on July 31,
2007, the senior mezzanine lenders to the Transeastern JV received $20.0 million in aggregate
principal amount of 14.75% Senior Subordinated PIK Election Notes (PIK Notes) due 2015.
Interest on the PIK Notes is payable semi-annually. The PIK Notes are unsecured senior
subordinated obligations of ours, and are guaranteed on an unsecured senior subordinated basis by
each of our existing and future subsidiaries that guarantee our 7.5% Senior Subordinated Notes due
2015 (the Existing Notes). We are required to pay 1% of the interest in cash and the remaining
13.75%, at our option, (i) in cash, (ii) entirely by increasing the principal amount of the PIK
Notes or issuing new notes, or (iii) a combination thereof. The PIK Notes mature on July 1, 2015.
The indenture governing the PIK Notes contains the same covenants as contained in the indenture
governing the Existing Notes and is subject, in most cases, to any change to such covenants made to
the indenture governing the Existing Notes. The PIK Notes are redeemable by us at redemption prices
greater than their principal amount. The PIK Notes contain an optional redemption feature that
allows us to redeem up to a maximum of 35% of the aggregate principal amount of the PIK Notes using
the proceeds of subsequent sales of its equity interest at 114.75% of the aggregate principal
amount of the PIK Notes then outstanding, plus accrued and unpaid interest. Additionally, after
July 1, 2012, subject to certain terms of our other debt agreements, we may redeem the PIK Notes at
a premium to the principal amount as follows: 2012 107.375%; 2013 103.688%; 2014 and
thereafter 100.000%. The call options exercisable at anytime after July 1, 2012 at a premium do
not require bifurcation under SFAS 133 because they are only exercisable by us and they are not
contingently exercisable. The redemption option is conditionally exercisable based on the proceeds
raised from an equity offering at 114.75% of up to 35% of the aggregate outstanding PIK Notes
principal and represents an embedded call option that must be bifurcated from the PIK Notes;
however, the fair value of this call option is not material and has not been bifurcated from the
host instrument.
The PIK Notes provide for registration rights for the holders whereby the interest rate
increases by 0.25% per annum for the first 90 days of a registration default, as defined, which
amount increases by an additional 0.25% every 90 days a registration default is continuing, not to
exceed 1.0% in the aggregate, from and including the date of the registration default to and
excluding the date on which the registration default is cured. Registration default payments may be
paid, at our option, in cash, additional Notes, or a combination thereof.
At June 30, 2008, the PIK Notes are classified as liabilities subject to compromise (see Note 2).
Financial Services Borrowings
On January 28, 2008, Preferred Home Mortgage Company, our wholly-owned residential mortgage
lending subsidiary, entered into an Amended and Restated Agreement of Limited Liability Company
with Wells Fargo Ventures, LLC. The limited liability company is known as PHMCWF, LLC but does
business as Preferred Home Mortgage Company, an affiliate of Wells Fargo. Preferred Home Mortgage
Company owns 49.9% of the venture with the balance owned by Wells Fargo. Effective April 1, 2008,
the venture began to carry on the mortgage business of Preferred Home Mortgage Company. The venture
is managed by a committee composed of six members, three from Preferred Home Mortgage Company and
three from Wells Fargo. The venture entered into a revolving credit agreement with Wells Fargo
Bank, N.A. providing for advances of up to $20.0 million. Wells Fargo Home Mortgage provides the
general and administrative support (as well as all loan related processing, underwriting and
closing functions), and is the end investor for the majority of the loans closed through the joint
venture. Prior to the joint venture, Preferred Home Mortgage Company had a centralized operations
center that provided those support functions. The majority of these support functions ceased in
June 2008. Effective April 1, 2008, we began to account for the venture as an equity-method
investment.
23
Until December 4, 2008, the joint venture had two warehouse lines of credit in place to fund
the origination of residential mortgage
loans. The revolving warehouse line of credit (the Warehouse Line of Credit), which was
entered into on December 5, 2007, provided for revolving loans of up to $25.0 million. The
Warehouse Line of Credit replaced the $100.0 million revolving warehouse line of credit that
expired on December 8, 2007. From January 25, 2008 through December 4, 2008, the availability under
the Warehouse Line of Credit was reduced to $15.0 million. The $150.0 million mortgage loan
purchase facility (Purchase Facility) was amended to decrease the size of the facility to $75.0
million. From January 25, 2008 through December 4, 2008, the availability under the Purchase
Facility was reduced to $40.0 million. However, we had agreed with the lender not to utilize these
facilities. The Warehouse Line of Credit bore interest at the 30-day LIBOR rate plus a margin of
2.0%, was secured by funded mortgages, which were pledged as collateral, and required our mortgage
subsidiary to maintain certain financial ratios and minimums. The Warehouse Line of Credit also
placed certain restrictions on, among other things, our mortgage subsidiarys ability to incur
additional debt, create liens, pay or make dividends or other distributions, make equity
investments, enter into transactions with affiliates, and merge or consolidate with other entities.
Our mortgage subsidiary was in compliance with all covenants and restrictions at June 30, 2008. At
June 30, 2008, our mortgage subsidiary had no outstanding borrowings.
10. Income Taxes
We account for income taxes in accordance with SFAS No. 109, Accounting for Income Taxes
(SFAS 109), as interpreted by FASB Interpretation No. 48, Accounting for Uncertainty in Income
Taxes (FIN 48). Under SFAS 109, income taxes are accounted for using the asset and liability
method. Deferred tax assets and liabilities are recognized based on the anticipated future tax
consequences attributable to differences between the financial statement carrying amounts of
existing assets and liabilities and their respective tax basis. Deferred tax assets and liabilities
are measured using enacted tax rates expected to apply to taxable income in the years in which
those temporary differences are expected to be recovered or settled. The effect on deferred tax
assets and liabilities of a change in tax rates is recognized in income in the period that includes
the enactment date.
We are subject to U.S. federal income tax as well as to income tax in multiple state
jurisdictions. We have effectively closed all U.S. federal income tax matters for years through
2004. The Internal Revenue Service has informed us that it will be examining our consolidated tax
return for fiscal years 2005 through 2007 under the normal procedures applicable to taxpayers with
refunds in excess of $2.0 million, which are subject to Joint Committee on Taxation reviews.
Management believes that the tax liabilities recorded are adequate and the tax refunds received
properly reflect the amounts due to us from the applicable taxing authorities. However, a
significant assessment against us could have a material adverse effect on our financial position,
results of operations or cash flows.
It is our continuing policy to account for interest and penalties associated with income tax
obligations as a component of income tax expense.
SFAS 109 requires that companies assess whether valuation allowances should be established
based on the consideration of all available evidence using a more likely than not standard. We
assess our deferred tax assets quarterly to determine if valuation allowances are required.
Pursuant to SFAS 109, we were unable to record an income tax benefit for the three and six months
ended June 30, 2008, as all recognizable tax benefits under current tax law were recorded in prior
years. Our valuation allowance increased by $132.5 million and $232.4 million, respectively, for
the three and six months ended June 30, 2008 to $738.1 million at June 30, 2008.
Our results of operations may be impacted in the future by our inability to realize a tax
benefit for future tax losses or for items that will generate additional deferred tax assets. Our
results of operations might be favorably impacted in the future by reversals of valuation
allowances if we are able to demonstrate sufficient positive evidence that our deferred tax assets
will be realized. However, there could be restrictions on the amount of the carryforwards that can
be utilized if certain changes in our ownership should occur which would likely significantly limit
potential future benefit, even if we could demonstrate sufficient positive evidence that our
deferred taxes could otherwise be realized.
In April 2008, we received a $207.3 million refund of previously paid income taxes for 2005
and 2006 through the carryback of our taxable loss from 2007.
During
the three and six months ended June 30, 2008, we recorded $0.7 million of additions to
unrecognized tax benefits under FIN 48, consisting primarily of interest on previously recorded
amounts.
11. Commitments and Contingencies
We are involved in various claims and actions arising in the ordinary course of business. In
the opinion of management, the ultimate disposition of these matters is not expected to have a
material adverse effect on our unaudited consolidated financial position or results of operations.
Warranty
We provide homebuyers with a limited warranty of workmanship and materials from the date of
sale for up to two years. We generally have recourse against our subcontractors for claims relating
to workmanship and materials. In some cases, we also provide up to a ten-year homeowners warranty
which covers major structural and design defects related to homes sold by us during the policy
period, subject to a significant self-insured retention per occurrence. Estimated warranty costs
are recorded at the time of sale based on historical experience and current trends. Warranty costs
are included in accounts payable and other liabilities in the accompanying unaudited consolidated
statements of financial condition.
During the six months ended June 30, 2008 and 2007, the activity in our warranty cost accrual
consisted of the following (in millions):
24
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
Accrued warranty costs at January 1 |
|
$ |
5.0 |
|
|
$ |
7.4 |
|
Liability recorded for warranties issued during the period |
|
|
1.7 |
|
|
|
2.7 |
|
Warranty work performed |
|
|
(6.3 |
) |
|
|
(4.2 |
) |
Adjustments |
|
|
3.4 |
|
|
|
1.0 |
|
|
|
|
|
|
|
|
Accrued warranty costs at June 30 |
|
$ |
3.8 |
|
|
$ |
6.9 |
|
|
|
|
|
|
|
|
To address potential homebuyer concerns regarding fulfillment of warranty obligations at the
inception of our Chapter 11 cases, we entered into an agreement with a third party to guarantee our
warranty obligations for the first ten years after closing and assume all liability for structural
claims in years three through ten. The agreement covered all homes in backlog on January 21, 2008
and all homes sold or delivered between January 21, 2008 and June 30, 2008.
Letters of Credit and Performance Bonds
We are subject to the normal obligations associated with entering into contracts for the
purchase, development and sale of real estate in the routine conduct of our business. We are
committed under various letters of credit and performance bonds which are required for certain
development activities, deposits on land and deposits on homesite purchase contracts. Under these
arrangements, we had total outstanding letters of credit of $31.7 million as of June 30, 2008. As a
result of abandoning our rights under option contracts, as of June 30, 2008, we accrued
$4.8 million for letters of credit which we anticipated would be drawn due to nonperformance under
such contracts. From July 1, 2008 through February 28, 2009, an additional $2.5 million of letters
of credit have been drawn related to the abandonment of option contracts which have increased our
borrowings outstanding under our Revolving Loan Facility. In certain instances, we have entered
into development agreements in connection with option contracts which require us to complete the
development of the land, at a fixed reimbursable amount, even if we choose not to exercise our
option and forfeit our deposit and even if our costs exceed the reimbursable amount.
At June 30, 2008, we have total outstanding performance / surety bonds of $170.1 million
related to land development activities and have estimated our exposure on our outstanding surety
bonds to be $58.6 million based on land development remaining to be completed. At June 30, 2008 and
December 31, 2007, our accrual totaled $42.0 million and $48.0 million, respectively, for surety
bonds where we consider it probable that we will be required to reimburse the surety for amounts
drawn related to defaulted agreements, which is included as a liability subject to compromise and
accounts payable and other liabilities, respectively, in the accompanying unaudited consolidated
statements of financial condition.
Until the establishment of a surety bond program in January 2009, we had no ability to obtain
new surety bonds or letters of credit and in some cases, had to post cash deposits with
government entities or escrow agents. Under the program approved by the Bankruptcy Court, we have
an aggregate $15.0 million available for surety bonds. Surety bonds are issued after notice to
creditors who have a right to object. The surety bonds are collateralized by cash deposits
maintained in escrow accounts. At February 28, 2009, $2.5 million was maintained as collateral for
surety bonds.
Exposure on Abandoned Homesite Option Contracts
See Note 3.
Chapter 11 Cases
On January 29, 2008, TOUSA, Inc. and certain of our subsidiaries (excluding our financial
services subsidiaries and joint ventures) filed voluntary petitions relief under Chapter 11 of
Title 11 of the United States Code in the United States Bankruptcy Court for the Southern District
of Florida, Fort Lauderdale Division. The Chapter 11 cases have been consolidated solely for
procedural purposes and are pending as Case No. 08-10928-JKO. See Note 1 for additional discussion.
Securities
Class Action Lawsuit
Beginning in December 2006, various stockholder plaintiffs brought lawsuits seeking class
action status in the United States District Court for the Southern District of Florida. The
actions were consolidated, and the consolidated suit is pending under the caption Durgin, et al.,
v. TOUSA, Inc., et al., No. 06-61844-CIV. On September 7, 2007, the Court appointed Diamondback
Capital Management, L.C. (Diamondback) as the lead plaintiff and approved Diamondbacks selection
of counsel. Diamondback filed a consolidated complaint on November 2, 2007. The consolidated
complaint set forth a proposed class period of August 1, 2005 to March 19, 2007 and alleged that
TOUSAs public filings and other public statements were false and misleading in describing the
financing for the Transeastern Joint Venture as non-recourse to TOUSA, and in describing the
Transeastern Joint Ventures financial condition during the class period. Plaintiffs also alleged
in the consolidated complaint that certain public filings and statements were misleading or
suffered from material omissions in failing to fully disclose or describe the Completion and
Carve-Out Guarantees that TOUSA executed in support of the Transeastern Joint Ventures financing.
The consolidated complaint included claims under Section 11 of the Securities Act for strict
liability and negligence regarding the registration statements and prospectus associated with the
September 2005 offering of four million shares of stock. Plaintiffs asserted related claims
against certain of the defendants as controlling persons responsible for the statements in the
registration statements and prospectus. Finally, plaintiffs alleged claims under Section 10(b) of
the Exchange Act for fraud with respect to various public statements regarding the non-recourse
nature of the Transeastern debt, regarding the Completion and Carve-Out Guarantees, and regarding
the financial condition of the Transeastern Joint Venture. Plaintiffs sought by way of the
consolidated complaint compensatory damages, plus fees and costs, on behalf of themselves and the
putative class of purchasers of TOUSA common stock and
purchasers and sellers of options on TOUSA common stock.
25
On January 30, 2008, TOUSA and various other defendants filed motions to dismiss plaintiffs
Consolidated Complaint. On February 4, 2008, TOUSA filed a Notice of Suggestion of Bankruptcy
notifying the court that TOUSA filed a bankruptcy petition. On February 5, 2008, the Court entered
an order staying the action as to TOUSA pursuant to Section 362 of the United States Bankruptcy
Code.
On April 30, 2008, lead plaintiff Diamondback filed a motion to withdraw as lead plaintiff,
which the court granted on May 22, 2008. On July 15, 2008, the court appointed the Bricklayers &
Trowel Trades International Pension Fund (the Bricklayers) as the new lead plaintiff. On July
30, 2008, the Bricklayers filed a notice of an intent to file an amended complaint and accordingly,
on July 31, 2008, the court denied as moot without prejudice the defendants previously filed
motions to dismiss the consolidated complaint.
On September 19, 2008, the Bricklayers filed a Consolidated Amended Class Action Complaint
(the amended complaint). This amended complaint dropped many of the parties previously named as
defendants in the consolidated complaint, including TOUSA, leaving only Antonio B. Mon, Tommy
McAden, David J. Keller and Randy L. Kotler as defendants in the suit. The amended complaint also
dropped the Section 11 and Section 15 claims, leaving the claims under Section 10(b) of the
Exchange Act and Rule 10b-5, as well as the claims made under Section 20(a) of the Exchange Act.
Defendants Mon, Keller and Kotler filed motions to dismiss the amended complaint on November 21,
2008. Defendant McAden had not yet been served, but his counsel recently entered an appearance and
filed a motion to dismiss on March 2, 2009. The deadline for the plaintiffs opposition to the
motions to dismiss has been extended to March 24, 2009. Defendants will have an opportunity to
file replies in support of their motions to dismiss. A trial date has not yet been set.
Proceeding by Official Committee of Unsecured Creditors
In re TOUSA, Inc., Docket No. 08-10928-JKO; Adv. Pro No. 08-1435-JKO. We and certain of our
subsidiaries are involved in an adversary proceeding brought as part of our Chapter 11 proceedings.
On July 14, 2008, the Official Committee of Unsecured Creditors of TOUSA, Inc. (the Committee)
commenced an adversary proceeding (the Committee Action) as part of our and certain of our
subsidiaries (collectively, the Debtors) Chapter 11 proceedings in United States Bankruptcy
Court for the Southern District of Florida. The Debtors were originally non-parties to the
Committee Action, but have since been named as third-party defendants by two of the original
defendants in the Committee Action.
The Committee Action seeks to avoid certain allegedly fraudulent and preferential pre-petition
transfers of up to $800 million the Debtors made in connection with the settlement of litigation
related to the Transeastern Joint Venture (the Transeastern Settlement), and further seeks to
avoid as a preferential transfer any security interest that may have been granted by any of the
Debtors to certain lenders in a tax refund of approximately $207.0 million that the Debtors
received in 2008. The Committees original complaint (the Complaint) named over 60 defendants,
including the lenders under the credit agreements funding the Transeastern Joint Venture (the
Transeastern Lenders), as well as the original lenders (and their successors and assigns) and
administrators under the credit agreements entered into as a result of the Transeastern Settlement
(the New Credit Agreements). The Debtors are not defendants to the Committee Action.
The Committees Complaint alleged that, in order to resolve certain prepetition litigation
regarding the Transeastern Joint Venture, the parties to that litigation entered into a series of
settlement agreements releasing all claims relating to the Transeastern acquisition. The Complaint
alleges that, as part of these settlement agreements, certain of our entities agreed to pay over
$420 million to the administrator of the Transeastern loans and to issue approximately $135 million
in preferred stock, notes and warrants. The Complaint further alleged that to fund these payments,
we and certain of our subsidiaries (the Conveying Subsidiaries) entered into the three New Credit
Agreements. According to the Complaint, the loans issued under these New Credit Agreements were
secured by liens on the property and assets of all of the Debtors, including the Conveying
Subsidiaries. The Complaint alleged that the Conveying Subsidiaries were not defendants in the
prepetition Transeastern litigation and were not obligated on the Transeastern debt that was
released in connection with the Transeastern Settlement. Therefore, the Complaint alleged, the
Conveying Subsidiaries did not receive reasonably equivalent value for the secured debt obligations
that they incurred. The Complaint also alleged that the Conveying Subsidiaries were either
insolvent at the time of the Transeastern Settlement or became insolvent as a result of it, and
that the Conveying Subsidiaries were left with unreasonably small capital as a result of the New
Credit Agreements. Based on these allegations, the Committee seeks to have the liens established
under the New Credit Agreements voided and all amounts already repaid under the New Credit
Agreements returned. The Committee also seeks to have the security interest the Debtors granted
to the New Lenders on the Debtors tax refund voided and the New Lenders claims seeking allowance
of the full amount of the New Loans disallowed in their entirety or reduced.
On September 19, 2008, the Bankruptcy Court held a hearing on motions to dismiss that had been
filed by Defendants Citicorp North America, Inc., and Wells Fargo Bank, N.A. Well Fargos motion
to dismiss was denied. Citicorps motion to dismiss sought dismissal of claims relating to only
one of the three New Credit Agreements, the Second Amended And Restated Revolving Credit Agreement
(the Revolver). The Court granted Citicorps motion to dismiss, but granted the Committee leave
to file an amended complaint.
On October 17, 2008, the Committee filed an Amended Complaint. The Amended Complaint
contained additional allegations regarding the Revolver, and added new defendants. Citicorp has
moved to dismiss the claims in the Amended Complaint relating to the Revolver. In addition, the
Transeastern Lenders have moved to dismiss all claims against them. The Court denied the
Transeastern Lenders motion to dismiss. The Court granted Citicorps motion to dismiss the
Revolver claims in the Amended Complaint, but again granted the Committee leave to file a second
amended complaint consistent with the Courts specific guidance on the revolver issue. After
initially filing a Second Amended Complaint again including claims related to the Revolver, on
February 4, 2009, the Committee filed a Third Amended Complaint which did not include claims
relating to the Revolver. The Committee has, however, appealed to the District Court the dismissal
of the Revolver claims in the Amended Complaint.
In addition, on August 13, 2008, Citicorp North America, Inc., in its capacity as the
Administrative Agent for the First Lien Term Loan, answered the Complaint in the Committee Action,
and filed a third-party complaint (the Citigroup Third-Party Complaint) against
TOUSA, Inc. and each of the Debtor signatories, co-borrowers and co-guarantors under the First
Lien Term Loan. The Citigroup Third-Party Complaint alleges that, to the extent the Committee
establishes its allegations in the Committee Action, the defendants to the Citigroup Third-Party
Complaint will have materially breached the First Lien Term Loan by (a) not having assets whose
fair value exceeded their debts and liabilities, subordinated, contingent or otherwise, (b) not
having assets whose fair saleable value exceed their debts
26
and other liabilities, subordinated,
contingent or otherwise, (c) not being able to pay their debts and liabilities, subordinated,
contingent, or otherwise, and/or (d) having unreasonably small capital with which to conduct their
business. On September 30, 2008 the Debtors filed their answer to the Citigroup Third-Party
Complaint, generally denying Citigroups allegations and asserting affirmative defenses.
On November 6, 2008, Wells Fargo Bank, N.A., in its capacity as the Second Lien Term Agent,
filed its answer to the Committees Amended Complaint in the Committee Action, and filed a
third-party complaint (the Wells Fargo Third-Party Complaint) against TOUSA, Inc. and each of the
Debtor signatories, co-borrowers and co-guarantors under the Second Lien Term Loan (except for
Engle/Gilligan, LLC, Engle Homes Delaware, Inc., Newmark Homes Business Trust, TOUSA Delaware,
Inc., and TOUSA Funding, LLC). The Wells Fargo Third-Party Complaint alleges that, to the extent
the Committee establishes its allegations in the Committee Action, the defendants to the Wells
Fargo Third-Party Complaint will have materially breached the Second Lien Term Loan by (a) not
having assets whose fair value exceeded their debts and liabilities, subordinated, contingent or
otherwise, (b) not having assets whose fair saleable value exceed their debts and other
liabilities, subordinated, contingent or otherwise, (c) not being able to pay their debts and
liabilities, subordinated, contingent, or otherwise, and/or (d) having unreasonably small capital
with which to conduct their business. On November 25, 2008, the Debtors filed their answer to
the Wells Fargo Third-Party Complaint, generally denying Wells Fargos allegations and asserting
affirmative defenses.
On February 24, 2009, the Senior Transeastern Lenders and the CIT Group/Business Credit, Inc.
(CIT) each filed a Counterclaim and Third-Party Complaint against certain of the Debtors. The
Senior Transeastern Lenders and CIT allege that they are entitled to indemnification against any
recovery the Committee receives as a result of the Committees fraudulent transfer claims under the
terms of the August 1, 2005 Senior Credit Agreement signed by certain of the Debtors in connection
with the formation of the Transeastern Joint Venture. The Senior Transeastern Lenders and CIT seek
recoupment for the full amount of any recovery against them on each of the Committees fraudulent
transfer claims. Under the current schedule, the Debtors have until
March 20, 2009 to respond to
the Counterclaims and Third-Party Complaints.
Discovery in the Committee Action, the Citicorp Third-Party Complaint, and the Wells Fargo
Third-Party Complaint is currently ongoing. Pursuant to the amended case management order entered
by the Court on November 11, 2008, current and former employees of the Debtors the parties and
various non-parties have been deposed.
On
February 26, 2009, the court entered an order granting the
Debtors motion to compel mediation of the case. The
non-binding mediation is currently scheduled to take place on
March 23, 2009 and March 24, 2009.
Trial
is currently scheduled for the weeks of July 13, 2009 and
July 20, 2009.
On
October 26, 2007, the TOUSA Board of Directors received a letter
from counsel to a group of holders of TOUSA senior and subordinated
notes (theNoteholder Group). TOUSA did not file for
bankruptcy protection as requested by the Noteholder Group, but did
later file for bankruptcy on January 2008. On February 27, 2009
the Official Committee of Unsecured Creditors of TOUSA filed a motion
seeking standing to pursue claims against members of certain
Debtor-Subsidiaries boards of directors as well as the majority
shareholder of TOUSA, Tech SA, in connection with the July 31,
2007 transaction.
Vista Lakes
Plaintiffs, purchasers of homes in the Vista Lakes community near Orlando, filed a class
action complaint alleging that their homes were built on the site of a former bombing range. The
plaintiffs seek recovery under theories of fraud, breach of contract, strict liability, negligence,
and civil conspiracy. Because the plaintiffs named debtor defendants Tousa, Inc., Tousa Homes,
Inc., d/b/a Engle Homes Orlando and Tousa Homes, LP as defendants in this action, the action was
removed to federal court. The plaintiffs then agreed to dismiss the debtor defendants and the
parties entered into a stipulation for remand. The state court case was re-opened and the parties
remaining as defendants included Universal Land Title, Inc. and Preferred Home Mortgage Company.
Universal Land Title, Inc. and Preferred Home Mortgage Company filed a motion to dismiss the
second amended complaint. On February 13, 2009, the court dismissed all nine counts of the second
amended complaint as to both Universal Land Title, Inc. and Preferred Home Mortgage Company, but
granted Plaintiffs leave to amend their complaint by March 23, 2009.
Based upon the early stage of the litigation, and depending upon whether Plaintiffs will
choose to pursue any claims against Universal Land Title, Inc. or
Preferred Home Mortgage Company by filing a third amended complaint, we
are unable to evaluate the likelihood of an unfavorable outcome or the range of liability in such
event.
Chinese
Drywall
TOUSA Homes, Inc. was named as a defendant in a purported class action lawsuit pending in the
United States District Court for the Southern District of Florida on behalf of certain homeowner
plaintiffs in Southwest Florida. (Karen Vickers, et al., v. TOUSA Homes, Inc., et al.,
No. 09-20510-CIV-GOLD/MCALILEY). The lawsuit has been filed, but TOUSA has not been served.
The complaint alleges the plaintiff homeowners were sold homes containing drywall that is
inherently defective, (Chinese Drywall), because it emits various sulfide gasses and/or other
chemicals through off gassing that purportedly causes property damage and potential health
hazards. Only one TOUSA homeowner is named as a plaintiff.
Due
to the Chapter 11 cases, Plaintiffs counsel has agreed not to serve TOUSA. TOUSA
is currently in the process of filing a motion to have all claims against TOUSA dismissed based on
the protection of the bankruptcy filing.
TOUSA is in the process of responding to notice of the alleged defect and of the plaintiff
homeowners intent to file the class action lawsuit pursuant to Florida Statutes chapter 558.
TOUSA
Homes, Inc. was named, but has not been served in an additional
purported class action lawsuit making similar allegations (Joyce Dowdy
Revocable Trust, et. al v. Tousa Homes, Inc. et. al).
Diligence is currently being conducted by TOUSA to determine the number of homes sold and
unsold containing the Chinese drywall product which is alleged to be defective.
Other Litigation
We are also involved in various other claims and legal actions arising in the ordinary course
of business. We do not believe that the
ultimate resolution of these other matters will have a material adverse effect on our
financial condition or results of operations. As of the date of the Chapter 11 filing, then pending
litigation was generally stayed, and absent further order of the Bankruptcy Court, most parties may
not take any action to recover on pre-petition claims against us.
27
Informal Inquiry
In the Matter of TOUSA, Inc. SEC Inquiry, File No. FL-3310. In June of 2007, we were contacted
by the Miami Regional Office of the SEC requesting the voluntary provision of documents, and other
information from us, relating primarily to corporate and financial information and communications
related to the Transeastern JV. The SEC has advised us that this inquiry should not be construed as
an indication that any violations of law have occurred, nor should it be considered a reflection
upon any person, entity, or security. We have cooperated with the inquiry and have not received any
further requests in a number of months.
PHMC Settlement
On July 10, 2008, PHMC entered into a settlement agreement with one of its primary purchasers
of its mortgage loans. In connection with the settlement, we recorded a loss accrual of $2.9
million in 2007. The settlement agreement releases PHMC of all its known and unknown obligations
under the Loan Purchase Agreement.
12. Stockholders (Deficit) Equity
Convertible PIK Preferred Stock
The preferred stock ranks senior to all of our capital stock with respect to liquidation and
dividends and has an initial aggregate liquidation preference of $117.5 million and accrues
dividends semi-annually at 8% per annum as follows: (i) 1% payable in cash; (ii) the remaining 7%
payable, at our option, in cash, additional preferred stock, or a combination thereof. The
preferred stock is mandatorily redeemable on July 1, 2015 at $1.61 per share. The conversion price
of the preferred stock will be adjusted for certain anti-dilution events including below market
price or below the conversion price issuances by us of our common stock, subject to certain
exceptions.
At June 30, 2008 and December 31, 2007, the preferred stock redemption amount includes amounts
representing dividends not currently declared or paid but which will be payable under the
redemption features. The preferred stock is currently redeemable because redemption of the
instrument, absent the existence of the share settled conversion option, is certain to occur at
maturity. At June 30, 2008, the accreted redemption balance is $0.8 million.
The preferred stock contains a contingent dividend feature, which provides for an increase in
the dividend rate of 0.25% during the period in which the Company fails to register the underlying
common stock. This increase in the dividend rate becomes effective after 270 days. The contingent
dividend feature constitutes an obligation to make future payments or otherwise transfer
consideration under a registration payment arrangement. In accordance with FSP EITF No. 00-19-2,
Accounting for Registration Payment Arrangements, the contingent dividend feature should be
separately recognized and measured in accordance with SFAS 5. At June 30, 2008, $0.4 million was
accrued for our obligation under the registration payment arrangement. Although there is no
limitation on the amount that could be paid under this arrangement, our estimate is based on our
estimated date of exit from bankruptcy of June 2009 since this liability is expected to be
extinguished as part of the Chapter 11 cases.
In accordance with EITF No. 98-5, Accounting for Convertible Securities with Beneficial
Conversion Features or Contingently Adjustable Conversion Ratios, the intrinsic value of the
beneficial conversion feature required measurement at the commitment date by comparing our stock
price at date of closing to the conversion price, which is determinable at the end of the 20
trading days commencing 60 calendar days after closing. The value attributable to the beneficial
conversion features has been recognized and measured by allocating a portion of the proceeds to
additional paid-in-capital (since there are no retained earnings) and a discount to the preferred
stock. In accordance with EITF 00-27, Application of Issue No. 98-5 to Certain Convertible
Instruments, $84.0 million, representing the maximum intrinsic value of the beneficial conversion
feature, is amortized from additional-paid in capital to preferred stock from October 26, 2007 to
July 1, 2015.
Dividends and amortization of the discount of the preferred stock are recorded as charges to
retained earnings or additional paid in capital, if there are no retained earnings, and reduce net
income in the determination of income available to shareholders for the purposes of computing basic
and diluted earnings per share. For the three and six months ended June 30, 2008, dividends on and
accretion of preferred stock was $2.5 million and $5.2 million, respectively, which was recorded as
a charge to additional paid-in-capital.
We will determine and, if required, measure a beneficial conversion feature based on the fair
value of our stock price on the date dividends are declared on the convertible preferred shares,
which will be recognized as a reduction to retained earnings (or additional paid in capital if
there no retained earnings) and the convertible preferred shares newly issued if the fair value of
the stock on the declaration date is below the contractual conversion price. The discount on the
convertible preferred shares issued as PIK dividends will then be accreted through the contractual
maturity of the instrument.
The preferred stock is not a participating security, as defined in SFAS No. 128, Earnings per
Share, and EITF No. 03-6, Participating Securities and the Two-Class Method under FASB Statement
No. 128 , and, therefore, does not require the two-class method of calculating EPS. The preferred
stock provides for the adjustment to the conversion price for common stock dividends declared. The
common shares underlying the convertible preferred stock have not been included in diluted EPS as
its effect is anti-dilutive.
Warrants
The warrants are exercisable for a term of five years from the date of issuance. The warrants
had an estimated fair value of $8.2 million at issuance (based on the Black-Scholes option pricing
model and certain agreed upon inputs). The warrants are exercisable as follows (i) 5,045,662 shares
of common stock can be purchased at $5.31 per share, and (ii) 5,045,662 shares of common stock can
be purchased at $6.38 per share. The exercise prices of the warrants will be adjusted for certain
anti-dilution events including below market
price or below the conversion price issuances by us of our common stock, subject to certain
exceptions. Upon exercise of the warrants by the holders thereof, we may, in our sole discretion,
satisfy our obligations under any warrant being exercised by: (i) paying the holder the value of
the common stock to be delivered in cash less the exercise price; (ii) paying such amount in common
stock rather than cash; (iii) delivering shares of common stock upon receiving the cash exercise
price therefore; or (iv) any combination of the foregoing.
28
NYSE Delisting
Effective November 19, 2007, NYSE Regulation, Inc. suspended our common stock and debt
securities from trading on the NYSE. We appealed the suspension. Following our suspension from the
NYSE, we began trading on the Pink Sheet Electronic Quotation Service. On February 15, 2008, the
NYSE denied our appeal and affirmed the decision to suspend trading in our common stock and debt
securities. On March 3, 2008, the NYSE filed Forms 25, Notification of Removal of Listing and/or
Registration under Section 12(b) of the Securities Exchange Act of 1934, with the SEC of its
intention to remove our common stock, 9% Senior Notes due July 1, 2010, 9% Senior Notes due July 1,
2010, 7 1 / 2 % Senior Subordinated Notes due March 15, 2011, 7 1 / 2 % Senior Subordinated Notes
due January 15, 2015 and the 10 3 / 8 % Senior Subordinated Notes due July 1, 2012 at the opening
of business May 13, 2008. Our common stock and debt securities were delisted on that date.
13. Stock-Based Compensation
Under the TOUSA, Inc. Annual and Long-Term Incentive Plan (the Plan) employees, consultants
and directors of ours, our subsidiaries and affiliated entities, (as defined in the Plan), are
eligible to receive options to purchase shares of common stock. Each stock option expires on a date
determined when the options are granted, but not more than ten years after the date of grant. Stock
options granted have a vesting period ranging from immediate vesting to a graded vesting over five
years.
During the three months ended June 30, 2008 and 2007, we recognized compensation expense
related to stock options of $0.7 million and $0.9 million, respectively. During the six months
ended June 30, 2008 and 2007, we recognized compensation expense related to stock options of $1.7
million and $2.0 million, respectively. At June 30, 2008 and December 31, 2007, outstanding stock
options totaled 7.5 million and 7.8 million, respectively. During the six months ended June 30,
2008, 220,625 stock options were forfeited.
14. Operating and Reporting Segments
Our operating segments are aggregated into reportable segments in accordance with
SFAS No. 131, Disclosures About Segments of an Enterprise and Related Information, based primarily
upon similar economic characteristics, product type, geographic areas, and information used by the
chief operating decision maker to allocate resources and assess performance. Our reportable
segments consist of our four major Homebuilding geographic regions (Florida, Mid-Atlantic, Texas
and West) and our Financial Services operations.
Through our four homebuilding regions, we design, build and market detached single-family
residences, town homes and condominiums in various metropolitan markets in nine states, located as
follows:
Florida: Central Florida, Jacksonville, Southeast Florida, Southwest Florida, Tampa/St.
Petersburg
Mid-Atlantic: Baltimore / Southern Pennsylvania, Nashville, Northern Virginia (on September
25, 2007, we sold in bulk, home sites in our Mid-Atlantic (excluding Nashville) and
Virginia divisions)
Texas: Austin, Houston, San Antonio (on June 6, 2007, we sold substantially all of our
Dallas/Fort Worth division)
West: Colorado, Las Vegas, Phoenix
Evaluation of segment performance is based on the segments results of operations without
consideration of income taxes. Results of operations for our four homebuilding segments consist of
revenues generated from the sales of homes and land, equity in earnings from unconsolidated joint
ventures, and other income / expense less the cost of homes and land sold and selling, general and
administrative expenses. The results of operations for our Financial Services segment consists of
revenues generated from mortgage financing, title insurance and other ancillary services less the
cost of such services and certain selling, general and administrative expenses. Effective April 1,
2008, our mortgage subsidiary became part of a joint venture and has been accounted for as an
equity-method investment (see Mortgage Joint Venture discussion in Note 1).
The operational results of each of our segments are not necessarily indicative of the results
that would have occurred had each segment been an independent, stand-alone entity during the
periods presented. The following tables set forth the financial information relating to our
operations, presented by segment (in millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Homebuilding: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida(2) |
|
$ |
109.9 |
|
|
$ |
218.2 |
|
|
$ |
230.5 |
|
|
$ |
475.5 |
|
Mid-Atlantic |
|
|
13.9 |
|
|
|
62.5 |
|
|
|
30.6 |
|
|
|
114.7 |
|
Texas(1) |
|
|
103.9 |
|
|
|
170.8 |
|
|
|
212.3 |
|
|
|
320.0 |
|
West |
|
|
66.5 |
|
|
|
114.2 |
|
|
|
116.1 |
|
|
|
216.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Homebuilding |
|
|
294.2 |
|
|
|
565.7 |
|
|
|
589.5 |
|
|
|
1,126.4 |
|
Financial Services |
|
|
3.3 |
|
|
|
11.0 |
|
|
|
9.1 |
|
|
|
23.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues |
|
$ |
297.5 |
|
|
$ |
576.7 |
|
|
$ |
598.6 |
|
|
$ |
1,149.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Loss (income) from unconsolidated joint ventures: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida |
|
$ |
|
|
|
$ |
2.5 |
|
|
$ |
|
|
|
$ |
0.4 |
|
Mid-Atlantic |
|
|
|
|
|
|
(2.6 |
) |
|
|
|
|
|
|
(0.7 |
) |
Texas |
|
|
|
|
|
|
|
|
|
|
(0.2 |
) |
|
|
|
|
West(3) |
|
|
|
|
|
|
1.6 |
|
|
|
(0.1 |
) |
|
|
(0.1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1.5 |
|
|
|
(0.3 |
) |
|
|
(0.4 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Impairments (recoveries) on unconsolidated joint
ventures: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida |
|
|
(10.8 |
) |
|
|
|
|
|
|
(10.7 |
) |
|
|
5.5 |
|
Texas |
|
|
2.3 |
|
|
|
|
|
|
|
2.3 |
|
|
|
|
|
West |
|
|
(0.8 |
) |
|
|
|
|
|
|
(0.4 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(9.3 |
) |
|
|
|
|
|
|
(8.8 |
) |
|
|
5.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss (income) from unconsolidated joint ventures
after impairments |
|
$ |
(9.3 |
) |
|
$ |
1.5 |
|
|
$ |
(9.1 |
) |
|
$ |
5.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Results of Operations: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Homebuilding: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida(2) |
|
$ |
(143.4 |
) |
|
$ |
(14.7 |
) |
|
$ |
(247.5 |
) |
|
$ |
9.1 |
|
Mid-Atlantic |
|
|
(19.9 |
) |
|
|
(42.1 |
) |
|
|
(28.3 |
) |
|
|
(45.7 |
) |
Texas(1) |
|
|
(22.4 |
) |
|
|
14.4 |
|
|
|
(17.3 |
) |
|
|
28.7 |
|
West |
|
|
(142.5 |
) |
|
|
(47.2 |
) |
|
|
(218.4 |
) |
|
|
(76.8 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Homebuilding |
|
|
(328.2 |
) |
|
|
(89.6 |
) |
|
|
(511.5 |
) |
|
|
(84.7 |
) |
Financial Services |
|
|
(3.1 |
) |
|
|
2.3 |
|
|
|
(4.3 |
) |
|
|
5.0 |
|
Corporate and unallocated |
|
|
(28.9 |
) |
|
|
(48.0 |
) |
|
|
(58.6 |
) |
|
|
(146.3 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations before
reorganization items and taxes |
|
$ |
(360.2 |
) |
|
$ |
(135.3 |
) |
|
$ |
(574.4 |
) |
|
$ |
(226.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The Texas region excludes the Dallas division, which is classified as a discontinued operation. |
|
(2) |
|
The results of operations for Transeastern for the three and six months ended June 30, 2008
have been included in our consolidated results.
Results of operations for the three and six months ended June 30, 2007 are included in the results for the
unconsolidated joint ventures.
See Note 4. |
|
(3) |
|
We have excluded the results of the Engle/Sunbelt joint venture from our unconsolidated joint
venture results for the three and six months
ended June 30, 2008 due to the settlement agreement reached in 2008. See Note 5. |
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
December 31, |
|
|
|
2008 |
|
|
2007 |
|
Assets: |
|
|
|
|
|
|
|
|
Homebuilding: |
|
|
|
|
|
|
|
|
Florida |
|
$ |
309.4 |
|
|
$ |
631.3 |
|
Mid-Atlantic |
|
|
50.4 |
|
|
|
73.0 |
|
Texas(1) |
|
|
182.5 |
|
|
|
220.0 |
|
West |
|
|
176.0 |
|
|
|
381.3 |
|
Assets held for sale |
|
|
2.9 |
|
|
|
6.1 |
|
Financial Services |
|
|
25.8 |
|
|
|
36.7 |
|
Corporate and unallocated |
|
|
415.5 |
|
|
|
413.6 |
|
|
|
|
|
|
|
|
Total assets |
|
$ |
1,162.5 |
|
|
$ |
1,762.0 |
|
|
|
|
|
|
|
|
Investments in Unconsolidated Joint Ventures: |
|
|
|
|
|
|
|
|
Mid-Atlantic |
|
$ |
0.1 |
|
|
$ |
0.1 |
|
Texas |
|
|
8.6 |
|
|
|
8.6 |
|
West |
|
|
|
|
|
|
0.3 |
|
|
|
|
|
|
|
|
Total Investments in Unconsolidated Joint Ventures |
|
$ |
8.7 |
|
|
$ |
9.0 |
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The Texas region excludes the Dallas division, which is classified as a discontinued operation. |
30
15. Discontinued Operations
On June 6, 2007, we sold substantially all of our Dallas/Fort Worth division to an unrelated
third-party for $56.5 million and realized a pre-tax loss on disposal of $13.6 million. Certain
communities were not part of the sale. We are actively marketing these communities for sale.
In accordance with SFAS 144, the results of our Dallas/Fort Worth division have been
classified as discontinued operations for all periods presented. Discontinued operations include
Dallas/Fort Worth division revenues and net loss of $0.8 million and $0.6 million, respectively,
for the three months ended June 30, 2008 and $16.1 million and $9.9 million, respectively, for the
three months ended June 30, 2007. Included in the net loss of the Dallas/Fort Worth division for
the three months ended June 30, 2008 and 2007 is $0.3 million and $0.1 million, respectively, of
inventory impairments and abandonment costs. Discontinued operations include Dallas/Fort Worth
division revenues and net loss of $1.0 million and $3.2 million, respectively, for the six months
ended June 30, 2008 and $43.6 million and $13.7 million, respectively, for the six months ended
June 30, 2007. Included in the net loss of the Dallas/Fort Worth division for the six months ended
June 30, 2008 and 2007 is $1.9 million and $2.8 million, respectively, of inventory impairments
and abandonment costs. Additionally, during the six months ended June 30, 2007, we wrote off
$3.1 million of goodwill which is included in loss from discontinued operations for the six months
ended June 30, 2007 related to the sale of our Dallas/Fort Worth division.
Assets held for sale, as shown on the unaudited consolidated statements of financial
condition, consist primarily of $2.9 million and $6.1 million of inventory at June 30, 2008 and
December 31, 2007, respectively.
16. Summarized Financial Information
Our outstanding senior notes and senior subordinated notes are fully and unconditionally
guaranteed, on a joint and several basis, by the Guarantor Subsidiaries, which are all of the
Companys material direct and indirect subsidiaries, other than our mortgage and title operations
subsidiaries (the Non-guarantor Subsidiaries). Each of the Guarantor Subsidiaries is directly or
indirectly 100% owned by the Company. In lieu of providing separate audited financial statements
for the Guarantor Subsidiaries, consolidated condensed financial statements are presented below.
Separate financial statements and other disclosures concerning the Guarantor Subsidiaries are not
presented because management has determined that they are not material to investors. Substantially
all of our subsidiaries are included in the Chapter 11 cases, excluding our financial services
subsidiaries and unconsolidated joint ventures.
31
Consolidated Statement of Financial Condition
June 30, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
|
|
|
TOUSA, |
|
|
Guarantor |
|
|
Guarantor |
|
|
Intercompany |
|
|
|
|
|
|
Inc. |
|
|
Subsidiaries |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Total |
|
|
|
(in millions) |
|
ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
HOMEBUILDING: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
376.3 |
|
|
$ |
1.9 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
378.2 |
|
Inventory |
|
|
|
|
|
|
666.5 |
|
|
|
|
|
|
|
|
|
|
|
666.5 |
|
Property and equipment, net |
|
|
1.8 |
|
|
|
17.2 |
|
|
|
|
|
|
|
|
|
|
|
19.0 |
|
Investments in unconsolidated joint
ventures |
|
|
|
|
|
|
8.7 |
|
|
|
|
|
|
|
|
|
|
|
8.7 |
|
Receivables from unconsolidated joint
ventures, net |
|
|
|
|
|
|
0.1 |
|
|
|
|
|
|
|
|
|
|
|
0.1 |
|
Investments in/ advances to
consolidated subsidiaries |
|
|
445.8 |
|
|
|
(353.0 |
) |
|
|
(7.1 |
) |
|
|
(85.7 |
) |
|
|
|
|
Other assets |
|
|
25.0 |
|
|
|
36.3 |
|
|
|
|
|
|
|
|
|
|
|
61.3 |
|
Assets held for sale |
|
|
|
|
|
|
2.9 |
|
|
|
|
|
|
|
|
|
|
|
2.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
848.9 |
|
|
|
380.6 |
|
|
|
(7.1 |
) |
|
|
(85.7 |
) |
|
|
1,136.7 |
|
FINANCIAL SERVICES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
|
|
|
|
|
|
|
|
|
15.6 |
|
|
|
|
|
|
|
15.6 |
|
Mortgage loans held for sale |
|
|
|
|
|
|
|
|
|
|
6.1 |
|
|
|
|
|
|
|
6.1 |
|
Other assets |
|
|
|
|
|
|
|
|
|
|
4.1 |
|
|
|
|
|
|
|
4.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25.8 |
|
|
|
|
|
|
|
25.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
848.9 |
|
|
$ |
380.6 |
|
|
$ |
18.7 |
|
|
$ |
(85.7 |
) |
|
$ |
1,162.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS EQUITY
(DEFICIT) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
HOMEBUILDING: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable and other liabilities |
|
$ |
23.4 |
|
|
$ |
107.4 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
130.8 |
|
Customer deposits |
|
|
|
|
|
|
21.8 |
|
|
|
|
|
|
|
|
|
|
|
21.8 |
|
Liabilities associated with assets
held for sale |
|
|
|
|
|
|
0.2 |
|
|
|
|
|
|
|
|
|
|
|
0.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23.4 |
|
|
|
129.4 |
|
|
|
|
|
|
|
|
|
|
|
152.8 |
|
FINANCIAL SERVICES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable and other liabilities |
|
|
|
|
|
|
|
|
|
|
4.8 |
|
|
|
(0.1 |
) |
|
|
4.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities not subject to
compromise |
|
|
23.4 |
|
|
|
129.4 |
|
|
|
4.8 |
|
|
|
(0.1 |
) |
|
|
157.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities subject to compromise |
|
|
1,964.2 |
|
|
|
179.6 |
|
|
|
|
|
|
|
|
|
|
|
2,143.8 |
|
Total stockholders equity (deficit) |
|
|
(1,138.7 |
) |
|
|
71.6 |
|
|
|
13.9 |
|
|
|
(85.6 |
) |
|
|
(1,138.8 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders
equity (deficit) |
|
$ |
848.9 |
|
|
$ |
380.6 |
|
|
$ |
18.7 |
|
|
$ |
(85.7 |
) |
|
$ |
1,162.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32
Consolidated Statement of Financial Condition
December 31, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
|
|
|
TOUSA, |
|
|
Guarantor |
|
|
Guarantor |
|
|
Intercompany |
|
|
|
|
|
|
Inc. |
|
|
Subsidiaries |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Total |
|
|
|
(in millions) |
|
ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
HOMEBUILDING: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
81.3 |
|
|
$ |
(9.0 |
) |
|
$ |
|
|
|
$ |
|
|
|
$ |
72.3 |
|
Inventory |
|
|
|
|
|
|
1,271.8 |
|
|
|
|
|
|
|
|
|
|
|
1,271.8 |
|
Property and equipment, net |
|
|
3.3 |
|
|
|
21.3 |
|
|
|
|
|
|
|
|
|
|
|
24.6 |
|
Investments in unconsolidated joint
ventures |
|
|
|
|
|
|
9.0 |
|
|
|
|
|
|
|
|
|
|
|
9.0 |
|
Receivables from unconsolidated joint
ventures, net |
|
|
|
|
|
|
0.3 |
|
|
|
|
|
|
|
|
|
|
|
0.3 |
|
Investments in/ advances to
consolidated subsidiaries |
|
|
989.7 |
|
|
|
(372.5 |
) |
|
|
(5.5 |
) |
|
|
(611.7 |
) |
|
|
|
|
Other assets |
|
|
287.7 |
|
|
|
42.3 |
|
|
|
|
|
|
|
|
|
|
|
330.0 |
|
Goodwill |
|
|
|
|
|
|
11.2 |
|
|
|
|
|
|
|
|
|
|
|
11.2 |
|
Assets held for sale |
|
|
|
|
|
|
6.1 |
|
|
|
|
|
|
|
|
|
|
|
6.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,362.0 |
|
|
|
980.5 |
|
|
|
(5.5 |
) |
|
|
(611.7 |
) |
|
|
1,725.3 |
|
FINANCIAL SERVICES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
|
|
|
|
|
|
|
|
|
14.9 |
|
|
|
|
|
|
|
14.9 |
|
Mortgage loans held for sale |
|
|
|
|
|
|
|
|
|
|
15.0 |
|
|
|
|
|
|
|
15.0 |
|
Other assets |
|
|
|
|
|
|
|
|
|
|
6.8 |
|
|
|
|
|
|
|
6.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
36.7 |
|
|
|
|
|
|
|
36.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
1,362.0 |
|
|
$ |
980.5 |
|
|
$ |
31.2 |
|
|
$ |
(611.7 |
) |
|
$ |
1,762.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS EQUITY
(DEFICIT) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
HOMEBUILDING: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable and other liabilities |
|
$ |
83.7 |
|
|
$ |
318.1 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
401.8 |
|
Customer deposits |
|
|
|
|
|
|
33.9 |
|
|
|
|
|
|
|
|
|
|
|
33.9 |
|
Obligations for inventory not owned |
|
|
|
|
|
|
32.0 |
|
|
|
|
|
|
|
|
|
|
|
32.0 |
|
Notes payable |
|
|
1,585.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,585.3 |
|
Bank borrowings |
|
|
168.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
168.5 |
|
Liabilities associated with assets
held for sale |
|
|
|
|
|
|
0.9 |
|
|
|
|
|
|
|
|
|
|
|
0.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,837.5 |
|
|
|
384.9 |
|
|
|
|
|
|
|
|
|
|
|
2,222.4 |
|
FINANCIAL SERVICES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable and other liabilities |
|
|
|
|
|
|
|
|
|
|
8.0 |
|
|
|
(0.7 |
) |
|
|
7.3 |
|
Bank borrowings |
|
|
|
|
|
|
|
|
|
|
7.8 |
|
|
|
|
|
|
|
7.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15.8 |
|
|
|
(0.7 |
) |
|
|
15.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities not subject to
compromise |
|
|
1,837.5 |
|
|
|
384.9 |
|
|
|
15.8 |
|
|
|
(0.7 |
) |
|
|
2,237.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities subject to compromise |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total stockholders equity (deficit) |
|
|
(475.5 |
) |
|
|
595.6 |
|
|
|
15.4 |
|
|
|
(611.0 |
) |
|
|
(475.5 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders
equity (deficit) |
|
$ |
1,362.0 |
|
|
$ |
980.5 |
|
|
$ |
31.2 |
|
|
$ |
(611.7 |
) |
|
$ |
1,762.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33
Consolidated Statement of Operations
Three Months Ended June 30, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
TOUSA, |
|
Guarantor |
|
Guarantor |
|
Intercompany |
|
|
|
|
Inc. |
|
Subsidiaries |
|
Subsidiaries |
|
Eliminations |
|
Total |
|
|
( in millions) |
HOMEBUILDING: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues |
|
$ |
|
|
|
$ |
294.2 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
294.2 |
|
Cost of sales |
|
|
|
|
|
|
577.6 |
|
|
|
|
|
|
|
|
|
|
|
577.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross loss |
|
|
|
|
|
|
(283.4 |
) |
|
|
|
|
|
|
|
|
|
|
(283.4 |
) |
Selling, general and
administrative expenses |
|
|
13.2 |
|
|
|
43.2 |
|
|
|
|
|
|
|
(0.8 |
) |
|
|
55.6 |
|
Recovery of investments in
and receivables from
unconsolidated joint ventures |
|
|
|
|
|
|
(9.3 |
) |
|
|
|
|
|
|
|
|
|
|
(9.3 |
) |
Goodwill impairment |
|
|
|
|
|
|
11.2 |
|
|
|
|
|
|
|
|
|
|
|
11.2 |
|
Interest expense |
|
|
16.8 |
|
|
|
(0.1 |
) |
|
|
|
|
|
|
|
|
|
|
16.7 |
|
Other expense (income), net |
|
|
330.8 |
|
|
|
8.6 |
|
|
|
|
|
|
|
(339.9 |
) |
|
|
(0.5 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Homebuilding pretax loss |
|
|
(360.8 |
) |
|
|
(337.0 |
) |
|
|
|
|
|
|
340.7 |
|
|
|
(357.1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FINANCIAL SERVICES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues |
|
|
|
|
|
|
|
|
|
|
4.0 |
|
|
|
(0.7 |
) |
|
|
3.3 |
|
Expenses |
|
|
|
|
|
|
|
|
|
|
7.0 |
|
|
|
(0.6 |
) |
|
|
6.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financial Services pretax loss |
|
|
|
|
|
|
|
|
|
|
(3.0 |
) |
|
|
(0.1 |
) |
|
|
(3.1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing
operations before
reorganization items and
taxes |
|
|
(360.8 |
) |
|
|
(337.0 |
) |
|
|
(3.0 |
) |
|
|
340.6 |
|
|
|
(360.2 |
) |
Reorganization items, net |
|
|
18.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18.2 |
|
Benefit for income taxes |
|
|
0.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing
operations, net of taxes |
|
|
(379.7 |
) |
|
|
(337.0 |
) |
|
|
(3.0 |
) |
|
|
340.6 |
|
|
|
(379.1 |
) |
Discontinued operations: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from discontinued
operations |
|
|
|
|
|
|
(0.6 |
) |
|
|
|
|
|
|
|
|
|
|
(0.6 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from discontinued
operations, net of taxes |
|
|
|
|
|
|
(0.6 |
) |
|
|
|
|
|
|
|
|
|
|
(0.6 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
|
(379.7 |
) |
|
|
(337.6 |
) |
|
|
(3.0 |
) |
|
|
340.6 |
|
|
|
(379.7 |
) |
Dividends and accretion of
discount on preferred stock |
|
|
2.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss available to common
stockholders |
|
$ |
(382.2 |
) |
|
$ |
(337.6 |
) |
|
$ |
(3.0 |
) |
|
$ |
340.6 |
|
|
$ |
(382.2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
34
Consolidated Statement of Operations
Six Months Ended June 30, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
TOUSA, |
|
Guarantor |
|
Guarantor |
|
Intercompany |
|
|
|
|
Inc. |
|
Subsidiaries |
|
Subsidiaries |
|
Eliminations |
|
Total |
|
|
( in millions) |
HOMEBUILDING: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues |
|
$ |
|
|
|
$ |
589.5 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
589.5 |
|
Cost of sales |
|
|
|
|
|
|
1,012.8 |
|
|
|
|
|
|
|
|
|
|
|
1,012.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross loss |
|
|
|
|
|
|
(423.3 |
) |
|
|
|
|
|
|
|
|
|
|
(423.3 |
) |
Selling, general and
administrative expenses |
|
|
24.9 |
|
|
|
87.3 |
|
|
|
|
|
|
|
(2.4 |
) |
|
|
109.8 |
|
Income from unconsolidated
joint ventures, net |
|
|
|
|
|
|
(0.3 |
) |
|
|
|
|
|
|
|
|
|
|
(0.3 |
) |
Recovery of investments in
and receivables from
unconsolidated joint ventures |
|
|
|
|
|
|
(8.8 |
) |
|
|
|
|
|
|
|
|
|
|
(8.8 |
) |
Goodwill impairment |
|
|
|
|
|
|
11.2 |
|
|
|
|
|
|
|
|
|
|
|
11.2 |
|
Interest expense |
|
|
36.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
36.8 |
|
Other expense (income), net |
|
|
515.9 |
|
|
|
6.2 |
|
|
|
|
|
|
|
(524.0 |
) |
|
|
(1.9 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Homebuilding pretax loss |
|
|
(577.6 |
) |
|
|
(518.9 |
) |
|
|
|
|
|
|
526.4 |
|
|
|
(570.1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FINANCIAL SERVICES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues |
|
|
|
|
|
|
|
|
|
|
11.4 |
|
|
|
(2.3 |
) |
|
|
9.1 |
|
Expenses |
|
|
|
|
|
|
|
|
|
|
14.8 |
|
|
|
(1.4 |
) |
|
|
13.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financial Services pretax loss |
|
|
|
|
|
|
|
|
|
|
(3.4 |
) |
|
|
(0.9 |
) |
|
|
(4.3 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing
operations before
reorganization items and
taxes |
|
|
(577.6 |
) |
|
|
(518.9 |
) |
|
|
(3.4 |
) |
|
|
525.5 |
|
|
|
(574.4 |
) |
Reorganization items, net |
|
|
86.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
86.7 |
|
Benefit for income taxes |
|
|
0.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing
operations, net of taxes |
|
|
(665.0 |
) |
|
|
(518.9 |
) |
|
|
(3.4 |
) |
|
|
525.5 |
|
|
|
(661.8 |
) |
Discontinued operations: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from discontinued |
|
|
|
|
|
|
(3.2 |
) |
|
|
|
|
|
|
|
|
|
|
(3.2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from discontinued
operations, net of taxes |
|
|
|
|
|
|
(3.2 |
) |
|
|
|
|
|
|
|
|
|
|
(3.2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
|
(665.0 |
) |
|
|
(522.1 |
) |
|
|
(3.4 |
) |
|
|
525.5 |
|
|
|
(665.0 |
) |
Dividends and accretion of
discount on preferred stock |
|
|
5.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss available to common
stockholders |
|
$ |
(670.2 |
) |
|
$ |
(522.1 |
) |
|
$ |
(3.4 |
) |
|
$ |
525.5 |
|
|
$ |
(670.2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
35
Consolidated Statement of Operations
Three Months Ended June 30, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
|
|
|
TOUSA, |
|
|
Guarantor |
|
|
Guarantor |
|
|
Intercompany |
|
|
|
|
|
|
Inc. |
|
|
Subsidiaries |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Total |
|
|
|
(in millions) |
|
HOMEBUILDING: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues |
|
$ |
|
|
|
$ |
565.7 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
565.7 |
|
Cost of sales |
|
|
|
|
|
|
547.9 |
|
|
|
|
|
|
|
|
|
|
|
547.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
|
|
|
|
17.8 |
|
|
|
|
|
|
|
|
|
|
|
17.8 |
|
Selling, general and administrative
expenses |
|
|
18.1 |
|
|
|
71.3 |
|
|
|
|
|
|
|
(4.4 |
) |
|
|
85.0 |
|
Loss from unconsolidated joint
ventures, net |
|
|
|
|
|
|
1.5 |
|
|
|
|
|
|
|
|
|
|
|
1.5 |
|
Provision for settlement of loss
contingency |
|
|
32.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32.0 |
|
Goodwill impairment |
|
|
|
|
|
|
38.2 |
|
|
|
|
|
|
|
|
|
|
|
38.2 |
|
Interest expense |
|
|
|
|
|
|
0.1 |
|
|
|
|
|
|
|
|
|
|
|
0.1 |
|
Other expense (income), net |
|
|
64.0 |
|
|
|
2.0 |
|
|
|
|
|
|
|
(67.4 |
) |
|
|
(1.4 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Homebuilding pretax loss |
|
|
(114.1 |
) |
|
|
(95.3 |
) |
|
|
|
|
|
|
71.8 |
|
|
|
(137.6 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FINANCIAL SERVICES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues |
|
|
|
|
|
|
|
|
|
|
15.4 |
|
|
|
(4.4 |
) |
|
|
11.0 |
|
Expenses |
|
|
|
|
|
|
|
|
|
|
10.7 |
|
|
|
(2.0 |
) |
|
|
8.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financial Services pretax income |
|
|
|
|
|
|
|
|
|
|
4.7 |
|
|
|
(2.4 |
) |
|
|
2.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing
operations before income taxes |
|
|
(114.1 |
) |
|
|
(95.3 |
) |
|
|
4.7 |
|
|
|
69.4 |
|
|
|
(135.3 |
) |
Provision (benefit) for income taxes |
|
|
17.9 |
|
|
|
(33.1 |
) |
|
|
2.0 |
|
|
|
|
|
|
|
(13.2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing
operations |
|
|
(132.0 |
) |
|
|
(62.2 |
) |
|
|
2.7 |
|
|
|
69.4 |
|
|
|
(122.1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Discontinued operations: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from discontinued operations |
|
|
|
|
|
|
(2.0 |
) |
|
|
|
|
|
|
|
|
|
|
(2.0 |
) |
Loss from disposal of
discontinued operations |
|
|
|
|
|
|
(13.6 |
) |
|
|
|
|
|
|
|
|
|
|
(13.6 |
) |
Benefit for income taxes |
|
|
|
|
|
|
(5.7 |
) |
|
|
|
|
|
|
|
|
|
|
(5.7 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from discontinued operations,
net of taxes |
|
|
|
|
|
|
(9.9 |
) |
|
|
|
|
|
|
|
|
|
|
(9.9 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
(132.0 |
) |
|
$ |
(72.1 |
) |
|
$ |
2.7 |
|
|
$ |
69.4 |
|
|
$ |
(132.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
36
Consolidated Statement of Operations
Six Months Ended June 30, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
|
|
|
TOUSA, |
|
|
Guarantor |
|
|
Guarantor |
|
|
Intercompany |
|
|
|
|
|
|
Inc. |
|
|
Subsidiaries |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Total |
|
|
|
( in millions) |
|
HOMEBUILDING: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues |
|
$ |
|
|
|
$ |
1,126.4 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
1,126.4 |
|
Cost of sales |
|
|
|
|
|
|
1,028.7 |
|
|
|
|
|
|
|
|
|
|
|
1,028.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
|
|
|
|
97.7 |
|
|
|
|
|
|
|
|
|
|
|
97.7 |
|
Selling, general and
administrative expenses |
|
|
39.8 |
|
|
|
143.7 |
|
|
|
|
|
|
|
(7.1 |
) |
|
|
176.4 |
|
Income from unconsolidated
joint ventures, net |
|
|
|
|
|
|
(0.4 |
) |
|
|
|
|
|
|
|
|
|
|
(0.4 |
) |
Impairment of investments in
and receivables from
unconsolidated joint ventures |
|
|
|
|
|
|
5.5 |
|
|
|
|
|
|
|
|
|
|
|
5.5 |
|
Provision for settlement of
loss contingency |
|
|
110.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
110.9 |
|
Goodwill impairment |
|
|
|
|
|
|
38.2 |
|
|
|
|
|
|
|
|
|
|
|
38.2 |
|
Interest expense |
|
|
|
|
|
|
0.2 |
|
|
|
|
|
|
|
|
|
|
|
0.2 |
|
Other expense (income), net |
|
|
57.9 |
|
|
|
10.3 |
|
|
|
|
|
|
|
(70.3 |
) |
|
|
(2.1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Homebuilding pretax loss |
|
|
(208.6 |
) |
|
|
(99.8 |
) |
|
|
|
|
|
|
77.4 |
|
|
|
(231.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FINANCIAL SERVICES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues |
|
|
|
|
|
|
|
|
|
|
30.1 |
|
|
|
(7.1 |
) |
|
|
23.0 |
|
Expenses |
|
|
|
|
|
|
|
|
|
|
21.8 |
|
|
|
(3.8 |
) |
|
|
18.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financial Services pretax income |
|
|
|
|
|
|
|
|
|
|
8.3 |
|
|
|
(3.3 |
) |
|
|
5.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing
operations before income taxes |
|
|
(208.6 |
) |
|
|
(99.8 |
) |
|
|
8.3 |
|
|
|
74.1 |
|
|
|
(226.0 |
) |
Provision (benefit) for income
taxes |
|
|
(10.6 |
) |
|
|
(34.7 |
) |
|
|
3.6 |
|
|
|
|
|
|
|
(41.7 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing
operations |
|
|
(198.0 |
) |
|
|
(65.1 |
) |
|
|
4.7 |
|
|
|
74.1 |
|
|
|
(184.3 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Discontinued operations: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from discontinued
operations |
|
|
|
|
|
|
(7.9 |
) |
|
|
|
|
|
|
|
|
|
|
(7.9 |
) |
Loss from disposal of
discontinued operations |
|
|
|
|
|
|
(13.6 |
) |
|
|
|
|
|
|
|
|
|
|
(13.6 |
) |
Benefit for income taxes |
|
|
|
|
|
|
(7.8 |
) |
|
|
|
|
|
|
|
|
|
|
(7.8 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from discontinued
operations, net of taxes |
|
|
|
|
|
|
(13.7 |
) |
|
|
|
|
|
|
|
|
|
|
(13.7 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
(198.0 |
) |
|
$ |
(78.8 |
) |
|
$ |
4.7 |
|
|
$ |
74.1 |
|
|
$ |
(198.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
37
Consolidated Statement of Cash Flows
Six Months Ended June 30, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
|
|
|
TOUSA, |
|
|
Guarantor |
|
|
Guarantor |
|
|
Intercompany |
|
|
|
|
|
|
Inc. |
|
|
Subsidiaries |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Total |
|
|
|
( in millions) |
|
Net cash provided
by (used in)
operating
activities |
|
$ |
(454.7 |
) |
|
$ |
29.7 |
|
|
$ |
8.2 |
|
|
$ |
526.0 |
|
|
$ |
109.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from
investing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net additions to
property and
equipment |
|
|
0.5 |
|
|
|
(0.9 |
) |
|
|
|
|
|
|
|
|
|
|
(0.4 |
) |
Investments in
unconsolidated
joint ventures |
|
|
|
|
|
|
(1.6 |
) |
|
|
|
|
|
|
|
|
|
|
(1.6 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in
investing
activities |
|
|
0.5 |
|
|
|
(2.5 |
) |
|
|
|
|
|
|
|
|
|
|
(2.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from
financing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net borrowings from
revolving credit
facilities |
|
|
31.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31.5 |
|
Net repayments of
from Financial
Services bank
borrowings |
|
|
|
|
|
|
|
|
|
|
(7.8 |
) |
|
|
|
|
|
|
(7.8 |
) |
Payments for
deferred financing
costs |
|
|
(2.9 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2.9 |
) |
Increase (decrease)
in intercompany
transactions |
|
|
543.9 |
|
|
|
(19.5 |
) |
|
|
1.6 |
|
|
|
(526.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided
by (used in)
financing
activities |
|
|
572.5 |
|
|
|
(19.5 |
) |
|
|
(6.2 |
) |
|
|
(526.0 |
) |
|
|
20.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided
by continuing
operations |
|
|
118.3 |
|
|
|
7.7 |
|
|
|
2.0 |
|
|
|
|
|
|
|
128.0 |
|
Net cash used in
discontinued
operations |
|
|
|
|
|
|
(0.8 |
) |
|
|
|
|
|
|
|
|
|
|
(0.8 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase in cash
and cash
equivalents |
|
|
118.3 |
|
|
|
6.9 |
|
|
|
2.0 |
|
|
|
|
|
|
|
127.2 |
|
Cash and cash
equivalents at
beginning of period |
|
|
79.1 |
|
|
|
(11.9 |
) |
|
|
9.3 |
|
|
|
|
|
|
|
76.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash
equivalents at end
of period |
|
$ |
197.4 |
|
|
$ |
(5.0 |
) |
|
$ |
11.3 |
|
|
$ |
|
|
|
$ |
203.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
38
Consolidated Statement of Cash Flows
Six Months Ended June 30, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
|
|
|
TOUSA, |
|
|
Guarantor |
|
|
Guarantor |
|
|
Intercompany |
|
|
|
|
|
|
Inc. |
|
|
Subsidiaries |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Total |
|
|
|
(in millions) |
|
Net cash provided
by (used in)
operating
activities |
|
$ |
(159.7 |
) |
|
$ |
(9.3 |
) |
|
$ |
11.7 |
|
|
$ |
74.1 |
|
|
$ |
(83.2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from
investing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net additions to
property and
equipment |
|
|
(0.8 |
) |
|
|
(6.1 |
) |
|
|
(0.6 |
) |
|
|
|
|
|
|
(7.5 |
) |
Investments in
unconsolidated
joint ventures |
|
|
|
|
|
|
(21.1 |
) |
|
|
|
|
|
|
|
|
|
|
(21.1 |
) |
Capital
distributions from
unconsolidated
joint ventures |
|
|
|
|
|
|
9.7 |
|
|
|
|
|
|
|
|
|
|
|
9.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in
investing
activities |
|
|
(0.8 |
) |
|
|
(17.5 |
) |
|
|
(0.6 |
) |
|
|
|
|
|
|
(18.9 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from
financing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net borrowings from
revolving credit
facilities |
|
|
50.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50.0 |
|
Net repayments of
Financial Services
bank borrowings |
|
|
|
|
|
|
|
|
|
|
(6.8 |
) |
|
|
|
|
|
|
(6.8 |
) |
Payments for
deferred financing
costs |
|
|
(11.2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(11.2 |
) |
Increase (decrease)
in intercompany
transactions |
|
|
88.1 |
|
|
|
(9.9 |
) |
|
|
(4.1 |
) |
|
|
(74.1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided
by (used in)
financing
activities |
|
|
126.9 |
|
|
|
(9.9 |
) |
|
|
(10.9 |
) |
|
|
(74.1 |
) |
|
|
32.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided
by (used in)
continuing
operations |
|
|
(33.6 |
) |
|
|
(36.7 |
) |
|
|
0.2 |
|
|
|
|
|
|
|
(70.1 |
) |
Net cash provided
by discontinued
operations |
|
|
|
|
|
|
43.8 |
|
|
|
|
|
|
|
|
|
|
|
43.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase (decrease)
in cash and cash
equivalents |
|
|
(33.6 |
) |
|
|
7.1 |
|
|
|
0.2 |
|
|
|
|
|
|
|
(26.3 |
) |
Cash and cash
equivalents at
beginning of period |
|
|
50.6 |
|
|
|
(3.2 |
) |
|
|
6.8 |
|
|
|
|
|
|
|
54.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash
equivalents at end
of period |
|
$ |
17.0 |
|
|
$ |
3.9 |
|
|
$ |
7.0 |
|
|
$ |
|
|
|
$ |
27.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39
ITEM 2. MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of our financial condition and results of operations
should be read in conjunction with the unaudited consolidated financial statements and related
notes included elsewhere in this report.
As used in this Form 10-Q, consolidated information refers only to information relating to
our continuing operations which are consolidated in our financial statements and exclude the
results of our Dallas/Fort Worth division which we have classified as a discontinued operation; and
combined information includes consolidated information and information relating to our
unconsolidated joint ventures. Unless otherwise noted, the information contained herein is shown on
a consolidated basis. Our unaudited consolidated financial statements are presented on a going
concern basis, which contemplates the realization of assets and satisfaction of liabilities in the
normal course of business. Due to our Chapter 11 cases, there is substantial doubt about our
ability to continue as a going concern and there is uncertainty about the realization of assets and
satisfaction of liabilities, without material adjustments and/or changes in ownership.
Explanatory Note
In some instances we have attempted to provide information as of a date more current than June
30, 2008. The housing market has continued to deteriorate significantly since June 30, 2008 and we
have not yet completed the analyses and processes required for the preparation of our quarterly
report on Form 10-Q for the period ended September 30, 2008. Therefore, the information contained
herein does not include reserves or provisions for any period after the period ended June 30, 2008.
As a result of the continued homebuilding and overall macroeconomic market deterioration and the
impact of our Chapter 11 filing on our operations, it is likely that we will have material
impairments, losses and provisions upon completion of the analyses and processes in connection with
the preparation of future reports.
Executive Summary
We generate revenues from our homebuilding operations (Homebuilding) and financial services
operations (Financial Services), which comprise our two principal business segments. Through our
Homebuilding operations we design, build and market high-quality detached single-family residences,
town homes and condominiums in various metropolitan markets in nine states located in four major
geographic regions, which are also our reportable segments: Florida, the Mid-Atlantic, Texas and
the West.
|
|
|
|
|
|
|
Florida |
|
Mid-Atlantic |
|
Texas |
|
West |
Central Florida
|
|
Baltimore/Southern Pennsylvania
|
|
Austin
|
|
Colorado |
Jacksonville
|
|
Nashville
|
|
Houston
|
|
Las Vegas |
Southeast Florida
|
|
Northern Virginia
|
|
San Antonio
|
|
Phoenix |
Southwest Florida |
|
|
|
|
|
|
Tampa/St. Petersburg |
|
|
|
|
|
|
We conduct our Homebuilding operations through our consolidated subsidiaries and through
various unconsolidated joint ventures that also build and market homes.
Since 2006, the homebuilding industry has experienced a significant and sustained decrease in
demand for new homes, an oversupply of new and existing homes available for sale and a more
restrictive mortgage lending environment. Although we operate in a number of markets, approximately
53% of our operations are concentrated in Florida and the West, based on 2007 deliveries, which
suffered particularly severe downturns in home buying activity. The weakness in the housing
market has accelerated during 2008 as a result of increased foreclosures, fewer home sales,
increased buyer difficulty in obtaining financing, lack of consumer confidence, inability to sell
existing homes that would enable prospective buyers to purchase new homes, greater cancellations of
home purchase agreements by buyers, higher inventories of unsold homes and the increased use by
homebuilders, speculators, investors and others of discounts, incentives, price concessions, broker
commissions and advertising to close home sales compared to the past several years. The
deterioration in the homebuilding industry has been negatively impacted by significant disruptions
in the broader financial markets and severe constraints in the credit markets. Further
deterioration in the homebuilding industry is expected for the foreseeable future and may have a
material adverse effect on our business, financial condition and results of operations.
Reflecting these trends, we, like many other homebuilders, experienced severe liquidity
challenges in the credit and mortgage markets, diminished consumer confidence, increased home
inventories and foreclosures and downward pressure on home prices. Potential buyers have exhibited
both a reduction in confidence as to the economy in general and a willingness to delay purchase
decisions based on a perception that prices will continue to decline. Prospective homebuyers
continue to be concerned about interest rates and the inability to sell their current homes or to
obtain appraisals at sufficient amounts to secure mortgage financing as a result of the recent
disruption in the mortgage markets and the tightening of credit standards. Our Chapter 11 filings
were a further factor contributing to decreased performance.
As a result of deteriorating market conditions and liquidity constraints, we did not exercise
certain homesite option and land bank contracts and reviewed our inventories, goodwill, investments
in joint ventures and other assets for possible impairment charges. We recognized charges in
continuing operations totaling $306.6 million and $155.0 million for three months ended June 30,
2008 and 2007, respectively, and $479.4 million and $278.5 million for six months ended June 30,
2008 and 2007, respectively related to inventory impairments, abandonment costs, joint venture
impairments and the settlement of a loss contingency.
40
For the three and six months ended June 30, 2008, we reported a loss from continuing
operations, net of taxes, of $379.1 million and
$661.8 million compared to $122.1 million and $184.3 million for the three and six months
ended June 30, 2007. Home deliveries from continuing operations decreased 38% and 37%, Homebuilding
revenues decreased 48%, and net sales orders from continuing operations decreased 78% and 59% for
the three and six months ended June 30, 2008 as compared to the
three and six months ended June 30, 2007. During the three and six months ended June 30, 2008, our unconsolidated joint ventures
had a decrease in deliveries and net sales orders of 100% as compared to the three and six months
ended June 30, 2007 due to the consolidation of the results of our Transeastern joint venture,
previously included in our unconsolidated joint venture results, into our Florida operations for
the three and six months ended June 30, 2008. Additionally, we have excluded the results of the
Engle/Sunbelt joint venture from our unconsolidated joint venture results for the three and six
months ended June 30, 2008 due to the settlement agreement reached with respect to the joint
venture and the expectation that the joint venture will not provide a contribution to our future
results. During the three and six months ended June 30, 2008, we also recognized $18.2 million and
$86.7 million of reorganization expenses related to our
bankruptcy cases.
Recent Developments
Chapter 11 Cases
On January 29, 2008, TOUSA, Inc. and certain of our subsidiaries (excluding our financial
services subsidiaries and joint ventures) filed voluntary petitions for relief under Chapter 11 of
Title 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the
Southern District of Florida, Fort Lauderdale Division. The Chapter 11 cases have been consolidated
solely for procedural purposes and are pending as Case No. 08-10928-JKO.
We continue to operate our businesses and manage our properties as debtors-in-possession under
the jurisdiction of the Bankruptcy Court and in accordance with the applicable provisions of the
Bankruptcy Code and orders of the Bankruptcy Court. At the onset of the Chapter 11 cases, we
obtained Bankruptcy Court approval to, among other things, continue to pay certain critical vendors
and vendors with lien rights, meet our pre-petition payroll obligations, maintain our cash
management systems, sell homes free and clear of liens, pay our taxes, continue to provide employee
benefits and maintain our insurance programs. In addition, the Bankruptcy Court has approved
certain trading notification and transfer procedures designed to allow us to restrict trading in
our common stock (and related securities) and has also provided for potentially retroactive
application of notice and sell-down procedures for trading in claims against the debtors estates
(in the event that such procedures are approved in the future), which could negatively impact our
accumulated net operating losses and other tax attributes. The Bankruptcy Court has also entered
orders to establish procedures for the purchase and disposition of real property by us subject to
certain monetary limits without specific approval for each transaction.
On February 5, 2008, pursuant to an interim order from the Bankruptcy Court dated January 31,
2008, we entered into a Senior Secured Super-Priority Debtor in Possession Credit and Security
Agreement. The agreement provided for a first priority and priming secured revolving credit interim
commitment of up to $134.6 million. The agreement was subsequently amended to extend it to June 19,
2008. No funds were drawn under the agreement.
The agreement was subsequently terminated and we entered into an agreement with our
prepetition secured lenders to use cash collateral on hand (cash generated by our operations,
including the sale of excess inventory and the proceeds of our federal tax refund of $207.3 million
received in April 2008). We are authorized by the Bankruptcy Court to use cash collateral of our
first lien and second lien lenders in a manner consistent with a budget negotiated by the parties.
The order further provided for the pay-down of $175.0 million to our first lien term secured
lenders, subject to disgorgement provisions in the event that certain claims against the lenders
are successful and repayment is required. We also have the right to pay-down an additional $15.0
million to our first lien secured lenders. As of March 6, 2009, we had paid-down approximately
$143.0 million to the first lien secured lenders. We may incur liens and enter into sale/leaseback
transactions for model homes subject to certain limitations. We have granted the pre-petition
agents and the lenders various forms of protection, including liens and claims to protect against
any diminution of the collateral value, payment of accrued, but unpaid interest on the first
priority indebtedness at the non-default rate and the payment of reasonable fees and expenses of
the agents under our secured facilities.
We and the first lien lenders reached an agreement to extend the use of cash collateral until
April 30, 2009 on terms substantially similar to those in the original cash collateral order. The
new cash collateral order was approved by the Bankruptcy Court on January 28, 2009. If we fail to
comply with the order, we will not have sufficient cash to enable us to operate our business and
effectuate our restructuring.
The Bankruptcy Court established May 19, 2008 as the bar date for filing proofs of claim
against the Debtors relating to obligations arising before January 29, 2008. As of February 25,
2009, approximately 4,400 claims have been filed against us totaling approximately $7.3 billion in
asserted liabilities. These claims are comprised of approximately $5.0 million in administrative
claims, $219.0 million in secured claims, $75.0 million in priority claims and $7.0 billion in
unsecured claims. There are many claims (at least 700) that have been asserted in unliquidated
amounts or that contain an unliquidated component. Notably, among the unliquidated claims are the
claims of our secured first and second lien lenders. In addition, the indenture trustees under our
approximately $1.1 billion of unsecured debentures each filed an unliquidated claim with respect to
such obligations.
On October 13, 2008, we filed with the Bankruptcy Court the (a) Joint Plan of TOUSA, Inc. and
its Affiliated Debtors and Debtors in Possession under Chapter 11 of the Bankruptcy Code (as
modified or revised, the Plan) and (b) Disclosure Statement pursuant to Section 1125 of the
Bankruptcy Code relating to the Plan (as modified or revised, the Disclosure Statement). On
October 24, 2008 and November 12, 2008, the Debtors filed revised versions of the Plan and
Disclosure Statement (including projected financial information) with the Bankruptcy Court. Copies
of the Plan and Disclosure Statement, as filed with the Bankruptcy Court, are available at
http://www.tousa.com/reorg. We have the exclusive right to solicit acceptance thereof until April
30, 2009. Pursuant to Section 1121 of the Bankruptcy Code, the exclusivity periods may be expanded
or reduced by the Bankruptcy Court, but in no event can the exclusivity periods to file and solicit
acceptance of a plan or plans of reorganization be extended beyond June 29, 2009.
41
As a result of our Chapter 11 cases and other matters described herein, including
uncertainties related to the fact that our filed plan of reorganization has not been confirmed,
there is substantial doubt about our ability to continue as a going concern. Our ability to
continue as a going concern, including our ability to meet our ongoing operational obligations, is
dependent upon, among other things:
|
|
|
our ability to generate and maintain adequate cash; |
|
|
|
|
the cost, duration and outcome of the restructuring process; |
|
|
|
|
our ability to comply with the terms of our cash collateral order and
seek and receive extensions of our ability to use cash collateral; and |
|
|
|
|
our ability to retain key employees. |
These challenges are in addition to those operational and competitive challenges that we face
in connection with our business. In conjunction with our advisors, we are implementing strategies
to aid our liquidity and our ability to continue as a going concern. However, such efforts may not
be successful.
We have taken and will continue to take actions to maximize cash receipts and minimize cash
expenditures with the understanding that certain of these actions may make us less able to take
advantage of future improvements in the homebuilding market. We continue to take steps to reduce
our general and administrative expenses by streamlining activities and increasing efficiencies,
which have led and will continue to lead to major reductions in the workforce. However, much of our
efforts to reduce general and administrative expenses are being offset by professional and
consulting fees associated with our Chapter 11 cases. In addition, we are working with our existing
suppliers and seeking new suppliers, through competitive bid processes, to reduce construction
material and labor costs. We have and will continue to analyze each community based on anticipated
sales absorption rates, net cash flows and financial returns taking into consideration current
market factors in the homebuilding industry such as the oversupply of homes available for sale in
most of our markets, less demand, decreased consumer confidence, tighter mortgage loan underwriting
criteria and higher foreclosures. Subject to, in certain situations, receiving approvals from the
Bankruptcy Court, we have taken and will continue to take the following actions:
|
|
|
limiting new arrangements to acquire land (by submitting proposals to increased review); |
|
|
|
|
engaging in bulk sales of land and unsold homes; |
|
|
|
|
reducing the number of unsold homes under construction and limiting and/or curtailing
development activities in any development where we do not expect to deliver homes in
the near future or where development is necessary to retain entitlements or sell land; |
|
|
|
|
renegotiating terms or abandoning our rights under option and land bank contracts; |
|
|
|
|
considering other asset dispositions including the possible sale and/or wind down
of underperforming assets, communities, divisions and joint venture interests and; |
|
|
|
|
pursuing other initiatives designed to monetize our assets. |
The foregoing discussion provides general background information regarding our Chapter 11
cases, and is not intended to be an exhaustive description. Additional information regarding our
Chapter 11 cases, including access to court documents and other general information about the
Chapter 11 cases, is available at www.kccllc.net/tousa. Financial information on the website is
prepared according to requirements of federal bankruptcy law and the Bankruptcy Court. While such
financial information accurately reflects information required under federal bankruptcy law, such
information may be unconsolidated, unaudited and prepared in a format different than that used in
our unaudited consolidated financial statements prepared in accordance with generally accepted
accounting principles in the United States and filed under the securities laws. Moreover, the
materials filed with the Bankruptcy Court are not prepared for the purpose of providing a basis for
investment decisions relating to our stock or debt or for comparison with other financial
information filed with the Securities and Exchange Commission.
Mortgage Joint Venture
On January 28, 2008, Preferred Home Mortgage Company, our wholly-owned residential mortgage
lending subsidiary, entered into an Amended and Restated Agreement of Limited Liability Company
with Wells Fargo Ventures, LLC. The limited liability company is known as PHMCWF, LLC but does
business as Preferred Home Mortgage Company, an affiliate of Wells Fargo. Preferred Home Mortgage
Company owns 49.9% of the venture with the balance owned by Wells Fargo. Effective April 1, 2008,
the venture began to carry on the mortgage business of Preferred Home Mortgage Company. The venture
is managed by a committee composed of six members, three from Preferred Home Mortgage Company and
three from Wells Fargo. The venture entered into a revolving credit agreement with Wells Fargo
Bank, N.A. providing for advances of up to $20.0 million. Wells Fargo Home Mortgage provides the
general and administrative support (as well as all loan related processing, underwriting and
closing functions), and is the end investor for the majority of the loans closed through the joint
venture. Prior to the joint venture, Preferred Home Mortgage Company had a centralized operations
center that provided those support functions. The majority of these support functions ceased in
June 2008. Effective April 1, 2008, we began to account for the venture as an equity-method
investment.
42
'
NYSE Delisting
Effective November 19, 2007, NYSE Regulation, Inc. suspended our common stock and debt
securities from trading on the NYSE.
We appealed the suspension. Following our suspension from the NYSE, we began trading on the
Pink Sheet Electronic Quotation Service. On February 15, 2008, the NYSE denied our appeal and
affirmed the decision to suspend trading in our common stock and debt securities. On March 3, 2008,
the NYSE filed Forms 25, Notification of Removal of Listing and/or Registration under Section 12(b)
of the Securities Exchange Act of 1934, with the SEC of its intention to remove our common stock,
9% Senior Notes due July 1, 2010, 9% Senior Notes due July 1, 2010, 7 1 / 2 % Senior Subordinated
Notes due March 15, 2011, 7 1 / 2 % Senior Subordinated Notes due January 15, 2015 and the 10 3 / 8
% Senior Subordinated Notes due July 1, 2012 at the opening of business May 13, 2008. Our common
stock and debt securities were delisted on that date.
Sale of Dallas/Fort Worth Operations
On June 6, 2007, we sold substantially all of our Dallas/Fort Worth division to an unrelated
third party for $56.5 million and realized a pre-tax loss on disposal of $13.6 million. Results of
our Dallas/Fort Worth operations have been classified as a discontinued operation and prior periods
have been restated, accordingly.
Informal Inquiry
In the Matter of TOUSA, Inc. SEC Inquiry, File No. FL-3310. In June of 2007, we were contacted
by the Miami Regional Office of the SEC requesting the voluntary provision of documents, and other
information from us, relating primarily to corporate and financial information and communications
related to the Transeastern JV. The SEC has advised us that this inquiry should not be construed as
an indication that any violations of law have occurred, nor should it be considered a reflection
upon any person, entity or security. We have cooperated with the inquiry and have not received any
further requests in a number of months.
Total Controlled Homesites by our Homebuilding Operations (Including Joint Ventures)
The following is a summary of our controlled homesites:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2008 |
|
|
December 31, 2007 |
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
Owned |
|
|
Optioned |
|
|
Controlled |
|
|
Owned |
|
|
Optioned |
|
|
Controlled |
|
Region: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida |
|
|
7,900 |
|
|
|
|
|
|
|
7,900 |
|
|
|
8,600 |
|
|
|
600 |
|
|
|
9,200 |
|
Mid-Atlantic |
|
|
400 |
|
|
|
300 |
|
|
|
700 |
|
|
|
400 |
|
|
|
800 |
|
|
|
1,200 |
|
Texas(1) |
|
|
2,000 |
|
|
|
3,200 |
|
|
|
5,200 |
|
|
|
2,500 |
|
|
|
4,000 |
|
|
|
6,500 |
|
West |
|
|
9,500 |
|
|
|
200 |
|
|
|
9,700 |
|
|
|
9,900 |
|
|
|
5,400 |
|
|
|
15,300 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
|
19,800 |
|
|
|
3,700 |
|
|
|
23,500 |
|
|
|
21,400 |
|
|
|
10,800 |
|
|
|
32,200 |
|
Discontinued operations(1) |
|
|
100 |
|
|
|
|
|
|
|
100 |
|
|
|
100 |
|
|
|
100 |
|
|
|
200 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total consolidated homesites |
|
|
19,900 |
|
|
|
3,700 |
|
|
|
23,600 |
|
|
|
21,500 |
|
|
|
10,900 |
|
|
|
32,400 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The Texas region excludes the Dallas/Fort Worth division, which is classified as a discontinued operation. |
The following is a summary breakdown of our owned homesites:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Residences Completed or |
|
|
Homesites Finished or |
|
|
Raw Land Held for |
|
|
|
|
|
|
Under Construction |
|
|
Under Construction |
|
|
Future Development |
|
|
Total |
|
|
|
6/30/08 |
|
|
12/31/07 |
|
|
6/30/08 |
|
|
12/31/07 |
|
|
6/30/08 |
|
|
12/31/07 |
|
|
6/30/08 |
|
|
12/31/07 |
|
Region |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida |
|
|
900 |
|
|
|
1,400 |
|
|
|
6,400 |
|
|
|
6,600 |
|
|
|
600 |
|
|
|
600 |
|
|
|
7,900 |
|
|
|
8,600 |
|
Mid-Atlantic |
|
|
100 |
|
|
|
100 |
|
|
|
300 |
|
|
|
300 |
|
|
|
|
|
|
|
|
|
|
|
400 |
|
|
|
400 |
|
Texas(1) |
|
|
600 |
|
|
|
700 |
|
|
|
1,000 |
|
|
|
1,400 |
|
|
|
400 |
|
|
|
400 |
|
|
|
2,000 |
|
|
|
2,500 |
|
West |
|
|
500 |
|
|
|
700 |
|
|
|
2,300 |
|
|
|
2,500 |
|
|
|
6,700 |
|
|
|
6,700 |
|
|
|
9,500 |
|
|
|
9,900 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
|
2,100 |
|
|
|
2,900 |
|
|
|
10,000 |
|
|
|
10,800 |
|
|
|
7,700 |
|
|
|
7,700 |
|
|
|
19,800 |
|
|
|
21,400 |
|
Discontinued
operations(1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100 |
|
|
|
100 |
|
|
|
100 |
|
|
|
100 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated total |
|
|
2,100 |
|
|
|
2,900 |
|
|
|
10,000 |
|
|
|
10,800 |
|
|
|
7,800 |
|
|
|
7,800 |
|
|
|
19,900 |
|
|
|
21,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The Texas region excludes the Dallas/Fort Worth division, which is classified as a discontinued operation. |
We use option contracts in addition to land joint ventures in order to acquire land whenever
feasible. Option contracts allow us to control large homesite positions with reduced capital
investment.
From time to time, we transfer title to certain parcels of land to unrelated third parties or
enter into agreements pursuant to which third parties purchase land which we have the contractual
right to acquire. We then enter into options with the purchasers to acquire fully developed
homesites. As we have continuing involvement in these properties, in accordance with SFAS 66, we
have accounted for these
43
transactions as financing arrangements. At June 30, 2008 and December 31, 2007, $8.3 million
(net of $2.1 million in impairments) and $9.8 million (net of $6.0 million in impairments),
respectively, of inventory not owned and $10.4 million and $15.8 million, respectively, of
obligations for inventory not owned relate to sales where we have continuing involvement.
Controlled homesites represent homesites either owned or under option by our consolidated
subsidiaries. We do not include
as controlled homesites those homesites which are included in land development joint ventures where
we do not intend to build homes. These joint ventures acquire and develop land to be sold to us for
use in our homebuilding operations or sold to others. See additional discussion regarding
our joint ventures located in Liquidity and Capital Resources section.
Due to worsening market conditions impacting the new home industry, we have applied
increasingly conservative standards to our land retention and option exercise decisions. We have
analyzed each of our communities to determine if they are aligned with our immediate and mid term
goals which are focused on our ability to monetize assets within a relatively short period of time.
As part of the analysis, we have reviewed our construction processes including our bid procedures,
bid templates and engineering designs in an attempt to reduce costs from home construction.
Preacquisition costs, development costs and the number of home starts and speculative homes have
also been reduced in light of the new challenges facing the market.
At June 30, 2008, the number of homesites controlled by our consolidated continuing operations
has decreased by 8,700 or 27%, as compared to December 31, 2007. Due to our liquidity constraints,
during the three and six months ended June 30, 2008, we did not exercise certain option contracts
which resulted in a reduction of approximately 1,500 and 6,300 optioned homesites, respectively.
Homebuilding Operations
For the three and six months ended June 30, 2008 total consolidated home deliveries from
continuing operations decreased 38% and 37%, respectively, consolidated Homebuilding revenues
decreased 48%, and consolidated net sales orders from continuing operations decreased 78% and 59%,
respectively, as compared to the three and six months ended June 30, 2007. We had a net loss from
continuing operations of $379.1 million and $661.8 million for the three and six months ended June
30, 2008, respectively, as compared to a net loss from continuing operations of $122.1 million and
$184.3 million for the three and six months ended June 30, 2007, respectively.
During the three and six months ended June 30, 2008, our unconsolidated joint ventures had a
decrease in deliveries and net sales orders of 100% as compared to the three and six months ended
June 30, 2007 due to the consolidation of the results of our Transeastern joint venture, previously
included in our unconsolidated joint venture results, into our Florida operations for the three and
six months ended June 30, 2008. Additionally, we have excluded the results of the Engle/Sunbelt
joint venture from our unconsolidated joint venture results for the three and six months ended June
30, 2008 due to the settlement agreement reached with respect to the joint venture and the
expectation that the joint venture will not provide a contribution to our future results. During
the three and six months ended June 30, 2008, we also recognized $18.2 million and $86.7 million,
respectively, of reorganization expenses related to our bankruptcy
cases.
Compared to June 30, 2007, consolidated sales value in backlog from continuing operations at
June 30, 2008 decreased 63% to $479.3 million. Our sales orders cancellation rate was 73% and 52%
for the three and six months ended June 30, 2008, respectively, as compared to 32% and 30% for
three and six months ended June 30, 2007, respectively. Cancellation rates continue to be affected
by worsening market conditions.
We build homes for inventory (speculative homes) and on a pre-sold basis. At June 30, 2008, we
had 2,100 homes completed or under construction compared to 2,900 homes at December 31, 2007.
Approximately 39% of these homes were unsold at June 30, 2008, a decrease from 45% at December 31,
2007. At June 30, 2008, we had 284 completed unsold homes in our inventory, down 47% from 532
homes at December 31, 2007. Approximately 47% of our completed, unsold homes at June 30, 2008 had
been completed for more than 90 days. We are focusing our efforts on diligently managing the number
and geographic allocation of our speculative homes, addressing our inventory levels and timing our
construction starts, together with other actions, to strengthen our
statement of financial condition.
Once a sales contract with a buyer has been approved, we classify the transaction as a new
sales order and include the home in backlog. Such sales orders are usually subject to certain
contingencies such as the buyers ability to qualify for financing and ability to sell their
existing home. At closing, title passes to the buyer and a home is considered to be delivered and
is removed from backlog. Revenues, which are net of buyer incentives and cost of sales, are
recognized upon the delivery of the home, land or homesite when title is transferred to the buyer.
We estimate that the average period between the execution of a sales contract for a home and
closing is approximately four months to over a year for pre-sold homes; however, this varies by
market. The principal expenses of our Homebuilding operations are cost of sales and selling,
general and administrative (SG&A) expenses. Costs of home sales include land and land development
costs, home construction costs, previously capitalized indirect costs, capitalized interest and
estimated warranty costs.
SG&A expenses for our Homebuilding operations include administrative costs, advertising
expenses, on-site marketing expenses, sales commission costs and closing costs. Sales commissions
are included in selling, general and administrative costs when the related revenue is recognized.
As used herein, Homebuilding includes results of home and land sales. Home sales includes
results related only to the sale of homes.
Financial Services Operations
On January 28, 2008, Preferred Home Mortgage Company, our wholly-owned residential mortgage
lending subsidiary, entered into an Amended and Restated Agreement of Limited Liability Company
with Wells Fargo Ventures, LLC. The limited liability company is known as PHMCWF, LLC but does
business as Preferred Home Mortgage Company, an affiliate of Wells Fargo. Preferred Home
44
Mortgage Company owns 49.9% of the venture with the balance owned by Wells Fargo. Effective
April 1, 2008, the venture began to carry on the mortgage business of Preferred Home Mortgage
Company. The venture is managed by a committee composed of six members, three from Preferred Home
Mortgage Company and three from Wells Fargo. The venture entered into a revolving credit agreement
with Wells Fargo Bank, N.A. providing for advances of up to $20.0 million. Wells Fargo Home
Mortgage provides the general and administrative support (as well as all loan related processing,
underwriting and closing functions), and is the end investor for the majority of the loans closed
through the joint venture. Prior to the joint venture, Preferred Home Mortgage Company had a
centralized operations center that provided those support functions. The majority of these support
functions ceased in June 2008. Effective April 1, 2008, we began to account for the venture as an
equity-method investment.
During the six months ended June 30, 2008, approximately 1% to 2% of the homebuyers, including
those in our unconsolidated joint ventures, that utilized our mortgage subsidiary and mortgage
joint venture obtained sub-prime loans. We define a sub-prime loan as one where the buyers FICO
score is below 620 and is not an FHA or VA loan. At June 30, 2008, none of our backlog that
utilized our mortgage joint venture included homebuyers seeking sub-prime financing. Since 2007,
the mortgage markets have experienced a significant disruption, which commenced with increasing
rates of default on sub-prime loans and declines in the market value of those loans. These events
led to an unprecedented combination of reduced investor demand for mortgage loans and
mortgage-backed securities, tighter credit underwriting standards, reduced mortgage loan liquidity
and increased credit risk premiums, all of which affected the availability of nonconforming
mortgage products. The tightening of credit standards in the sub-prime market had an impact on the
Alt-A and prime loans and further negatively impacted current homebuilding market conditions.
Critical Accounting Policies
There have been no material changes to our critical accounting policies and estimates from the
information provided in Item 7. Managements Discussion and Analysis of Financial Condition and
Results of Operations Critical Accounting Policies and Estimates included in our 2007 Form 10-K
except as follows.
Impairment of Long-Lived Assets
Housing communities and land/homesites under development are stated at the lower of cost or
net realizable value. Property and equipment is carried at cost less accumulated depreciation. We
assess these assets for impairment in accordance with the provisions of SFAS No. 144, Accounting
for the Impairment or Disposal of Long-Lived Assets. SFAS 144 requires that long-lived assets be
reviewed for impairment whenever events or changes in circumstances indicate that the carrying
amount of an asset may not be recoverable.
We review inventories for impairment on a community by community basis. Recoverability of
assets is measured by comparing the carrying amount of an asset to future undiscounted net cash
flows expected to be generated by the asset. If the sum of the expected undiscounted future cash
flows is less than the carrying amount of the assets, an impairment loss is recognized. Our
evaluation for impairment is impacted by margins on homes that have been delivered, margins in
sales contracts in backlog, projected margins with regard to future home sales over the life of the
community, projected margins with regard to future land sales, and the fair value of the land
itself. We pay particular attention to trends that indicate a downward market such as slow-moving
inventories and lower sales prices.
If the undiscounted cash flows are less than the carrying amount of inventory, then the
impairment is measured based on estimated future cash flows, discounted at a market rate of
interest. The projected cash flows for each community are significantly impacted by estimates
related to market supply and demand, product type, homesite sizes, sales pace, sales prices, sales
incentives, construction costs, sales and marketing expenses, the local economy, competitive
conditions, labor costs, costs of materials and other factors for that particular community. Local
economy and community factors that may affect our assumptions include current market economic and
demographic conditions, competitors presence and activities in the local market, current market
trends and forecasts, historical results, specific community features such as location, amenities,
unique attributes and future potential alternatives for product offerings in response to market
conditions. The determination of fair value also requires discounting the estimated cash flows at
a rate commensurate with the inherent risks associated with the assets and related estimated cash
flow streams. The discount rate used in determining each assets fair value depends on the
communitys projected life and development stage. At June 30, 2008, we used discount rates ranging
from 12% to 22% with an average of 18%, depending on the perceived risks associated with the
communitys cash flow streams relative to its inventory. Our cash flow projection models assume
either a price depreciation or no price change depending on market conditions and a minimal price
appreciation in most of our markets in 2010. These assumptions are based on third-party market
data, corroborated with management estimates and projections. Subsequently, during the second half
of 2008 and during 2009, the weakness in the housing market was exacerbated by unforeseen
significant disruptions in the broader financial markets and severe constraints in the credit
markets. As SFAS No. 144 requires that the assumptions used in the cash flow projection models
reflect the conditions in effect as of the assessment date, our evaluation did not anticipate the
dramatic effect of these events. Due to the continued deterioration in market conditions, we expect
that our assumptions for the second half of 2008 will be correspondingly adjusted, which we expect
will result in additional impairment charges.
We believe that the accounting for impairment of long-lived assets is a critical accounting
policy because of the assumptions inherent in the evaluations and the impact of recognizing
impairments would be material to our consolidated financial statements. Evaluations for impairment
are significantly impacted by estimates of future revenues, costs and expenses and other factors
involving some amount of uncertainty since they are based on current market conditions and current
assumptions of future markets made by management. These assumptions include: the expected sales
prices and sales incentives to be offered; the timing of sales within a community; the expected
cancellation rates based on local housing market conditions and competition; the number and type of
homes available and pricing and incentives being offered in other communities by us or by other
builders in the surrounding areas; total costs expended to date and expected to be incurred in the
future, including, sales and marketing costs; alternative products that may be offered that could
have an impact on sales pace, sales price and/or building costs; and, alternative uses for the
property such as the possibility of a sale of lots to a third party versus the sale of individual
homes. Many of these assumptions are interdependent and changing one assumption generally requires
a corresponding change to one or more of the other assumptions. For example, increasing or
decreasing the sales absorption rate has a direct impact on the estimated per unit sales price of a
home, the level of time sensitive costs (such as indirect construction, overhead and carrying
costs), and selling and marketing costs (such as model maintenance costs and promotional and
advertising campaign costs). Our objectives for a
45
community, could have a significant impact on the community cash flow analysis. For example,
if our business objective is to drive delivery levels, our community cash flow analysis will be
different than if the business objective is to preserve operating margins. These objectives may
vary significantly from community to community, from division to division, and over time with
respect to the same community. The number of communities reviewed for impairment and the
interrelationship and complexity of assumptions preclude discussion on a community by community
basis. Continuing uncertainties in economic and market conditions and assumptions and estimates
required of our management in valuing inventory during changing market conditions, could result in
actual future results differing materially from managements assumptions and may require material
inventory impairment charges to be recorded in the future. For example, further market
deterioration may lead to additional sales incentives and decreases in sales prices and/or volumes
resulting in additional impairment charges on previously impaired inventory, as well as on
inventory not currently impaired but for which indicators of impairment may arise if further market
deterioration occurs.
Inventory
impairments and abandonments costs on active communities were
$175.5 million and $277.2 million, respectively, for the
three and six months ended June 30, 2008 compared to
$41.4 million and $49.2 million, respectively, for the three and six
months ended June 30, 2007. During the three and six months ended June 30, 2008, we also recorded charges of $129.2
million and $199.8 million, respectively, in write-offs of deposits and abandonment costs which are
included in cost of sales inventory impairments and abandonment costs in the accompanying
unaudited consolidated statements of operations, related to land that we have determined is not
probable that we will purchase or build on (including land to be sold
as lots), compared to $43.4 million and $74.5 million,
respectively, for the three and six months ended June 30, 2007. Included in the impairment charges
on active communities for the three and six months ended June 30, 2008 is $4.3 million of inventory
impairments recognized on properties accounted for as financing arrangements under SFAS 66 for
which we do not have title to the underlying asset.
Financial Reporting Under SOP 90-7
In accordance with GAAP, we have applied the provisions of American Institute of Certified
Public Accountants (AICPA) Statement of Position 90-7, Financial Reporting by Entities in
Reorganization Under the Bankruptcy Code (SOP 90-7), in preparing the unaudited consolidated
financial statements. SOP 90-7 requires that the financial statements, for periods subsequent to
the Chapter 11 filing, distinguish transactions and events that are directly associated with the
reorganization from the ongoing operations of the business. Accordingly, certain items of income,
expense, gain or loss realized or incurred because we are in Chapter 11 are recorded in
reorganization items, net on the accompanying unaudited consolidated statements of operations.
Also, pre-petition obligations that may be impacted by the bankruptcy reorganization process have
been classified in liabilities subject to compromise on the unaudited
consolidated statement of financial condition at
June 30, 2008. These liabilities are reported at the amounts expected to be allowed by the
Bankruptcy Court, in accordance with Statement of Financial Accounting Standards (SFAS) No. 5,
Accounting for Contingencies (SFAS 5), even if they may be settled for lesser amounts. As of
June 30, 2008, the pre-petition liabilities included in liabilities subject to compromise have not
been reduced.
We believe that financial reporting under SOP 90-7 is a critical accounting policy because it
has a significant impact on our business processes and internal control over financial reporting
related to the proper separation and payment of pre-petition and post-petition obligations and the
preparation of unaudited consolidated financial statements and related disclosures reflecting the
accounting required for the restructuring activities and reorganization expenses resulting from our
Chapter 11 proceedings. Application of SOP 90-7 involves estimates for amounts expected to be
allowed claims, among other things.
Results of Operations Consolidated
Three Months Ended June 30, 2008 Compared to Three Months Ended June 30, 2007
Total revenues decreased 48% to $297.5 million for the three months ended June 30, 2008, from
$576.7 million for the three months ended June 30, 2007. This decrease is primarily attributable to
a decrease in Homebuilding revenues of 48%.
For the three months ended June 30, 2008, we reported a loss from continuing operations before
reorganization items and the benefit for income taxes of $360.2 million as compared to a loss from
continuing operations before benefit for income taxes of $135.3 million for the three months ended
June 30, 2007. Results from continuing operations for the three months ended June 30, 2008 and 2007
include charges totaling $306.6 million and $155.0 million, respectively, related to inventory
impairments, abandonment costs, joint venture impairments, goodwill impairments and the provision
for settlement of loss contingency. During the three months ended June 30, 2008, we also recognized
$18.2 million of reorganization expenses related to our
bankruptcy cases.
Our effective tax rate from continuing operations was 0.2% for the three months ended June 30,
2008. The effective tax rate for the three months ended June 30, 2008 was impacted primarily by a
valuation allowance on our deferred tax asset.
For the three months ended June 30, 2008, we reported a loss from continuing operations, net
of taxes, of $379.1 million (or a loss of $6.40 per basic and diluted share) compared to a loss
from continuing operations, net of taxes, of $122.1 million (or a loss of $2.04 per basic and
diluted share) for the three months ended June 30, 2007.
Homebuilding
Homebuilding revenues decreased 48% to $294.2 million for the three months ended June 30,
2008, from $565.7 million for the three months June 30, 2007. This decrease is primarily due to a
decrease in revenue from home sales to $276.9 million for the three months ended June 30, 2008 from
$535.3 million for the three months ended June 30, 2007. The decrease in revenue from home sales,
which is net of buyer incentives, was due to a 38% decrease in the number of deliveries from
continuing operations to 1,020 for the three months ended June 30, 2008 from 1,656 for the three
months ended June 30, 2007. The average price of homes delivered from continuing operations
decreased 16% to $271,000 for the three months ended June 30, 2008, from $323,000 for the three
months ended June 30, 2007. Our home sales revenues have continued to decrease through 2009 as the
number of home deliveries declined as a result of severe market conditions in the new and existing
home industry combined with diminished consumer confidence, the oversupply of new and existing
homes available for sale, increased foreclosures and downward pressure on home prices. These
factors have been exacerbated by our Chapter 11 filings.
46
For the three months ended June 30, 2008, we had a homebuilding gross loss of $283.4 million
as compared to a gross profit of $17.8 million for the three months ended June 30, 2007. This decrease is primarily due to an
increase in inventory impairments and abandonment costs during the three months ended June 30, 2008
in addition to the decrease in the number of deliveries coupled with higher incentives on homes
delivered in response to challenging homebuilding market conditions. Inventory impairments and
abandonment costs were $175.5 million for the three months ended June 30, 2008 compared to $41.4
million for the three months ended June 30, 2007. For the three months ended June 30, 2008, our
incentives from continuing operations increased 54% to $59,300 per home delivered from $38,600 per
home delivered for the three months ended June 30, 2007.
SG&A expenses decreased to $55.6 million for the three months ended June 30, 2008, from $85.0
million for the three months ended June 30, 2007. This decrease in expenses is due to a decrease of
$17.5 million in selling and marketing expenses primarily due to a $11.3 million decrease in
commissions resulting from a decrease in both deliveries and average selling prices; a decrease of
$4.5 million in professional fees related to the Transeastern JV settlement in 2007; and a
reduction in overhead and related expenses due to reduced levels of business during the three
months ended June 30, 2008.
SG&A expenses as a percentage of revenues from home sales for the three months ended June 30,
2008 increased to 20%, as compared to 16% for the three months ended June 30, 2007. The increase in
SG&A expenses as a percentage of home sales revenues is due to the decrease in deliveries and
average selling prices.
For the three months ended June 30, 2008, we had income from unconsolidated joint ventures
of $9.3 million compared to a loss from unconsolidated joint ventures of $1.5 million for the three
months ended June 30, 2007. The increase in our earnings from unconsolidated joint ventures is
primarily due to the reduction of loss accruals totaling
$11.6 million for certain joint venture obligations established in
2007 and reversed during the three months ended June 30, 2008.
Net Sales Orders and Homes in Backlog (Consolidated)
For the three months ended June 30, 2008, net sales orders from continuing operations
decreased by 78% to 353 as compared to 1,573 for the three months ended June 30, 2007. The decrease
in net sales orders is due to decreased demand for new homes and higher cancellation rates. These
factors have continued to negatively impact our net sales orders through the first quarter of 2009.
Our cancellation rate increased to 73% for the three months ended June 30, 2008 from 32% for
the three months ended June 30, 2007. The majority of our regions experienced increases in
cancellation rates for the three months ended June 30, 2008 when compared with the same period in
2007. Our Florida and Mid-Atlantic regions had the largest increases in cancellation rate to 144%
and 43%, respectively, for the three months ended June 30, 2008 as compared to 34% and 17%,
respectively, for the three months ended June 30, 2007. The increase in cancellation rate in
Florida is primarily due to contracts with a third-party that
marketed homes in the United Kingdom, which were
included in backlog at December 31, 2007 and March 31, 2008
and were cancelled in June 2008. These contracts were for 511
homes representing $115.6 million of revenue. The decrease in cancellation rate in Texas is
consistent with our overall performance in Texas, a region that has been less affected by the
challenging market conditions experienced in other regions.
We had 1,580 homes in backlog from continuing operations as of June 30, 2008, as compared to
3,806 homes in backlog as of June 30, 2007. The 58% decrease in backlog units is primarily due to a
decline in sales orders and an increase in cancellation rates as a result of decreased demand. The
sales value of backlog from continuing operations decreased 63% to $479.3 million at June 30, 2008,
from $1.3 billion at June 30, 2007, due to the decrease in the number of homes in backlog in
addition to a decrease in the average selling price of homes in backlog to $303,000 from $339,000
from period to period. The decrease in the average selling price of homes in backlog was primarily
due to increased incentives and a change in product mix. At December 31, 2008, our consolidated
continuing operations had 829 homes in backlog representing $228.3 million in revenue.
Net Sales Orders and Homes in Backlog (Unconsolidated Joint Ventures)
For the three months ended June 30, 2008, net sales orders decreased by 100% as compared to
the three months ended June 30, 2007. The decrease in net sales orders was due to the results for
the Transeastern joint venture, previously included in our unconsolidated joint venture results,
are consolidated into our Florida operations for the three months ended June 30, 2008.
Additionally, we have excluded the results of the Engle/Sunbelt joint venture from our
unconsolidated joint venture results for the three months ended June 30, 2008 due to the settlement
agreement reached with respect to the joint venture and the current expectation that the joint
venture will not provide a contribution to our future results.
Our
unconsolidated joint ventures had no homes in backlog as of June 30, 2008, as
compared to 502 homes in backlog as of June
30, 2007. The 100% decrease in backlog due is to the factors described above regarding the
Transeastern and Engle/Sunbelt joint ventures.
Discontinued Operations
On June 6, 2007, we sold substantially all of our Dallas/Fort Worth division to an independent
third-party. In accordance with SFAS 144, results of our Dallas/Fort Worth division have been
classified as a discontinued operation, and prior periods have been restated. Discontinued
operations include Dallas/Fort Worth division revenues and a net loss of $0.8 million and $0.6
million, respectively, for the three months ended June 30, 2008 and $16.1 million and $9.9 million,
respectively, for the three months ended June 30, 2007.
Six Months Ended June 30, 2008 Compared to Six Months Ended June 30, 2007
Total revenues decreased 48% to $598.6 million for the six months ended June 30, 2008, from
$1.1 billion for the six months ended June 30, 2007. This decrease is primarily attributable to a
decrease in Homebuilding revenues of 48%.
For the six months ended June 30, 2008, we reported a loss from continuing operations before
reorganization items and the benefit for income taxes of $574.4 million as compared to a loss from
continuing operations before benefit for income taxes of $226.0 million for the six months ended
June 30, 2007. Results from continuing operations for the six months ended June 30, 2008 and 2007
include charges totaling $479.4 million and $278.5 million, respectively, related to inventory
impairments, abandonment costs, joint venture impairments, goodwill impairments and the provision for settlement of loss contingency. During the six
months ended June 30, 2008, we also recognized $86.7 million of reorganization expenses related to
our bankruptcy cases.
47
Our effective tax rate from continuing operations was 0.1% for the six months ended June 30,
2008 compared to 18% for the six months ended June 30, 2007, respectively. The effective tax rate
for the six months ended June 30, 2008 was impacted primarily by a valuation allowance on our
deferred tax asset.
For the six months ended June 30, 2008, we reported a loss from continuing operations, net of
taxes, of $661.8 million (or a loss of $11.19 per basic and diluted share) compared to a loss from
continuing operations, net of taxes, of $184.3 million (or a loss of $3.09 per basic and diluted
share) for the six months ended June 30, 2007.
Homebuilding
Homebuilding revenues decreased 48% to $589.5 million for the six months ended June 30, 2008,
from $1.1 billion for the six months June 30, 2007. This decrease is primarily due to a decrease in
revenue from home sales to $567.8 million for the six months ended June 30, 2008 from $1.1 billion
for the six months ended June 30, 2007. The decrease in revenue from home sales, which is net of
buyer incentives, was due to a 37% decrease in the number of deliveries from continuing operations
to 2,139 for the six months ended June 30, 2008 from 3,374 for the six months ended June 30, 2007.
The average price of homes delivered from continuing operations decreased 18% to $265,000 for the
six months ended June 30, 2008, from $324,000 for the six months ended June 30, 2007. Our home
sales revenues have continued to decrease through 2009 as the number of home deliveries declined as
a result of severe market conditions in the new and existing home industry combined with diminished
consumer confidence, the oversupply of new and existing homes available for sale, increased
foreclosures and downward pressure on home prices. These factors have been exacerbated by our
Chapter 11 filings.
For the six months ended June 30, 2008, we had a homebuilding gross loss of $423.3 million as
compared to a gross profit of $97.7 million for the six months ended June 30, 2007. This decrease
is primarily due to an increase in inventory impairments and abandonment costs during the six
months ended June 30, 2008 in addition to the decrease in the number of deliveries coupled with
higher incentives on homes delivered in response to challenging homebuilding market conditions.
Inventory impairments and abandonment costs were $477.0 million for the six months ended June 30,
2008 compared to $123.9 million for the six months ended June 30, 2007. For the six months ended
June 30, 2008, our incentives from continuing operations increased 58% to $60,800 per home
delivered from $38,300 per home delivered for the six months ended June 30, 2007.
SG&A expenses decreased to $109.8 million for the six months ended June 30, 2008, from $176.4
million for the six months ended June 30, 2007. This decrease in expenses is due to a decrease of
$36.1 million in selling and marketing expenses primarily due to
a $23.8 million decrease in
commissions resulting from a decrease in both deliveries and average selling prices; a decrease of
$11.9 million in professional fees related to the Transeastern JV settlement in 2007; and a
reduction in overhead and related expenses due to reduced levels of business during the six months
ended June 30, 2008.
SG&A expenses as a percentage of revenues from home sales for the six months ended June 30,
2008 increased to 19%, as compared to 16% for the six months ended June 30, 2007. The increase in
SG&A expenses as a percentage of home sales revenues is due to the decrease in deliveries and
average selling prices.
For the six months ended June 30, 2008, we had income from unconsolidated joint ventures of
$9.1 million compared to a loss from unconsolidated joint ventures of $5.1 million for the six
months ended June 30, 2007. The increase in our earnings from unconsolidated joint ventures is
primarily due to the reduction of loss accruals totaling
$11.6 million for certain joint venture obligations established in
2007 and reversed during the six months ended June 30, 2008.
Net Sales Orders and Homes in Backlog (Consolidated)
For the six months ended June 30, 2008, net sales orders from continuing operations decreased
by 59% to 1,340 as compared to 3,303 for the six months ended June 30, 2007. The decrease in net
sales orders is due to decreased demand for new homes and higher cancellation rates. These factors
have continued to negatively impact our net sales orders through the first quarter of 2009.
Our cancellation rate increased to 52% for the six months ended June 30, 2008 from 30% for the
six months ended June 30, 2007. The majority of our regions experienced increases in cancellation
rates for the six months ended June 30, 2008 when compared with the same period in 2007. Our
Florida and Mid-Atlantic regions had the largest increases in cancellation rate to 88% and 35%,
respectively, for the six months ended June 30, 2008 as compared to 32% and 17%, respectively, for
the six months ended June 30, 2007. The increase in cancellation rate in Florida is primarily due
to contracts with a third-party that marketed homes in the United
Kingdom, which were included in backlog at
December 31, 2007, March 31, 2008 and were cancelled in June 2008. These contracts were for 511 homes representing $115.6
million of revenue. The decrease in cancellation rate in Texas is consistent with our overall
performance in Texas, a region that has been less affected by the challenging market conditions
experienced in other regions.
Net Sales Orders and Homes in Backlog (Unconsolidated Joint Ventures)
For the six months ended June 30, 2008, net sales orders decreased by 100% as compared to the
six months ended June 30, 2007. The decrease in net sales orders was due to the results for the
Transeastern joint venture, previously included in our unconsolidated joint venture results, are
consolidated into our Florida operations for the six months ended June 30, 2008. Additionally, we
have excluded the results of the Engle/Sunbelt joint venture from our unconsolidated joint venture
results for the six months ended June 30, 2008 due to the settlement agreement reached with respect
to the joint venture and the current expectation that the joint venture will not provide a
contribution to our future results.
48
Discontinued Operations
On June 6, 2007, we sold substantially all of our Dallas/Fort Worth division to an independent
third-party. In accordance with SFAS 144, results of our Dallas/Fort Worth division have been classified as a discontinued
operation, and prior periods have been restated. Discontinued operations include Dallas/Fort Worth
division revenues and a net loss of $1.0 million and $3.2 million, respectively, for the six months
ended June 30, 2008 and $43.6 million and $13.7 million, respectively, for the six months ended
June 30, 2007.
Reportable Segments
Our operating segments are aggregated into reportable segments in accordance with Statement of
Financial Accounting Standards No. 131, Disclosures About Segments of an Enterprise and Related
Information, based primarily upon similar economic characteristics, product type, geographic area
and information used by the chief operating decision maker to allocate resources and assess
performance. Our reportable segments consist of our four major Homebuilding geographic regions
(Florida, Mid-Atlantic, Texas and the West) and our Financial Services operations.
Homebuilding Operations
The reportable segments for our Homebuilding operations are as follows:
Florida: Central Florida, Jacksonville, Southeast Florida, Southwest Florida, Tampa/St.
Petersburg
Mid-Atlantic: Baltimore/Southern Pennsylvania, Nashville, Northern Virginia (on September 25,
2007, we sold in bulk, home sites in our Mid-Atlantic (excluding Nashville) and Virginia
divisions)
Texas: Austin, Houston, San Antonio (on June 6, 2007, we sold substantially all of our
Dallas/Fort Worth division)
West: Colorado, Las Vegas, Phoenix
Selected Homebuilding Operations and Financial Data
The following tables set forth selected operational and financial data for our Homebuilding
operations for the periods indicated (dollars in millions, except average price in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Homebuilding revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida(2): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales of homes |
|
$ |
108.5 |
|
|
$ |
192.8 |
|
|
$ |
227.4 |
|
|
$ |
449.1 |
|
Sales of land |
|
|
1.4 |
|
|
|
25.4 |
|
|
|
3.1 |
|
|
|
26.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Florida |
|
|
109.9 |
|
|
|
218.2 |
|
|
|
230.5 |
|
|
|
475.5 |
|
Mid-Atlantic: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales of homes |
|
|
13.9 |
|
|
|
62.4 |
|
|
|
28.4 |
|
|
|
114.6 |
|
Sales of land |
|
|
|
|
|
|
0.1 |
|
|
|
2.2 |
|
|
|
0.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Mid-Atlantic |
|
|
13.9 |
|
|
|
62.5 |
|
|
|
30.6 |
|
|
|
114.7 |
|
Texas(1): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales of homes |
|
|
97.3 |
|
|
|
167.0 |
|
|
|
205.2 |
|
|
|
313.9 |
|
Sales of land |
|
|
6.6 |
|
|
|
3.8 |
|
|
|
7.1 |
|
|
|
6.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Texas |
|
|
103.9 |
|
|
|
170.8 |
|
|
|
212.3 |
|
|
|
320.0 |
|
West: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales of homes |
|
|
57.2 |
|
|
|
113.1 |
|
|
|
106.8 |
|
|
|
215.1 |
|
Sales of land |
|
|
9.3 |
|
|
|
1.1 |
|
|
|
9.3 |
|
|
|
1.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total West |
|
|
66.5 |
|
|
|
114.2 |
|
|
|
116.1 |
|
|
|
216.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total homebuilding revenues |
|
$ |
294.2 |
|
|
$ |
565.7 |
|
|
$ |
589.5 |
|
|
$ |
1,126.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The Texas region excludes the Dallas division, which is classified as a discontinued operation. |
|
(2) |
|
The results of operations for Transeastern for the three and six months ended June 30, 2008 have been included in our consolidated results.
Results of operations for the three and six months ended June 30, 2007 are included in the results for the unconsolidated joint ventures.
See Note 4 of the notes to the unaudited consolidated financial statements. |
49
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Results of Operations: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Homebuilding: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida(2) |
|
$ |
(143.4 |
) |
|
$ |
(14.7 |
) |
|
$ |
(247.5 |
) |
|
$ |
9.1 |
|
Mid-Atlantic |
|
|
(19.9 |
) |
|
|
(42.1 |
) |
|
|
(28.3 |
) |
|
|
(45.7 |
) |
Texas(1) |
|
|
(22.4 |
) |
|
|
14.4 |
|
|
|
(17.3 |
) |
|
|
28.7 |
|
West |
|
|
(142.5 |
) |
|
|
(47.2 |
) |
|
|
(218.4 |
) |
|
|
(76.8 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Homebuilding |
|
|
(328.2 |
) |
|
|
(89.6 |
) |
|
|
(511.5 |
) |
|
|
(84.7 |
) |
Financial Services |
|
|
(3.1 |
) |
|
|
2.3 |
|
|
|
(4.3 |
) |
|
|
5.0 |
|
Corporate and unallocated |
|
|
(28.9 |
) |
|
|
(48.0 |
) |
|
|
(58.6 |
) |
|
|
(146.3 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from
continuing operations before reorganization items and taxes |
|
$ |
(360.2 |
) |
|
$ |
(135.3 |
) |
|
$ |
(574.4 |
) |
|
$ |
(226.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The Texas region excludes the Dallas division, which is classified as a discontinued operation. |
|
(2) |
|
The results of operations for Transeastern for the three and six months ended June 30, 2008 have been included in our consolidated results.
Results of operations for the three and six months ended June 30, 2007 are included in the results for the unconsolidated joint ventures.
See Note 4 of the notes to the unaudited consolidated financial statements. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Impairment charges on active communities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida |
|
$ |
132.0 |
|
|
$ |
23.6 |
|
|
$ |
205.9 |
|
|
$ |
28.7 |
|
Mid-Atlantic |
|
|
5.9 |
|
|
|
4.5 |
|
|
|
12.5 |
|
|
|
6.6 |
|
Texas |
|
|
2.1 |
|
|
|
0.5 |
|
|
|
3.1 |
|
|
|
0.6 |
|
West |
|
|
35.5 |
|
|
|
12.8 |
|
|
|
55.7 |
|
|
|
13.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
175.5 |
|
|
|
41.4 |
|
|
|
277.2 |
|
|
|
49.4 |
|
Write-offs of deposits and abandonment costs: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida |
|
|
14.3 |
|
|
|
12.1 |
|
|
|
36.4 |
|
|
|
12.8 |
|
Mid-Atlantic |
|
|
9.2 |
|
|
|
13.5 |
|
|
|
9.4 |
|
|
|
13.9 |
|
Texas |
|
|
5.5 |
|
|
|
0.2 |
|
|
|
6.8 |
|
|
|
0.3 |
|
West |
|
|
100.2 |
|
|
|
17.6 |
|
|
|
147.2 |
|
|
|
47.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
129.2 |
|
|
|
43.4 |
|
|
|
199.8 |
|
|
|
74.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Inventory impairments and abandonment costs |
|
$ |
304.7 |
|
|
$ |
84.8 |
|
|
$ |
477.0 |
|
|
$ |
123.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Remaining carrying value of inventory
impaired at end of period |
|
$ |
529.4 |
|
|
$ |
696.0 |
|
|
$ |
529.4 |
|
|
$ |
696.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of projects impaired during the period |
|
|
168 |
|
|
|
115 |
|
|
|
224 |
|
|
|
131 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total number of projects included in
inventory and reviewed for impairment during
the period |
|
|
354 |
|
|
|
457 |
|
|
|
354 |
|
|
|
457 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
|
|
Homes |
|
|
$ |
|
|
Homes |
|
|
$ |
|
|
Homes |
|
|
$ |
|
|
Homes |
|
|
$ |
|
Deliveries: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida(2) |
|
|
395 |
|
|
$ |
108.5 |
|
|
|
509 |
|
|
$ |
192.8 |
|
|
|
862 |
|
|
$ |
227.4 |
|
|
|
1,229 |
|
|
$ |
449.1 |
|
Mid-Atlantic |
|
|
40 |
|
|
|
13.9 |
|
|
|
168 |
|
|
|
62.4 |
|
|
|
86 |
|
|
|
28.4 |
|
|
|
320 |
|
|
|
114.6 |
|
Texas(1) |
|
|
377 |
|
|
|
97.3 |
|
|
|
649 |
|
|
|
167.0 |
|
|
|
801 |
|
|
|
205.2 |
|
|
|
1,221 |
|
|
|
313.9 |
|
West |
|
|
208 |
|
|
|
57.2 |
|
|
|
330 |
|
|
|
113.1 |
|
|
|
390 |
|
|
|
106.8 |
|
|
|
604 |
|
|
|
215.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
|
1,020 |
|
|
|
276.9 |
|
|
|
1,656 |
|
|
|
535.3 |
|
|
|
2,139 |
|
|
|
567.8 |
|
|
|
3,374 |
|
|
|
1,092.7 |
|
Discontinued operations(1) |
|
|
6 |
|
|
|
0.8 |
|
|
|
69 |
|
|
|
16.1 |
|
|
|
7 |
|
|
|
1.0 |
|
|
|
182 |
|
|
|
43.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated total |
|
|
1,026 |
|
|
|
277.7 |
|
|
|
1,725 |
|
|
|
551.4 |
|
|
|
2,146 |
|
|
|
568.8 |
|
|
|
3,556 |
|
|
|
1,136.3 |
|
Unconsolidated joint ventures: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida (excluding Transeastern) |
|
|
|
|
|
|
|
|
|
|
37 |
|
|
|
10.4 |
|
|
|
|
|
|
|
|
|
|
|
40 |
|
|
|
11.3 |
|
Transeastern(2) |
|
|
|
|
|
|
|
|
|
|
328 |
|
|
|
73.3 |
|
|
|
|
|
|
|
|
|
|
|
607 |
|
|
|
146.3 |
|
Mid-Atlantic |
|
|
|
|
|
|
|
|
|
|
9 |
|
|
|
2.5 |
|
|
|
|
|
|
|
|
|
|
|
10 |
|
|
|
2.8 |
|
West(3) |
|
|
|
|
|
|
|
|
|
|
320 |
|
|
|
93.3 |
|
|
|
|
|
|
|
|
|
|
|
638 |
|
|
|
194.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total unconsolidated joint ventures |
|
|
|
|
|
|
|
|
|
|
694 |
|
|
|
179.5 |
|
|
|
|
|
|
|
|
|
|
|
1,295 |
|
|
|
354.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Combined total |
|
|
1,026 |
|
|
$ |
277.7 |
|
|
|
2,419 |
|
|
$ |
730.9 |
|
|
|
2,146 |
|
|
$ |
568.8 |
|
|
|
4,851 |
|
|
$ |
1,491.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The Texas region excludes the Dallas division, which is classified as a discontinued operation. |
|
(2) |
|
The results of operations for Transeastern for the three and six months ended June 30, 2008 have been included in our consolidated results.
Results of operations for the three and six months ended June 30, 2007 are included in the results for the unconsolidated joint ventures.
See Note 4 of the notes to the unaudited consolidated financial statements. |
|
(3) |
|
We have excluded the results of the Engle/Sunbelt joint venture from our unconsolidated joint venture results for the three and six months
ended June 30, 2008 due to the settlement agreement reached in 2008. See Note 5 of the notes to the unaudited consolidated financial statements. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
|
|
Homes |
|
|
$ |
|
|
Homes |
|
|
$ |
|
|
Homes |
|
|
$ |
|
|
Homes |
|
|
$ |
|
Net Sales Orders(1): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida(3) (4) |
|
|
(210 |
) |
|
$ |
(65.3 |
) |
|
|
439 |
|
|
$ |
138.0 |
|
|
|
123 |
|
|
$ |
(13.3 |
) |
|
|
1,037 |
|
|
$ |
355.3 |
|
Mid-Atlantic |
|
|
50 |
|
|
|
18.4 |
|
|
|
207 |
|
|
|
71.0 |
|
|
|
137 |
|
|
|
44.3 |
|
|
|
428 |
|
|
|
152.6 |
|
Texas(2) |
|
|
393 |
|
|
|
103.6 |
|
|
|
624 |
|
|
|
153.4 |
|
|
|
793 |
|
|
|
205.2 |
|
|
|
1,282 |
|
|
|
318.1 |
|
West |
|
|
120 |
|
|
|
31.8 |
|
|
|
303 |
|
|
|
79.1 |
|
|
|
287 |
|
|
|
74.6 |
|
|
|
556 |
|
|
|
159.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
|
353 |
|
|
|
88.5 |
|
|
|
1,573 |
|
|
|
441.5 |
|
|
|
1,340 |
|
|
|
310.8 |
|
|
|
3,303 |
|
|
|
985.9 |
|
Discontinued operations(2) |
|
|
2 |
|
|
|
0.4 |
|
|
|
(1 |
) |
|
|
|
|
|
|
9 |
|
|
|
1.0 |
|
|
|
70 |
|
|
|
19.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated total |
|
|
355 |
|
|
|
88.9 |
|
|
|
1,572 |
|
|
|
441.5 |
|
|
|
1,349 |
|
|
|
311.8 |
|
|
|
3,373 |
|
|
|
1,005.3 |
|
Unconsolidated joint ventures: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida (excluding Transeastern) |
|
|
|
|
|
|
|
|
|
|
8 |
|
|
|
0.8 |
|
|
|
|
|
|
|
|
|
|
|
12 |
|
|
|
1.7 |
|
Transeastern(3) |
|
|
|
|
|
|
|
|
|
|
158 |
|
|
|
25.1 |
|
|
|
|
|
|
|
|
|
|
|
194 |
|
|
|
17.8 |
|
Mid-Atlantic |
|
|
|
|
|
|
|
|
|
|
10 |
|
|
|
2.1 |
|
|
|
|
|
|
|
|
|
|
|
13 |
|
|
|
2.8 |
|
West(5) |
|
|
|
|
|
|
|
|
|
|
144 |
|
|
|
31.4 |
|
|
|
|
|
|
|
|
|
|
|
387 |
|
|
|
95.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total unconsolidated joint ventures |
|
|
|
|
|
|
|
|
|
|
320 |
|
|
|
59.4 |
|
|
|
|
|
|
|
|
|
|
|
606 |
|
|
|
117.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Combined total |
|
|
355 |
|
|
$ |
88.9 |
|
|
|
1,892 |
|
|
$ |
500.9 |
|
|
|
1,349 |
|
|
$ |
311.8 |
|
|
|
3,979 |
|
|
$ |
1,123.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Net of cancellations. |
|
(2) |
|
The Texas region excludes the Dallas division, which is classified as a discontinued operation. |
|
(3) |
|
The results of operations for Transeastern for the three and six months ended June 30, 2008 have been included in our consolidated results.
Results of operations for the three and six months ended June 30, 2007 are included in the results for the unconsolidated joint ventures.
See Note 4 of the notes to the unaudited consolidated financial statements. |
51
|
|
|
(4) |
|
Contracts with a third-party that marketed homes in the United Kingdom included in backlog at March 31, 2008 were cancelled in June 2008.
These contracts were for 511 homes representing $115.6 million of revenue. |
|
(5) |
|
We have excluded the results of the Engle/Sunbelt joint venture from our unconsolidated joint venture results for the three and six months
ended June 30, 2008 due to the settlement agreement reached in 2008. See Note 5 of the notes to the unaudited consolidated financial statements. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2008 |
|
|
June 30, 2007 |
|
|
|
|
|
|
|
|
|
|
|
Average |
|
|
|
|
|
|
|
|
|
|
Average |
|
|
|
Homes |
|
|
$ |
|
|
Price |
|
|
Homes |
|
|
$ |
|
|
Price |
|
Sales Backlog: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida(2) |
|
|
591 |
|
|
$ |
195.0 |
|
|
$ |
330 |
|
|
|
2,036 |
|
|
$ |
758.0 |
|
|
$ |
372 |
|
Mid-Atlantic |
|
|
131 |
|
|
|
44.0 |
|
|
$ |
336 |
|
|
|
314 |
|
|
|
118.5 |
|
|
$ |
377 |
|
Texas(1) |
|
|
541 |
|
|
|
154.8 |
|
|
$ |
286 |
|
|
|
1,035 |
|
|
|
277.8 |
|
|
$ |
268 |
|
West |
|
|
317 |
|
|
|
85.5 |
|
|
$ |
270 |
|
|
|
421 |
|
|
|
136.5 |
|
|
$ |
324 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
|
1,580 |
|
|
|
479.3 |
|
|
$ |
303 |
|
|
|
3,806 |
|
|
|
1,290.8 |
|
|
$ |
339 |
|
Discontinued operations(1) |
|
|
5 |
|
|
|
0.8 |
|
|
$ |
150 |
|
|
|
21 |
|
|
|
5.8 |
|
|
$ |
278 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated total |
|
|
1,585 |
|
|
|
480.1 |
|
|
$ |
303 |
|
|
|
3,827 |
|
|
|
1,296.6 |
|
|
$ |
339 |
|
Unconsolidated joint ventures: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida (excluding Transeastern) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18 |
|
|
|
4.6 |
|
|
$ |
254 |
|
Transeastern(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
284 |
|
|
|
65.8 |
|
|
$ |
232 |
|
Mid-Atlantic |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6 |
|
|
|
1.3 |
|
|
$ |
215 |
|
West(3) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
194 |
|
|
|
55.0 |
|
|
$ |
284 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total unconsolidated joint ventures |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
502 |
|
|
|
126.7 |
|
|
$ |
252 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Combined total |
|
|
1,585 |
|
|
$ |
480.1 |
|
|
$ |
303 |
|
|
|
4,329 |
|
|
$ |
1,423.3 |
|
|
$ |
329 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The Texas region excludes the Dallas division, which is classified as a discontinued operation. |
|
(2) |
|
The results of operations for Transeastern for the three and six months ended June 30, 2008 have been included in our consolidated results. Results of
operations for the three and six months ended June 30, 2007 are included in the results for the unconsolidated joint ventures. See Note 4 of the notes to the unaudited
consolidated financial statements. |
|
(3) |
|
We have excluded the results of the Engle/Sunbelt joint venture from our unconsolidated joint venture results for the three and six months ended June 30,
2008 due to the settlement agreement reached in 2008. See Note 5 of the notes to the unaudited consolidated financial statements. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
Six Months Ended |
|
|
June 30, |
|
June 30, |
|
|
2008 |
|
2007 |
|
2008 |
|
2007 |
Cancellation rates: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida(2) |
|
|
144 |
% |
|
|
34 |
% |
|
|
88 |
% |
|
|
32 |
% |
Mid-Atlantic |
|
|
43 |
% |
|
|
17 |
% |
|
|
35 |
% |
|
|
17 |
% |
Texas(1) |
|
|
22 |
% |
|
|
33 |
% |
|
|
25 |
% |
|
|
29 |
% |
West |
|
|
46 |
% |
|
|
34 |
% |
|
|
42 |
% |
|
|
36 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing Operations |
|
|
73 |
% |
|
|
32 |
% |
|
|
52 |
% |
|
|
30 |
% |
|
|
|
(1) |
|
The Texas region excludes the Dallas division, which is classified as a discontinued operation. |
|
(2) |
|
Contracts with a third-party that marketed homes in the
United Kingdom, which were included in backlog at December 31,
2007 and March 31, 2008 and were cancelled in June 2008.
These contracts were for 511 homes representing $115.6 million of revenue. |
52
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, |
|
Six Months Ended June 30, |
|
|
2008 |
|
2007 |
|
2008 |
|
2007 |
|
|
|
|
|
|
Sales |
|
|
|
|
|
Sales |
|
|
|
|
|
Sales |
|
|
|
|
|
Sales |
|
|
Deliveries |
|
Orders |
|
Deliveries |
|
Orders |
|
Deliveries |
|
Orders |
|
Deliveries |
|
Orders |
Average Price: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida(2) (4) |
|
$ |
275 |
|
|
$ |
311 |
|
|
$ |
379 |
|
|
$ |
314 |
|
|
$ |
264 |
|
|
$ |
(108 |
) |
|
$ |
365 |
|
|
$ |
343 |
|
Mid-Atlantic |
|
$ |
347 |
|
|
$ |
369 |
|
|
$ |
371 |
|
|
$ |
343 |
|
|
$ |
330 |
|
|
$ |
323 |
|
|
$ |
358 |
|
|
$ |
357 |
|
Texas(1) |
|
$ |
258 |
|
|
$ |
263 |
|
|
$ |
257 |
|
|
$ |
246 |
|
|
$ |
256 |
|
|
$ |
259 |
|
|
$ |
257 |
|
|
$ |
248 |
|
West |
|
$ |
275 |
|
|
$ |
265 |
|
|
$ |
343 |
|
|
$ |
261 |
|
|
$ |
274 |
|
|
$ |
260 |
|
|
$ |
356 |
|
|
$ |
288 |
|
Continuing operations |
|
$ |
271 |
|
|
$ |
251 |
|
|
$ |
323 |
|
|
$ |
281 |
|
|
$ |
265 |
|
|
$ |
232 |
|
|
$ |
324 |
|
|
$ |
298 |
|
Discontinued
operations(1) |
|
$ |
128 |
|
|
$ |
161 |
|
|
$ |
233 |
|
|
$ |
(46 |
) |
|
$ |
144 |
|
|
$ |
112 |
|
|
$ |
240 |
|
|
$ |
277 |
|
Consolidated total |
|
$ |
271 |
|
|
$ |
250 |
|
|
$ |
320 |
|
|
$ |
281 |
|
|
$ |
265 |
|
|
$ |
231 |
|
|
$ |
320 |
|
|
$ |
298 |
|
Unconsolidated joint ventures: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida (excluding
Transeastern) |
|
|
|
|
|
|
|
|
|
$ |
282 |
|
|
$ |
99 |
|
|
|
|
|
|
|
|
|
|
$ |
282 |
|
|
$ |
142 |
|
Transeastern(2) |
|
|
|
|
|
|
|
|
|
$ |
223 |
|
|
$ |
159 |
|
|
|
|
|
|
|
|
|
|
$ |
241 |
|
|
$ |
92 |
|
Mid-Atlantic |
|
|
|
|
|
|
|
|
|
$ |
282 |
|
|
$ |
207 |
|
|
|
|
|
|
|
|
|
|
$ |
282 |
|
|
$ |
216 |
|
West(3) |
|
|
|
|
|
|
|
|
|
$ |
292 |
|
|
$ |
219 |
|
|
|
|
|
|
|
|
|
|
$ |
305 |
|
|
$ |
246 |
|
Total unconsolidated joint
ventures |
|
|
|
|
|
|
|
|
|
$ |
259 |
|
|
$ |
186 |
|
|
|
|
|
|
|
|
|
|
$ |
274 |
|
|
$ |
194 |
|
Combined total |
|
$ |
271 |
|
|
$ |
250 |
|
|
$ |
302 |
|
|
$ |
265 |
|
|
$ |
265 |
|
|
$ |
231 |
|
|
$ |
307 |
|
|
$ |
282 |
|
|
|
|
(1) |
|
The Texas region excludes the Dallas division, which is classified as a discontinued operation. |
|
(2) |
|
The results of operations for Transeastern for the three and six months ended June 30, 2008 have been included in our consolidated results.
Results of operations for the three and six months ended June 30, 2007 are included in the results for the unconsolidated joint ventures.
See Note 4 of the notes to the unaudited consolidated financial statements. |
|
(3) |
|
We have excluded the results of the Engle/Sunbelt joint venture from our unconsolidated joint venture results for the three and six months
ended June 30, 2008 due to the settlement agreement reached in 2008. See Note 5 of the notes to the unaudited consolidated financial statements. |
|
(4) |
|
Contracts with a third-party that marketed homes in the
United Kingdom, which were included in backlog at December 31,
2007 and March 31, 2008 and were cancelled in June 2008. These contracts were for 511 homes representing $115.6 million of
revenue. |
Three Months Ended June 30, 2008 compared to Three Months Ended June 30, 2007
Florida: Homebuilding revenues decreased 50% to $109.9 million for the three months ended
June 30, 2008 from $218.2 million for the three months ended June 30, 2007. The decrease in
Homebuilding revenues was due to a 44% decrease in revenues from home sales to $108.5 million for
the three months ended June 30, 2008 from $192.8 million
for the three months ended June 30, 2007 and a
decrease in revenue from land sales to $1.4 million for the three months ended June 30, 2008 from
$25.4 million for the three months ended June 30, 2007. The decrease in home sales revenues during
the three months ended June 30, 2008 is the result of a 22% decrease in the number of home
deliveries to 395 for the three months ended June 30, 2008 from 509 homes delivered for the three
months ended June 30, 2007, and a 27% decrease in the average selling price of homes to $275,000
for the three months ended June 30, 2008 from $379,000 for the three months ended June 30, 2007.
During the three months ended June 30, 2008, we recognized $132.0 million in impairment
charges compared to $23.6 million for the three months ended June 30, 2007. Gross margin on home
sales, excluding impairments, was 4% for the three months ended June 30, 2008, compared to 22% for
the three months ended June 30, 2007. This decrease in gross margin was primarily due to an
increase in sales incentives offered to home buyers coupled with a
decline in the base price of the homes delivered. The average sales incentive per home delivered
increased 81% to $97,300 per home for the three months ended June 30, 2008, from $53,800 for the
three months ended June 30, 2007.
For the three months ended June 30, 2008 and 2007, we incurred losses of $12.5 million and
$9.1 million from land sales, respectively, which included land impairments and abandonment costs
of $14.3 million and $12.1 million, respectively.
Mid-Atlantic: Homebuilding revenues decreased 78% to $13.9 million for the three months ended
June 30, 2008 from $62.5 million for the three months ended June 30, 2007. The decrease in
Homebuilding revenues was primarily due to a decrease in revenues from home sales during the three
months ended June 30, 2008 as a result of a 76% decrease in the number of home deliveries to 40 for
the three months ended June 30, 2008 from 168 homes delivered for the three months ended June 30,
2007, and a 7% decrease in the average selling price of homes to $347,000 for the three months
ended June 30, 2008 from $371,000 for the three months ended
June 30, 2007 coupled with a
decline in the base price of the homes delivered.
During the three months ended June 30, 2008, we recognized $5.9 million in impairment charges
compared to $4.5 million for the three months ended June 30, 2007. Gross margin on home sales,
excluding impairments, decreased to 1% for the three months ended June 30, 2008 compared to 14%
for the three months ended June 30, 2007 in part due to an increase in average sales incentive per
home delivered of 4% to $28,500 per home for the three months ended June 30, 2008, from $27,400 for
the three months ended June 30, 2007.
53
For the three months ended June 30, 2008 and 2007, we incurred losses of $9.2 million and
$13.8 million from land sales, respectively, which included land impairments and abandonment costs
of $9.2 million and $13.5 million, respectively.
Texas: Homebuilding revenues decreased 39% to $103.9 million for the three months ended June
30, 2008 from $170.8 million for the three months ended June 30, 2007. The decrease in Homebuilding
revenues was due to a 42% decrease in revenues from home sales to $97.3 million for the three
months ended June 30, 2008 from $167.0 million for the three months ended June 30, 2007. The
decrease in revenue from home sales was primarily due to a 42% decrease in the number of home
deliveries to 377 for the three months ended June 30, 2008 from 649 homes delivered for the three
months ended June 30, 2007. The average selling price of homes remained relatively unchanged at
$258,000 for the three months ended June 30, 2008 from $257,000 for the three months ended June 30,
2007. Our Texas region has been less affected by the challenging market conditions experienced in
other regions. We believe that this is the result of the overall moderate growth rates and price
appreciation experienced in Texas in prior periods and the relative health of the Texas economy as
compared to other markets in which we sell.
During the three months ended June 30, 2008, we recognized $2.1 million in impairment charges
compared to $0.5 million for the three months ended June 30, 2007. Gross margin on home sales,
excluding impairments, was 11% for the three months ended June 30, 2008, compared to 21% for the
three months ended June 30, 2007. This decrease in gross margin was primarily due to an increase
in sales incentives offered to home buyers. The average sales incentive per home delivered
increased 58% to $27,700 per home for the three months ended June 30, 2008, from $17,600 for the
three months ended June 30, 2007.
For the three months ended June 30, 2008 and 2007, we incurred losses of $5.3 million and $0.2
million from land sales, respectively, which included land impairments and abandonment costs of
$5.5 million and $0.2 million, respectively.
West: Homebuilding revenues decreased 42% to $66.5 million for the three months ended June
30, 2008 from $114.2 million for the three months ended June 30, 2007. The decrease in
Homebuilding revenues was due to a 49% decrease in revenues from home sales to $57.2 million for
the three months ended June 30, 2008 from $113.1 million for the three months ended June 30, 2007,
partially offset by an increase in revenue from land sales to $9.3 million for the three months
ended June 30, 2008 from $1.1 million for the three months ended June 30, 2007. The decrease in
revenue from home sales was due to a 37% decrease in the number of home deliveries to 208 for the
three months ended June 30, 2008 from 330 homes delivered for the three months ended June 30, 2007,
and a 20% decrease in the average selling price of homes to $275,000 for the three months ended
June 30, 2008 from $343,000 for the three months ended June 30, 2007.
During the three months ended June 30, 2008, we recognized $35.5 million in impairment charges
compared to $12.8 million for the three months ended June 30, 2007. Gross margin on home sales,
excluding impairments, was 1% for the three months ended June 30, 2008, compared to 10% for the
three months ended June 30, 2007. This decrease in gross margin was primarily due to the decrease
in average selling prices discussed above. The average sales incentive per home delivered decreased 19% to $50,200
for the three months ended June 30, 2008 from $62,100 for the
three months ended June 30, 2007 as incentives were factored into
the reduction in the base price of the home.
For the three months ended June 30, 2008 and 2007, we incurred losses of $97.1 million and
$15.1 million from land sales, respectively, which included land impairments and abandonment costs
of $100.2 million and $17.6 million, respectively. Land impairment and abandonment charges during
the three months ended June 30, 2008 include a $85.0 million impairment on a parcel of land as
discussed in Note 3 to the unaudited consolidated financial statements.
Six Months Ended June 30, 2008 compared to Six Months Ended June 30, 2007
Florida: Homebuilding revenues decreased 52% to $230.5 million for the six months ended June
30, 2008 from $475.5 million for the six months ended June 30, 2007. The decrease in Homebuilding
revenues was due to a 49% decrease in revenues from home sales to $227.4 million for the six months
ended June 30, 2008 from $449.1 million for the six months ended June 30, 2007 and a decrease in
revenue from land sales to $3.1 million for the six months ended June 30, 2008 from $26.4 million
for the six months ended June 30, 2007. The decrease in home sales during the six months ended June
30, 2008 was the result of a 30% decrease in the number of home deliveries to 862 for the six
months ended June 30, 2008 from 1,229 homes delivered for the six months ended June 30, 2007, and a
28% decrease in the average selling price of homes to $264,000 for the six months ended June 30,
2008 from $365,000 for the six months ended June 30, 2007.
During the six months ended June 30, 2008, we recognized $205.9 million in impairment charges
compared to $28.7 million for the six months ended June 30, 2007. Gross margin on home sales,
excluding impairments, was 5% for the six months ended June 30, 2008, compared to 22% for the six
months ended June 30, 2007. This decrease in gross margin was primarily due to an increase in sales
incentives offered to home buyers coupled with a decline in the base
price of the homes delivered. The average sales incentive per home delivered increased 87% to
$99,100 per home for the six months ended June 30, 2008, from $52,900 for the six months ended June
30, 2007.
For the six months ended June 30, 2008 and 2007, we incurred a loss of $34.9 million and $9.4
million from land sales, respectively, which included land impairments and abandonment costs of
$36.4 million and $12.8 million, respectively.
Mid-Atlantic: Homebuilding revenues decreased 73% to $30.6 million for the six months ended
June 30, 2008 from $114.7 million for the six months ended June 30, 2007. The decrease in
Homebuilding revenues was primarily due to a decrease in revenues from home sales during the six
months ended June 30, 2008 as a result of a 73% decrease in the number of home deliveries to 86
homes delivered for the six months ended June 30, 2008 from 320 homes delivered for the six months
ended June 30, 2007, and a 8% decrease in the average selling price of homes to $330,000 for the
six months ended June 30, 2008 from $358,000 for the six months ended June 30, 2007.
54
During the six months ended June 30, 2008, we recognized $12.5 million in impairment charges
compared to $6.6 million for the six months ended June 30, 2007. Gross margin on home sales,
excluding impairments, was 8% for the six months ended June 30, 2008, compared to 14% for the six
months ended June 30, 2007. This decrease in gross margin was primarily due to an increase in sales
incentives offered to home buyers coupled with a decline in the base
price of the homes delivered. The average sales incentive per home delivered increased 15% to
$31,100 per home for the six months ended June 30, 2008, from $27,000 for the six months ended June
30, 2007.
For the six months ended June 30, 2008 and 2007, we incurred a loss of $9.3 million and $14.1
million, respectively, from land sales, which included land impairments and abandonment costs of
$9.4 million and $13.9 million, respectively.
Texas: Homebuilding revenues decreased 34% to $212.3 million for the six months ended June
30, 2008 from $320.0 million for the six months ended June 30, 2007. The decrease in Homebuilding
revenues was due to a 35% decrease in revenues from home sales to $205.2 million for the six months
ended June 30, 2008 from $313.9 million for the six months ended June 30, 2007. The decrease in
revenue from home sales was primarily due to a 34% decrease in the number of home deliveries to 801
for the six months ended June 30, 2008 from 1,221 homes delivered for the six months ended June 30,
2007. The average selling price of homes remained relatively unchanged at $256,000 for the six
months ended June 30, 2008 from $257,000 for the six months ended June 30, 2007. Our Texas region
has been less affected by the challenging market conditions experienced in other regions. We
believe that this is the result of the overall moderate growth rates and price appreciation
experienced in Texas in prior periods and the relative health of the Texas economy as compared to
other markets in which we sell.
During the six months ended June 30, 2008, we recognized $3.1 million in impairment charges
compared to $0.6 million for the six months ended June 30, 2007. Gross margin on home sales,
excluding impairments, was 16% for the six months ended June 30, 2008, compared to 22% for the six
months ended June 30, 2007. This decrease in gross margin was primarily due to an increase in sales
incentives offered to home buyers. The average sales incentive per home delivered increased 61% to
$26,600 per home for the six months ended June 30, 2008, from $16,600 for the six months ended June
30, 2007.
For the six months ended June 30, 2008 and 2007, we incurred a (loss)/gain of $(6.7) million
and $0.4 million, respectively, from land sales, which included land impairments and abandonment
costs of $6.8 million and $0.3 million, respectively.
West: Homebuilding revenues decreased 46% to $116.1 million for the six months ended June 30,
2008 from $216.2 million for the six months ended June 30, 2007. The decrease in Homebuilding
revenues was due to a 50% decrease in revenues from home sales to $106.8 million for the six months
ended June 30, 2008 from $215.1 million for the six months ended June 30, 2007, partially offset by
an increase in revenue from land sales to $9.3 million for the six months ended June 30, 2008 from
$1.1 million for the six months ended June 30, 2007. The decrease in revenue from home sales was
due to a 35% decrease in the number of home deliveries to 390 for the six months ended June 30,
2008 from 604 homes delivered for the six months ended June 30, 2007, and a 23% decrease in the
average selling price of homes to $274,000 for the six months ended June 30, 2008 from $356,000 for
the six months ended June 30, 2007.
During the six months ended June 30, 2008, we recognized $55.7 million in impairment charges
compared to $13.5 million for the six months ended June 30, 2007. Gross margin on home sales,
excluding impairments, was 3% for the six months ended June 30, 2008, compared to 13% for the six
months ended June 30, 2007. This decrease in gross margin was primarily due to the decrease in
average selling prices discussed above. The average sales incentive per home delivered decreased
to $52,600 for the six months ended June 30, 2008 compared to $58,700 for the six months ended June
30, 2007 as incentives were factored into a reduction in the base
price of the home.
For the six months ended June 30, 2008, we incurred a loss of $144.0 million from land sales
primarily due to land improvements and the write-offs of deposits and abandonment costs totaling $147.2 million, as
compared to a loss on land sales of $42.6 million during the six months ended June 30, 2007, which
included $47.5 million of land impairments and abandonment costs. Land impairment and abandonment
charges during the six months ended June 30, 2008 include a $85.0 million impairment on a parcel of
land as discussed in Note 3 to the unaudited consolidated financial statements.
Seasonality
The homebuilding industry tends to be seasonal, as generally there are more homes sold in the
spring and summer months when the weather is milder. Because new home deliveries trail new home
contracts by a number of months, we typically have the greatest percentage of home deliveries in
the fall and winter, and slow sales in the spring and summer months could negatively affect our
full year results. We operate primarily in the Southwest and Southeast, where weather conditions
are more suitable to a year-round construction process than in other parts of the country. Our
operations in Florida and Texas are at risk of repeated and potentially prolonged disruptions
during the Atlantic hurricane season, which lasts from June 1 until November 30.
FINANCIAL CONDITION, LIQUIDITY AND CAPITAL RESOURCES
Sources and Uses of Cash
Our Homebuilding operations primary uses of cash have been for land acquisitions,
construction and development expenditures, joint venture investments and SG&A expenditures. Our
sources of cash to finance these uses have been primarily cash generated from operations and cash
from our financing activities.
Our
Financial Services operations primarily used cash to fund mortgages, prior to their sale,
and SG&A expenditures. We relied primarily on internally
generated funds, which included the proceeds
generated from the sale of mortgages, and the mortgage operations warehouse lines of credit to
fund these operations.
Our income before non-cash charges generally is our most significant source
of operating cash flow.
55
At June 30, 2008, our homebuilding operations had unrestricted cash and cash equivalents of
$192.4 million as compared to $67.2 million at December 31, 2007.
We are operating our businesses as debtors-in-possession under the jurisdiction of the
Bankruptcy Court and in accordance with the applicable provisions of the Bankruptcy Code and orders
of the Bankruptcy Court. As a result, we are subject to the risks and uncertainties associated with
our Chapter 11 cases which include, among other things:
|
|
|
the availability of and our ability to operate subject to the terms of the cash collateral
order and related budget; |
|
|
|
|
limitations on our ability to implement and execute our business plans and strategy; |
|
|
|
|
our ability to obtain and maintain normal terms with existing and potential homebuyers,
vendors and service providers and maintain contracts and leases that are critical to our
operations; |
|
|
|
|
our ability to obtain needed approval from the Bankruptcy Court for transactions outside of
the ordinary course of business, which may limit our ability to respond on a timely basis to
certain events or take advantage of certain opportunities; |
|
|
|
|
limitations on our ability to obtain Bankruptcy Court approval with respect to motions in
the Chapter 11 cases that we may seek from time to time or potentially adverse decisions by
the Bankruptcy Court with respect to such motions, including as a result of the actions of
our creditors and other third parties, who may oppose our requested relief or who may seek
to require us to take actions that we oppose; |
|
|
|
|
limitations on our ability to reject contracts or leases that are burdensome or uneconomical; |
|
|
|
|
limitations on our ability to raise capital, including through sales of assets; and |
|
|
|
|
our ability to attract, motivate and retain key and essential personnel is impacted by the
Bankruptcy Code which limits our ability to implement a retention program or take other
measures intended to motivate employees to remain with us. |
These risks and uncertainties could negatively affect our business and operations in various
ways. For example, events or publicity associated with our Chapter 11 cases could adversely affect
our relationships with existing and potential homebuyers, vendors and employees, which in turn
could adversely affect our operations and financial condition, particularly if such proceedings are
protracted.
As a result of our Chapter 11 cases and the other matters described herein, including the
uncertainties related to the fact that our filed plan of reorganization has not been confirmed,
there is substantial doubt about our ability to continue as a going concern. Our ability to
continue as a going concern, including our ability to meet our ongoing operational obligations, is
dependent upon, among other things:
|
|
|
our ability to generate and maintain adequate cash; |
|
|
|
|
the cost, duration and outcome of the restructuring process; |
|
|
|
|
our ability to comply with the terms of our cash collateral order and
seek and receive extensions of our ability to use cash collateral; and |
|
|
|
|
our ability to retain key employees. |
These challenges are in addition to those operational and competitive challenges that we face
in connection with our business.
As
a result of severe market conditions and our liquidity constraints,
during the six months ended June 30, 2008, we abandoned our rights under certain option agreements which resulted
in an approximately 6,300 unit decline in our optioned homesites. Abandonment decisions were made
following in depth community by community analyses of all option contracts based on projected
returns, amount and timing of incremental cash flow, and owned homesites. As a result of
abandoning our rights under option contracts, as of June 30, 2008, we accrued $4.8 million for
letters of credit which we anticipated would be drawn due to nonperformance under such contracts.
From July 1, 2008 through February 28, 2009, an additional $2.5 million of letters of credit have
been drawn related to the abandonment of option contracts which have increased our borrowings
outstanding under our Revolving Loan Facility. In certain instances, we have entered into
development agreements in connection with option contracts which require us to complete the
development of the land, at a fixed reimbursable amount, even if we choose not to exercise our
option and forfeit our deposit and even if our costs exceed the reimbursable amount. We recorded
losses of $4.0 million for the six months ended June 30, 2008 for our estimated obligations under
these development agreements, which is included in inventory impairments and abandonment costs in
the accompanying unaudited consolidated statement of operations. No losses were recorded during
the three months ended June 30, 2008. Through the first quarter of 2009, we have continued to
reduce inventory in an attempt to further align our inventory levels to housing demand in those
markets we serve, reduce our cost of sales relating to construction and labor costs for the homes
we build and reduce our selling, general and administrative costs to levels consistent with fewer
home deliveries to operate within our liquidity constraints. These or future actions
may not be sufficient to allow us to continue our operations.
56
Our unaudited consolidated financial statements are presented on a going concern basis, which
contemplates the realization of assets and satisfaction of liabilities in the normal course of
business. We have $1.9 billion in borrowings and have experienced significant operating losses. For
the six months ended June 30, 2008, we incurred a loss from continuing operations, net of taxes, of
$661.8 million and had stockholders deficit of $1.1 billion. There is substantial doubt about our
ability to continue as a going concern. Our ability to continue as a going concern and emerge
successfully from our Chapter 11 cases will depend upon our development and consummation of a plan
of reorganization. The accompanying unaudited consolidated financial statements do not include any
adjustments to reflect the possible future effects on the recoverability and classification of
assets.
For the six months ended June 30, 2008, cash provided by/(used in) operating activities was
$109.2 million, as compared to $(83.2) million during the six months ended June 30, 2007. The
improvement in the use of cash by our operating activities is primarily a result of a decrease in
our inventory. The increase in restricted cash and related decrease in other assets is primarily
due to a $207.3 million refund of previously paid income taxes of which $175.0 million has been has
been included in restricted cash at June 30, 2008 as required by the cash collateral order (see
Notes 1 and 10 of the consolidated unaudited financial statements). In addition to this refund,
through June 2008, we have received refunds of overpayments of federal and state income taxes
reflected on our 2006 returns and a quick refund application for 2007 estimated tax payments
totaling $33.4 million. We are subject to Joint Committee on Taxation reviews under the normal
procedures applicable to taxpayers with refunds in excess of $2.0 million
Cash used in investing activities was $2.0 million during the six months ended June 30, 2008,
as compared to $18.9 million during the six months ended June 30, 2007. The decrease in cash used
in investing activities is primarily due to the reduction in the investments in our unconsolidated
joint ventures during the six months ended June 30, 2007 of $21.1 million compared to $1.6 million
for the six months ended June 30, 2008.
Financing Activities
Our consolidated borrowings at June 30, 2008 were $1.9 billion (see Note 9 to the unaudited
consolidated financial statements).
The filing of the Chapter 11 cases triggered repayment obligations under a number of
instruments and agreements relating to our direct and indirect financial obligations. As a result,
all our borrowings became automatically and immediately due and payable. We believe that any
efforts to enforce the payment obligations are stayed as a result of the filing of the Chapter 11
cases.
On February 5, 2008, pursuant to an interim order from the Bankruptcy Court dated January 31,
2008, we entered into a Senior Secured Super-Priority Debtor in Possession Credit and Security
Agreement. The agreement provided for a first priority and priming secured revolving credit interim
commitment of up to $134.6 million. The agreement was subsequently amended to extend it to June 19,
2008. No funds were drawn under the agreement.
The agreement was subsequently terminated and we entered into an agreement with our
prepetition secured lenders to use cash collateral on hand (cash generated by our operations,
including the sale of excess inventory and the proceeds of our federal tax refund of $207.3 million
received in April 2008). We are authorized by the Bankruptcy Court to use cash collateral of our
first lien and second lien lenders in a manner consistent with a budget negotiated by the parties.
The order further provided for the pay-down of $175.0 million to our first lien term secured
lenders, subject to disgorgement provisions in the event that certain claims against the lenders
are successful and repayment is required. We also have the right to pay-down an additional $15.0
million to our first lien secured lenders. As of March 6, 2009, we had paid-down approximately
$143.0 million to the first lien secured lenders. We may incur liens and enter into sale/leaseback
transactions for model homes subject to certain limitations. We have granted the pre-petition
agents and the lenders various forms of protection, including liens and claims to protect against
any diminution of the collateral value, payment of accrued, but unpaid interest on the first
priority indebtedness at the non-default rate and the payment of reasonable fees and expenses of
the agents under our secured facilities.
We and the first lien lenders reached an agreement to extend the use of cash collateral until
April 30, 2009 on terms substantially similar to those in the original cash collateral order. The
new cash collateral order was approved by the Bankruptcy Court on January 28, 2009. If we fail to
comply with the order, we will not have sufficient cash to enable us to operate our business and
effectuate our restructuring.
Revolving Loan Facility and First and Second Lien Term Loan Facilities
To effect the TE Acquisition, on July 31, 2007, we entered into (1) the $200.0 million
aggregate principal amount first lien term loan facility (the First Lien Term Loan Facility) and
(2) the $300.0 million aggregate principal amount second lien term loan facility (the Second Lien
Term Loan Facility), (First and Second Lien Term Loan Facilities taken together, the
Facilities). At June 30, 2008 and December 31, 2007, we had $272.8 million and $168.5 million,
respectively, outstanding under our revolving loan facility (the Revolving Loan Facility). There
is no additional capacity available under the Revolving Loan Facility other than for letters of
credit presented to the bank. The Revolving Loan Facility expires on March 9, 2010. The First
Lien Term Loan Facility expires on July 31, 2012 and the Second Lien Term Loan Facility expires on
July 31, 2013. At June 30, 2008, the Revolving Loan Facility and the Facilities are classified as
liabilities subject to compromise (see Note 2 to the unaudited consolidated financial statements).
The interest rates on the Facilities and the Revolving Loan Facility are based on LIBOR plus a
margin or an alternate base rate plus a margin, at our option. For the Revolving Loan Facility, the
LIBOR rates are increased by between 2.50% and 5.25% depending on our leverage ratio (as defined in
the Agreement) and credit ratings. Loans bearing interest at the base rate (the rate announced by
Citibank as its base rate or 0.50% above the Federal Funds Rate) increase between 1.00% and 4.25%
in accordance with the same criteria. Based on our
current leverage ratio and credit ratings, our LIBOR loans bear interest at LIBOR plus 5.25%
and our base rate loans bear interest at the
57
Federal Funds Rate plus 4.25%. For the First Lien Term
Loan Facility, the interest rate is LIBOR plus 5.00% or base rate plus 4.00%. For the Second Lien
Term Loan Facility, the interest rate is LIBOR plus 7.25% or base rate plus 6.25%. The Second Lien
Term Loan Facility allows us to pay interest, at our option, (i) in cash, (ii) entirely by
increasing the principal amount of the Second Lien Term Loan Facility, or (iii) a combination
thereof. The Facilities and the New Revolving Loan Facility are guaranteed by substantially all of
our domestic subsidiaries. The obligations are secured by substantially all of our assets,
including those of our subsidiaries other than our mortgage and title subsidiaries.
Senior Notes and Senior Subordinated Notes
In connection with the issuance of the $250.0 million 8 1 / 4 % senior notes, we filed within
90 days of the issuance a registration statement with the SEC covering a registered offer to
exchange the notes for exchange notes of ours having terms substantially identical in all material
respects to the notes. The registration statement was not declared effective within the required
180 days of issuance and was withdrawn in 2008. As a result, on October 9, 2006, in accordance
with their terms, the notes became subject to special interest which accrues at a rate of 0.25% per
annum during the 90-day period immediately following the occurrence of such default, and increases
by 0.25% per annum at the end of each 90-day period, up to a maximum of 1.0% per annum. In
accordance with SOP 90-7, as of January 29, 2008, the petition date, we ceased accruing special
interest and reversed $2.3 million of the interest expense that had been previously accrued as
these are unsecured claims and not entitled to interest upon filing petitions for relief under
Chapter 11.
Our outstanding senior notes are guaranteed, on a joint and several basis, by the Guarantor
Subsidiaries, which are all of our material domestic subsidiaries, other than our mortgage and
title subsidiaries (the Non-Guarantor Subsidiaries). Our outstanding senior subordinated notes are
guaranteed on a senior subordinated basis by all of the Guarantor Subsidiaries. The senior notes
rank pari passu in right of payment with all of our existing and future unsecured senior debt and
senior in right of payment to our senior subordinated notes and any future subordinated debt. The
senior subordinated notes rank pari passu in right of payment with all of our existing and future
unsecured senior subordinated debt. The indentures governing the senior notes and senior
subordinated notes generally require us to maintain a minimum consolidated net worth and place
certain restrictions on our ability, among other things, to incur additional debt, pay or declare
dividends or other restricted payments, sell assets, enter into transactions with affiliates,
invest in joint ventures above specified amounts and merge or consolidate with other entities.
Interest on our outstanding senior notes and senior subordinated notes is payable semi-annually.
In accordance with SOP 90-7, as of January 29, 2008, the petition date, we ceased accruing interest
on the senior notes and the senior subordinated notes as these are unsecured claims and are not
entitled to interest upon filing petitions for relief under Chapter 11. At June 30, 2008, the
senior notes and senior subordinated notes are classified as liabilities subject to compromise (see
Note 2 to the unaudited consolidated financial statements).
Senior Subordinated PIK Notes
As part of the transactions to settle the disputes regarding the Transeastern JV, on July 31,
2007, the senior mezzanine lenders to the Transeastern JV received $20.0 million in aggregate
principal amount of 14.75% Senior Subordinated PIK Election Notes due 2015.
Interest on the PIK Notes is payable semi-annually. The Notes are unsecured senior
subordinated obligations of ours, and are guaranteed on an unsecured senior subordinated basis by
each of our existing and future subsidiaries that guarantee our 7.5% Senior Subordinated Notes due
2015 (the Existing Notes). We are required to pay 1% of the interest in cash and the remaining
13.75%, at our option, (i) in cash, (ii) entirely by increasing the principal amount of the Notes
or issuing new notes, or (iii) a combination thereof. The PIK Notes mature on July 1, 2015. The
indenture governing the Notes contains the same covenants as contained in the indenture governing
the Existing Notes and is subject, in most cases, to any change to such covenants made to the
indenture governing the Existing Notes. The Notes are redeemable by us at redemption prices greater
than their principal amount. The PIK Notes contain an optional redemption feature that allows us to
redeem up to a maximum of 35% of the aggregate principal amount of the PIK Notes using the proceeds
of subsequent sales of its equity interest at 114.75% of the aggregate principal amount of the PIK
Notes then outstanding, plus accrued and unpaid interest. Additionally, after July 1, 2012, subject
to certain terms of our other debt agreements, we may redeem the PIK Notes at a premium to the
principal amount as follows: 2012 107.375%; 2013 103.688%; 2014 and thereafter 100.000%.
The call options exercisable at anytime after July 1, 2012 at a premium do not require bifurcation
under SFAS 133 because they are only exercisable by us and they are not contingently exercisable.
The redemption option is conditionally exercisable based on the proceeds raised from an equity
offering at 114.75% of up to 35% of the aggregate outstanding PIK Notes principal and represents an
embedded call option that must be bifurcated from the PIK Notes; however, the fair value of this
call option is not material and has not been bifurcated from the host instrument.
The PIK Notes provide for registration rights for the holders whereby the interest rate
increases by 0.25% per annum for the first 90 days of a registration default, as defined, which
amount increases by an additional 0.25% every 90 days a registration default is continuing, not to
exceed 1.0% in the aggregate, from and including the date of the registration default to and
excluding the date on which the registration default is cured. Registration default payments may be
paid, at our option, in cash, additional Notes, or a combination thereof. For the three months
ended June 30, 2008, we have not incurred additional interest expense as a result of such default.
At June 30, 2008, the PIK Notes are classified as liabilities subject to compromise (see Note
2 to the unaudited consolidated financial statements).
Financial Services Borrowings
On January 28, 2008, Preferred Home Mortgage Company, our wholly-owned residential mortgage
lending subsidiary, entered into an Amended and Restated Agreement of Limited Liability Company
with Wells Fargo Ventures, LLC. The limited liability company is known as PHMCWF, LLC but does
business as Preferred Home Mortgage Company, an affiliate of Wells Fargo. Preferred Home Mortgage
Company owns 49.9% of the venture with the balance owned by Wells Fargo. Effective April 1, 2008,
the venture began to carry on the mortgage business of Preferred Home Mortgage Company. The venture
is managed by a committee composed of six members, three from Preferred Home Mortgage Company and
three from Wells Fargo. The venture entered into a revolving credit agreement with Wells Fargo
Bank, N.A. providing for advances of up to $20.0 million. Effective April 1, 2008, we began to
account for the venture as an equity-
method investment.
58
Until December 4, 2008, the joint venture had two warehouse lines of credit in place to fund
the origination of residential mortgage loans. The revolving warehouse line of credit (the
Warehouse Line of Credit), which was entered into on December 5, 2007, provided for revolving
loans of up to $25.0 million. The Warehouse Line of Credit replaced the $100.0 million revolving
warehouse line of credit that expired on December 8, 2007. From January 25, 2008 through December
4, 2008, the availability under the Warehouse Line of Credit was reduced to $15.0 million. The
$150.0 million mortgage loan purchase facility (Purchase Facility) was amended to decrease the
size of the facility to $75.0 million. From January 25, 2008 through December 4, 2008, the
availability under the Purchase Facility was reduced to $40.0 million. However, we had agreed with
the lender not to utilize these facilities. The Warehouse Line of Credit bore interest at the
30-day LIBOR rate plus a margin of 2.0%, was secured by funded mortgages, which were pledged as
collateral, and required our mortgage subsidiary to maintain certain financial ratios and minimums.
The Warehouse Line of Credit also placed certain restrictions on, among other things, our mortgage
subsidiarys ability to incur additional debt, create liens, pay or make dividends or other
distributions, make equity investments, enter into transactions with affiliates, and merge or
consolidate with other entities. Our mortgage subsidiary was in compliance with all covenants and
restrictions at June 30, 2008. At June 30, 2008, our mortgage subsidiary had no outstanding
borrowings.
Liquidity Needs
We continue to have substantial liquidity needs in the operation of our business and face
liquidity challenges. Our business depends upon our ability to obtain financing for the development
of our residential communities and to provide bonds to ensure the completion of our projects. We
expect to have sufficient resources and borrowing capacity to meet all of our commitments
throughout the projected term of our Chapter 11 cases as a result of an agreement we entered in
June 2008 with our secured lenders to use cash collateral on hand (cash generated by our
operations, including the sale of excess inventory and the proceeds of our federal tax refund of
$207.3 million received in April 2008). Pursuant to a Bankruptcy Court order dated June 20, 2008,
we are authorized by the Bankruptcy Court to use cash collateral of our first lien and second lien
lenders (approximately $358.0 million at the time of the order) in a manner consistent with a
budget negotiated by the parties. The order further provided for the pay-down of $175.0 million of
the $358.0 million to our first lien term secured lenders, subject to disgorgement provisions in
the event that certain claims against the lenders are successful and repayment is required. The
order also reserves our sole right to pay-down an additional $15.0 million to our first lien
secured lenders. As of March 6, 2009, we had paid-down approximately $143.0 million of the $175.0
million to the first lien secured lenders. We are permitted under the order to incur liens and
enter into sale/leaseback transactions for model homes subject to certain limitations. As part of
the order, we have granted the pre-petition agents and the lenders various forms of protection,
including liens and claims to protect against any diminution of the collateral value, payment of
accrued, but unpaid interest on the first priority indebtedness at the non-default rate and the
payment of reasonable fees and expenses of the agents under our secured facilities.
We and the first lien lenders reached an agreement to extend the use of cash collateral until
April 30, 2009 on terms substantially similar to those in the original cash collateral order. The
new cash collateral order was approved by the Bankruptcy Court on January 28, 2009. If we fail to
comply with the new order, we will not have sufficient cash to enable us to operate our business
and effectuate our restructuring.
In order to successfully emerge from our Chapter 11 cases as a viable company, we must
develop, obtain requisite creditor and Bankruptcy Court approval of, and consummate a Chapter 11
plan of reorganization. This process requires us to meet certain statutory requirements under the
Bankruptcy Code with respect to adequacy of disclosure regarding a plan of reorganization,
soliciting and obtaining creditor acceptances of a plan and fulfilling other statutory conditions
for confirmation. We may not receive the requisite acceptances to confirm a plan of reorganization.
Even if the requisite acceptances to a plan of reorganization are received, the Bankruptcy Court
may not confirm the plan. In addition, even if a plan of reorganization is confirmed, we may not be
able to consummate such plan.
If we fail to comply with our cash collateral order, we may not be able to borrow in an amount
sufficient to enable us to operate our business and restructure our business in bankruptcy.
If a plan of reorganization is not confirmed by the Bankruptcy Court, or if we are unable to
successfully consummate a plan after confirmation, we may not be able to reorganize our businesses.
If an alternative reorganization could not be agreed upon, we may have to liquidate our assets.
The Bankruptcy Court established May 19, 2008 as the bar date for filing proofs of claim
against the Debtors relating to obligations arising before
January 29, 2008. As of February 25,
2009, approximately 4,400 claims have been filed against us totaling approximately $7.3 billion in
asserted liabilities. These claims are comprised of approximately $5.0 million in administrative
claims, $219.0 million in secured claims, $75.0 million in priority claims and $7.0 billion in
unsecured claims. There are many claims (at least 700) that have been asserted in unliquidated
amounts or that contain an unliquidated component. Notably, among the unliquidated claims are the
claims of our secured first and second lien lenders. In addition, the indenture trustees under our
approximately $1.1 billion of unsecured debentures each filed an unliquidated claim with respect to
such obligations.
On October 13, 2008, we filed with the Bankruptcy Court the (a) Joint Plan of TOUSA, Inc. and
its Affiliated Debtors and Debtors in Possession under Chapter 11 of the Bankruptcy Code (as
modified or revised, the Plan) and (b) Disclosure Statement pursuant to Section 1125 of the
Bankruptcy Code relating to the Plan (as modified or revised, the Disclosure Statement). On
October 24, 2008 and November 12, 2008, the debtors filed revised versions of the Plan and
Disclosure Statement (including projected financial information) with the Bankruptcy Court. Copies
of the Plan and Disclosure Statement, as filed with the Bankruptcy Court, are available at
http://www.tousa.com/reorg. We have the exclusive right to solicit acceptance thereof until April
30, 2009. Pursuant to Section 1121 of the Bankruptcy Code, the exclusivity periods may be expanded
or reduced by the Bankruptcy Court, but in no event can the exclusivity periods to file and solicit
acceptance of a plan or plans of reorganization be extended beyond June 29, 2009.
Off Balance Sheet Arrangements
59
Land and Homesite Option Contracts
In the ordinary course of business, we enter into option contracts to purchase homesites and
land held for development. At June 30, 2008 and December 31, 2007, we had non-refundable cash
deposits totaling $30.2 million and $56.9 million, respectively, included in inventory in the
accompanying unaudited consolidated statements of financial condition. Under these option
contracts, we have the right to buy homesites at predetermined prices on a predetermined takedown
schedule. Option contracts generally require the payment of a cash deposit and/or the posting of a
letter of credit, which is typically less than 20% of the underlying purchase price, and may
require monthly maintenance payments. These option contracts are either with land sellers or third
party financial entities which have acquired the land to enter into the option contract with us.
Homesite option contracts are generally non-recourse, thereby limiting our financial exposure for
non-performance to our cash deposits and/or letters of credit. In certain instances, we have
entered into development agreements in connection with option contracts, which require us to
complete the development of the land, at a fixed reimbursable amount, even if we choose not to
exercise our option and forfeit our deposit and even if our costs exceed the reimbursable amount.
We recorded losses of $4.0 million for the six months ended June 30, 2008 for our estimated
obligations under these development agreements, which is included in inventory impairments and
abandonment costs in the accompanying unaudited consolidated statement of operations. No such
losses were recorded during the three months ended June 30, 2008. At June 30, 2008 and December 31,
2007, $14.3 million and $10.3 million are included in liabilities subject to compromise and
accounts payable and other liabilities, respectively, in the accompanying unaudited consolidated
statements of financial condition related to these development agreements. See Note 3 to our
unaudited consolidated financial statements included herein.
Certain of our option contracts give the other party the right to require us to purchase
homesites or guarantee certain minimum returns. We have abandoned our rights under certain of these
option contracts and we have not complied with the notices given to us. These option contracts were
previously recorded as financing transactions under SFAS 66 and the inventory was included in
inventory not owned and the corresponding liability was included in obligations for inventory not
owned. Since we defaulted under or terminated these contracts, we are no longer accounting for
these contracts as financing transactions. During the three and six months ended June 30, 2008, we
recorded losses of $4.8 million and $9.5 million, respectively, in connection with the abandonment
of these option contracts, for our estimated obligations, which is included in inventory
impairments and abandonment costs in the accompanying unaudited
consolidated statements of
operations. These amounts were computed based on the estimated deficiency between the fair value
of the underlying inventory compared to our required purchase price under the option contract. The
total required purchase price under these option contracts at June 30, 2008 and December 31, 2007
was $28.6 million and $25.0 million, respectively. At June 30, 2008 and December 31, 2007, $19.0
million and $9.5 million is included in liabilities subject to compromise and accounts payable and
other liabilities, respectively, in the accompanying unaudited consolidated statements of financial
condition.
We are subject to the normal obligations associated with entering into contracts for the
purchase, development and sale of real estate in the routine conduct of our business. We are
committed under various letters of credit and performance bonds which are required for certain
development activities, deposits on land and deposits on homesite purchase contracts. Under these
arrangements, we had total outstanding letters of credit of $31.7 million as of June 30, 2008. As a
result of abandoning our rights under option contracts, as of June 30, 2008, we accrued $4.8
million for letters of credit which we anticipated would be drawn due to nonperformance under such
contracts. From July 1, 2008 through February 28, 2009, an additional $2.5 million of letters of
credit have been drawn related to the abandonment of option contracts which have increased our
borrowings outstanding under our Revolving Loan Facility. In certain instances, we have entered
into development agreements in connection with option contracts which require us to complete the
development of the land, at a fixed reimbursable amount, even if we choose not to exercise our
option and forfeit our deposit and even if our costs exceed the reimbursable amount.
At June 30, 2008, we have total outstanding performance / surety bonds of $170.1 million
related to land development activities and have estimated our exposure on our outstanding surety
bonds to be $58.6 million based on land development remaining to be completed. At June 30, 2008 and
December 31, 2007, our accrual totaled $42.0 million and $48.0 million, respectively, for surety
bonds where we consider it probable that we will be required to reimburse the surety for amounts
drawn related to defaulted agreements, which is included as a liability subject to compromise and
accounts payable and other liabilities, respectively, in the accompanying unaudited consolidated
statements of financial condition.
Until the establishment of a surety bond program in January 2009, we had no ability to obtain
new surety bonds or letters of credit and in some cases, had to post cash deposits with
government entities or escrow agents. Under the program approved by the Bankruptcy Court, we have
an aggregate $15.0 million available for surety bonds. Surety bonds are issued after notice to
creditors who have a right to object. The surety bonds are collateralized by cash deposits
maintained in escrow accounts. At February 28 2009, $2.5 million was maintained as collateral for
surety bonds.
Investments in Unconsolidated Joint Ventures
We have entered into strategic joint ventures that acquire and develop land for our
Homebuilding operations and/or that also build and market homes for sale to third parties. Our
partners in these joint ventures generally are unrelated homebuilders, land sellers, financial
investors or other real estate entities. In some cases our Chapter 11 filings have constituted an
event of default under the joint venture lender agreements which have resulted in the debt becoming
immediately due and payable, limiting the joint ventures access to future capital. In joint
ventures where the assets are being financed with debt, the borrowings are non-recourse to us
except that in certain instances we have agreed to complete certain property development
commitments in the event the joint ventures default and to indemnify the lenders for losses
resulting from fraud, misappropriation, violations of environmental laws and similar acts. In some
cases, we have agreed to make capital contributions to the joint venture sufficient to comply with
a specified debt to value ratio. Our obligations become full recourse upon certain bankruptcy
events with respect to the joint venture. At June 30, 2008 and December 31, 2007, we had
investments in unconsolidated joint ventures of $8.7 million and $9.0 million, respectively. We
account for these investments under the equity method of accounting. These unconsolidated joint
ventures are limited liability companies or limited partnerships in which we have
a limited partnership interest and a minority interest in the general partner. At June 30,
2008 and December 31, 2007, we had receivables of $0.1 million and $0.3 million net of allowances,
respectively, from these joint ventures due to loans and advances, unpaid management fees and other
items.
60
In many instances, we are appointed as the day-to-day manager of the unconsolidated entities
and receive management fees for performing this function. We earned management fees from these
unconsolidated entities of $0 and $4.5 million for the three months ended June 30, 2008 and 2007,
respectively, and $0.1 million and $8.1 million for the six months ended June 30, 2008 and 2007,
respectively. These fees are included in income (loss) from unconsolidated joint ventures in the
accompanying unaudited consolidated statements of operations.
We evaluated the recoverability of our investments in and receivables from unconsolidated
joint ventures under APB 18 and SFAS No. 114, Accounting by Creditors for Impairment of a Loan
(SFAS 114), and recorded total impairments of investments in unconsolidated joint ventures of
$2.3 million for the three months ended June 30, 2008 and $2.8 million and $5.5 million for the six
months ended June 30, 2008 and 2007, respectively. At June 30, 2008 and December 31, 2007 the
accrual related to joint venture obligations was $59.5 million and $74.6 million, respectively,
which primarily relates to limited guarantees we issued in connection with our unconsolidated joint
ventures. As explained in further detail below, the decrease in the
accrual is primarily due to the reduction of loss accruals totaling
$11.6 million for certain joint venture obligations established in 2007 and reversed during the three months ended June
30, 2008.
Engle/Sunbelt Joint Venture
In December 2004, we entered into a joint venture agreement with Suntous Investors, LLC
(Suntous) to form Engle/Sunbelt Holdings, LLC (Engle/Sunbelt). Engle/Sunbelt was formed to
develop finished homesites and to build and deliver homes in the Phoenix, Arizona market. Upon its
inception, the venture acquired eight of our existing communities in Phoenix, Arizona.
At December 31, 2007, the joint venture had financing arrangements with an aggregate borrowing
capacity of $230.0 million, of which $200.0 million related to a revolving loan and $30.0 million
related to a mezzanine financing instrument. On January 16, 2008, the facility was amended to
reduce the revolving loan limit to $115.0 million and terminate the mezzanine financing instrument.
While the borrowings by Engle/Sunbelt were non-recourse to us, we had obligations to complete
construction of certain improvements and housing units in the event Engle/Sunbelt defaulted.
Additionally, we agreed to indemnify the lenders for, among other things, potential losses
resulting from violations of environmental laws, misappropriation, bankruptcy filings and similar
acts by Engle/Sunbelt.
Although Engle/Sunbelt was not included in our Chapter 11 filings, our Chapter 11 filings
constituted an event of default under the financing arrangements and Engle/Sunbelts debt became
immediately due and payable.
During 2007, we evaluated the recoverability of our investment in and receivables from
Engle/Sunbelt for impairment under APB 18 and SFAS 114, respectively, and recorded an impairment
charge of $60.7 million representing the full carrying value our investment in and receivables
from Engle/Sunbelt, net of deferred gains of $22.5 million.
In April 2008, we entered into a settlement agreement with the lenders pursuant to which
Engle/Sunbelt agreed to the appointment of a receiver and further agreed to either, at the election
of the lenders, deliver a deed in lieu of foreclosure to its assets or consent to a judicial
foreclosure. We also agreed to assist the lenders in their efforts to complete certain construction
for which we will receive arms length compensation. The Bankruptcy Court entered an order
approving the settlement agreement. Pursuant to the settlement agreement, on November 20, 2008, we
were relieved from our obligations under the completion and indemnity agreements.
TOUSA/Kolter Joint Venture
In January 2005, we entered into a joint venture with Kolter Real Estate Group LLC to form
TOUSA/Kolter Holdings, LLC (TOUSA/Kolter) for the purpose of acquiring, developing and selling
approximately 1,900 homesites and commercial property in a master planned community in South
Florida. The joint venture obtained senior and senior subordinated term loans. We entered into a
Performance and Completion Agreement in favor of the lenders under which we agreed, among other
things, to construct and complete the horizontal development of the lots and commercial property
and related infrastructure in accordance with certain plans. The loans required, among other
things, TOUSA/Kolter to have completed the development of certain lots by January 7, 2007. Due to
unforeseen and unanticipated delays in the entitlement process and additional development requests
by the county and water management district, TOUSA/Kolter was unable to complete the development of
these certain lots by the required deadline. On June 21, 2007, and in response to missing the
development deadline, TOUSA/Kolter amended the existing loan agreements and we amended the
Performance and Completion Agreement to extend the Performance and Completion Agreement development
deadline to May 31, 2008. The amendments to the term loan agreements increased the interest rate on
the senior term loan by 100 basis points to LIBOR plus 3.25% and by 50 basis points to LIBOR plus
8.5% for the senior subordinated term loan. As a condition to the amendment, we agreed with Kolter
Real Estate Group LLC to be responsible for the additional 150 basis points; accordingly, this
would be a cost of the lots we acquired from TOUSA/Kolter. The amendment also required us to
increase our existing letter of credit by an additional $1.8 million to $12.1 million and place an
additional $3.0 million cash deposit on the remaining lots under option. The $3.0 million was used
by TOUSA/Kolter to pay down a portion of the senior term loan.
As we had abandoned our rights under the option contract due to non-performance, we recorded
an obligation of $12.1 million for the letter of credit we anticipated would be drawn, wrote-off
the $3.0 million cash deposit and $1.0 million in capitalized pre-acquisition costs in 2007. In
2008, the letter of credit was drawn and used to reduce the joint ventures term loan outstanding.
The lenders to the joint venture have declared the loan to the venture to be in default. The
Remargining Agreement requires us to pay to the Administrative Agent, upon default of the joint
venture, an amount necessary to decrease the principal balance of the loan so that the outstanding
balance does not exceed 70% of the value of the joint ventures assets. Based on the estimated fair
value of the assets of the joint venture, we recorded a $54.0 million obligation (which included
the $12.1 million letter of credit accrual) in 2007 in connection with
our obligation under the re-margining provisions of the loan agreement. We did not record any
additional contingent liability under the
61
completion guarantee as the $54.0 million accrual
represented the full debt obligation of the joint venture. At December 31, 2007, the obligation of
$54.0 million is included in accounts payable and other liabilities in the accompanying unaudited
consolidated statements of financial condition. As result of the 2009 transaction discussed below,
we reduced the obligation for $8.5 million of loan forgiveness, $11.7 million of drawn letters of
credit and $2.3 million of escrowed interest applied to the loan balance, leaving a remaining
obligation at June 30, 2008 of $31.5 million, which is included in liabilities subject to
compromise in the accompanying unaudited consolidated statement of financial condition.
During 2007, we evaluated the recoverability of our investment and receivables from
TOUSA/Kolter for impairment under APB 18 and SFAS 114, respectively, and recorded an impairment
charge of $58.8 million representing the full carrying value of our investment in and receivables
from TOUSA/Kolter, net of deferred gains of $12.8 million, which were deferred as a result of the
contributed assets and contract assignments to TOUSA/Kolter. Additionally, in 2007 we recorded an
obligation of $18.9 million for performance bonds and letters of credit that we placed on behalf of
the joint venture, as we considered it probable that we would be required to reimburse these
amounts for development remaining to be completed. At June 30, 2008 and December 31, 2007, the
obligation for performance bonds and letters of credit of $13.7 million and $18.9 million,
respectively, is included in liabilities subject to compromise and accounts payable and other
liabilities, respectively, in the accompanying unaudited consolidated statements of financial
condition.
On January 28, 2009, we entered into an agreement with CC Loan Acquisition LLC, which had
purchased the loans to the joint venture and the Community Development District Bonds related to
the project. The joint venture deeded the property to CC Loan Acquisition LLC and received an
extension of the maturity of the B Bonds until May 1, 2013. A portion of the outstanding
indebtedness was also satisfied and the amount collectible from CC Loan Acquisition LLC under filed
proofs of claim related to the Completion Agreement was limited. This agreement was approved by
the Bankruptcy Court on January 9, 2009.
Centex/TOUSA at Wellington, LLC
In December 2005, we entered into a joint venture with Centex Corporation to form Centex/TOUSA
at Wellington, LLC (Centex/TOUSA at Wellington) for the purpose of acquiring, developing and
selling approximately 264 homesites in a community in South Florida. The joint venture obtained a
term loan of which $31.0 million was outstanding as of June 30, 2008 and December 31, 2007. The
credit agreement requires us to construct and complete the horizontal development of the lots and
related infrastructure in accordance with certain agreed upon plans. On August 31, 2007,
Centex/TOUSA at Wellington received a notice from the lender requiring the joint venture members to
contribute approximately $10.0 million to the joint venture to reduce the outstanding term loan in
order to comply with the 60% loan-to-value ratio covenant. We have not made the required equity
contribution.
We evaluated the recoverability of our investment in and receivables from Centex/TOUSA at
Wellington for impairment under APB 18 and SFAS 114 respectively, and recorded an impairment of
$27.0 million representing the full carrying value of our investment in and receivables from
Centex/TOUSA during 2007. Based on the estimated fair value of the assets of the joint venture, we
recorded a $15.5 million obligation in 2007, in connection with our obligation under the
re-margining provisions of the loan agreement which represents our portion of the joint ventures
outstanding debt. We did not record any additional contingent liability under the completion
guarantee as the $15.5 million accrual represents our portion of the full joint venture debt
obligation. At June 30, 2008 and December 31, 2007, the $15.5 million obligation is included in
liabilities subject to compromise and accounts payable and other liabilities, respectively, in the
accompanying unaudited consolidated statements of financial condition.
Layton Lakes Joint Venture
In connection with our joint venture with Lennar Corporation (the Layton Lakes Joint
Venture) to acquire and develop land, townhome properties and commercial property in Gilbert,
Arizona, we entered into a Completion and Limited Indemnity Agreement for the benefit of the lender
to the joint venture.
We evaluated the recoverability of our investment in and receivables from the Layton Lakes
Joint Venture for impairment under APB 18 and SFAS 114, respectively, and recorded an impairment
charge of $24.9 million representing the full carrying value of our investment in and receivables
from the Layton Lakes Joint Venture during 2007. At that time, we did not record any obligation
under the re-margining provision as we were not a party to the re-margining agreement. The
remargining agreement required that the outstanding loan balance not exceed 65% of the value of the
joint ventures assets. Additionally, in 2007 we recorded an obligation of $4.4 million for
performance bonds that we placed on behalf of the joint venture, as we considered it probable that
we would be required to reimburse these amounts for development remaining to be completed. We did
not record any additional contingent liability under the completion guarantee as based on the
estimated fair value of the assets of the joint venture, we did not believe that it was probable
that we would be called to perform under the completion obligation.
The joint venture also breached various other loan covenants. As a result of our defaults,
including our failure to maintain a required net worth, we did not have the right to take down lots
or vote as a member of the joint venture.
Tousa, Tousa Homes, Inc., Lennar and the Town of Gilbert, Arizona entered into a series of
agreements pursuant to which, among other things, we have surrendered our interest in the joint
venture and have paid $1.3 million toward completion of certain offsite improvements. In exchange,
we have been granted an option to continue acquiring lots and the Town of Gilbert has agreed to
issue certificates of occupancy for certain homes under construction. Tousa, Tousa Homes, Inc.,
Lennar and Bank Midwest each agreed to mutual releases of claims related to the Layton Lakes Joint
Venture. The Bankruptcy Court approved these agreements on November 25, 2008. As a result of this
settlement and certain work performed by our joint venture, we reversed $4.3 million of our accrual for estimated obligations under the performance
bonds during the six months ended June 30, 2008.
Other
Certain of our other ongoing unconsolidated land development joint ventures have outstanding
debt obligations totaling $17.6 million
and $20.6 million at June 30, 2008 and December 31, 2007, respectively. These joint venture
borrowings are non-recourse to us except that
62
in certain instances we have agreed to complete
certain property development commitments in the event the joint venture defaults and to indemnify
the lenders for losses resulting from fraud, misappropriation, violations of environmental laws and
similar acts.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Quarterly Report on Form 10-Q contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange
Act of 1934, as amended, including in the material set forth in the sections entitled Business
and Managements Discussion and Analysis of Financial Condition and Results of Operations. These
statements concern expectations, beliefs, projections, future plans and strategies, anticipated
events or trends and similar expressions concerning matters that are not historical facts, and
typically include the words anticipate, believe, expect, estimate, project, and future.
Specifically, this Form 10-Q contains forward-looking statements including with respect to:
|
|
|
our expectations regarding population growth and median income growth trends and their impact
on future housing demand in our markets; |
|
|
|
|
our expectation regarding the impact of geographic and customer diversification; |
|
|
|
|
our expectations regarding successful implementation of our asset management strategy and its
impact on our business; |
|
|
|
|
our expectations regarding future land sales; |
|
|
|
|
our belief regarding growth opportunities within our financial services business; |
|
|
|
|
our estimate that we have adequate financial resources to meet our current and anticipated
working capital, including our debt service payments, and land acquisition and development
needs; |
|
|
|
|
our expectations regarding our option contracts, investments in land development joint ventures; |
|
|
|
|
our expectations regarding the housing market in 2009 and beyond; and |
|
|
|
|
our expectations regarding our use of cash in operations. |
We do not undertake any obligation to update any forward-looking statements.
These forward-looking statements reflect our current views about future events and are subject
to risks, uncertainties and assumptions. As a result, actual results may differ significantly from
those expressed in any forward-looking statement. The most important factors that could prevent us
from achieving our goals, and cause the assumptions underlying forward-looking statements and the
actual results to differ materially from those expressed in or implied by those forward-looking
statements include, but are not limited to, the following:
|
|
|
economic or other business conditions that affect the desire or ability of our customers to
purchase new homes in markets in which we conduct our business, such as increases in interest rates
or unemployment rates or declines in median income growth, consumer confidence or the demand for,
or the price of, housing; |
|
|
|
|
the risks and uncertainties associated with our Chapter 11 cases; |
|
|
|
|
the inability to obtain confirmation of our Chapter 11 plan; |
|
|
|
|
Restrictions on our ability to pursue our business strategies while operating under the Bankruptcy : |
|
|
|
|
our ability to attract, motivate and retain key and essential personnel is impacted by the
Bankruptcy Code which limits our ability to implement a retention program or take other measures
intended to motivate employees to remain with us; |
|
|
|
|
we require a significant amount of cash, which may not be available to us; |
|
|
|
|
our belief that our ability to continue as a going concern will depend upon our ability to
restructure our capital structure; |
|
|
|
|
our ability to identify and acquire, at anticipated prices, additional homebuilding opportunities
and/or to effect our growth strategies in our homebuilding operations and financial services
business; |
|
|
|
|
events which would impede our ability to open new communities and/or deliver homes within
anticipated time frames and/or within anticipated budgets; |
63
|
|
|
a further decline in the value of our land and home inventories; |
|
|
|
|
our ability to dispose successfully of developed properties or undeveloped land or homesites at
expected prices and within anticipated time frames; |
|
|
|
|
our ability to compete in our existing and future markets; |
|
|
|
|
the impact of hurricanes, tornadoes or other natural disasters or weather conditions on our
business, including the potential for shortages and increased costs of materials and qualified
labor and the potential for delays in construction and obtaining government approvals; |
|
|
|
|
an increase or change in government regulations or in the interpretation and/or enforcement of
existing government regulations; |
|
|
|
|
a change in ownership of our stock, as defined in Section 382 of the
Internal Revenue Code, which would limit our ability to receive
anticipated income tax refunds. |
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
As a result of our senior and senior subordinated notes offerings, as of June 30, 2008, $1.1
billion of our outstanding borrowings are based on fixed interest rates. We are exposed to market
risk primarily related to potential adverse changes in interest rates on our revolving credit
facility, term loans and warehouse lines. The interest rates relative to these borrowings fluctuate
with the prime, Federal Funds, LIBOR, and Eurodollar lending rates. As of June 30, 2008, we had an
aggregate of $812.3 million drawn under our Revolving Loan Facility, term loans and warehouse lines
of credit that are subject to changes in interest rates. An increase or decrease of 1% in interest
rates will change our annual debt service payments by $8.1 million per year.
The failure to pay interest on certain notes and the filing of the Chapter 11 cases has
constituted events of default or otherwise triggered repayment obligations under a number of
instruments and agreements relating to our direct and indirect financial obligations. As a result
of the events of default, all our obligations became automatically and immediately due and payable
and have been reflected as such in the following table. We believe that any efforts to enforce the
payment obligations are stayed as a result of the filing of the Chapter 11 cases.
Our operations are interest rate sensitive as overall housing demand is adversely affected by
increases in interest rates. If mortgage interest rates increase significantly, this may negatively
affect the ability of homebuyers to secure adequate financing. Higher interest rates also increase
our borrowing costs because, as indicated above, our bank loans will fluctuate with the prime,
Federal Funds, LIBOR, and Eurodollar lending rates.
Our Annual Report on Form 10-K for the year ended December 31, 2007 contains further
information regarding our market risk. As of June 30, 2008, there have been no material changes in
our market risk since December 31, 2007.
ITEM 4. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
To ensure that the information we must disclose in our filings with the Securities and
Exchange Commission is recorded, processed, summarized, and reported on a timely basis, we have
formalized our disclosure controls and procedures. Our principal executive officer and principal
financial officer have reviewed and evaluated the effectiveness of our disclosure controls and
procedures, as defined in Exchange Act Rules 13a-15(e) and 15d-15(e), as of June 30, 2008. Based on
such evaluation, such officers have concluded that, as of June 30, 2008, our disclosure controls
and procedures were not effective solely due to our failure to file this Form 10-Q on a timely
basis. This failure was the result of our Chapter 11 bankruptcy process and our reorganization
plans which have required substantial effort from our limited finance, accounting and management
personnel. We continue to apply controls and procedures consistent with prior periods.
Changes In Internal Control
During the three months ended June 30, 2008, we made the following change in our internal
control over financial reporting that has materially affected or is reasonably likely to materially
affect, our internal control over financial reporting:
|
|
Our Chapter 11 proceedings have had a significant impact on our
business processes and internal control over financial reporting
related to the proper separation and payment of pre-petition and
post-petition obligations and the preparation of unaudited
consolidated financial statements reflecting the accounting required
for the restructuring activities and reorganization expenses resulting
from the Chapter 11 proceedings. Management continues to take actions
necessary to address the resources, processes and controls related to
these restructuring activities, while maintaining controls over
routine daily operations. |
64
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Chapter 11 Cases
On January 29, 2008, TOUSA, Inc. and certain of our subsidiaries (excluding our financial
services subsidiaries and joint ventures) filed voluntary petitions for relief under Chapter 11 of
Title 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the
Southern District of Florida, Fort Lauderdale Division. The Chapter 11 cases have been
consolidated solely for procedural purposes and are pending as Case No. 08-10928-JKO. See Part I,
Item 2 for additional information.
Securities
Class Action Lawsuit
Beginning in December 2006, various stockholder plaintiffs brought lawsuits seeking class
action status in the United States District Court for the Southern District of Florida. The
actions were consolidated, and the consolidated suit is pending under the caption Durgin, et al.,
v. TOUSA, Inc., et al., No. 06-61844-CIV. On September 7, 2007, the Court appointed Diamondback
Capital Management, L.C. (Diamondback) as the lead plaintiff and approved Diamondbacks selection
of counsel. Diamondback filed a consolidated complaint on November 2, 2007. The consolidated
complaint set forth a proposed class period of August 1, 2005 to March 19, 2007 and alleged that
TOUSAs public filings and other public statements were false and misleading in describing the
financing for the Transeastern Joint Venture as non-recourse to TOUSA, and in describing the
Transeastern Joint Ventures financial condition during the class period. Plaintiffs also alleged
in the consolidated complaint that certain public filings and statements were misleading or
suffered from material omissions in failing to fully disclose or describe the Completion and
Carve-Out Guarantees that TOUSA executed in support of the Transeastern Joint Ventures financing.
The consolidated complaint included claims under Section 11 of the Securities Act for strict
liability and negligence regarding the registration statements and prospectus associated with the
September 2005 offering of four million shares of stock. Plaintiffs asserted related claims
against certain of the defendants as controlling persons responsible for the statements in the
registration statements and prospectus. Finally, plaintiffs alleged claims under Section 10(b) of
the Exchange Act for fraud with respect to various public statements regarding the non-recourse
nature of the Transeastern debt, regarding the Completion and Carve-Out Guarantees, and regarding
the financial condition of the Transeastern Joint Venture. Plaintiffs sought by way of the
consolidated complaint compensatory damages, plus fees and costs, on behalf of themselves and the
putative class of purchasers of TOUSA common stock and purchasers and sellers of options on TOUSA
common stock.
On January 30, 2008, TOUSA and various other defendants filed motions to dismiss plaintiffs
Consolidated Complaint. On February 4, 2008, TOUSA filed a Notice of Suggestion of Bankruptcy
notifying the court that TOUSA filed a bankruptcy petition. On February 5, 2008, the Court entered
an order staying the action as to TOUSA pursuant to Section 362 of the United States Bankruptcy
Code.
On April 30, 2008, lead plaintiff Diamondback filed a motion to withdraw as lead plaintiff,
which the court granted on May 22, 2008. On July 15, 2008, the court appointed the Bricklayers &
Trowel Trades International Pension Fund (the Bricklayers) as the new lead plaintiff. On July
30, 2008, the Bricklayers filed a notice of an intent to file an amended complaint and accordingly,
on July 31, 2008, the court denied as moot without prejudice the defendants previously filed
motions to dismiss the consolidated complaint.
On September 19, 2008, the Bricklayers filed a Consolidated Amended Class Action Complaint
(the amended complaint). This amended complaint dropped many of the parties previously named as
defendants in the consolidated complaint, including TOUSA, leaving only Antonio B. Mon, Tommy
McAden, David J. Keller and Randy L. Kotler as defendants in the suit. The amended complaint also
dropped the Section 11 and Section 15 claims, leaving the claims under Section 10(b) of the
Exchange Act and Rule 10b-5, as well as the claims made under Section 20(a) of the Exchange Act.
Defendants Mon, Keller and Kotler filed motions to dismiss the amended complaint on November 21,
2008. Defendant McAden had not yet been served, but his counsel recently entered an appearance and
filed a motion to dismiss on March 2, 2009. The deadline for the plaintiffs opposition to the
motions to dismiss has been extended to March 24, 2009. Defendants will have an opportunity to
file replies in support of their motions to dismiss. A trial date has not yet been set.
Proceeding by Official Committee of Unsecured Creditors
In re TOUSA, Inc., Docket No. 08-10928-JKO; Adv. Pro No. 08-1435-JKO. We and certain of our
subsidiaries are involved in an adversary proceeding brought as part of our Chapter 11 proceedings.
On July 14, 2008, the Official Committee of Unsecured Creditors of TOUSA, Inc. (the Committee)
commenced an adversary proceeding (the Committee Action) as part of our and certain of our
subsidiaries (collectively, the Debtors) Chapter 11 proceedings in United States Bankruptcy
Court for the Southern District of Florida. The Debtors were originally non-parties to the
Committee Action, but have since been named as third-party defendants by two of the original
defendants in the Committee Action.
The Committee Action seeks to avoid certain allegedly fraudulent and preferential pre-petition
transfers of up to $800 million the Debtors made in connection with the settlement of litigation
related to the Transeastern Joint Venture (the Transeastern Settlement), and further seeks to
avoid as a preferential transfer any security interest that may have been granted by any of the
Debtors to certain lenders in a tax refund of approximately $207.0 million that the Debtors
received in 2008. The Committees original complaint (the Complaint) named over 60 defendants,
including the lenders under the credit agreements funding the Transeastern Joint Venture (the
Transeastern Lenders), as well as the original lenders (and their successors and assigns) and
administrators under the credit agreements entered into as a result of the Transeastern Settlement
(the New Credit Agreements). The Debtors are not defendants to the Committee Action.
The Committees Complaint alleged that, in order to resolve certain prepetition litigation
regarding the Transeastern Joint Venture, the parties to that litigation entered into a series of
settlement agreements releasing all claims relating to the Transeastern acquisition. The
Complaint alleges that, as part of these settlement agreements, certain of our entities agreed
to pay over $420 million to the administrator of the Transeastern loans and to issue approximately
$135 million in preferred stock, notes and warrants. The Complaint further alleged that to fund
these payments, we and certain of our subsidiaries (the Conveying Subsidiaries) entered into the
three New Credit Agreements.
65
According to the Complaint, the loans issued under these New Credit
Agreements were secured by liens on the property and assets of all of the Debtors, including the
Conveying Subsidiaries. The Complaint alleged that the Conveying Subsidiaries were not defendants
in the prepetition Transeastern litigation and were not obligated on the Transeastern debt that was
released in connection with the Transeastern Settlement. Therefore, the Complaint alleged, the
Conveying Subsidiaries did not receive reasonably equivalent value for the secured debt obligations
that they incurred. The Complaint also alleged that the Conveying Subsidiaries were either
insolvent at the time of the Transeastern Settlement or became insolvent as a result of it, and
that the Conveying Subsidiaries were left with unreasonably small capital as a result of the New
Credit Agreements. Based on these allegations, the Committee seeks to have the liens established
under the New Credit Agreements voided and all amounts already repaid under the New Credit
Agreements returned. The Committee also seeks to have the security interest the Debtors granted
to the New Lenders on the Debtors tax refund voided and the New Lenders claims seeking allowance
of the full amount of the New Loans disallowed in their entirety or reduced.
On September 19, 2008, the Bankruptcy Court held a hearing on motions to dismiss that had been
filed by Defendants Citicorp North America, Inc., and Wells Fargo Bank, N.A. Well Fargos motion
to dismiss was denied. Citicorps motion to dismiss sought dismissal of claims relating to only
one of the three New Credit Agreements, the Second Amended And Restated Revolving Credit Agreement
(the Revolver). The Court granted Citicorps motion to dismiss, but granted the Committee leave
to file an amended complaint.
On October 17, 2008, the Committee filed an Amended Complaint. The Amended Complaint
contained additional allegations regarding the Revolver, and added new defendants. Citicorp has
moved to dismiss the claims in the Amended Complaint relating to the Revolver. In addition, the
Transeastern Lenders have moved to dismiss all claims against them. The Court denied the
Transeastern Lenders motion to dismiss. The Court granted Citicorps motion to dismiss the
Revolver claims in the Amended Complaint, but again granted the Committee leave to file a second
amended complaint consistent with the Courts specific guidance on the revolver issue. After
initially filing a Second Amended Complaint again including claims related to the Revolver, on
February 4, 2009, the Committee filed a Third Amended Complaint which did not include claims
relating to the Revolver. The Committee has, however, appealed to the District Court the dismissal
of the Revolver claims in the Amended Complaint.
In addition, on August 13, 2008, Citicorp North America, Inc., in its capacity as the
Administrative Agent for the First Lien Term Loan, answered the Complaint in the Committee Action,
and filed a third-party complaint (the Citigroup Third-Party Complaint) against TOUSA, Inc. and
each of the Debtor signatories, co-borrowers and co-guarantors under the First Lien Term Loan. The
Citigroup Third-Party Complaint alleges that, to the extent the Committee establishes its
allegations in the Committee Action, the defendants to the Citigroup Third-Party Complaint will
have materially breached the First Lien Term Loan by (a) not having assets whose fair value
exceeded their debts and liabilities, subordinated, contingent or otherwise, (b) not having assets
whose fair saleable value exceed their debts and other liabilities, subordinated, contingent or
otherwise, (c) not being able to pay their debts and liabilities, subordinated, contingent, or
otherwise, and/or (d) having unreasonably small capital with which to conduct their business. On
September 30, 2008 the Debtors filed their answer to the Citigroup Third-Party Complaint, generally
denying Citigroups allegations and asserting affirmative defenses.
On November 6, 2008, Wells Fargo Bank, N.A., in its capacity as the Second Lien Term Agent,
filed its answer to the Committees Amended Complaint in the Committee Action, and filed a
third-party complaint (the Wells Fargo Third-Party Complaint) against TOUSA, Inc. and each of the
Debtor signatories, co-borrowers and co-guarantors under the Second Lien Term Loan (except for
Engle/Gilligan, LLC, Engle Homes Delaware, Inc., Newmark Homes Business Trust, TOUSA Delaware,
Inc., and TOUSA Funding, LLC). The Wells Fargo Third-Party Complaint alleges that, to the extent
the Committee establishes its allegations in the Committee Action, the defendants to the Wells
Fargo Third-Party Complaint will have materially breached the Second Lien Term Loan by (a) not
having assets whose fair value exceeded their debts and liabilities, subordinated, contingent or
otherwise, (b) not having assets whose fair saleable value exceed their debts and other
liabilities, subordinated, contingent or otherwise, (c) not being able to pay their debts and
liabilities, subordinated, contingent, or otherwise, and/or (d) having unreasonably small capital
with which to conduct their business. On November 25, 2008, the Debtors filed their answer to
the Wells Fargo Third-Party Complaint, generally denying Wells Fargos allegations and asserting
affirmative defenses.
On February 24, 2009, the Senior Transeastern Lenders and the CIT Group/Business Credit, Inc.
(CIT) each filed a Counterclaim and Third-Party Complaint against certain of the Debtors. The
Senior Transeastern Lenders and CIT allege that they are entitled to indemnification against any
recovery the Committee receives as a result of the Committees fraudulent transfer claims under the
terms of the August 1, 2005 Senior Credit Agreement signed by certain of the Debtors in connection
with the formation of the Transeastern Joint Venture. The Senior Transeastern Lenders and CIT seek
recoupment for the full amount of any recovery against them on each of the Committees fraudulent
transfer claims. Under the current schedule, the Debtors have until
March 20, 2009 to respond to
the Counterclaims and Third-Party Complaints.
Discovery in the Committee Action, the Citicorp Third-Party Complaint, and the Wells Fargo
Third-Party Complaint is currently ongoing. Pursuant to the amended case management order entered
by the Court on November 11, 2008, current and former employees of the Debtors the parties and
various non-parties have been deposed.
On February 26, 2009, the court entered an order granting the Debtors motion to compel
mediation of the case. The non-binding mediation is currently scheduled to take place on March 23,
2009 and March 24, 2009.
Trial is
currently scheduled for the weeks of July 13, 2009 and July 20,
2009.
On
October 26, 2007, the TOUSA Board of Debtors received a letter from counsel to a group
of holders of TOUSA senior and subordinated notes (the Noteholder Group). TOUSA did not file
for bankruptcy protection as requested by the Noteholder Group, but did later file for bankruptcy
in January 2008. On February 27, 2009 the Official Committee of Unsecured Creditors of TOUSA
filed a motion seeking standing to pursue claims against members of certain Debtor-Subsidiaries
boards of directors as well as the majority shareholder of TOUSA, Tech SA, in connection with the
July 31, 2007 transaction.
Vista Lakes
Plaintiffs, purchasers of homes in the Vista Lakes community near Orlando, filed a class
action complaint alleging that their homes were built on the site of a former bombing range. The
plaintiffs seek recovery under theories of fraud, breach of contract, strict liability, negligence,
and civil conspiracy. Because the plaintiffs named debtor defendants Tousa, Inc., Tousa Homes,
Inc., d/b/a Engle Homes Orlando and Tousa Homes, LP as defendants in this action, the action was
removed to federal court. The plaintiffs then agreed to dismiss the debtor defendants and the
parties entered into a stipulation for remand. The state court case was re-opened and the parties
remaining as
defendants included Universal Land Title, Inc. and Preferred Home Mortgage Company.
Universal Land Title, Inc. and Preferred Home Mortgage Company filed a motion to dismiss the
second amended complaint. On February 13, 2009, the court dismissed all nine counts of the second
amended complaint as to both Universal Land Title, Inc. and Preferred Home Mortgage Company, but
granted Plaintiffs leave to amend their complaint by March 23, 2009.
66
Based upon the early stage of the litigation, and depending upon whether Plaintiffs will
choose to pursue any claims against Universal Land Title, Inc. or Preferred Home
Mortgage Company by filing a third amended complaint, we
are unable to evaluate the likelihood of an unfavorable outcome or the range of liability in such
event.
Chinese
Drywall
TOUSA Homes, Inc. was named as a defendant in a purported class action lawsuit pending in the
United States District Court for the Southern District of Florida on behalf of certain homeowner
plaintiffs in Southwest Florida. (Karen Vickers, et al., v. TOUSA Homes, Inc., et al., No.
09-20510-CIV-GOLD/MCALILEY). The lawsuit has been filed, but TOUSA has not been served.
The complaint alleges the plaintiff homeowners were sold homes containing drywall that is
inherently defective, (Chinese Drywall), because it emits various sulfide gasses and/or other
chemicals through off gassing that purportedly causes property damage and potential health
hazards. Only one TOUSA homeowner is named as a plaintiff.
Due
to the Chapter 11 cases, Plaintiffs counsel has agreed not to serve TOUSA. TOUSA
is currently in the process of filing a motion to have all claims against TOUSA dismissed based on
the protection of the bankruptcy filing.
TOUSA is in the process of responding to notice of the alleged defect and of the plaintiff
homeowners intent to file the class action lawsuit pursuant to Florida Statutes chapter 558.
TOUSA Homes, Inc. was named, but has not been served in an additional purported class action
lawsuit making similar allegations (Joyce Dowdy Revocable Trust, et.
al v. Tousa Homes, Inc. et. al).
Diligence is currently being conducted by TOUSA to determine the number of homes sold and
unsold containing the Chinese drywall product which is alleged to be defective.
Other Litigation
We are also involved in various other claims and legal actions arising in the ordinary course
of business. We do not believe that the ultimate resolution of these other matters will have a
material adverse effect on our financial condition or results of operations. As of the date of the
Chapter 11 filing, then pending litigation was generally stayed, and absent further order of the
Bankruptcy Court, most parties may not take any action to recover on pre-petition claims against
us.
ITEM 1A. RISK FACTORS
Set forth below is a discussion of the material changes in our risk factors as previously
disclosed in Item 1A of Part 1 of our Annual Report on Form 10-K for the fiscal year ended December
31, 2007 (2007 Form 10-K).
The information presented below updates, and should be read in conjunction with, the risk
factors and other information disclosed in our 2007 Form 10-K.
Our cash collateral order includes operating budgets and financial covenants that limit our
operating flexibility.
The cash collateral order requires us to comply with certain financial budgets and covenants
that, among other things, restrict our ability to take specific actions, even if we believe such
actions are in our best interest. These include, among other things, restrictions on our ability
to:
|
|
|
incur indebtedness; |
|
|
|
|
incur liens and enter sale/leaseback transactions except for model homes subject to certain limitations; |
|
|
|
|
make or own investments; |
|
|
|
|
enter into transactions with affiliates; |
|
|
|
|
engage in new lines of business; |
|
|
|
|
consolidate, merge, sell all or substantially all of our assets; |
|
|
|
|
issue guarantees of debt; |
|
|
|
|
agree to amendment or modification to our organizational documents; |
|
|
|
|
incur or create claims; and |
|
|
|
|
make additional payments on pre-petition indebtedness. |
If we fail to comply with the new order, we will not have sufficient cash to enable us to
operate our business and effectuate our restructuring.
67
ITEM 6. EXHIBITS
|
|
|
Exhibit |
|
|
Number |
|
Description |
|
|
|
31.1
|
|
Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
|
|
|
31.2
|
|
Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
|
|
|
32.1
|
|
Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
|
|
|
32.2
|
|
Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
68
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
|
|
|
|
|
TOUSA, Inc.
|
|
Date: March 19, 2009 |
By: |
/s/ Tommy L. McAden
|
|
|
|
Name: |
Tommy L. McAden |
|
|
|
Title: |
Executive Vice President, Director and Chief
Financial Officer |
|
|
|
|
|
Date: March 19, 2009 |
By: |
/s/ Angela F. Valdes
|
|
|
|
Name: |
Angela F. Valdes |
|
|
|
Title: |
Vice President and Chief Accounting Officer |
|
69