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As filed with the Securities and Exchange Commission on January 15, 2013

Registration No. 333-185269

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 1

to

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Taylor Morrison Home Corporation

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   1531   90-0907433

(State or Other Jurisdiction of

Incorporation or Organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification Number)

 

 

4900 N. Scottsdale Road, Suite 2000

Scottsdale, AZ 85251

(480) 840-8100

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Darrell C. Sherman, Esq.

Vice President and General Counsel

4900 N. Scottsdale Road, Suite 2000

Scottsdale, AZ 85251

(480) 840-8100

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

John C. Kennedy, Esq.

Lawrence G. Wee, Esq.

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019-6064

(212) 373-3000

 

Julie H. Jones, Esq.

Ropes & Gray LLP

The Prudential Tower

800 Boylston Street

Boston, MA 02199

(617) 951-7000

 

William J. Whelan III, Esq.

Joseph D. Zavaglia, Esq.

Cravath, Swaine & Moore LLP

825 Eighth Avenue

New York, NY 10019-7475

(212) 474-1000

 

 

Approximate date of commencement of proposed sale to the public : As soon as practicable after the effective date of this Registration Statement.

If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.     ¨

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     ¨

If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     ¨

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     ¨

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

 

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

 

 

 

 

Title Of Each Class Of

Securities To Be Registered

 

Proposed

Maximum
Aggregate

Offering Price(1)

  Amount Of
Registration Fee(2)(3)

Class A common stock, par value $0.00001 per share(4)

  $250,000,000   $34,100

 

 

(1) Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933.
(2) Calculated pursuant to Rule 457(o) of the Securities Act of 1933.
(3) Previously paid.
(4) Includes shares of Class A common stock which the underwriters have the right to purchase to cover over-allotments, if any.

 

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 


Table of Contents

The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any state where the offer or sale is not permitted.

 

PRELIMINARY PROSPECTUS (Subject to Completion)

Dated                      , 2013

             Shares

 

LOGO

Taylor Morrison Home Corporation

CLASS A COMMON STOCK

 

 

Taylor Morrison Home Corporation, which we refer to in this prospectus as “TMHC,” is offering              shares of its Class A common stock. This is our initial public offering and no public market exists for our shares. We anticipate that the initial public offering price will be between $         and $         per share.

We intend to apply to list the Class A common stock on a national securities exchange under the symbol “TMHC.”

 

 

After the completion of this offering, our Principal Equityholders (as defined in this prospectus) will own a majority of the combined voting power of our common stock, will have the ability to elect a majority of our board of directors and will have substantial influence over our governance.

Investing in the Class A common stock involves risks. See “ Risk Factors ” beginning on page 23.

PRICE $         PER SHARE

 

     Price to Public      Underwriting
Discounts and
Commissions
     Proceeds to
Company
 

Per Share

   $                    $                    $                

Total

   $                    $                    $                

TMHC has granted the underwriters the right to purchase an additional              shares of Class A common stock to cover over-allotments.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

The underwriters expect to deliver the shares of Class A common stock to purchasers on                     , 2013.

 

 

 

Credit Suisse   Citigroup

 

Deutsche Bank Securities   Goldman, Sachs & Co.   J.P. Morgan   Zelman Partners LLC

Prospectus dated                     , 2013


Table of Contents

LOGO


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You should rely only on the information contained in this prospectus. Neither we nor the underwriters have authorized anyone to provide you with information different from that contained in this prospectus or any free writing prospectus prepared by us or on our behalf. We are offering to sell, and seeking offers to buy, shares of Class A common stock only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of the Class A common stock.

TABLE OF CONTENTS

 

     Page  

STATEMENT REGARDING INDUSTRY AND MARKET DATA

     ii   

PROSPECTUS SUMMARY

     1   

RISK FACTORS

     23   

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

     47   

ORGANIZATIONAL STRUCTURE

     50   

USE OF PROCEEDS

     52   

DIVIDEND POLICY

     53   

CAPITALIZATION

     54   

DILUTION

     55   

UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION

     57   

SELECTED CONSOLIDATED FINANCIAL DATA

     63   

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

     66   

INDUSTRY

     114   

BUSINESS

     119   

 

     Page  

MANAGEMENT

     143   

COMPENSATION DISCUSSION AND ANALYSIS

     151   

DESCRIPTION OF CERTAIN INDEBTEDNESS

     178   

PRINCIPAL STOCKHOLDERS

     182   

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

     186   

DESCRIPTION OF CAPITAL STOCK

     188   

SHARES ELIGIBLE FOR FUTURE SALE

     192   

MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR NON-U.S. HOLDERS OF COMMON STOCK

     194   

UNDERWRITING

     198   

LEGAL MATTERS

     204   

EXPERTS

     204   

WHERE YOU CAN FIND MORE INFORMATION

     204   

INDEX TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS

     F-1   
 

 

 

Through and including                     , 2013 (the 25th day after the date of this prospectus), all dealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.

 

 

Trademarks

This prospectus contains references to our trademarks and service marks and to those belonging to other entities. Solely for convenience, trademarks and trade names referred to in this prospectus may appear without the ® or ™ symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensor to these trademarks and trade names. We do not intend our use or display of other companies’ trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of us by, any other companies.

 

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STATEMENT REGARDING INDUSTRY AND MARKET DATA

Any market or industry data contained in this prospectus is based on a variety of sources, including internal data and estimates, independent industry publications, government publications, reports by market research firms or other published independent sources. Industry publications and other published sources generally state that the information they contain has been obtained from third-party sources believed to be reliable, but there can be no assurance as to the accuracy or completeness of such information. Our internal data and estimates are based upon information obtained from trade and business organizations and other contacts in the markets in which we operate and our management’s understanding of industry conditions, and such information has not been verified by any independent sources. Accordingly, investors should not place significant reliance on such data and information.

 

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PROSPECTUS SUMMARY

This summary highlights information contained elsewhere in this prospectus. This summary does not contain all of the information that you should consider before deciding whether to invest in our Class A common stock. You should read this entire prospectus carefully, including the “Risk Factors” section and our consolidated financial statements and the notes to those statements included in this prospectus, before making an investment decision.

In this prospectus, unless otherwise indicated or the context otherwise requires, references to the “Company,” “we,” “us” and “our” refer (1) subsequent to the reorganization transactions described under “Organizational Structure” (referred to in this prospectus as the “Reorganization Transactions”), to TMHC and its consolidated subsidiaries, (2) prior to the consummation of this offering and the Reorganization Transactions and following the date of our acquisition by our principal equityholders (referred to in this prospectus as the “Acquisition”) in July 2011, to TMM Holdings Limited Partnership (“TMM” or the “Successor”) and its consolidated subsidiaries, and (3) prior to the Acquisition, to the North American business of Taylor Wimpey plc (the “Predecessor”). References to “Taylor Morrison Holdings” are to Taylor Morrison Holdings, Inc., the indirect parent company of our U.S. business. References to “Monarch Communities” are to Monarch Communities Inc., the indirect parent company of our Canadian business. See “—The Reorganization Transactions” and “Organizational Structure.”

Where we present information on a “pro forma” basis, such information gives pro forma effect to this offering, the Acquisition and Financing Transactions (as defined elsewhere in this “Prospectus Summary”) and the Reorganization Transactions in the manner described in this prospectus under “Unaudited Pro Forma Consolidated Financial Information.” References to the information or results of “unconsolidated joint ventures” refer to our proportionate share of unconsolidated homebuilding joint ventures in Canada. When we refer to average sales price of our homes the amounts referred to do not include our sales from our unconsolidated joint ventures. Amounts expressed in “$” or “dollars” refer to U.S. dollars.

Our Company

Upon completion of this offering, we will be the sixth largest public homebuilder in North America based on 2011 revenues as reported by Hanley Wood. Headquartered in Scottsdale, Arizona, we build single-family detached and attached homes and develop land, which includes lifestyle and master-planned communities. We are proud of our legacy of more than 75 years in the homebuilding industry, having originally commenced homebuilding operations in 1936. We operate under our Taylor Morrison brand in the United States and under our Monarch brand in Canada.

Our business is organized into three geographic regions: East, West and Canada, which regions accounted for 46%, 36% and 18%, respectively, of our net sales orders (excluding unconsolidated joint ventures) for the nine months ended September 30, 2012. Our East region consists of our Houston, Dallas, Austin, North Florida and West Florida divisions. Our West region consists of our Phoenix, Northern California, Southern California and Denver divisions. Our Canada region consists of our operations within the province of Ontario, primarily in the Greater Toronto Area (“GTA”) and also in Ottawa and Kitchener-Waterloo, and offers both single-family and high-rise communities.

In all of our markets, we build and sell a broad mix of homes across diverse price points ranging from $120,000 to more than $1,000,000. Our emphasis is on designing, building and selling homes to first- and second-time move-up buyers. We are well-positioned in our markets with a top-10 market share (based on 2012 home closings through September 30, 2012 as reported by Hanley Wood and 2011 home sales as reported by Real Net Canada) in 15 of our 19 total markets.

 

 

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As explained in greater detail in this prospectus summary, our management believes our business is distinguished by our:

 

   

strong historical financial performance and industry-leading margins;

 

   

strong balance sheet with sufficient liquidity with which to execute our growth plan;

 

   

significant land inventory, representing approximately nine years of land supply based on our trailing twelve-month closings, carried at a low cost basis;

 

   

top-10 market share in historically high-growth homebuilding markets;

 

   

profitable Canadian business;

 

   

expertise in delivering “lifestyle” communities targeted at first- and second-time move-up buyers; and

 

   

reputation for quality and customer service, based on customer surveys.

During the nine months ended September 30, 2012, we closed 2,586 homes, consisting of 1,880 homes in the United States and 706 homes in Canada, including 204 homes in unconsolidated joint ventures, with an average sales price across North America of $347,000. During the same period, we generated $879.0 million in revenues, $81.8 million in net income and $125.1 million in Adjusted EBITDA (for a discussion of how we calculate Adjusted EBITDA and a reconciliation of Adjusted EBITDA to net income, see footnote 5 under the caption “—Summary Historical and Pro Forma Consolidated Financial and Other Information”). In the United States, for the nine months ended September 30, 2012, our sales orders increased approximately 47% as compared to the same period in 2011, and we averaged 3.0 sales per active selling community per month compared to an average of 1.7 sales per active selling community per month for the same period in 2011. As of September 30, 2012, we offered homes in 122 active selling communities and had a backlog of 4,205 homes sold but not closed, including 903 homes in unconsolidated joint ventures, with an associated backlog sales value of approximately $1.5 billion.

Our Industry

United States

The residential housing industry has historically been a significant contributor to economic activity in the United States. From 1970 to 2007, the residential housing sector represented an average of approximately 4.5% of U.S. annual gross domestic product and then declined to an average of 2.5% of U.S. annual GDP from 2008 to 2011. Similarly, total new home starts averaged 1.55 million per year from 1960 to 2007 and then declined to an average of 663,000 per year from 2008 to 2011.

Total New Home Starts

(in thousands)

 

LOGO

 

 

 

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We believe that a U.S. housing recovery is underway on a national basis, driven by consumers who are increasingly optimistic about their economic prospects and supported by several recent positive economic and demographic factors observed by our management including:

 

   

improving employment growth;

 

   

increasing consumer confidence, bolstered by rising home values and improving household finances;

 

   

improving sentiment towards residential real estate ownership;

 

   

accelerating household formation;

 

   

significant declines in new and existing for-sale home inventory; and

 

   

record low interest rates supporting affordability and home ownership.

We believe that the improvement in the U.S. housing market is illustrated by a number of key benchmarks and statistics. According to the U.S. Census Bureau, building permits for privately owned homes in October 2012 were estimated at a seasonally adjusted annual rate of 866,000, representing an approximate 30% increase over the October 2011 estimate of 667,000. The increase in new building permits is consistent with an average of 30% and 48% year-over-year growth in new home orders and backlog reported by the top 10 public homebuilders (ranking based on 2011 revenues reported by Hanley Wood), respectively, based on the most recently reported quarterly data as of the date of this prospectus. In addition, home prices in the United States are generally increasing. According to the National Association of Realtors, U.S. median home prices improved on a year-over-year basis in 120 out of 149 Metropolitan Statistical Areas (“MSA”) in the third quarter of 2012. Based on data from the U.S. Census Bureau in October 2012, new home prices increased approximately 12% year-over-year.

Canada

The Canadian housing market has been more stable than the U.S. housing market over the last five years. The relative consistency of the Canadian housing market, particularly in Ontario where we operate, is principally a result of demand due to growth in employment and immigration. For instance, the Canadian housing market has exhibited stable housing starts, a balanced sales-to-listings ratio and steady long-term growth in housing prices. In addition, Canadian home buying practices reflect a number of stabilizing structural, mortgage lending, legal and general market characteristics that have allowed the Canadian housing market to grow at a sustainable pace and to experience significantly lower mortgage default rates over the past decade, as compared to the United States.

Ontario represents approximately one-third of the total Canadian new home market, as measured by total housing starts, and benefits from positive demographic and economic growth trends. For example, the population and GDP of Ontario between 2008 and 2011 increased by approximately 4.4% and 9.5%, respectively. Ontario housing starts increased from 68,123 in 2007 to an estimated level of 77,600 in 2012, representing a compound annual growth rate (“CAGR”) of approximately 2.6%. Similarly, average home prices in Ontario increased from CAD$299,610 in 2007 to an estimated average price of CAD$386,000 in 2012, representing a CAGR of approximately 5.2%. With slowing job growth relative to the recent past, ongoing global economic uncertainty and increasing units under construction, it is anticipated that Ontario housing starts will moderate to approximately 65,000 and average home prices will remain flat at approximately CAD$386,400 in 2013, based on data from the Canada Mortgage and Housing Corporation (“CMHC”).

 

 

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Our Competitive Strengths

Our business is characterized by the following competitive strengths:

Strong historical financial performance with industry-leading margins

We have a profitable and scalable operating platform, which we believe positions us well to take advantage of the continued recovery we expect in the U.S. housing industry. We are among a select few of our public homebuilding peers to be profitable in both 2010 and 2011. We generated net income of $90.6 million in 2010, $76.8 million in 2011 and $81.8 million for the nine months ended September 30, 2012. Our pre-tax income margin for the nine months ended September 30, 2012 was 9.3%, which was the highest among the top 10 publicly traded homebuilders for the last three completed fiscal quarters, based on data from the public filings of those homebuilders.

We believe that our management approach, which balances a decentralized local market expertise with a centralized executive management focus on maximizing efficiencies, will support our strong margins and further grow our profitability. Our operating platform is scalable, which we believe allows us to increase volume while at the same time improving profitability and driving shareholder returns.

During the recent housing downturn, we improved our margins by aligning our headcount to reflect local and national industry conditions, standardizing systems and processes across business units and reducing construction and procurement costs through standardized national, regional and local contracts.

Strong balance sheet with sufficient liquidity for growth

We are well-positioned with a strong balance sheet and sufficient liquidity with which to service our debt obligations, support our ongoing operations and take advantage of growth opportunities as the expected recovery in the U.S. housing market continues. At September 30, 2012, on a pro forma basis, we would have had $         million of unrestricted cash, approximately $120.0 million of availability under our senior secured revolving credit facility (the “Revolving Credit Facility”). Also at September 30, 2012, on a pro forma basis, we had a net debt-to-net book capitalization of         % (or total debt-to-total book capitalization of         %) and an attractive debt maturity profile, with less than 20% of our approximately $834.1 million of outstanding debt maturing before 2020.

The balance sheet carrying value of our entire inventory base was adjusted to fair market value as of the date of the Acquisition in July 2011. The purchase accounting adjustments resulted in a comprehensive revaluation of our entire land inventory near the bottom of the recent U.S. housing downturn. Giving effect to the Acquisition-related purchase accounting adjustments, the carrying value of our U.S. land inventory at the time of the Acquisition represented 52% of its original cost. We believe this reduced cost basis positions us to generate strong margins in the future. As of September 30, 2012, we have a fully reserved deferred tax asset, a portion of which (approximately $200 million) may reduce cash taxes payable in the future, subject to various federal and state carryforward limitations.

Significant land inventory carried at a low cost basis

We continue to benefit from a sizeable and well-located existing land inventory. As of September 30, 2012, we owned or controlled 34,965 lots, including unconsolidated joint venture lots, which equated to approximately nine years of land supply based on our trailing twelve-month closings of 3,811 homes. Our land inventory reflects our balanced approach to investments, yielding a distribution of finished lots available for near-term homebuilding operations and strategic land positions to support future growth. Our significant land inventory allows us to be selective in identifying new land acquisition opportunities and positions us against potential land shortages in markets that exhibit land supply constraints. In addition, some of our holdings represent multi-phase, master planned communities, which provide us with the opportunity to utilize our development expertise to add value through re-entitlements, repositioning and/or opportunistic land sales to third parties.

 

 

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Since January 1, 2009, we have spent approximately $915 million on new land purchases, acquiring 17,295 lots, of which 12,534 currently remain in our lot supply. We believe a substantial portion of our current land holdings was purchased at attractive prices at or near the low point of the market. We believe our local, well-established relationships with land sellers, brokers and investors and our knowledge of the local markets position us to be quick to market both to identify land and to gain access to decision makers. We also believe that our long-held reputation as a leading homebuilder and developer of land, combined with our balance sheet strength and our active opportunistic purchasing of land through the downturn, gives land brokers and sellers confidence that they can close transactions with us on a timely basis and with minimal execution risk.

Strong market position and local presence in high-growth homebuilding markets

Our focused geographic footprint positions us to participate in the expected recovery in the U.S. housing market. The U.S. housing market experienced a significant downturn from 2006 to 2011 but has recently shown signs of recovery. We currently operate exclusively in states benefiting from positive momentum in housing demand drivers, including nationally leading population and employment growth trends, migration patterns, housing affordability and desirable lifestyle and weather characteristics. The five states in which we operate accounted for 30% of the total 2010 U.S. population of 309 million and 34% of the 483,500 building permits issued for privately owned homes in the twelve months ended September 30, 2012.

Our land inventory is concentrated in markets that have experienced significant improvement in home prices. We believe that our geographic footprint enables us to capture the benefits of expected increasing home volumes and home prices as the U.S. housing recovery continues and demand for new homes increases. The following table sets forth, for each of our U.S. markets, information relating to growth in median existing home price, projected growth in employment, projected growth in single-family permits, home affordability and our market ranking.

 

U.S. Market

   Median existing
home price

1-yr growth
rate as of
Sept. 30, 2012
    Employment
growth
2012-2014
estimated CAGR
    Single-Family
permit
growth
2012-2014
estimated CAGR
    Affordability
ratio (1)

as of
Sept. 30, 2012
    2012 YTD
Taylor Morrison
market share
ranking (2)
 

Austin

     8.1     3.9     32.3     69.6     9   

Dallas (3)

     7.1        3.2        39.3        79.7        17   

Denver

     6.6        2.8        65.5        67.0        9   

Fort Myers

     4.4        3.7        87.3        86.2        8   

Houston (3)

     7.1        3.0        22.0        75.2        8   

Jacksonville

     (2.5     2.2        59.5        84.2        8   

Naples

     2.2        3.5        62.4        52.3        9   

Orange County

     1.5        2.4        56.8        47.2        5   

Orlando

     5.2        2.8        68.5        81.7        9   

Phoenix

     25.4        2.9        93.2        80.0        4   

Sacramento

     3.6        2.5        82.3        72.5        5   

San Diego

     1.0        2.5        79.9        48.4        16   

San Francisco

     4.8        2.6        57.6        33.6        12   

San Jose

     9.9        2.5        45.8        39.0        8   

Sarasota

     11.3        2.9        58.1        73.0        7   

Tampa

     8.8        2.2        48.2        76.4        5   

 

  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

TM market average

     6.5 %       2.9 %       59.9 %       66.6 %       8   

US average

     3.4        2.3        56.8        68.6        N/A   

 

Source: Hanley Wood.

(1) The affordability ratio is the percentage of households that can afford the median-priced existing home. The calculation assumes a 20% down payment and a 30-year fixed rate mortgage at the Freddie Mac mortgage rate published just prior to period end and assumes that total monthly payments (including mortgage, property taxes and insurance) cannot exceed 30% of gross household income.

 

 

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(2) Market rankings based on number of home closings between January 1, 2012 and September 30, 2012.
(3) Includes the historical business of Darling Homes for periods prior to its acquisition by us on December 31, 2012. See “—Recent Developments.”

We are well-positioned within our markets. As set forth in the table above, we have a top-ten market share in 14 of our 16 U.S. markets. We believe that maintaining significant market share within our markets enables us to achieve economies of scale, differentiates us from most of our competitors and increases our access to land acquisition opportunities.

Profitable Monarch business in Ontario

We benefit from increased diversification through our presence in the Canadian housing market because of our Monarch business in Ontario. Monarch Corporation delivered its first home in 1936 and since that time has become a recognized brand in Canada. Monarch Corporation has generated stable income and cash flow and has been profitable every year since 1941. Since 2008, the first full year after our U.S. and Canadian operations were combined, our Canada region has generated between 27% and 46% of our annual revenues and has played an important role in delivering growth, profitability and cash flow, which helped us withstand the recent downturn in the U.S. housing industry. As of September 30, 2012, Monarch Corporation had $845.9 million in backlog of homes sold and to be delivered in 2012 through 2016, including $317.9 million of unconsolidated joint venture backlog.

Monarch Corporation has six wholly owned and joint venture high-rise developments in the GTA which are expected to close and recognize revenue in 2013 and 2014 and which have sold in excess of 95% of the aggregate number of the homes offered in those developments. These high-rise developments are expected to recognize in excess of $350 million in total revenues, a portion of which we will recognize as joint venture income on an equity method basis.

 

 

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Expertise in delivering lifestyle communities targeted at first- and second-time move-up buyers

We focus on developing lifestyle communities, which have many distinguishing attributes, including proximity to job centers, strong school systems and a variety of amenities. Within our communities, we offer award-winning home designs through our single-family detached, single-family attached and high-rise condominium products. During the economic downturn, we maintained our core business strategy of focusing on first- and second-time move-up buyers, whereas we observed many homebuilders refocus their businesses on lower-priced homes. We believe our experience in the move-up market allows us to significantly expand our new home offerings at higher price points. We believe homebuyers at these higher price points are more likely to value and pay for the quality of lifestyle, construction and amenities for which we are known. While we primarily target move-up buyers, our portfolio also includes homes for entry-level, luxury and active adult buyers (55 years of age and over). We have the expertise and track record in designing and delivering lifestyle products and amenities that we believe appeal to active adult buyers.

 

LOGO

Our captive mortgage company allows us to offer financing to our homebuyers and to more effectively convert backlog into closings

We directly originate, underwrite and fund mortgages for our homebuyers through our wholly owned mortgage lending company, Taylor Morrison Home Funding, LLC (“TMHF”). TMHF maintains relationships with several correspondent lenders through which it utilizes its Principal Authorized Agent designation to mitigate the underwriting risk associated with its funding of mortgage loans. We believe TMHF provides a distinct competitive advantage relative to homebuilders without captive mortgage units, since many of our buyers seek an integrated home buying experience. While we believe many other homebuilders with a captive mortgage company use a single lender, our multi-lender platform provides us with the ability to leverage a broad range of products and underwriting and pricing options for the benefit of our home buyers. Therefore, TMHF allows us to use mortgage finance as an additional sales tool, helps ensure and enhance the customer experience, prequalifies buyers earlier in the home buying process, provides us better visibility in converting our sales backlog into closings and is a source of incremental revenues and profitability. TMHF outperforms a number of builder-affiliated mortgage companies, as evidenced by our industry-leading capture rate of 84% in 2012 (compared to an average of 73% among the top 13 public U.S. homebuilders, based on the most recent fiscal year data). TMHF also had one of the lowest sales cancellation rates among our publicly traded peers with mortgage units, which was 15% in 2012, compared to an average of 19% among the top 13 public U.S. homebuilders, based on the most recent fiscal year data.

 

 

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Highly experienced management team

We benefit from an experienced management team that has demonstrated the ability to generate positive financial results and adapt to constantly changing market conditions. In addition to our corporate management team, our division presidents bring substantial industry knowledge and local market expertise, with an average of approximately 18 years of experience in the homebuilding industry. Our success in land acquisition and development is due in large part to the caliber of our local management teams, which are responsible for the planning, design, entitlements and eventual execution of the entire community. Unlike some of our homebuilding peers, our management team chose to retain a core competency in land acquisition and development during the recent downturn, which positions us to more effectively identify and capitalize on land opportunities in the current market.

Our Growth Strategy

We have performed well through the unprecedented challenges of the recent economic downturn. We believe we are well-positioned for growth and increased profitability in an improving housing market through disciplined execution of the following elements of our growth strategy:

Drive revenue by opening new communities from existing land supply

Over the last few years we have strategically invested in new land in our core markets. Our land supply provides us with the opportunity to increase our community count on a net basis by approximately 20% in each of 2013 and 2014. A significant portion of our land supply was purchased at low price points during the recent downturn in the housing cycle. Although future downturns may occur, these land purchases, coupled with the adjustment of our land cost basis to fair market value at the time of our Acquisition, are expected to result in continued revenue growth and strong gross margin performance from our U.S. communities.

Combine land acquisition and development expertise with homebuilding operations to maximize profitability

Our ability to identify, acquire and develop land in desirable locations and on favorable terms is critical to our success. We evaluate land opportunities based on how we expect they will contribute to overall corporate profitability and returns, rather than how they might drive volume on a regional or submarket basis. We continue to use our local relationships with land sellers, brokers and investors to seek to obtain the “first look” at quality land opportunities. We expect to continue to allocate capital to pursue creative deal structures and other opportunities with the goal of achieving superior returns by utilizing our development expertise, efficiency and opportunistic mindset.

We continue to combine our land development expertise with our homebuilding operations to increase the flexibility of our business, to enhance our margin performance and to control the timing of delivery of lots. Unlike many of our competitors, we believe we are able to increase the value of our land portfolio through the zoning and engineering process by creating attractive land use plans and optimizing our use of land, which ultimately translates into greater opportunities to generate profits.

Focus our offerings on targeted customer groups

Our goal is to identify the preferences of our target customer and demographic groups and offer them innovative, high-quality homes that are efficient and profitable to build. To achieve this goal, we conduct extensive market research to determine preferences of our customer groups. We have identified seven consumer groups by focusing on particular lifestyle preferences, tastes and other attributes of our customer base. Our group classification includes four categories of couples or singles, such as our “Fancy Nesters” customers, and three categories of families, such as our “Parks and Prestige” customers.

Our approach to consumer group segmentation guides all of our operations from our initial land acquisition through our design, building, marketing and delivery of homes and our ongoing after-sales customer service.

 

 

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Among our peers, we believe we are at the forefront of directed-marketing strategies, as evidenced by our highly-trafficked website which provides innovative tools that are designed to enhance our customers’ home buying experience.

Build aspirational homes for our customers and deliver superior customer service

We develop communities and build homes in which our target customers aspire to live. In order to deliver aspirational homes, we purchase well-located land and focus on developing attractive neighborhoods and communities with desirable lifestyle amenities. Our efforts culminate in the design and construction of thoughtfully detailed finished homes utilizing the highest construction standards.

We are committed to after-sales service that we believe can improve our brand recognition and encourage our customers to make referrals resulting in lower customer acquisition costs and increased home sales rates. Both the Taylor Morrison and Monarch brands have received numerous accolades and awards for quality, service and design by homebuilding industry trade groups and publications, such as the 2009 award for “Best Customer Experience” by a large homebuilder in the United States by AVID Awards and Builder magazine’s “Builder’s Choice” Hall of Fame award in 2009.

Selectively pursue acquisitions

Our company was formed through the combination of Taylor Woodrow and Morrison Homes in the United States, forming Taylor Morrison, and Monarch Corporation in Canada. We have successfully acquired and integrated homebuilding businesses in the past and intend to utilize our experience in integrating businesses as opportunities for acquisitions arise.

We selectively evaluate expansion opportunities in our existing markets as well as in new markets that exhibit positive long-term fundamentals. For instance, in December 2012 we acquired the assets of Darling Interests, Inc., a Texas-based home builder. Darling builds homes under the Darling Homes brand for move-up buyers in approximately 25 communities in the Dallas-Fort Worth Metroplex and 19 communities in the Greater Houston Area markets. We believe that our success in integrating operations across both a wide range of geographic markets and product types demonstrates the scalable nature of our business model and provides us with the structure to support disciplined growth in existing and new markets.

Adhere to our core operating principles to drive consistent long-term performance

We recognize that the housing market is cyclical and home price movement between the peak and trough of cycles can be significant. We seek to maximize shareholder value over the long-term and therefore operate our business to mitigate risks from downturns in the market and to position ourselves to capitalize on upturns in the market: we seek to control costs, maintain a strong balance sheet and ensure an overall strategic focus that is informed by national, regional and local market trends. This management approach also includes the following elements:

 

   

attracting and retaining top talent through a culture in which team members are encouraged to contribute to our success and are given the opportunity to recognize their full potential;

 

   

balancing decentralized local day-to-day decision-making responsibility with centralized corporate oversight;

 

   

ensuring all team members understand the organization’s strategy and the goals of the business and have the tools to contribute to our success;

 

   

centralizing management approval of all land acquisitions and dispositions under stringent underwriting requirements; and

 

   

maintaining a performance-based corporate culture committed to the highest standards of integrity, ethics and professionalism.

 

 

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The Reorganization Transactions

In the Reorganization Transactions, TMHC will, through a series of transactions, directly or indirectly acquire partnership interests in TMM with the net cash proceeds received in this offering and become or acquire control over the sole general partner of TMM. The existing holders of limited partnership interests in TMM, including our Principal Equityholders (as described below) and certain members of our management, will continue to hold directly or indirectly limited partnership interests in TMM and will be issued shares of TMHC’s Class B common stock. TMHC will control the business and affairs of TMM and its subsidiaries. TMHC will consolidate the financial results of TMM and its subsidiaries, and TMHC’s net income (loss) will be reduced by a noncontrolling interest expense to reflect the entitlement of the existing holders of partnership interests in TMM to a portion of TMM’s net income (loss). See “Organizational Structure” for further details.

In connection with the Reorganization Transactions, TMHC will amend and restate its certificate of incorporation to authorize the issuance of two classes of common stock, Class A common stock and Class B common stock. Shares of Class A common stock and Class B common stock, which we collectively refer to as “common stock,” will generally vote together as a single class on all matters submitted to stockholders. The Class B common stock will not entitle its holders to any of the economic rights (including rights to dividends and distributions upon liquidation) that will be provided to holders of Class A common stock. The voting power of the outstanding Class A common stock will be equal to the percentage of TMM partnership interests held directly or indirectly by TMHC, and the voting power of the outstanding Class B common stock will be equal to the remaining percentage of TMM partnership interests not held directly or indirectly by TMHC. Partnership interests held directly or indirectly by the existing TMM partners (along with a corresponding number of shares of Class B common stock) may be exchanged for shares of Class A common stock on a one-for-one equivalent basis, according to the terms of the Exchange Agreement to which TMHC and certain other partners of TMM will be a party upon completion of this offering.

Following the Reorganization Transactions, this offering and the application of the net proceeds therefrom, TMHC will hold directly or indirectly     % of the partnership interests in TMM and the Principal Equityholders and certain members of our management will hold directly or indirectly an aggregate of     % of the partnership interests in TMM (in each case based on the midpoint of the estimated public offering price range set forth on the cover page of this prospectus).

 

 

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Post-Reorganization Structure

The following chart summarizes our legal entity structure following the Reorganization Transactions, this offering and the application of the net proceeds from this offering (assuming an initial public offering price of $ per share (the midpoint of the estimated public offering price range set forth on the cover page of this prospectus)). This chart is provided for illustrative purposes only and does not purport to represent all legal entities owned or controlled by us:

 

LOGO

See “Organizational Structure,” “Certain Relationships and Related Party Transactions” and “Description of Capital Stock” for more information on the Exchange Agreement and the rights associated with our common stock and the TMM partnership interests.

 

 

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Our Principal Equityholders

In this prospectus, we refer to (i) the affiliates of TPG Global, LLC (“TPG Global”) that are invested in TMM (the “TPG Entities”), (ii) Oaktree (as described below) and (iii) JH (as described below), collectively, as our “Principal Equityholders.” Following this offering, the Principal Equityholders will own a majority of the combined voting power of our common stock. As a result, we expect to be a “controlled company” within the meaning of the corporate governance standards of the national securities exchange on which the shares of Class A common stock will be listed. See “Principal Stockholders.”

TPG Global

TPG Global (together with its affiliates, “TPG”) is a leading global private investment firm founded in 1992 with $54.5 billion of assets under management as of September 30, 2012 and offices in San Francisco, Fort Worth, Austin, Beijing, Chongqing, Hong Kong, London, Luxembourg, Melbourne, Moscow, Mumbai, New York, Paris, São Paulo, Shanghai, Singapore and Tokyo. TPG has extensive experience with global public and private investments executed through leveraged buyouts, recapitalizations, spinouts, growth investments, joint ventures and restructurings.

Oaktree

Oaktree Capital Management, L.P. (“Oaktree Capital Management”) is a leading global investment management firm focused on alternative markets, with an estimated $81.0 billion in assets under management as of September 30, 2012. The firm emphasizes an opportunistic, value-oriented and risk-controlled approach to investments in distressed debt, corporate debt (including high yield debt and senior loans), control investing, convertible securities, real estate and listed equities. Oaktree was founded in 1995 by a group of principals who have worked together since the mid-1980s. Headquartered in Los Angeles, the firm has over 700 employees and offices in 13 cities worldwide. The investment funds managed by Oaktree Capital Management or their respective subsidiaries that are invested in TMM are referred to collectively in this prospectus as “Oaktree.”

JH Investments

JH Investments Inc. (“JH Investments”) is a Vancouver, Canada-based private company with investments in a wide variety of businesses including real estate development in Canada and the United States, an international resort development and consulting business operated through RePlay Resorts and an alternative energy business operated through Elemental Energy. The investment funds managed by JH Investments or their respective subsidiaries that are invested in TMM are referred to collectively in this prospectus as “JH.”

In connection with the Reorganization Transactions, we intend to enter into a stockholders agreement with certain of the existing limited partners of TMM. The stockholders agreement will contain provisions related to the composition of the Board of Directors of TMHC, the committees of the Board of Directors of TMHC and TMHC’s corporate governance. Under the stockholders agreement, the Principal Equityholders will be entitled to nominate a majority of the members of the Board of Directors of TMHC. The Principal Equityholders will agree in the stockholders agreement to vote for each other’s board nominees. See “Management—Board Structure” and “Certain Relationships and Related Transactions—Stockholders Agreement.”

Acquisition by the Principal Equityholders and Financing Transactions

Affiliates of the Principal Equityholders formed TMM in March 2011, and on July 13, 2011, TMM acquired Taylor Morrison Communities, Inc. (“TMC”) and Monarch Corporation (together with TMC, the “Operating Subsidiaries”) from Taylor Wimpey plc for aggregate cash consideration of approximately $1.2 billion. TMC is currently held indirectly by TMM via Taylor Morrison Holdings. We refer to this transaction as the

 

 

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“Acquisition.” To fund a portion of the consideration for the Acquisition, the Principal Equityholders contributed an aggregate of $620.3 million in cash to TMM in exchange for the issuance to them of limited partner interests in TMM (the “Equity Contribution”).

Concurrently with the Equity Contribution and to finance the remaining portion of the consideration for the Acquisition, the Operating Subsidiaries entered into a $625.0 million senior unsecured credit facility with affiliates of TPG and Oaktree, consisting of a $500.0 million bridge loan facility and a $125.0 million incremental bridge loan facility (collectively, the “Sponsor Loan”). In August 2011, we repaid the $125.0 million incremental bridge loan facility. Concurrently with the Acquisition, the Operating Subsidiaries also entered into the Revolving Credit Facility with a syndicate of third party banks and financial institutions, with an aggregate committed principal amount of $75.0 million. On August 15, 2012, we utilized the $50.0 million incremental facility feature under the Revolving Credit Facility to increase the revolving credit commitments from $75.0 million to $125.0 million. On December 27, 2012, we further amended the Revolving Credit Facility to provide for $225.0 million in aggregate revolving credit commitments.

On April 13, 2012, TMC and Monarch Communities completed an offering of $550.0 million aggregate principal amount of 7.750% senior notes due 2020. We used a portion of the net proceeds from the offering of the senior notes to repay $350.0 million of the then outstanding Sponsor Loan. The affiliates of TPG and Oaktree who were lenders under the Sponsor Loan caused the then remaining $150.0 million of the Sponsor Loan to be acquired by a subsidiary of TMM, and the TPG Entities and Oaktree acquired an additional $150.0 million of limited partnership interests in TMM (the “Sponsor Loan Contribution”). On August 21, 2012, we completed the offering of an additional $125.0 million aggregate principal amount of 7.750% senior notes due 2020 at an issue price of 105.5% plus accrued interest from and including April 13, 2012.

We refer to the Acquisition, the Sponsor Loan Contribution, the initial entry into the Revolving Credit Facility (and its subsequent amendment and extension), the two offerings of our senior notes and the use of proceeds from those transactions as the “Acquisition and Financing Transactions.”

Recent Developments

Acquisition of Darling Homes

On December 31, 2012, Taylor Morrison, Inc., through its subsidiary Darling Homes of Texas, LLC, acquired the assets of Darling Interests, Inc. (“Darling”), a Texas-based homebuilder. Darling builds homes under the Darling Homes brand for move-up buyers in approximately 25 communities in the Dallas-Fort Worth Metroplex and 19 communities in the Greater Houston Area markets. Darling is a well-established builder whose products complement our existing product lines in Texas. We believe the acquisition of Darling will give us a strong presence in the Dallas homebuilding market and expand our current operations in Houston.

The consideration for the acquisition of the Darling assets included an initial cash payment of $115.0 million, which is subject to post-closing adjustment under certain circumstances. A portion of this amount was financed by $50.0 million of borrowings under our Revolving Credit Facility. Approximately $26.0 million of additional consideration for the acquisition was financed by the sellers. Subsequent payments of up to an aggregate of $50.0 million, plus 5% of any cumulative EBIT (or earnings before interest and taxes) attributable to the acquired assets above $221.5 million over the four year period following December 31, 2012, may be made to the sellers pursuant to an earn-out arrangement. Darling generated revenues of $181.9 million and $183.7 million, and closed 409 and 425 homes, for the year ended December 31, 2011 and the nine months ended September 30, 2012, respectively.

 

 

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Risks Associated with our Business and Growth Strategy

An investment in shares of our Class A common stock involves a high degree of risk. Below is a summary of certain key risk factors, and a description of certain challenges we face in our business, that you should consider in evaluating an investment in shares of our Class A common stock:

 

   

the U.S. housing market may not recover to the extent or on the timetable we expect;

 

   

downturns or cyclical economic conditions affecting the particular markets in which our products are sold, including the housing and commercial construction markets;

 

   

competition in our industry, which is significant;

 

   

failure to manage land acquisition strategies;

 

   

access to, and the cost of, qualified labor and raw materials may be affected by factors beyond our control;

 

   

our inability to continue to source land at attractive prices;

 

   

increases in homebuyers’ financing costs;

 

   

increases in the cancellation rates of existing agreements of sale with our homebuyers;

 

   

significant increases in home warranty and construction defect claims made in the ordinary course of our business;

 

   

cost overruns in the land acquisition, development and construction processes;

 

   

increases in government regulation, impact fees and development charges; and

 

   

our ability to continue to comply with the covenants in our debt agreements and service our indebtedness.

This list is not exhaustive and the other risks and challenges described under the caption “Risk Factors” beginning on page 21 of this prospectus may impair our ability to operate our business or inhibit our strategic plans.

Corporate and Other Information

We have been building homes since 1936. The July 2007 merger between Taylor Woodrow and George Wimpey, two UK-based, publicly listed homebuilders, resulted in the formation of Taylor Wimpey plc, our former parent, and the subsequent integration of Taylor Woodrow and Morrison Homes in the United States, forming Taylor Morrison, and Monarch Corporation in Canada. TMHC was incorporated in Delaware in November 2012. Our principal executive offices are located at 4900 N. Scottsdale Road, Suite 2000, Scottsdale, Arizona 85251 and the telephone number is (480) 840-8100.

We also maintain internet sites at http://www.taylormorrison.com and http://www.monarchgroup.net. Our websites and the information contained in our websites or connected to our websites are not and will not be deemed to be incorporated into this prospectus or the registration statement of which this prospectus forms a part, and you should not consider such information part of this prospectus or rely on any such information in making your decision whether to purchase our Class A common stock.

 

 

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THE OFFERING

 

Issuer

Taylor Morrison Home Corporation.

 

Class A common stock offered

                     shares.

 

Class A common stock to be outstanding after this offering

                     shares.

 

Class B common stock to be outstanding after this offering

            shares. Each share of our Class B common stock will have one vote on all matters submitted to a vote of stockholders but will have no economic rights (including no rights to dividends or distributions upon liquidation). Shares of our Class B common stock will be issued in an amount proportionate to the percentage amount of partnership interests in TMM held by the limited partners of TMM (other than TMHC). The voting power of the outstanding Class B common stock will be equal to the percentage of TMM partnership interests held by the partners of TMM (other than TMHC). See “Description of Capital Stock.”

 

Voting rights

One vote per share; Class A common stock and Class B common stock vote together as a single class on all matters submitted to a vote of stockholders. See “Description of Capital Stock.”

 

Exchange

Partnership interests in TMM (along with a corresponding number of shares of our Class B common stock) held by existing partners at the time of this offering (other than TMHC) may be exchanged for shares of our Class A common stock on a one-for-one equivalent basis, subject to customary exchange rate adjustments for stock splits, stock dividends and reclassifications. When a partnership interest and the corresponding share of our Class B common stock are exchanged by a partner of TMM for a share of Class A common stock, the corresponding share of our Class B common stock will be canceled.

 

Over-allotment option

We have granted to the underwriters an option to purchase up to             additional shares of Class A common stock from us at the initial public offering price (less underwriting discounts and commissions) to cover over-allotments, if any, for a period of 30 days from the date of this prospectus.

 

Use of proceeds

We estimate that the net proceeds from the sale of our Class A common stock in this offering, after deducting offering expenses and underwriting discounts and commissions, will be approximately $          million ($         million if the underwriters exercise their over-allotment option in full) based on an assumed initial public offering price of $         per share (the midpoint of the estimated public offering price range set forth on the cover page of this prospectus). TMHC intends to use the net proceeds of this offering to acquire partnership interests in TMM. TMM intends to contribute such proceeds to its subsidiaries. TMM’s subsidiaries intend to use such proceeds for working capital and general corporate purposes, which may include the repayment or repurchase of indebtedness and to fund acquisitions.

 

 

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Dividend policy

We do not intend to pay dividends on our Class A common stock. We plan to retain any earnings for use in the operation of our business and to fund future growth.

 

Listing

We intend to apply to have our Class A common stock listed on a national securities exchange under the symbol “TMHC.”

 

Risk factors

Investing in our Class A common stock involves a high degree of risk. Please read “Risk Factors” beginning on page 21 of this prospectus for a discussion of factors you should carefully consider before deciding to purchase shares of our Class A common stock.

Except as otherwise indicated, all information in this prospectus:

 

   

assumes no exercise of the underwriters’ option to purchase additional shares to cover over-allotments;

 

   

assumes             shares are issuable under options to purchase shares of Class A common stock or restricted stock units that may be granted in connection with this offering under the Taylor Morrison 2013 Omnibus Equity Incentive Plan (the “2013 Plan”);

 

   

assumes             shares of Class A common stock are reserved for issuance upon the exchange of partnership interests in TMM (along with the corresponding number of shares of our Class B common stock); and

 

   

assumes an initial public offering price of $         per share (the midpoint of the estimated public offering price range set forth on the cover page of this prospectus).

 

 

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SUMMARY HISTORICAL AND PRO FORMA CONSOLIDATED FINANCIAL AND OTHER INFORMATION

The summary combined financial information of TMM set forth below for each of the years in the two year period ended December 31, 2010 and the period from January 1, 2011 to July 12, 2011 has been derived from the audited combined financial statements of TMM’s predecessor, the North American business of Taylor Wimpey plc, which are included elsewhere in this prospectus. The summary consolidated financial information set forth below for the period from July 13, 2011 to December 31, 2011, and as of December 31, 2011, has been derived from the audited consolidated financial statements of TMM (the “successor”) included elsewhere in this prospectus. The predecessor period financial statements have been prepared using the historical cost basis of accounting that existed prior to the Acquisition in accordance with U.S. GAAP. The successor period financial statements for periods ending subsequent to July 13, 2011 (the date of the Acquisition) are also prepared in accordance with U.S. GAAP, although they reflect adjustments made as a result of the application of purchase accounting in connection with the Acquisition. As a result, the financial information for periods subsequent to the date of the Acquisition is not necessarily comparable to that for the predecessor periods or to the pro forma financial information presented below. The summary consolidated financial information set forth below for the period from July 13, 2011 to September 30, 2011 and the nine months ended September 30, 2012 has been derived from the unaudited condensed consolidated financial statements of the successor, included elsewhere in this prospectus. Our results for the nine months ended September 30, 2012 are not necessarily indicative of the results that can be expected for the full year or any future period.

The summary unaudited pro forma consolidated statement of operations data of TMHC for the fiscal year ended December 31, 2011 and the nine months ended September 30, 2012 present our consolidated results of operations giving pro forma effect to the Acquisition and Financing Transactions, the Reorganization Transactions, this offering and the use of the estimated net proceeds from this offering as described under “Use of Proceeds,” as if such transactions occurred on January 1, 2011. The summary unaudited pro forma consolidated balance sheet data of TMHC as of September 30, 2012 presents our consolidated financial position giving pro forma effect to the Reorganization Transactions, this offering and the use of the estimated net proceeds from this offering as described under “Use of Proceeds,” as if such transactions occurred on September 30, 2012. The unaudited pro forma consolidated financial information does not give effect to the acquisition of the assets of Darling or the incurrence of $50.0 million of additional indebtedness under the Revolving Credit Facility to finance the acquisition in part (both of which occurred on December 31, 2012), because we are not required to do so under Rule 11-01 of Regulation S-X.

The pro forma adjustments are based on available information and upon assumptions that our management believes are reasonable in order to reflect, on a pro forma basis, the impact of the relevant transactions on the historical financial information of TMHC, TMM and its predecessor. The summary unaudited pro forma consolidated financial information is included for informational purposes only and does not purport to reflect the consolidated results of operations or financial position of TMM or TMHC that would have occurred had we operated as a public company during the periods presented. The unaudited pro forma consolidated financial information should not be relied upon as being indicative of our results of operations or financial position had the Reorganization Transactions, this offering and the use of the estimated net proceeds from this offering as described under “Use of Proceeds” occurred on the dates assumed. The unaudited pro forma consolidated financial information also does not project our results of operations or financial position for any future period or date.

The summary historical and pro forma consolidated financial information presented below does not purport to be indicative of results of future operations and should be read together with our consolidated financial statements and related notes and the information included elsewhere in this prospectus under the captions “Organizational Structure,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Use of Proceeds,” “Unaudited Pro Forma Consolidated Financial Information” and “Capitalization.”

 

 

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    TMHC     Successor           Predecessor  
   

Pro Forma
Nine Months
Ended
September 30,

   

Pro Forma
Year
Ended
December 31,

   

Nine Months
Ended
September 30,

   

July 13 to
September 30,

   

July 13 to
December 31,

         

January 1
to

July 12,

   

Year Ended
December 31,

 
($ in thousands, except per                    
share amounts)   2012     2011     2012     2011     2011           2011     2010     2009  

Statement of Operations Data:

                   

Home closings revenue

  $ 829,221      $ 1,331,285      $ 829,221      $ 299,163      $ 731,216          $ 600,069      $ 1,273,160      $ 1,224,082   

Land closings revenue

    36,102        24,296        36,102        6,177        10,657            13,639        12,116        24,967   

Financial services revenue

    13,705        14,606        13,705        3,384        8,579            6,027        12,591        13,415   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Total revenues

    879,028        1,370,187        879,028        308,724        750,452            619,735        1,297,867        1,262,464   

Cost of home closings

    660,058        1,043,842        663,656        239,740        591,891            474,534        1,003,172        1,003,694   

Cost of land closings

    27,881        15,716        27,881        5,477        8,583            7,133        6,028        17,001   

Inventory impairments

    —          —          —          —          —              —          4,054        78,241   

Financial services expenses

    7,667        8,313        7,667        2,071        4,495            3,818        7,246        6,269   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Operating gross margin

    183,422        302,316        179,824        61,436        145,483            134,250        277,367        157,259   

Sales, commissions, and other marketing costs

    52,230        76,442        52,230        14,342        36,316            40,126        85,141        100,534   

General and administrative expenses

    37,347        66,304        41,091        15,251        32,883            35,743        66,232        71,300   

Equity in net income of unconsolidated entities

    (11,497     (8,050     (11,497     (488     (5,247         (2,803     (5,319     (347

Interest expense (income)—net

    —          (1,493     (1,246     (1,536     (3,867         941        40,238        20,732   

Other income

    (1,655     (13,028     (7,767     (149     (1,245         (11,783     (10,842     (24,465

Other expense

    —          4,678        7,358        1,751        3,553            1,125        13,193        25,725   

Loss on extinguishment of debt

    7,853        —          7,853        —          —              —          —          —     

Transaction expenses

    —          —          —          38,278        39,442            —          —          —     

Indemnification loss (gain)

    —          —          13,063        (1,104     12,850            —          —          —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

    99,144        177,463        78,739        (4,909     30,798            70,901        88,724        (36,220

Income tax (benefit) expense

    (507     40,065        (3,090     8,500        4,031            20,881        (1,878     (35,396
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Net income (loss)

    99,651        137,398        81,829        (13,409     26,767            50,020        90,602        (824

Net (income) attributable to noncontrolling interests(1)

    —          —          (72     (866     (1,178         (4,122     (3,235     (5,138
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Net income (loss) attributable to owners

  $ —        $ —        $ 81,757      $ (14,275   $ 25,589          $ 45,898      $ 87,367      $ (5,962
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Basic weighted average number of Class A common shares outstanding

                  —          —          —     

Basic net income (loss) per share applicable to Class A common stock

                  —          —          —     

Diluted weighted average number of Class A common shares outstanding

                  —          —          —     

Diluted net income (loss) per share applicable to Class A common stock

                  —          —          —     

Basic weighted average number of Class A units outstanding(2)

    —          —          710,089        620,320        620,646            —          —          —     

Basic net income (loss) per unit applicable to Class A units

    —          —        $ 0.12      $ (0.02   $ 0.04            —          —          —     

Diluted weighted average number of Class A units outstanding

    —          —          710,089        620,320        620,646            —          —          —     

Diluted net income (loss) per share applicable to Class A units

    —          —        $ 0.12      $ (0.02   $ 0.04            —          —          —     

 

 

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Table of Contents
    TMHC     Successor           Predecessor  
   

Pro Forma
Nine Months
Ended
September 30,

   

Pro Forma
Year
Ended
December 31,

   

Nine Months
Ended
September 30,

   

July 13 to
September 30,

   

July 13 to
December 31,

         

January 1
to

July 12,

   

Year Ended
December 31,

 
($ in thousands, except per                    
share amounts)   2012     2011     2012     2011     2011           2011     2010     2009  
 

Other Financial Data:

                   

Interest incurred(3)

  $ 37,164      $ 34,618      $ 46,132      $ 17,846      $ 37,546          $ 23,077      $ 85,720      $ 87,684   

Depreciation and amortization

    3,093        4,219        4,595        1,149        2,564            1,655        3,242        2,917   

Adjusted home closings gross margin(4)

    183,491        293,356        183,491        60,696        148,856            144,500        309,683        265,152   

Adjusted home closings gross margin percentage

    22.1     22.0     22.1     20.3     20.4         24.1     24.3     21.7

Adjusted EBITDA(5)

  $ 125,712      $ 187,142      $ 125,087      $ 35,209      $ 94,253          $ 92,919      $ 179,013      $ 121,160   

Adjusted EBITDA margin(5)

    14.8     13.6     14.2     11.48     12.4         14.3     13.5     9.2
 

Operating Data (including unconsolidated joint ventures)(6):

                   

Average active selling communities

    122        140        122        148        140            151        149        172   

Net sales orders(7)

    3,615        4,035        3,615        1,056        1,941            2,094        3,690        5,215   

U.S. closings (units)

    1,880        2,327        1,880        483        1,282            1,045        2,570        3,347   

Canada closings (units)

    707        1,593        707        370        795            798        1,570        1,408   

U.S. average sales price of homes delivered

  $ 324      $ 306      $ 324      $ 295      $ 304          $ 308      $ 274      $ 253   

Canada average sales price of homes delivered

  $ 410      $ 389      $ 410      $ 424      $ 465          $ 349      $ 364      $ 311   

U.S. backlog at end of period (units)

    1,747        740        1,747        944        740            882        503        764   

Canada backlog at end of period (units)

    2,459        2,225        2,459        2,266        2,225            2,126        2,253        2,452   

U.S. backlog at end of period (value)

  $ 626,287      $ 259,392      $ 626,287      $ 325,855      $ 259,392          $ 311,977      $ 170,503      $ 234,600   

Canada backlog at end of period (value)

  $ 845,896      $ 723,133      $ 845,896      $ 803,904      $ 723,133          $ 842,704      $ 760,498      $ 739,510   

Balance Sheet Data:

 

     TMM      TMHC
($ in thousands)    As of
September 30,
2012

(Actual)
     As of
September 30,
2012
(Pro Forma)
     (unaudited)      (unaudited)

Cash and cash equivalents, excluding restricted cash

   $ 412,779      

Real estate inventory

     1,275,763      

Total assets

     2,156,299      

Total debt

     798,161      

Total equity (including noncontrolling interests)

     869,447      

 

(1) Represents ownership interests in noncontrolled units owned by third parties and, on a pro forma basis only, the interests of the partners of TMM (other than TMHC) in a share of TMM’s net income (loss).
(2) Represents Class A partnership interests in TMM.
(3) Interest incurred is interest accrued on debt, whether or not paid and whether or not capitalized. Interest incurred includes debt issuance costs, modification fees and waiver fees. Interest incurred is generally capitalized to inventory but is expensed when assets that qualify for interest capitalization no longer exceed debt.

 

 

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(4) Adjusted home closings gross margin is a non-GAAP financial measure used by management and our local divisions in evaluating operating performance and in making strategic decisions regarding sales pricing, construction and development pace, product mix and other operating decisions. For a full description of adjusted home closings gross margin, the reasons management believes adjusted home closings gross margin is useful to investors and the limitations associated with adjusted home closings gross margin, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Non-GAAP Measures—Adjusted Home Closings Gross Margin.”

The following table sets forth a reconciliation of adjusted home closings gross margin to home closings gross margin, which is the U.S. GAAP financial measure that management believes to be most directly comparable:

 

    TMHC     Successor         Predecessor  
    Pro Forma
Nine Months

Ended
September 30,
2012
    Pro Forma  Year
Ended
December 31,
2011
    Nine  Months

Ended

September  30,
2012
    July 13 to

September 30,
2011
    July 13 to

December 31,
2011
          January 1  to
July 12,
2011
    Year Ended

December 31,
 
($ in thousands)                     2010     2009  

Home closings revenue

  $ 829,221      $ 1,331,285      $ 829,221      $ 299,163      $ 731,216          $ 600,069      $ 1,273,160      $ 1,224,082   

Cost of home closings and impairments(a)

    660,058        1,043,842        663,656        239,740        591,891            474,534        1,005,178        1,075,290   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Home closings gross margin

    169,163        287,443        165,565        59,423        139,325            125,535        267,982        148,792   

Add:

                   

Impairments

    —          —          —          —          —              —          2,006        71,595   

Capitalized interest amortization

    14,328        5,913        17,926        1,273        9,531            18,965        39,695        44,765   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Adjusted home closings gross margin

  $ 183,491      $ 293,356      $ 183,491      $ 60,696      $ 148,856          $ 144,500      $ 309,683      $ 265,152   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Home closings gross margin as a percentage of home closings revenue

    20.4     21.6     20.0     19.9     19.1         20.9     21.0     12.2

Adjusted home closings gross margin as a percentage of home closings revenues

    22.1     22.0     22.1     20.3     20.4         24.1     24.3     21.7

 

  (a) Includes impairments attributable to write-downs of operating communities and interest amortized through cost of home closings.

 

(5) EBITDA and Adjusted EBITDA are non-GAAP financial measures used by management and our local divisions in evaluating operating performance and in making strategic decisions regarding sales pricing, construction and development pace, product mix and other operating decisions. For a full description of EBITDA and Adjusted EBITDA, the reasons management believes these EBITDA-based measures are useful to investors and the limitations associated with these EBITDA-based measures, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Non-GAAP Measures—Adjusted EBITDA.”

 

 

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The following table reconciles Adjusted EBITDA to net income (loss):

 

    TMHC     Successor           Predecessor  
   

Pro Forma

Nine Months

Ended

September 30,

   

Pro Forma

Year Ended

December 31,

   

Nine Months

Ended

September 30,

   

July 13 to

September 30,

   

July 13 to

December 31,

          January 1  to
July 12,
2011
    Year Ended
December 31,
 
    2012     2011     2012     2011     2011         2010     2009  

Net income (loss)

  $ 92,163      $ 137,398      $ 81,829        (13,409   $ 26,767          $ 50,020      $ 90,602      $ (824

Interest expense, net

    —          (1,493     —          (1,655     (66         941        40,238        20,732   

Amortization of capitalized interest(a)

    15,622        6,953        19,220        1,273        10,114            19,422        39,860        47,091   

Income tax expense (benefit)

    (507     40,065        (3,090     8,500        4,031            20,881        (1,878     (35,396

Depreciation and amortization

    3,093        4,219        4,595        1,149        2,564            1,655        3,242        2,917   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

EBITDA

    110,371        187,142        102,554        (4,142     43,542            92,919        172,064        34,520   

Management fees(b)

    —          —          3,744        1,070        2,322            —          2,517        2,430   

Land inventory impairments(c)

    —          —          —          —          —              —          2,529        75,439   

Lot option write-offs(d)

    —          —          —          —          —              —          1,525        2,802   

Non-cash compensation expense(e)

    —          —          —          —          —              —          170        60   

Severance and restructuring charges(f)

    —          —          —          —          —              —          —          1,730   

Royalties paid to parent(g)

    —          —          —          —          —              —          208        4,179   

Early extinguishment of debt

    7,853        —          7,853        —          —              —          —          —     

Transaction-related expenses and indemnification loss(h)

    —          —          10,936        37,174        52,292            —          —          —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Adjusted EBITDA

  $ 118,224      $ 187,142      $ 125,087      $ 34,102      $ 98,156          $ 92,919      $ 179,013      $ 121,160   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

 

  (a) Represents the interest amortized through cost of home and land closings.
  (b) Represents management fees for the provision of certain legal, administrative and other related back-office functions paid to Taylor Wimpey plc prior to the consummation of the Acquisition and management fees paid to our Principal Equityholders following the consummation of the Acquisition. In connection with this offering, the management services agreements will be terminated. For further information, see “Certain Relationships and Related Party Transactions—Management Services Agreement.”
  (c) Represents impairments expensed through cost of home and land closings in connection with fair market value write-downs from cost basis.
  (d) Represents amounts expensed through cost of sales in connection with unexercised land option contracts.
  (e) Represents expenses incurred in connection with employee stock options linked to the stock of Taylor Wimpey plc, in connection with compensation arrangements in place prior to the consummation of the Acquisition.
  (f) Represents amounts accrued in connection with the 2007 merger of our predecessors Taylor Woodrow and Morrison Homes.
  (g) Represents royalties paid to Taylor Wimpey plc for certain U.S. and Canadian intellectual property rights, which include trademarks, logos, and domain names which we acquired in October 2009 and September 2010, respectively.
  (h) Represents $39.4 million of fees and expenses incurred by TMM in connection with the Acquisition and the reversal of a receivable from Taylor Wimpey plc due to the resolution of an uncertain tax position of $12.8 million and $13.1 million during the period from July 13, 2011 to December 31, 2011 and the nine month period ended September 30, 2012, respectively.

 

(6)

The substantial majority of our unconsolidated joint ventures are in Canada, but we also have investments in unconsolidated joint ventures in the United States, although none of these joint ventures in the United States are actively involved in homebuilding. Our proportionate share of net

 

 

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  income in such U.S. unconsolidated joint ventures was $1.4 million for the year ended December 31, 2011 and $0.9 million for the nine months ended September 30, 2012. In this prospectus, references to “unconsolidated joint ventures” refer to our proportionate share of unconsolidated homebuilding joint ventures in Canada. Management believes that home and land closings, including our proportionate share of joint venture closings and the revenue-based measures associated therewith, are appropriate metrics to measure our performance. Management and our local divisions use these measures in evaluating the operating performance of each community and in making strategic decisions regarding sales pricing, construction and development pace, product mix, and other daily operating decisions. We believe they are relevant and useful measures to investors for evaluating our performance. Although other companies in the homebuilding industry report similar information, their methods used may differ. We urge investors to understand the methods used by other companies in the homebuilding industry to calculate home and land closings and associated revenues and any adjustments to such amounts, before comparing our measures to that of such other companies.
(7) Includes unconsolidated joint ventures.

 

 

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RISK FACTORS

An investment in our Class A common stock involves a high degree of risk. You should carefully consider the following risks and all of the other information set forth in this prospectus before deciding whether to invest in our Class A common stock. If any of the following risks actually occurs, our business, financial condition or results of operations would likely suffer. In such case, the trading price of our Class A common stock would likely decline due to any of these risks, and you may lose all or part of your investment.

Risks related to our industry and our business

Our business is cyclical and is significantly affected by changes in general and local economic conditions.

Our business can be substantially affected by adverse changes in general economic or business conditions that are outside of our control, including changes in:

 

   

short- and long-term interest rates;

 

   

the availability and cost of financing for homebuyers;

 

   

consumer confidence generally and the confidence of potential homebuyers in particular;

 

   

the ability of existing homeowners to sell their existing homes at prices that are acceptable to them;

 

   

U.S., Canadian and global financial system and credit markets, including stock market and credit market volatility;

 

   

private and federal mortgage financing programs and federal, state and provincial regulation of lending practices;

 

   

federal, state and provincial income tax provisions, including provisions for the deduction of mortgage interest payments;

 

   

housing demand from population growth and demographic changes (including immigration levels and trends in urban and suburban migration);

 

   

demand from overseas buyers for our homes (particularly in our GTA market), which may fluctuate according to economic circumstances in overseas markets;

 

   

the supply of available new or existing homes and other housing alternatives, such as apartments and other residential rental property;

 

   

employment levels and job and personal income growth and household debt-to-income levels;

 

   

real estate taxes; and

 

   

the supply of developable land in our markets in the United States and Canada.

Adverse changes in these conditions may affect our business nationally or may be more prevalent or concentrated in particular regions or localities in which we operate. During the recent downturn, unfavorable changes in many of the above factors negatively affected all of the markets we serve, although to a more limited extent in Canada than in the United States. Economic conditions in all our markets continue to be characterized by levels of uncertainty. Any deterioration in economic conditions or continuation of uncertain economic conditions would have a material adverse effect on our business.

Adverse changes in economic conditions can cause demand and prices for our homes to diminish or cause us to take longer to build our homes and make it more costly for us to do so. We may not be able to recover these increased costs by raising prices because of weak market conditions and because the price of each home we sell is usually set several months before the home is delivered, as many customers sign their home purchase contracts before construction begins. The potential difficulties described above could impact our customers’ ability to obtain suitable financing and cause some homebuyers to cancel or refuse to honor their home purchase contracts altogether.

 

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The homebuilding industry in the United States has recently undergone a significant downturn, and the likelihood of a full recovery is uncertain in the current state of the economy. A slowdown in our business in the United States or a downturn in Ontario, Canada could have additional adverse effects on our operating results and financial condition.

In connection with the recent downturn in the U.S. housing market, we incurred a substantial loss, after impairments, in our U.S. operations during 2008 and 2009. Although the U.S. housing market continues to recover, we cannot predict the extent of further recovery or its timing. In addition, while the market for single-family homes and high-rise condominiums in Canada remained relatively stable during the U.S. downturn, the housing market in parts of Canada has lately shown signs of weakening. With slowing job growth relative to the recent past, ongoing global economic uncertainty and increasing units under construction, it is anticipated that Ontario housing starts will moderate and average home prices will remain relatively flat in 2013. A significant weakening of the Ontario housing market could adversely affect our business.

Though we have taken steps to alleviate the impact of these conditions on our business, given the downturn in the homebuilding industry over the past several years and global economic uncertainty, there can be no guarantee that steps taken by us will continue to be effective, and to the extent the current economic environment does not improve or any improvement takes place over an extended period of time, our business, financial condition and results of operations may be adversely affected.

In the past we have incurred losses and may have difficulty maintaining profitability in the future.

Although we generated net income of $81.8 million in the first nine months of 2012, $76.8 million in 2011 (arithmetically combined historical results of the predecessor and successor) and $90.6 million in 2010, we had net losses attributable to owners of approximately $0.8 million and $396.5 million in 2009 and 2008, respectively. Even if we maintain profitability, we may not be able to sustain or increase profitability on a quarterly or annual basis going forward. If our revenue grows more slowly than we anticipate, or if our operating expenses exceed our expectations and cannot be adjusted accordingly, our business will be harmed. As a result, the price of our Class A common stock may decline, and you may lose a portion of your investment. See “Prospectus Summary—Summary Historical and Pro Forma Consolidated Financial and Other Information” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” for a more complete description of our historical losses.

Changes to foreign currency exchange rates could adversely affect our earnings and net asset value.

We have businesses with exposure to foreign currency exchange risk in Canada. Changes in the $U.S.-$CAD exchange rate will affect the value of our reported earnings and the value of our assets and liabilities denominated in foreign currencies. For example, an increase in the value of the U.S. dollar compared to the Canadian dollar would reduce our Canadian dollar-denominated revenue when reported in U.S. dollars, our functional reporting currency. Our business, financial condition and operating results may be adversely affected by such exchange rate fluctuations.

An inability to obtain additional performance, payment and completion surety bonds and letters of credit could limit our future growth.

We are often required to provide performance, payment and completion surety bonds or letters of credit to secure the completion of our construction contracts, development agreements and other arrangements. We have obtained facilities to provide the required volume of performance, payment and completion surety bonds and letters of credit for our expected growth in the medium term; however, unexpected growth may require additional facilities. We may also be required to renew or amend our existing facilities. Our ability to obtain additional performance, payment and completion surety bonds and letters of credit primarily depends on our credit rating, capitalization, working capital, past performance, management expertise and certain external factors, including

 

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the capacity of the markets for such bonds. Performance, payment and completion surety bond and letter of credit providers consider these factors in addition to our performance and claims record and provider-specific underwriting standards, which may change from time to time.

If our performance record or our providers’ requirements or policies change, if we cannot obtain the necessary consent from our lenders, or if the market’s capacity to provide performance, payment and completion bonds or letters of credit is not sufficient for any unexpected growth and we are unable to renew or amend our existing facilities on favorable terms or at all, we could be unable to obtain additional performance, payment and completion surety bonds or letters of credit from other sources when required, which could have a material adverse effect on our business, financial condition and results of operations and result in a decline in the value of our Class A common stock.

Higher cancellation rates of existing agreements of sale may have an adverse effect on our business.

Our backlog reflects sales contracts with our homebuyers for homes that have not yet been delivered. We have received a deposit from a homebuyer for each home reflected in our backlog, and generally we have the right, subject to certain exceptions, to retain the deposit if the homebuyer fails to comply with his or her obligations under the sales contract, including as a result of state and local law, the homebuyer’s inability to sell his or her current home or the homebuyer’s inability to make additional deposits required prior to the closing date. In addition, in our Canadian markets we have the right to retain the deposits and pursue the homebuyer for damages or specific performance in the event of a homebuyer’s breach of the purchase and sale agreement. However, in the United States, if prices for new homes decline, if competitors increase their use of sales incentives, if interest rates increase, if the availability of mortgage financing diminishes or if there is a downturn in local or regional economies or in the national economy, U.S. homebuyers may terminate their existing home purchase contracts with us in order to negotiate for a lower price or because they cannot, or will not, complete the purchase.

Compared to the prevailing cancellation rates in the United States, our experience has been that cancellations in Canada are less common due to differences in the Canadian economy and the laws of Ontario, which make it more difficult for purchasers to cancel their contracts. Although our cancellation rates for our homebuyers in the United States are now closer to long-term historical averages, cancellation rates may rise in the future. If uncertain economic conditions in the United States and Canada continue, if mortgage financing becomes less available or if current homeowners find it difficult to sell their current homes, more homebuyers may cancel their sales contracts with us. As a result, our financial condition may deteriorate and you may lose a portion of your investment.

In cases of cancellation, we remarket the home and usually retain any deposits we are permitted to retain. Nevertheless, the deposits may not cover the additional costs involved in remarketing the home and carrying higher inventory. Significant numbers of cancellations could adversely affect our business, financial condition and results of operations.

The homebuilding industry is highly competitive and, if our competitors are more successful or offer better value to our customers, our business could decline.

We operate in a very competitive environment which is characterized by competition from a number of other homebuilders in each market in which we operate. We compete with large national and regional homebuilding companies and with smaller local homebuilders for land, financing, raw materials and skilled management and labor resources. We also compete with the resale, or “previously owned,” home market which has increased significantly due to the large number of homes that have been foreclosed on or could be foreclosed on due to the recent economic downturn. Increased competition could cause us to increase our selling incentives and reduce our prices. An oversupply of homes available for sale and the heavy discounting of home prices by some of our competitors have adversely affected demand for our homes and the results of our operations in the

 

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past and could do so again in the future. If we are unable to compete effectively in our markets, our business could decline disproportionately to our competitors, and our results of operations and financial condition could be adversely affected.

If homebuyers are not able to obtain suitable financing, our results of operations may decline.

A substantial majority of our homebuyers finance their home purchases through lenders that provide mortgage financing. The availability of mortgage credit remains constrained in the United States, due in part to lower mortgage valuations on properties, various regulatory changes and lower risk appetite by lenders, with many lenders requiring increased levels of financial qualification, lending lower multiples of income and requiring greater deposits. Investors and first-time homebuyers are generally more affected by the availability of financing than other potential homebuyers. These buyers are a key source of our demand. A limited availability of home mortgage financing may adversely affect the volume of our home sales and the sales prices we achieve in the United States.

During the last four fiscal years, the mortgage lending industry in the United States has experienced significant instability, beginning with increased defaults on subprime loans and other nonconforming loans and compounded by expectations of increasing interest payments requirements and further defaults. This in turn resulted in a decline in the market value of many mortgage loans and related securities. Lenders, regulators and others questioned the adequacy of lending standards and other credit requirements for several loan products and programs offered in recent years. Credit requirements have tightened, and investor demand for mortgage loans and mortgage-backed securities has declined. The deterioration in credit quality during the downturn had caused almost all lenders to stop offering subprime mortgages and most other loan products that were not eligible for sale to Fannie Mae or Freddie Mac or loans that did not meet FHA and Veterans Administration requirements. Fewer loan products, tighter loan qualifications and a reduced willingness of lenders to make loans may continue to make it more difficult for certain buyers to finance the purchase of our homes. These factors may reduce the pool of qualified homebuyers and make it more difficult to sell to first-time and move-up buyers who have historically made up a substantial part of our customers. Reductions in demand adversely affected our business and financial results during the downturn, and the duration and severity of some of their effects remain uncertain. The liquidity provided by Fannie Mae and Freddie Mac to the mortgage industry has been very important to the housing market. These entities have required substantial injections of capital from the federal government and may require additional government support in the future. Several federal government officials have proposed changing the nature of the relationship between Fannie Mae and Freddie Mac and the federal government and even nationalizing or eliminating these entities entirely. If Fannie Mae and Freddie Mac were dissolved or if the federal government determined to stop providing liquidity support to the mortgage market, there would be a reduction in the availability of the financing provided by these institutions. Any such reduction would likely have an adverse effect on interest rates, mortgage availability and our sales of new homes. The FHA insures mortgage loans that generally have lower loan payment requirements and qualification standards compared to conventional guidelines, and as a result, continue to be a particularly important source for financing the sale of our homes. In recent years, lenders have taken a more conservative view of FHA guidelines causing significant tightening of borrower eligibility for approval. Availability of condominium financing and minimum credit score benchmarks has reduced opportunity for those purchasers. In the near future, further restrictions are expected on FHA-insured loans, including limitations on seller-paid closing costs and concessions. This or any other restriction may negatively affect the availability or affordability of FHA financing, which could adversely affect our ability to sell homes in the United States. In addition, changes in federal and provincial regulatory and fiscal policies aimed at aiding the homebuying market (including a repeal of the home mortgage interest tax deduction) may also negatively affect potential homebuyers’ ability to purchase homes.

In each of our markets, decreases in the availability of credit and increases in the cost of credit adversely affect the ability of homebuyers to obtain or service mortgage debt. Even if potential homebuyers do not themselves need mortgage financing, where potential homebuyers must sell their existing homes in order to buy a new home, increases in mortgage costs, lack of availability of mortgages and/or regulatory changes could

 

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prevent the buyers of potential homebuyers’ existing homes from obtaining a mortgage, which would result in our potential customers’ inability to buy a new home. Similar risks apply to those buyers who are awaiting delivery of their homes and are currently in backlog. The success of homebuilders depends on the ability of potential homebuyers to obtain mortgages for the purchase of homes. If our customers (or potential buyers of our customers’ existing homes) cannot obtain suitable financing, our sales and results of operations could be adversely affected, the price of our Class A common stock may decline and you could lose a portion of your investment.

Any increase in unemployment or underemployment may lead to an increase in the number of loan delinquencies and property repossessions and have an adverse impact on us.

In the United States, the unemployment rate was 7.8% as of December 2012, according to the U.S. Bureau of Labor Statistics. People who are not employed or are underemployed or are concerned about the loss of their jobs are less likely to purchase new homes, may be forced to try to sell the homes they own and may face difficulties in making required mortgage payments. Therefore, any increase in unemployment or underemployment may lead to an increase in the number of loan delinquencies and property repossessions and have an adverse impact on us both by reducing demand for the homes we build and by increasing the supply of homes for sale.

Increases in taxes, government fees or interest rates could prevent potential customers from buying our homes and adversely affect our business or financial results.

Significant expenses of owning a home, including mortgage interest and real estate taxes, generally are deductible expenses for an individual’s U.S. federal, and in some cases, state income taxes, subject to various limitations under current tax law and policy. Mortgage interest and real estate taxes are not deductible for an individual’s federal or provincial income taxes in Canada. If the U.S. federal government or a state government changes its income tax laws, as has been discussed from time to time, to eliminate, limit or substantially modify these income tax deductions, the after-tax cost of owning a new home would increase for many of our potential customers. The resulting loss or reduction of homeowner tax deductions, if such tax law changes were enacted without offsetting provisions, or any other increase in any taxes affecting homeowners, would adversely impact demand for and sales prices of new homes.

Increases in property tax rates by local governmental authorities, as experienced in response to reduced federal, state and provincial funding, can adversely affect the ability of potential customers to obtain financing or their desire to purchase new homes. Fees imposed on developers to fund schools, open spaces, road improvements, and/or provide low and moderate income housing, could increase our costs and have an adverse effect on our operations. In addition, increases in sales taxes (such as the Ontario harmonized sales tax initiative implemented in July 2010 by the Government of Ontario combining the 5% Canadian federal goods and services tax and the 8% Ontario provincial sales tax with certain abatement, rebate and transition rules for new housing) could adversely affect our potential customers who may consider those costs in determining whether to make a new home purchase and decide, as a result, not to purchase one of our homes.

In addition, increases in interest rates as a result of changes to U.S. and Canadian monetary policies could significantly increase the costs of owning a home, which in turn would adversely impact demand for and sales prices of homes and the ability of potential customers to obtain financing and adversely affect our business, financial condition and operating results. As a result, the price of our Class A common stock and the value of your investment may decline.

Inflation could adversely affect our business and financial results, particularly in a period of oversupply of homes.

Inflation can adversely affect us by increasing costs of land, materials and labor. In the event of an increase in inflation, we may seek to increase the sales prices of homes in order to maintain satisfactory margins.

 

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However, an oversupply of homes relative to demand and home prices being set several months before homes are delivered may make any such increase difficult or impossible. In addition, inflation is often accompanied by higher interest rates, which historically had a negative impact on housing demand. In such an environment, we may not be able to raise home prices sufficiently to keep up with the rate of inflation and our margins could decrease. Moreover, the cost of capital increases as a result of inflation and the purchasing power of our cash resources declines. Current or future efforts by the government to stimulate the economy may increase the risk of significant inflation and its adverse impact on our business or financial results.

Our quarterly operating results may fluctuate because of the seasonal nature of our business and other factors.

Our quarterly operating results generally fluctuate by season and also because of the uneven delivery schedule of certain of our products and communities, such as high-rise condominiums in the GTA.

Historically, a larger percentage of our agreements of sale in the United States have been entered into in the winter and spring. Weather-related problems, typically in the fall, late winter and early spring, may delay starts or closings and increase costs and thus reduce profitability. Seasonal natural disasters such as hurricanes, tornadoes, floods and fires could cause delays in the completion of, or increase the cost of, developing one or more of our communities, causing an adverse effect on our sales and revenues.

In many cases, we may not be able to recapture increased costs by raising prices because we set our prices up to 12 months in advance of delivery upon signing the home sales contract. In the case of high-rise condominium sales, purchase agreements are signed up to three years in advance of delivery. In addition, deliveries may be staggered over different periods of the year and may be concentrated in particular quarters. Our quarterly operating results may fluctuate because of these factors.

Negative publicity may affect our business performance and could affect our stock price.

Unfavorable media related to our industry, company, brands, marketing, personnel, operations, business performance, or prospects may affect our stock price and the performance of our business, regardless of its accuracy or inaccuracy. Our success in maintaining, extending and expanding our brand image depends on our ability to adapt to a rapidly changing media environment. Adverse publicity or negative commentary on social media outlets, such as blogs, websites or newsletters, could hurt operating results, as consumers might avoid brands that receive bad press or negative reviews. Negative publicity may result in a decrease in operating results that could lead to a decline in the price of our Class A common stock and cause you to lose all or a portion of your investment.

Homebuilding is subject to home warranty and construction defect claims in the ordinary course of business that can be significant.

As a homebuilder, we are subject to home warranty and construction defect claims arising in the ordinary course of business. There can be no assurance that any developments we undertake will be free from defects once completed. Construction defects may occur on projects and developments and may arise during a significant period of time after completion. Defects arising on a development attributable to us may lead to significant contractual or other liabilities.

As a consequence, we maintain products and completed operations excess liability insurance, obtain indemnities and certificates of insurance from subcontractors generally covering claims related to damages resulting from faulty workmanship and materials, and create warranty and other reserves for the homes we sell based on historical experience in our markets and our judgment of the risks associated with the types of homes built. Although we actively monitor our insurance reserves and coverage, because of the uncertainties inherent to these matters, we cannot provide assurance that our insurance coverage, our subcontractor arrangements and our reserves will be adequate to address all of our warranty and construction defect claims in the future. In addition,

 

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contractual indemnities can be difficult to enforce. We may also be responsible for applicable self-insured retentions and some types of claims may not be covered by insurance or may exceed applicable coverage limits. Additionally, the coverage offered by and the availability of products and completed operations excess liability insurance for construction defects is currently limited and costly. This coverage may be further restricted or become more costly in the future.

In 2005 and 2006, we discontinued requiring insurance policies from most of our contractors in California and instead adopted an Owner Controlled Insurance Plan (“OCIP”) for general liability exposures of most subcontractors, as a result of the inability of subcontractors to procure acceptable insurance coverage to meet our requirements. Under the OCIP, subcontractors are effectively insured by us. We have assigned risk retentions and bid deductions to our subcontractors based on their risk category. These deductions are used to fund future liabilities.

As a recent example of construction defect claims, in 2009 we confirmed the presence of defective Chinese-made drywall in several Florida communities, primarily in West Florida, which were generally delivered between May 2006 and November 2007. If we identify more homes with defective Chinese-made drywall or other defects than we currently have estimated, we may be required to increase our warranty and claims reserves in the future, which could adversely affect our business, financial condition and operating results. See “Business—Insurance and Legal Proceedings.”

Unexpected expenditures attributable to defects or previously unknown sub-surface conditions arising on a development project may have a material adverse effect on our business, financial condition and operating results. In addition, severe or widespread incidents of defects giving rise to unexpected levels of expenditure, to the extent not covered by insurance or redress against sub-contractors, may adversely affect our business, financial condition and operating results.

Our reliance on contractors can expose us to various liability risks.

We rely on contractors in order to perform the construction of our homes, and in many cases, to select and obtain raw materials. We are exposed to various risks as a result of our reliance on these contractors and their respective subcontractors and suppliers, including, as described above, the possibility of defects in our homes due to improper practices or materials used by contractors, which may require us to comply with our warranty obligations and/or bring a claim under an insurance policy. Several other homebuilders have received inquiries from regulatory agencies concerning whether homebuilders using contractors are deemed to be employers of the employees of such contractors under certain circumstances. Although contractors are independent of the homebuilders that contract with them under normal management practices and the terms of trade contracts and subcontracts within the homebuilding industry, if regulatory agencies reclassify the employees of contractors as employees of homebuilders, homebuilders using contractors could be responsible for wage, hour and other employment-related liabilities of their contractors. In the event that a regulatory agency reclassified the employees of our contractors as our own employees, we could be responsible for wage, hour and other employment-related liabilities of our contractors.

Failure to manage land acquisitions and development and construction processes could result in significant cost overruns or errors in valuing sites.

We own and purchase a large number of sites each year and are therefore dependent on our ability to process a very large number of transactions (which include, among other things, evaluating the site purchase, designing the layout of the development, sourcing materials and sub-contractors and managing contractual commitments) efficiently and accurately. Errors by employees, failure to comply with regulatory requirements and conduct of business rules, failings or inadequacies in internal control processes, equipment failures, natural disasters or the failure of external systems, including those of our suppliers or counterparties, could result in operational losses that could adversely affect our business, financial condition and operating results and our relationships with our customers.

 

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If land and lots are not available at competitive prices, our sales and results of operations could be adversely affected.

Our long-term profitability depends in large part on the price at which we are able to obtain suitable land and lots for the development of our communities. Increases in the price (or decreases in the availability) of suitable land and lots could adversely affect our profitability. Moreover, changes in the general availability of desirable land, competition for available land and lots, limited availability of financing to acquire land and lots, zoning regulations that limit housing density, environmental requirements and other market conditions may hurt our ability to obtain land and lots for new communities at prices that will allow us to be profitable. If the supply of land and lots that are appropriate for development of our communities becomes more limited because of these factors, or for any other reason, the cost of land and lots could increase and the number of homes that we are able to build and sell could be reduced, which could adversely affect our results of operations and financial condition and lead to a decline in the price of our Class A common stock and the value of your investment.

If the market value of our land inventory decreases, our results of operations could be adversely affected by impairments and write-downs.

The market value of our land and housing inventories depends on market conditions. We acquire land for expansion into new markets and for replacement of land inventory and expansion within our current markets. There is an inherent risk that the value of the land owned by us may decline after purchase. The valuation of property is inherently subjective and based on the individual characteristics of each property. We may have acquired options on or bought and developed land at a cost we will not be able to recover fully or on which we cannot build and sell homes profitably. In addition, our deposits for lots controlled under option or similar contracts may be put at risk. Factors such as changes in regulatory requirements and applicable laws (including in relation to building regulations, taxation and planning), political conditions, the condition of financial markets, both local and national economic conditions, the financial condition of customers, potentially adverse tax consequences, and interest and inflation rate fluctuations subject valuations to uncertainty. Moreover, all valuations are made on the basis of assumptions that may not prove to reflect economic or demographic reality. If housing demand decreases below what we anticipated when we acquired our inventory, our profitability may be adversely affected and we may not be able to recover our costs when we sell and build houses.

Due to economic conditions in the United States in recent years, including increased amounts of home and land inventory that entered certain U.S. markets from foreclosure sales or short sales, the market value of our land and home inventory was negatively impacted prior to the Acquisition. Write-downs and impairments have had an adverse effect (and any further write-downs may also have an adverse effect) on our business, financial condition and operating results. In 2011, and for the nine months ended September 30, 2012, we recorded no inventory impairments (compared to $4.1 million in 2010 and $78.2 million in 2009), and the carrying value of all of our land was adjusted to its fair market value as of the date of the Acquisition. We regularly review the value of our land holdings and continue to review our holdings on a periodic basis. Further material write-downs and impairments in the value of our inventory may be required, and we may in the future sell land or homes at a loss, which could adversely affect our results of operations and financial condition.

Risks associated with our land inventory could adversely affect our business or financial results.

Risks inherent in controlling or purchasing, holding and developing land for new home construction are substantial. In certain circumstances, a grant of entitlements or development agreement with respect to a particular parcel of land may include restrictions on the transfer of such entitlements to a buyer of such land, which may increase our exposure to decreases in the price of such entitled land by restricting our ability to sell it for its full entitled value. In addition, inventory carrying costs can be significant and can result in reduced margins or losses in a poorly performing community or market. In recent periods of market weakness, we have sold homes and land for lower margins or at a loss and we have recorded significant inventory impairment charges, and such conditions may recur. The recording of a significant inventory impairment could negatively affect our reported earnings per share and negatively impact the market perception of our business, leading to a decline in the price of our Class A common stock.

 

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If we experience shortages in labor supply, increased labor costs or labor disruptions, there could be delays or increased costs in developing our communities or building homes, which could adversely affect our operating results.

We require a qualified labor force to develop our communities. Access to qualified labor may be affected by circumstances beyond our control, including:

 

   

work stoppages resulting from labor disputes;

 

   

shortages of qualified trades people, such as carpenters, roofers, electricians and plumbers, especially in our key markets in the southwest United States;

 

   

changes in laws relating to union organizing activity;

 

   

changes in immigration laws and trends in labor force migration; and

 

   

increases in sub-contractor and professional services costs.

Any of these circumstances could give rise to delays in the start or completion of, or could increase the cost of, developing one or more of our communities and building homes. We may not be able to recover these increased costs by raising our home prices because the price for each home is typically set months prior to its delivery pursuant to sales contracts with our homebuyers. In such circumstances, our operating results could be adversely affected. Additionally, market and competitive forces may also limit our ability to raise the sales prices of our homes.

Failure to recruit, retain and develop highly skilled, competent people at all levels, including finding suitable subcontractors, may have a material adverse effect on our standards of service.

Key employees, including management team members, are fundamental to our ability to obtain, generate and manage opportunities. Key employees working in the homebuilding and construction industries are highly sought after. Failure to attract and retain such personnel or to ensure that their experience and knowledge is not lost when they leave the business through retirement, redundancy or otherwise may adversely affect the standards of our service and may have an adverse impact on our business, financial conditions and operating results. In addition, we do not maintain key person insurance in respect of any member of our senior management team. The loss of any of our management members or key personnel could adversely impact our business, financial condition and operating results. See “Management.”

The vast majority of our work carried out on site is performed by subcontractors. The difficult operating environment over the last six years in the United States has resulted in the failure of some subcontractors’ businesses and may result in further failures. In addition, reduced levels of homebuilding in the United States have led to some skilled tradesmen leaving the industry to take jobs in other sectors. If subcontractors are not able to recruit sufficient numbers of skilled employees, our development and construction activities may suffer from delays and quality issues, which would also lead to reduced levels of customer satisfaction.

During the recent downturn, we had to reduce our number of employees, which may have resulted in a loss of knowledge that could be detrimental to our business and our ability to manage future business opportunities. Our margins, and accordingly our business, financial conditions and operating results, may be adversely affected.

Government regulations and legal challenges may delay the start or completion of our communities, increase our expenses or limit our homebuilding or other activities, which could have a negative impact on our results of operations.

The approval of numerous governmental authorities must be obtained in connection with our development activities, and these governmental authorities often have broad discretion in exercising their approval authority. We incur substantial costs related to compliance with legal and regulatory requirements. Any increase in legal and regulatory requirements may cause us to incur substantial additional costs, or in some cases cause us to

 

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determine that the property is not feasible for development. Various local, provincial, state and federal statutes, ordinances, rules and regulations concerning building, health and safety, environment, zoning, sales and similar matters apply to and/or affect the housing industry.

Municipalities may restrict or place moratoriums on the availability of utilities, such as water and sewer taps. If municipalities in which we operate take such actions, it could have an adverse effect on our business by causing delays, increasing our costs or limiting our ability to operate in those municipalities.

Certain states, cities and counties in which we operate have in the past approved, or approved for inclusion on their ballot, various “slow growth” or “no growth” initiatives and other ballot measures that could negatively impact the availability of land and building opportunities within those localities. A similar initiative in Ontario, Canada known as “smart growth” could also negatively impact our Canadian operations. The Ontario smart growth initiatives were implemented in 2005 pursuant to the “Places to Grow Act” and the “Greenbelt Act”. The legislation is designed to minimize urban sprawl, promote population density increases in cities and towns and protect the agricultural land and natural systems that surround the GTA, extending from Niagara Falls to Oshawa, Ontario, bordering Lake Ontario. The effect of the legislation is to restrict development on approximately 1.8 million acres of land. These measures may reduce our ability to open new home communities and to build and sell homes in the affected markets, including with respect to land we may already own, and create additional costs and administration requirements, which in turn may harm our future sales, margins and earnings. A further expansion of these measures or the adoption of new slow-growth, no-growth, “smart-growth” or other similar programs could exacerbate such risks. The above risks could have a material, adverse effect on our business and results of operations in Canada, and as a result, the price of the Class A common stock could be negatively affected.

Governmental regulation affects not only construction activities but also sales activities, mortgage lending activities and other dealings with consumers. In addition, it is possible that some form of expanded energy efficiency legislation may be passed by the U.S. Congress or federal agencies and certain state and provincial legislatures, which may, despite being phased in over time, significantly increase our costs of building homes and the sale price to our buyers, and adversely affect our sales volumes. We may be required to apply for additional approvals or modify our existing approvals because of changes in local circumstances or applicable law. Further, we may experience delays and increased expenses as a result of legal challenges to our proposed communities, whether brought by governmental authorities or private parties.

Our financial services business may be adversely affected by changes in governmental regulation and other risks associated with acting as a mortgage lender.

Prior to January 1, 2011, TMHF operated as a mortgage broker, limiting TMHF’s exposure to employee or third party fraud in the origination and processing of loan applications submitted to wholesale lending groups, and reducing repurchase risk from previously closed loans. Since January 1, 2011, in response to new legislation and in order to operate competitively in the market, TMHF transitioned to full lender status. This change results in TMHF having the ability to originate, underwrite and fund mortgage transactions through correspondent lending relationships. While we intend for the loans that we originate to typically be held for no more than 20 days before being sold on the secondary market, if we are unable to sell loans into the secondary mortgage market or directly to large secondary market loan purchasers such as Fannie Mae and Freddie Mac, TMHF would bear the risk of being a long-term investor in these originated loans. Mortgage lending is also subject to credit risks associated with the borrowers to whom the loans are extended and an increase in default rates could have a material and adverse effect on our business. Being required to hold loans on a long-term basis would also negatively affect our liquidity and could require us to use additional capital resources to finance the loans that we are extending. In addition, although mortgage lenders under the mortgage warehouse facilities we currently use to finance our lending operations normally purchase our mortgages within 20 days of origination, if there is a default under these warehouse facilities we would be required to fund the mortgages then in the pipeline. In such case, amounts available under our Revolving Credit Facility and cash from operations may not be sufficient to allow us to provide financing required by our business during these times.

 

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An obligation to commit our own funds to long-term investments in mortgage loans could, among other things, delay the time when we recognize revenues from home sales on our statements of operations. If, due to higher costs, reduced liquidity, heightened risk retention obligations and/or new operating restrictions or regulatory reforms related to or arising from compliance with new U.S. federal laws and regulations, residential consumer loan putback demands or internal or external reviews of its residential consumer mortgage loan foreclosure processes, or other factors or business decisions, TMHF could be unable to make loan products available to our homebuyers, and home sales and mortgage services results of operations may be adversely affected.

In addition, changes in governmental regulation with respect to mortgage lenders could adversely affect the financial results of this portion of our business. Our mortgage lending operations are subject to numerous federal, state and local laws and regulations. There have been numerous proposed changes in these regulations as a result of the housing downturn. For example, in July 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act was enacted. Among other things, this legislation provides for a number of new requirements relating to residential mortgage lending practices, many of which are to be developed further by implementing rules. These include, among others, minimum standards for mortgages and lender practices in making mortgages, limitations on certain fees, retention of credit risk, prohibition of certain tying arrangements and remedies for borrowers in foreclosure proceedings. The effect of such provisions on TMHF and our mortgage lending business will depend on the rules that are ultimately enacted. In addition, we cannot predict whether similar changes to, or new enactments of, statutes and regulations pertinent to our mortgage lending business will occur in the future. Any such changes or new enactments could adversely affect our financial condition and results of operations and the market perception of our business, which could lead to a decline in the price of our common stock.

The prices of our mortgages could be adversely affected if we lose any of our important commercial relationships.

TMHF has longstanding relationships with members of the lender community from which its borrowers benefit. TMHF plans to continue with these relationships and use the correspondent lender platform as a part of its operational plan. If our relationship with any one or more of those banks deteriorates or if one or more of those banks decide to renegotiate or terminate existing agreements, we may be required to increase the price of our products, or modify the range of products we offer, which could cause us to lose customers who may choose other providers based solely on the price or fees, which could adversely affect our financial condition and results of operations.

We may not be able to use certain deferred tax assets, which may result in our having to pay substantial taxes.

We have significant deferred tax assets, including net operating losses in the United States that could be used to offset earnings and reduce the amount of taxes we are required to pay. Our ability to use net operating losses to offset earnings is dependent on a number of factors, including applicable rules relating to the permitted carry back period for offsetting certain net operating losses against prior period earnings. We are currently under examination by various taxing jurisdictions with respect to our carry back of net operating losses in our historical tax returns and have appealed Internal Revenue Service determinations that we may not carry back certain net operating losses. Income tax payable on our consolidated balance sheet at September 30, 2012 includes reserves of $8.7 million and $74.8 million related to this issue for tax years 2009 and 2008, respectively. An IRS appeal is ongoing for the 2009 and 2008 TMC and subsidiaries tax return. We are also currently under examination on our 2006 and 2007 California legacy Taylor Woodrow returns. The outcomes of the remaining examinations are not yet determinable. The statute of limitations for these examinations remains open with various expiration dates, the latest of which is December 2013. Our former parent, Taylor Wimpey plc, has agreed to indemnify TMM for amounts payable in respect of these additional taxes. However, if Taylor Wimpey plc defaults on its indemnification obligation and we are unable to collect under the posted letter of credit, if we fail to obtain a

 

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favorable determination on appeal from the IRS with respect to our ability to carry back certain net operating losses, and if the result of the IRS or California examinations is also that we are not entitled to carry back certain net operating losses, we may be required to pay additional taxes, which may adversely affect our liquidity.

Raw materials and building supply shortages and price fluctuations could delay or increase the cost of home construction and adversely affect our operating results.

The homebuilding industry has, from time to time, experienced raw material shortages and been adversely affected by volatility in global commodity prices. In particular, shortages and fluctuations in the price of concrete, drywall, lumber or other important raw materials could result in delays in the start or completion of, or increase the cost of, developing one or more of our residential communities.

In addition, the cost of petroleum products, which are used both to deliver our materials and to transport workers to our job sites, fluctuates and may be subject to increased volatility as a result of geopolitical events or accidents such as the Deepwater Horizon accident in the Gulf of Mexico. Changes in such costs could also result in higher prices for any product utilizing petrochemicals. These cost increases may have an adverse effect on our operating margin and results of operations and may result in a decline in the price of our Class A common stock. Furthermore, any such cost increase may adversely affect the regional economies in which we operate and reduce demand for our homes.

The geographic concentration of our operations subjects us to an increased risk of loss of revenue or decreases in the market value of our land and homes in these regions from factors which may affect any of these regions.

Our operations are concentrated in Ontario, Canada and California, Colorado, Arizona, Texas and Florida. Some or all of these regions could be affected by:

 

   

severe weather;

 

   

natural disasters;

 

   

shortages in the availability or increased costs in obtaining land, equipment, labor or building supplies;

 

   

changes to the population growth rates and therefore the demand for homes in these regions; and

 

   

changes in the regulatory and fiscal environment.

Due to the concentrated nature of our operations, negative factors affecting one or a number of these geographic regions at the same time could result in a relatively greater impact on our results of operations than they might have on other companies that have a more diversified portfolio of operations.

Changes to the population growth rates in certain of the markets in which we operate could affect the demand for homes in these regions.

Slower rates of population growth or population declines in our key markets, especially as compared to the high population growth rates in prior years, could affect the demand for housing, causing home prices in these markets to fall, and adversely affect our business, financial condition and operating results.

We participate in certain unconsolidated joint ventures where we may be adversely impacted by the failure of the unconsolidated joint venture or the other partners in the unconsolidated joint venture to fulfill their obligations.

We have investments in and commitments to certain unconsolidated joint ventures with unrelated strategic partners to acquire and develop land and, in some cases, build and deliver homes. To finance these activities, our unconsolidated joint ventures often obtain loans from third-party lenders that are secured by the unconsolidated

 

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joint venture’s assets. In certain instances, we and the other partners in an unconsolidated joint venture provide guarantees and indemnities to lenders with respect to the unconsolidated joint venture’s debt, which may be triggered under certain conditions when the unconsolidated joint venture fails to fulfill its obligations under its loan agreements.

In Canada, we have consistently used joint ventures as a means of acquiring land. Where we do not have a controlling interest in these unconsolidated joint ventures, we depend heavily on the other partners in each unconsolidated joint venture to both cooperate and make mutually acceptable decisions regarding the conduct of the business and affairs of the unconsolidated joint venture and ensure that they, and the unconsolidated joint venture, fulfill their respective obligations to us and to third parties. If the other partners in our unconsolidated joint ventures do not provide such cooperation or fulfill these obligations due to their financial condition, strategic business interests (which may be contrary to ours), or otherwise, we may be required to spend additional resources (including payments under the guarantees we have provided to the unconsolidated joint ventures’ lenders) and suffer losses, each of which could be significant. Moreover, our ability to recoup such expenditures and losses by exercising remedies against such partners may be limited due to potential legal defenses they may have, their respective financial condition and other circumstances. In addition, certain joint ventures relating to our Canadian operations have change of control consent requirements that may have the effect of delaying, deferring or preventing a change of control of such joint ventures. Furthermore, the termination of a joint venture may also give rise to lawsuits and legal costs.

In certain instances, Monarch Corporation and the other partners in a joint venture provide guarantees and indemnities to lenders with respect to the unconsolidated joint venture’s debt, which may be triggered under certain conditions when the joint venture fails to fulfill its obligations under its loan agreements. As of September 30, 2012, Monarch Corporation’s total recourse exposure under its guarantees of joint venture debt was approximately $168.9 million. To the extent any or all of our joint ventures default on obligations secured by the assets of such joint venture or guaranteed by Monarch Corporation, the assets of our joint ventures could be forfeited to our joint ventures’ third party lenders, and Monarch Corporation could be liable to such third party lenders to the full extent of its guarantees and, in the case of secured guarantees, to the extent of the assets of Monarch Corporation that secure the applicable guarantee. Any such default by our joint ventures could cause significant losses, with a resulting adverse effect on our financial condition and results of operations. Recent market conditions have required us to provide a greater number of such guarantees and we expect this trend to continue.

We may incur a variety of costs to engage in future growth or expansion of our operations or acquisitions or disposals of businesses, and the anticipated benefits may never be realized.

As a part of our business strategy, we may make acquisitions, or significant investments in, and/or disposals of businesses. Any future acquisitions, investments and/or disposals would be accompanied by risks such as:

 

   

difficulties in assimilating the operations and personnel of acquired companies or businesses;

 

   

diversion of our management’s attention from ongoing business concerns;

 

   

our potential inability to maximize our financial and strategic position through the successful incorporation or disposition of operations;

 

   

maintenance of uniform standards, controls, procedures and policies; and

 

   

impairment of existing relationships with employees, contractors, suppliers and customers as a result of the integration of new management personnel and cost-saving initiatives.

We cannot guarantee that we will be able to successfully integrate any company or business that we might acquire in the future, and our failure to do so could harm our current business.

 

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In addition, we may not realize the anticipated benefits of these transactions and there may be other unanticipated or unidentified effects. While we would seek protection, for example, through warranties and indemnities in the case of acquisitions, significant liabilities may not be identified in due diligence or come to light after the expiry of warranty or indemnity periods. Additionally, while we would seek to limit our ongoing exposure, for example, through liability caps and period limits on warranties and indemnities in the case of disposals, some warranties and indemnities may give rise to unexpected and significant liabilities. Any claims arising in the future may adversely affect our business, financial condition and operating results and could lead to a decline in the price of our Class A common stock.

We have defined benefit and defined contribution pension schemes to which we may be required to increase our contributions to fund deficits.

We provide retirement benefits for former and certain of our current employees through a number of defined benefit and defined contribution pension schemes. Certain of these plans are no longer available to new employees, though in Canada we retain a defined contribution plan. As of September 30, 2012, we had recorded a deficit of $9.1 million in our defined benefit pension plans. This deficit may increase, and we may be required to increase contributions to our plans in the future, which may materially and adversely affect our liquidity and financial condition.

A major health and safety incident relating to our business could be costly in terms of potential liabilities and reputational damage.

Building sites are inherently dangerous, and operating in the homebuilding industry poses certain inherent health and safety risks. Due to health and safety regulatory requirements and the number of projects we work on, health and safety performance is critical to the success of all areas of our business. Any failure in health and safety performance may result in penalties for non-compliance with relevant regulatory requirements, and a failure that results in a major or significant health and safety incident is likely to be costly in terms of potential liabilities incurred as a result. Such a failure could generate significant negative publicity and have a corresponding impact on our reputation, our relationships with relevant regulatory agencies or governmental authorities, and our ability to win new business, which in turn could have a material adverse effect on our business, financial condition and operating results.

Ownership, leasing or occupation of land and the use of hazardous materials carries potential environmental risks and liabilities.

We are subject to a variety of local, state and federal statutes, rules and regulations concerning land use and the protection of health and the environment, including those governing discharge of pollutants to water and air, including asbestos, the handling of hazardous materials and the cleanup of contaminated sites. We may be liable for the costs of removal, investigation or remediation of hazardous or toxic substances located on, under or in a property currently or formerly owned, leased or occupied by us, whether or not we caused or knew of the pollution. The costs of any required removal, investigation or remediation of such substances or the costs of defending against environmental claims may be substantial. The presence of such substances, or the failure to remediate such substances properly, may also adversely affect our ability to sell the land or to borrow using the land as security. Environmental impacts from historical activities have been identified at some of the projects we have developed in the past and additional projects may be located on land that may have been contaminated by previous use. Although we are not aware of any projects requiring material remediation activities by us as a result of historical contamination, no assurances can be given that material claims or liabilities relating to such developments will not arise in the future.

The particular impact and requirements of environmental laws that apply to any given community vary greatly according to the community site, the site’s environmental conditions and the present and former use of the site. We expect that increasingly stringent requirements may be imposed on homebuilders in the future.

 

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Environmental laws may result in delays, cause us to implement time consuming and expensive compliance programs and prohibit or severely restrict development in certain environmentally sensitive regions or areas, such as wetlands. We also may not identify all of these concerns during any pre-development review of project sites. Environmental regulations can also have an adverse impact on the availability and price of certain raw materials, such as lumber. Furthermore, we could incur substantial costs, including cleanup costs, fines, penalties and other sanctions and damages from third-party claims for property damage or personal injury, as a result of our failure to comply with, or liabilities under, applicable environmental laws and regulations. In addition, we are subject to third-party challenges, such as by environmental groups, under environmental laws and regulations to the permits and other approvals required for our projects and operations. These matters could adversely affect our business, financial condition and operating results.

We may be liable for claims for damages as a result of use of hazardous materials.

As a homebuilding business with a wide variety of historic homebuilding and construction activities, we could be liable for future claims for damages as a result of the past or present use of hazardous materials, including building materials which in the future become known or are suspected to be hazardous. Any such claims may adversely affect our business, financial condition and operating results. Insurance coverage for such claims may be limited or non-existent.

We may suffer uninsured losses or suffer material losses in excess of insurance limits.

We could suffer physical damage to property and liabilities resulting in losses that may not be fully compensated by insurance. In addition, certain types of risks, such as personal injury claims, may be, or may become in the future, either uninsurable or not economically insurable, or may not be currently or in the future covered by our insurance policies. Should an uninsured loss or a loss in excess of insured limits occur, we could sustain financial loss or lose capital invested in the affected property as well as anticipated future income from that property. In addition, we could be liable to repair damage or meet liabilities caused by uninsured risks. We may be liable for any debt or other financial obligations related to affected property. Material losses or liabilities in excess of insurance proceeds may occur in the future.

In the United States, the coverage offered and the availability of general liability insurance for construction defects is currently limited and is costly. As a result, an increasing number of our subcontractors in the United States may be unable to obtain insurance, particularly in California where we have instituted an OCIP, under which subcontractors are effectively insured by us. If we cannot effectively recover construction defect liabilities and costs of defense from our subcontractors or their insurers, or if we have self-insured, we may suffer losses. Coverage may be further restricted and become even more costly. Such circumstances could adversely affect our business, financial condition and operating results.

We may face substantial damages or be enjoined from pursuing important activities as a result of existing or future litigation, arbitration or other claims.

In our homebuilding activities, we are exposed to potentially significant litigation, including breach of contract, contractual disputes and disputes relating to defective title, property misdescription or construction defects, including use of defective materials (including Chinese-made drywall).

For example, we engage subcontractors to construct of our homes, and in many cases, to obtain the necessary building materials. Between 2008 and 2011, we confirmed the presence of defective Chinese-made drywall in a number of Florida homes, primarily delivered during our 2006 and 2007 fiscal years. As of September 30, 2012, we had accrued an amount that our management believes to be a reasonable reserve for losses that may be related to this matter, including repair costs. We continue to inspect additional homes in order to determine whether they also contain the defective Chinese-made drywall. The outcome of these on-going inspections may require us to increase our warranty and claims reserves in the future, which could adversely affect our business, financial condition and operating results. Currently, the amount of additional liability, if any, is not reasonably estimable.

 

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Although we have established warranty, claim and litigation reserves that we believe are adequate, due to the uncertainty inherent in litigation, legal proceedings may result in the award of substantial damages against us beyond our reserves. Furthermore, plaintiffs may in certain of these legal proceedings seek class action status with potential class sizes that vary from case to case. Class action lawsuits can be costly to defend, and if we were to lose any certified class action suit, it could result in substantial liability for us. In addition, we are subject to potential lawsuits, arbitration proceedings and other claims in connection with our business. See “Business—Insurance and Legal Proceedings.” The filing or threat of filing of a major class action lawsuit against us could lead to a decline in the price of our Class A common stock.

With respect to certain general liability exposures, including construction defect, Chinese-made drywall and related claims and product liability claims, interpretation of underlying current and future trends, assessment of claims and the related liability and reserve estimation process requires us to exercise significant judgment due to the complex nature of these exposures, with each exposure often exhibiting unique circumstances. Furthermore, once claims are asserted for construction defects, it is difficult to determine the extent to which the assertion of these claims will expand geographically. As a result, our insurance policies may not be available or adequate to cover any liability for damages, the cost of repairs, and/or the expense of litigation surrounding current claims, and future claims may arise out of events or circumstances not covered by insurance and not subject to effective indemnification agreements with our subcontractors. Should such a situation arise, it may have a material adverse effect on our business, financial condition and operating results.

Poor relations with the residents of our communities could negatively impact sales, which could cause our revenues or results of operations to decline.

Residents of communities we develop rely on us to resolve issues or disputes that may arise in connection with the operation or development of their communities. Efforts made by us to resolve these issues or disputes could be deemed unsatisfactory by the affected residents and subsequent actions by these residents could adversely affect sales or our reputation. In addition, we could be required to make material expenditures related to the settlement of such issues or disputes or to modify our community development plans, which could adversely affect our results of operations.

We are dependent on certain members of our management and key personnel.

Our business involves complex operations and therefore demands a management team and employee workforce that is knowledgeable and expert in many areas necessary for our operations. Investors in our Class A common stock must rely to a significant extent upon the ability, expertise, judgment and discretion of our management and key personnel. Our performance and success are dependent, in part, upon key members of our management and personnel, and their loss or departure could be detrimental to our future success. Further, the process of attracting and retaining suitable replacements for key personnel whose services we may lose would result in transition costs and would divert the attention of other members of our senior management from our existing operations. In addition, we do not maintain key person insurance in respect of any members of our senior management team. The loss of any of our management members or key personnel could adversely impact our business, financial condition and operating results. See “Management.”

Utility and resource shortages or rate fluctuations could have an adverse effect on our operations.

The markets in which we operate have historically been subject to utility and resource shortages, including significant changes to the availability of electricity and water. In our markets, we have also experienced material fluctuations in utility and resource costs. Shortages of natural resources in our markets, particularly of water, may make it more difficult for us to obtain regulatory approval of new developments. We may incur additional costs and may not be able to complete construction on a timely basis if such shortages and utility rate fluctuations arise. Furthermore, these shortages and rate fluctuations may adversely affect the regional economies in which we operate, which may reduce demand for our homes and negatively affect our business and results of operations.

 

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If we are unable to develop our communities successfully or within expected timeframes, our results of operations could be adversely affected.

Before a community generates any revenues, time and material expenditures are required to acquire land, obtain development approvals and construct significant portions of project infrastructure, amenities, model homes and sales facilities. A decline in our ability to develop and market our communities successfully and to generate positive cash flow from these operations in a timely manner could have a material adverse effect on our business and results of operations and on our ability to service our debt and to meet our working capital requirements.

Constriction of the capital markets could limit our ability to access capital and increase our costs of capital.

We fund our operations from cash from operations, capital markets financings and borrowings under our Revolving Credit Facility. Volatile economic conditions and the constriction of the capital markets could reduce the sources of liquidity available to us and increase our costs of capital. Our Canadian operations rely on separate banking facilities for liquidity and to a lesser extent on our Revolving Credit Facility. If the size or availability of these banking facilities is reduced in the future, it would have an adverse effect on our liquidity and operations.

As of September 30, 2012, we had $29.9 million of debt maturing in the next 12 months. In addition, our credit facilities related to our Canadian operations (under which we had CAD $89.8 million of outstanding letters of credit as of September 30, 2012) are scheduled to expire on June 30, 2013. If we fail to renew these facilities, we will be required to obtain replacement facilities with other lenders to support our operations. We believe we can meet our other capital requirements with our existing cash resources and future cash flows and, if required, other sources of financing that we anticipate will be available to us. However, we can provide no assurance that we will continue to be able to do so, particularly if industry or economic conditions deteriorate. The future effects on our business, liquidity and financial results of these conditions could be adverse, both in the ways described above and in other ways that we do not currently foresee.

Our substantial debt could adversely affect our business, financial condition or results of operations and prevent us from fulfilling our debt-related obligations.

We have a substantial amount of debt. As of September 30, 2012, the total principal amount of our debt (including $35.9 million of indebtedness of TMHF) was $834.1 million, and on December 31, 2012, we borrowed an additional $50.0 million under the Revolving Credit Facility in connection with our acquisition of the assets of Darling. Our substantial debt could have important consequences for the holders of our common stock, including:

 

   

making it more difficult for us to satisfy our obligations with respect to our debt or to our trade or other creditors;

 

   

increasing our vulnerability to adverse economic or industry conditions;

 

   

limiting our ability to obtain additional financing to fund capital expenditures and acquisitions, particularly when the availability of financing in the capital markets is limited;

 

   

requiring a substantial portion of our cash flows from operations and the proceeds of this offering for the payment of interest on our debt and reducing our ability to use our cash flows and the proceeds of this offering to fund working capital, capital expenditures, acquisitions and general corporate requirements;

 

   

limiting our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate; and

 

   

placing us at a competitive disadvantage to less leveraged competitors.

 

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We cannot assure you that our business will generate sufficient cash flow from operations or that future borrowings will be available to us through capital markets financings or under our Revolving Credit Facility or otherwise in an amount sufficient to enable us to pay our indebtedness, or to fund our other liquidity needs. We may need to refinance all or a portion of our indebtedness, on or before its maturity. We cannot assure you that we will be able to refinance any of our indebtedness on commercially reasonable terms or at all. In addition, we may incur additional indebtedness in order to finance our operations or to repay existing indebtedness. If we cannot service our indebtedness, we may have to take actions such as selling assets, seeking additional debt or equity or reducing or delaying capital expenditures, strategic acquisitions, investments and alliances. We cannot assure you that any such actions, if necessary, could be effected on commercially reasonable terms or at all, or on terms that would be advantageous to our stockholders or on terms that would not require us to breach the terms and conditions of our existing or future debt agreements.

Restrictive covenants in the indenture governing the senior notes and the agreements governing our Revolving Credit Facility and other indebtedness may restrict our ability to pursue our business strategies.

The indenture governing our senior notes and the agreement governing our Revolving Credit Facility limit our ability, and the terms of any future indebtedness may limit our ability, among other things, to:

 

   

incur or guarantee additional indebtedness;

 

   

make certain investments;

 

   

pay dividends or make distributions on our capital stock;

 

   

sell assets, including capital stock of restricted subsidiaries;

 

   

agree to payment restrictions affecting our restricted subsidiaries;

 

   

consolidate, merge, sell or otherwise dispose of all or substantially all of our assets;

 

   

enter into transactions with our affiliates;

 

   

incur liens; and

 

   

designate any of our subsidiaries as unrestricted subsidiaries.

The Revolving Credit Facility contains certain “springing” financial covenants based on (a) consolidated total debt and consolidated adjusted tangible net worth requiring TMM and its subsidiaries to maintain a certain maximum capitalization ratio and (b) consolidated EBITDA requiring TMM and its subsidiaries to maintain a certain minimum interest coverage ratio. The Revolving Credit Facility also contains customary restrictive covenants, including limitations on incurrence of indebtedness and liens, the payment of dividends and other distributions, asset dispositions, investments, sale and leasebacks and limitations on debt payments and amendments.

The restrictions contained in the indenture governing our senior notes and the agreement governing our Revolving Credit Facility could also limit our ability to plan for or react to market conditions, meet capital needs or make acquisitions or otherwise restrict our activities or business plans.

Monarch Corporation is party to credit facilities with The Toronto-Dominion Bank and with HSBC Bank Canada. These facilities also contain restrictive covenants, including a maximum debt to equity ratio, minimum consolidated net equity, limitations on dividends and maintenance of a minimum interest coverage ratio. A breach of any of these restrictive covenants or our inability to comply with the applicable financial covenants could result in a default under the agreements governing our Revolving Credit Facility, the TD Facility and the HSBC Facility, which could allow for the acceleration of the debt under the agreements. If the indebtedness under our Revolving Credit Facility, the TD Facility, the HSBC Facility and the senior notes were to be accelerated, we cannot assure you that our assets would be sufficient to repay in full that indebtedness and our other indebtedness. See “Description of Certain Indebtedness.”

 

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We may require additional capital in the future and may not be able to secure adequate funds on terms acceptable to us.

The expansion and development of our business may require significant capital, which we may be unable to obtain, to fund our capital expenditures and operating expenses, including working capital needs. During 2011 and for the nine months ended September 30, 2012, we made capital expenditures for land, development and construction of $1.0 billion and $963.8 million, respectively.

During the next 12 months, we expect to meet our cash requirements with existing cash and cash equivalents, cash flow from operations (including sales of our homes and land) and borrowings under our Revolving Credit Facility. We may fail to generate sufficient cash flow from the sales of our homes and land to meet our cash requirements. Further, our capital requirements may vary materially from those currently planned if, for example, our revenues do not reach expected levels or we have to incur unforeseen capital expenditures and make investments to maintain our competitive position. If this is the case, we may require additional financing sooner than anticipated or we may have to delay or abandon some or all of our development and expansion plans or otherwise forego market opportunities.

To a large extent, our cash flow generation ability is subject to general economic, financial, competitive, legislative and regulatory factors and other factors that are beyond our control. We cannot assure you that our business will generate cash flow from operations in an amount sufficient to enable us to fund our liquidity needs. As a result, we may need to refinance all or a portion of our debt, on or before its maturity, or obtain additional equity or debt financing. We cannot assure you that we will be able to do so on favorable terms, if at all. Any inability to generate sufficient cash flow, refinance our debt or incur additional debt on favorable terms could adversely affect our financial condition and could cause us to be unable to service our debt and may delay or prevent the expansion of our business.

Risks related to our structure and organization

TMHC’s only asset after the completion of this offering will be its interest in TMM, and accordingly it will be dependent upon distributions from TMM to pay dividends, if any, taxes and other expenses. TMM is a holding company with no operations of its own and, in turn, relies on distributions from its operating subsidiaries.

Following the completion of the Reorganization Transactions and this offering, TMHC will be a holding company and will have no assets other than its ownership, directly or indirectly, of TMM partnership interests. TMHC will have no independent means of generating revenue. THMC intends to cause TMM to make distributions to its partners in an amount sufficient to cover all applicable taxes payable and dividends, if any, declared by TMHC. To the extent that TMHC needs funds, and TMM is restricted from making such distributions under applicable law or regulation, or is otherwise unable to provide such funds, it could materially and adversely affect TMHC’s liquidity and financial condition. In addition, TMM has no direct operations and derives all of its cash flow from its subsidiaries. Because the operations of TMHC’s business are conducted through subsidiaries of TMM, TMM is dependent on those entities for dividends and other payments to generate the funds necessary to meet the financial obligations of TMM. Legal and contractual restrictions in the Senior Secured Revolving Credit Facility, the senior notes and other debt agreements governing current and future indebtedness of TMM’s subsidiaries, as well as the financial condition and operating requirements of TMM’s subsidiaries, may limit TMHC’s ability to obtain cash from TMM’s subsidiaries. The earnings from, or other available assets of, TMM’s subsidiaries may not be sufficient to pay dividends or make distributions or loans to TMHC to enable TMHC to pay any dividends on the Class A common stock, taxes and other expenses.

 

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The Principal Equityholders have substantial influence over our business, and their interests may differ from our interests or those of our other stockholders.

Following this offering, our Principal Equityholders will continue to hold a majority of the combined voting power of TMHC. Due to their ownership, our Principal Equityholders have the power to control us and our subsidiaries, including the power to:

 

   

elect a majority of our directors and appoint our executive officers, set our management policies and exercise overall control over our company and subsidiaries;

 

   

agree to sell or otherwise transfer a controlling stake in our company; and

 

   

determine the outcome of substantially all actions requiring stockholder approval, including transactions with related parties, corporate reorganizations, acquisitions and dispositions of assets, and dividends.

The interests of our Principal Equityholders may differ from our interests or those of our other stockholders and the concentration of control in our Principal Equityholders will limit other stockholders’ ability to influence corporate matters. The concentration of ownership and voting power of our Principal Equityholders may also delay, defer or even prevent an acquisition by a third party or other change of control of our company and may make some transactions more difficult or impossible without the support of our Principal Equityholders, even if such events are in the best interests of our other stockholders. The concentration of voting power among the Principal Equityholders may have an adverse effect on the price of our Class A common stock. Our company may take actions that our other stockholders do not view as beneficial, which may adversely affect our results of operations and financial condition and cause the value of your investment to decline.

In addition, because the Principal Equityholders hold their ownership interest in our business directly or indirectly through TMM, rather than through TMHC, the public company, these existing owners may have conflicting interests with holders of shares of our Class A common stock.

As a “controlled company” within the meaning of the corporate governance rules of the national securities exchanges, we will qualify for, and intend to rely on, exemptions from certain corporate governance requirements. As a result, holders of our Class A common stock may not have the same degree of protection as that afforded to stockholders of companies that are subject to all of the corporate governance requirements of these exchanges.

Following this offering, we will be a “controlled company” within the meaning of the corporate governance rules of the national securities exchanges as a result of the ownership position and voting rights of our Principal Equityholders upon completion of this offering. A “controlled company” is a company of which more than 50% of the voting power is held by an individual, group or another company. More than 50% of our voting power will be held by our Principal Equityholders and certain members of our management after completion of this offering. As a controlled company, we are entitled to elect, and we intend to elect, not to comply with certain corporate governance rules of national securities exchanges that would otherwise require the Board of Directors to have a majority of independent directors and our compensation and nominating and governance committees to be comprised entirely of independent directors, have written charters addressing such committee’s purpose and responsibilities and perform an annual evaluation of such committee. Accordingly, holders of our Class A common stock will not have the same protection afforded to stockholders of companies that are subject to all of the corporate governance requirements of the national securities exchanges and the ability of our independent directors to influence our business policies and affairs may be reduced.

TMHC’s directors who have relationships with the Principal Equityholders may have conflicts of interest with respect to matters involving our company.

Following this offering, the substantial majority of TMHC’s directors will be affiliated with the Principal Equityholders. These persons will have fiduciary duties to TMHC and in addition will have duties to the Principal Equityholders. In addition, TMHC’s amended and restated certificate of incorporation will provide that

 

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no officer or director of TMHC who is also an officer, director, employee or other affiliate of the Principal Equityholders or an officer, director or employee of an affiliate of the Principal Equityholders will be liable to TMHC or its stockholders for breach of any fiduciary duty by reason of the fact that any such individual directs a corporate opportunity to the Principal Equityholders or their affiliates instead of TMHC, or does not communicate information regarding a corporate opportunity to TMHC that such person or affiliate has directed to the Principal Equityholders or their affiliates. As a result, such circumstances may entail real or apparent conflicts of interest with respect to matters affecting both TMHC and the Principal Equityholders, whose interests, in some circumstances, may be adverse to those of TMHC. In addition, as a result of the Principal Equityholders’ indirect ownership interest, conflicts of interest could arise with respect to transactions involving business dealings between TMHC and the Principal Equityholders or their affiliates, including potential business transactions, potential acquisitions of businesses or properties, the issuance of additional securities, the payment of dividends by TMHC and other matters.

Risks related to this offering

There is no existing market for our Class A common stock so the share price for our Class A common stock may fluctuate significantly.

Prior to this offering, there has been no public market for our Class A common stock. We cannot provide assurance that an active trading market will develop upon completion of this offering or, if it does develop, that it will be sustained. The initial public offering price of our Class A common stock will be determined by negotiation among us and the representatives of the underwriters and may not be representative of the price that will prevail in the open market after this offering. See “Underwriting” for a discussion of the factors that were considered in determining the initial public offering price.

The market price of our Class A common stock after this offering may be significantly affected by factors such as quarterly variations in our results of operations, changes in government regulations, the announcement of new contracts by us or our competitors, general market conditions specific to the homebuilding industry, changes in general economic conditions, volatility in the financial markets, differences between our actual financial and operating results and those expected by investors and analysts and changes in analysts’ recommendations or projections. These fluctuations may adversely affect the market price of our Class A common stock and cause you to lose all or a portion of your investment.

These and other factors may lower the market price of our Class A common stock, regardless of our actual operating performance. As a result, our Class A common stock may trade at prices significantly below the public offering price.

Furthermore, in recent years the stock market has experienced significant price and volume fluctuations. This volatility has had a significant impact on the market price of securities issued by many companies, including companies in our industry. The changes frequently appear to occur without regard to the operating performance of the affected companies. Hence, the price of our Class A common stock could fluctuate based upon factors that have little or nothing to do with us, and these fluctuations could materially reduce the price of our Class A common stock and materially affect the value of your investment.

We have broad discretion to use the offering proceeds and our investment of those proceeds may not yield a favorable return.

Our management has broad discretion to spend the proceeds from this offering in ways with which you may not agree. The failure of our management to apply these funds effectively could result in unfavorable returns. This could harm our business and could cause the price of our Class A common stock to decline.

 

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A substantial portion of our total outstanding shares may be sold into the market at any time. This could cause the market price of our Class A common stock to drop significantly, even if our business is doing well.

The market price of our Class A common stock could decline as a result of sales of a large number of shares of our Class A common stock or the perception that such sales could occur. These sales, or the possibility that these sales may occur, also might make it more difficult for us to sell equity securities in the future at a time and price that we deem appropriate. After the consummation of this offering, we will have              shares of outstanding Class A common stock on a fully diluted basis, assuming that all the TMM partnership interests outstanding (and the corresponding shares of Class B common stock) after giving effect to the Reorganization Transactions and this offering described under “Organizational Structure,” excluding those held by TMHC, are exchanged into shares of our Class A common stock.

In addition, upon consummation of this offering, the Principal Equityholders and certain members of our management will own, directly or indirectly, an aggregate of     % of the outstanding partnership interests in TMM and              shares of our Class B common stock (or     % of TMM’s outstanding partnership interests and              shares of our Class B common stock if the underwriters exercise their over-allotment option in full). Pursuant to the terms of the Exchange Agreement, the limited partners of TMM (other than TMHC) will be able to exchange their direct or indirect TMM partnership interests (along with the corresponding number of shares of our Class B common stock) for shares of our Class A common stock on a one-for-one equivalent basis. Shares of our Class A common stock issuable to the limited partners of TMM upon an exchange of TMM partnership interests as described above would be considered “restricted securities,” as that term is defined in Rule 144 under the Securities Act, unless the exchange is registered under the Securities Act. We and each of the existing holders of partnership interests of TMM who is a party to the Exchange Agreement will also agree with the underwriters not to sell, otherwise dispose of or hedge any Class A common stock or securities convertible or exchangeable for shares of Class A common stock, including the partnership interests of TMM and the Class B common stock, subject to specified exceptions, during the period from the date of this prospectus continuing through the date that is 180 days after the date of this prospectus, except with the prior written consent of the representatives of the underwriters. After the expiration of the 180-day lock-up period, the shares of Class A common stock issuable upon exchange of TMM partnership interests will be eligible for resale from time to time, subject to certain contractual restrictions and the requirements of the Securities Act.

We intend to file a registration statement under the Securities Act registering              shares of our Class A common stock reserved for issuance under our 2013 Plan and we will enter into an amended and restated registration rights agreement. See the information under the heading “Shares Eligible for Future Sale” and “Certain Relationships and Related Party Transactions” for a more detailed description of the shares of Class A common stock that will be available for future sale upon completion of this offering.

The requirements of being a public company may strain our resources, divert management’s attention and affect our ability to attract and retain qualified board members.

As a public company, we will incur significant legal, accounting and other expenses that we have not incurred as a private company, including costs associated with public company reporting requirements. We also have incurred and will incur costs associated with the Sarbanes-Oxley Act of 2002, the Dodd-Frank Act and related rules implemented or to be implemented by the SEC and national securities exchanges. The expenses incurred by public companies generally for reporting and corporate governance purposes have been increasing and the costs we incur for such purposes may strain our resources. We expect these rules and regulations to increase our legal and financial compliance costs, divert management’s attention to ensuring compliance and to make some activities more time-consuming and costly, although we are currently unable to estimate these costs with any degree of certainty. We have hired a number of people to assist with the enhanced requirements of being a public company but still need to hire more people for that purpose. In addition, these laws and regulations could make it more difficult or costly for us to obtain certain types of insurance, including director and officer liability insurance, and we may be forced to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. In addition, these laws and regulations could

 

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make it more difficult for us to attract and retain qualified persons to serve on our Board of Directors or as executive officers and may divert management’s attention. Furthermore, if we are unable to satisfy our obligations as a public company, we could be subject to delisting of our Class A common stock, fines, sanctions and other regulatory action.

Failure to establish and maintain effective internal control over financial reporting could have an adverse effect on our business, operating results and stock price.

Maintaining effective internal control over financial reporting is necessary for us to produce reliable financial reports and is important in helping to prevent financial fraud. To date, we have not identified any material deficiencies related to our internal control over financial reporting or disclosure controls and procedures, although we have not conducted an audit of our controls. If we are unable to maintain adequate internal controls, our business and operating results could be harmed. We are also beginning to evaluate how to document and test our internal control procedures to satisfy the requirements of Section 404 of the Sarbanes-Oxley Act and the related rules of the SEC, which require, among other things, our management to assess annually the effectiveness of our internal control over financial reporting and our independent registered public accounting firm to issue a report on our internal control over financial reporting beginning with our Annual Report on Form 10-K for the year ending December 31, 2014. During the course of this documentation and testing, we may identify deficiencies that we may be unable to remedy before the requisite deadline for those reports. Our auditors have not conducted an audit of our internal control over financial reporting. Any failure to remediate material deficiencies noted by us or our independent registered public accounting firm or to implement required new or improved controls or difficulties encountered in their implementation could cause us to fail to meet our reporting obligations or result in material misstatements in our financial statements. If our management or our independent registered public accounting firm were to conclude in their reports that our internal control over financial reporting was not effective, investors could lose confidence in our reported financial information, and the trading price of our Class A common stock could drop significantly. Failure to comply with Section 404 of the Sarbanes-Oxley Act could potentially subject us to sanctions or investigations by the SEC, the Financial Industry Regulatory Authority or other regulatory authorities.

If you purchase shares of our Class A common stock in this offering, you will suffer immediate and substantial dilution of your investment.

The initial public offering price of our Class A common stock is substantially higher than the net tangible book value per share of our Class A common stock. Therefore, if you purchase shares of our Class A common stock in this offering, your interest will be diluted immediately to the extent of the difference between the initial public offering price per share of our Class A common stock and the net tangible book value per share of our Class A common stock after this offering. See “Dilution.”

If we raise additional capital through the issuance of new equity securities at a price lower than the initial public offering price, you will incur additional dilution.

If we raise additional capital through the issuance of new equity securities at a lower price than the initial public offering price, you will be subject to additional dilution which could cause you to lose all or a portion of your investment. If we are unable to access the public markets in the future, or if our performance or prospects decreases, we may need to consummate a private placement or public offering of our Class A common stock at a lower price than the initial public offering price. In addition, any new securities may have rights, preferences or privileges senior to those securities held by you.

We do not expect to pay any cash dividends in the foreseeable future.

We intend to retain our future earnings, if any, to fund the development and growth of our business. In addition, the terms of any future debt agreements may preclude us from paying dividends. As a result, capital appreciation, if any, of our Class A common stock may be your sole source of gain for the foreseeable future.

 

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Provisions in our charter and bylaws and provisions of Delaware law may delay or prevent our acquisition by a third party, which might diminish the value of our Class A common stock. Provisions in our debt agreements may also require an acquirer to refinance our outstanding indebtedness if a change of control occurs.

In addition to the Principal Equityholders’ holding a majority of the voting power of TMHC following this offering, our amended and restated certificate of incorporation and bylaws and Delaware law contain provisions which could make it harder for a third party to acquire us, even if doing so might be beneficial to our stockholders. These provisions will include a classified board of directors and limitations on actions by our stockholders. In addition, our board of directors will have the right to issue preferred stock without stockholder approval that could be used to dilute a potential hostile acquirer. Our amended and restated certificate of incorporation will also impose some restrictions on mergers and other business combinations between us and any holder of 15% or more of our outstanding common stock other than the Principal Equityholders. As a result, you may lose your ability to sell your stock for a price in excess of the prevailing market price because of these protective measures and efforts by stockholders to change the direction or management of the company may be unsuccessful. See “Description of Capital Stock.”

Under our Revolving Credit Facility, a change of control would be an event of default, which would therefore require a third party acquirer to obtain a facility to refinance any outstanding indebtedness under the Revolving Credit Facility. Under the indenture governing our senior notes, if a change of control were to occur, we would be required to make an offer to repurchase the senior notes at a price equal to 101% of their principal amount. These change of control provisions in our existing debt agreements may also delay or diminish the value of an acquisition by a third party.

If securities analysts do not publish research or reports about our company, or if they issue unfavorable commentary about us or our industry or downgrade our Class A common stock, the price of our Class A common stock could decline.

The trading market for our Class A common stock will depend in part on the research and reports that third-party securities analysts publish about our company and our industry. One or more analysts could downgrade our Class A common stock or issue other negative commentary about our company or our industry. In addition, we may be unable or slow to attract research coverage. Alternatively, if one or more of these analysts cease coverage of our company, we could lose visibility in the market. As a result of one or more of these factors, the trading price of our Class A common stock could decline and cause you to lose all or a portion of your investment.

 

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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

This prospectus includes forward-looking statements, which involve risks and uncertainties. These forward-looking statements can be identified by the use of forward-looking terminology, including the terms “believes,” “estimates,” “projects,” “anticipates,” “expects,” “intends,” “may,” “will” or “should” or, in each case, their negative, or other variations or comparable terminology. These forward-looking statements include all matters that are not historical facts. They appear in a number of places throughout this prospectus and include statements regarding our intentions, beliefs or current expectations concerning, among other things, our results of operations, financial condition, liquidity, prospects, growth, strategies, the industry in which we operate and potential acquisitions. We derive many of our forward-looking statements from our operating budgets and forecasts, which are based upon many detailed assumptions. While we believe that our assumptions are reasonable, we caution that it is very difficult to predict the impact of known factors, and, of course, it is impossible for us to anticipate all factors that could affect our actual results. All forward-looking statements are based upon information available to us on the date of this prospectus.

By their nature, forward-looking statements involve risks and uncertainties because they relate to events and depend on circumstances that may or may not occur in the future. We caution you that forward-looking statements are not guarantees of future performance and that our actual results of operations, financial condition and liquidity, and the development of the industry in which we operate may differ materially from those made in or suggested by the forward-looking statements contained in this prospectus. In addition, even if our results of operations, financial condition and liquidity and the development of the industry in which we operate are consistent with the forward looking statements contained in this prospectus, those results or developments may not be indicative of results or developments in subsequent periods. Important factors that could cause our results to vary from expectations include, but are not limited to:

 

   

cyclicality in our business and adverse changes in general economic or business conditions outside of our control;

 

   

a prolongation or worsening of the recent significant downturn in the U.S. or a significant decline in the market for new single-family homes or condominiums in Ontario, Canada;

 

   

the potential difficulty in maintaining profitability in the future;

 

   

fluctuations in exchange rates between the U.S. dollar and the Canadian dollar;

 

   

an inability on our part to obtain performance bonds or letters of credit necessary to carry on our operations;

 

   

higher cancellation rates of agreements of sale pertaining to our homes;

 

   

competition in the homebuilding industry;

 

   

constriction of the credit markets and the resulting inability of our customers to secure financing to purchase our homes;

 

   

an increase in unemployment;

 

   

increases in taxes or government fees;

 

   

increased homeownership costs due to government regulation;

 

   

our inability to pass along the effects of inflation or increased costs to our customers;

 

   

the seasonal nature of our business;

 

   

negative publicity;

 

   

an unexpected increase in home warranty or construction defect claims, including with respect to Chinese-made drywall;

 

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various liability issues related to our reliance or contractors;

 

   

failure in our financial and commercial controls or systems;

 

   

changes in the availability of suitable land on which to build;

 

   

declines in the market value of our land and inventory;

 

   

risks associated with our real estate and lot inventory;

 

   

shortages in labor supply, increased labor costs or labor disruptions;

 

   

the failure to recruit, retain and develop highly skilled, competent personnel and our dependence on certain members of our management and key personnel;

 

   

the effects of government regulation or legal challenges on our development and other activities;

 

   

changes in governmental regulation and other risks associated with acting as a mortgage lender;

 

   

the loss of any of our important commercial relationships;

 

   

an inability to use certain deferred tax assets;

 

   

shortages in raw materials and building supply and price fluctuations;

 

   

the concentration of our operations in California, Colorado, Arizona, Texas, Florida and Ontario, Canada, including adverse weather conditions;

 

   

changes to the population growth rates in our markets;

 

   

risks related to conducting business through joint ventures;

 

   

costs associated with the future growth or expansion of our operations or acquisitions or disposals of our divisions;

 

   

U.S. defined benefit pension schemes, which may require increased contributions;

 

   

a major health and safety incident;

 

   

potential environmental risks and liabilities associated with the ownership, leasing or occupation of land;

 

   

potential claims for damages as a result of hazardous materials;

 

   

uninsured losses or losses in excess of insurance limits;

 

   

existing or future litigation, arbitration or other claims;

 

   

poor relations with the residents of our communities;

 

   

utility and resource shortages or rate fluctuations;

 

   

an inability to develop our communities successfully or within expected time frames;

 

   

any future inability on our part to secure the capital required to fund our business;

 

   

issues relating to our substantial debt;

 

   

an inability to pursue certain business strategies because of restricted covenants in the agreements governing our indebtedness; and

 

   

other risks and uncertainties inherent in our business.

We caution you that the foregoing list of important factors may not contain all of the material factors that are important to you. We urge you to read this entire prospectus carefully, including the sections entitled “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Industry”

 

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and “Business,” for a more complete discussion of the factors that could affect our future performance and the industry in which we operate. In light of these risks, uncertainties and assumptions, the forward-looking events described in this prospectus may not occur.

We undertake no obligation, and do not expect, to publicly update or publicly revise any forward-looking statement, whether as a result of new information, future events or otherwise, except as required by law. All subsequent written and oral forward-looking statements attributable to us or to persons acting on our behalf are expressly qualified in their entirety by the cautionary statements referred to above and contained elsewhere in this prospectus.

 

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ORGANIZATIONAL STRUCTURE

Structure Prior to the Reorganization Transactions

Our business is conducted by wholly owned subsidiaries of TMM. All of the issued and outstanding capital stock of the Operating Subsidiaries and their subsidiaries is directly or indirectly owned by TMM. The limited partnership interests in TMM are currently owned by the TPG Entities, Oaktree and JH as well as certain members of our management.

The Reorganization Transactions

In the Reorganization Transactions, TMHC will, through a series of transactions, directly or indirectly acquire partnership interests in TMM with the net cash proceeds received in this offering and become or acquire control over the sole general partner of TMM. The existing holders of limited partnership interests in TMM, including the Principal Equityholders and certain members of our management, will continue to hold directly or indirectly limited partnership interests in TMM and will be issued shares of TMHC Class B common stock. Immediately after the consummation of the Reorganization Transactions and this offering, the only asset of TMHC will be its direct or indirect interest in TMM. Each share of TMHC Class A common stock will correspond to an economic interest in our direct or indirect interest in TMM, whereas the shares of TMHC Class B common stock will only have voting rights in TMHC and will have no economic interest in TMHC or its direct or indirect interest in TMM. Shares of TMHC Class B common stock will be initially owned, directly or indirectly, solely by the existing holders of TMM limited partnership interests and cannot be transferred except in connection with an exchange or transfer of a TMM partnership interest. We do not intend to list the Class B common stock on any stock exchange.

TMHC was incorporated as a Delaware corporation in November 2012. TMHC has not engaged in any business or other activities, except for certain aspects of the Reorganization Transactions, and following the Reorganization Transactions will have no assets other than its direct or indirect interest in TMM. Following this offering, TMM’s subsidiaries will continue to operate the historical business of our company.

TMHC is currently authorized to issue a single class of common stock. In connection with the Reorganization Transactions, TMHC will amend and restate the certificate of incorporation to authorize the issuance of two classes of common stock, Class A common stock and Class B common stock. Shares of common stock will generally vote together as a single class on all matters submitted to stockholders. The Class B common stock will not entitle its holders to any of the economic rights (including rights to dividends and distributions upon liquidation) that will be provided to holders of Class A common stock. The voting power of the outstanding Class B common stock will be equal to the percentage of TMM partnership interests not held directly or indirectly by TMHC.

In connection with the closing of this offering, certain of the existing holders of limited partnership interests in TMM will enter into the Exchange Agreement under which, from time to time, they (or certain transferees) will have the right to exchange their direct or indirect partnership interests in TMM (along with a corresponding number of shares of TMHC Class B common stock) for shares of TMHC Class A common stock on a one-for-one equivalent basis, subject to customary conversion rate adjustments for stock splits, stock dividends and reclassifications. See “Certain Relationships and Related Party Transactions—Exchange Agreement.”

In addition, as a part of the Reorganization Transactions, we expect to, among other things, amend and restate the partnership agreement governing TMM, enter into a stockholders agreement with the Principal Equityholders and the other partners of TMM and enter into an amended and restated registration rights agreement with the Principal Equityholders and the other partners of TMM. See “Certain Relationships and Related Party Transactions.”

 

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Effect of the Reorganization Transactions and this Offering

The Reorganization Transactions are intended to create a holding company that will facilitate public ownership of, and investment in, our company.

Upon completion of the Reorganizations Transactions described above, this offering and the application of the net proceeds from this offering:

 

   

TMHC will be or control the sole general partner of TMM, will control TMM and will hold directly or indirectly     % of the outstanding partnership interests in TMM (    % if the underwriters exercise their over-allotment option in full). TMHC will consolidate the financial results of TMM and its subsidiaries and TMHC’s net income (loss) will be reduced by a noncontrolling interest expense to reflect the portion of TMM’s net income (loss) to which TMHC is not entitled;

 

   

the TPG Entities, Oaktree and JH and certain members of management will hold directly or indirectly an aggregate of     % of the outstanding partnership interests in TMM and              shares of TMHC’s Class B common stock (or     % of the partnership interests and              shares of TMHC’s Class B common stock if the underwriters exercise their over-allotment option in full), representing     % of the combined voting power in TMHC and     % of the economic interest in TMM (    % if the underwriters exercise their over-allotment option in full); and

 

   

TMHC’s public stockholders will collectively hold             shares of TMHC’s Class A common stock (or             shares if the underwriters exercise their over-allotment option in full), representing         % of the combined voting power and economic interest in TMHC (or         % if the underwriters exercise their over-allotment option in full).

Upon the consummation of this offering, TMHC will contribute the net proceeds received by TMHC directly or indirectly to TMM. TMM will then use such proceeds as further described under “Use of Proceeds” and “Certain Relationships and Related Party Transactions.”

 

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USE OF PROCEEDS

We estimate that our net proceeds from the sale of          shares of Class A common stock by us in this offering will be approximately $         million after deducting estimated offering expenses payable by us of $         million and $         million of underwriting discounts and commissions and assuming an initial public offering price of $         per share (the midpoint of the estimated public offering price range set forth on the cover page of this prospectus). If the underwriters’ over-allotment option is exercised in full, we estimate that our net proceeds will be approximately $         million.

TMHC will use the net proceeds of this offering to acquire partnership interests in TMM. TMM intends to contribute such proceeds to its subsidiaries. TMM’s subsidiaries intend to use such proceeds for working capital and general corporate purposes, which may include the repayment or repurchase of indebtedness and future acquisitions.

TMM and its subsidiaries will have broad discretion as to the application of the proceeds to be used for working capital and general corporate purposes. Prior to the application of the proceeds, TMM and its subsidiaries may hold any net proceeds in cash or invest them in short term securities or investments. You will not have an opportunity to evaluate the economic, financial or other information on which our subsidiaries base decisions regarding the use of these proceeds.

A $1.00 increase (decrease) in the assumed public offering price of $         per share of common stock would increase (decrease) our expected net proceeds by approximately $         million, assuming the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting the underwriting discounts and commissions and estimated offering expenses payable by us.

 

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DIVIDEND POLICY

We currently anticipate that we will retain all available funds for use in the operation and expansion of our business, and do not anticipate paying any cash dividends in the foreseeable future. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” TMHC has not previously declared or paid any cash dividends on its common stock.

Any future determination as to our dividend policy will be made at the discretion of the Board of Directors of TMHC and will depend upon many factors, including our financial condition, earnings, legal requirements, restrictions in our debt agreements, including those governing the Revolving Credit Facility and the senior notes, that limit our ability to pay dividends to stockholders and other factors the Board of Directors of TMHC deems relevant. For further information, see “Description of Certain Indebtedness—Revolving Credit Facility” and “Description of Certain Indebtedness—Senior Notes.”

 

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CAPITALIZATION

The following table sets forth our capitalization as of September 30, 2012:

 

   

on an actual basis, for TMM; and

 

   

on a pro forma basis with respect to TMHC, giving effect to the Reorganization Transactions as well as this offering and the use of proceeds of this offering as described under “Use of Proceeds.”

This table should be read in conjunction with “Use of Proceeds,” “Unaudited Pro Forma Consolidated Financial Information” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements and related notes appearing elsewhere in this prospectus.

 

     September 30, 2012  
(in thousands, except per share amounts)    TMM
Actual
     TMHC
Pro Forma(1)
 

Cash and cash equivalents

   $ 412,779       $                
  

 

 

    

 

 

 

Revolving Credit Facility(2)

   $ —         $     

Loans payable and other borrowings(3)

     116,397      

7.750% Senior Notes due 2020(4)

     681,764      
  

 

 

    

 

 

 

Total debt(5)

     834,051      
  

 

 

    

 

 

 

Owners’ Equity

     861,754      

Class A common stock, $0.00001 par value per share,             shares authorized on a pro forma basis

     —        

Class B common stock, $0.00001 par value per share,             shares authorized on a pro forma basis

     —        

Additional paid-in capital

     

Noncontrolling interest

     7,693      
  

 

 

    

 

 

 

Total stockholders’ equity

     869,447      
  

 

 

    

 

 

 

Total capitalization

   $ 1,703,498       $     
  

 

 

    

 

 

 

 

  (1) A $1.00 decrease or increase in the assumed initial public offering price would result in approximately a $         million decrease or increase in the pro forma amounts of each of (i) cash and cash equivalents, (ii) additional paid-in capital, (iii) total stockholders’ equity, and (iv) total capitalization, assuming the total number of shares offered by us remains the same and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us.
  (2) At September 30, 2012 the Revolving Credit Facility provided TMC and Monarch Corporation with revolving borrowing capacity up to $125.0 million. On December 27, 2012 we amended the Revolving Credit Facility to increase the aggregate amount of revolving credit commitments to $225.0 million and borrowed $50.0 million under the Revolving Credit Facility to finance in part the acquisition of the assets of Darling. The Revolving Credit Facility matures in July 2016. Drawings under this facility will be used for working capital and general corporate purposes. As of September 30, 2012, there were no outstanding borrowings under the Revolving Credit Facility, and there was $5.4 million in outstanding letters of credit. See “Description of Certain Indebtedness.”
  (3) Other long-term debt as of September 30, 2012 consists of project-level debt due to various land sellers and municipalities, and is generally secured by the land that was acquired. Principal payments generally coincide with corresponding project lot sales or a principal reduction schedule. As of September 30, 2012, $29.9 million of the loans were scheduled to be repaid in the next 12 months. The interest rate on $50.5 million of the loans ranged from 4.0% to 8.0% and $65.5 million of the loans were non-interest bearing.
  (4) Reflects the carrying value of $550.0 million aggregate principal amount of senior notes issued at par on April 13, 2012 and $125.0 million aggregate principal amount of additional senior notes issued at a price of 105.5% of their principal amount on August 21, 2011.
  (5) Total debt does not include letters of credit issued under the Revolving Credit Facility, the TD Facility and the HSBC Facility (as defined in “Description of Certain Indebtedness”). The TD Facility provides for borrowings and letters of credit up to an aggregate amount of CAD $100.0 million, and CAD $64.2 million in letters of credit were outstanding as of September 30, 2012. Prior to its extension in November 2012, the HSBC Facility provided for letters of credit up to an aggregate amount of CAD $25.6 million, and the facility was fully drawn as of September 30, 2012. The TD Facility and the HSBC Facility are scheduled to expire on June 30, 2013. In connection with the extension of the HSBC Facility in November 2012, the availability under the facility was reduced to $24.2 million, and the facility remains fully drawn. Total debt includes $35.9 million of debt of TMHF, our wholly owned subsidiary. TMHF is separately capitalized, and its obligations are non-recourse to TMHC, TMM or any of our homebuilding entities. Total indebtedness also does not include indebtedness of unconsolidated joint ventures. See “Description of Certain Indebtedness.”

 

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DILUTION

The pro forma net tangible book value of TMHC as of September 30, 2012 would have been $         or $         per share of Class A common stock. Pro forma net tangible book value per share is determined by dividing TMHC’s pro forma tangible net worth of             , total assets less total liabilities, by the aggregate number of shares of Class A common stock outstanding assuming that all of the existing holders of TMM partnership interests exchanged their direct or indirect TMM partnership interests (along with the corresponding number of shares of Class B common stock) for shares of Class A common stock, in each case, after giving effect to the Reorganization Transactions described under “Organizational Structure.” After giving effect to the sale of the              shares of Class A common stock in this offering, at an assumed initial public offering price of $         per share (the midpoint of the range set forth on the cover page of this prospectus), and the receipt and application of the net proceeds as described under “Use of Proceeds,” TMHC pro forma net tangible book value at September 30, 2012 would have been $         or $         per share assuming that all of the existing holders of TMM partnership interests exchanged their direct or indirect TMM partnership interests (along with the corresponding number of shares of Class B common stock) for shares of Class A common stock. This represents an immediate increase in pro forma net tangible book value to existing stockholders of $         per share and an immediate dilution to new investors of $         per share. The following table illustrates this per share dilution:

 

Assumed initial public offering price

      $                

Pro forma net tangible book value per share as of September 30, 2012

   $                   

Increase in pro forma net tangible book value per share attributable to new investors

     

Pro forma net tangible book value per share after offering

     
     

 

 

 

Dilution per share to new investors

      $     
     

 

 

 

Dilution is determined by subtracting pro forma net tangible book value per share after the offering from the initial public offering price per share.

A $1.00 increase (decrease) in the assumed initial public offering price of $         per share would increase (decrease) our pro forma net tangible book value after this offering by $         and the dilution per share to new investors by $        , in each case assuming the number of shares offered, as set forth on the cover page of this prospectus, remains the same and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us in connection with this offering.

The following table sets forth, on a pro forma basis, as of September 30, 2012, the number of shares of Class A common stock purchased from TMHC (assuming the conversion of all of the Principal Equityholders’ direct or indirect limited partnership interests in TMM into Class A common stock), the total consideration paid, or to be paid, and the average price per share paid, or to be paid, by existing stockholders and by the new investors, at an assumed initial public offering price of $         per share (the midpoint of the range set forth on the cover page of this prospectus), before deducting estimated underwriting discounts and commissions and offering expenses payable by us assuming that all of the existing holders of TMM partnership interests exchanged their direct or indirect TMM partnership interests (along with the corresponding number of shares of Class B common stock) for shares of our Class A common stock:

 

     Shares Purchased     Total Consideration     Average
Price
Per Share
     Number    Percent     Amount      Percent    

Existing equityholders

               $                            

New investors

            
  

 

    

 

 

      

 

Total

        100   $                      100  
  

 

    

 

 

      

 

To the extent the underwriters’ over-allotment option is exercised, there will be further dilution to new investors.

 

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A $1.00 increase (decrease) in the assumed initial public offering price of $         per share of Class A common stock (the midpoint of the estimated public offering price range set forth on the cover page of this prospectus) would increase (decrease) total consideration paid by new investors in this offering by $         and would increase (decrease) the average price per share paid by new investors by $        , assuming the number of Class A common stock offered, as set forth on the cover page of this prospectus, remains the same and without deducting the estimated underwriting discounts and offering expenses payable by us in connection with this offering.

We may choose to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient funds for our current or future operating plans. To the extent additional capital is raised through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.

 

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UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION

The unaudited pro forma consolidated statements of operations data for the fiscal year ended December 31, 2011 and the nine months ended September 30, 2012 present TMHC’s consolidated results of operations giving pro forma effect to the Acquisition and Financing Transactions, the Reorganization Transactions, this offering and the use of the estimated net proceeds from this offering as described under “Use of Proceeds,” as if such transactions occurred on January 1, 2011.

The unaudited pro forma consolidated balance sheet data as of September 30, 2012 presents our consolidated financial position giving pro forma effect to the Reorganization Transactions, this offering and the use of the estimated net proceeds from this offering as described under “Use of Proceeds,” as if such transactions occurred on September 30, 2012.

The unaudited pro forma consolidated financial information does not give effect to the acquisition of the assets of Darling or the incurrence of $50.0 million of additional indebtedness under the Revolving Credit Facility to finance the acquisition in part (both of which occurred on December 31, 2012), because we are not required to do so under Rule 11-01 of Regulation S-X.

For purposes of the unaudited pro forma consolidated financial information, we have assumed that          shares of Class A common stock will be issued by TMHC (which reflects no exercise of the underwriters’ over-allotment option) at a price per share equal to the midpoint of the estimated offering price range set forth on the cover of this prospectus, and as a result, immediately following the completion of this offering, the ownership percentage represented by TMM partnership interests not held directly or indirectly by TMHC will be         %, and the net income attributable to TMM partnership interests not held directly or indirectly by TMHC will accordingly represent         % of our net income. If the underwriters’ over-allotment option is exercised in full, the ownership percentage represented by TMM partnership interests not held directly or indirectly by TMHC will be         %; and the net income attributable to TMM partnership interests not held directly or indirectly by TMHC will accordingly represent         % of our net income. If the assumed offering price increases by $1.00 per share to $            , the ownership percentage represented by TMM partnership interests not held directly or indirectly by TMHC will decrease to         % (        % if the underwriters’ over-allotment option is exercised in full). If the assumed offering price decreases by $1.00 per share to $            , the ownership percentage represented by TMM partnership interests not held directly or indirectly by TMHC will increase to         % (        % if the underwriters’ over-allotment option is exercised in full).

The unaudited pro forma consolidated financial information should be read in conjunction with the sections of this prospectus captioned “Organizational Structure,” “Use of Proceeds,” “Capitalization,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the audited and unaudited consolidated financial statements and related notes included elsewhere in this prospectus. All pro forma adjustments and their underlying assumptions are described more fully in the notes to our unaudited pro forma consolidated statements of operations and unaudited pro forma consolidated balance sheet.

The unaudited pro forma consolidated financial information is included for information purposes only and does not purport to reflect the results of operations or financial position of TMHC that would have occurred had we operated as a public company during the periods presented. The unaudited pro forma consolidated financial information does not purport to be indicative of our results of operations or financial position had the Acquisition and Financing Transactions, the Reorganization Transaction and this offering occurred on the dates assumed. The unaudited pro forma consolidated financial information also does not project our results of operations of financial position for any future period or date.

 

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Taylor Morrison Home Corporation

Pro Forma Condensed Statement of Operations

Nine Months Ended September 30, 2012

(Unaudited)

(in thousands, except share data)

 

     TMM
January 1, 2012 to
September 30,
2012
    Pro forma
Adjustments for
the Acquisition
and Financing
Transactions

and the
Reorganization
Transactions
    Pro Forma
Adjustments
for this
Offering
    TMHC
Pro
Forma
 
          

Home closings revenue

   $ 829,221      $ —        $                    $ 829,221   

Land closings revenue

     36,102        —            36,102   

Financial services revenue

     13,705        —            13,705   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total revenues

     879,028        —          $ 879,028   
  

 

 

   

 

 

   

 

 

   

 

 

 

Cost of home closings

     663,656        (3,598 )(a)        660,058   

Cost of land closings

     27,881        —            27,881   

Financial services expenses

     7,667        —            7,667   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total cost of revenues

     699,204        (3,598       695,606   
  

 

 

   

 

 

   

 

 

   

 

 

 

Gross margin

     179,824        3,598          183,422   

Sales, commissions, and other marketing costs

     52,230        —            52,230   

General and administrative expenses

     41,091        (3,744 )(b)        37,347   

Equity in net earnings of unconsolidated entities

     (11,497     —            (11,497

Other income

     (1,655     —            (1,655

Loss on extinguishment of debt

     7,853        —            7,853   

Transaction expenses

     —          —            —     

Indemnification (income) expense

     13,063        (13,063 )(d)        —     
  

 

 

   

 

 

   

 

 

   

 

 

 

Income before income taxes

     78,739        12,917          99,144   

Income tax provision (benefit)

     (3,090     2,583  (e)        (507
  

 

 

   

 

 

   

 

 

   

 

 

 

Net income

     81,829        10,334          99,651   

Less net income attributable to noncontrolling interests

     (72            (f)   
  

 

 

   

 

 

   

 

 

   

 

 

 

Net income attributable to Taylor Morrison Home Corporation

   $ 81,757      $        $        $     
  

 

 

   

 

 

   

 

 

   

 

 

 

Basic weighted average number of Class A common shares outstanding

     —           

Basic net income (loss) per share applicable to Class A common stock(g)

     —           

Diluted weighted average number of Class A common shares outstanding

     —           

Diluted net income (loss) per share applicable to Class A common stock(g)

     —           

 

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Taylor Morrison Home Corporation

Pro Forma Consolidated Statement of Operations

Year Ended December 31, 2011

(Unaudited)

(in thousands, except share data)

 

    Predecessor           Successor     TMHC  
    North American
Business of Taylor
Wimpey plc
Combined
January 1, 2011
to July 12, 2011
          TMM
July 13, 2011 to
December 31,
2011
    Pro forma
Adjustments
for the
Acquisition
and Financing
Transactions

and the
Reorganization
Transactions
    Pro forma
Adjustments
for this
Offering
    Pro forma  

Home closings revenue

  $ 600,069          $ 731,216      $ —        $                       $ 1,331,285   

Land closings revenue

    13,639            10,657        —            24,296   

Financial services revenue

    6,027            8,579        —            14,606   
 

 

 

       

 

 

   

 

 

   

 

 

   

 

 

 

Total revenues

    619,735            750,452        —            1,370,187   
 

 

 

       

 

 

   

 

 

   

 

 

   

 

 

 

Cost of home closings

    474,534            591,891        (22,583 )(a)        1,043,842   

Cost of land closings

    7,133            8,583        —            15,716   

Financial services expenses

    3,818            4,495        —            8,313   
 

 

 

       

 

 

   

 

 

   

 

 

   

 

 

 

Total cost of revenues

    485,485            604,969        (22,583       1,067,871   
 

 

 

       

 

 

   

 

 

   

 

 

   

 

 

 

Gross margin

    134,250            145,483        22,583          302,316   

Sales, commissions, and other marketing costs

    40,126            36,316        —            76,442   

General and administrative expenses

    35,743            32,883        (2,322 )(b)        66,304   

Equity in net earnings of unconsolidated entities

    (2,803         (5,247     —            (8,050

Interest expense (income)—net

    941            (3,867     1,433 (a)        (1,493

Other income

    (11,783         (1,245     —            (13,028

Other expense

    1,125            3,553        —            4,678   

Transaction expenses

    —              39,442        (39,442 )(c)        —     

Indemnification loss

    —              12,850        (12,850 )(d)        —     
 

 

 

       

 

 

   

 

 

   

 

 

   

 

 

 

Income before income taxes

    70,901            30,798        75,764          177,463   

Income tax expense

    20,881            4,031        15,153 (e)        40,065   
 

 

 

       

 

 

   

 

 

   

 

 

   

 

 

 

Net income

    50,020            26,767        60,611          137,398   

Less net income attributable to noncontrolling interests

    (4,122         (1,178                (f)   
 

 

 

       

 

 

   

 

 

   

 

 

   

 

 

 

Net income attributable to Taylor Morrison Home Corporation

  $ 45,898          $ 25,589      $        $        $     
 

 

 

       

 

 

   

 

 

   

 

 

   

 

 

 

Basic weighted average number of Class A common shares outstanding

    —              —           

Basic net income (loss) per share applicable to Class A common stock(g)

    —              —           

Diluted weighted average number of Class A common shares outstanding

    —              —           

Diluted net income (loss) per share applicable to Class A common stock(g)

    —              —           

 

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Notes to Unaudited Pro Forma Consolidated Statements of Operations ($ in thousands)

 

(a) Eliminates the historical interest expense and amortization of previously capitalized interest attributable to the $500.0 million Sponsor Loan with a stated interest rate of 13%, including amortization of debt discount and premium and deferred financing fees, net, and reflects the pro forma interest expense and amortization of deferred financing fees related to those offerings. The pro forma impact is based on the issuance of $550.0 million aggregate principal amount of senior notes at par and $125.0 million of additional senior notes at a price of 105.5% of principal less issuance related fees and expenses, in each case with a stated interest rate of 7.75% per annum and a term of approximately eight years. A portion of the proceeds from the offering of the senior notes was used to retire a portion of the Sponsor Loan.
(b) Represents a decrease of approximately $1.9 million for the year ended December 31, 2011 and $3.7 million for the nine months ended September 30, 2012 of general and administrative expenses to reflect the removal of management fees to affiliates of our Principal Equityholders for general corporate and administrative expenses in the successor period. In connection with this offering, the management services agreement will be terminated and services covered by such agreement, mostly financial advisory and investment guidance, will be performed internally by management. Also represents a decrease in depreciation and amortization, based on estimates of fair values and useful lives as part of the purchase price allocation for the Acquisition of $0.4 million for the year end December 31, 2011. The unaudited pro forma consolidated statement of operations reflects amortization of certain identifiable intangible assets and other assets based on their new basis as reflected in the purchase price allocation for the Acquisition. Depreciable and amortizable assets have been depreciated and amortized on a straight-line basis in the unaudited pro forma consolidated statement of operation.
(c) Reflects the elimination of $39.4 million of transaction costs, which included accounting, investment banking, legal and other costs recognized in connection with the Acquisition.
(d) Reflects the reversal of the receivable related to a tax indemnity from our former parent, Taylor Wimpey plc, in respect of certain matters that have since been settled. The indemnity was provided as part of the Acquisition for certain tax liabilities that existed on the date of the Acquisition.
(e) Reflects the income tax effect of the pro forma adjustments, calculated using a blended rate of 20% for the respective statutory tax rates of the jurisdiction where the respective adjustment relates. Based on the current and future organizational structure, it is not expected that a significant amount of adjustment to tax expense will occur other than to the pro forma adjustments made here.
(f) Eliminates net income attributable to the direct or indirect holders of partnership interests in TMM (other than TMHC).
(g) Our shares of Class B common stock do not share in our earnings and are therefore not included in net income (loss) available per share.

 

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Taylor Morrison Home Corporation

Pro Forma Condensed Consolidated Balance Sheet

September 30, 2012

(Unaudited)

(in thousands)

 

    TMHC     TMM     Pro Forma
Adjustments for the
Acquisition and
Financing Transactions
and the Reorganization
Transactions
    Pro Forma
Adjustments
for this
Offering
    TMHC  
    Historical     Historical         Pro Forma  

ASSETS

         

ASSETS:

         

Cash and cash equivalents

  $ 1      $ 412,779      $               (a)      $                    

Restricted cash

    —          2,955        —            2,955   

Real estate inventory

    —          1,275,763        —            1,275,763   

Land deposits

    —          11,927        —            11,927   

Loan receivables—net

    —          62,946        —            62,946   

Mortgage receivables

    —          38,884        —            38,884   

Tax indemnification receivable

    —          113,316        —            113,316   

Other receivables—net

    —          46,805        —            46,805   

Prepaid expenses and other assets—net

    —          94,967        —            94,967   

Investment in unconsolidated entities

    —          77,987        —            77,987   

Property and equipment—net

    —          5,995        —            5,995   

Deferred tax assets—net

    —          2,809        —            2,809   

Intangible assets—net

    —          9,166        —            9,166   

Income taxes receivable

    —          —          —            —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

TOTAL

  $ 1      $ 2,156,299      $                   $        $     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

LIABILITIES AND EQUITY

         

LIABILITIES:

         

Accounts payable

  $   —        $ 88,887        —          $ 88,887   

Accrued expenses and other liabilities

    —          167,830        —            167,830   

Income taxes payable

    —          111,531        —            111,531   

Deferred tax liabilities—net

    —          —          —            —     

Customer deposits

    —          84,553        —            84,553   

Mortgage borrowings

    —          35,890        —            35,890   

Net payable to Taylor Wimpey plc

    —          —          —            —     

Loans payable and other borrowings

    —          116,397        —            116,397   

Long-term debt

    —          681,764        —            681,764   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total liabilities

  $ —        $ 1,286,852      $ —        $        $ 1,286,852   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

COMMITMENTS AND CONTINGENCIES EQUITY:

         

Net owners’ equity

  $ —        $ 881,676      $ (881,676 )(b)           (b)      —     

Capital stock

    —          —                 (c)   

Additional paid-in capital

    1        —                 (d)   

Retained earnings

    —          —          —            —     

Accumulated other comprehensive loss

    —          (19,922     —         
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total owners’ equity

    1        861,754         

Noncontrolling interests

    —          7,693         
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total equity

    —          869,447         
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

TOTAL

  $ 1      $ 2,156,299      $                   $        $                
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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Notes to Unaudited Pro Forma Condensed Consolidated Balance Sheet ($ in thousands)

 

(a) Reflects the receipt of the net proceeds from this offering and any termination fee payable to terminate the management services agreement. See “Certain Relationships and Related Party Transactions—Management Services Agreements.”
(b) Reflects the noncontrolling interests of the limited partners of TMM (other than TMHC) after completion of the Reorganization Transactions and this offering.
(c) Reflects the issuance of             shares of Class A common stock in this offering.
(d) Reflects the additional paid-in capital from the issuance of      shares of             our Class A common stock in this offering, net of transaction costs.

 

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SELECTED CONSOLIDATED FINANCIAL DATA

The selected combined financial information of TMM set forth below as of December 31, 2010 and for each of the years in the two year period ended December 31, 2010 and the period from January 1, 2011 to July 12, 2011 has been derived from the audited combined financial statements of TMM’s predecessor, the North American business of Taylor Wimpey plc (our “predecessor”), which are included elsewhere in this prospectus. The statement of operations for the years ended December 31, 2007 and 2008, and the financial data as of December 31, 2007, 2008 and 2009 have been derived from the historical financial statements of our predecessor, in each case, which are not included in this prospectus. This predecessor financial information for 2007 and 2008 was prepared by our predecessor and has not been subject to a review or audit. The 2007 period financial statements were created from data within our accounting systems currently used by TMM under the policies and practices during that time.

The selected consolidated financial information set forth below for the period from July 13, 2011 to December 31, 2011, and as of December 31, 2011, has been derived from the audited consolidated financial statements of TMM (the “successor”) included elsewhere in this prospectus. The predecessor period financial statements have been prepared using the historical cost basis of accounting that existed prior to the Acquisition in accordance with U.S. GAAP. The successor period financial statements for periods ending subsequent to July 13, 2011 (the date of the Acquisition) are also prepared in accordance with U.S. GAAP, although they reflect adjustments made as a result of the application of purchase accounting in connection with the Acquisition. As a result, the financial information for periods subsequent to the date of the Acquisition is not necessarily comparable to that for the predecessor periods presented below. In addition, the historical financial information of TMM will not necessarily be comparable to the financial information of TMHC following the Reorganization Transactions and this offering.

The selected consolidated financial information set forth below for the period from July 13, 2011 to September 30, 2011 and the nine months ended September 30, 2012 has been derived from the unaudited condensed consolidated financial statements of the successor, included elsewhere in this prospectus. Our results for the nine months ended September 30, 2012 are not necessarily indicative of the results that can be expected for the full year or any future period.

The selected consolidated financial information should be read in conjunction with the sections of this prospectus captioned “Organizational Structure,” “Use of Proceeds,” “Capitalization,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the audited and unaudited consolidated financial statements and related notes included elsewhere in this prospectus.

 

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Table of Contents
    Successor           Predecessor        
    Nine Months
Ended
September 30,
    July 13 to
September 30,
    July 13 to
December 31,
          January 1
to July 12,
    Year Ended
December 31,
       
($ in thousands)   2012     2011     2011           2011     2010     2009     2008     2007        
    (unaudited)                                               (unaudited)        

Statement of Operations Data:

                       

Home closings revenue

  $ 829,221      $ 299,163      $ 731,216          $ 600,069      $ 1,273,160      $ 1,224,082        1,679,503      $ 1,860,515       

Land closings revenue

    36,102        6,177        10,657            13,639        12,116        24,967        65,123        77,121       

Financial services revenue

    13,705        3,384        8,579            6,027        12,591        13,415        —          —         
 

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

   

 

 

   

 

 

     

Total revenues

    879,028        308,724        750,452            619,735        1,297,867        1,262,464        1,744,626        1,937,636       

Cost of home closings

    663,656        239,740        591,891            474,534        1,003,172        1,003,694        1,430,276        1,604,867       

Cost of land closings

    27,881        5,477        8,583            7,133        6,028        17,001        79,530        29,959       

Inventory impairments

    —          —          —              —          4,054        78,241        430,891        517,487       

Financial services expenses

    7,667        2,071        4,495            3,818        7,246        6,269           
 

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

   

 

 

   

 

 

     

Operating gross margin

    179,824        61,436        145,483            134,250        277,367        157,259        (196,071     (214,677    

Sales, commissions, and other marketing costs

    52,230        14,342        36,316            40,126        85,141        100,534        136,730        138,270       

General and administrative expenses

    41,091        15,251        32,883            35,743        66,232        71,300        101,664        132,919       

Equity in net income of unconsolidated entities

    (11,497     (488     (5,247         (2,803     (5,319     (347     (2,739     (11,644    

Interest expense (income)—net

    —          —          (3,867         941        40,238        20,732        22,614        1,479       

Other income

    (1,655     —          (1,245         (11,783     (10,842     (24,465     (55,633     (49,536    

Other expense

    —          66        3,553            1,125        13,193        25,725        41,364        84,913       

Loss on extinguishment of debt

    7,853        —          —              —          —          —          —          —         

Transaction expenses

    —          38,278        39,442            —          —          —          —          23,192      

Indemnification loss

    13,063        (1,104     12,850            —          —          —          —          —         
 

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

   

 

 

   

 

 

     

Income (loss) before income taxes

    78,739        (4,909     30,798            70,901        88,724        (36,220     (439,511     (534,271    

Income tax (benefit) expense

    (3,090     8,500        4,031            20,881        (1,878     (35,396     (42,999     97,430       
 

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

   

 

 

   

 

 

     

Net income (loss)

    81,829        (13,409     26,767            50,020        90,602        (824     (396,512     (631,700    

Net (income) attributable to noncontrolling interests

    (72     (866     (1,178         (4,122     (3,235     (5,138     (7,976     (11,526    
 

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

   

 

 

   

 

 

     

Net income (loss) attributable to owners

  $ 81,757      $ (14,275   $ 25,589          $ 45,898      $ 87,367      $ (5,962   $ (404,488   $ (643,226    
 

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

   

 

 

   

 

 

     

 

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Table of Contents
($ in thousands)    September 30,
2012
(unaudited)
     2011      2010      2009      2008      2007  
                                        (unaudited)  

Balance Sheet Data (at period end):

                 

Cash and cash equivalents, excluding restricted cash

   $ 412,779       $ 279,322       $ 165,415       $ 189,032       $ 237,267       $ 145,411   

Land inventory

     1,275,763         1,003,482         1,073,953         979,562         1,072,147         1,809,935   

Total assets

     2,156,299         1,671,067         1,527,321         1,500,473         1,562,868         2,292,059   

Total debt

     798,161         567,020         601,126         925,863         1,048,535         1,281,894   

Total equity

     869,447         628,565         465,531         103,773         68,944         519,184   

 

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MANAGEMENT’S DISCUSSION AND ANALYSIS

OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The following management’s discussion and analysis of our financial condition and results of operations covers the nine months ended September 30, 2012 and September 30, 2011 and the years in the three-year period ended December 31, 2011.

The discussion and analysis of historical periods prior to July 12, 2011 do not reflect the significant impact of the Acquisition and Financing Transactions. You should read the following discussion together with the financial statements, including the unaudited pro forma consolidated financial information and related notes included elsewhere in this prospectus. This discussion contains forward-looking statements that are based on management’s current expectations, estimates and projections about our business and operations. The cautionary statements made in this prospectus should be read as applying to all related forward-looking statements whenever they appear in this prospectus. Our actual results may differ materially from those currently anticipated and expressed in such forward-looking statements as a result of a number of factors, including those we discuss under “Risk Factors” and elsewhere in this prospectus. You should read “Risk Factors” and “Special Note Regarding Forward-Looking Statements.”

In addition, all of the historical financial data presented in this “Management’s Discussion and Analysis of Financial Condition and Results of Operations” do not give effect to the Reorganization Transactions and therefore may not be representative of our financial condition for periods following the Reorganization Transactions and this offering. You should read “Prospectus Summary—Summary Historical And Pro Forma Consolidated Financial And Other Information,” “Unaudited Pro Forma Consolidated Financial Information” and “Selected Consolidated Financial Data.”

References to the information or results of “unconsolidated joint ventures” refer to our proportionate share of unconsolidated homebuilding joint ventures in Canada.

Business Overview

Upon completion of this offering, we will be the sixth largest public homebuilder in North America based on 2011 revenues as reported by Hanley Wood. Headquartered in Scottsdale, Arizona, we build single-family detached and attached homes and develop land, which includes lifestyle and master planned communities. We are proud of our legacy of more than 75 years in the homebuilding industry, having originally commenced homebuilding operations in 1936. We operate under our Taylor Morrison brand in the United States and under our Monarch brand in Canada.

Our business is organized into three geographic regions: East, West and Canada, which regions accounted for 46%, 36% and 18%, respectively, of our net sales orders (excluding unconsolidated joint ventures) for the nine months ended September 30, 2012. Our East region consists of our Houston, Austin, Dallas, North Florida and West Florida divisions. Because we added our Dallas operations through the acquisition of the assets of Darling on December 31, 2012, the historical results of operations presented in this section do not reflect the historical results of Darling for the periods discussed. Our West region consists of our Phoenix, Northern California, Southern California and Denver divisions. Our Canada region consists of our operations within the province of Ontario, primarily in the GTA and also in Ottawa and Kitchener-Waterloo, and offers both single-family and high-rise communities.

In all of our markets, we build and sell a broad and innovative mix of homes across a wide range of price points. Our emphasis is on designing, building and selling homes to move-up buyers. We are well-positioned in our markets with a top-10 market share (based on 2012 home closings through September 30, 2012 as reported by Hanley Wood and 2011 home sales as reported by Real Net Canada) in 15 of our 19 total markets.

During the nine months ended September 30, 2012, we closed 2,586 homes, comprised of 1,880 homes in the United States and 706 in Canada, including 204 homes in unconsolidated joint ventures, with an average sales price across North America of $347,000. During the same period, we generated $879.0 million in revenues,

 

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$81.8 million in net income and $125.1 million in Adjusted EBITDA (for a discussion of how we calculate Adjusted EBITDA and a reconciliation of Adjusted EBITDA to net income attributable to owners, see footnote 4 in “Prospectus Summary—Summary Historical and Pro Forma Consolidated Financial and Other Information”). In the United States, for the nine months ended September 30, 2012, our sales orders increased approximately 47% as compared to the same period in 2011, and we averaged 3.0 sales per active selling community per month compared to an average of 1.7 sales per active selling community per month for the same period in 2011. As of September 30, 2012, we offered homes in 122 active selling communities and had a backlog of 4,205 homes sold but not closed, including 903 homes in unconsolidated joint ventures, with an associated backlog sales value of approximately $1.5 billion.

In 2011, we closed 3,920 units, comprised of 2,327 units in the United States and 1,593 units in Canada, including 55 units in unconsolidated joint ventures, with a Company-wide average sales price of $347,000. During the same period, we generated $1.4 billion in revenues, $76.8 million in net income and $187.2 million in Adjusted EBITDA, in each case based on the arithmetically combined predecessor/successor periods. As of December 31, 2011, we offered homes in 135 active selling communities and had a backlog of 2,965 homes sold but not closed, including 781 in unconsolidated joint ventures, with an associated backlog sales value of approximately $982.5 million.

We generate revenue primarily through sales of detached and attached homes and condominium units as well as through sales of land and the operations of our mortgage subsidiary, TMHF. We recognize revenue on detached and attached homes when the homes are completed and delivered to the buyers. We recognize revenue on the majority of our high-rise condominiums at the time of occupancy. We also recognize revenue when buyer deposits are forfeited.

Our primary costs are the acquisition of land in various stages of development and the construction costs of the homes and condominiums we sell (including capitalized interest, real estate taxes and related development costs). Home construction costs are accumulated and charged to cost of sales based on the construction cost of the home being sold. Land acquisition, development, interest, taxes, overhead and condominium construction costs are allocated to homes and units using methods that approximate the relative sales value.

Unlike most of our public homebuilding peers, as of the date of the Acquisition in July 2011, the balance sheet carrying value of our entire U.S. and Canadian inventory was adjusted to fair market value. Giving effect to the Acquisition-related purchase accounting adjustments and previous impairments, the carrying value of our U.S. inventory represented 52% of its original cost. We believe the combination of disciplined inventory valuation, coupled with recent high-quality land acquisitions, results in a cost basis in land that will contribute to our continued profitability and strong margins.

Strategy

Because the housing market is cyclical, and home price movement between the peak and trough of the cycle can be significant, we seek to adhere to our core operating principles through these cycles to drive consistent long-term performance.

Based on our current land position, we expect to drive revenue by opening new communities from our existing land supply. Our land supply provides us with the opportunity to increase our community count on a net basis by approximately 20% in each of 2013 and 2014. We expect that most of the communities we will open during the next twelve months will be in our Phoenix, West Florida and Houston markets in response to increased demand by consumers in those markets.

Because a significant portion of our land supply was purchased at low price points during the recent downturn in the housing cycle and because our entire land inventory was adjusted to fair market value at the time of the Acquisition, we expect to continue our revenue growth and strong gross margin performance in our U.S. communities. We also benefit from increased diversification through our presence in the Canadian housing market, through Monarch Corporation, which in the past has generated consistent income and cash flow.

 

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Our land strategy in our East and West regions has historically been to acquire land that has attractive characteristics, including good access to schools, shopping, recreation and transportation facilities. In connection with our overall land inventory strategy, our management reviews these considerations, as well as other financial metrics, in order to decide the highest and best use of our land assets. Historically, land dispositions have not had a material effect on our overall results of operations, but may impact overall margins. We continue to combine our land development expertise with our homebuilding operations to increase the flexibility of our business, to enhance our margin performance and to control the timing of delivery of lots. Unlike many of our competitors, we are able to increase the value of our land portfolio through the zoning and engineering process by creating attractive land use plans and optimizing our use of land, which ultimately translates into greater opportunities to generate profits.

A primary operational strategy is to focus our offerings on targeted customer groups. Our goal is to identify the preferences of our target customer and demographic groups and offer them innovative, high-quality homes that are efficient and profitable to build. To achieve this goal, we conduct extensive market research to determine preferences of our customer groups.

Another primary operational strategy is to build aspirational homes for our customers and deliver superior customer service. We develop communities and build homes in which our target buyers aspire to live. In order to deliver aspirational homes, we purchase well-located land and focus on developing attractive neighborhoods and communities with desirable lifestyle amenities. Our efforts culminate in the design and construction of thoughtfully detailed homes utilizing high quality construction standards. We are committed to after-sales service that we believe will improve our brand recognition and encourage our customers to make referrals resulting in lower customer acquisition costs and increased home sales rates.

We will also seek to grow through selective acquisitions in both existing markets and new markets that exhibit positive long-term fundamentals. For example, on December 31, 2012 we acquired Darling, a Texas- based homebuilder, which gives us a presence in the Dallas market and expands our presence in the Houston market. See “Summary—Recent Developments.”

Factors Affecting Comparability of Results

You should read this Management’s Discussion and Analysis of our Financial Condition and Results of Operations in conjunction with our historical consolidated financial statements included elsewhere in this prospectus. Below are the period-to-period comparisons of our historical results and the analysis of our financial condition. In addition to the impact of the matters discussed in “Risk Factors,” our future results could differ materially from our historical results due to a variety of factors, including the following:

Liquidity

As a result of the Acquisition, our former parent Taylor Wimpey plc no longer provides financing support for our operations. We therefore rely on our ability to finance our operations by generating operating cash flows, borrowing under our Revolving Credit Facility and our existing Canadian credit facilities or accessing the debt and equity capital markets. We also rely on our independent ability to obtain performance, payment and completion surety bonds, and letters of credit to finance our projects. We believe that we can fund our current and foreseeable liquidity needs from the cash generated from operations and borrowings under our Revolving Credit Facility and our existing Canadian letter of credit facilities. See “—Overview of Capital Resources and Liquidity.”

The Acquisition and Financing Transactions and Basis of Presentation

On July 13, 2011, TMM and its subsidiaries acquired 100% of the issued share capital of TMC and Monarch Corporation for aggregate cash consideration of approximately $1.2 billion. The Acquisition has been accounted for as a purchase under ASC Topic 805, “ Business Combinations .” As a result of the change in

 

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ownership, our historical financial data for periods prior to the July 13, 2011 Acquisition (the predecessor periods) are derived from the historical financial statements of our predecessor, the North American business of Taylor Wimpey plc, which financial statements have been prepared using the historical cost basis of accounting that existed prior to the Acquisition. Our financial statements for periods from and after the July 13, 2011 Acquisition (the successor period) are derived from the financial statements of TMM, which already reflect adjustments made as a result of the application of purchase accounting in connection with the Acquisition. Therefore, the financial information for the predecessor periods is not comparable with that for the successor period.

In connection with the Acquisition, we incurred indebtedness, including $625.0 million of borrowings under the Sponsor Loan, $125.0 million of which was repaid through working capital in August 2011 pursuant to our recapitalization plan, $350.0 million of which was refinanced by the offering of the senior notes and $150.0 million of which was retired by the lenders and was contributed or transferred to a subsidiary of TMM in return for additional equity in TMM. We also have the ability to borrow under our Revolving Credit Facility and Canadian letter of credit facilities from time to time as warranted by business needs. Since we operated largely as a stand-alone company prior to the Acquisition, we have not incurred significant incremental general and administrative expenses as a result of the separation from Taylor Wimpey plc. Additional cost savings within the organization may be achieved in the future. However, we cannot accurately predict, and there can be no assurances as to, the extent of any such savings.

Certain results for 2011 are presented to reflect the arithmetically combined historical results from the predecessor period from January 1, 2011 to July 12, 2011 and the successor period from July 13, 2011 to December 31, 2011. This presentation may yield results that are not directly comparable on a period-to-period basis with those in predecessor periods because of differences in accounting basis due to the change of ownership resulting from the Acquisition. The cost of home closings and the cost of land closings were the only line items directly impacted in any material respect by the purchase accounting adjustments described below (although the effects of such adjustments are carried through to the items below such line items in our statement of operations). For purposes of this prospectus, however, we believe that it is most meaningful to present its results of operations for 2011 in this manner. The combined historical results for 2011 are not necessarily indicative of what the results for the period would have been had the Acquisition actually occurred as of January 1, 2011.

Home closings and land sales that occurred during the predecessor period do not reflect any purchase accounting adjustments to costs of home closings and costs of land closings, while home closings and land sales occurring during the successor period do reflect such purchase accounting adjustments to the cost of home closings and cost of land closings. The carrying values of home and land inventory were both increased and decreased in adjusting their carrying values to fair market value as of the closing of the Acquisition through the application of purchase accounting. Such adjustments may result in higher or lower costs of home and land closings in the successor period and future periods as compared to the predecessor period. The unaudited pro forma consolidated statement of operations does not make any purchase accounting adjustments to the cost of home closings and cost of land closings for transactions that occurred prior to the date of the Acquisition and as a result the unaudited pro forma consolidated statement of operations data for the year ended December 31, 2011 will not be fully comparable with either predecessor or successor periods. For the successor period from July 13, 2011 to September 30, 2011, the above-described purchase accounting adjustments increased our cost of home closings by $ 18.5 million and our cost of land closings by $0.0 million. For the successor period from July 13, 2011 to December 31, 2011, such adjustments increased our cost of home closings by $38.9 million and our cost of land closings by $0.9 million. For the successor period from January 1, 2012 to September 30, 2012, such adjustments increased our cost of home closings by $0.8 million and decreased our cost of land closings by $1.6 million.

You should read this Management’s Discussion and Analysis of Financial Condition and Results of Operations in conjunction with the information provided in “Prospectus Summary—Summary Historical and Pro Forma Consolidated Financial and Other Information,” “Unaudited Pro Forma Consolidated Financial Information” and our historical consolidated financial statements included in this prospectus.

 

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Non-GAAP Measures

In addition to the results reported in accordance with U.S. GAAP, we have provided information in this prospectus relating to “adjusted home closings gross margin,” “EBITDA,” “Adjusted EBITDA” and the results of “unconsolidated joint ventures.”

Results of unconsolidated joint ventures

References to the information or results of “unconsolidated joint ventures” refer to our proportionate share of unconsolidated joint ventures in Canada and are included as non-GAAP measures because they are accounted for under the equity method. We believe that such results are useful to investors as an indication of the level of business activity of our joint ventures in Canada as well as the potential for cash and revenue generation from those joint ventures.

Adjusted home closings gross margin

We calculate adjusted home closings gross margin from U.S. GAAP home closings gross margin by adding impairment charges attributable to the write-down of operating communities and the amortization of capitalized interest through cost of home closings. We believe this measure is relevant and useful to investors for evaluating our performance. This measure is considered a non-GAAP financial measure and should be considered in addition to, rather than as a substitute for, the comparable U.S. GAAP financial measure as measure of our operating performance. Although other companies in the homebuilding industry report similar information, the methods used may differ. We urge investors to understand the methods used by other companies in the homebuilding industry to calculate gross margins and any adjustments to such amounts before comparing our measures to that of such other companies.

Adjusted EBITDA

Adjusted EBITDA measures performance by adjusting net income (loss) to exclude interest, income taxes, depreciation and amortization (“EBITDA”), management fees for certain legal, administrative and other related back-office functions paid prior to the Acquisition to Taylor Wimpey plc, our former parent, and management fees to our Principal Equityholders following the Acquisition, land inventory impairments, lot option write-offs related to non-exercised lot options, stock option expenses related to stock options linked to the stock of Taylor Wimpey plc, non-cash compensation expenses, the reversal of the 2007 severance and restructuring accrual related to the merger of our predecessor companies (Taylor Woodrow and Morrison Homes), royalties for certain intellectual property rights paid to Taylor Wimpey plc prior to the Acquisition, expenses related to the early extinguishment of debt and transaction fees, expenses and indemnification losses related to the Acquisition. Management believes that the presentation of Adjusted EBITDA provides useful information to investors regarding our results of operations because it assists both investors and management in analyzing and benchmarking the performance and value of our business. Adjusted EBITDA provides an indicator of general economic performance that is not affected by fluctuations in interest rates or effective tax rates, or levels of depreciation or amortization. Accordingly, our management believes that this measurement is useful for comparing general operating performance from period to period. Furthermore, the agreements governing our indebtedness contain covenants and other tests based on metrics similar to Adjusted EBITDA. The method of calculating Adjusted EBITDA for the periods presented in this prospectus does not differ in any material respect from the method used for calculating Adjusted EBITDA for the corresponding periods, if they were used for purposes of our indebtedness covenants. Our indebtedness covenants are generally based on Adjusted EBITDA for the trailing twelve-month period, a period not presented in this prospectus. Nevertheless, based on conditions existing at the time of calculation, the calculation of Adjusted EBITDA for the indebtedness covenants may, in the future, include items (including items deemed non-recurring or unusual and certain pro forma cost savings) that are different from those that are currently reflected in the presentation of Adjusted EBITDA in this prospectus. Other companies may define Adjusted EBITDA differently and, as a result, our measure of Adjusted EBITDA may not be directly comparable to Adjusted EBITDA of other companies. Although we use Adjusted

 

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EBITDA as a financial measure to assess the performance of our business, the use of Adjusted EBITDA is limited because it does not include certain material costs, such as interest and taxes, necessary to operate our business. Adjusted EBITDA should be considered in addition to, and not as a substitute for, net income in accordance with U.S. GAAP as a measure of performance. Our presentation of EBITDA and Adjusted EBITDA should not be construed as an indication that our future results will be unaffected by unusual or nonrecurring items. Our EBITDA-based measures have limitations as analytical tools, and you should not consider them in isolation or as substitutes for analysis of our results as reported under U.S. GAAP. Some of these limitations are:

 

   

they do not reflect every cash expenditure, future requirements for capital expenditures or contractual commitments, including for the purchase of land;

 

   

they do not reflect the significant interest expense or the cash requirements necessary to service interest or principal payments on our debt;

 

   

although depreciation and amortization are non-cash charges, the assets being depreciated and amortized will often have to be replaced or require improvements in the future, and our EBITDA-based measures do not reflect any cash requirements for such replacements or improvements;

 

   

they are not adjusted for all non-cash income or expense items that are reflected in our statements of cash flows;

 

   

they do not reflect the impact of earnings or charges resulting from matters we consider not to be indicative of our ongoing operations;

 

   

they do not reflect limitations on our costs related to transferring earnings from our subsidiaries to us; and

 

   

other companies in our industry may calculate these measures differently than we do, limiting their usefulness as comparative measures.

Because of these limitations, our EBITDA-based measures should not be considered as measures of discretionary cash available to us to invest in the growth of our business or as measures of cash that will be available to us to meet our obligations. We compensate for these limitations by using our EBITDA-based measures along with other comparative tools, together with U.S. GAAP measurements, to assist in the evaluation of operating performance. These U.S. GAAP measurements include operating income (loss), net income (loss), cash flows from operations and cash flow data. We have significant uses of cash flows, including capital expenditures, interest payments, debt principal repayments, taxes and other non-recurring charges, which are not reflected in our EBITDA-based measures.

Our EBITDA-based measures are not intended as alternatives to net income (loss) as indicators of our operating performance, as alternatives to any other measure of performance in conformity with U.S. GAAP or as alternatives to cash flow provided by operating activities as measures of liquidity. You should therefore not place undue reliance on our EBITDA-based measures or ratios calculated using those measures. Our U.S. GAAP-based measures can be found in our consolidated financial statements and related notes included elsewhere in this prospectus.

 

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Results of Operations

The following table sets forth our results of operations for the periods indicated:

 

    TMHC     Successor           Predecessor  
    Pro Forma
Nine Months
Ended
September 30,

2012
    Pro Forma
Year Ended
December 31,

2011
    Nine Months
Ended
September 30,

2012
    July 13 to
September 30,

2011
    July 13 to
December 31,

2011
          January 1
to
July 12,

2011
    Year Ended
December 31,
 
(in thousands)                     2010     2009  
    (unaudited)     (unaudited)     (unaudited)                                      

Statement of Operations Data:

                   

Home closings revenue

  $ 829,221      $ 1,331,285      $ 829,221      $ 299,163      $ 731,216          $ 600,069      $ 1,273,160      $ 1,224,082   

Land closings revenue

    36,102        24,296        36,102        6,177        10,657            13,639        12,116        24,967   

Financial services revenue

    13,705        14,606        13,705        3,384        8,579            6,027        12,591        13,415   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Total revenues

    879,028        1,370,187        879,028        308,724        750,452            619,735        1,297,867        1,262,464   

Cost of home closings

    660,058        1,043,842        663,656        239,740        591,891            474,534        1,003,172        1,003,694   

Cost of land closings

    27,881        15,716        27,881        5,477        8,583            7,133        6,028        17,001   

Inventory impairments

    —          —          —          —          —              —          4,054        78,241   

Financial services expenses

    7,667        8,313        7,667        2,071        4,495            3,818        7,246        6,269   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Gross margin

    183,422        302,316        179,824        61,436        145,483            134,250        277,367        157,259   

Sales, commissions, and other marketing costs

    52,230        76,442        52,230        14,342        36,316            40,126        85,141        100,534   

General and administrative expenses

    37,347        66,304        41,091        15,251        32,883            35,743        66,232        71,300   

Equity in net income of unconsolidated entities

    (11,497     (8,050     (11,497     (488     (5,247         (2,803     (5,319     (347

Interest expense (income)—net

    —          (1,493     —          —          (3,867         941        40,238        20,732   

Other income

    (1,655     (13,028     (1,655     —          (1,245         (11,783     (10,842     (24,465

Loss on extinguishment of debt

    7,853        4,678        7,853                 

Other expense

    —          —          —          66        3,553            1,125        13,193        25,725   

Transaction expenses

    —          —          —          38,278        39,442            —          —          —     

Indemnification loss

    —          —          13,063        (1,104     12,850            —          —          —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

    91,656        177,463        78,739        (4,909     30,798            70,901        88,724        (36,220

Income tax (benefit) expense

    (507     40,065        (3,090     8,500        4,031            20,881        (1,878     (35,396
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Net income (loss)

    92,163        137,398        81,829        (13,409     26,767            50,020        90,602        (824

Net (income) attributable to noncontrolling interests

        (72     (866     (1,178         (4,122     (3,235     (5,138
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

Net income (loss) attributable to owners

  $ —        $ —        $ 81,757      $ (14,275   $ 25,589          $ 45,898      $ 87,367      $ (5,962
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

   

 

 

   

 

 

 

For additional information on pro forma adjustments, see “Unaudited Pro Forma Consolidated Financial Information.”

 

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Key Results

Key financial results as of and for the nine months ended September 30, 2012, as compared to the same period in 2011 (on an arithmetically combined predecessor/successor basis), were as follows:

 

   

Net sales orders, including unconsolidated joint venture net sales orders, increased 15% from 3,150 homes to 3,615 homes. Our East region increased from 1,282 homes to 1,613 homes, while our West region increased from 687 homes to 1,274 homes. Our Canada region, including our share of joint ventures, decreased from 1,181 to 727 homes.

 

   

Homes closed, including unconsolidated joint venture closings, decreased 4% from 2,696 homes to 2,587 homes, while the average selling price of those homes closed increased 3% to $347,000.

 

   

Total revenues (home closings, land closings and financial services) decreased 5%, from $928.5 million to $879.0 million.

 

   

Total gross margin decreased from 21.1% to 20.5%.

 

   

SG&A (including overhead on direct selling costs and other marketing costs) declined 11% from $105.5 million to $93.3 million, and SG&A as a percentage of total revenues declined from 11.4% to 10.6%.

 

   

No inventory impairments were recorded in 2012 or 2011.

 

   

Adjusted EBITDA was $125.1 million in the first nine months of 2012, compared to $128.2 million in the corresponding prior year period.

 

   

Sales order backlog, including unconsolidated joint venture backlog, increased 30% to $1.5 billion. This amount includes $547.4 million of high-rise closings scheduled to be completed after December 31, 2012.

 

   

Cash and cash equivalents totaled $412.8 million, compared to $279.3 million at December 31, 2011.

 

   

Total owned and controlled lots increased 10% to 34,965 lots as compared to December 31, 2011.

Nine Months Ended September 30, 2012 Compared to Nine Months Ended September 30, 2011

Data for the nine months ended September 30, 2011 represent the arithmetic sum of predecessor and successor results while data for the nine months ended September 30, 2012 represent successor results, except where noted.

Average Active Selling Communities

 

     Nine Months Ended September 30,  
         2012              2011              Change      

East

     74.2         92.3         (19.6 )% 

West

     33.6         37.2         (9.9

Canada

     14.1         15.9         (11.2
  

 

 

    

 

 

    

Subtotal

     121.9         145.4         (16.2

Unconsolidated joint ventures(1)

     6.7         4.7         42.9   
  

 

 

    

 

 

    

Total

     128.6         150.1         (14.4 )% 
  

 

 

    

 

 

    

 

(1) Represents the average number of total communities in which our joint ventures were actively selling during the period.

 

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Average active selling communities declined 14.4% from the nine months ended September 30, 2011 to the nine months ended September 30, 2012 with the largest decrease in the East Region, primarily due to the close out of some vintage selling communities during the normal course of business and the timing of new community openings coming to market. We expect to open new communities throughout all of our markets during 2013, mostly in our West Florida, Phoenix and Houston divisions. We expect to recognize home closings in 2013 from the communities we open during that period.

Net Sales Orders

 

    Nine Months Ended September 30,  
(in thousands, except units
data)(1)
  Net Homes Sold     Sales Value     Average Selling Price  
    2012     2011     Change     2012     2011     Change     2012     2011     Change  

East

    1,613        1,282        25.8   $ 525,875      $ 398,324        32.0   $ 326,000      $ 311,000        4.9

West

    1,274        687        85.4        448,807        237,425        89.0        352,000        346,000        1.9   

Canada

    613        1,077        (43.1     256,174        406,248        (36.9     418,000        377,000        10.8   
 

 

 

   

 

 

     

 

 

   

 

 

     

 

 

   

 

 

   

Subtotal

    3,500        3,046        14.9        1,230,856        1,041,997        18.1        352,000        342,000        2.8   

Unconsolidated joint ventures(2)

    115        104        10.1        24,074        24,140        2.1        215,000        232,000        (9.4
 

 

 

   

 

 

     

 

 

   

 

 

     

 

 

   

 

 

   

Total

    3,615        3,150        14.7      $ 1,254,930      $ 1,066,137        17.8      $ 347,000      $ 338,000        2.6   

Canada (CAD$)

    613        1,077        (43.1     256,456        397,192        (35.4     418,000        369,000        13.4   

Canada JV proportionate share (CAD$)

    115        104        10.1   $ 24,101      $ 23,602        2.1   $ 210,000      $ 227,000        (7.3 )% 

 

(1) Net sales orders represent the number and dollar value of new sales contracts executed with customers. High-rise sales are not recognized until a building is approved for construction. High-rise sales typically do not close in the year sold. Other sales are recognized after a contract is signed and the rescission period has ended.
(2) Includes only proportionate share of unconsolidated joint ventures.

Sales Order Cancellations—Units

 

     Nine Months Ended September 30,  
     Cancelled Sales Orders      Cancellation Rate(1)  
       2012          2011          2012         2011    

East

     294         240         15.4     15.8

West

     188         150         12.9        17.9   

Canada

     16         9         2.5        0.8   
  

 

 

    

 

 

      

Subtotal

     498         399         12.5        11.6   

Unconsolidated joint ventures(2)

     4         6         3.4        5.5   
  

 

 

    

 

 

      

Total

     502         405         12.2     11.4
  

 

 

    

 

 

      

 

  (1) Cancellation rate represents the number of cancelled sales orders divided by gross sales orders.
  (2) Includes only proportionate share of unconsolidated joint ventures.

The value of net sales orders, including those of unconsolidated joint ventures, increased by 17.8% to $1.3 billion (3,615 homes) in the nine months ended September 30, 2012, from $1.1 billion (3,150 homes) in the nine months ended September 30, 2011. The number of net sales orders, including those of unconsolidated joint ventures, increased 14.7% in the nine months ended September 30, 2012 compared to the nine months ended September 30, 2011. These results were impacted by the strong spring and summer selling seasons in 2012, during which we benefited from higher selling prices as consumers in the market gained confidence in the values present in the marketplace. The apparent settling and recovery of the market in the United States in areas such as

 

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Phoenix, West Florida and Northern California bolstered the number of units and value for the nine months ended September 30, 2012. The Canada region experienced a decline of 464 units in net new homes sold in the nine months ended September 30, 2012 when compared to the same period last year, which is attributable to the lower number of wholly owned open communities in the region in the nine months ended September 30, 2012, product mix and 250 fewer high-rise units sold due to timing of building launches.

Our annual sales order cancellations, including those of unconsolidated joint ventures, increased due to increases in sales volume, from 405 in the nine months ended September 30, 2011 to 502 in the nine months ended September 30, 2012. The cancellation rate however remained relatively flat at 12.2% for 2012 compared to 11.4% in 2011. Our continued scrutiny of potential buyers and use of prequalification strategies helps us maintain a low cancellation rate.

We expect that, to the extent economic and housing market conditions improve in the markets in which we operate, net homes sold and aggregate sales value will increase. Average selling price is dependent to a large degree on which communities are being actively sold.

Sales Order Backlog

 

     As of September 30,  

(in thousands, except

units data)(1)

   Homes in Backlog     Sales Value     Average Selling Price  
     2012      2011      Change     2012      2011      Change     2012      2011      Change  

East

     1,008         649         55.3   $ 362,482       $ 223,600         62.1   $ 360       $ 345         4.4

West

     739         295         150.5        263,805         102,256         158.0        357         347         3.0   

Canada

     1,555         1,491         4.3        527,957         547,195         (3.5     340         367         (7.5
  

 

 

    

 

 

      

 

 

    

 

 

            

Subtotal

     3,302         2,435         35.6      $ 1,154,244       $ 873,051         32.2      $ 350       $ 359         (2.5

Unconsolidated joint ventures(2)

     903         775         16.6        317,939         256,708         23.9        352         331         6.2   
  

 

 

    

 

 

      

 

 

    

 

 

            

Total

     4,205         3,210         31.0      $ 1,472,183       $ 1,129,759         30.3      $ 350       $ 352         (0.5
  

 

 

    

 

 

      

 

 

    

 

 

            

Canada (CAD$)

     1,555         1,491         4.3        517,047         565,168         (3.4     333         379         (7.3

Canada JV proportionate share (CAD$)

     903.5         775.0         16.6   $ 311,369       $ 265,140         17.4   $ 345       $ 342         0.7

 

(1) Sales order backlog represents homes under contract for which revenue has not yet been recognized at the end of the period. Some of the contracts in our sales order backlog are subject to contingencies including mortgage loan approval and buyers selling their existing homes, which can result in cancellations.
(2) Reflects our proportionate share of unconsolidated joint ventures.

Our homes in backlog at September 30, 2012 increased by 31.0% from September 30, 2011. Our backlog of 4,206 homes was valued at $1.5 billion as compared to 3,210 homes at September 30, 2011 valued at $1.1 billion. Backlog increased as the business continued to recognize improved sales performance in most of our communities beyond the historical spring selling season and relieved pent-up consumer demand in some of our markets.

 

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Home Closings Revenue

 

     Nine Months Ended September 30,  

(in thousands, except

units data)(1)

   Homes Closed     Sales Value     Average Selling Price  
     2012      2011      Change     2012      2011      Change     2012      2011      Change  

East

     1,072         943         13.7   $ 334,898       $ 264,287         26.7   $ 312       $ 280         11.5

West

     808         585         38.1        273,502         199,942         36.8        338         342         (1.0

Canada

     502         1,149         (56.3     220,822         435,003         (49.2     441         379         16.5   
  

 

 

    

 

 

      

 

 

    

 

 

            

Subtotal

     2,382         2,677         (11.0   $ 829,221       $ 899,232         (7.7   $ 348       $ 336         3.7   

Unconsolidated joint ventures(2)(3)

     205         19         976.3        68,642         11,700         486.7        336         616         (45.5
  

 

 

    

 

 

      

 

 

    

 

 

            

Total

     2,587         2,696         (4.1   $ 897,863       $ 910,932         (1.4   $ 347       $ 338         2.8   
  

 

 

    

 

 

      

 

 

    

 

 

            

Canada (CAD$)

     502         1,149         (56.3     221,028         425,306         (47.9     440         369         18.9   

Canada JV proportionate share (CAD$)

     204.5         19         976.3   $ 68,718       $ 11,439         500.7   $ 336       $ 602         (44.0 )% 

 

(1) Home closings revenue represents homes where possession has transferred to the buyer.
(2) Reflects our proportionate share of unconsolidated joint ventures. In 2011 we closed two wholly owned buildings, while in 2012 only a portion of a single joint venture tower contributed to closings.
(3) Unconsolidated joint venture revenue is not reported as revenue but is recognized as a component of income of unconsolidated entities. Included here on a non-GAAP basis for information purposes only.

Home closings revenue, including unconsolidated joint venture home closings revenue, decreased 1.4% to $897.8 million in the nine months ended September 30, 2012, from $910.1 million in the nine months ended September 30, 2011. Home closings revenue declined in the nine months ended September 30, 2012 to $829.2 million, from $899.2 million in the nine months ended September 30, 2011. The average selling price of homes closed (including unconsolidated joint ventures) during the nine months ended September 30, 2012 was $347,000 up 2.8% from the $338,000 average in the nine months ended September 30, 2011. Revenues were negatively impacted in the first nine months of 2012 due to the timing and nature of high rise closings. In the first nine months of 2011, we closed two wholly owned joint venture high-rise buildings, which accounted for more than $100 million in revenue on 468 closed units, compared to the first nine months of 2012, when we only recognized $8.1 million of revenue from wholly owned high-rise units and had only one joint venture high-rise building close, which revenue was recorded as a component of income of unconsolidated entities and not included in homebuilding revenue. In addition, some markets in which we operate have experienced a robust recovery in recent months. In particular, the Phoenix and West Florida markets have experienced a recovery although their product mix recognized in the period was at a lower price point than our overall average sales price. Also, during the first nine months of 2012, we closed out of vintage communities with higher margins in our West and East regions. These changes in our geographic and product mix have resulted in lower home closings revenue as well as lower home closings gross margins in the first nine months of 2012, compared to the first nine months of 2011. The lower home closings revenue and gross margins we recognized result from a higher portion of sales attributable to deliveries in markets such as Phoenix and Florida, where the average sales price and specification levels of our homes generally result in lower margins than in other markets in which we operate.

Land Closings Revenue

 

     Nine Months Ended
September 30,
 
($ in thousands)    2012      2011      Change  

East

   $ 20,531       $ 19,496         5.3

West

     4,286         320         —     

Canada

     11,205         —           —     
  

 

 

    

 

 

    

Total

   $ 36,102       $ 19,816         82.2
  

 

 

    

 

 

    

 

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Land closings revenue increased 82.2% to $36.1 million in the nine months ended September 30, 2012, from $19.8 million in the nine months ended September 30, 2011. Land and lot sales occur at unpredictable intervals and varying degrees of profitability. We generally purchase land and lots with the intent to build and sell homes on them. Nevertheless, in some locations where we act as a developer, we occasionally purchase land that includes commercially zoned parcels, which we typically sell to commercial developers, and we also sell residential lots or land parcels to manage our land and lot supply. Land and lot sales occur at various intervals and varying degrees of profitability. Therefore, the revenue and gross margin from land closings fluctuate from period to period.

Home Closings Gross Margin

The following table sets forth a reconciliation between our home closings gross margin and our adjusted home closings gross margin. In this section, we present adjusted home closings gross margin on a consolidated and on a segment basis. Adjusted home closings gross margin is a non-GAAP financial measure calculated based on our home closings gross margin, excluding impairments and capitalized interest amortization. See “—Non-GAAP Measures—Adjusted Home Closings Gross Margin.”

 

     Successor      Combined      Successor            Predecessor  
($ in thousands)    Nine Months
Ended
September 30,
2012
     Nine Months
Ended
September 30,
2011
     July 13 to
September 30,
2011
           January 1 to
July 12,
2011
 

Home closings revenue

   $ 829,221       $ 899,232       $ 299,163           $ 600,069   

Home closings cost of revenues and impairments(a)

     663,656         714,274         239,740             474,534   
  

 

 

    

 

 

    

 

 

        

 

 

 

Home closings gross margin

     165,565         184,958         59,423             125,535   

Impairments

     —           —           —               —     

Capitalized interest amortization

     17,926         20,238         1,273             18,965   
  

 

 

    

 

 

    

 

 

        

 

 

 

Adjusted home closings gross margin

   $ 183,491       $ 205,196       $ 60,696           $ 144,500   
  

 

 

    

 

 

    

 

 

        

 

 

 

Home closings gross margin

     20.0%         20.6%         19.9%             20.9%   

Adjusted home closings gross margin

     22.1%         22.8%         20.3%             24.1%   

 

(a) Includes impairments attributable to write-downs of operating communities and interest amortized through cost of home closings.

Our home closings gross margin decreased in the nine months ended September 30, 2012 to $165.6 million, from $185.0 million in the nine months ended September 30, 2011. The earned housing profit recognized in connection with the Acquisition impacted the first nine months of 2012 by $15.6 million of margin that would have been contributed to 2012, compared to $22.8 million for the 2011 period. As a percentage of revenue, our home closings gross margin decreased 50 basis points, to 20.0% in the nine months ended September 30, 2012 from 20.6% in the nine months ended September 30, 2011. The decrease in home closings gross margin was due to our increased closings in the nine months ending September 2012, which were concentrated in markets such as Phoenix and West Florida, where we generally recognize lower margins due to lower consumer price points and specification levels. In the prior year period, many closings were generated from our Houston and Austin divisions, which have higher price points and specification levels.

Adjusted home closings gross margin decreased by 10.6% to $183.5 million in the nine months ended September 30, 2012, from $205.2 million in the nine months ended September 30, 2011, and as a percentage of home closings revenue decreased 70 basis points, to 22.1%. The decrease in adjusted home closings gross margin was due to product mix, which shifted from markets with higher margins such as those in Houston and Austin to markets with lower margins such as Phoenix and West Florida.

 

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East Region

The following table sets forth a reconciliation between our East region home closings gross margin and our East region adjusted home closings gross margin. See “—Non-GAAP Measures—Adjusted Home Closings Gross Margin.”

 

     Successor     Combined     Successor            Predecessor  
($ in thousands)    Nine Months
Ended
September 30,
2012
    Nine Months
Ended
September 30,
2011
    July 13 to
September 30,
2011
           January 1 to
July 12,
2011
 

East region closings revenue

   $ 334,898      $ 264,287      $ 84,759           $ 179,528   

East region closings cost of revenues and impairments(a)

     268,642        213,242        69,205             144,037   
  

 

 

   

 

 

   

 

 

        

 

 

 

East region closings gross margin

     66,256        51,045        15,554             35,491   

Impairments

     —          —          —               —     

Capitalized interest amortization

     6,164        7,593        270             7,323   
  

 

 

   

 

 

   

 

 

        

 

 

 

East region adjusted home closings gross margin

   $ 72,420      $ 58,638      $ 15,824           $ 42,814   
  

 

 

   

 

 

   

 

 

        

 

 

 

East region closings gross margin

     19.8     19.3     18.4          19.8

Adjusted home closings gross margin

     21.6     22.2     18.7          23.8

 

(a) Includes impairments attributable to write-downs of operating communities and interest amortized through cost of home closings.

For the nine months ended September 30, 2012, home closings revenue in the East region increased by 26.7% compared to the nine months ended September 30, 2011, driven by an increase in home closing units of 13.7% to 1,072 units, compared to 943 units the same period of 2011. Average home closings sales price in the East region increased to $312,000, from $280,000 a year earlier. Net homes sold increased by 25.8% to 1,613 units, compared to 1,282 units a year ago, driving sales order value higher by 32.0% to $525.9 million compared to $398.3 million for the nine months ended September 30, 2011 with an average sales price increasing by $15,000, or 4.9%. The number of average active selling communities in the East region was 19.6% lower than the same period last year as the region was able to close out of several legacy communities as market conditions improved. The East region also had an increase in the average monthly sales pace to 2.4 homes per community in the first nine months of 2012, from 1.5 homes per community for the first nine months of 2011. Sales order cancellation rates were 15.4% and 15.8% for the nine months ended September 30, 2012 and 2011, respectively. Overall, the improvement in East region home closings revenue, sales prices and sales pace has been due primarily to our well-located land positions and were consumer-driven offerings. Management in the region continues to market its offerings and diligently look to reduce incentives and increase sales prices as market conditions allow.

Land revenue in the East region was $20.5 million compared to $19.5 million for the nine months ended September 30, 2012 and 2011, respectively. Land sales during the quarter were the result of planned dispositions and strategic opportunities to monetize those assets where the highest and best use warranted sale.

During the nine months ended September 30, 2012, home closings gross margin for the East region was 19.8%, compared to 19.3% for the first nine months of 2011. East region adjusted home closings gross margin was 21.6% in the nine months ended September 30, 2012 compared to 22.2% for the nine months ended September 30, 2011. The decrease in home closings gross margin and adjusted home closings gross margin was due to a change in product mix, due in large part to the recovery of certain markets in West Florida, which tend to generate lower margins within the region during the period. During the prior year period, we did not experience a recovery in some of our Florida markets, which generally only began to recover in 2012. In the prior

 

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period, our Texas markets were producing a larger portion of our gross margin, because in those markets the average sales price and specification level of many homes sold are above those in our Florida markets. To the extent that the overall U.S. economic recovery and, in particular, the housing market recovery in our East region markets continues, we expect that our margin performance will continue to be favorable.

West Region

The following table sets forth a reconciliation between our West region home closings gross margin and our West region adjusted home closings gross margin. See “—Non-GAAP Measures—Adjusted Home Closings Gross Margin.”

 

     Successor     Combined     Successor            Predecessor  
($ in thousands)    Nine Months
Ended
September 30,
2012
    Nine Months
Ended
September 30,
2011
    July 13 to
September 30,
2011
           January 1 to
July 12, 2011
 

West region closings revenue

   $ 273,501      $ 199,942      $ 57,684           $ 142,258   

West region closings cost of revenues and impairments(a)

     230,770        172,311        49,843             122,468   
  

 

 

   

 

 

   

 

 

        

 

 

 

West region closings gross margin

     42,731        27,631        7,841             19,790   

Impairments

     —          —          —               —     

Capitalized interest amortization

     6,033        10,970        216             10,754   
  

 

 

   

 

 

   

 

 

        

 

 

 

West region adjusted home closings gross margin

   $ 48,764      $ 38,601      $ 8,028           $ 30,544   
  

 

 

   

 

 

   

 

 

        

 

 

 

West region closings gross margin

     15.6     13.8     13.6          13.9

Adjusted home closings gross margin

     17.8     19.3     14.0          21.5

 

(a) Includes impairments attributable to write-downs of operating communities and interest amortized through cost of home closings.

The West region closed 223 more units in the nine months ended September 30, 2012 than in the same period last year. This increase in units closed resulted in an additional $73.6 million of home closings revenue during the nine months ended September 30, 2012, compared to the nine months ended September 30, 2011, despite a slight drop in average home closings sales prices of 1.0% compared to the same period a year ago. The West region has experienced the largest increase in net sales of all of our segments when comparing the nine months ended September 30, 2012 and 2011 recognizing that a number of markets in the West region experienced artificially low demand during the market downturn. We sold 1,274 units in the West region in the nine months ended September 30, 2012, which represents an 85.4% increase compared to last year. Net sales order value increased to $448.8 million from $237.4 million, or 89.0% higher, when comparing the nine months ended September 30, 2012 to the nine months ended September 30, 2011, respectively. The average selling price increased 1.9%, or $6,000, in the nine months ended September 30, 2012 compared to the same nine month period last year. The number of average active selling communities in the West region declined 9.9% when compared to the same nine month period last year. The average sales per outlet per month for the nine months ending September 30 2011 and 2012 were 2.1 and 4.2, respectively. Overall, during the nine months ended September 30, 2012, revenues and sales pace improved in the West region compared to the same period in 2011 primarily due to housing market recoveries in the Phoenix and Northern California markets.

Land revenue in the West region was $4.3 million compared to $0.3 million for the nine months ended September 30, 2012 and 2011, respectively. Land sales during the quarter were the result of planned dispositions and strategic opportunities to monetize those assets where the highest and best use warranted sale.

During the nine months ended September 30, 2012, home closings gross margin for the West region was 15.6%, compared to 13.8% for the first nine months of 2011. Adjusted home closings gross margin in the West region dropped by 150 basis points when comparing the nine months ended September 30, 2012 to the nine

 

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months ended September 30, 2011. The decline in adjusted home closings gross margin as a percentage of closing revenue and home closings gross margin as a percentage of closing revenue was driven primarily by the increase in the proportion of home closings in our Phoenix market (which typically generates lower margins) in our total closings for the region. In our West region, we experienced a higher gross margin and numbers of deliveries in our Northern California market during the 2011 period. In the 2012 period, deliveries were more concentrated in our lower margin Phoenix market. Nonetheless, the market recovery that we have seen in the recent period in Phoenix had a significant impact on gross margin in the region during the 2012 period, even while our 2012 gross margin as a percentage of revenue was lower than in 2011. If the recovery in our West region markets continues, we expect that our margin performance will continue to be favorable.

Canada Region

The following table sets forth a reconciliation between our Canada home closings gross margin and our Canada adjusted home closings gross margin. See “—Non-GAAP Measures—Adjusted Home Closings Gross Margin.”

 

     Successor     Combined     Successor           Predecessor  
($ in thousands)    Nine
Months
Ended
September  30,
2012
    Nine
Months
Ended
September  30,
2011
    July 13 to
September 30,
2011
          January 1 to
July 12, 2011
 

Canada region closings revenue

   $ 220,822      $ 435,003      $ 156,720          $ 278,283   

Canada region closings cost of revenues and impairments(a)

     164,243        328,648        120,692            207,956   
  

 

 

   

 

 

   

 

 

       

 

 

 

Canada region closings gross margin

     56,579        106,355        36,028            70,327   

Impairments

     —          —          —              —     

Capitalized interest amortization

     5,729        1,640        816            824   
  

 

 

   

 

 

   

 

 

       

 

 

 

Canada adjusted home closings gross margin

   $ 62,308      $ 107,995      $ 36,844          $ 71,151   
  

 

 

   

 

 

   

 

 

       

 

 

 

Canada region closings gross margin

     25.6     24.4     23.0         25.3

Adjusted home closings gross margin

     28.2     24.8     23.5         25.6

 

(a) Includes impairments attributable to write-downs of operating communities and interest amortized through cost of home closings.

Canada region home closings revenue for the nine months ended September 30, 2012 decreased by 49.2%, to $220.8 million, compared to $435.0 million for the nine months ended September 30, 2011. The number of home closings units in the first nine months of 2012 decreased by 56.3% compared to the first nine months of 2011. Canada region revenues and number of closings were affected by timing of high-rise closings. In the first nine months of 2011, we closed two wholly owned high-rise buildings which accounted for more than $100 million in revenue on 468 closed units, while in the first nine months of 2012, we only recognized $8.1 million of revenue from wholly owned high-rise units and only had a single joint venture high-rise building close, which was included as a component of net income of unconsolidated entities and not included in homebuilding revenue. The average home closings sales price was 16.4% higher for the nine months ended September 30, 2012 when compared to the same period last year. This increase was due to a product mix shift into a larger number of single-family detached homes during 2012, which have higher average sale prices compared to high-rise closings, which were a larger component of our 2011 closings. The Canada region experienced a decline of 464 units in net new homes sold in the nine months ending September 30, 2012 when compared to the same period last year, which is attributable to the number of open communities in the region and product mix. The average sales per community per month were 4.8 and 7.5 for the nine months ended September 30, 2012 and 2011, respectively. We continue to focus on our margin over volume approach to selling in our communities. Average sales price increased by $41,000, or 10.8%, and average sales value declined 36.9% when comparing the nine

 

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months ended September 30, 2012 to the nine months ended September 30, 2011, respectively. The decline in home sales from fewer wholly owned communities and a product mix change have contributed to the reduced sales values during 2012. Our total sales value was $256.2 million compared to $406.2 million a year earlier.

Land closings revenue for the Canada region was $11.2 million in the nine months ended September 30, 2012, while there was no land closings revenue for the nine months ended September 30, 2011. We made these land sales as part of our land management strategy when determining the highest and best use of the property.

Third quarter 2012 home closings gross margin for the Canada region was 25.6%, compared to 24.4% for the 2011 third quarter. The adjusted home closings gross margin for the Canada region was 340 basis points higher in the first nine months of 2012, when compared to the same nine month period one year ago due to the shift into higher margin single-family detached and attached homes from high-rise closings, which represented a significant portion of total home closings in the nine months ending September 30, 2011. The increase in gross margin during 2012 was attributable to the mix of product delivered to our consumers. In 2011 a larger number of multi-family homes were delivered, which yielded a lower gross margin percentage compared to the single-family offerings. Currently we anticipate, in light of slowing job growth in Ontario relative to the recent past, ongoing global economic uncertainty and increasing units under construction, that growth in the Ontario housing market will moderate in the near term.

 

     Successor     Combined     Successor     Predecessor  
($ in thousands)    Nine Months
Ended
Sept. 30,
2012
    Nine Months
Ended
September 30,
2011
    July 13 to
September 30,
2011
    January 1
to July 12,
2011
 

West

   $ 4,286        —          —          —     

East

     20,531      $ 19,693      $ 19,693        —     

Canada

     11,285        320        —        $ 320   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total land revenue

     36,102        20,013        19,693        320   

Land cost of sales

     27,881        8,527        8,526        1   
  

 

 

   

 

 

   

 

 

   

 

 

 

Land gross margin

     8,221        11,486        11,167        319   

Impairments

     —          —          —          —     

Capitalized interest

     1,294        —          —          —     
  

 

 

   

 

 

   

 

 

   

 

 

 

Adjusted land margin

   $ 9,515      $ 11,486      $ 11,167      $ 319   

Land margin %

     22.77     57.3     56.7     99.6

Adjusted land margin %

     26.36     57.3     56.7     99.6

 

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Financial Services

Our Financial Services segment provides mortgage lending through TMHF and title services in certain markets and is highly dependent on our sales and closings volumes. Our Financial Services segment’s revenue increased from $9.4 million in the nine months ended September 30, 2011 to $13.7 million in the nine months ended September 30, 2012. The increase in gross margin was driven primarily by an increase in closings volume and average loan amount, from 1,004 and $249,700, respectively, in the nine months ended September 30, 2011, to 1,292 and $255,200, respectively, in the nine months ended September 30, 2012.

 

     Successor     Combined     Successor     Predecessor  
($ in thousands)    Nine Months
Ended
Sept. 30,
2012
    Nine Months
Ended
September 30,
2011
    July 13 to
September 30,
2011
    January 1
to July 12,
2011
 

Financial services revenue

   $ 13,705      $ 9,411      $ 3,384      $ 6,027   
  

 

 

   

 

 

   

 

 

   

 

 

 

Financial services cost of sales

     7,667        5,889        2,071        3,818   
  

 

 

   

 

 

   

 

 

   

 

 

 

Financial services gross margin

     6,038        3,522        1,313        2,209   

Impairments

     —          —          —          —     

Other

     —          —          —          —     
  

 

 

   

 

 

   

 

 

   

 

 

 

Adjusted financial services margin

   $ 6,038      $ 3,522      $ 1,313      $ 2,209   

Financial services margin %

     44.06     37.4     38.8     36.6

Adjusted financial services margin %

     44.06     37.4     38.8     36.6

Volume of loans

     1,276        992        339        653   

Average loan amount

     255,268        245,013        248,141        243,449   

Sales, Commissions and Other Marketing Costs

For the nine months ended September 30, 2012 and 2011, sales, commissions, and other marketing costs such as advertising and sales office expenses were $52.2 million and $54.5 million, respectively, reflecting fewer closings in the first nine months of 2012.

General and Administrative Expenses

For the nine months ended September 30, 2012, general and administrative expenses were $41.1 million as compared to $51.0 million in the same period in 2011, a 19.4% decrease in general and administrative expenses as a percentage of total home closings revenue decreased to 5.0% in the nine months ended September 30, 2012, compared to 5.7% in the same period in 2011 due in part to certain one-time reversals of legal reserves of $9.1 million from a favorable litigation settlement, during the first nine months of 2012 as well as our diligent cost containment strategy as we actively pursue synergies within the business and were therefore able to reduce professional consulting fee expenses.

Equity in Net Income of Unconsolidated Entities

Equity in net income of unconsolidated entities was $11.5 million for the nine months ended September 30, 2012 compared to $3.3 million for the nine months ended September 30, 2011. The variance in income was due to the timing and progress of joint venture projects, particularly the closing of high-rise condominiums in the Canada region which began its occupancy during the first nine months of 2012 and will conclude by the end of 2012.

Interest Expense (Income)

Interest expense represents interest incurred but not capitalized on our long-term debt and other borrowings. Purchase accounting from the Acquisition eliminated the accumulated capitalized interest on the balance sheet as of the Acquisition date. During the nine months ended September 30, 2012 and 2011, there was no

 

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non-capitalizable interest expense, as the amount of average qualified production assets supported full capitalization of the interest incurred. Interest income decreased in the first nine months of 2012 by $1.6 million, compared to the same period in 2011. While we had a higher level of cash and cash equivalents during the first nine months of 2012 than in the same period of 2011, Taylor Wimpey plc paid interest on certain cash deposits it held on our behalf in the 2011 period, which did not occur in 2012.

Other Income (Expense), net

During the nine months ended September 30, 2012 we recognized revenue from golf course memberships of $2.1 million which was offset by mothballed community expenses of $1.9 million along with other amounts to record $0.8 million of other income, net. For the first nine months of 2011, there were $1.3 million of golf course revenues and $7.8 million of insurance recoveries from our captive insurance company, offset by mothballed community carrying expenses of $1.9 million and other miscellaneous income items resulting in other income, net of $9.6 million.

Loss on Extinguishment of Debt

During the first nine months of 2012, we prepaid $350.0 million of the Sponsor Loan with proceeds from the senior notes. The remaining $150.0 million of the Sponsor Loan was exchanged for equity interests. The Sponsor Loans that were retired had been borrowed at a discount of 2.5%, so the $7.9 million of unamortized portion of the discount was written off during the first nine months of 2012 to expense.

Income Tax

Income tax expense for the nine months ended September 30, 2012 was $0.2 million compared to income tax expense of $29.4 million for the comparable period in 2011. Our Canadian operations generated taxable income in each period and recorded tax expense at their effective rate. The U.S. operations recorded benefits primarily related to reversal of prior uncertain tax positions under ASC Topic 740, “ Income Taxes ” that became effectively settled during the periods and expense related to interest on those uncertain positions.

Year Ended December 31, 2011 Compared to Year Ended December 31, 2010

Data for 2011 is presented on an arithmetically combined predecessor/successor basis, except where noted.

Average Active Selling Communities

 

     2011      2010      % Change  

East

     82.6         79.2         4.3

West

     37.6         48.1         (21.9

Canada

     14.4         15.6         (7.7
  

 

 

    

 

 

    

Subtotal

     134.6         143.0         (5.9

Unconsolidated joint ventures(1)

     5.3         5.8         (8.7
  

 

 

    

 

 

    

Total

     139.8         148.7         (6.0 )% 
  

 

 

    

 

 

    

 

(1) Represents the average number of total communities in which our joint ventures were actively selling over such time period.

Average active selling communities declined 6.0% from 2010 to 2011 with the largest decrease in the West, primarily related to closeout communities as part of our repositioning of the land portfolio out of less desirable submarkets. These dispositions were consistent with our overall land inventory strategy. See “—Strategy.”

 

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Net Sales Orders

 

    Net Sales Orders(1)
Year Ended
December 31,
 
    Net Homes Sold     Value (in thousands)     Average Selling Price
(in thousands)
 
    2011     2010     % Change     2011     2010     % Change     2011     2010     % Change  

East

    1,617        1,405        15.1   $ 498,445      $ 366,102        36.1   $ 308      $ 261        18.3

West

    947        914        3.6        320,907        290,198        10.6        339        318        6.7   

Canada

    1,420        1,028        38.1        512,037        448,938        14.1        361        437        (17.4
 

 

 

   

 

 

     

 

 

   

 

 

         

Subtotal

    3,984        3,347        19.0        1,331,389        1,105,238        20.5        334        330        1.2   

Unconsolidated joint ventures(2)

    145        343        (57.7     32,876        55,961        (41.3     227        163        38.8   
 

 

 

   

 

 

     

 

 

   

 

 

         

Total

    4,129        3,690        11.9   $ 1,364,265      $ 1,161,199        17.5   $ 330      $ 315        5.0
 

 

 

   

 

 

     

 

 

   

 

 

         

 

     Sales Order Cancellations
Year Ended December 31,
 
     Cancelled Sales Orders      Cancellation Rate(3)  
     2011      2010      2011     2010  

East

     319         403         16.5     22.3

West

     194         217         17.0        19.2   

Canada

     12         24         0.8        2.3   
  

 

 

    

 

 

      

Subtotal/weighted average

     525         644         11.6        16.1   

Unconsolidated joint ventures(2)

     2         1         1.4        0.3   
  

 

 

    

 

 

      

Total/weighted average

     527         645         11.3     14.9
  

 

 

    

 

 

      

 

(1) Net sales orders represent the number and dollar value of new sales contracts executed with customers (gross sales orders), net of cancelled sales orders. High-rise sales are not recognized until a building is approved for construction. High-rise sales typically do not close in the year sold.
(2) Includes only our proportionate share of unconsolidated joint ventures.
(3) Cancellation rate represents the number of cancelled sales orders divided by gross sales orders.

The value of net sales orders, including unconsolidated joint ventures net sales orders, increased 17.5%, to $1,364.3 million (4,129 homes) in 2011, from $1,161.2 million (3,690 homes) in 2010. The number of net sales orders, including unconsolidated joint venture net sales orders, increased 11.9% in 2011 compared to 2010. These results were impacted by increased levels of affordability resulting from lower home sales prices, recent declines in the number of new homes available for sale and a low mortgage interest rate environment. Our net sales increased despite the U.S. federal government’s monetary and fiscal policies and programs, including the federal homebuyer tax credit, which accelerated sales demand during the first half of 2010.

The value of net sales orders increased in the United States largely due to changes in product mix. The average price in 2011 was $319,560, an increase of 12.9% from the $283,010 average in 2010, due to a shift in product mix to higher priced homes.

Our annual sales order cancellation rate, including unconsolidated joint ventures, improved to 11.3% in 2011 from 14.9% in 2010. The improvement was generally a result of an overall improvement in our mortgage qualification process and the improved financial position of our homebuyers.

In Canada, the cancellation rate continues to be negligible due to non-refundable deposit structures and full recourse remedies in our homebuyers’ contracts as well as the effects of market conditions.

 

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Sales Order Backlog

 

     Sales Order Backlog(1)
As of December 31,
 
     Homes in Backlog     Value (in thousands)     Average Selling Price
(in thousands)
 
     2011      2010      % Change     2011      2010      % Change     2011      2010      % Change  

East

     467         310         50.6   $ 170,085       $ 103,483         64.4   $ 364       $ 334         9.1

West

     273         193         41.5        89,306         67,020         33.3        327         347         (5.8

Canada

     1,444         1,562         (7.6     473,675         542,783         (12.7     328         347         (5.6
  

 

 

    

 

 

      

 

 

    

 

 

            

Subtotal

     2,184         2,065         5.8        733,067         713,287         2.8        336         345         (2.8

Unconsolidated joint ventures(2)

     781         691         13.1        249,458         217,715         14.6        319         315         1.3   

Total

     2,965         2,756         7.6   $ 982,525       $ 931,002         5.5   $ 331       $ 338         (1.9 )% 
  

 

 

    

 

 

      

 

 

    

 

 

            

 

(1) Sales order backlog represents homes under contract for which revenue has not yet been recognized at the end of the period. Some of the contracts in our sales order backlog are subject to contingencies including mortgage loan approval and buyers selling their existing homes, which can result in cancellations.
(2) Reflects our proportionate share of unconsolidated joint ventures.

Our homes in backlog at December 31, 2011 increased 7.6% from December 31, 2010 as a result of increased sales and improving market conditions.

Home Closings Revenue

 

     Home Closings Revenue(1)
Year Ended December 31,
 
     Homes Closed     Value (in thousands)     Average Selling Price
(in thousands)
 
     2011      2010     % Change     2011     2010     % Change     2011      2010     % Change  

East

     1,460         1,539        (5.1 )%    $ 417,182      $ 383,283        8.8   $ 286       $ 249        14.7

West

     867         1,031        (15.9     294,810        319,641        (7.8     340         310        9.7   

Canada

     1,538         1,567        (1.9     619,293        570,236        8.6        403         364        10.7   
  

 

 

    

 

 

     

 

 

   

 

 

          

Subtotal

     3,865         4,137        (6.6     1,331,285        1,273,160        4.6        344         308        11.9   

Unconsolidated joint ventures(2)

     55         3        1,716.7        28,740 (3)      1,779 (3)      1,515.4 (3)      527         593        (11.1
  

 

 

    

 

 

     

 

 

   

 

 

          

Total

     3,920         4,140        (5.3 )%    $ 1,360,025      $ 1,274,939        6.7   $ 347       $ 308        12.7
  

 

 

    

 

 

     

 

 

   

 

 

          

 

(1) Home closings revenue represents homes where possession has transferred to the buyer.
(2) Reflects our proportionate share of unconsolidated joint ventures.
(3) Unconsolidated joint venture revenue is not reported as revenue but is recognized as a component of income of unconsolidated entities. Included here on a non-GAAP basis for information purposes only.

Home closings revenue, including unconsolidated joint venture home closings revenue, increased 6.7% to $1,360.0 million in 2011, from $1,274.9 million in 2010, despite a 5.3% decrease in homes closed. Home closings revenue rose in 2011 to $1,331.3 million, from $1,273.2 million in 2010. The average selling price of homes closed (including unconsolidated joint ventures) during 2011 was $347,000, up 12.7% from the $308,000 average in 2010. East region home closings revenue increased by 8.8% in 2011 compared to 2010, primarily due to an increase in average selling price largely due to new communities in North Florida, Houston and Austin with higher price points. The 14.7% increase in average selling price was offset by a decrease of 5.1%. West region home closings revenue decreased by 7.8% in 2011 compared to 2010, primarily due to a decrease in home of

 

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15.9%. The revenue shortfall was partially offset by a 9.7% increase in the average selling price to $340,000. The increase in average selling price was achieved in all West divisions, but the increase was especially large in California. Canada region home closings revenue, including unconsolidated joint venture home closings revenue, of $28.7 million, increased 13.3% to $648.0 million in 2011 compared to $572.0 million in 2010, as a result of an increase in total home closings of 1.4% and a mix shift to higher-priced product.

Land Closings Revenue

 

     Land Closings Revenue
Year Ended December 31,
 
     Value (in thousands)  
     2011      2010      % Change  

East

   $ 22,531       $ 7,225         211.8

West

     1,765         —           n/a   

Canada

     —           4,891         (100.0 )% 
  

 

 

    

 

 

    

Total

   $ 24,296       $ 12,116         100.5
  

 

 

    

 

 

    

Land closings revenue increased 100.5% to $24.3 million in 2011, from $12.1 million in 2010. Fluctuations in land closings revenue are a function of how we manage our inventory levels in various markets. Land closings revenue in the United States was primarily generated by sales in our consolidated Steiner Ranch Joint Venture in Austin, Texas.

Home Closings Gross Margin

The following table sets forth a reconciliation between our home closings gross margin and our adjusted home closings gross margin. See “—Non-GAAP Measures—Adjusted Home Closings Gross Margin.”

 

     Successor     Combined            Predecessor  
($ in thousands)    July 13 to
December 31,
2011
    Year Ended
December 31,
2011
           January 1
to July 12,
2011
    Year Ended
December 31,
2010
 

Home closings revenue

   $ 731,216      $ 1,331,285           $ 600,069      $ 1,273,160   

Cost of home closings and impairments(a)

     591,891        1,066,425             474,534        1,005,178   
  

 

 

   

 

 

        

 

 

   

 

 

 

Home closings gross margin

     139,325        264,860             125,535        267,982   

Add:

             

Impairments

     —          —               —          2,006   

Capitalized interest amortization

     9,531        28,496             18,965        39,695   
  

 

 

   

 

 

        

 

 

   

 

 

 

Adjusted home closings gross margin

   $ 148,856      $ 293,356           $ 144,500      $ 309,683   
  

 

 

   

 

 

        

 

 

   

 

 

 

Home closings gross margin as a percentage of home closings revenue

     19.1     19.9          20.9     21.0

Adjusted home closings gross margin as a percentage of home closings revenue

     20.4     22.0          24.1     24.3

 

(a) Includes impairments attributable to write-downs of operating communities and interest amortized through cost of home closings.

Our home closings gross margin declined slightly in 2011 to $264.9 million, from $268.0 million in 2010. As a percentage of revenue, our home closings gross margin declined 210 bps, from 21.0% in 2010 to 19.9% in 2011.

In 2011, adjusted home closings gross margin decreased by 5.3% to $293.4 million in 2011, from $309.7 million in 2010, and as a percentage of home closings revenue decreased 230 bps, to 22.0%. The decline in

 

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adjusted home closings gross margin and home closings gross margin was driven primarily by the impact of purchase accounting on homes under construction at the date of Acquisition that subsequently closed by year end. These homes were impacted by both write-up and write-down adjustments. See “—Factors Affecting the Comparability of Results—The Acquisition and Financing Transactions and Basis of Presentation.”

East Region

The following table sets forth a reconciliation between our East region home closings gross margin and our East region adjusted home closings gross margin. See “—Non-GAAP Measures—Adjusted Home Closings Gross Margin.”

 

     Successor     Combined            Predecessor  
($ in thousands)    July 13 to
December 31,
2011
    Year Ended
December 31,
2011
           January 1
to July 12,
2011
    Year Ended
December 31,
2010
 

East region home closings revenue

   $ 237,654      $ 417,182           $ 179,528      $ 383,283   

East region cost of home closings and impairments(a)

     190,486        334,523             144,037        306,639   
  

 

 

   

 

 

        

 

 

   

 

 

 

East region home closings gross margin

     47,168        82,659             35,491        76,644   

Add:

             

East region impairments

     —          —               —          —     

East region capitalized interest amortization

     2,514        9,837             7,323        14,947   
  

 

 

   

 

 

        

 

 

   

 

 

 

East region adjusted home closings gross margin

   $ 49,682      $ 92,496           $ 42,814      $ 91,591   
  

 

 

   

 

 

        

 

 

   

 

 

 

East region home closings gross margin as a percentage of home closings revenue

     19.8     19.8          19.8     20.0

East region adjusted home closings gross margin as a percentage of home closings revenue

     20.9     22.1          23.8     23.9

 

(a) Includes impairments attributable to write-downs of operating communities and interest amortized through cost of home closings.

East region home closings gross margin increased in 2011 to $82.7 million, from $76.6 million in 2010. As a percentage of revenue, East region home closings gross margin declined 20 bps, to 19.8% in 2011 from 20% in 2010.

East region adjusted home closings gross margin increased by 1.0%, to $92.5 million in 2011, from $91.6 million in 2010. The East region’s adjusted home closings gross margin percentage decreased 180 bps to 22.1% in 2011 compared to 23.9% in 2010. The decrease in adjusted home closings gross margin was primarily a result of the negative impact of purchase accounting on home inventory under construction at the date of the Acquisition. Decreased adjusted home closings gross margin related to purchase accounting adjustments for homes under construction totaled $7.9 million.

 

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West Region

The following table sets forth a reconciliation between our West region home closings gross margin and our West region adjusted home closings gross margin. See “—Non-GAAP Measures—Adjusted Home Closings Gross Margin.”

 

     Successor     Combined            Predecessor  
($ in thousands)    July 13 to
December 31,
2011
    Year Ended
December 31,
2011
           January 1 to
July 12,
2011
     Year Ended
December 31,
2010
 

West region home closings revenue

   $ 152,552      $ 294,810           $ 142,258       $ 319,641   

West region cost of home closings and impairments(a)

     129,654        252,122             122,468         271,735   
  

 

 

   

 

 

        

 

 

    

 

 

 

West region home closings gross margin

     22,898        42,688             19,790         47,906   

Add:

              

West region impairments

     —          —               —           2,006   

West region capitalized interest amortization

     1,895        12,649             10,754         24,748   
  

 

 

   

 

 

        

 

 

    

 

 

 

West region adjusted home closings gross margin

   $ 24,793      $ 55,337           $ 30,544       $ 74,660   
  

 

 

   

 

 

        

 

 

    

 

 

 

West region home closings gross margin as a percentage of home closings revenue

     15.0     14.5          13.9      15.0

West region adjusted home closings gross margin as a percentage of home closings revenue

     16.3     18.8          21.5      23.4

 

(a) Includes impairments attributable to write-downs of operating companies and interest amortized through cost of home closings.

West region home closings gross margin declined in 2011 to $42.7 million, from $47.9 million in 2010. As a percentage of revenue, West region home closings gross margin declined 50 bps, to 14.5% in 2011 from 15.0% in 2010.

West region adjusted home closings gross margin decreased by 25.9%, to $55.3 million in 2011, from $74.7 million in 2010. The decrease in both home closings gross margin and adjusted home closings gross margin was primarily a result of the decrease in homes closed as well as the impact of purchase accounting. The decrease in adjusted home closings gross margin percentage was 460 bps, to 18.8% in 2011 from 23.4% in 2010, and resulted primarily from the negative impact of purchase accounting on home inventory under construction at the date of the Acquisition. Decreased margin related to purchase accounting adjustments for homes under construction and over 50% complete at July 31, 2011 totaled $7.8 million. Additionally, the product mix of homes shifted from communities in our higher-margin California markets to our Phoenix markets.

 

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Canada

The following table sets forth a reconciliation between our Canada home closings gross margin and our Canada adjusted home closings gross margin. See “—Non-GAAP Measures—Adjusted Home Closings Gross Margin.”

 

     Successor     Combined            Predecessor  
($ in thousands)    July 13 to
December 31,
2011
    Year Ended
December 31,
2011
           January 1 to
July 12,
2011
    Year Ended
December 31,
2010
 

Canada home closings revenue

   $ 341,010      $ 619,293           $ 278,283      $ 570,236   

Canada cost of home closings and impairments(a)

     271,761        479,717             207,956        426,805   
  

 

 

   

 

 

        

 

 

   

 

 

 

Canada home closings gross margin

     69,249        139,576             70,327        143,431   

Add:

             

Canada impairments

     —          —               —          —     

Canada capitalized interest amortization

     5,122        5,946             824        —     
  

 

 

   

 

 

        

 

 

   

 

 

 

Canada adjusted home closings gross margin

   $ 74,371      $ 145,522           $ 71,151      $ 143,431   
  

 

 

   

 

 

        

 

 

   

 

 

 

Canada home closings gross margin as a percentage of home closings revenue

     20.3     22.5          25.3     25.2

Canada adjusted home closings gross margin as a percentage of home closings revenue

     21.8     23.5          25.6     25.2

 

(a) Includes impairments attributable to write-downs of operating communities and interest amortized through cost of home closings.

Canada home closings gross margin declined in 2011 to $139.6 million, from $143.4 million in 2010. As a percentage of revenue, Canada home closings gross margin declined 270 bps, to 22.5% in 2011 from 25.2% in 2010.

Canada adjusted home closings gross margin increased by 1.5%, to $145.5 million in 2011, from $143.4 million in 2010. Adjusted home closings gross margin percentage decreased 170 bps to 23.5% in 2011 compared to 25.2% in 2010. The decrease in both home closings gross margin and adjusted home closings gross margin resulted primarily from increased land cost of sales related to the write-up of the Canadian assets through purchase accounting adjustments.

Land Closings Gross Margin

 

($ in thousands)    2011(1)     2010  
     Total Land
Closings
Revenue
     Land
Closings
Gross
Margin
     % of
Revenue
    Total Land
Closings
Revenue
     Land
Closings
Gross
Margin
    % of
Revenue
 

East

   $ 22,531       $ 8,708         38.6   $ 7,225       $ 4,161        57.6

West

     1,765         359         20.3        0         (523     —     

Canada

     —           1         —          4,891         1,927        39.4   
  

 

 

    

 

 

      

 

 

    

 

 

   

Total

   $ 24,296       $ 9,068         37.3   $ 12,116       $ 5,565        45.9
  

 

 

    

 

 

      

 

 

    

 

 

   

 

(1) Segment margin excludes minor adjustments booked at the corporate level.

Land closings gross margin is calculated using land closings revenue and cost of land closings excluding interest and inventory impairment on lots. Land closings gross margin increased by 62.9% from 2010 to 2011, from $5.6 million to $9.1 million and land closings gross margin as a percentage of revenue decreased 1,290 bps to 37.3%. Gross margin in lot sales at Steiner Ranch declined from 2010 to 2011 as a result of Acquisition-related purchase accounting adjustments to the carrying value of these lots.

 

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Financial Services Gross Margin

 

     2011     2010  
($ in thousands)    Total
Financial
Services
Revenue
     Financial
Services
Gross
Margin
     % of
Revenue
    Total
Financial
Services
Revenue
     Financial
Services
Gross
Margin
     % of
Revenue
 

Total

   $ 14,606       $ 6,293         43.1   $ 12,591       $ 5,345         42.5
  

 

 

    

 

 

      

 

 

    

 

 

    

Financial services gross margin increased by 17.7% to $6.2 million in 2011, from $5.3 million in 2010, and margin as a percentage of financial services revenue improved by 60 bps to 43.1%. The increase in gross margin was driven primarily by an increase in our closings volume and average loan amount, from 1,701 and $233,700, respectively, in 2010, to 1,512 and $250,100, respectively, in 2011. Additionally, our transition from broker to lender has created service release premiums revenue when loans are sold to a secondary market.

Impaired Communities

 

     As of December 31, 2010  
($ in thousands)    Number of
Communities(1)
     Carrying
Value
Prior to
Impairment
     Fair Value      Impairment  

East

     —         $ —         $ —         $ —     

West

     3         8,462         5,933         2,529   

Canada

     —           —           —           —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

     3       $ 8,462       $ 5,933       $ 2,529   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Total communities determined to have been impaired during the year.

During 2011, we did not record inventory impairments. During 2010, we recorded land impairment charges of $2.5 million.

Sales, Commissions and Other Marketing Costs

Sales, commissions and other marketing costs such as advertising and sales office expenses decreased 10.2% in 2011 to $76.4 million, from $85.1 million in 2010. Sales, commissions and other marketing costs as a percentage of total revenues decreased to 5.6% in 2011 from 6.6% in 2010. The decrease was related to cost savings and business optimization measures and the volume decrease in closings, which decreases commission expenses.

General and Administrative Expenses

General and administrative expenses, which represent corporate and divisional overhead expenses such as salaries and bonuses, occupancy, insurance and travel expenses, increased 3.6% to $68.6 million in 2011, from $66.2 million in 2010. General and administrative expenses as a percentage of total revenue decreased to 5.0% in 2011, compared to 5.1% in 2010. General and administrative expenses for 2011 reflect our continued concentrated efforts to control overhead expenses but were offset by increased professional expenses related to the Acquisition.

 

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Equity in Net Income of Unconsolidated Entities

Equity in net income of unconsolidated entities, which consists of our share in the earnings or losses of entities not consolidated in our financial results, was $8.1 million in 2011, up $2.7 million from 2010. Our Canadian high-rise development activity occurs, to a large extent, through unconsolidated joint ventures. These projects, which are large in scale and can span several years from concept to completion, represent a large revenue stream that fluctuates and can cause wide variances in quarterly and annual income.

Interest Expense

Interest expense represents interest incurred, but not capitalized, on our long-term debt and other borrowings. During 2011 and 2010, non-capitalizable interest expense was $0 and $40.2 million, respectively. The decrease in expense year over year is a result of higher amount of active assets that qualify for interest capitalization and less overall interest incurred.

Other Income and Other Expense

Other income was $13.0 million in 2011, compared to $10.8 million in 2010. Other income is derived primarily from the operations of our captive insurance company. Other expense was $4.7 million in 2011 compared to $13.2 million in 2010. Other expense includes insurance losses related to our captive insurance company, pre-Acquisition costs for projects not undertaken and carrying costs of our inventory held for long-term development.

Income Tax

Income tax expense for 2011 was $24.9 million compared to a benefit of $1.8 million in 2010. Our Canadian operations generated taxable income in each period and recorded tax expense at their effective rate. The U.S. operations recorded benefits in each period primarily related to reversal of prior uncertain tax positions under ASC Topic 740, “ Income Taxes ” that became effectively settled during the periods.

Year Ended December 31, 2010 Compared to Year Ended December 31, 2009

Average Active Selling Communities

 

     Year Ended December 31,  
     2010      2009      % Change  

East

     79.2         90.3         (12.3 )% 

West

     48.1         60.8         (20.9

Canada

     15.6         16.6         (5.9

Subtotal

     143.0         167.7         (14.8
  

 

 

    

 

 

    

Unconsolidated joint ventures(1)

     5.8         4.2         38.0   
  

 

 

    

 

 

    

Total

     148.7         171.9         (13.5 )% 
  

 

 

    

 

 

    

 

(1) Represents the average number of total communities in which our joint ventures were actively selling over such period.

Active selling communities decreased 13.5% from 2010 to 2011. The decrease was largest in the West region, reflecting our overall strategy of repositioning our land portfolio in attractive sub markets. See“—Strategy.”

 

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Net Sales Orders

 

    Net Sales Orders(1)
Year Ended December 31,
 
    Net Homes Sold     Value (in thousands)     Average Selling Price  
    2010     2009     % Change     2010     2009     % Change     2010     2009     % Change  

East

    1,405        1,887        (25.5 )%    $ 366,102      $ 465,122        (21.3 )%    $ 261      $ 246        5.7

West

    914        1,530        (40.3     290,198        433,766        (33.1     318        284        12.0   

Canada

    1,028        1,564        (34.3     448,938        553,553        (18.9     437        354        23.4   
 

 

 

   

 

 

     

 

 

   

 

 

         

Subtotal/weighted average

    3,347        4,981        (32.8     1,105,238        1,452,442        (23.9     330        292        13.2   

Unconsolidated joint ventures(2)

    343        234        46.7        55,961        34,356        62.9        163        147        11.0   
 

 

 

   

 

 

     

 

 

   

 

 

         

Total/weighted average

    3,690        5,215        (29.2 )%    $ 1,161,199      $ 1,486,798        (21.9 )%    $ 315      $ 285        10.4
 

 

 

   

 

 

     

 

 

   

 

 

         

 

     Sales Order Cancellations
Year Ended December 31,
 
     Cancelled Sales Orders      Cancellation Rate(3)  
     2010      2009      2010     2009  

East

     403         578         22.3     23.4

West

     217         301         19.2        16.4   

Canada

     24         10         2.3        0.6   
  

 

 

    

 

 

      

Subtotal/weighted average

     644         889         16.1        15.1   

Unconsolidated joint ventures(2)

     1         9         0.3        3.5   
  

 

 

    

 

 

      

Total/weighted average

     645         898         14.9     14.7
  

 

 

    

 

 

      

 

(1) Net sales orders represent the number and dollar value of new sales contracts executed with customers (gross sales orders), net of cancelled sales orders. High-rise sales are not recognized until a building is approved for construction. High-rise sales typically do not close in the year sold.
(2) Includes only our proportionate share of unconsolidated joint ventures.
(3) Cancellation rate represents the number of cancelled sales orders divided by gross sales orders.

The value of net sales orders, including unconsolidated joint venture net sales orders, decreased 21.9%, to $1.2 billion (3,690 homes) in 2010, from $1.5 billion (5,215 homes) in 2009. The number of net sales orders decreased 29.2% in 2010 compared to 2009. These results were attributable to continued decreases in demand in the market, resulting in fewer home sales in our existing communities.

The value of net sales orders decreased in our markets in 2010, with the largest percentage decrease occurring in the West region due to weak demand in the Arizona market and a decrease in average actual selling communities of 20.9%. As discussed above, consistent with our overall land inventory strategy, the West region focused during 2010 on repositioning its land portfolio and moved to close out of less desirable submarkets. Fluctuations in the value of net sales orders were primarily due to the change in the number of homes sold in each respective region.

The average price of our net sales orders, including unconsolidated joint ventures, in 2010 was $315,000, an increase of 10.4% from the $285,000 average in 2009, due largely to changes in product mix.

Our annual sales order cancellation rate, including unconsolidated joint ventures, slightly increased from 14.7% in 2009 to 14.9% in 2010. The sales order cancellation rate depends largely on the strength of the overall economy and our homebuyers’ financial positions.

 

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Sales Order Backlog

 

     Sales Order Backlog(1)
As of December 31,
 
     Homes in Backlog     Value (in thousands)     Average Selling Price  
     2010      2009      Change     2010      2009      Change     2010      2009      Change  

East

     310         451         (31.3 )%    $ 103,483       $ 134,631         (23.1 )%    $ 334       $ 299         11.8

West

     193         313         (38.3     67,020         99,969         (33.0     347         319         8.7   

Canada

     1,562         2,102         (25.7     542,783         638,364         (15.0     347         304         14.4   
  

 

 

    

 

 

      

 

 

    

 

 

            

Subtotal

     2,065         2,866         (27.9     713,287         872,964         (18.3     345         305         13.4   

Unconsolidated joint ventures(2)

     691         351         96.9        217,715         101,146         115.2        315         289         9.3   
  

 

 

    

 

 

      

 

 

    

 

 

            

Total

     2,756         3,216         (14.3 )%    $ 931,002       $ 974,110         (4.4 )%    $ 338       $ 303         11.5
  

 

 

    

 

 

      

 

 

    

 

 

            

 

(1) Sales order backlog represents homes under contract but not yet closed at the end of the period. Some of the contracts in our sales order backlog are subject to contingencies including mortgage loan approval and buyers selling their existing homes, which can result in cancellations.
(2) Includes only our proportionate share of unconsolidated joint ventures.

Our homes in backlog at December 31, 2010 decreased 14.3% from the prior year primarily due to 13.5% fewer actual active selling communities and 29.2% fewer sales during 2010.

Home Closings Revenue

 

    Home Closings Revenue(1)
Year Ended December 31,
 
    Homes Closed     Value (in thousands)     Average Selling Price  
    2010     2009     Change     2010     2009     Change     2010     2009     Change  

East

    1,539        1,889        (18.5 )%    $ 383,283      $ 450,111        (14.8 )%    $ 249      $ 238        4.5

West

    1,031        1,458        (29.3     319,641        397,750        (19.6     310        273        13.6   

Canada

    1,567        1,087        44.2        570,236        376,220        51.6        364        346        5.1   
 

 

 

   

 

 

     

 

 

   

 

 

         

Subtotal

    4,137        4,434        (6.7     1,273,160        1,224,082        4.0        308        276        11.5   

Unconsolidated joint ventures(2)

    3        321        (99.1     1,779 (3)      61,552 (3)      (97.1     593        192        209.3   
 

 

 

   

 

 

     

 

 

   

 

 

         

Total

    4,140        4,755        (12.9 )%    $ 1,274,939      $ 1,285,634        (0.8 )%    $ 308      $ 270        13.9
 

 

 

   

 

 

     

 

 

   

 

 

         

 

(1) Home closings revenue represents homes where possession has transferred to the buyer and no further material obligation exists for the Company.
(2) Includes only our proportionate share of unconsolidated joint ventures.
(3) Unconsolidated joint venture revenue is not reported as revenue but is recorded through income of unconsolidated entities. Included here for information only.

Home closings revenue rose in 2010 to $1,273.2 million, from $1,224.1 million in 2009. Home closings revenue, including unconsolidated joint venture home closings revenue, was $1,274.9 million in 2010, down slightly from $1,285.6 million in 2009. The average selling price of homes closed during 2010 was $308,000, up 13.9% from the $270,000 average in 2009. During 2010, home closings revenue significantly increased in Canada and decreased in U.S. markets. These increases resulted primarily from the generally strong sales of in both the single-family and high-rise products in the Canada region, attributable to robust economic conditions and home sales demand during the time period.

East region home closings revenue decreased 14.8% in 2010 compared to 2009, primarily due to 350 fewer home closings in 2010, with the largest decrease occurring in North Florida and Houston. West region home closings revenue decreased 19.6% in 2010 compared to 2009, on a decrease in home closings of 29.3%, primarily

 

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related to a 20.9% decrease in active selling communities available for sale. Canada home closings revenue, including unconsolidated joint venture home closing revenue, increased 30.7% in 2010 compared to 2009, primarily due to an increase in single-family closings due to increased demand.

Land Closings Revenue

 

     Land Closings Revenue
Year Ended December 31,
 
     Value (in thousands)  
     2010      2009      Change  

East

   $ 7,225       $ 9,150         (21.0 )% 

West

     —           4,356         n/a   

Canada

     4,891         11,461         (57.3
  

 

 

    

 

 

    

Total

   $ 12,116       $ 24,967         (51.5 )% 
  

 

 

    

 

 

    

Land closings revenue decreased 51.5% to $12.1 million in 2010, from $25.0 million in 2009. Land and lot sales occur at unpredictable intervals and varying degrees of profitability. Revenue and gross margin from land closings accordingly fluctuate from period to period. In 2010, lot sale opportunities were evaluated in light of market conditions, and raw land was progressed through the entitlement process to create higher value in contemplation of possible future constraints in lot supply.

Home Closings Gross Margin

The following table sets forth a reconciliation between our home closings gross margin and our adjusted home closings gross margin. See “—Non-GAAP Measures—Adjusted Home Closings Gross Margin.”

 

     Predecessor  
     Year Ended December 31,  
(in thousands, except for percentage data)    2010     2009  

Home closings revenue

   $ 1,273,160      $ 1,224,082   

Cost of home closings and impairments(a)

     1,005,178        1,075,290   
  

 

 

   

 

 

 

Home closings gross margin

     267,982        148,792   

Add:

    

Impairments

     2,006        71,595   

Capitalized interest amortization

     39,695        44,765   
  

 

 

   

 

 

 

Adjusted home closings gross margin

   $ 309,683      $ 265,152   
  

 

 

   

 

 

 

Home closings gross margin as a percentage of home closings revenue

     21.0     12.2

Adjusted home closings gross margin as a percentage of home closings revenue

     24.3     21.7

 

(a) Includes impairments attributable to write-downs of operating communities and interest amortized through cost of home closings.

Our home closings gross margin increased in 2010 to $268.0 million, from $148.8 million in 2009. As a percentage of revenue, our home closings gross margin increased 880 bps, to 21.0% in 2010 from 12.2% in 2009. The increase in home closings gross margin was due to the higher average home selling price and the reduction in impairments in 2010.

Adjusted home closings gross margin increased from 2009 to 2010 by 16.8% to $309.7 million, from $265.2 million in 2009, and as a percentage of home closings revenue, increased 260 bps to 24.3%. The increase in home closings gross margin is due to the change in mix of homes closed in all divisions to higher-priced, higher-margin homes.

 

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Table of Contents

East Region

The following table sets forth a reconciliation between our East region home closings gross margin and our East region adjusted home closings gross margin. See “—Non-GAAP Measures—Adjusted Home Closings Gross Margin.”

 

     Predecessor  
     Year Ended December 31,  
($ in thousands)    2010     2009  

East region home closings revenue

   $ 383,283      $ 450,111   

East region cost of home closings and impairments(a)

     306,639        411,934   
  

 

 

   

 

 

 

East region home closings gross margin

     76,644        38,177   

Add:

    

East region impairments

     —          17,797   

East region capitalized interest amortization

     14,947        18,139   
  

 

 

   

 

 

 

East region adjusted home closings gross margin

   $ 91,591      $ 74,113   
  

 

 

   

 

 

 

East region home closings gross margin as a percentage of home closings revenue

     20.0     8.5

East region adjusted home closings gross margin as a percentage of home closings revenue

     23.9     16.5

 

(a) Includes impairments attributable to write-downs of operating communities and interest amortized through cost of home closings.

East region home closings gross margin increased in 2010 to $76.6 million, from $38.2 million in 2009. As a percentage of revenue, East region home closings gross margin increased 1200 bps, to 20.0% in 2010 from 8.5% in 2009. The increase was attributable to the absence of impairments and lower amortization of capitalized interest in 2010, as well as the closing out of less desirable submarkets and a shift in our product mix. The dispositions were consistent with our overall land inventory strategy. We reviewed certain parcels in West Florida and determined that, based on our evaluation of infrastructure and financial factors, the parcels should be sold rather than developed for near-term homebuilding.

The East region reported adjusted home closings gross margin of $91.6 million in 2010, compared to adjusted home closings gross margin of $74.1 million in 2009. The East region’s adjusted home closings gross margin percentage increased 740 bps in 2010 compared to 2009. The increase resulted primarily from our closing out of less desirable submarkets in the East region and a shift in our product mix.

 

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West Region

The following table sets forth a reconciliation between our West region home closings gross margin and our West region adjusted home closings gross margin. See “—Non-GAAP Measures—Adjusted Home Closings Gross Margin.”

 

     Predecessor  
     Year Ended December 31,  
($ in thousands)    2010     2009  

West region home closings revenue

   $ 319,641      $ 397,750   

West region cost of home closings and impairments(a)

     271,735        392,206   
  

 

 

   

 

 

 

West region home closings gross margin

     47,906        5,544   

Add:

    

West region impairments

     2,006        51,977   

West region capitalized interest amortization

     24,748        25,440   
  

 

 

   

 

 

 

West region adjusted home closings gross margin

   $ 74,660      $ 82,961   
  

 

 

   

 

 

 

West region home closings gross margin as a percentage of home closings revenue

     15.0     1.4

West region adjusted home closings gross margin as a percentage of home closings revenue

     23.4     20.9

 

(a) Includes impairments attributable to write-downs of operating communities and interest amortized through cost of home closings.

West region home closings gross margin increased in 2010 to $47.9 million, from $5.5 million in 2009. As a percentage of revenue, West region home closings gross margin increased 1360 bps, to 15.0% in 2010 from 1.4% in 2009. The increase in home closings gross margin was due in large part to impairment charges taken in 2009 that were lower in 2010.

The West region reported adjusted home closings gross margin of $74.7 million in 2010, compared to $83.0 million in 2009 due to the home closings decrease of 427 units. Adjusted home closings gross margin as a percentage of revenue, however, increased 250 bps in 2010 compared to 2009. The increase was a result of higher margins primarily in California, with some improvement in Arizona as the region continued to work through impaired low margin communities.

 

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Canada

The following table sets forth a reconciliation between our Canada home closings gross margin and our Canada adjusted home closings gross margin. See “—Non-GAAP Measures—Adjusted Home Closings Gross Margin.”

 

     Predecessor  
     Year Ended December 31,  
($ in thousands)    2010     2009  

Canada home closings revenue

   $ 570,236      $ 376,220   

Canada cost of home closings and impairments(a)

     426,805        271,149   
  

 

 

   

 

 

 

Canada home closings gross margin

     143,431        105,071   

Add:

    

Canada impairments

     —          1,821   

Canada capitalized interest amortization

     —          1,186   
  

 

 

   

 

 

 

Canada adjusted home closings gross margin

   $ 143,431      $ 108,078   
  

 

 

   

 

 

 

Canada home closings gross margin as a percentage of home closings revenue

     25.2     27.9

Canada adjusted home closings gross margin as a percentage of home closings revenue

     25.2     28.7

 

(a) Includes impairments attributable to write-downs of operating communities and interest amortized through cost of home closings.

Canada home closings gross margin increased in 2010 to $143.4 million, from $105.1 million in 2009. As a percentage of revenue, Canada home closings gross margin declined 270 bps, from 27.9% in 2009 to 25.2% in 2010.

The Canada region reported adjusted home closings gross margin of $143.4 million in 2010 compared to adjusted home closings gross margin of $108.1 million in 2009. Adjusted home closings gross margin as a percent of revenue decreased 350 bps in 2010 compared to 2009. Changes to both adjusted and unadjusted home closings gross margin were primarily due to favorable changes in product mix.

Land Closings Gross Margin

 

($ in thousands)    2010     2009  
     Total  Land
Closings
Revenue
     Land
Closings
Gross
Margin
    % of
Revenue
    Total  Land
Closings
Revenue
     Land
Closings
Gross
Margin
    % of
Revenue
 

East

   $ 7,225       $ 4,161        57.6   $ 9,150       $ 5,495        60.2

West

     —           (523     —          4,356         (7,063     (162.1 )% 

Canada

     4,891         1,927        39.4     11,461         5,689        49.6
  

 

 

    

 

 

     

 

 

    

 

 

   

Total

   $ 12,116       $ 5,565        45.9   $ 24,967       $ 4,122        16.5
  

 

 

    

 

 

     

 

 

    

 

 

   

Land closings gross margin decreased by 35.0% from 2009 to 2010, and land closings gross margin as a percentage of revenue decreased by 3,370 bps. In the United States, 2009 land closings revenue was primarily generated by sales in our consolidated Steiner Ranch Joint Venture in Austin, Texas as well as by lot sales in other divisions as a result of certain sales of non-strategic assets. The 2009 loss in the West region was the result of a sale of an asset in the Central Valley of California.

 

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Financial Services Gross Margin

 

     2010     2009  
($ in thousands)    Total
Financial
Services
Revenue
     Financial
Services
Gross
Margin
     % of
Revenue
    Total
Financial
Services
Revenue
     Financial
Services
Gross
Margin
     % of
Revenue
 

Total

   $ 12,591       $ 5,345         42.5   $ 13,415       $ 7,146         53.3
  

 

 

    

 

 

      

 

 

    

 

 

    

Financial services gross margin decreased by 25.2% to $5.3 million in 2010 from $7.1 million in 2009 and margin as a percentage of financial services revenue declined by 1,080 bps. The decrease in gross margin was driven primarily by a decrease in our closings volume and average loan amount, from 2,328 and $215,000, respectively, in 2009, to 1,701 and $233,700, respectively, in 2010.

Impaired Communities

 

    As of December 31, 2010     As of December 31, 2009  
($ in thousands)   Number of
Communities(1)
    Carrying
Value
Prior to
Impairment
    Fair Value     Impairment     Number of
Communities(1)
    Carrying
Value
Prior to
Impairment
    Fair Value     Impairment  

East

    —        $ —        $ —        $ —          18      $ 52,990      $ 34,002      $ 18,988   

West

    3        8,462        5,933        2,529        16        161,507        106,877        54,630   

Canada

    —          —          —          —          1        8,990        7,169        1,821   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

    3      $ 8,462      $ 5,933      $ 2,529        35      $ 223,487      $ 148,048      $ 75,439   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Total communities determined to have been impaired during the year.

Inventory Impairments and Land Option Cost Write-Offs

 

     Year Ended December 31,  
     2010      2009  
     Inventory
Impairments
     Land Option
Cost
Write-Offs
     Total      Inventory
Impairments
     Land Option
Cost
Write-Offs
     Total  
     (in thousands)  

East

   $ —         $ —         $ —         $ 18,988       $ 2,802       $ 21,790   

West

     2,529         1,525         4,054         54,630         —           54,630   

Canada

     —           —           —           1,821         —           1,821   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 2,529       $ 1,525       $ 4,054       $ 75,439       $ 2,802       $ 78,241   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

During 2010, our impairment analysis reflected our expectation of continued challenging conditions and uncertainties in the homebuilding industry and in our markets.

Through our 2010 and 2009 impairment evaluation processes, we determined that communities with carrying values, prior to impairment, of $8.5 million and $223.5 million, respectively, were impaired. We recorded total inventory impairment charges of $2.5 million and $75.4 million during 2010 and 2009, respectively.

Based on our quarterly reviews of land and lot option contracts, we wrote off earnest money deposits and pre-acquisition costs related to contracts for land or lots that were not expected to be acquired. During 2010 and 2009, we wrote off $1.5 million and $2.8 million, respectively, of earnest money deposits and pre-acquisition costs related to land option contracts.

 

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Inventory impairment charges reduced total gross margin as a percentage of total revenues by approximately 0.3% in 2010, compared to 6.2% in 2009.

Sales, Commissions and Other Marketing Costs

Sales, commissions and other marketing costs such as advertising and sales office expenses decreased by 15.3% to $85.1 million in 2010 from $100.5 million in 2009. Sales, commissions and other marketing costs as a percentage of total revenues decreased to 6.6% in 2010 from 8.0% in 2009. These decreases were primarily the result of a decrease in the number of closings, and reductions in our sales and marketing programs across our markets.

General and Administrative Expenses

General and administrative expenses decreased to $66.2 million in 2010 from $71.3 million in 2009. General and administrative expenses as a percentage of total revenue decreased to 5.1% in 2010 as compared to 5.6% in 2009 as a result of reduced staffing levels.

Equity in Net Income of Unconsolidated Entities

Equity in net income of unconsolidated entities was $5.3 million in 2010 compared to $0.3 million in 2009, primarily as a result of increases in income from our Canadian joint ventures.

Interest Expense, Net

Interest expense is comprised of interest incurred, but not capitalized, on our long-term debt and other borrowings. During 2010 and 2009, non-capitalizable interest expense was $40.2 and $20.7 million, respectively. The increase in expense year over year is a result of lower amount of active assets that qualify for interest capitalization.

Other Expense and Other Income

Other income was $10.8 million in 2010, compared to $24.5 million in 2009. The largest component of other income in both years was our captive insurance company. Other expense was $13.2 million in 2010 compared to $25.7 million in 2009.

Income Taxes

Income tax benefit for 2010 was $1.8 million compared benefit of $35.4 million in 2009. Our Canadian operations generated taxable income in each period and recorded tax expense at their effective rate. The U.S. operations recorded a tax benefit in each period. In 2010 this benefit related primarily to the reversal of prior uncertain tax positions while in 2009 the carryback of taxable losses to prior periods generated income tax refunds recorded as benefit.

Overview of Capital Resources and Liquidity

Our principal uses of capital in 2011 and the first nine months of 2012 were operating expenses, lot development, home construction, income taxes, investments in joint ventures, land and property purchases, interest costs on our indebtedness and the payment of various liabilities. Historically, we have used a combination of capital contributions and intercompany borrowings from our former parent, Taylor Wimpey plc, and funds generated by operations to meet our short-term working capital requirements. Cash flows for each of our communities depend on the status of the development cycle, and can differ substantially from reported earnings. Early stages of development or expansion require significant cash outlays for land acquisitions, plats,

 

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vertical development, construction of model homes, general landscaping and other amenities. Because these costs are a component of our inventory and are not recognized in our statement of operations until a home closes, we incur significant cash outflows prior to recognition of earnings. In the later stages of a community, cash inflows may significantly exceed earnings reported for financial statement purposes, as the costs associated with home and land construction were previously incurred.

We have in place strict controls and a defined strategy for company-wide cash management, particularly as related to cash outlays for land and inventory development. Among other things, we require multiple party account control and authorizations for payments. We had $158.4 million of cash provided by operating activities for 2011 and $158.4 million of cash used in operating activities in the first nine months of 2012. We financed the cash used in the first nine months of 2012 through the sale of our senior notes.

Since the Acquisition, we have primarily funded our cash needs from cash from operations and cash generated from our offerings of senior notes, and have had minimal draws on our Revolving Credit Facility. Our need for letters of credit has been primarily fulfilled through the TD Facility and the HSBC Facility, which are discussed in more detail below. We believe that our strong balance sheet and liquidity position will allow us to be flexible in reacting to changing market conditions.

After giving effect to this offering and the application of the net proceeds from this offering, we believe that we can fund our cash needs for planned and projected operations for the next twelve months from cash on hand and cash generated from operations and borrowings under our Revolving Credit Facility. Depending upon future homebuilding market conditions and our expectations for these conditions, we may use a portion of our cash and cash equivalents to take advantage of land opportunities. We intend to maintain adequate liquidity and balance sheet strength, and we will continue to evaluate opportunities to access the capital markets as they become available.

Capital Resources

Cash and Cash Equivalents

As of September 30, 2012, we had available cash and cash equivalents of $412.8 million. Cash and cash equivalents consist of cash on hand, demand deposits with financial institutions and short-term, highly liquid investments. We consider all highly liquid investments with original maturities of 90 days or less, such as certificates of deposit, money market funds, and commercial paper, to be cash equivalents. Non-interest-bearing cash accounts are temporarily guaranteed for an unlimited amount, through December 31, 2012, and all other cash accounts are insured for up to $250,000.

The amount of cash and cash equivalents held by foreign subsidiaries as of September 30, 2012 was $130.7 million. While all of such cash and cash equivalents are readily convertible into U.S. dollars, we would be required to accrue and pay taxes to repatriate those funds to the U.S. Historically we have not generally repatriated such funds, since we generally have used such funds in our Canadian business. However, we may in the future repatriate such funds to the U.S.

Revolving Credit Facility

We have the ability to finance working capital and other needs by drawing on the Revolving Credit Facility. Borrowings under our Revolving Credit Facility may be made in U.S. dollars and in Canadian dollars (subject to a U.S. $15.0 million sublimit) and bear interest based upon either a LIBOR or CDOR interest rate option, as applicable, or a base rate or Canada prime rate option, as applicable, as selected by the borrowers plus, in each case, an applicable margin. The Revolving Credit Facility matures on July 13, 2016. The applicable margin for (a) any Eurodollar Rate Loan or CDOR Rate Loan is 3.25% per annum, payable on the last date of each applicable interest period or at the end of each three-month period if the applicable interest period is longer than three months and (b) any Base Rate Loan or Canadian Prime Rate Loan, 2.25% per annum, payable quarterly. There is a fee of 0.75% per annum on the commitments under the Revolving Credit Facility (whether drawn or undrawn), payable quarterly in arrears, and subject to a 25 basis point reduction based upon the achievement of a specified capitalization ratio. The borrowers have the right to make “amend and extend” offers to lenders of a particular class. As of September 30, 2012, there was no debt outstanding under the Revolving Credit Facility.

 

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Under the terms of the Revolving Credit Facility, we have the ability to issue letters of credit. Borrowing availability is reduced by the amount of letters of credit outstanding. As of September 30, 2012, there were $5.4 million of letters of credit outstanding under the Revolving Credit Facility leaving $119.6 million of availability for borrowing. As of December 31, 2012, we had increased the total amount of commitments under the Revolving Credit Facility from $125.0 million to $225.0 million and borrowed $50.0 million under the Revolving Credit Facility to finance in part the acquisition of Darling, leaving $163.8 million of availability. See “Summary—Recent Developments.”

The Revolving Credit Facility contains certain “springing” financial covenants. In the event that, either there are (a) any loans outstanding thereunder on the last day of any fiscal quarter or on more than five separate days of such fiscal quarter or (b) any unreimbursed letters of credit thereunder on the last day of such fiscal quarter or for more than five consecutive days of such fiscal quarter, we will be required to, in respect of such fiscal quarter, comply with a maximum capitalization ratio test as well as a minimum interest coverage ratio test. As of September 30, 2012, our capitalization ratio (as defined in the Revolving Credit Facility) was 49% (compared with the requirement not to exceed 60%) while our interest coverage ratio (as defined in the Revolving Credit Facility) for the twelve-month period then ended was 2.7 to 1.0 (compared with the requirement not to fall below 1.75 to 1.0). For purposes of determining compliance with the financial covenants for any fiscal quarter, TMM may exercise an equity cure by issuing certain permitted securities for cash or otherwise receiving cash contributions to its capital that will, upon the contribution of such cash to TMC and/or Monarch Corporation, be included in the calculation of consolidated adjusted EBITDA and consolidated total capitalization. The equity cure right may not be exercised more than twice in any period of four consecutive fiscal quarters and may not be exercised more than five times during the term of the facility.

Senior Notes

On April 13, 2012, the Operating Subsidiaries issued $550.0 million in aggregate principal amount of 7.750% Senior Notes due 2020. A portion of the net proceeds of the senior notes was used to repay $350.0 million of the Sponsor Loan and the remainder was used for general corporate purposes. The senior notes are unsecured and guaranteed by TMM and certain of TMM’s domestic subsidiaries. On August 21, 2012, the Operating Subsidiaries issued an additional $125.0 million in aggregate principal amount of the senior notes under the same indenture.

The indenture governing the senior notes contains covenants that limit the ability of the Operating Subsidiaries, TMM and certain of their subsidiaries to, among other things, sell assets, pay dividends or make other distributions on capital stock or make payments in respect of subordinated indebtedness, make investments, incur additional indebtedness or issue preferred stock, create certain liens, enter into agreements that restrict dividends or other payments from certain restricted subsidiaries, consolidate, merge or transfer all or substantially all of their assets, engage in transactions with affiliates and create additional, unrestricted subsidiaries. The senior notes are also subject to a requirement that we offer to purchase the senior notes at par with certain proceeds of asset sales (to the extent not applied in accordance with the senior notes indenture). We are also required to offer to purchase all of the outstanding senior notes at 101% of their aggregate principal amount upon the occurrence of specified change of control events. The senior notes do not have any registration rights.

The senior notes mature on April 15, 2020. Interest on the senior notes accrues at the rate of 7.750% per annum and is payable semiannually in arrears on April 15 and October 15 of each year.

We may redeem some or all of the senior notes at any time prior to April 15, 2015, at a redemption price equal to 100% of the aggregate principal amount of the notes to be redeemed, plus a make-whole premium and accrued and unpaid interest, if any, to, but not including, the redemption date. On or after April 15, 2015, we may also redeem some or all of the notes at the redemption prices specified in the indenture relating to the senior notes.

 

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At any time prior to April 15, 2015, we may also redeem up to 40% of the original aggregate principal amount of the senior notes with the net cash proceeds of this offering and other equity offerings, at a redemption price equal to 103.875% (if the redemption occurs prior to April 15, 2013) or 107.750% (if the redemption occurs on or after April 15, 2013) of the aggregate principal amount of the notes to be redeemed, plus accrued and unpaid interest, if any, to, but not including, the redemption date.

Mortgage Company Loan Facilities

TMHF has entered into an agreement with Flagstar Bank (the “Flagstar Facility”), as agent and representative for itself and other buyers of our held-for-sale mortgages named in such agreement. The purpose of the Flagstar Facility is to finance the origination of up to $30 million of mortgage loans at any one time by TMHF, subject to certain sublimits, with a temporary accordion feature subject to approval by Flagstar, which allows for borrowings in excess of the total availability under the facility. Borrowings under the facility are accounted for as a secured borrowing under ASC Topic 860, “ Transfers and Servicing.” The Flagstar Facility is terminable by either party with 30 days’ notice and bears interest at a rate of LIBOR plus 2.5% per annum, with a minimum floor of 3.95% per annum. Borrowings under this facility are paid back with proceeds received when mortgages are sold to Flagstar Bank, or to other approved lenders subject to certain sublimits. In 2011, loans originated by TMHF remained on the Flagstar Facility warehouse line for an average of 10 days, before being sold either to Flagstar Bank or other approved lenders. The Flagstar Facility does not have a scheduled maturity date but is subject to an annual renewal process, which was last completed in December 2012. As of September 30, 2012, there was $27.7 million in outstanding borrowings under the Flagstar Facility.

In December 2011, TMHF entered into a mortgage warehouse loan letter agreement with Comerica Bank (the “Comerica Facility”). The purpose of the Comerica Facility is to finance the origination of up to $30.0 million of mortgage loans at any one time by TMHF, subject to certain sublimits. Borrowings under this facility are accounted for as a secured borrowing under ASC Topic 860. The Comerica Facility bears interest at a rate of daily adjusting LIBOR plus 2.5% per annum with a minimum floor of 3.75% per annum. Borrowings under the Comerica Facility are paid back with proceeds received when our mortgages are sold to approved lenders participating in the Comerica Facility. As of September 30, 2012, there was $8.2 million in outstanding borrowings under the Comerica Facility. The Comerica Facility matures on October 29, 2013 (subject to an annual renewal process).

Letters of Credit, Surety Bonds and Financial Guarantees

We are often required to provide letters of credit and surety bonds to secure our performance under construction contracts, development agreements and other arrangements. The amount of such obligations outstanding at any time varies in accordance with our pending development activities. In the event any such bonds or letters of credit are drawn upon, we would be obligated to reimburse the issuer of such bonds or letters of credit. In addition, Monarch Corporation will typically provide guarantees of the financing debt of the joint ventures through which Monarch Corporation operates, which guarantees may be secured.

Under these letters of credit, surety bonds and financial guarantees, we are committed to perform certain development and construction activities and provide certain guarantees in the normal course of business. Outstanding letters of credit, surety bonds and financial guarantees under these arrangements, including letters of credit issued under the TD Facility and HSBC Facility (as described below) and our share of responsibility for financial guarantee arrangements with our joint ventures, totaled $256.1 million as of September 30, 2012. Although significant development and construction activities have been completed related to these site improvements, the letters of credit and surety bonds are not generally released until all development and construction activities are completed. We do not believe that it is probable that any outstanding letters of credit or surety bonds, letters of credit or financial guarantees as of September 30, 2012 will be drawn upon.

Monarch Corporation is party to a credit facility with The Toronto-Dominion Bank, which we refer to as the “TD Facility.” The TD Facility provides revolving operating facilities (including letters of credit) of up to

 

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CAD $100.0 million (or its U.S. dollar equivalent) to provide direct and letter of credit financing in support of Monarch Corporation’s projects. Under the terms of the TD Facility, the first $80.0 million drawn under the facility is secured by liens over the interests of Monarch Corporation in certain Canadian real property. Amounts drawn above CAD $80.0 million are secured with cash. As of September 30, 2012, there were CAD $64.2 million letters of credit outstanding under the TD Facility.

Monarch Corporation is also party to a credit facility with HSBC Bank Canada, which we refer to as the “HSBC Facility.” The HSBC Facility provides a partially revolving letter of credit facility of up to CAD $24.2 million (reduced from $25.6 million as of September 30, 2012) in support of Monarch Corporation’s construction projects. Under the terms of the HSBC Facility, amounts drawn under this facility are secured by liens over the interests of Monarch Corporation in certain Canadian real property or cash. As of September 30, 2012, there were CAD $25.6 million letters of credit outstanding under the HSBC Facility.

Each of the TD Facility and the HSBC Facility is scheduled to expire on June 30, 2013.

The TD Facility and HSBC Facility contain certain financial covenants. We are required to maintain a minimum net equity and a minimum debt-to-equity ratio as well as maintain an interest coverage ratio. As of September 30, 2012, our net equity, as defined in the TD Facility and the HSBC Facility, was $346.8 million (compared with the minimum requirement of $250 million), our debt-to-equity ratio was 91% (compared with the requirement not to exceed 125%) while our interest coverage ratio is only calculated annually (the requirement is not to fall below 2.50 to 1.0). As of September 30, 2012, our interest coverage ratio was 2.7 to 1.0. Violations of the financial covenants in the TD Facility and HSBC Facility, if not waived by the lenders or cured, could result in acceleration by the lenders. In the event these violations were not waived by the lenders or cured, the violations could also result in a default under the Company’s other indebtedness. As of September 30, 2012, we were in compliance with all of the covenants under the TD Facility and HSBC Facility.

For additional detail on all of the above facilities, see “Description of Certain Indebtedness.”

Other Loans Payable and Other Borrowings

Other loans payable and other borrowings as of September 30, 2012 consist of project-level debt due to various land sellers and municipalities, and is generally secured by the land that was acquired. Principal payments generally coincide with corresponding project lot sales or a principal reduction schedule. We estimate that approximately $30.0 million of the loans are scheduled to be repaid in the next 12 months, which we expect to repay from available cash. The weighted average interest rate on $50.5 million of the loans as of September 30, 2012 was 3.0% per annum, and $65.5 million of the loans were non-interest bearing. As of September 30, 2012, loans payable increased by an estimated $37.8 million compared to December 31, 2011 primarily due to the closing of a transaction under a land purchase contract with seller financing.

Operating Cash Flow Activities

Our net cash used in operating activities amounted to $158.4 million for the nine months ended September 30, 2012 compared to $20.5 million provided by operating activities for the nine months ended September 30, 2011. The primary cause of our increase in cash used in operating activities was our increased purchases of land inventory. These purchases were primarily funded with proceeds from the senior notes issuances.

Our net cash provided by (used in) operating activities amounted to $158.4 million in 2011, $(8.4) million in 2010 and $126.2 million in 2009. The primary cause of the increase in operating cash flows in 2011 versus 2010 was our decreased purchases of land inventory. Taylor Wimpey plc reduced funding our for land inventory purchases in the period leading up to the Acquisition on July 13, 2011. Operating cash flows decreased in 2010 versus 2009 primarily due to increased land inventory purchases in 2010. The purchases were funded through

 

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increased borrowings from Taylor Wimpey plc. In addition, we had somewhat higher receivable amounts in 2010 from Canadian joint venture partners due to the timing of the closing of certain high rise units, the timing of the receipt of payments related to certain domestic land infrastructure development projects and the timing of the receipt of reimbursement, related to Chinese drywall claims. These items were partially offset by the receipt of certain income tax receivables in 2010 from 2009.

Investing Cash Flow Activities

Net cash used in investing activities was $7.4 million and $5.8 million for the nine months ended September 30, 2012 and 2011, respectively. The increase in cash used in 2012 was primarily the result of an increase in investments in unconsolidated entities as we continue to fund existing joint venture operations, primarily in our Canada region.

Net cash used in investing activities was $5.3 million in 2011, compared to net cash provided by investing activities of $51.0 million in 2010 and used in investing activities of $54.8 million in 2009. The net cash provided and used in 2010 and 2009, respectively, was primarily the result of changes in restricted cash from our Canadian operations.

Financing Cash Flow Activities

Net cash provided by financing activities totaled $293.5 million and used of $17.2 million for the nine months ending September 30, 2012 and 2011, respectively. Net cash provided in 2012 was primarily due to the net increase in long-term debt in connection with the $550 million senior notes issuance in April 2012 and the subsequent offering of $125 million senior notes, which was offset by a repayment of $350 million of the Sponsor Loan. In 2011 we increased our borrowings from our Taylor Wimpey plc as part of their cash management program to support their investment in North American operations.

Net cash used in financing activities totaled $29.3 million, $72.4 million and $140.5 million in 2011, 2010 and 2009, respectively. Net cash used in all periods is primarily driven by the return of cash from our North American operations to our former parent company and to our Principal Equityholders after the Acquisition.

Contractual Cash Obligations, Commercial Commitments and Off-Balance Sheet Arrangements

Our primary contractual cash obligations are payments under our debt agreements and lease payments under our operating leases. Purchase obligations of our homebuilding operations represent specific performance requirements under purchase agreements for land in Canada and purchase agreements for land in the United States. We expect to fund our contractual obligations in the ordinary course of business through a combination of our existing cash resources, cash flows generated from operations, renewed or amended mortgage repurchase facilities and, if needed or believed advantageous, the issuance of new debt or equity securities through the public capital markets as market conditions may permit.

 

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The following is a summary of our contractual obligations as of September 30, 2012 and the effect such obligations are expected to have on our liquidity and cash flows in future periods.

 

     Payments Due by Period (in thousands)  
     Totals      Less than
1 year
     1-3 years      4-5 years      More than
5 years
 

Operating lease obligations

   $ 21,629       $ 1,696       $ 9,678       $ 7,662       $ 2,592  

Topic 740 obligations incl. interest and penalties(1)

     113,316         —           102,457         10,859         —     

Land purchase contracts(2)

     283,508         96,674         175,981         —           10,853  

Debt outstanding(3)

     791,285         29,973         49,469         28,439         683,404   

Estimated interest expense(4)

     374,807         55,900         163,339         104,943         50,625   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Totals

   $ 1,584,545       $ 184,343       $ 500,924       $ 151,903       $ 747,474   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) We are currently under examination by various taxing jurisdictions with respect to our carry back of net operating losses in our historical tax returns. Our former parent Taylor Wimpey plc has indemnified us for amounts payable in respect of these additional taxes. See “ Risk Factors—We may not be able to use certain net operating loss carry backs, which may result in our having to pay substantial taxes .”
(2) Represents remaining purchase price due under full-recourse land purchase contracts.
(3) In April 2012, we completed the offering of $550.0 million of our senior notes and used the proceeds of that offering to repay $350.0 million of the then outstanding Sponsor Loan. The affiliates of TPG and Oaktree who were lenders under the Sponsor Loan caused the then remaining $150.0 million of the Sponsor Loan to be contributed or transferred to TMM or its subsidiaries, and in return those affiliates received additional equity interests in TMM. In August 2012, we also issued a further $125.0 million of senior notes at an issue price of 105.5% plus accrued interest from and including April 13, 2012. As of September 30, 2012, we had a total of $791.3 million of long-term debt outstanding, consisting of $675.0 million of senior notes, which are due in 2020 and $116.4 million of other long-term indebtedness. Of the $116.4 million, $30.0 million matures in less than one year and $49.5 million matures in one to three years. Excludes $35.9 million in debt of TMHF. Scheduled maturities of certain loans and other borrowings as of September 30, 2012 reflect estimates of anticipated lot take-downs associated with such loans.
(4) Estimated interest expense amounts for debt outstanding at the contractual interest rate.

We do not engage in commodity trading or other similar activities. We had no derivative financial instruments at December 31, 2011 or September 30, 2012.

The following table summarizes our letters of credit, surety bonds and financial guarantees of joint ventures as of the dates indicated.

 

     As of September 30,      As of December 31,  
(in thousands)    2012      2011      2011      2010  

Letters of credit

           

U.S.

   $ 22,763       $ 23,986       $ 23,865       $ 24,799   

Canada

     91,426         123,919         101,422         85,102   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total outstanding letters of credit

     114,189         147,905         125,287         109,900   
  

 

 

    

 

 

    

 

 

    

 

 

 

Surety bonds

           

U.S.

     49,682         20,338         30,426         27,095   

Canada

     77,411         72,839         76,916         74,080   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total outstanding surety bonds

     127,093         93,177         107,342         101,175   
  

 

 

    

 

 

    

 

 

    

 

 

 

Financial guarantees of joint ventures

           

Letters of credit

     36,321         10,218         17,591         11,102   

Borrowings

     168,946         33,002         43,341         12,802   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total outstanding financial guarantees of joint ventures

     205,267         43,220         60,931         23,904   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total outstanding letters of credit, surety bonds and financial guarantees of joint ventures

   $ 446,548       $ 284,303       $ 293,561       $ 234,978   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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Investments in Land Development and Homebuilding Joint Ventures or Unconsolidated Entities

We participate in a number of strategic land development and homebuilding joint ventures with unrelated third parties. These joint ventures operate primarily in our Canada region and relate mainly to our high-rise developments. The use of these entities, in some instances, enables us to acquire land to which we could not otherwise obtain access, or could not obtain access on terms that are as favorable. Our partners in these joint ventures historically have been land owners/developers, other homebuilders and financial or strategic partners. Joint ventures with land owners/developers have given us access to sites owned or controlled by our partners. Joint ventures with other homebuilders have provided us with the ability to bid jointly with our partners for large land parcels. Joint ventures with financial partners have allowed us to combine our homebuilding expertise with access to our partners’ capital. Joint ventures with strategic partners have allowed us to combine our homebuilding expertise with the specific expertise (e.g. commercial or infill experience) of our partner.

As of September 30, 2012, we had equity investments in 37 unconsolidated land development and homebuilding joint ventures, compared to 37 at September 30, 2011 and 38 at September 30, 2010. Not all of these joint ventures are actively engaged in operations and some may be maintained, despite no longer being operational.

Investment in unconsolidated land development and homebuilding joint ventures

 

     As of September 30,      As of December 31,  
(in thousands)    2012      2011      2011      2010  

East

   $ 783       $ 3,184       $ 2,789       $ 4,767   

West

     —           —           —           0   

Canada

     76,732         31,621         34,379         22,758   

Other

     472         346         472         0   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 77,987       $ 35,151       $ 37,640       $ 27,544   
  

 

 

    

 

 

    

 

 

    

 

 

 

These joint ventures often obtain acquisition, development and construction financing, designed to reduce our equity investment and improve our overall returns. This joint venture specific indebtedness is typically secured by all assets of the entity raising the debt. As of September 30, 2012, our unconsolidated joint ventures’ borrowings were $168.9 million compared to $90.0 million at December 31, 2011 and $25.9 million at December 31, 2010. Our proportional share of letters of credit issued and indebtedness was $15.5 million and $71.3 million at September 30, 2012, $17.6 million and $43.3 million at December 31, 2011 and $11.1 million and $12.8 million at December 31, 2010.

As added support to the third party lenders of these unconsolidated joint ventures related to our Canadian business, secured guarantees are typically provided by Monarch Corporation, typically in proportion to Monarch Corporation’s equity ownership in the joint ventures. As of September 30, 2012, our maximum recourse exposure related to outstanding indebtedness and letters of credit issued by our unconsolidated land development and homebuilding joint ventures totaled $205.3 million, an increase from $125.0 million as of December 31, 2011 and $136.4 million as of December 31, 2010. See “Description of Certain Indebtedness—Guarantees of Indebtedness of Unconsolidated Joint Ventures.”

We also provide completion and performance guarantees for projects undertaken by our unconsolidated joint ventures.

 

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The summarized balance sheets below of our unconsolidated land development and homebuilding joint ventures with recourse to us were as follows:

Summary balance sheet

 

     As of September 30.      As of December 31,  
(in thousands)    2012      2011      2011      2010  

Assets

   $ 282,101       $ 210,031       $ 440,300       $ 358,503   

Liabilities

     217,517         187,020         397,477         289,665   

Equity

     64,584         23,011         42,823         68,838   

Land Purchase and Land Option Contracts

We enter into land purchase and option contracts to procure land or lots for the construction of homes in the ordinary course of business. Lot option contracts enable us to control significant lot positions with a minimal capital investment and substantially reduce the risks associated with land ownership and development. As of September 30, 2012, we had outstanding land purchase contracts of $283.5 million and lot options totaling $283.5 million. We are obligated to close the transaction under our land purchase contracts. However, our obligations with respect to the option contracts are generally limited to the forfeiture of the related non-refundable cash deposits and/or letters of credit provided to obtain the options. For additional detail, see “—Contractual Cash Obligations, Commercial Commitments and Off-Balance Sheet Arrangements.”

Seasonality

Our business is seasonal. We have historically experienced, and in the future expect to continue to experience, variability in our results on a quarterly basis. We generally have more homes under construction, close more homes and have greater revenues and operating income in the third and fourth quarters of the year. Therefore, although new home contracts are obtained throughout the year, a significant portion of our home closings occur during the third and fourth calendar quarter. Our revenue therefore may fluctuate significantly on a quarterly basis and we must maintain sufficient liquidity to meet short-term operating requirements. Factors expected to contribute to these fluctuations include:

 

   

the timing of the introduction and start of construction of new projects;

 

   

the timing of project sales;

 

   

the timing of closings of homes, condominium units, lots and parcels;

 

   

our ability to continue to acquire land and options on that land on acceptable terms;

 

   

the timing of receipt of regulatory approvals for development and construction;

 

   

the condition of the real estate market and general economic conditions in the areas in which we operate;

 

   

mix of homes closed;

 

   

construction timetables;

 

   

the prevailing interest rates and the availability of financing, both for us and for the purchasers of our homes; and

 

   

the cost and availability of materials and labor.

As a result of seasonal activity, our quarterly results of operation and financial position at the end of a particular quarter are not necessarily representative of the results we expect at year end. We expect this seasonal pattern to continue, although it may be affected by the continuing downturn in the homebuilding industry.

 

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In contrast to our typical seasonal results, the weakness in homebuilding market conditions in the United States during recent years has mitigated our historical seasonal variations. Also, in 2010 the expiration of the federal homebuyer tax credit impacted the timing of our construction activities, home sales and closing volumes. Although we may experience our typical historical seasonal pattern in the future, given the current market conditions, we can make no assurances as to when or whether this pattern will recur.

Inflation

We and the homebuilding industry in general may be adversely affected during periods of high inflation, primarily because of higher land, financing, labor and material construction costs. In addition, higher mortgage interest rates can significantly affect the affordability of permanent mortgage financing to prospective homebuyers. We attempt to pass through to our customers any increases in our costs through increased sales prices. However, during periods of soft housing market conditions, we may not be able to offset our cost increases with higher selling prices.

Critical Accounting Policies

General

A comprehensive enumeration of the significant accounting policies is presented in Note 2 to our audited consolidated financial statements included elsewhere in this prospectus. Each of our accounting policies is based upon current authoritative literature that collectively comprises U.S. GAAP. In instances where alternative methods of accounting are permissible under U.S. GAAP, the method used is that which most appropriately reflects the nature of our business, the results of our operations and our financial condition, and we have consistently applied those methods over each of the periods presented in the financial statements.

Revenue Recognition

Home Sales

Home closings revenue is recorded using the completed-contract method of accounting at the time each home is delivered, title and possession are transferred to the buyer, we have no significant continuing involvement with the home, and the buyer has demonstrated sufficient initial and continuing investment in the property.

Revenues from the sale of high-rise condominiums are recognized when construction is beyond the preliminary stage, the buyer is committed to the extent of being unable to require a refund except for non-delivery of the unit, sufficient units in the project have been sold to ensure that the property will not be converted to a rental property, the sales proceeds are collectible and the aggregate sales proceeds and total cost of the project can be reasonably estimated.

Revenue for our Canadian high-rise condominiums is recognized, on an individual unit basis, when a certificate of occupancy has been received, all significant conditions of registration have been performed and the purchaser has the right to occupy the unit. At such time, the deposits that have been received from firm sales are applied to the sales price, and a receivable is set up for the balance due upon closing. Costs are recognized on the individual unit’s proportionate share of budgeted project costs along with the budgeted specifically identifiable home costs.

Land Sales

Land closings revenue is recognized when title is transferred to the buyer, we have no significant continuing involvement, and the buyer has demonstrated sufficient initial and continuing investment in the property sold. If the buyer has not made an adequate initial or continuing investment in the property, the profit on such sales is deferred until these conditions are met.

 

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Financial Services Revenue

Revenues from loan origination are recognized at the time the related real estate transactions are completed, usually upon the close of escrow. All of the loans TMHF originates are sold within a short period of time, generally 20 days, on a non-recourse basis as further described in Note 16 to the audited consolidated financial statements included elsewhere in this prospectus. After the loans are sold, we retain potential liability for possible claims by purchasers that we breached certain limited industry-standard representations and warranties in the loan sale agreement. Gains or losses from the sale of mortgages are recognized based on the difference between the selling price and carrying value of the related loans upon sale.

Deposits

Forfeited buyer deposits related to home, condominium, and land sales are recognized in other income in the accompanying consolidated statements of operations in the period in which we determine that the buyer will not complete the purchase of the property and the deposit is determined to be nonrefundable to the buyer.

Sales Discounts and Incentives

We typically grant our homebuyers sales discounts and incentives, including cash discounts, discounts on options included in the home, option upgrades, and seller-paid financing or closing costs. Discounts are accounted for as a reduction in the sales price of the home.

Real Estate Inventory

Inventory consists of land, land under development, homes under construction, completed homes, and model homes, and is stated at cost, net of impairment charges. In addition to direct carrying costs, we also capitalize interest, real estate taxes, and related development costs that benefit the entire community, such as field construction supervision and related direct overhead. Home construction costs are accumulated and charged to cost of sales at home closing using the specific identification method. Land acquisition, development, interest, taxes, overhead, and condominium construction costs are allocated to homes and units using methods that approximate the relative sales value method. These costs are capitalized to inventory from the point development begins to the point construction is completed. For those communities that have been temporarily closed or development has been discontinued, we do not allocate interest or other costs to the community’s inventory until activity resumes. Changes in estimated costs to be incurred in a community are generally allocated to the remaining homes on a prospective basis.

We assess the recoverability of our land inventory in accordance with the provisions of FASB Accounting Standards Codification (ASC) Topic 360, “ Property, Plant, and Equipment .” ASC 360 requires that companies evaluate long-lived assets that are expected to be held and used in operations, including inventories, for recoverability based on undiscounted future cash flows of the assets at the lowest level for which there are identifiable cash flows. On a quarterly basis, each community is reviewed for actual sales pace, actual margin on closed homes and margin on homes in backlog. If a community is not in closeout (it would be in closeout if it had fewer than 15 remaining homes) and the actual or projected home margin is less than 10%, the community is tested for impairment by comparing the estimated undiscounted remaining cash flows to the current carrying value. At the end of each year, we prepare for each community an estimated remaining undiscounted cash flow and compare it to the community’s sales carrying value. The estimates and assumptions used are based on current community sales prices, paces, house costs and current development budgets. There are no assumptions of increases in either pace or price. For assets that are currently mothballed, assumptions are based on current development plans and current price, pace and house costs of similar communities. Discount rates are determined using a base rate, which may be increased depending on the total remaining lots in a community, the development status of the land, the market in which it is located and if the product is higher-priced with potentially lower demand. A specific community can be sensitive to various components depending on the life phase of a community. For example, a community with 150 remaining lots would be more materially impacted by a pace change than a community with 20 remaining lots.

 

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If the carrying value of the assets exceeds their estimated undiscounted cash flows, then the assets are deemed to be impaired and are recorded at fair value as of the assessment date. We evaluate cash flows on a community-by-community basis. These cash flows are significantly impacted by various estimates of sales prices, construction costs, sales pace, and other factors. In 2011 no impairment charges were recorded after testing 122 communities. In 2010 we recorded an impairment charge of $4.1 million after testing 162 communities. The following tables summarize the number of communities tested and the results of our impairment testing as of the end of the 2011, 2010 and 2009 fiscal years (dollars in thousands):

 

    As of December 31, 2011     As of December 31, 2010  
    Total
number of
communities
tested
    Number of
impaired
communities
    Carrying
value
prior to
impairment
    Fair
value
    Impairment     Total
number of
communities
tested
    Number of
impaired
communities
    Carrying
value
prior to
impairment
    Fair
value
    Impairment  

East

    72        —                86        —           

West

    35        —                58        3      $ 8,462      $ 5,933      $ 2,529   

Canada

    15        —                18        —           
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    122        —        $  —        $  —        $  —          162        3      $ 8,462      $ 5,933      $ 2,529 (1) 
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    As of December 31, 2009  
    Total
number of
communities
tested
    Number of
impaired
communities
    Carrying
value
prior to
impairment
    Fair
value
    Impairment  

East

    118        18      $ 52,990      $ 34,002      $ 18,988   

West

    80        16      $ 161,507      $ 106,877      $ 54,630   

Canada

    14        1      $ 8,990      $ 7,169      $ 1,821   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    212        35      $ 223,487      $ 148,048      $ 75,439 (1) 
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Includes impairments of owned real estate and excludes impairments of lot option contracts consisting largely of write-offs of deposits.

We perform our impairment analysis based on total inventory at the community level using discount rates that in the past have generally ranged from 12.0% to 20.5%. When an impairment charge for a community is determined, the charge is then allocated to each lot in the community in the same manner as land and development costs are allocated to each lot. Inventory within each community is categorized as construction in progress and finished homes, residential land and lots developed and under development, or land held for development, based on the stage of production or plans for future development.

Our estimate of undiscounted cash flows from these communities may change with market conditions and could result in a future need to record impairment charges to adjust the carrying value of these assets to their estimated fair value. Several factors could lead to changes in the estimates of undiscounted future cash flows for a given community. The most significant of these include pricing and incentive levels actually realized by the community, the rate at which the homes are sold and changes in the costs incurred to develop lots and construct homes. Pricing and incentive levels are often interrelated with sales pace within a community, given that price reductions generally lead to an increase in sales pace. Further, both of these factors are heavily influenced by the competitive pressures facing a given community from both new homes and existing homes, some of which may result from foreclosures. If conditions worsen in the broader economy, homebuilding industry or specific markets in which we operate, and as we re-evaluate specific community pricing and incentives, construction and development plans and our overall land sale strategies, we may be required to evaluate additional communities or re-evaluate previously impaired communities for potential impairment. We do not forecast any adjusted market improvement in our analysis above the original model we used as of the date of the Acquisition. For assets that are currently mothballed, assumptions are based on current development plans and current price pace and house costs of similar communities. These evaluations may result in additional impairment charges.

The life cycle of a community generally ranges from three to five years, commencing with the acquisition of unentitled or entitled land, continuing through the land development phase and concluding with the sale,

 

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construction and delivery of homes. Actual community lives will vary based on the size of the community, the sales absorption rate and whether we purchased the property as raw land or finished lots. In 2011 and 2010, we were actively selling in an average of 135 and 149 communities, respectively. For further details refer to Note 2 to the audited consolidated financial statements included elsewhere in this prospectus.

Capitalized Interest

We capitalize certain interest costs to inventory during the development and construction periods. Capitalized interest is charged to cost of sales when the related inventory is delivered or when the related inventory is charged to cost of sales under the percentage-of-completion method of accounting. For further details refer to Note 2 to our audited consolidated financial statements included elsewhere in this prospectus.

Investments in Unconsolidated Entities and Variable Interest Entities (VIEs)

In the ordinary course of business, we enter into land and lot option purchase contracts in order to procure land or lots for the construction of homes. Lot option contracts enable us to control significant lot positions with a minimal capital investment and substantially reduce the risks associated with land ownership and development. In June 2009, the FASB revised its guidance regarding the determination of a primary beneficiary of a VIE, ASC Topic 810-10, “ Consolidation.”

We have concluded that when we enter into an option or purchase agreement to acquire land or lots and pay a nonrefundable deposit, a VIE may be created because we are deemed to have provided subordinated financial support that will absorb some or all of an entity’s expected losses if they occur. For each VIE, we assess whether we are the primary beneficiary by first determining if we have the ability to control the activities of the VIE that most significantly impact its economic performance. Such activities include, but are not limited to, the ability to determine the budget and scope of land development work, if any; the ability to control financing decisions for the VIE; the ability to acquire additional land into the VIE or dispose of land in the VIE not under contract with us; and the ability to change or amend the existing option contract with the VIE. If we are not able to control such activities, we are not considered the primary beneficiary of the VIE. If we do have the ability to control such activities, we will continue our analysis by determining if we are expected to absorb a potentially significant amount of the VIE’s losses or, if no party absorbs the majority of such losses, if we will potentially benefit from a significant amount of the VIE’s expected gains. If we are the primary beneficiary of the VIE, we will consolidate the VIE in our financial statements and reflect such assets and liabilities as consolidated real estate not owned within our inventory balance in the accompanying consolidated balance sheet. For further details refer to Note 2 to the audited consolidated financial statements included elsewhere in this prospectus.

We are also involved in several joint ventures with independent third parties for our homebuilding activities. We use the equity method of accounting for investments that qualify as VIEs where we are not the primary beneficiary and entities that we do not control or where we do not own a majority of the economic interest, but have the ability to exercise significant influence over the operating and financial policies of the investee. For those unconsolidated entities in which we function as the managing member, we have evaluated the rights held by our joint venture partners and determined that they have substantive participating rights that preclude the presumption of control. For joint ventures accounted for using the equity method, our share of net earnings or losses is included in equity in net earnings (loss) of unconsolidated entities when earned and distributions are credited against our investment in the joint venture when received. See Note 3 to the audited consolidated financial statements included elsewhere in this prospectus.

Noncontrolling Interests

We have consolidated joint ventures where we were determined to be the primary beneficiary. Therefore, those entities’ financial statements are consolidated in our consolidated financial statements and the other partners’ equity is recorded as noncontrolling interests.

 

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Business Combinations

We account for businesses we acquire in accordance with ASC Topic 805, Business Combinations . Under the purchase method of accounting, the assets acquired and liabilities assumed are recorded at their estimated fair values. Any purchase price paid in excess of the net fair values of tangible and identified intangible assets less liabilities assumed is recorded as goodwill. Our reported income from an acquired company includes the operations of the acquired company from the effective date of acquisition.

Purchase Accounting

The accounting following the Acquisition is one where net assets of the company are brought forth at fair market value. We completed a third party appraisal of our assets and liabilities to determine the fair value of all tangible and intangible assets acquired and liabilities assumed. The value was recorded shortly after the sale, although there may be reasonable cause to adjust the value if new information is discovered that will prompt an adjustment to be made, which will be recorded in the current period earnings in accordance with the provisions of ASC Topic 805, “Business Combinations.”

The treatment of major components of the balance sheet is as follows:

 

   

Marketable securities—Current net realizable values

 

   

Receivables—Present value of net receivables using market interest rates

 

   

Inventories—Finished homes at estimated net realizable value less a market profit allowance. Work-in-process at estimated net realizable value of finished goods less costs to complete and profit allowance. Raw land and finished lots at appraised value

 

   

Identifiable intangibles—At appraised value

 

   

Other assets—At appraised values

 

   

Payables—At carrying values which approximate present values

 

   

Liabilities and accruals—At carrying values which approximate present values

 

   

Other liabilities and commitments—At estimated present value

Income Taxes

We account for income taxes in accordance with ASC Topic 740, “ Income Taxes.” Deferred tax assets and liabilities are recorded based on future tax consequences of both temporary differences between the amounts reported for financial reporting purposes and the amounts deductible for income tax purposes, and are measured using enacted tax rates expected to apply in the years in which the 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 earnings in the period when the changes are enacted.

In accordance with the provisions of ASC 740, we periodically assess our deferred tax assets, including the benefit from net operating losses, to determine if a valuation allowance is required. A valuation allowance must be established when, based upon available evidence, it is more likely than not that all or a portion of the deferred tax assets will not be realized. Realization of the deferred tax assets is dependent upon, among other matters, taxable income in prior years available for carryback, estimates of future income, tax planning strategies, and reversal of existing temporary differences. Given the downturn in the homebuilding industry over the past several years, the degree of the economic recession, the instability and deterioration of the financial markets, and the resulting uncertainty in projections of our future taxable income, we recorded a full valuation allowance against our deferred tax assets during 2007. We continue to maintain a valuation allowance against net deferred tax assets at September 30, 2012 and December 31, 2011, as we have determined that the weight of the negative evidence exceeds that of the positive evidence and it continues to be more likely than not that we will not be able to utilize all of our deferred tax assets and state net operating loss carryovers.

 

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Recently Adopted Accounting Pronouncements

In May 2011, the FASB issued Accounting Standards Update (ASU) 2011-04, which amended ASC Topic 820, “ Fair Value Measurements ,” providing a consistent definition and measurement of fair value, as well as similar disclosure requirements between U.S. GAAP and International Financial Reporting Standards. ASU 2011-04 changes certain fair value measurement principles, clarifies the application of existing fair value measurement, and expands the disclosure requirements. ASU 2011-04 was effective for us beginning January 1, 2012. The adoption of ASU 2011-04 did not have a material effect on our consolidated financial statements or disclosures.

In June 2011, the FASB issued ASU 2011-05, “ Presentation of Comprehensive Income .” ASU 2011-05 requires the presentation of comprehensive income in either (i) a continuous statement of comprehensive income or (ii) two separate, but consecutive statements. ASU 2011-05 was effective for us beginning January 1, 2012. As a result of the adoption of ASU 2011-05, we added separate but consecutive statements of comprehensive income. The impact of the retrospective application of such standard, including on segment information, is included in the discussion above for the nine months ended September 30, 2012.

Quantitative and Qualitative Disclosures about Market Risk

Our operations are interest rate sensitive. We monitor our exposure to changes in interest rates and incur both fixed rate and variable rate debt. For fixed rate debt, changes in interest rates generally affect the fair value of the debt instrument, but not our earnings or cash flows. Conversely, for variable rate debt, changes in interest rates generally do not impact the fair value of the debt instrument but may affect our future earnings and cash flows, and may also impact our variable rate borrowing costs, which principally relate to any borrowings under our Revolving Credit Facility and to any borrowings by TMHF under its various warehouse facilities. As of September 30, 2012, we did not have any outstanding borrowings under the Revolving Credit Facility. As of December 31, 2012, we had increased the total amount of commitments under the Revolving Credit Facility from $125.0 million to $225.0 million and borrowed $50.0 million under the Revolving Credit Facility to finance in part the acquisition of Darling, leaving $163.8 million of availability. See “Summary—Recent Developments.” Except in very limited circumstances, we do not have an obligation to prepay fixed rate debt prior to maturity and, as a result, interest rate risk and changes in fair value would not have a significant impact on our cash flows related to our fixed rate debt until such time as we are required to refinance, repurchase or repay such debt.

We are not exposed to interest rate risk associated with TMHF’s mortgage loan origination business, because at the time any loan is originated, TMHF has identified the investor who will agree to purchase the loan on the interest rate terms that are locked in with the borrower at the time the loan is originated.

The following table sets forth principal cash flows by scheduled maturity, effective weighted average interest rates and estimated fair value of our debt obligations as of September 30, 2012. The interest rate for our variable rate debt represents the interest rate on our mortgage warehouse facilities. Because the mortgage warehouse facilities are effectively secured by certain mortgage loans held for sale which are typically sold within 60 days, its outstanding balance is included as a variable rate maturity in the most current period presented.

 

(in million, except for percentage data)   

As of
September 30,

2012

    For the Years Ended December 31,                     
     2012      2013      2014      2015      Thereafter     Total     Fair Value  

Fixed Interest Rate Debt:

                    

Senior notes

     —          —           —           —           —         $ 675.0      $ 675.0      $ 721.6   

Average interest rate(1)

     —          —           —           —           —           7.75     7.75     —     

Variable Interest Rate Debt:

                    

TMHF Warehouse Facilities

   $ 35.9        —           —           —           —           —        $ 35.9      $ 35.9   

Average interest rate(2)

     3.96     —           —           —           —           —          3.96     —     

 

(1) Represents the coupon rate of interest on the full principal amount of the debt.
(2) As of December 31, 2012, we had borrowed $50.0 million under the Revolving Credit Facility to finance in part the acquisition of Darling, bearing interest at a variable rate, which equaled 3.46% as of such date.

 

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INDUSTRY

Housing Industry Conditions within the United States

The residential housing industry has historically been a significant contributor to economic activity in the United States. From 1970 to 2007, the residential housing sector represented an average of approximately 4.5% of annual U.S. GDP and then declined to an average of 2.5% of annual U.S. GDP from 2008 to 2011. Similarly, total new home starts averaged 1.55 million per year from 1960 to 2007 and then declined to an average of 663,000 per year from 2008 to 2011, a declined of over 57%. The following charts show total U.S. households, U.S. GDP, residential investment as a percentage of GDP and annual total new home starts.

 

Total Households (in millions)    U.S. Gross Domestic Product ($ in billions)
LOGO   

LOGO

 

 

Residential Investment as a % of GDP

   Annual Total New Home Starts (in thousands)
LOGO    LOGO

The U.S. housing industry experienced substantial growth from the beginning of 2000 through the end of 2005. Single-family housing starts, closings, and new home sales increased at CAGRs of 6.9%, 5.6% and 7.9%, respectively, during this period. In addition, according to the U.S. Census Bureau, the median sales price for a new single-family home in the United States increased from $169,000 to $240,900 between 2000 and 2005, representing a 7.3% CAGR. During this period, growth momentum encouraged significant and ultimately unsustainable new home supply expansion. In 2005, peaks were realized in total new home starts, single-family new home starts and new home sales. With economic growth modestly decelerating and interest rates (higher on average) affecting affordability, housing starts and new home sales began to decline in 2006, while closings peaked.

Beginning in 2007, single-family starts and new home sales meaningfully decreased as unemployment increased, consumer confidence deteriorated and mortgage financing became increasingly difficult to obtain. High unemployment, reaching 10.2% in October 2009, had a dampening effect on homebuyer demand and contributed to an increase in home mortgage defaults.

 

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According to the U.S. Census Bureau, the downturn in the U.S. housing industry lasted approximately 73 months, with the market appearing to have reached a trough in December 2011. Since that time, a number of housing indicators have shown improvement. Inventories of existing and new homes have continued to fall, sales of new homes have increased, housing starts have increased, the national unemployment rate declined to 7.9% as of October 2012 and mortgage payments past due over 90 days decreased to approximately 3.0%, which is the lowest level since 2008. The following charts show new and existing home inventory as a percentage of total housing stock, housing affordability and payrolls.

 

New Inventory as a % of Housing Stock

 

LOGO

  

Existing Inventory as a % of Housing Stock

 

LOGO

National Affordability Index

 

LOGO

  

Non-Farm Payrolls, Excluding Construction

and Government (Year-Over-Year Change)

 

LOGO

We believe that a strong fundamental U.S. housing recovery is underway on a national basis, driven by consumers who are increasingly optimistic about their economic prospects and supported by several positive economic and demographic factors including improving employment growth, an increase in consumer confidence bolstered by increasing home values and improving household finances, improving sentiment towards residential real estate ownership, accelerating household formation, significant declines in new and existing for-sale home inventory and record low interest rates supporting affordability and home ownership.

 

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We believe that the improvement in the U.S. housing market is well illustrated by a number of key housing benchmarks and statistics. According to the U.S. Census Bureau, building permits for privately owned homes in October 2012 were estimated at a seasonally adjusted annual rate of 866,000, representing an approximate 30% increase over the October 2011 estimate of 667,000. The increase in new building permits is consistent with an average of 30% and 48% year-over-year growth in new orders and backlog reported by the 10 largest publicly traded homebuilders (ranking based on 2011 revenues per Hanley Wood), respectively, based on the most recently reported quarterly data as of the date of this prospectus. In addition, home prices in the United States are generally increasing. According to the National Association of Realtors, U.S. median home prices improved on a year-over-year basis in 120 out of 149 MSAs in the third quarter of 2012. Based on data from the U.S. Census Bureau, in October 2012, new home prices increased approximately 12% year-over-year.

Change in Home Prices, Year-Over-Year

 

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Housing Industry Conditions within Ontario, Canada

The Canadian housing market has been more stable than the U.S. housing market over the last five years. The relative consistency of the Canadian housing market, particularly in Ontario where we operate, is principally a result of demand due to growth in employment and immigration. The Canadian housing market has also exhibited stable housing starts, a balanced sales-to-listings ratio and steady long-term growth in housing prices. In addition, Canadian home buying practices reflect a number of helpful structural, mortgage lending, legal and general market characteristics that have allowed the Canadian housing market to grow at a sustainable pace and to experience significantly lower mortgage default rates over the past decade, as compared to the United States.

The charts below show the number of starts and completions in Ontario and Canada from 2001 to 2011 and the nine month period ended September 30, 2012 with housing starts and completions in Ontario generally following a similar pattern to Canada.

 

Ontario Residential Building Activity

 

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Canadian Residential Building Activity

 

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Canada has historically experienced steady long term growth in new home prices over the last 25 years. Similarly, new home prices in Ontario have tracked the Canadian market, although the rate of increase has recently moderated, as illustrated below:

New House Prices in Canada and Ontario

(Indexed to January 1986)

 

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Ontario represents approximately one-third of the total Canadian new home market, as measured by total housing starts, and benefits from positive demographic and economic growth trends. For example, the population and GDP of Ontario between 2008 and 2011 increased by approximately 4.5% and 9.5%, respectively. Ontario housing starts increased from 68,123 in 2007 to an estimated level of 77,600 in 2012, representing a CAGR of approximately 2.6%. Similarly, average home prices in Ontario increased from CAD$299,610 in 2007 to an estimated average price of CAD$386,000 in 2012, representing a CAGR of approximately 5.2%. With slowing job growth relative to the recent past, ongoing global economic uncertainty and increasing units under construction, it is anticipated that Ontario housing starts will moderate to approximately 65,000 and average home prices will remain flat at approximately CAD$386,400 in 2013.

 

Ontario, Canada Population

(in thousands)

 

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Ontario, Canada GDP

(CAD$ in millions)

 

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The GTA is the most important market in our Canadian business. The supply of land in the GTA is constrained due to governmental regulations. In 2005, the provincial government of Ontario established the “Greenbelt” plan protecting approximately 1.8 million acres of farmland and green space around the city of Toronto. This regulation limited urban expansion for homebuilders by constraining the supply of land available for development. Our high-rise development expertise has allowed us to adapt to this regulatory challenge.

 

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Structural Characteristics of the Canadian Housing Market

The Canadian housing market has a number of stabilizing structural, mortgage financing and legal characteristics that have helped maintain a more sustainable pace over the past decade.

In Canada, almost all mortgages are “full recourse” loans, which means that the borrower remains responsible for the mortgage even in the case of foreclosure. The laws of most Canadian jurisdictions permit home mortgage lenders to seek to apply all other assets of the borrower against the mortgage and even to garnish future earnings of the borrower in the event of default. In contrast, many mortgages in the United States are “limited recourse” which provide for more limited remedies. As illustrated below, mortgage delinquencies in arrears for more than 90 days in Canada even at the peak of the global recession did not exceed 0.45%, as compared to 5.0% in the United States.

Mortgage Delinquency Rates

 

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Notable characteristics of the Canadian housing market include:

 

   

conservative banking practices, including those resulting from the Canadian Office of the Superintendent of Financial Institutions imposing a maximum leverage multiple of 20 for federally regulated banks;

 

   

housing supply constraints, particularly in Ontario;

 

   

Canada’s historical resistance to short-term swings in demand, especially in the high-rise markets; and

 

   

increased population density in major Ontario urban centers resulting from steady and significant immigration flows.

Notable characteristics of the Canadian mortgage market include:

 

   

mortgage interest is not tax deductible;

 

   

the most common mortgage in Canada is a fixed-rate loan that comes due in five years and requires principal payments prior to maturity based on a 25-year amortization schedule, whereas the most common mortgage in the United States comes due in 30 years and requires principal payments prior to maturity based on a 30-year amortization schedule;

 

   

homebuyers with a downpayment of less than 20% of the purchase price are required to obtain mortgage loan insurance backed by CMHC;

 

   

Canadian mortgage institutions do not offer subprime mortgages; and

 

   

the Canadian Federal government continued to tighten mortgage lending rules during the first nine months of 2012, in line with prior actions to limit excessive borrowing in the Canadian residential mortgage market.

 

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BUSINESS

Our Business Overview

Upon completion of this offering, we will be the sixth largest public homebuilder in North America based on 2011 revenues as reported by Hanley Wood. Headquartered in Scottsdale, Arizona, we build single-family detached and attached homes and develop land, which includes lifestyle and master planned communities. We are proud of our legacy of more than 75 years in the homebuilding industry, having originally commenced homebuilding operations in 1936. We operate under our Taylor Morrison brand in the United States and under our Monarch brand in Canada.

Our business is organized into three geographic regions: East, West and Canada, which regions accounted for 46%, 36% and 18%, respectively, of our net sales orders (excluding unconsolidated joint ventures) for the nine months ended September 30, 2012. Our East region consists of our Houston, Austin, Dallas, North Florida and West Florida divisions. Our West region consists of our Phoenix, Northern California, Southern California and Denver divisions. Our Canada region consists of our operations within the province of Ontario, primarily in the GTA and also in Ottawa and Kitchener-Waterloo, and offers both single-family and high-rise communities.

In all of our markets, we build and sell a broad mix of homes across price points ranging from $120,000 to more than $1,000,000. Our emphasis is on designing, building and selling homes to first- and second-time move-up buyers. We are well-positioned in our markets with a top-10 market share (based on 2012 home closings through September 30, 2012 as reported by Hanley Wood and 2011 home sales as reported by Real Net Canada) in 15 of our 19 total markets.

As explained in greater detail below, our management believes our business is distinguished by our:

 

   

strong historical financial performance and industry-leading margins;

 

   

strong balance sheet with sufficient liquidity with which to execute our growth plan;

 

   

significant land inventory, representing approximately nine years of land supply based on our trailing twelve-month closings, carried at a low cost basis;

 

   

top-10 market share in high-growth homebuilding markets;

 

   

profitable Canadian business;

 

   

expertise delivering “lifestyle” communities targeted at first- and second-time move-up buyers; and

 

   

reputation for quality, based on customer surveys.

During the nine months ended September 30, 2012, we closed 2,586 homes, consisting of 1,880 homes in the United States and 706 in Canada, including 204 homes in unconsolidated joint ventures, with an average sales price across North America of $347,000. During the same period, we generated $879.0 million in revenues, $81.8 million in net income and $125.1 million in Adjusted EBITDA (for a discussion of how we calculate Adjusted EBITDA and a reconciliation of Adjusted EBITDA to net income, see footnote 5 in “Prospectus Summary—Summary Historical and Pro Forma Consolidated Financial and Other Information”). In the United States, for the nine months September 30, 2012, our sales orders increased approximately 47% as compared to the same period in 2011, and we averaged 3.0 sales per active selling community per month compared to an average of 1.7 sales per active selling community per month for the same period in 2011. As of September 30, 2012, we offered homes in 122 active selling communities and had a backlog of 4,205 homes sold but not closed, including 903 homes in unconsolidated joint ventures, with an associated backlog sales value of approximately $1.5 billion.

 

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Our Competitive Strengths

Our business is characterized by the following competitive strengths:

Strong historical financial performance with industry-leading margins

We have a profitable and scalable operating platform, which we believe positions us well to take advantage of the continued recovery we expect in the U.S. housing industry. We are among a select few of our public homebuilding peers to be profitable in both 2010 and 2011. We generated net income of $90.6 million in 2010, $76.8 million in 2011 and $81.8 million for the nine months ended September 30, 2012. Our pre-tax income margin for the nine months ended September 30, 2012 was 9.3%, which was the highest among the top 10 publicly traded homebuilders for the last three completed fiscal quarters, based on data from the public filings of those homebuilders.

We believe that our management approach, which balances a decentralized local market expertise with our centralized executive management focus on maximizing efficiencies, will support our strong margins and further grow our profitability. Our operating platform is scalable, which we believe allows us to increase volume, while at the same time improving profitability and driving shareholder returns.

During the recent housing downturn, we improved our margins by aligning our headcount to reflect local and national industry conditions, standardizing systems and processes across business units and reducing construction and procurement costs through standardized national, regional and local contracts. As a result of our initiatives, we:

 

   

improved our adjusted home closings gross margin by approximately 440 basis points from 17.6% in 2008 to 22.0% in 2011, despite the decline in our home closings revenue from $1.7 billion in 2008 to $1.3 billion in 2011 (for a discussion of how we calculate adjusted home closings gross margin and a reconciliation of adjusted home closings gross margin to home closings revenue, see footnote 4 under the caption “Prospectus Summary—Summary Historical and Pro Forma Consolidated Financial and Other Information”);

 

   

carefully managed our costs, as evidenced by reducing employee headcount by approximately 52% between December 31, 2007 and December 31, 2011, from 1,434 employees to 693. Our headcount at September 30, 2012 was 783 employees;

 

   

generated revenue per employee of $2.0 million in 2011 (based on the number of full-time equivalent employees at year end), which we believe is among the highest of our public homebuilding peers, based on data from the public filings of those homebuilders, and reduced SG&A expense as a percentage of home closings revenue to 10.9%; and

 

   

reduced average vertical house construction costs per square foot by 9.5% from December 31, 2008 to December 31, 2011.

Strong balance sheet with sufficient liquidity for growth

We are well-positioned with a strong balance sheet and sufficient liquidity with which to service our debt obligations, support our ongoing operations and take advantage of growth opportunities as the expected recovery in the U.S. housing market continues. At September 30, 2012, on a pro forma basis, we would have had $         million of unrestricted cash, approximately $120.0 million of availability under our Revolving Credit Facility. Also at September 30, 2012, on a pro forma basis, we had a strong net debt-to-net book capitalization of     % (or total debt-to-total book capitalization of     %) and an attractive debt maturity profile, with less than 20% of our approximately $834.1 million of outstanding debt maturing before 2020.

The balance sheet carrying value of our entire inventory base was adjusted to fair market value as of the date of the Acquisition in July 2011. The purchase accounting adjustments resulted in a comprehensive revaluation of our entire land inventory near the bottom of the recent U.S. housing downturn. In contrast, our competitors have

 

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only been required, from time to time, to take impairment charges using the “impairment accounting” U.S. GAAP methodology applied to their land inventory. Giving effect to the Acquisition-related purchase accounting adjustments, the carrying value of our U.S. land inventory at the time of the Acquisition represented 52% of its original cost. We believe this reduced cost basis positions us to generate strong margins in the future.

As of September 30, 2012, we have a fully reserved deferred tax asset, a portion of which (approximately $200 million) may reduce cash taxes payable in the future, subject to various federal and state carryforward limitations.

Significant land inventory carried at a low cost basis

We continue to benefit from a sizeable and well-located existing land inventory. As of September 30, 2012, we owned or controlled 34,965 lots, including unconsolidated joint venture lots, which equated to approximately nine years of land supply based on our trailing twelve-month closings of 3,811 homes. Our land inventory reflects our balanced approach to investments, yielding a distribution of finished lots available for near-term homebuilding operations and strategic land positions to support future growth. Our significant land inventory allows us to be selective in identifying new land acquisition opportunities and positions us against potential land shortages in markets that exhibit land supply constraints. In addition, some of our holdings represent multi-phase, master planned communities, which provide us with the opportunity to utilize our development expertise to add value through re-entitlements, repositioning and/or opportunistic land sales to third parties.

Since January 1, 2009, we have spent approximately $915 million on new land purchases, acquiring 17,295 lots, of which 12,534 currently remain in our lot supply. We believe a substantial portion of our current land holdings was purchased at attractive prices at or near the low point of the market. We believe our local, well-established relationships with land sellers, brokers and investors and our knowledge of the local markets position us to be quick to market both to identify land and to gain access to decision makers. We believe that our long-held reputation as a leading homebuilder and developer of land, combined with our balance sheet strength and our active opportunistic purchasing of land through the downturn, gives land brokers and sellers confidence that they can close transactions with us on a timely basis and with minimal execution risk. The following table sets forth our owned and controlled lot inventory by region as of September 30, 2012:

 

Lot Inventory by Region

   As of September 30, 2012  
   Owned      Controlled*  

East

     11,930         5,382   

West

     8,768         1,593   

Canada

     4,955         2,337   
  

 

 

    

 

 

 

Total

     25,653         9,312   
  

 

 

    

 

 

 

 

  * Controlled lots are those subject to a contract or option to purchase.

Strong market position and local presence in high-growth homebuilding markets

Our focused geographic footprint positions us to participate in the expected recovery in the U.S. housing market. The U.S. housing market experienced a significant downturn from 2006 to 2011 but has recently has shown signs of recovery. We currently operate exclusively in states benefitting from positive momentum in housing demand drivers, including nationally leading population and employment growth trends, migration patterns, housing affordability and desirable lifestyle and weather characteristics. The five states in which we operate accounted for 30% of the total 2010 U.S. population of 309 million and 34% of the 483,500 building permits issued for privately owned homes in the twelve months ended September 30, 2012.

 

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2000 – 2010 Annual Population Growth

 

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Total Permits, Last Twelve Months

 

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Our land inventory is concentrated in markets that have experienced significant improvement in home prices. We believe that our geographic footprint enables us to capture the benefits of expected increasing home volumes and home prices as the U.S. housing recovery continues and demand for new homes increases. The following table sets forth, for each of our U.S. markets, information relating to growth in median existing home price, projected growth in employment, projected growth in single-family permits, home affordability and our market ranking.

 

U.S. Market

   Median existing
home price

1-yr growth
rate as of
Sept. 30, 2012
    Employment
growth
2012-2014
estimated CAGR
    Single-Family
permit growth
2012-2014
estimated CAGR
    Affordability
ratio (1)  as of
Sept. 30,
2012
    2012 YTD
Taylor Morrison
market share
ranking  (2)
 

Austin

     8.1     3.9     32.3     69.6     9   

Dallas (3)

     7.1        3.2        39.3        79.7        17   

Denver

     6.6        2.8        65.5        67.0        9   

Fort Myers

     4.4        3.7        87.3        86.2        8   

Houston (3)

     7.1        3.0        22.0        75.2        8   

Jacksonville

     (2.5     2.2        59.5        84.2        8   

Naples

     2.2        3.5        62.4        52.3        9   

Orange County

     1.5        2.4        56.8        47.2        5   

Orlando

     5.2        2.8        68.5        81.7        9   

Phoenix

     25.4        2.9        93.2        80.0        4   

Sacramento

     3.6        2.5        82.3        72.5        5   

San Diego

     1.0        2.5        79.9        48.4        16   

San Francisco

     4.8        2.6        57.6        33.6        12   

San Jose

     9.9        2.5        45.8        39.0        8   

Sarasota

     11.3        2.9        58.1        73.0        7   

Tampa          

       8.8        2.2        48.2        76.4        5   

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

TM market average

     6.5 %       2.9 %       59.9 %       66.6 %       8   

US average

     3.4        2.3        56.8        68.6        N/A   

 

Source: Hanley Wood.

(1) The affordability ratio is the percentage of households that can afford the median-priced existing home. The calculation assumes a 20% down payment and a 30-year fixed rate mortgage at the Freddie Mac mortgage rate published just prior to period end and assumes that total monthly payments (including mortgage, property taxes and insurance) cannot exceed 30% of gross household income.

 

(2) Market rankings based on number of home closings between January 1, 2012 and September 30, 2012.

 

(3) Includes the historical business of Darling Homes for periods prior to its acquisition by us on December 31, 2012. See “—Recent Developments.”

 

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We are well-positioned within our markets. As set forth in the table above, we have a top-ten market share in 14 of our 16 U.S. markets. We believe that maintaining significant market share within our markets enables us to achieve economies of scale, differentiates us from most of our competitors and increases our access to land acquisition opportunities.

Profitable Monarch business in Ontario

We benefit from increased diversification through our presence in the Canadian housing market because of our Monarch business in Ontario. Monarch Corporation delivered its first home in 1936 and since that time has become a recognized brand in Canada. Monarch Corporation has generated stable income and cash flow and has been profitable every year since 1941. Since 2008, the first full year after our U.S. and Canadian operations were combined, our Canada region has generated between 27% and 46% of our annual revenues and has played an important role in delivering growth, profitability and cash flow, which helped us withstand the recent downturn in the U.S. housing industry. As of September 30, 2012, Monarch Corporation had $845.9 million in backlog of homes sold and to be delivered in 2012 through 2016, including $317.9 million of unconsolidated joint venture backlog.

Monarch Corporation has six wholly owned and joint venture high-rise developments in the GTA which are expected to close and recognize revenue in 2013 and 2014 and which have sold in excess of 95% of the aggregate number of the homes offered in those developments. These high-rise developments are expected to recognize in excess of $350 million in total revenues, a portion of which we will recognize as joint venture income on an equity method basis. The sales contracts for these homes are typically supported with a deposit of up to 20% of the purchase price and are full-recourse to the buyer, allowing Monarch Corporation to retain the deposit and pursue any shortfall from the remaining purchase price of a home in the event of a default by a homebuyer. Over the last five years, Monarch Corporation’s cancellation rate has not exceeded 1%. Furthermore, substantially all of our construction costs have been contracted, and each development has project-level finance in place to fund construction costs.

Expertise in delivering lifestyle communities targeted at first- and second-time move-up buyers

We focus on developing lifestyle communities, which have many distinguishing attributes, including proximity to job centers, strong school systems and a variety of amenities. Within our communities, we offer award-winning home designs through our single-family detached, single-family attached and high-rise condominium products. We engineer our homes for energy-efficiency, which is aimed at reducing the impact on the environment and lowering energy costs to our homebuyers.

During the economic downturn, we maintained our core business strategy of focusing on first- and second-time move-up buyers, whereas we observed many homebuilders refocus their businesses on lower-priced homes. We believe our experience in the move-up market allows us to significantly expand our new home offerings at higher price points. Our average selling price was $347,000 for the nine months ended September 30, 2012, which ranked us among the top quartile for average selling price of public homebuilders. We believe homebuyers at these higher price points are more likely to value and pay for the quality of lifestyle, construction and amenities for which we are known.

 

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While we primarily target move-up buyers, our portfolio also includes homes for entry-level, luxury and active adult buyers (55 years of age and over). We have the expertise and track record in designing and delivering lifestyle products and amenities that we believe appeal to active adult buyers. We believe that through our geographic footprint, we are well-positioned to capture greater share of the active adult market, with new active adult communities planned to open in Florida and Colorado in 2013.

 

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Our captive mortgage company allows us to offer financing to our homebuyers and to more effectively convert backlog into closings

We directly originate, underwrite and fund mortgages for our homebuyers through our wholly owned mortgage lending company TMHF. TMHF maintains relationships with several correspondent lenders through which it utilizes its Principal Authorized Agent designation to mitigate the underwriting risk associated with its funding of mortgage loans. We believe TMHF provides a distinct competitive advantage relative to homebuilders without captive mortgage units, since many of our buyers seek an integrated home buying experience. While we believe many other homebuilders with a captive mortgage company use a single lender, our multi-lender platform provides us with the ability to leverage a broad range of products and underwriting and pricing options for the benefit of the homebuyers. Therefore, TMHF allows us to use mortgage finance as an additional sales tool, helps ensure and enhance the customer experience, prequalifies buyers earlier in the home buying process, provides us better visibility in converting our sales backlog into closings and is a source of incremental revenues and profitability. TMHF outperforms a number of builder-affiliated mortgage companies, as evidenced by our industry-leading capture rate of 84% in 2012 (compared to an industry average of 73%, based on the most recent fiscal year data). TMHF also had one of the lowest sales cancellation rates among our publicly traded peers with mortgage units, which was 15% in 2012, compared to an average of 19% among the top 13 public U.S. homebuilders, based on the most recent fiscal year data. During the nine months ended September 30, 2012, TMHF closed 1,292 loans with an aggregate loan volume of approximately $330 million, representing a capture rate of 84%. TMHF is independently financed on a non-recourse basis and originates mortgages that have been subject to disciplined underwriting standards, illustrated by the fact that TMHF’s average borrower FICO score was 738 for the nine months ended September 30, 2012. TMHF also has the lowest rate of early defaults, based on delinquent Federal Housing Administration loans, compared with public builder-affiliated mortgage companies. For the nine months ended September 30, 2012, we reported net income from TMHF of $6.0 million.

 

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Highly experienced management team

We benefit from an experienced management team that has demonstrated the ability to generate positive financial results and adapt to constantly changing market conditions. The ability to execute during highly challenging conditions is exemplified by our performance and focus on efficiency and profitability over the past several years. In addition to our corporate management team, our division presidents bring substantial industry knowledge and local market expertise, with an average of approximately 18 years of experience in the homebuilding industry. Our success in land acquisition and development is due in large part to the caliber of our local management teams, which are responsible for the planning, design, entitlements and eventual execution of the entire community. Unlike some of our homebuilding peers, our management team chose to retain a core competency in land acquisition and development during the recent downturn, which positions us to more effectively identify and capitalize on land opportunities in the current market. We believe our managers’ local, regional and national industry knowledge enables us to quickly and effectively evaluate and capitalize on market opportunities in order to optimize our business.

Our Growth Strategy

We have performed well through the unprecedented challenges of the recent economic downturn. We believe we are well-positioned for growth and increased profitability in an improving housing market through disciplined execution of the following elements of our growth strategy:

Drive revenue by opening new communities from existing land supply

Over the last few years we have strategically invested in new land in our core markets. Our land supply provides us with the opportunity to increase our community count on a net basis by approximately 20% in each of 2013 and 2014. A significant portion of our land supply was purchased at low price points during the recent downturn in the housing cycle. Although future downturns may occur, these land purchases, coupled with the adjustment of our land cost basis to fair market value at the time of our Acquisition, are expected to result in continued revenue growth and strong gross margin performance from our U.S. communities.

Combine land acquisition and development expertise with homebuilding operations to maximize profitability

Our ability to identify, acquire and develop land in desirable locations and on favorable terms is critical to our success. We evaluate land opportunities based on how we expect they will contribute to overall corporate profitability and returns, rather than how they might drive volume on a regional or submarket basis. We continue to use our local relationships with land sellers, brokers and investors to seek to obtain the “first look” at quality land opportunities. We expect to continue to allocate capital to pursue creative deal structures and other opportunities with the goal of achieving superior returns by utilizing our development expertise, efficiency and opportunistic mindset.

We continue to combine our land development expertise with our homebuilding operations to increase the flexibility of our business, to enhance our margin performance and to control the timing of delivery of lots. Unlike many of our competitors, we believe we are able to increase the value of our land portfolio through the zoning and engineering process by creating attractive land use plans and optimizing our use of land, which ultimately translates into greater opportunities to generate profits. Many of our competitors focus on buying finished lots from land developers, an approach that often reduces their margins, especially when competition for finished lots is high. By contrast, we will continue to deploy our well-established land development capability in each of our markets, allowing us to generate margins both from land development and homebuilding.

 

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Focus our offerings on targeted customer groups

Our goal is to identify the preferences of our target customer and demographic groups and offer them innovative, high-quality homes that are efficient and profitable to build. To achieve this goal, we conduct extensive market research to determine preferences of our customer groups. We do not employ “off the shelf” industry-standard customer groups (which tend to focus on classification by price point) in our marketing programs. Instead, through extensive and targeted market research, we have identified seven consumer groups by focusing on particular lifestyle preferences, tastes and other attributes of our customer base. Our group classification includes four categories of couples or singles, such as our “Fancy Nesters” customers, and three categories of families, such as our “Parks and Prestige” customers.

Our approach to consumer group segmentation guides all of our operations from our initial land acquisition through our design, building, marketing and delivery of homes and our ongoing after-sales customer service. Among our peers, we believe we are at the forefront of directed-marketing strategies, as evidenced by our highly-trafficked website which provides innovative tools that are designed to enhance our customers’ homebuying experience.

Build aspirational homes for our customers and deliver superior customer service

We develop communities and build homes in which our target customers aspire to live. In order to deliver aspirational homes, we purchase well-located land and focus on developing attractive neighborhoods and committees with desirable lifestyle amenities. Our efforts culminate in the design and construction of thoughtfully detailed finished homes utilizing the highest construction standards.

Our success rests not only on our ability to deliver exceptional products, but also to provide extensive after-sales service to ensure buyer satisfaction and establish long-term customer relationships. We are committed to after-sales service that we believe can improve our brand recognition and encourage our customers to make referrals resulting in lower customer acquisition costs and increased home sales rates. Both the Taylor Morrison and Monarch brands have received numerous accolades and awards for quality, service and design by homebuilding industry trade groups and publications, such as the 2009 award for “Best Customer Experience” by a large homebuilder in the United States by AVID Awards and Builder magazine’s “Builder’s Choice” Hall of Fame award in 2009.

Selectively pursue acquisitions

Our company was formed through the combination of Taylor Woodrow and Morrison Homes in the United States, forming Taylor Morrison, and Monarch Corporation in Canada. We have successfully acquired and integrated homebuilding businesses in the past and intend to utilize our experience in integrating businesses as opportunities for acquisitions arise.

We selectively evaluate expansion opportunities in our existing markets as well as in new markets that exhibit positive long-term fundamentals. For instance, in December 2012 we acquired the assets of Darling, a Texas-based home builder. Darling build homes under the Darling Homes brand for move-up buyers in approximately 25 communities in the Dallas-Fort Worth Metroplex and 19 communities in the Greater Houston Area markets. We believe that our success in integrating operations across both a wide range of geographic markets and product types demonstrates the scalable nature of our business model and provides us with the structure to support disciplined growth in existing and new markets.

 

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Adhere to our core operating principles to drive consistent long-term performance

We recognize that the housing market is cyclical and home price movement between the peak and trough of the cycle can be significant. We seek to maximize shareholder value over the long-term and therefore operate our business to mitigate risks from downturns in the market and to position ourselves to capitalize on upturns in the market: we seek to control costs, maintain a strong balance sheet and ensure an overall strategic focus that is informed by national, regional and local market trends. This management approach also includes the following elements:

 

   

attracting and retaining top talent through a culture in which team members are encouraged to contribute to our success and are given the opportunity to recognize their full potential;

 

   

balancing decentralized local day-to-day decision-making responsibility with centralized corporate oversight;

 

   

ensuring all team members understand the organization’s strategy and the goals of the business and have the tools to contribute to our success;

 

   

centralizing management approval of all land acquisitions and dispositions under stringent underwriting requirements; and

 

   

maintaining a performance-based corporate culture committed to the highest standards of integrity, ethics and professionalism.

Our Markets and Products

Our business is organized into three geographic regions: East, West and Canada. Each of our regions is an operating segment and is comprised of multiple divisions. Each of our divisions is primarily run as a standalone business by local management teams under the supervision of a division President. The division Presidents in turn report to a regional President, with the three regional Presidents reporting directly to our President and Chief Executive Officer.

East Region

Our East region consists of our Houston, Austin, Dallas, North Florida and West Florida divisions. The Houston, Austin and West Florida divisions have historically operated as both merchant builders and community developers, while the North Florida division has historically operated as a merchant builder. Community development includes the acquisition and development of large-scale communities that may include significant planning and entitlement approvals and construction of off-site and on-site utilities and infrastructure. In contrast, merchant builders generally acquire fully planned and entitled lots and may construct on-site improvements but normally do not construct significant off-site utility or infrastructure improvements.

 

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West Region

Our West region consists of our Phoenix, Northern California, Southern California and Denver divisions. The Denver, Northern California and Southern California divisions have historically operated as merchant builders, while the Phoenix division has historically operated as both a merchant builder and a community developer.

 

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Canada

Our Canada region consists of our operations within the province of Ontario, primarily in the GTA and also in Ottawa and Kitchener-Waterloo, and offers both single-family and high-rise communities. Our high-rise products are exclusively offered in the GTA, where demand for high-rise living is greatest.

The GTA, Ottawa and Kitchener-Waterloo are the top three housing markets in Ontario (based on number of permits), and Ontario represents over one-third of the total Canadian housing market (based on number of permits), in each case as reported by CMHC. Monarch Corporation’s signature single-family residential communities include golf courses, locations adjacent to conservation areas or centrally located communities near the heart of each city and that are close to amenities. Monarch Corporation’s GTA high-rise condominiums are typically located near employment centers, subway stations and shopping malls.

 

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The following table summarizes the historical mix in closings, including unconsolidated joint venture closings, for the years ended December 31, 2009 through 2011.

Historical Closings

 

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Our Homes

We offer a wide range of high-quality homes to consumers in our markets, ranging from entry-level to luxury homes. We strive to maintain appropriate consumer product and price level diversification. We target the largest and most profitable consumer groups while ensuring the division portfolios are not overly concentrated in

 

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any one group. Our ability to build at multiple price points enables us to adjust readily to changing consumer preferences and affordability. We also use measures of market-specific supply and demand to determine which consumer groups are ultimately targeted and will be the most profitable in a specific land position.

We market single-family homes with many amenities to entry-level through move-up homebuyers. We believe that our reputation as a builder of homes for the first- and second-time move-up markets enhances our competitive position with respect to the sale of our smaller, more moderately priced single-family detached and attached homes enabling us to capture more margin.

We have developed a number of home designs with features such as one-story living and first floor master bedroom suites to appeal to universal design needs, as well as communities with recreational amenities such as golf courses, pool complexes, country clubs and recreation centers. We have integrated these designs and features in many of our homes and communities.

We offer some of the same basic home designs in similar communities and engage unaffiliated architectural firms to develop new designs to replace or augment existing ones in order to ensure that our homes reflect current and local consumer tastes. During the past year, we introduced 220 floor plans.

Geographic buyer profiles for our different lines of homes at September 30, 2012, was as follows (including unconsolidated joint ventures):

 

     Phoenix     Northern
California
    Southern
California
    Denver     North
Florida (1)
    West
Florida
    Houston     Austin     Canada
Single-
Family
    Canada
High-
Rise
 

Closings:

                    

Entry-level

     152        133        30        29        161        196        125        55        —          —     

1 st Move-up

     177        93        89        76        63        29        166        58        591        195   

2 nd Move-up

     139        87        43        36        101        32        140        108        346        —     

Active Adult

     —          —          6        —          9        181        14        54        —          —     

Urban

     —          —          —          —          56        41        —          —          —          —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

     468        313        168        141        390        479        445        275        937        195   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Closings as a % of Total:

                    

Entry-level

     32     42     18     21     41     41     28     20     0     0

1 st Move-up

     38        30        53        54        16        6        37        21        63        100   

2 nd Move-up

     30        28        26        25        26        6        32        39        37        0   

Active Adult

     0        0        3        0        2        38        3        20        0        0   

Urban

     0        0        0        0        15        9        0        0        0        0   

Product Mix

                    

Detached

     100     55     51     100     72     86     100     100     100     0

Attached

     0        45        49        0        28        14        0        0        0        100   

 

(1) Includes Mirasol Country Club closings in Southeast Florida.

In most of our single-family detached home communities, we offer at least four different floor plans, each consistent with local market design expectations. In addition, the exterior of each basic floor plan may be varied further by the use of stone, stucco, brick or siding. Our traditional attached home communities generally offer several different floor plans that consist of two, three or four bedrooms.

In most of our communities, a wide selection of options and upgrades are available to homebuyers for additional charges. The number and complexity of options varies by community and are based on the specific demands of each particular consumer group. Our architectural options could include additional garages, guest suites, finished lofts and extra fireplaces. These options usually add significant additional revenues without significant costs, further improving the margin on the home.

 

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Market Position

We are disciplined in our selection of markets in which to operate, considering the underlying supply and demand, competitiveness, employment base and profitability specific to each location. Our markets have historically had strong population growth rates and a level of population density conducive to rising sales volumes. We operate in 10 of the 35 largest homebuilding markets in the United States (based on 2011 new single-family permits reported by the U.S Census Bureau).

 

2011 U.S.
Market Size
Ranking (1)

  

Market

  

Single-family permits

1

   Houston-Baytown-Sugarland,TX    22,738

4

   Phoenix-Mesa-Scottsdale, AZ    7,389

5

   Austin-Round Rock, TX    6,242

12

   Orlando, FL    4,554

13

   Tampa-St. Petersburg-Clearwater, FL    4,514

17

   Los Angeles-Long Beach-Santa Ana, CA    4,154

22

   Denver-Aurora, CO    3,595

23

   Riverside-San Bernardino-Ontario, CA    3,453

27

   Jacksonville, FL    3,245

33

   San Francisco-Bay Area, CA    2,900

 

(1) Measured by single-family residential permits based on U.S. Census data.

Monarch Corporation’s three active Canadian markets of the GTA, Ottawa and Kitchener-Waterloo make up the top three homebuilding markets in Ontario and all are ranked in the top 10 Canadian homebuilding markets (based on 2011 new housing starts as reported by CMHC).

 

2011 Canadian
Market Size
Ranking (1)

  

Market

  

Total housing starts

1

   Toronto, Ontario    39,745

6

   Ottawa, Ontario    8,214

10-tie

   Kitchener, Ontario    2,954

 

(1) Measured by total housing starts based on data from the CMHC.

Warranty Program

In the United States, we offer express written limited warranties on our homes that generally provide for one year of coverage for various defects in workmanship or materials. These warranties are in addition to certain legal warranties (including implied warranties) that may apply in the markets where we operate. In Canada, in accordance with regulatory requirements administered by the Tarion Warranty Corporation, we offer a limited warranty that generally provides for seven years of structural coverage, two years of coverage for water penetration, electrical, plumbing, heating, and exterior cladding defects, and one year of coverage for workmanship and materials.

We are responsible for performing all of the work during the warranty period. As a result, warranty reserves are established as homes close in an amount estimated to be adequate to cover expected costs of materials and labor during warranty periods.

Community Development

We aim to establish a complete concept for each community we develop, beginning with an overall community design and then determining the size, style and price range of the homes and the layout of the streets and individual home sites. In the case of developed communities, after necessary governmental subdivision and

 

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other approvals have been obtained, we improve the land by clearing and grading it, installing roads, installing underground utility lines and recreational amenities, erecting distinctive entrance structures and staking out individual home sites.

Each community is staffed with a superintendent, customer service and sales personnel, in conjunction with a local management team managing the general project. Major development strategy decisions regarding community positioning are included in the underwriting process and are made in consultation with senior members of our management team.

Our construction managers and land managers coordinate subcontracting activities and supervise all aspects of construction work and quality control.

We are a general contractor for substantially all of our homebuilding projects in the United States and all of our projects in Canada. Subcontractors perform all home construction and land development work, generally under fixed-price contracts. Based on local market practices, we either purchase the materials used to build our homes and infrastructure directly from the manufacturers or producers, or we contract with trades that include all materials and workmanship in their pricing. We generally have multiple sources for the materials we purchase and have not experienced significant delays due to unavailability of necessary materials.

Customer Mortgage Financing

TMHF provides a number of mortgage-related services to our homebuilding customers through its mortgage lending operations. TMHF operated as a table-funded lender through December 21, 2010 with the primary responsibility of origination, processing and documentation of mortgage loans exclusively for our U.S. homebuilding customers. TMHF had the ability to use wholesale lender funds in its transactions, rather than a warehouse line facility. The wholesale lending sources carried all decision making authority and all principal risk associated with underwriting loans. This historical profile has led to limited put-back risk for TMHF. TMHF’s multi-lender platform included Flagstar Bank, US Bank, SunTrust Bank, Wells Fargo Mortgage and Metlife Home Loans. Revenue was derived from yield spread premiums, broker points and processing fees. The main strategic purpose of TMHF in our business is:

 

   

to utilize finance as a sales tool as part of the purchase process to ensure a consistent customer experience and assist in maintaining production efficiency; and

 

   

to influence and assist in determining our backlog quality and to better manage projected closing and delivery dates for our customers.

As of January 1, 2011, in response to U.S. federal regulatory changes, TMHF transitioned to operating as a full lender and conducting its business as a Federal Housing Authority Full Eagle lender. TMHF funds mortgage loans utilizing a warehouse line facility. TMHF maintains a relationship with its correspondent lenders through which it utilizes its Principal Authorized Agent designation to mitigate the underwriting risk associated with its funding of mortgage loans. Revenue is earned through origination and processing fees combined with service release premiums earned in the secondary market once the loans are sold to investors. We seek to hold loans on our books for approximately 20 days before selling them to the secondary market. TMHF maintains long-standing relationships with several of the lenders stated above.

During the nine months ended September 30, 2012, TMHF closed 1,292 loans with an aggregate loan volume of approximately $330 million, representing a capture rate of 84%. In 2011, TMHF closed 1,512 loans with an aggregate loan volume of approximately $378.1 million, representing a capture rate of 83%. In 2010, TMHF closed 1,701 loans with an aggregate loan volume of approximately $397.5 million, representing a capture rate of 84%. Our mortgage capture rate represents the percentage of our U.S. homes sold to a purchaser that utilized a mortgage, for which the borrower obtained such mortgage from TMHF or one of our preferred third party lenders.

 

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Land Acquisition Policies and Development

Locating and vetting attractive land positions is a critical challenge for any homebuilder or developer. In order to maximize our expected risk-adjusted return, the allocation of capital for land investment is performed at the corporate level with a disciplined approach to portfolio management. Our Investment Committee meets twice monthly and consists of our President and Chief Executive Officer, Vice President and Chief Financial Officer, Vice President and General Counsel, Vice President, Land Investments and Vice President, Sales and Marketing. Annually, the divisions prepare a strategic plan for their specific geographies. Macro and micro indices, such as employment, housing starts, new home sales, resales and foreclosures along with market related shifts in competition, land availability and consumer preferences, are carefully analyzed to determine the land and business strategy for the following one to five years. Supply and demand are analyzed on a consumer segment and submarket basis to ensure land investment is targeted appropriately. The long-term plan is compared on an ongoing basis to realities in the marketplace as they evolve and is adjusted to the extent necessary. Our existing land portfolio as of September 30, 2012 is detailed below:

East Region (lots owned or controlled)

 

     Owned September 30, 2012      Controlled September 30, 2012         

Division

   Raw      Partially
Developed
     Finished      Total      Raw      Partially
Developed
     Finished      Total      Total
Owned &
Controlled
 

North Florida

     439         122         958         1,519         456         —           57         513         2,032   

Southeast Florida

     —           —           1         1         —           —           —           —           1   

West Florida

     1,119         3,276         2,063         6,458         3,923         —           530         4,453         10,911   

Houston

     1,318         188         777         2,283         0         —           96         96         2,379   

Austin

     1,119         180         370         1,669         316         —           4         320         1,989   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

     3,995         3,766         4,169         11,930         4,695         —           687         5,382         17,312   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 
West Region (lots owned or controlled)                
     Owned September 30, 2012      Controlled September 30, 2012         

Division

   Raw      Partially
Developed
     Finished      Total      Raw      Partially
Developed
     Finished      Total      Total
Owned &
Controlled
 

Phoenix

     3,718         682         1,326         5,726         1,083         —           69         1,152         6,878   

Northern California

     977         55         709         1,741         23         0         —           23         1,764   

Southern California

     —           219         297         516         254         42         —           296         812   

Denver

     532         55         198         785         122         —           —           122         907   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

     5,227         1,011         2,530         8,768         1,482         42         69         1,593         10,361   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 
Canada Region (lots owned or controlled)                       
     Owned September 30, 2012      Controlled September 30, 2012         
     Raw      Partially
Developed
     Finished      Total      Raw      Partially
Developed
     Finished      Total      Total
Owned &
Controlled
 

Single-family

     1,069         58         860         1,985         918         —           —           918         2,903   

High-rise

     —           588         424         1,012         —           —           —           —           1,012   

Single-family JV

     1,117         3         36         1,156         814         —           —           814         1,970   

High-rise JV

     187         172         443         802         605         —           —           605         1,407   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

     2,373         821         1,763         4,955         2,337         —           —           2,337         7,292   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

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North America (lots owned or controlled)

 

     Owned September 30, 2012                  Controlled September 30, 2012  

            

   Raw      Partially
Developed
     Finished      Total    Raw      Partially
Developed
     Finished      Total      Total
Owned
and
Controlled
 

Total

     11,593         5,598         8,462       25,653      8,514         42         756         9,312         34,965   
  

 

 

    

 

 

    

 

 

    

 

  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Note: Single-family JV and high-rise JV controlled lots are comprised of our proportionate share of lots within consolidated joint ventures.

Lot Inventory by Geography

 

    

As of September 30, 2012

     Last twelve months
ended
September 30, 2012
 

                                 

   Owned
Lots
     Inventory book
value (Owned
Only) (in
thousands)(1)
     Consolidated
closings
 

Florida

     7,978       $ 194,391         869   

Texas

     3,952         217,629         720   

Arizona

     5,726         181,964         468   

California

     2,257         367,774         481   

Colorado

     785         46,721         141   

Canada Single-family

     3,142         179,953         937   

Canada High-rise

     1,813         87,331         195   
  

 

 

    

 

 

    

 

 

 

Total

     25,653       $ 1,275,763         3,811   
  

 

 

    

 

 

    

 

 

 

Note: 4,629 and 2,699 lots in Florida and Arizona, respectively, are lots held for long-term development.

Beginning in 2007, we strategically sold land holdings in the outer metropolitan areas of our markets. Since January 1, 2009, we have opportunistically acquired 16,733 lots, of which 12,534 remain in our lot supply. In addition, 60% of our U.S. lots were acquired after January 1, 2008, with such lots representing 82% of our U.S. inventory book value of land.

Lot Development Status

 

     As of September 30, 2012  
(in thousands, except for lots)              
Development Status    Owned Lots      Book Value of Land and Development  

Long-term

     6,750       $ 51,566   

Raw

     8,938         236,108   

Under development

     2,851         149,401   

Finished

     7,114         442,385   
  

 

 

    

 

 

 

Total

     25,653       $ 879,460   
  

 

 

    

 

 

 

In North America, many of our competitors buy finished lots from a land developer. This approach often reduces the margins of such builders, especially where competition for finished lots is high. We are less dependent on this approach, having a well-established land development capability in all of our markets, which we believe allows us to generate higher margins.

 

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Lot Vintage

 

     As of September 30, 2012  

(in thousands, except for lots)

      

Year acquired

   Owned Lots      Book Value of Land and Development  

Pre-2008

     12,321       $ 208,647   

2008

     797         13,459   

2009

     2,732         76,166   

2010

     3,211         116,715   

2011

     3,673         214,372   

2012 (through September 30, 2012)

     2,919         250,101   
  

 

 

    

 

 

 

Total

     25,653       $ 879,460   
  

 

 

    

 

 

 

In the land purchasing process, specific projects of interest are detailed by the local division team, including proposed ownership structure, environmental concerns, anticipated product segmentation, competitive environment and financial returns. We also determine whether further spending on currently owned and controlled land is a well-timed and appropriate use of capital. As market circumstances change, we evaluate whether communities that have been put on hold will be resumed. In all circumstances, our investment strategy emphasizes expected profitability to reflect the risk and timing of returns, rather than the establishment or maintenance of sales volumes in new or existing markets.

One benefit of recent market conditions has been improvement in the entitlement and development process. Entitlements generally give the developer the right to obtain building permits upon compliance with conditions usually within the developer’s control. For the duration of the term of the entitlements, the developer enjoys the right to develop a specific number of residential lots without the need for further public hearings or discretionary local government approvals. Certain regulatory agencies in the United States have recently shown some flexibility and willingness to provide cost saving concessions to builders and developers. The development process has also seen certain benefits. The primary land development tasks include grading land, installing utilities, constructing concrete curbs and other structures, paving roads and landscaping. As the market demand for these tasks has decreased, in certain cases our development timelines and costs have been reduced. In certain of our U.S. markets, we anticipate that the cost and time advantages that exist today will continue in the near term as many builders continue to push for finished lot inventory.

Homes in Inventory

We manage our inventory of homes under construction by selectively starting construction on unsold homes to capture new home demand, while monitoring the number and aging of unsold homes. As of September 30, 2012, we had a total of 3,226 homes in inventory, which included 2,536 homes under contract but not yet closed.

The following is a summary of our homes in inventory by region as of September 30, 2012:

 

     Homes in
Backlog
     Models      Inventory
to be Sold
     Total      Inventory
Value
without
Land (in
thousands)
 

West

     623         84         182         889       $ 95,989   

East

     690         73         259         1,022         113,257   

Canada(1)

     1,223         23         69         1,315         118,910   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

     2,536         180         510         3,226       $ 328,156   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Does not include unconsolidated joint ventures.

 

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A significant portion of our Canada homes in inventory relates to our high-rise products. The following table summarizes the size and status of our active high-rise projects, as of September 30, 2012:

 

    Nautilus     Couture     Ultra     Water-
scapes
    Encore     Yorkland     Lago(1)     Garden
Court
    Picasso(1)  

Ownership by Monarch Corporation

    50.0     50.0     100.0     50.0     50.0     100.0     50.0     100.0     50.0

Units in the project

    389        476        423        344        403        402        444        186        402   

Total firm sales as of Sept. 30, 2012

    386        474        422        319        374        394        257        162        323   

Percentage sold

    99.2     99.6     99.8     92.7     92.8     98.0     57.9     87.1     80.3

Launch date

    Aug. 07       Oct. 07        May 08        Sept. 08        Feb. 10        Apr. 10        Jun. 11        Oct. 11        Nov. 11   

Occupancy (expected for periods from 2013 onward)

    Aug. 12        Mar. 13        May 13        May 14        Jun. 13        Jun. 14        Dec. 16        Aug. 14        Jan. 16   

 

(1) Sales are not included in our September 30, 2012 backlog because, as of such time, construction had not yet been approved by our Investment Committee.

Procurement and Construction

We employ a comprehensive procurement program that leverages our size and national presence to achieve attractive cost savings. Our objective in procurement is to maximize efficiencies on local, regional and national levels and to ensure consistent utilization of established contractual arrangements.

The program currently involves over 30 vendors and includes highly reputable and well-established companies who supply us with lumber, appliances, HVAC systems, insulation, shingles, paint and lighting, among other supplies. Through these relationships, we are able to realize discounts on the costs of essential materials. Contracts are typically structured to include a blend of attractive upfront pricing and rebates and, in some cases, advantageous retroactive pricing in instances of contract renewals. The program arrangements are typically not designed to be completely exclusive in nature; for example, divisions may choose to use local or alternate suppliers if they find cost savings by doing so. However, our divisions have historically made use of over 80% of our national procurement contracts, largely as a result of the advantageous pricing available under such contracts.

In addition to cost advantages, these arrangements also help minimize the risk of construction delays during supply shortages, as we are often able to leverage our size to obtain our full allocation of required materials. Furthermore, these arrangements sometimes include provisions for cooperative marketing, which allow us to extend the reach and effectiveness of our advertising efforts.

As the U.S. housing market continues to recover, we expect to be able to further leverage our size to ensure continued competitive pricing on required supplies. We have extensive experience managing all phases of the construction process. Although we do not employ our own skilled tradesmen, such as plumbers, electricians and carpenters, we actively participate in the entire construction process to ensure that our homes meet our high standard of quality. Each of our new home projects is staffed by an on-site construction manager, or superintendent. Our homes are constructed by subcontractors who are overseen by the on-site superintendent. As a result of not employing our own construction base, it is not necessary to purchase and maintain high capital construction equipment. On-site personnel are also responsible for making any adjustments to a home before delivery to a purchaser and for after-sales service pursuant to our warranty.

 

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Joint Ventures

We participate in property development and homebuilding joint ventures to purchase and/or develop land where we have less than full ownership, as a means of controlling lot positions, expanding our market opportunities, establishing strategic alliances, reducing our risk profile, leveraging our capital base, and enhancing our returns on capital. The purpose of our homebuilding joint ventures is to develop land and construct homes that are sold directly to homebuyers. Our land development joint ventures include those with developers and other homebuilders, as well as financial investors to develop finished lots for sale to the joint venture’s members or other third parties. We evaluate joint venture opportunities in all of our existing homebuilding markets as a means to acquire attractive land positions, expand our presence in markets, manage our risk profile and leverage our capital base.

In Canada, Monarch Corporation enters into joint ventures as a means of acquiring land in partnership with a landowner that wants to participate in its development. In some instances, joint ventures allow Monarch Corporation to keep land under control without a significant cash outlay until the land is ready for future development or delivered to end users. Joint ventures also allow Monarch Corporation to mitigate risk on large projects and in some instances provide a market for finished lots to us and to our joint venture partners on single-family projects. We have used joint ventures for both our single-family and high-rise product development.

Monarch Corporation’s joint ventures are generally structured so that the owner holds title to the land until construction or land development commences. Monarch Corporation contributes capital on an as-needed basis to the joint venture in the form of equity contributions, which in the aggregate is generally equal to its joint venture partner’s net land equity. Typically, our joint ventures operate as 50/50 co-ownerships managed by a management committee with equal voting rights for each co-owner. Monarch Corporation is appointed development manager of the joint venture and manages the day-to-day operating decisions under the direction of the management committee. Additional financing beyond each co-owner’s equity contribution is arranged through a third party lender, and Monarch Corporation’s liability under such financing is typically limited to a guarantee of a portion of the financing in proportion to its ownership in the joint venture. This financing is undertaken for the life of the project and is negotiated on the basis of market interest rates and covenants. In all high-rise joint ventures, we are paid a fee to manage the project.

We also participate in joint ventures related to title services in Canada.

Unconsolidated Joint Ventures

We use the equity method of accounting for our investments in unconsolidated joint ventures that are not VIEs and over which we do not exercise control and have ownership interests of 50% or less. As of September 30, 2012, we had equity investments in six unconsolidated active land development and homebuilding entities. Of our five active unconsolidated joint ventures in Canada, three were related to our single-family business and two were related to our high-rise business.

Our unconsolidated joint ventures obtain secured acquisition, development and construction financing primarily from third party lenders. As of September 30, 2012, outstanding debt of our unconsolidated joint ventures to third party lenders was $166.2 million, of which our subsidiaries have issued secured guarantees of $166.2 million.

The investment in these unconsolidated entities recorded on our consolidated balance sheet was $78.0 million as of September 30, 2012.

Consolidated Joint Ventures

We consolidate joint ventures where we exercise control and influence over the investee and/or we own a majority economic interest. As of September 30, 2012, we conducted land development and homebuilding activities in one consolidated joint venture. Our Steiner Ranch project in Austin, Texas has been deemed a VIE,

 

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which qualifies for consolidation in our financial statements. The project is a long-lived residential and commercial venture where, subject to the terms of our joint venture arrangements, we exercise control over the operations and strategic direction of the joint venture.

Sales and Marketing

Our marketing program calls for a balanced approach of corporate support and local expertise to attract potential homebuyers in a focused, efficient and cost-effective manner. Our sales and marketing team provides a generalized marketing framework across our regional operations as well as sales training to our local teams. Our divisional sales and marketing teams utilize local media and marketing streams to deliver a unique message that is relevant to our targeted consumer groups in each market.

Our goal is to identify the preferences of our target customer and demographic groups and offer them innovative, high-quality products that are efficient and profitable to build. To achieve this goal, we conduct extensive market research to determine preferences of our customer groups. We do not use “off the shelf” industry-standard customer groups (which tend to focus on classification by price point) in our marketing programs. Instead, through extensive and targeted market research, we have identified seven consumer groups by focusing on particular lifestyle preferences, tastes and other attributes of our customer base. Our group classification, includes four categories of couples or singles, such as our “Fancy Nesters” customers, and three categories of families, such as our “Parks and Prestige” customers.

We have gathered data regarding the specific preferences of our seven consumer groups. Our approach to customer group identification guides all of our operations from our initial land acquisition through to our design, building, marketing and delivery of homes and our ongoing after-sales customer service. Among our peers, we believe we are at the forefront of directed marketing strategies, as evidenced by our highly trafficked internet site.

The central element of our marketing platform is our customer websites. The main purpose of these websites is to direct potential customers to one of our sales teams. Customers are also able to use the websites to make inquiries and to receive a prompt response from one of our “Internet Home Consultants.” The websites are fully integrated with our customer relationship management system. By analyzing the content of our customer relationship management system, we are able to focus our lead generation programs to deliver high-quality sales leads. With these leads we are better able to increase sale conversion rates and lower marketing costs.

Competition

The U.S. and Canadian homebuilding industries are highly competitive. We compete in each of our markets with numerous other national, regional and local homebuilders for homebuyers, desirable properties, raw materials, skilled labor and financing. We also compete with sales of existing homes and with the rental housing market. Our homes compete on the basis of quality, price, design, mortgage financing terms and location. We have begun to see some consolidation among national homebuilders in the United States and expect that this trend will continue.

In order to maximize our sales volumes, profitability and product strategy, we strive to understand our competition and their pricing, product and sales volume strategies and results. Market conditions in the United States have also led to a large number of foreclosed homes being offered for sale, which has increased competition for homebuyers and has affected pricing. However, we have taken a proactive approach to distancing ourselves from overly affected submarkets, enabling us to drive sales in our markets without competing as directly with foreclosures.

Across our U.S. markets, we have seen reduced competition from small and mid-sized private builders who had been competitors in the new home market. We believe that access to and cost of capital for these private builders has been significantly constrained; however, private builders in the Canadian markets are well capitalized.

 

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TMHF competes with other mortgage lenders, including national, regional and local mortgage bankers and other financial institutions. While many large homebuilders are affiliated with a single lender, TMHF utilizes a multi-lender correspondent platform which gives us increased flexibility when placing loans with investors. During the downturn, during which time this structure had limited correspondent lenders, TMHF continued to strengthen its relationships with its existing lender sources. This created stability and consistency in our processes and delivery of funding. Although we do not benefit from the secondary market segment of our mortgage transactions, we have the benefits of utilizing our lender’s underwriting and funding platforms. Along with reduced underwriting risk of the legacy pipeline, this advantage has made us stronger and more resilient than many of our peers in uncertain economic conditions. Due to the historically low interest rate environment, many banks are focused on existing home refinance business and government modification/refinance programs, while our focus and expertise remains dedicated to the financing of new home construction. While many builder-owned mortgage companies sustained significant losses from repurchase demands, TMHF did not suffer losses comparable to those of many of its peers, due to the unique multi-lender platform and mitigated exposure to repurchases and buy-backs. To date, TMHF has not incurred a financial loss from the repurchase of mortgages from legacy business.

Regulatory, Environmental, Health and Safety Matters

We are subject to various local, state, provincial and federal statutes, ordinances, rules and regulations concerning zoning, building design, construction and similar matters, including local regulations which impose restrictive zoning and density requirements in order to limit the number of homes that can eventually be built within the boundaries of a particular property or locality. In a number of our markets, there has been an increase in state, provincial and local legislation authorizing the acquisition of land as dedicated open space, mainly by governmental, quasi-public and non-profit entities. In addition, we are subject to various licensing, registration and filing requirements in connection with the construction, advertisement and sale of homes in our communities. The impact of these laws may increase our overall costs, and may delay the opening of communities or cause us to conclude that development of particular communities is not economically feasible, even if any or all governmental approvals were obtained. We also may be subject to periodic delays or may be precluded entirely from developing communities due to building moratoriums in one or more of the areas in which we operate. Generally, such moratoriums relate to insufficient water or sewage facilities or inadequate road capacity.

In order to secure certain approvals in some areas, we may be required to provide affordable housing at below market rental or sales prices. The impact on our business depends on how the various state and local governments in such areas implement their programs for affordable housing. To date, these restrictions have not had a material impact on us and have existed generally only in California.

Our mortgage subsidiary is subject to various state and federal statutes, rules and regulations, including those that relate to licensing, lending operations and other areas of mortgage origination and financing. The impact of those statutes, rules and regulations may increase our homebuyers’ cost of financing, increase our cost of doing business, as well as restrict our homebuyers’ access to some types of loans.

Environmental

We are required to comply with existing federal, state, provincial and local environmental statutes, ordinances, rules and regulations concerning protection of public health and the environment, including those which require a current or previous owner or operator of real property to bear the costs of removal or remediation of hazardous or toxic substances on, under or in property. These laws often impose liability whether or not the owner or operator knew of, or was responsible for, the presence of hazardous or toxic substances. In addition, the presence of hazardous or toxic substances, or the failure to properly remediate property, may adversely affect the owner’s ability to borrow by using the real property as collateral. Persons who arrange for the disposal or treatment of hazardous or toxic substances may also be liable for the costs of removal or remediation of any substance at a disposal or treatment facility, whether or not

 

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the facility is or ever was owned or operated by the person. Environmental laws and common law principles could be used to impose liability for releases of hazardous materials, including asbestos-containing materials, into the environment, and third parties may seek recovery for personal injuries caused by hazardous materials from owners of real property that contain hazardous materials. Complying with these environmental laws may result in delays, may cause us to incur substantial compliance and other costs, and/or may prohibit or severely restrict development in certain environmentally sensitive regions or areas.

We are subject to certain litigation related to environmental matters. See “—Insurance and Legal Proceedings—Chinese Drywall” and “—Vista Lakes.”

As part of the land acquisition due diligence process, we utilize environmental assessments to identify environmental conditions that may exist on potential acquisition properties. Environmental site assessments conducted at our properties have not revealed any environmental liability or compliance concerns that we believe would have a material adverse effect on our business, liquidity or results of operations, nor are we aware of any material environmental liability or concerns.

We manage compliance with federal, state, provincial and local environmental requirements at the division level with assistance from the corporate and regional legal departments, including environmental regulations related to U.S. Storm Water Pollution Prevention, U.S. Endangered Species Act, U.S. Wetlands Permitting, NPDES Permitting, Cultural Resources, dust control measures and state, provincial and local preservation ordinances.

Health and Safety

We are committed to maintaining high standards in health and safety at all of our sites, to ensure the safety of our team members, our trade partners, our customers and prospects and the general public. That commitment is tested through our health and safety audit system that includes comprehensive twice-yearly independent third-party inspections of our sites covering all aspects of health and safety. A key area of focus is ensuring that site conditions meet exacting health and safety standards and that subcontractor performance throughout our operating areas meet or exceed expectations. All of our team members must complete an assigned curriculum of online health and safety courses each year. These courses vary according to job responsibility. In addition, groups such as construction and field personnel are required to attend additional training programs such as the Occupational Safety and Health Administration (“OSHA”) 10-hour course, First-Aid and CPR.

In 2011, we reduced the number of subcontractor injuries by 20% as compared to the prior year. We also reduced the subcontractor injury frequency rate per 200,000 hours worked from .1303 in 2010 to .1000 in 2011. These positive results can be directly attributed to a concentrated focus on site conditions and enhanced communications and training efforts in conjunction with our subcontractor base.

Employee Matters

As of September 30, 2012, we employed approximately 793 full-time equivalent persons. Of these, approximately 185 were engaged in sales and marketing activities (of which 135 are onsite sales representatives), 201 in construction (of which 155 are field superintendents), 44 warranty and 48 purchasing team members, 186 in operations (inclusive of TMHF, title services and corporate services in Canada and the United States), 58 in finance activities, 16 in our design centers and 53 in land activities. As of September 30, 2012, we were subject to no collective bargaining agreements. We consider our employee relations to be good.

Properties

We lease office space in Scottsdale, Arizona, which serves as our corporate headquarters, and office space in other locations throughout California, Colorado, Arizona, Texas and Florida, which serves our Taylor

 

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Morrison divisional homebuilding operations and as branch office space for our related real estate services, including our title and mortgage services. We also lease office space in Toronto, Canada, which serves as the headquarters of our Monarch operations.

Information Technology

We have a centralized information technology organization with its core team located at our corporate headquarters in Scottsdale, augmented with field support technicians in key locations across the United States and Canada. Our approach to information technology is to continuously simplify our information technology platform and consolidate and standardize applications. We believe a common application platform enables the sharing of ideas and rapid implementation of process improvements and best practices across the entire company. All back-office operations in the United States and Canada use a fully integrated, industry recognized enterprise resource planning package. Marketing and field sales utilize a leading customer relationship management solution that tracks leads and prospects from all sources and manages the customer communication process from lead creation through the buying process and beyond the post-warranty period. Field operations teams collaborate with the supply chain to schedule and manage development and construction projects with a set of standard and widely used homebuilding industry solutions.

Intellectual Property

We own certain logos and trademarks that are important to our overall branding and sales strategy. Our consumer logos are designed to draw on a recognized homebuilding heritage while emphasizing a customer-centric focus.

Insurance and Legal Proceedings

Insurance and Risk Management

We maintain insurance through a captive insurance company and through third-party commercial insurers, subject to deductibles and self-insured amounts, to protect us against various risks associated with our activities, including, among others, general liability, “all-risk” property, workers’ compensation, automobile and employee fidelity. We accrue for our expected costs associated with the deductibles and self-insured amounts. Litigation is managed by our legal department, with assistance from our risk management team on insurance coverage matters and from other division personnel as required. We are focused on claim prevention through training, standardized documentation and centralized processes.

Legal Proceedings

Chinese Drywall . Between 2008 and 2012, we confirmed the presence of defective Chinese-made drywall in several of our communities in Florida, primarily in West Florida homes, which were generally delivered between May 2006 and November 2007. The estimated cost of repair for affected homes that we have inspected is included in our warranty reserve. We are continuing our investigation of homes to determine whether there are additional homes, not yet inspected, with defective, Chinese-made drywall. If our inspection identifies more homes with defective Chinese-made drywall than we have currently identified, it may require an increase in our warranty reserve in the future. We are seeking reimbursement from our subcontractors, suppliers, insurers and manufacturers for costs that we have incurred to investigate and repair homes with defective Chinese-made drywall. We believe that adequate provision for costs associated with the repair of homes currently known to have defective Chinese-made drywall has been made and that these costs are not expected to have a material adverse effect on our financial condition, results of operations, or cash flows.

Vista Lakes . Between 2000 and 2007, we acquired lots and constructed homes on 316 lots in a master planned community known as Vista Lakes near Orlando, Florida. Of the 316 lots, 55 are adjacent to a formerly used defense site, which was used as a World War II bombing range. Upon the purchase of the 316 finished lots

 

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from a nonrelated master plan developer, we were unaware of the former use of the adjacent property as a defense site. In 2007 and 2008, the U.S. Army Corps of Engineers conducted an investigation in portions of the Vista Lakes master plan to determine if any munitions existed within the master plan. Two inert World War II practice bombs were found on lots owned by another unrelated party but near the 55 lots sold by us. No munitions were found on any of the 55 lots inspected by the U.S. Army Corps of Engineers, although the methodology for investigation did not include analysis of potential munitions beneath the slabs of existing homes. In 2007 and 2008, homeowners filed two lawsuits against us for failure to disclose the former use of the adjacent property, seeking rescission of the purchase of their homes, diminution in value, and other damages. One suit was a consolidated action with 97 homeowners. The other lawsuit by two homeowners seeks class action certification and was amended in 2009 to also name TMHF as a defendant. We have settled both the purported class action case and the consolidated action with 97 individual homeowners; however, the consolidated action with the 97 homeowners is subject to approval of each individual plaintiff and the purported class action settlement is subject to court approval and if the class action settlement is approved by the court, homeowners will have the right to opt out of the settlement. We believe that the final disposition of this matter will not have a material adverse effect on our business or on our financial condition, results of operations, or cash flows.

 

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MANAGEMENT

Executive Officers and Directors

The names and ages of our executive officers and directors as of the date of this prospectus are set out below:

 

Name

  

Age

  

Position

Sheryl Palmer

   51    President and Chief Executive Officer of TMHC and Taylor Morrison, Inc. and Director

C. David Cone

   40    Vice President and Chief Financial Officer of TMHC and Taylor Morrison, Inc.

Stephen Wethor

   46    President, West Region of Taylor Morrison, Inc.

Louis Steffens

   45    President, East Region of Taylor Morrison, Inc.

Brad Carr

   40    President, Monarch Corporation

Darrell Sherman

   48    Vice President and General Counsel of TMHC and Taylor Morrison, Inc.

Erik Heuser

   40    Vice President, Land Investments of Taylor Morrison, Inc.

Robert Witte

   47    Vice President and Chief Information Officer of Taylor Morrison, Inc.

Kathleen Owen

   48    Vice President, Human Resources of Taylor Morrison, Inc.

Graham Hughes

   53    Vice President, Sales and Marketing of Taylor Morrison, Inc.

Tawn Kelley

   48    President, TMHF and Mortgage Funding Direct Ventures

Timothy R. Eller

   64    Chairman, Director

John Brady

   48    Director

Kelvin Davis

   48    Director

Joe S. Houssian

   63    Director

Jason Keller

   42    Director

Greg Kranias

   35    Director

Peter Lane

   47    Director

R. Michael Miller

   55    Director

Rajath Shourie

   38    Director

Sheryl Palmer , President and Chief Executive Officer of TMHC and Taylor Morrison, Inc., Director

Ms. Palmer became the President and Chief Executive Officer of Taylor Morrison in August 2007 after previously serving as Executive Vice President for the West Region of Morrison Homes. Ms. Palmer became the President and Chief Executive Officer of TMHC in November 2012. Her previous experience includes 10 years with Pulte Homes/Del Webb, a homebuilder and developer of retirement communities, where she last held the title of Nevada Area President, and eight years as Division President for Blackhawk Corp, a homebuilder. Ms. Palmer brings more than 25 years of experience to her position, including leadership in land acquisition, sales and marketing, development and operations management. For these reasons, we believe she is well qualified also to serve on our Board of Directors.

C. David Cone , Vice President and Chief Financial Officer of TMHC and Taylor Morrison, Inc.

Mr. Cone joined Taylor Morrison as Vice President and Chief Financial Officer in October 2012. Mr. Cone became the Vice President and Chief Financial Officer of TMHC in November 2012. In the nine years prior to joining Taylor Morrison, Mr. Cone held various positions at PetSmart, Inc., a pet supply and service company, serving as Vice President of Financial Planning and Analysis in 2012, Vice President of Investor Relations and Treasury from 2008 to 2011, and Vice President of Finance from 2007 to 2008. Prior to his tenure at PetSmart, Mr. Cone worked at AdvancePCS, a prescription benefit plan administrator, and PricewaterhouseCoopers, an accounting firm. Mr. Cone holds a degree in business economics from the University of California at Santa Barbara.

 

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Stephen Wethor , President, West Region of Taylor Morrison, Inc .

Mr. Wethor joined Taylor Morrison as Division President for Phoenix in March 2007 and was named President of the West Region in August 2007. As President, he is responsible for the development and execution of strategic, operational and financial business plans for the West region (which includes the Phoenix, Southern California, Northern California and Denver divisions). He temporarily assumed the responsibilities of Chief Financial Officer from July 2010 until February 2012. Prior to joining Taylor Morrison, he spent 12 years with Pulte/Del Webb and seven years at Deloitte & Touche, an accounting firm. Mr. Wethor holds a bachelor’s degree in Accounting from the University of South Dakota.

Louis Steffens , President, East Region of Taylor Morrison, Inc.

Mr. Steffens joined Taylor Morrison as President of the East Region in January 2007. His responsibilities include development and execution of strategic, operational and financial business plans for the East region which includes the North Florida, West Florida, Houston and Austin markets. Prior to joining Taylor Morrison, he spent four years at Beazer Homes, a publicly traded homebuilding company, and 10 years at Pulte Homes. He holds a bachelor’s degree in Accounting from Michigan State University.

Brad Carr , President, Monarch Corporation

Mr. Carr joined Monarch Corporation in 2001 as Manager of Land Acquisitions and was named Senior Vice President of single-family operations in 2004, a position he held until becoming Regional President in May 2012. Prior to joining Monarch Corporation, he worked as a Vice President in The Heinrichs Group, a land developer. Mr. Carr holds a bachelor’s degree in architectural and building science from Ryerson University.

Darrell Sherman , Vice President and General Counsel of TMHC and Taylor Morrison, Inc.

Mr. Sherman joined Taylor Morrison as Vice President and General Counsel in June 2009 and has over 17 years of experience in the homebuilding industry. Mr. Sherman became the Vice President and General Counsel of TMHC in November 2012 and serves as the board secretary. He is responsible for the company’s legal affairs, including finance and real estate transactions, corporate governance, regulatory compliance and litigation matters. Prior to joining Taylor Morrison, Mr. Sherman was a Managing Member and General Counsel of Patriot American Development, a real estate acquisition and development company from 2005-2009; General Counsel of the Southwest and Mountain States Regions of Centex Homes from 2000 to 2005; and Associate General Counsel of Pulte Homes/Del Webb Corporation from 1996 to 2000. Prior to joining the homebuilding industry Mr. Sherman was a finance and real estate lawyer at Snell & Wilmer, a law firm headquartered in Phoenix, Arizona. He holds a B.A. in Economics with university honors and a J.D., both from Brigham Young University where he was a member of the BYU Law Review. He is a member of the State Bar of Arizona and the American Bar Association.

Erik Heuser , Vice President, Land Investments of Taylor Morrison, Inc.

Mr. Heuser joined Taylor Morrison as Director of Business Development in 2004 and was named Vice President of Land Investments in 2007. His responsibilities include business development initiatives and evaluation of all of our contemplated investments and divestitures. Prior to joining Taylor Morrison, he was Regional Director for Hanley Wood Market Intelligence, a provider of residential real estate research and analysis; Vice President of Acquisitions for PNC Financial Services Group/Washington Mutual Bank, a national bank; Metropolitan Life Insurance, a national insurance company; and A.G. Edwards & Sons, a financial services holding company. He holds a bachelor’s degree in Finance from Illinois State University and an M.B.A. from the Keller Graduate School of Management.

Robert Witte , Vice President and Chief Information Officer of Taylor Morrison, Inc.

Mr. Witte joined Taylor Morrison as Vice President and Chief Information Officer in June 2004. His responsibilities include oversight of all enterprise-wide information technology activities, including infrastructure

 

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and architecture, applications development, re-engineering business processes, networks, outsourcing, computer and auxiliary operations and support. Prior to joining Taylor Morrison, he spent 17 years at General Electric, a multinational manufacturing conglomerate, where he held the position of Chief Information Officer for GE Nuclear Energy for three years and GE Wind Energy for two years. He holds a bachelor’s degree in Management Information Systems and Operations Management from Syracuse University and an M.B.A. from Purdue University.

Kathleen Owen , Vice President, Human Resources of Taylor Morrison, Inc.

Ms. Owen joined Taylor Morrison as Vice President of Human Resources in June 2005. Her responsibilities include oversight of all employee benefit programs and providing expertise in the areas of leadership, organization design, building capability and human capital processes. Prior to joining Taylor Morrison, she held the title of Vice President of Human Resources at McKesson Corp., a pharmaceutical distributor and healthcare provider, and CheckFree Corp., a global provider of financial electronic commerce. Ms. Owen holds a bachelor’s degree in Psychology from Georgia State University.

Graham Hughes , Vice President, Sales & Marketing of Taylor Morrison, Inc.

Mr. Hughes was named Vice President of Sales and Marketing for Taylor Morrison in July 2007. His responsibilities include promoting and maintaining the overall Taylor Morrison brand, developing strategies and marketing campaigns on a national level and creating a culture of best practice consistency in Sales and Marketing. Mr. Hughes transferred to the United States from the then parent company, George Wimpey, in January 2007 as Vice President of Sales and Marketing for the West region of Morrison Homes. Prior to joining Taylor Morrison, he worked for 20 years with George Wimpey in the United Kingdom where he was the Director of Customer Services and Sales and Marketing, as part of the executive team, for seven years.

Tawn Kelley , President, TMHF

Ms. Kelley joined Taylor Morrison as President of TMHF and Mortgage Funding Direct Ventures in April 2009 when Taylor Morrison acquired Mortgage Funding Direct Ventures, a mortgage provider owned by Ms. Kelley. From January 2001 until the acquisition of Mortgage Funding Direct Ventures, she held the position of Managing Member and President of both Mortgage Funding Direct Ventures and TMHF. Prior to owning Mortgage Funding Direct Ventures, Ms. Kelley worked with CTX Mortgage Ventures, NVR Mortgage and Wells Fargo Mortgage (formerly Norwest Mortgage), each a mortgage provider.

Timothy Eller , Director and Chairman

Mr. Eller is a principal of Cordalla Capital, LLC, a private equity firm, where he directs major investments in real estate and related businesses. He is also Chief Executive Officer of TegrityHomes, Cordalla’s homebuilding subsidiary. Prior to founding Cordalla Capital in 2009, Mr. Eller served in various industry roles including President and CEO of Centex Homes, a public homebuilder; Chairman, President and CEO of Centex Corporation from 2002-2009; and board Vice Chairman of Pulte Group, Inc. from 2009 to 2011. Mr. Eller currently sits on the board of BuildLinks, a private company engaged in the development and sale of software to the homebuilding industry, and is a member of the Advisory Board of the Encore Housing Opportunity Fund, a private equity fund. We believe Mr. Eller’s extensive experience in leadership, real estate investment and corporate governance make him well qualified to serve as Chairman of our Board of Directors.

John Brady , Director

Mr. Brady joined Oaktree Capital Management in 2007 as Managing Director and Head of Oaktree Capital Management’s global real estate group. From 2003 to 2007, Mr. Brady was Principal and Head of the North American acquisitions business (excluding gaming) at Colony Capital, LLC, a private international real estate-related investment firm in Los Angeles. In 2000, he co-founded The Destination Group, LLC, a private

 

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equity investment firm in Los Angeles targeting opportunities in travel and leisure. From 1991 to 2000, Mr. Brady focused on distressed investments for Colony Capital and led Colony’s expansion into Asia in 1998. He holds a B.A. in English from Dartmouth College and an M.B.A. with concentrations in corporate finance and real estate from the University of California at Los Angeles. Mr. Brady has extensive experience across a range of real estate investments and property types, including distressed loan portfolio acquisitions and asset management, loan restructurings and workouts, and direct real estate and real estate related acquisitions and financings. For these reasons, we believe he is well qualified to serve on our Board of Directors.

Kelvin Davis , Director

Mr. Davis is a TPG Senior Partner and co-heads TPG’s Real Estate Group. Prior to 2012, he was also head of TPG’s North American Buyouts Group, incorporating investments in all non-technology industry sectors. Prior to joining TPG in 2000, Mr. Davis was President Chief Operating Officer of Colony Capital, Inc., which he co-founded in 1991. Prior to the formation of Colony, Mr. Davis was a principal of RMB Realty, Inc., the real estate investment vehicle of Robert M. Bass. Prior to his affiliation with RMB Realty, he worked at Goldman, Sachs & Co., an investment bank, in New York City and with Trammell Crow Company, a real estate developer, in Dallas and Los Angeles. Mr. Davis is a Director of Caesars Entertainment, Inc., a casino and resort developer, Northwest Investments, LLC (which is an affiliate of ST Residential, a private homebuilder), Univision Communications, Inc., (a Spanish language media provider), Catellus Development Corporation, and Parkway Properties, Inc. He is also a long-time Director (and one-time Chairman) of Los Angeles Team Mentoring, Inc. (a charitable mentoring organization), is a Director of the Los Angeles Philharmonic Association, is a member of the Board of Trustees of the Los Angeles County Museum of Art, and is on the Board of Overseers of the Huntington Library, Art Collections, and Botanical Gardens. Mr. Davis holds a B.A. in Economics from Stanford University and an M.B.A. from Harvard University. Mr. Davis brings extensive experience in real estate, finance and corporate governance to our Board of Directors. For these reasons, we believe he is well qualified to serve on our Board of Directors.

Joe S. Houssian , Director

Mr. Houssian founded JH Investments, his personal investment and holding company, in 2007 and has served as its Chairman since. Mr. Houssian began his career in 1973 at Xerox, a multinational document management corporation, before founding Intrawest in 1976. Intrawest grew from an urban residential real estate business into an internationally renowned resort and real estate development company responsible for the success of such pre-eminent ski resorts as Whistler Blackcomb as well as dozens of award winning golf courses, resort villages and developments around the world. Mr. Houssian served as Chairman of Intrawest until his departure in 2006 when the firm was sold to Fortress Investments Group, a private equity firm. Mr. Houssian is also the cofounder of Intracorp—a North American urban real estate developer—and the cofounder of Versacold Cold Storage, a Canadian refrigeration services provider. More recently, Mr. Houssian cofounded Replay Resorts, an integrated hospitality company, as well as Elemental Energy, an alternative energy development company with operations in the United States and Canada. Mr. Houssian holds an M.B.A. from the University of British Columbia. He brings extensive experience in leadership, corporate governance and finance to our Board of Directors. For these reasons, we believe he is well qualified to serve on our Board of Directors.

Jason Keller , Director

Mr. Keller is a Managing Director of Oaktree Capital Management and previously served as Senior Vice President since he joined the firm in July 2007. Mr. Keller oversees the Oaktree Capital Management real estate group’s land, residential and homebuilding investments. Mr. Keller previously worked as a Vice President in the Real Estate Private Equity division of DLJ/Credit Suisse, an investment bank. Prior to joining DLJ, Mr. Keller worked in real estate finance at Salomon Brothers and CIBC Oppenheimer, financial services providers, advising numerous public and private companies, REITs, and financial institutions with respect to the acquisition, disposition and recapitalization of their real estate portfolios. He also worked as a real estate manager and developer for D-Street Investments, a boutique private equity firm. Mr. Keller holds a B.A. in Finance from Utah

 

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State University and an M.B.A. in Finance and Real Estate from the Wharton School at the University of Pennsylvania. We believe Mr. Keller’s extensive background in real estate, corporate strategy and corporate finance make him well qualified to serve on our Board of Directors.

Greg Kranias , Director

Mr. Kranias joined TPG Global in 2005 and has served as a Principal in TPG Global’s Private Equity Group since 2010. From 2005 to 2009 Mr. Kranias served as a Vice President at TPG Global. While at TPG Global, Mr. Kranias has been involved with the firm’s investments in Taylor Morrison, Catellus Corporation, Caesars Entertainment and Iasis Healthcare and a number of real estate non-performing loans. He currently sits on the board of directors of Catellus Corporation and Iasis Healthcare. Prior to joining TPG Global in 2005, Mr. Kranias worked at Forstmann Little & Company, a private equity firm, and Goldman, Sachs & Co, an investment bank. Mr. Kranias holds an A.B. from Harvard College and an M.B.A. from the Stanford Graduate School of Business. Mr. Kranias brings extensive experience in real estate, corporate strategy and corporate finance to our Board of Directors. For these reasons, we believe he is well qualified to serve on our Board of Directors.

Peter Lane , Director

Mr. Lane has served since 2010 as Chief Executive Officer of Valerus, an oilfield services company headquartered in Houston, Texas. Prior to joining Valerus, Mr. Lane was an Operating Partner with TPG from 2009 to 2011. Before TPG Global, Mr. Lane spent 12 years at Bain & Company, a global consulting firm, where he led the Dallas and Mexico City Offices as well as the oil and gas practice. He became a Partner at Bain in 2003. Mr. Lane currently serves on the boards of Valerus and Petro Harvester, an oil and gas company. Mr. Lane holds a B.S. in physics from the University of Birmingham in the United Kingdom and an M.B.A. from the Wharton School. Mr. Lane brings extensive experience in business operations, finance and corporate governance to our Board of Directors. For these reasons, we believe he is well qualified to serve on our Board of Directors.

R. Michael Miller , Director

Mr. Miller is a co-founder and since 1992, the Chairman and Chief Executive Officer of Intracorp USA, an urban real estate developer. As Chairman, Mr. Miller provides leadership in setting corporate goals, strategy and direction for Intracorp USA. Mr. Miller has extensive operating and financial management experience through his twenty years with the company. Mr. Miller is also the Chairman of Intracorp Capital, a private equity firm that invests in non-real estate businesses throughout the northwest US and Alaska. He is also a board member of Turtle Bay Resorts, a luxury hotel and development company in Hawaii. Mr. Miller is the former President and Chief Financial Officer of Intrawest USA, a diversified resort, leisure and real estate company, and cofounded Replay Resorts, an integrated hospitality development company. Before his roles at Intrawest USA, Mr. Miller was a Certified Public Accountant at Touche Ross & Co., a predecessor of Deloitte & Touche, an accounting firm. Mr. Miller is a graduate of the University of Montana. We believe Mr. Miller’s extensive background in leadership, real estate operations, accounting and financial management make him well qualified to serve on our Board of Directors.

Rajath Shourie , Director

Mr. Shourie joined Oaktree Capital Management in 2002 and has served as a Managing Director in the firm’s Opportunities Group since 2007. His prior experience includes two years at Goldman, Sachs & Co., in the Principal Investment Area and three years as a consultant at McKinsey & Co, a consulting firm. At Oaktree Capital Management, Mr. Shourie has been responsible for distressed debt and private equity investments in a wide range of industries including financial services, automotive, energy, aviation and real estate. His current board memberships include Jackson Square Aviation LLC and Store Capital LLC. Mr. Shourie holds a B.A. in Economics from Harvard College and an M.B.A. from Harvard Business School. Mr. Shourie brings extensive experience in real estate, finance and corporate governance to our Board of Directors. For these reasons, we believe he is well qualified to serve on our Board of Directors.

 

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Controlled Company

We intend to apply to list the shares offered in this offering on a national securities exchange. Acting as a group, the Principal Equityholders will control more than 50% of the combined voting power of our common stock following completion of this offering, so under current listing standards, we would qualify as a “controlled company” and accordingly, will be exempt from requirements to have a majority of independent directors, a fully independent nominating and corporate governance committee and a fully independent compensation committee.

Director Independence

The Board of Directors of TMHC has determined that Timothy R. Eller is an “independent director” as such term is defined by the applicable rules and regulations of the national securities exchange on which we are listed.

Board Structure

Composition

The Board of Directors of TMHC currently consists of ten members. Prior to this offering we intend to appoint an additional board member such that our board of directors will consist of 11 members. In accordance with our certificate of incorporation and our bylaws, the number of directors on the Board of Directors of TMHC will be determined from time to time by the Board of Directors of TMHC, and only a majority of the Board of Directors of TMHC may fix the number of directors. Each director is to hold office until his or her successor is duly elected and qualified or until his or her earlier death, resignation or removal. At any meeting of the Board of Directors of TMHC, except as otherwise required by law, a majority of the total number of directors then in office will constitute a quorum for all purposes.

Our amended and restated certificate of incorporation will provide that the Board of Directors of TMHC will be divided into three classes of directors, with staggered three-year terms, with the classes to be as nearly equal in number as possible. As a result, approximately one-third of the Board of Directors of TMHC will be elected each year. The classification of directors has the effect of making it more difficult for stockholders to change the composition of the Board of Directors of TMHC.

The composition of the Board of Directors of Taylor Morrison Holdings, the parent company of our U.S. business, and Monarch Communities, the parent company of our Canadian business, is identical to the current composition of the Board of Directors of TMHC. Upon consummation of this offering, we will directly or indirectly control the composition of the Boards of Directors of Taylor Morrison Holdings and Monarch Communities and their respective committees.

The Board of Directors of TMHC and its committees will have supervisory authority over TMHC and TMM and will exercise stewardship over Taylor Morrison Holdings and its subsidiaries and Monarch Communities and its subsidiaries. TMHC and TMM will not conduct any activities other than direct or indirect ownership and stewardship over Taylor Morrison Holdings and Monarch Communities and their respective subsidiaries. The Board of Directors of Taylor Morrison Holdings and its committees will have supervisory authority over Taylor Morrison Holdings and its subsidiaries and will exercise control over the operations and businesses of Taylor Morrison Holdings and its subsidiaries. The Board of Directors of Monarch Communities and its committees will have supervisory authority over Monarch Communities and its subsidiaries and will exercise control over the operations and businesses of Monarch Corporation and its subsidiaries.

Committees of the Board

Upon consummation of this offering, the Board of Directors of TMHC will have three standing committees. TMHC will be required to have an audit committee consisting entirely of independent directors, subject to applicable phase-in periods. As a controlled company, we are not required to have a fully independent nominating and governance or compensation committee.

 

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Audit

Upon completion of this offering, TMHC will have an audit committee consisting of             . The Board of Directors of TMHC has determined that                  qualifies as an “audit committee financial expert” as such term is defined in Item 407(d)(5) of Regulation S-K and that each of              are “independent” for purposes of Rule 10A-3 of the Securities Exchange Act of 1934 and under the listing standards of national securities exchanges. The Board of Directors of TMHC has determined that the composition of its audit committee satisfies the independence requirements of the SEC and these national securities exchanges.

The principal duties and responsibilities of TMHC’s audit committee are to prepare the report required by the rules of the SEC to be included in our annual proxy statement or annual report and oversee and monitor, among other things, the following:

 

   

the integrity of our financial statements;

 

   

the independence, qualifications and performance of our independent registered public accounting firm;

 

   

compliance by our personnel with the TMHC code of ethics and TMHC related-party transactions policies;

 

   

the performance of our internal audit function; and

 

   

compliance by TMHC with legal and regulatory requirements.

Compensation

Upon completion of this offering, the compensation committee of TMHC will consist of             . Because we will be a “controlled company” under the rules of national securities exchanges, our compensation committee is not required to be fully independent, although if such rules change in the future or we no longer meet the definition of a controlled company under the current rules, we will adjust the composition of the compensation committees accordingly in order to comply with such rules.

The compensation committee will have the sole authority to retain and terminate any compensation consultant to assist in the evaluation of employee compensation and to approve the consultant’s fees and the other terms and conditions of the consultant’s retention.

Nominating and Governance

Upon completion of this offering, the nominating and governance committee of TMHC will consist of             . Because we will be a “controlled company” under the national securities exchange rules, our nominating and governance committee is not required to be fully independent, although if such rules change in the future or we no longer meet the definition of a controlled company under the current rules, we will adjust the composition of our nominating and governance committees accordingly in order to comply with such rules.

Risk Oversight

TMHC’s Board of Directors has an oversight role, as a whole and also at the committee level, in overseeing management of its risks. The Board of Directors of TMHC regularly reviews information regarding our credit, liquidity and operations, as well as the risks associated with each. The compensation committee of the Board of Directors of TMHC is responsible for overseeing the management of risks relating to its employee compensation plans and arrangements and the audit committee of the Board of Directors of TMHC oversees the management of financial risks. While each committee is responsible for evaluating certain risks and overseeing the management of such risks, the entire Board of Directors of TMHC is regularly informed through committee reports about such risks.

 

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Risk and Compensation Policies

TMHC’s management, at the direction of its Boards of Directors, has reviewed its employee compensation policies, plans and practices to determine if they create incentives or encourage behavior that is reasonably likely to have a material adverse effect on TMHC. In conducting this evaluation, management has reviewed our various compensation plans, including our incentive and bonus plans, equity award plans and severance compensation plans, to evaluate risks and the internal controls we have implemented to manage those risks. In completing this evaluation, TMHC’s Boards of Directors and management believe that there are no unmitigated risks created by TMHC’s compensation policies, plans and practices that create incentives or encourage behavior that is reasonably likely to have a material adverse effect on us.

Compensation Committee Interlocks and Insider Participation

None of our executive officers will serve as a member of any of TMHC’s compensation committee, and none of them have served, or will be permitted to serve, on TMHC’s compensation committee (or any other committee serving a similar function) of any other entity.

Codes of Conduct

We have adopted a Code of Ethics that applies to our President, Chief Executive Officer, Chief Financial Officer, senior financial officers and controllers at the corporate and division levels (the “Senior Officers Code”). The Senior Officers Code was designed to be read and applied in conjunction with our Code of Business Conduct and Ethics applicable to all employees. Both the Senior Officers Code and the Code of Business Conduct are available at             . Any future changes or amendments to the Senior Officers Code or the Code of Business Conduct, and any waiver of the Senior Officers Code or the Code of Business Conduct that applies to our Chief Executive Officer, Chief Financial Officer or Principal Accounting Officer will be posted to our website at the above location.

Related Person Transactions

We have adopted a Related Person Transaction Policy, which sets forth our policy with respect to the review, approval, ratification and disclosure of all related person transactions by TMHC’s audit committee. In accordance with our Related Person Transaction Policy, TMHC’s audit committee has overall responsibility for the implementation and compliance with this policy.

For the purposes of our Related Person Transaction Policy, a “related person transaction” is a transaction, arrangement or relationship (or any series of similar transactions, arrangements or relationships) in which we were, are or will be a participant and in which any related person (as defined in our Related Person Transaction Policy) had, has or will have a direct or indirect material interest, in excess of $120,000. A “related person transaction” does not include any employment relationship or transaction involving an executive officer and any related compensation resulting solely from that employment relationship which has been reviewed and approved by TMHC’s Board of Directors or compensation committee.

Our Related Person Transaction Policy requires that notice of a proposed related person transaction be provided to our legal department prior to entering into such transaction. If our legal department determines that such transaction is a related person transaction, the proposed transaction will be submitted to TMHC’s audit committee for consideration at its next meeting. Under our Related Person Transaction Policy, only TMHC’s audit committee will be permitted to approve those related person transactions that are in, or not inconsistent with, our best interests. In the event we become aware of a related person transaction that has not been previously reviewed, approved or ratified under our Related Person Transaction Policy and that is ongoing or is completed, the transaction will be submitted to TMHC’s audit committee so that it may determine whether to ratify, rescind or terminate the related person transaction.

Our Related Person Transaction Policy also provides that TMHC’s audit committee will review certain previously approved or ratified related person transactions that are ongoing to determine whether the related person transaction remains in our best interests and the best interests of our stockholders.

 

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COMPENSATION DISCUSSION AND ANALYSIS

Executive Summary

This compensation discussion and analysis discusses our executive compensation programs for our named executive officers in respect of our 2012 fiscal year and includes a discussion of our compensation objectives and philosophy and the material elements of compensation earned by, or awarded or paid to, our named executive officers in the year. This section also describes processes we use in reaching compensation decisions and is intended to amplify and provide context for understanding the amounts in the tabular disclosure that follows. In addition, we highlight certain attributes of our program and describe some of our preliminary thinking as to our intended compensation approach when we are a public company.

Our named executive officers for 2012 were as follows:

 

President and Chief Executive Officer of TMHC and Taylor Morrison, Inc. and Director of Taylor Morrison Holdings and Monarch Communities

   Sheryl Palmer

Vice President and Chief Financial Officer of TMHC and Taylor Morrison, Inc.

   C. David Cone

President, West Region and Interim Chief Financial Officer of Taylor Morrison, Inc. (former)

   Steve Wethor

Chief Financial Officer of Taylor Morrison, Inc. (former)

   Ed Barnes

President, East Region of Taylor Morrison, Inc.

   Lou Steffens

President, TMHF and Mortgage Funding Direct Ventures

   Tawn Kelley

President, Monarch Corporation

  

Brad Carr

TMM generally does not have executive officers, so our named executive officers are generally officers of subsidiaries of TMM.

During 2011, notwithstanding the economic challenges facing our business and our change in ownership in 2011, we retained our highly experienced management team by balancing our goal of minimizing changes and disruptions to compensation structures with our need to incentivize the team to create value in the business.

Economic Challenges . Consistent with the general downturn of the economy and decline in demand for housing over the past few years, our business faced challenges during our 2012 fiscal year. In the United States, there continued to be an overall decline in home sales from the prior decade, and the housing recovery has been restrained due to only modest recoveries in consumer confidence and employment rates, among other issues. In Ontario, recently we have seen modest contraction in single family housing starts and closings largely due to the lack of supply, but the market has maintained a more sustainable pace of growth over the past decade and generally has been stable in contrast to the housing downturn in the United States. Due to the relative historic success of our operations in Ontario, our disciplined operating platform and our strategic locations in the United States, we were profitable in 2012 and performed well notwithstanding the unprecedented challenges of the economic downturn. We believe that our pursuit of efficiency and profitability and our attractive land supply coupled with disciplined land acquisition policies have been significant contributors to our profitability and position us to capitalize on a recovery in the U.S. housing market.

Change in Compensation Structure Post—Change in Ownership. Our company has a history of more than 75 years of North American homebuilding operations, originally commencing homebuilding operations in both the United States and Canada in 1936. From July 2007 until the closing of the Acquisition in July 2011, we were owned by and operated as a subsidiary of Taylor Wimpey plc, a U.K. publicly-listed homebuilding company.

 

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Since the Acquisition in 2011, we have been owned and controlled by the Principal Equityholders (or their affiliates). To that end, 2011 marked a significant change in our operations towards private ownership and operation as a stand-alone business.

After the Acquisition, and following a review of our compensation structure, our Principal Equityholders (or their affiliates) approved a new structure for our management team, taking into account our existing compensation levels, the economic challenges facing our business and the need for new incentive and retention devices suitable for a privately-owned company. The primary goals of the changes to our executive compensation structure were to align the interests of our management team with those of our Principal Equityholders and retain our talent, as we view the continuity of management as vital to the success of our business. To this end, long-term equity compensation was integrated into our compensation structure in 2011, and total target compensation relative to compensation paid by our homebuilding peers was closely scrutinized by our Principal Equityholders (or their affiliates). During 2011, we developed certain additional changes to our compensation structure, which were designed to create a balanced mix between annual cash compensation and the new long-term equity program for our management team and to be more consistent with pay packages being offered by our industry peers. Such changes began to take effect on December 15, 2011 and continue to apply to our compensation arrangements in place for 2012. In addition, effective as of January 1, 2012, we implemented a long-term cash-based incentive program to further motivate our management team towards contributing to our long-term goals as well as to function as a retention device.

Retention of Management . In 2012, we engaged David Cone, as Vice President and Chief Financial Officer of Taylor Morrison, Inc. to succeed Ed Barnes, who served in such position from January 30, 2012 until June 19, 2012.

In addition, following the departure of our former President of Monarch Corporation, Brian Johnston, whose employment with us terminated in May 2012, Brad Carr, who had served our business in other capacities since 2001, became our new President of Monarch.

Consistent with our compensation objectives and philosophy, which are discussed in detail in this compensation discussion and analysis, our compensation programs for 2012 have the following attributes:

 

   

A balanced mix of short-term cash compensation and long-term compensation (both equity- and cash-based);

 

   

Forfeiture of equity awards upon violation of certain post-employment restrictive covenants;

 

   

An appropriate level of severance protection to ensure continuity of service;

 

   

No single-trigger change in control “parachute payment” features in any of our programs;

 

   

No gross-ups for any excise or other penalty taxes related to compensation paid; and

 

   

A modest use of perquisites, which do not make up a material portion of the compensation and benefits provided to our named executive officers.

Overview of Contents

In this compensation discussion and analysis, the following topics will be discussed:

 

   

Compensation Objectives and Philosophy

 

   

Establishing and Evaluating Executive Compensation

 

   

Key Elements of Executive Compensation Program

 

   

Other Program Attributes

 

   

Looking Ahead: Post-IPO Compensation

 

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Compensation Objectives and Philosophy

Our compensation program reflects our philosophy to pay all of our executives, including our named executive officers, in ways that support our primary objectives of:

 

   

Encouraging a results-driven culture through a pay-for-performance structure;

 

   

Balancing long-term and short-term compensation and cash and equity-based compensation to ensure our executives are focused on the appropriate short-term financial budget goals and long-term strategic objectives;

 

   

Aligning executives’ interests with equityholder interests in creating long-term value for our owners;

 

   

Attracting, retaining and motivating key talent; and

 

   

Aligning total compensation levels with those paid by our direct competitors in the homebuilding sector as well as companies of comparable size and scope in other industries.

Our compensation structure is centered on a pay-for-performance philosophy, and such pay-for-performance focus is designed to align the interests of our executives and our Principal Equityholders, motivate our executives to achieve our targeted financial and other performance objectives, and reward them for their achievements when those objectives are met. To help achieve these objectives, a significant portion of our executive officers’ compensation is at-risk and provided in the form of variable or performance-based compensation with significant upside potential for strong performance, as well as downside exposure for underperformance. We believe this is appropriate given our executive officers’ ability to influence our overall performance.

We recognize the need for long-term incentives to retain talent in today’s challenging economic environment where short-term goals may be more difficult to achieve. To that end, we seek to provide a balance between short-term and long-term incentives as well as between cash compensation and equity-based compensation to encourage the focus on long-term strategic objectives. Having a long-term compensation component is also consistent with the long time horizon inherent in the homebuilding industry for the realization of revenue from any specific development project. In light of such objectives, our Principal Equityholders (or their affiliates) determined that a significant portion of total compensation would be delivered in the form of long-term equity-based compensation, a portion of which vests based on continued service over five years and another portion of which vests upon a multi-tiered return that is ultimately achieved by our Principal Equityholders upon a qualifying future sale of the business.

The overall level of total compensation for our executive officers is intended to be reasonable in relation to and competitive with the compensation paid by similarly situated peer leaders in the homebuilding industry, subject to variation for factors such as the individual’s experience, performance, duties, scope of responsibility, prior contributions and future potential contributions to our business. With these principles in mind, we structure our compensation program as a competitive total pay package which we believe allows us to attract, retain and motivate executives with the skill and knowledge we require and ensure the stability of our management team which is vital to the success of our business. However, in setting named executive officer compensation levels, we do not formally benchmark to any peers.

Establishing and Evaluating Executive Compensation

Process – Role of Officers and Compensation Committee

In 2012, our executive compensation program was managed at the level of Taylor Morrison Holdings and Monarch Communities, and the respective compensation committee of each of the boards of directors of Taylor Morrison Holdings and Monarch Communities (referred to collectively in this compensation discussion and analysis as the “Compensation Committee”) was responsible for all compensation decisions for the executive officers of the applicable company and its subsidiaries. Taylor Morrison, Inc.’s Vice President of Human Resources

 

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works with Ms. Palmer to establish Compensation Committee meeting agendas and provide various types of information, including interim progress against performance targets, information about other homebuilding companies or other topics requested by the Compensation Committee to assist the Compensation Committee in making its decisions.

The Compensation Committee, after consultation with Ms. Palmer as to officers other than herself, reviewed and determined base salary, annual cash incentive bonuses and long-term incentive compensation levels for each executive officer. Ms. Palmer recommended to the Compensation Committee annual cash incentive bonus performance targets and evaluates actual performance relative to those targets, excluding as would be applicable to her own compensation. The Compensation Committee, after taking into account Ms. Palmer’s recommendations, reviewed and approved annual bonus performance targets and the amount of annual bonuses payable to each named executive officer based on achievement of annual performance targets. Ms. Palmer’s compensation levels are established by the Compensation Committee in its sole discretion. While Ms. Palmer may discuss her compensation with the Compensation Committee, she does not have any formal role or authority in the determination of her compensation.

Process – Factors Considered in Setting Compensation

The Compensation Committee believes that compensation decisions for our named executive officers are complex and require consideration of many factors, including the Company’s performance, the overall competitive market environment, industry compensation levels, the officer’s individual performance and the Company’s performance.

Market Data ( Competitors and General Industry ). The Compensation Committee does not benchmark compensation for our executives based on compensation paid by our competitors or companies in other industries and only reviews such information to better assess the range of compensation needed to attract, retain and motivate executive talent in our highly competitive industry. Nevertheless, in establishing compensation packages for our named executive officers in the United States, the Compensation Committee reviews and considers the compensation levels of executives at public homebuilding companies as a factor, amongst other factors, in establishing targeted compensation. This review covers compensation data for a group of our competitors within the homebuilding industry (as available in such companies’ public filings) and the most directly-relevant published survey sources available with respect to all direct pay elements, including salary, cash incentives and equity.

Specifically, in 2012 the Compensation Committee reviewed compensation data at the following 13 publicly-traded homebuilding companies in connection with setting compensation for Ms. Palmer and Messrs. Barnes and Cone:

 

•    Pultegroup Inc.

 

•    Toll Brothers Inc.

 

•    Ryland Group Inc.

•    D.R. Horton Inc.

 

•    KB Home

 

•    Meritage Homes Corp.

•    Lennar Corporation,

 

•    Hovnanian Enterprises Inc.

 

•    MDC Holdings Inc.

•    NVR Inc.

 

•    Standard Pacific Corp.

 

•    Beazer Homes Usa Inc.

   

•    M/I Homes Inc.

In connection with setting compensation for Mr. Steffens, Mr. Wethor and Ms. Kelley, the Compensation Committee reviewed a variety of compensation surveys, including Mercer’s Executive Remuneration Survey for the Real Estate and Construction Sector and FMI Compensation’s Homebuilders Executive Survey. In addition, for certain officer positions or to further inform its compensation decisions, from time to time the Compensation Committee will review compensation levels and trends across companies outside the homebuilding sector. In setting compensation levels for our executive officers serving Monarch in Canada, including Mr. Carr, the Compensation Committee does not review formal market data on compensation levels due to the fact that

 

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information about compensation paid by our competitors in Canada is not as readily available. All of our competitors in Canada are privately owned, and the Canadian homebuilding sector does not publish general compensation surveys and reports. So, in setting compensation levels for these executives, we rely on our extensive experience in the industry in Canada as well as informal data obtained about our Canadian competitors. We also look at our United States competitors for data on pay for executives serving in similar capacities and use such information to guide our decisions, taking into account the different legal regime applicable to employees in Canada.

Individual Performance . As mentioned above, in addition to considering market data, the Compensation Committee considers each executive officer’s individual performance in determining executive compensation levels, including the nature and scope of the executive’s responsibilities and the executive’s prior performance and expected future contributions. The Compensation Committee’s review of individual performance is general and subjective in nature – specific individual performance goals are not systematically established or measured.

Company Performance . The Compensation Committee also considers our performance, financial plans and budget in setting officer compensation levels for any given year taking into account general economic challenges as well as any specific challenges facing our business.

Key Elements of Executive Compensation Program

The primary elements of our compensation structure are base salary, annual cash incentive bonuses, long-term incentives (including equity-based awards that provide value to our executives as the equity value of TMM increases and long-term cash awards), investment opportunities and certain employee benefits and perquisites. A brief description of, objectives of, and any changes in 2012 to, each principal element of our executive compensation programs for fiscal 2012 are summarized in the following table and described in more detail below.

Key Compensation Program Elements – Overview

 

Compensation Element

  

Brief Description

  

Objectives

  

Changes in 2012 (from 2011)

Base Salary

   Fixed compensation    Provide a competitive, fixed level of cash compensation to attract and retain talented and skilled executives    Base salary increases from 2011 were provided to our named executive officers as follows: Sheryl Palmer 11%, Steve Wethor 12.5%, Lou Steffens 7%, Tawn Kelley 17%, and Brad Carr 37% (these are discussed in more detail below)

Annual Cash Incentive Bonuses

   Variable, performance-based cash compensation earned based on achieving pre-established annual goals   

Motivate executives to achieve or exceed our current-year financial goals and reward them for their achievements

 

Aid in retention of key executives in a highly competitive market for talent

  

Bonuses were based on performance over the full year and the weighting of the performance metrics were adjusted in order to continue to drive important business results

 

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Compensation Element

  

Brief Description

  

Objectives

 

Changes in 2012 (from 2011)

Long-Term Incentives – Equity Based

   Variable equity-based compensation to promote achievement of longer-term goals   

Align executives’ and Principal Equityholders’ interests by linking rewards with achievement of return to our Principal Equityholders based on our long-term growth plan

 

Aid in retention of key executives and ensure continuity of management in a highly competitive market for talent

  Long-term equity incentive awards (and phantom equity-based incentive awards for our executives serving Monarch, including Mr. Carr) were granted to each of our named executive officers based on decisions made by the Compensation Committee

Long-Term Incentives – Cash Based

   Variable cash-based compensation to promote achievement of longer-term goals   

Motivate and reward executives to achieve or exceed multi-year performance goals and reward them for their achievements

 

Aid in retention of key executives and ensure continuity of management in a highly competitive market for talent

  This program was implemented in 2012 for a performance period from January 1, 2012 through December 31, 2014

Investment Opportunity

   Opportunity to make a direct investment in TMM alongside our Principal Equityholders with a minimum investment of $50,000    Align executives’ and our Principal Equityholders’ interests and encourage executives to have “skin in the game” by direct ownership   Messrs. Carr & Wethor and Ms. Palmer made additional investments of their own capital in TMM

Employee Benefits and Perquisites

   Participation in all broad-based employee health and welfare programs and retirement plans    Aid in retention of key executives in a highly competitive market for talent by providing overall benefits package competitive with industry peers   Employee benefits vary based on individual elections; auto allowance and certain commuting expense reimbursements are the only perquisites provided to our named executive officers

 

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Our executive compensation program also provides for commissions where appropriate, cash severance payments and benefits and accelerated vesting of equity awards in the event of certain terminations of employment following a change in ownership of our business.

Base Salary

The base salary component of executive officer compensation is intended to provide a stable level of minimum compensation to each officer commensurate with the executive’s role, experience and duties. The Compensation Committee annually reviews and approves base salaries for our executive officers based on several factors, including the individual’s experience, responsibilities, performance, expected future contribution, our expected financial performance and salaries of similarly situated executives of our public peers in the homebuilding industry and in the general industry.

Following its review of existing salary levels as set by our former parent, Taylor Wimpey plc, available market data and individual performance factors, and in order to partially mitigate the decrease in annual cash compensation resulting from the changes to compensation mix (discussed under Annual Cash Incentive Bonuses , below), the Compensation Committee, in consultation with Ms. Palmer (except as to her own compensation), determined that named executive officer base salaries would increase as of January 1, 2012, as follows:

 

Name and Title

   2011 Base Salary      2012 Base Salary  

Sheryl Palmer

   $ 630,375       $ 700,000   

David Cone*

     N/A       $ 400,000   

Steve Wethor

   $ 400,000       $ 450,000   

Ed Barnes*

     N/A       $ 450,000   

Lou Steffens

   $ 443,375       $ 475,000   

Tawn Kelley

   $ 364,500       $ 425,000   

Brad Carr**

   $ 293,908       $ 401,240   

 

* These executives commenced employment with us during 2012.
** Mr. Carr received an increase in base salary to $310,961 on January 1, 2012 and received an additional increase to $401,240 on May 25, 2012 in connection with his promotion to President of Monarch.

Annual Cash Incentive Bonuses

The second component of executive officer compensation is annual cash incentive bonuses based on company performance. Tying a portion of total compensation to annual company performance permits us to adjust the performance measures each year to reflect changing objectives and those that may be of special importance for a particular year. Through this program, we seek to provide an appropriate amount of short-term cash compensation that is at-risk and tied to the achievement of certain short-term performance goals.

 

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Target Amounts. Target annual cash incentive bonuses in respect of 2012 were significantly reduced for each of our named executive officers, from the 2011 levels set by our former parent, Taylor Wimpey plc. The Compensation Committee reduced the bonus targets after its review of the existing compensation package for our executives, taking into account the competitive salary levels previously established and the level of equity-based compensation set by our Principal Equityholders (or their affiliates), and its determination that, effective as of January 1, 2012, a smaller portion of total compensation would be delivered through annual cash bonuses, with a greater emphasis on equity-based compensation. The target annual cash incentive bonuses for 2012 set by the Compensation Committee for each of our named executive officers as decreased from the prior year are as follows:

 

Name

   2012 Target Annual
Bonus as a Percentage
of Base Salary
    Percentage Decrease in Target
Bonus from Prior Year
 

Sheryl Palmer

     150 %     -350 %

C. David Cone*

     100     N/A   

Steve Wethor

     135 %     -215 %

Ed Barnes*

     100     N/A   

Lou Steffens

     135 %     -315 %

Tawn Kelley

     135 %     -215 %

Brad Carr**

     125     -100

 

* These executives commenced employment with us during 2012. Mr. Cone’s annual bonus for 2012 will be prorated based on his commencement of employment with us on October 15, 2012.
** Mr. Carr’s bonus opportunity was decreased as of January 1, 2012 to 185% of base salary (at the same time that bonus opportunities for other executives were decreased) and further decreased to 125% of base salary on May 25, 2012 in order to rebalance his total target compensation upon the issuance to him of a new equity compensation opportunity in connection with his promotion to President of Monarch.

The actual 2012 annual cash incentive bonus amounts will be calculated based on a combination of objective performance measures and using the following formula:

 

  Annual  

Salary

    x      Target
Bonus
Percentage
    x      Business
Unit
Multiplier
    =      Bonus
Payout

Business Unit Multiplier . Our “Business Unit Multiplier” is an aggregated measure of the attainment of specific financial and operational goals for the relevant business unit, or, for some officers, for the company as a whole, expressed in our tables below as a percentage. To determine the Business Unit Multiplier, specific criteria and corresponding goals are set for each officer. Each goal (1) has an associated “entry,” “threshold,” and “maximum” percentage attainment level (typically, 20%, 50-60% and 100%, respectively), with straight-line interpolation for attainment between levels, and (2) is weighted to reflect the Compensation Committee’s assessment of the goals’ importance in relation to our overall business objectives. Specifically, the percentage attainment of each goal is applied to the weighting factor (itself a percentage), and these numbers are totaled to set the Business Unit Multiplier.

Establishing Performance Goals for 2012 Annual Bonus Plan . Bonus plan goals for 2012 were established by the Compensation Committee in consultation with Ms. Palmer. The bonus plan goals included financial performance metrics consistent with those established for the post-Acquisition period of 2011 and operational goals focused on customer satisfaction and the North American Scorecard. The threshold payout level was designed to be achievable with strong management performance and the maximum level was designed to encourage and reward our named executive officers for outstanding performance.

The approach to goal setting for 2012 bonuses involved a process of reviewing, among other things, our prior year’s financial performance, the economic constraints facing the homebuilding industry and the economy

 

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and our short-term and long-term strategic objectives. We also took into account the need for setting goals that are challenging yet reasonably achievable so as to provide a competitive pay package necessary for the retention of our talent.

In the tables below, the “Actual Attainment” column is blank because, as of the date of this filing, such attainment has not been finally measured and confirmed, and actual bonus payout amounts have not yet been determined.

Achievement of Corporate Performance Goals . The 2012 bonus program performance goals applicable to Ms. Palmer and Mr. Cone are subject to overall company — not business unit specific — results. The goals were as follows:

 

Corporate Performance ($ in thousands)

Performance Goals

   Weight   Entry
(20%)
    Threshold
(60%)
    Maximum
(100%)
    Actual
Attainment

Earnings before interest and taxes

   40%   $ 145,000      $ 165,000      $ 180,000     

Operating cash flow before all land investment

   30%   $ 275,000      $ 300,000      $ 325,000     

Actual Closings plus year-end order book

   20%     6,800        6,950        7,100     

Customer Satisfaction – 30 day plus 10 months overall customer satisfaction

   10%     82     86     90  

Achievement of Business Unit Performance Goals . The 2012 bonus program performance goals applicable to Messrs. Steffens, Wethor, and Carr and Ms. Kelley are based on overall company results and/or the results of the specific business unit they lead. Performance criteria for 2012 for the East, West and Canada regions were the same as the metrics used for the overall company (earnings before interest and taxes, cash flow, order book/closings and customer satisfaction).

 

   

Mr. Steffens’ 2012 bonus will be based 100% on the results of the East region. The goals for the East region for 2012 were as follows:

 

East Region Performance ($ in thousands)

Performance Goals

   Weight     Entry
(20%)
    Threshold
(60%)
    Maximum
(100%)
    Actual
Attainment

Earnings before interest and taxes

     30   $ 57,000      $ 65,000      $ 71,000     

Operating cash flow before all land investment

     30   $ 100,000      $ 106,000      $ 112,000     

Actual Closings plus year-end order book

     20     2,040        2,067        2,165     

Customer Satisfaction – 30 day plus 10 months overall customer satisfaction

     10     82     86     90  

North American Scorecard

     10     3rd        2nd        1st     

 

   

Mr. Wethor’s 2012 bonus will be based 100% on the results of the West region unless the overall company results are better than the results for the West region for the first quarter (when he served as acting Chief Financial Officer), in which case 25% of his bonus will tie to overall company results based on the Corporate Performance goals described above. The goals for the West region for 2012 were as follows:

 

West Region Performance ($ in thousands)

Performance Goals

   Weight     Entry
(20%)
     Threshold
(60%)
     Maximum
(100%)
     Actual
Attainment

Earnings before interest and taxes

     30   $ 30,000       $ 35,000       $ 38,000      

Operating cash flow before all land investment

     30   $ 115,000       $ 124,000       $ 134,000      

Actual Closings plus year-end order book

     20     1,290         1,308         1,370      

Customer Satisfaction – 30 day plus 10 months overall customer satisfaction

     10  

 

82%

  

     86%         90%      

North American Scorecard

     10     3rd         2nd         1st      

 

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Mr. Carr’s 2012 bonus will be based either 100% on the results of the Canada region (calculated with his current bonus target of 125% of his current base salary of $401,240) or 100% on the performance of the low-rise division of Monarch (calculated based on his bonus target and base salary in effect prior to his promotion to President of Monarch at 185% of a base salary of $310,961), whichever formula results in a higher amount being due him. The goals for the Canada region for 2012 were as follows:

 

Canada Monarch Region Performance ($ in thousands)

Performance Goals

  Weight     Entry
(20%)
    Threshold
(60%)
    Maximum
(100%)
    Actual
Attainment

Earnings before interest and taxes

    30   $ 83,000      $ 90,000      $ 97,000     

Operating cash flow before all land investment

    30   $ 87,000      $ 97,000      $ 107,000     

Actual Closings plus year-end order book*

    20     3,470        3,575        3,610     

Customer Satisfaction – 30 day plus 10 months overall customer satisfaction

    10    
 
78% high-
rise
 
  
   
 
81% high-
rise
 
  
   
 
85% high-
rise
 
  
 
     
 
82% low-
rise
 
  
   
 
86% low-
rise
 
  
   
 
90% low-
rise
 
  
 

North American Scorecard*

    10     3rd        2nd        1st     

 

  * The performance metrics and targets for the Low Rise Division of Monarch are the same as for Monarch except for lower targets for actual closing as follows: Entry-1,400; Threshold-1,460; and Maximum-1,483; and North American Scorecard targets were Entry-9; Threshold-5; and Maximum-1.

 

   

Ms. Kelley’s bonus is based 50% on overall company results based on the goals described above and 50% on TMHF results and is designed to incentivize Ms. Kelley to integrate TMHF into our core homebuilding business. The goals for TMHF for 2012 were as follows:

 

TMHF Performance ($ in thousands)

Performance Goals

   Weight      Entry
(20%)
     Threshold
(60%)
     Maximum
(100%)
     Actual
Attainment

Profit per Unit

     40%         $4,400         $4,550         $4,700      

Revenue

     40%         2.80%         2.90%         3.00%      

Mortgage Capture

     20%         80%         82.5%         85%      

 

   

In connection with Mr. Barnes departure in June 2012 and entry into a separation and general release agreement with us, we agreed to provide him with a prorated bonus opportunity for 2012 based 100% on overall company results based on the goals described above or a prorated amount of his guaranteed minimum bonus of $300,000, whichever results in a higher bonus being due him.

As of the date hereof, audited financials have not been completed, so actual cash incentive bonuses payable to each of our named executive officers in respect of 2012 have not yet been determined.

Long-Term Incentives – Equity-Based

Class M Unit Plan for U.S. Executives . Following the Acquisition, each of our named executive officers (other than Mr. Carr, whose phantom arrangement is described below) were granted equity-based interests in TMM, which allow them to share in the future appreciation of TMM, subject to certain vesting conditions including both time-based vesting (based on continued employment) and performance-based vesting (based on the return achieved by our Principal Equityholders), as described in more detail below. These equity-based interests are designed to foster a long-term commitment to us by our named executive officers, provide a balance to the short-term cash components of our compensation program, align a portion of our executives’ compensation to the interests of our Principal Equityholders, promote retention and reinforce our pay-for-performance structure (as discussed in more detail below).

 

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The equity interests were granted pursuant to the TMM Holdings Limited Partnership 2011 Management Incentive Plan (the “MIP”) in the form of profits interests, called “Class M Units.” Class M Units represent an ownership interest in TMM providing the holder with the opportunity to receive, upon a liquidity event, a return based on the appreciation of TMM’s equity value from the date of grant. These Class M Units were issued as an upfront grant designed to provide a long-term incentive for the next five years. The awards were structured so that if TMM’s equity value were to appreciate, the executive would share in the growth in value from the date of grant solely with respect to the vested portion of the executive’s Class M Units. If TMM’s equity were not to appreciate in value or decrease in value in the future, then the Class M Units would have no value.

These equity awards also function as a retention device because a portion of the awards are scheduled to vest ratably over a five-year period (20% per year), subject to the named executive officer’s continued employment on each annual vesting date. To reinforce the pay-for-performance structure and alignment with interests of our equity holders, a portion of each award is scheduled to vest only upon satisfaction of certain performance thresholds (50% of the performance-based Class M Units are scheduled to vest only if the return on investment to our Principal Equityholders is 2.0x and the remaining 50% are scheduled to vest only if the return on investment to our Principal Equityholders is 2.5x; however, if the liquidity event occurs within 24 months following the Acquisition, the thresholds for vesting are reduced from 2.0x and 2.5x to 1.75x and 2.25x, respectively). See the “Grants of Plan-Based Awards” table for more information regarding the Class M Units held by our named executive officers.

Phantom Plan for Executives in Canada . In May 2012, in connection with his promotion to serve as regional President of Monarch, Mr. Carr was issued phantom interests (“Phantom Units”) pursuant to the TMM Holdings Limited Partnership 2011 Phantom Appreciation Rights Plan. Phantom Units are designed to provide equivalent payments and benefits to the equity awards issued under the MIP and are generally subject to the same terms and conditions as the MIP awards. Phantom Units do not entitle the holder to any equity interest in TMM and will be settled in cash. To that end, the payments and benefits under the phantom arrangement provide an opportunity to receive additional compensation based on the future appreciation of TMM, subject to certain vesting conditions including both time-based vesting (based on continued employment) and performance-based vesting (based on the return achieved by our Principal Equityholders) on the same basis as in the MIP awards, in a manner consistent with Canadian tax rules.

Equity-based and Phantom Unit Awards Issued in 2012 . On May 25, 2012, Mr. Carr received a grant of 1,300,000 Phantom Units in connection with his promotion to President of Monarch, an amount which the Compensation Committee determined was at the low range of what would be an appropriate grant level for someone serving in a similar position but was selected because of Mr. Carr’s new promotion to the position. After its review of his performance in the new position during the six months after his promotion, the Compensation Committee issued to Mr. Carr, effective as of December 7, 2012, an additional grant of 400,000 Phantom Units to bring his incentive compensation and total target compensation up to what it determined were more competitive levels. On October 15, 2012, Mr. Cone received an initial new hire grant of 1,500,000 Class M Units, an amount which the Compensation Committee determined was at the low range of what would be an appropriate grant level for someone serving in such position but was selected because Mr. Cone was a new hire. After its review of his performance in his role, the Compensation Committee issued to Mr. Cone, effective as of December 7, 2012, an additional grant of 400,000 Class M Units to bring his equity compensation and total target compensation up to what it determined were more competitive levels. On June 29, 2012, our Compensation Committee determined in its sole discretion to issue each of our other named executive officers a one-time special equity-based grant of Class M Units in connection with the offering of senior notes and Sponsor Loan Contribution in April 2012. The size of each grant was determined based on the executives’ then outstanding equity awards, with larger awards being issued to those individuals with a higher level of existing equity and were as follows: Ms. Palmer—1,000,000 Class M Units; Mr. Wethor—425,000 Class M Units; Mr. Steffens—425,000 Class M Units; and Ms. Kelley—200,000 Class M Units.

 

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Long-Term Cash Incentive Plan.

Consistent with our pay-for-performance compensation structure, the Compensation Committee approved the adoption of a new long-term cash incentive plan (the “Cash LTIP”) for the benefit of our executive officers, including our named executive officers. The Cash LTIP is designed to motivate and reward management for the achievement of multi-year performance goals by offering participants an opportunity to receive cash payments based on the achievement of such goals. The Cash LTIP has a three-year performance period commencing January 1, 2012 and continuing through December 31, 2014. Payouts under the Cash LTIP are based on achievement of targeted return on net assets (50%) for the year ending December 31, 2014 and cumulative earnings before interest and taxes (50%) over the three-year period. This bonus is paid at the end of the three-year performance period, if applicable performance goals are achieved. The amount of each individual’s target payout is set at a multiple of target annual cash incentive bonus opportunities for fiscal year 2012, which is 100% for our executives, as follows:

 

Executive

   Base      2012 Bonus
Opportunity
    LTIP
Opportunity
 

Sheryl Palmer

   $ 700,000         150   $ 1,050,000   

C. David Cone*

   $ 400,000         100   $ 300,000   

Lou Steffens

   $ 475,000         135   $ 641,250   

Steve Wethor

   $ 450,000         135   $ 607,500   

Brad Carr

   $ 401,240         125   $ 501,550   

Tawn Kelley

   $ 425,000         135   $ 573,750   

 

* Mr. Cone’s LTIP opportunity has been prorated based on his commencement of employment with us in October 15, 2012.

Investment Opportunity

The Compensation Committee believes it is important for key members of our senior management team and directors to build and maintain a long-term ownership position in our company, to further align their financial interests with those of our Principal Equityholders and to encourage the creation of long-term value. In order to achieve such goals and to assure that management owns a meaningful level of equity in TMM, each of our named executive officers was offered an opportunity to make a direct investment in TMM alongside our Principal Equityholders through the purchase of Class A Units, with a minimum investment amount of $50,000. We encouraged our executive officers to invest more than the minimum and rather invest an amount that is equal to one times their base salary, and each of our named executive officers (other than Mr. Cone) made an investment in TMM that is greater than the minimum amount. We believe that this investment opportunity has resulted in our management team having a desirable level of direct ownership in the business and a sufficient level of capital at risk thereby reinforcing our goal of aligning the interests of management with our owners.

Employee Benefits and Perquisites

We provide a number of benefit plans to all eligible employees, including our named executive officers. These benefits include programs such as medical, dental, life insurance, business travel accident insurance, short-and long-term disability coverage, a 401(k) defined contribution plan for employees in the United States, a registered retirement savings plans for employees in Canada and home purchase rebate program providing employees with a 5% rebate on purchases of homes built by our business. Employees in the United States who have been with us on or before December 31, 2010, including certain of our named executive officers, were eligible to accrue pension benefits under a cash balance pension plan which was frozen to new accruals and participants as of January 1, 2011. Under this plan, prior to 2011, our predecessor contributed a specified percentage of each employee’s salary each quarter (generally based on the participant’s age) to the participant’s account balance, and employees vested in their accounts after five years of service. For further information on pension benefits for our named executive officers, see the “Pension Benefits” table.

Perquisites for our named executive officers are limited to monthly auto allowances and, solely for Ms. Palmer, commuting expenses for her travel from her residence in Las Vegas to our offices in Scottsdale,

 

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Arizona. Auto allowances may be available to our other employees either in an executive role or those employees whose positions require regular driving for business as an essential job function. While perquisites help to provide competitive total compensation packages to the named executive officers in a cost-efficient manner by providing a benefit with a high perceived value at a relatively low cost, we do not generally view perquisites as a material component of our executive compensation program. In the future, we may provide additional or different perquisites or other personal benefits in limited circumstances, such as where we believe doing so is appropriate to assist an individual in the performance of his or her duties, to make our executive officers more efficient and effective and for recruitment, motivation and/or retention purposes.

During 2012, Ms. Kelley received certain commission payments totaling approximately $177,154, consistent with the terms of Ms. Kelley’s employment agreement originally established in 2009 at the time her company was acquired by our predecessor. Such commissions are based on certain percentage of net profit dollars earned on each joint venture/spot retail closing in a given year and are generally payable within 30 days of the end of each calendar month. In the event Ms. Kelley’s employment were to terminate, she would be entitled to outstanding commissions only for joint venture/spot retail closings that occur prior to her departure date.

Employment Agreements, Severance Protection and Restrictive Covenant Agreements

Each of our named executive officers (other than Messrs. Carr and Barnes) is party to an employment agreement with us, which specifies the terms of the individual’s employment including certain compensation levels and are intended to assure us of the executive’s continued employment and provide stability in our senior management team.

Each of Messrs. Wethor, Steffens and Ms. Kelley’s employment agreements with us were entered into prior to the Acquisition, and the employment of each such named executive officer under these agreements will continue in effect until terminated by us or by the named executive officer. Mr. Cone’s employment agreement with us was entered into shortly following his commencement of employment, and the term of his employment under such agreement will continue in effect until terminated by us or him. The term of Ms. Palmer’s employment agreement (dated July 13, 2011, and amended as of May 17, 2012), which was entered into in connection with the Acquisition in replacement of her then existing employment agreement, continues for three years through July 13, 2014, subject to automatic successive one-year extensions thereafter unless either party gives at least 90 days’ prior notice that the term will not be extended.

Ms. Palmer and Messrs. Wethor, Cone, Steffens and Carr are each party to a restrictive covenant agreement, which includes an 18-month post-employment non-compete and non-solicit of customers and employees in connection with certain terminations of employment; however, if termination is without cause by us or the executive resigns for good reason, the covenants apply only through the duration of the period in which the executive is receiving severance. Ms. Kelly is party to a similar restrictive covenant agreement, but hers will apply only during a post-employment period in which she is also receiving severance.

Pursuant to the employment agreements, we provide salary continuation and other benefits in the event of certain terminations of employment. A portion of the Class M Units (only those subject to time-based vesting conditions) held by our named executive officers (Phantom Units with respect to Mr. Carr) are also subject to accelerated vesting upon certain terminations of employment following a sale of TMM (generally, a transaction where (1) more than 80% of the Class A units are acquired by a third party that is unrelated to the Principal Equityholders, (2) the buyer acquires the right to replace the general partner of TMM, or (3) all or substantially all of the assets are sold (including due to the sale of more than 80% of the equity of the subsidiaries holding such assets)). These payments and benefits are designed to provide financial security in the event of certain corporate transactions and/or termination of employment, as well as consideration for the executive’s compliance with certain post-employment restrictive covenants. We believe these provisions help retain our executives who are critical to the success and operation of our business while also protecting important business objectives

 

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through restrictive covenants. See “Potential Payments Upon Termination or Change in Control” for a discussion of severance and change of control payments payable to our named executive officers pursuant to their employment agreements.

In May 2012, we amended Ms. Palmer’s employment agreement to provide her with an opportunity to receive a special retirement bonus of $1,000,000 if she voluntarily terminates her employment with us after May 15, 2013 and does not resume employment in the homebuilding industry in any capacity for five years. If Ms. Palmer resumes employment in the homebuilding industry within five years, she will be required to repay the bonus to us. The purpose of providing this bonus was twofold: to retain Ms. Palmer’s services through at least May 15, 2013 and incentivize her not to directly compete with us, which could cause significant harm to our business.

As mentioned above, we did not enter into an employment agreement with Mr. Carr. This is primarily because we expect he would be entitled to certain severance benefits depending on the circumstances of his dismissal pursuant to and in accordance with Canadian law, as described in more detail below under “Potential Payments Upon Termination or Change in Control.” We did not enter into any employment agreement with Mr. Barnes due to the short term of his service with our business. We entered into a separation agreement and general release agreement with him in connection with his departure, which is described under “Potential Payments upon Termination or Change in Control.”

Other Program Attributes

Equity Ownership

Our compensation structure for management provides for a significant percentage of compensation to be equity-based, which places a substantial portion of compensation at risk over a long-term period. At this time, we do not have specific equity ownership guidelines for named executive officers or our non-employee directors as our equity-based compensation programs and previously offered investment opportunities have, in our view, resulted in management having a desirable level of direct ownership in our business.

Adjustment or Recovery of Awards

Our equity-based awards provide that all vested equity-based awards will be forfeited by our executives automatically upon a breach by them of any of the post-employment restrictive covenants (e.g. non-competes) to which they are subject. The executive would also be responsible for damages suffered by us in connection with any such breach. We view this recovery of awards feature as a necessary element of our equity-based program as it deters competitive activities that would likely cause significant harm to our business.

Looking Ahead: Post-IPO Compensation

Retention of a Compensation Consultant

In November 2012, the Compensation Committee retained Pearl Meyer, the compensation consulting firm, to evaluate our compensation programs and to provide guidance with respect to developing and implementing our compensation philosophy and programs as a public company.

Clawback Policy

In connection with or following this offering, we intend to adopt a clawback policy that would require an individual to repay to us any incentive compensation paid to such individual based on the individual’s misconduct that results in the restatement of our financials. In addition, we reserve the right to adopt any additional clawback policies as may be necessary to protect our compensation policies and objectives and as may be required by law, including mandates required by the Dodd-Frank Act.

 

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2013 Equity Plan

In connection with this offering, we intend to adopt an omnibus equity incentive plan, the 2013 Plan, designed to align the interests of our management team with our new public investors. Pursuant to such plan, the compensation committee of TMHC (or subcommittee of delegated directors or officers) will have authority to grant awards under the plan, determine the types of awards to be granted, the recipients of awards, and the terms and conditions of awards (including the number of shares of Class A common stock (or dollar value) subject thereto, the vesting schedule and term, and to what extent and when awards may be settled in cash, shares of common stock, restricted shares or other property) and to establish rules relating to the plan and interpret the plan and awards.

The TMHC compensation committee may grant awards of stock options, share appreciation rights, restricted stock, restricted stock units, other stock-based awards, cash-based awards or any combination of the foregoing to our non-employee directors and current or prospective employees, consultants or advisors selected by the TMHC compensation committee. Subject to adjustment in connection with changes in capitalization and other corporate or non-recurring events, the 2013 Plan will provide for an aggregate of              shares of our Class A common stock, including authorized and unissued shares, treasury shares or shares purchased in the open market or otherwise, to be authorized for grants.

 

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Summary Compensation Table

The following table summarizes the compensation earned by, or awarded or paid to, each of our named executive officers for the years ended December 31, 2012 and 2011.

 

Name and Principal Position

  Year     Salary
($)
    Bonus
($)(1)
    TMM
Class M
Units or
Phantom
Units

($)(2)
    Non-Equity
Incentive Plan
Compensation
($)(3)
    Change in
Pension

Value and
Nonqualified
Deferred
Compensation
Earnings
($)(4)
    All Other
Compensation
($)(6)
    Total
($)
 

Sheryl Palmer

    2012        700,000        —          620,000          8,526        71,230        1,399,756   

President and Chief Executive Officer of TMHC and Taylor Morrison, Inc. and Director of Taylor Morrison Holdings and Monarch Communities

    2011        626,827        —          2,222,000        2,764,050        14,437        1,539,225        7,166,539   

C. David Cone,

    2012        84,615        —          1,332,143          —          2,782        1,419,540   

Vice President and Chief Financial Officer of TMHC and Taylor Morrison, Inc.

               

Steve Wethor

    2012        450,000        —          263,500          7,604        22,326        743,430   

President, West Region and Interim Chief Financial Officer of Taylor Morrison, Inc. (former)

    2011        395,385        237,500        851,250        1,260,288        12,725        20,719        2,777,867   

Ed Barnes,

    2012        176,538        —          833,250          —          290,694        1,300,482   

Chief Financial Officer (former)

               

Lou Steffens

    2012        475,000        —          263,500          9,358        20,236        768,094   

President, East Region of Taylor Morrison, Inc.

    2011        423,553        212,500        833,250        1,765,723        15,602        17,601        3,268,229   

Tawn Kelley

    2012        425,000        —         124,000          3,318        78,084        751,798   

President, TMHF and Mortgage Funding Direct Ventures

    2011        362,365        175,000        404,000        1,160,278        5,588        199,480        2,185,315   

Brad Carr,

    2012        363,624        —          1,043,143          —          24,656        1,431,423   

President of Monarch(5)

               

 

(1) The amounts reported in this column for 2011 reflect the second half of the transaction and success bonuses earned in fiscal 2011 contingent upon the executive remaining employed for the six-month period following the Acquisition, which were payable pursuant to special transaction and success bonus arrangements entered into in 2009, as approved by our former parent, Taylor Wimpey plc. These bonuses were designed to reward such executive officers for their efforts and contributions towards the consummation of a sale of Taylor Wimpey plc North American business and to provide an incentive to such executives to remain employed with us through and following the sale. The amount of each executive’s transaction and success bonus was set at a number of months of such individual’s 2009 base salary (generally 12 months) as determined by our former parent, Taylor Wimpey plc.
(2) The amounts reported in this column reflect the aggregate grant date fair value computed in accordance with Accounting Standards Codification topic 718, “Stock Compensation,” as issued by the Financial Accounting Standards Board. These values have been determined based on the assumptions set forth in Note 19 to our audited financial statements included elsewhere in this prospectus. Additional information regarding the awards is set forth in the tables and notes under “Grants of Plan-Based Awards” and “Outstanding Equity and Equity-Based Awards at Fiscal Year End.” The grant date fair value for Mr. Barnes’ award on January 31, 2012 has been estimated based on the grant date fair value as of December 15, 2011 because Mr. Barnes forfeited his Class M Unit award on June 19, 2012 in connection with his departure.
(3) The amounts reported in this column were paid under our annual cash incentive bonus program for the applicable year, which is described above, see “Compensation Discussion and Analysis – Key Elements of Executive Compensation Program – Annual Cash Incentive Bonuses.” Bonuses for 2012 have not yet been determined, as audited financial statements for the year ending December 31, 2012 have yet to be produced. 2012 bonuses will be disclosed upon being finalized.

 

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(4) These amounts do not represent realized compensation; rather, they represent an actuarial adjustment to the present value of accumulated benefits under our Taylor Morrison Cash Balance Pension Plan, from the pension plan measurement date used for financial statement reporting purposes with respect to our audited financial statements for the applicable fiscal year, to the pension plan measurement date used for financial statement reporting purposes with respect to our audited financial statements for the applicable fiscal year. See below under the heading “Pension Benefits” for additional details.
(5) Figures in this table for Mr. Carr are in U.S. dollars, even though amounts were paid to Mr. Carr in Canadian dollars. To derive the figures in the table, the actual Canadian dollar amounts paid were converted to U.S. dollars at a rate of 1.0031 Canadian dollars to U.S. dollars, the Canadian to U.S dollar exchange rate in effect on December 31, 2012.
(6) For each of our named executive officers, “All Other Compensation” consists of the payments for fiscal 2012 that are shown in the table below:

 

Name

   401(k)
Company
Match ($)
    Company
Paid Life
Insurance
Premiums
($)
     Auto
Allowance
($)
     Commuting
Expenses
($)(a)
     Other
($)
     Total ($)  

Sheryl Palmer

     8,575        2,951         14,400         25,554         19,750 (b)       71,230   

C. David Cone

     923        336         1,523         —           —           2,782   

Steve Wethor

     8,575        2,951         10,800         —           —           22,326   

Ed Barnes

     3,894        790         2,825         —           283,186 (c)       290,694   

Lou Steffens

     6,125        2,951         10,800         —           360 (d)       20,236   

Tawn Kelley

     8,575        2,951         10,800         —           57,298 (e)       199,480   

Brad Carr

     6,019 (f)      1,184         17,454         —           —           24,656   

 

  (a) We pay the commuting expense of Ms. Palmer’s flights from her residence in Las Vegas, Nevada to our corporate headquarters in Scottsdale, Arizona.
  (b) This amount represents the value of the rebate Ms. Palmer received in connection with her home purchase pursuant to the Taylor Morrison Home Purchase Rebate Program.
  (c) This value represents the amount of severance paid to Mr. Barnes following his departure from employment on June 19, 2012, pursuant to his separation and release agreement ($258,462) and the value of relocation benefits he received ($24,724).
  (d) This value represents a service award paid to Mr. Steffens in recognition of his five-year anniversary with us. We recognize all team members achieving milestone anniversaries for their commitment and loyalty to us beginning at five years of service and again every addition five-year milestone thereafter.
  (e) For 2012, Ms. Kelly received commissions for joint venture/spot retail closings.
  (f) For Mr. Carr, this amount reflects contributions to a registered retirement savings plan in Canada.

 

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Grants of Plan-Based Awards

The following table summarizes awards under our annual cash incentive bonus program and the equity-based awards to each of our named executive officers in the year ended December 31, 2012.

 

Name

  Grant
Date
     Type of Award   Estimated
Possible
Payouts
Under
Non-Equity
Long-Term
Cash
Incentive
Plan
Awards(1)
    Estimated Possible Payouts Under
Non-Equity Incentive
Plan  Awards(2)
    Estimated Possible Payouts Of
Class M Unit Awards or
Phantom Units(3)
 
       Target
($)
    Entry
($)
    Threshold
($)
    Maximum
($)
    Number of
Class M
Units or
Phantom
Units(#)
    Grant Date Fair
Value of Class M
Units or
Phantom
Units ($/Unit)(4)
 

Sheryl Palmer

    6/29/12       Class M Units             1,000,000        620,000   
     2012 Bonus Program       210,000        630,000        1,050,000       
     2012 Cash LTIP     1,050,000             

C. David Cone(5)

    12/7/12       Class M Units             400,000        237,143   
    10/15/12       Class M Units             1,500,000        1,095,000   
     2012 Bonus Program       20,000        60,000        100,000       
     2012 Cash LTIP     300,000             

Steve Wethor

    6/29/12       Class M Units             425,000        263,500   
     2012 Bonus Program       121,500        364,500        607,500       
     2012 Cash LTIP     607,500             

Ed Barnes

     Class M Units             2,887,500        833,250   
     2012 Bonus Program       300,000        —          450,000       

Lou Steffens

    6/29/12       Class M Units             425,000        263,500   
     2012 Bonus Program       128,250        384,750        641,250       
     2012 Cash LTIP     641,250             

Tawn Kelley

    6/29/12       Class M Units             200,000        124,000   
     2012 Bonus Program       114,750        344,250        573,750       
     2012 Cash LTIP     573,750             

Brad Carr

    12/7/12       Phantom Units             400,000        273,143   
    5/25/12       Phantom Units             1,300,000        806,000   
     2012 Bonus Program       115,056        345,167        575,278       
     2012 Cash LTIP     501,550             

 

(1) Under our Cash LTIP, each named executive officer is eligible to receive a cash payment for the achievement of certain performance goals over a three-year performance period commencing on January 1, 2012 and continuing through December 31, 2014. For a detailed description of the Cash LTIP, see “– Key Elements of Executive Compensation Program – Long-Term Incentives – Equity-Based –Long-Term Cash Incentive Plan.” This column shows the potential amount of the bonus if the performance metrics are attained.
(2) Under our annual cash incentive bonus program, each named executive officer is eligible to receive an annual cash incentive bonus for the fiscal year, the amount of which will vary depending on the degree of attainment of certain performance metrics, as described in “–Key Elements of Executive Compensation Program – Annual Cash Incentive Bonuses.” This column shows the potential amount of the bonus if performance metrics were attained at certain entry, threshold or maximum levels. For performance between entry and threshold, or threshold and maximum, the bonus amount is set using straight line interpolation.
(3) For a description of the material terms of these awards, see “– Key Elements of Executive Compensation Program – Long-Term incentives – Equity-Based – Class M Unit Plan for U.S. Executives or Phantom Equity Plan for Executives in Canada.”
(4) The amounts reported in this column reflect the aggregate grant date fair value computed in accordance with Accounting Standards Codification topic 718 “Stock Compensation,” as issued by the Financial Accounting Standards Board. These values have been determined based on the assumptions set forth in Note 19 to our audited financial statements included elsewhere in this prospectus.
(5) Mr. Cone’s annual bonus opportunity for 2012 and his Cash LTIP opportunity were pro-rated to reflect his commencement of employment with us on October 15, 2012.

 

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Outstanding Equity and Equity-Based Awards at Fiscal Year-End

 

            Equity and Equity-Based Awards  

Name

   Grant Date      Number of Class M Units
and Phantom Units
That Have Not Vested
(#)(1)
     Market Value of Class M Units
and Phantom Units
That Have Not Vested

($)(2)
 

Sheryl Palmer

     6/29/2012        1,000,000         250,000   
     12/15/2011         6,600,000         1,980,000   

C. David Cone

     12/7/2012         400,000         0   
     10/15/2012         1,500,000         214,286   

Steve Wethor

     6/29/2012        425,000         106,250   
     12/15/2011         2,475,000         757,929   

Lou Steffens

     6/29/2012        425,000         106,250   
     12/15/2011         2,475,000         742,500   

Tawn Kelley

     6/29/2012        200,000         50,000   
     12/15/2011         1,200,000         360,000   

Brad Carr

     12/7/2012         400,000         0   
     5/25/2012         1,300,000         325,000   
     12/15/2011         375,000         112,500   

 

  (1) All awards granted in 2011 reported in this column were approved and granted by the board of directors of TMM Holdings (G.P.) Inc. in its capacity as the general partner of TMM, (i) on December 15, 2011 Ms. Palmer, Messrs. Wethor and Steffens and Ms. Kelley each received a grant of Class M Units and, Mr.Carr received a grant of 437,500 Phantom Units, of which 20% of the portion of the award subject to time-based vesting vested in fiscal 2012, (ii) Mr. Carr who received a grant of 1,300,000 Phantom Units on May 25, 2012 in connection with his promotion to President of Monarch, (iii) on June 29, 2012 Ms. Palmer, Messrs. Wethor and Steffens and Ms. Kelley each received a grant of Class M Units, (iv) Mr. Cone received an initial grant of 1,500,000 Class M Units on October 15, 2012 in connection with his hiring, and (v) Mr. Cone received a grant of 400,000 Class M Units, and Mr. Carr received a grant of 400,000 Phantom Units on December 7, 2012. See “– Executive Compensation-Long-Term Incentives – Equity Based” for a description of the vesting terms of these awards.
  (2) There was no public market for the Class M Units or Phantom Units as of December 31, 2012 and thus the market value is based on the Compensation Committee’s valuation of $1.45 per unit as of such date, and the amount reflected in the table represents the value of the unvested time-based Class M Units. Based on a per unit value of $1.45 the return to our Principal Equityholders as of December 31, 2012 would have been less than the relevant vesting thresholds and accordingly, the performance-based Class M Units would have had no value.

 

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Class M Units and Phantom Units Vested

 

     TMM Class M Units/Phantom Units  

Name

   Number of Class M
Units/Phantom
Units Vested

(#)
     Value Realized  on
Vesting

($)(1)
 

Sheryl Palmer

     1,100,000         275,000   

Steve Wethor

     472,500         118,125   

Lou Steffens

     412,500         103,125   

Tawn Kelley

     200,000         50,000   

Brad Carr

     62,500         15,625   

 

  (1) There was no public market for the Class M Units as of the vesting date of July 13, 2012 and thus the market value is based on the Compensation Committee’s valuation of $1.25 per unit as of such date.

 

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Pension Benefits

 

Name

   Plan Name    Number of Years
Credited Service

(#)(1)
     Present Value of
Accumulated Benefit

($)
    Payments During
Last Fiscal Year ($)
 

Sheryl Palmer

   Taylor Morrison Cash
Balance Pension Plan
     7.0         81,619 (2)      0   

Steve Wethor

   Taylor Morrison Cash
Balance Pension Plan
     6.0         60,472 (2)      0   

Lou Steffens

   Taylor Morrison Cash
Balance Pension Plan
     6.0         72,013 (2)      0   

Tawn Kelley

   Taylor Morrison Cash
Balance Pension Plan
     4.0         28,291 (2)      0   

 

  (1) As of December 31, 2012, each participating named executive officer is fully vested in his or her respective retirement plan benefit. Pursuant to the terms of the Taylor Morrison Cash Balance Pension Plan, a year of service is credited once a participant has worked 1,000 hours in that year.
  (2) These amounts represent the actuarial present value of the total retirement benefit that would be payable to each respective named executive officer under the Taylor Morrison Cash Balance Pension Plan as of December 31, 2012. The following key actuarial assumptions and methodologies were used to calculate the present value of accumulated benefits under the Taylor Morrison Cash Balance Pension Plan: a discount rate of 3.81% and 2012 Static Mortality Table for Annuitants.

Overview of Pension Benefits

Pension benefits are provided to our named executive officers under the following plan, The Taylor Morrison Cash Balance Pension Plan (the “Pension Plan”) (for our officers in the U.S.). Effective January 1, 2011, the Pension Plan was frozen as to new participants and future accruals. Ms. Palmer was the only named executive officer eligible for early retirement under the Pension Plan for fiscal 2012.

The following table is an overview of the current terms and provisions of the frozen Pension Plan and the Supplemental Pension Plan.

 

    

Pension Plan

Purpose

   To provide a retirement benefit for eligible employees in recognition of their contributions to the overall success of our business

Eligibility

   U.S. salaried and hourly employees, including the named executive officers. The Pension Plan was frozen effective January 1, 2011. Employees hired January 1, 2011 or later are not eligible to participate in the Pension Plan.
Retirement Date & Early Retirement Date    Normal Retirement: The first day of the month coinciding with or next following the participant’s 65 th birthday, or if later the participant’s 5 th anniversary of joining the Pension Plan.
   Early Retirement: The first day of the month coinciding with or next following the date that participant attains age 50, and has completed at least five years of service with us.

 

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Pension Plan

Pension Formula   

Normal Retirement: Quarterly credits based on the employee’s age and eligible compensation (including regular compensation for services, commissions, bonuses, leave cash-outs, deferred compensation, but excluding separation payments), with the size of our contributions increasing based on the participant’s age. Our contributions range from 2% to 4% of eligible compensation, plus 1% of eligible compensation over the social security wage base. As of January 1, 2011, the Pension Plan was frozen with regard to pay credits.

 

Early Retirement: Same as normal retirement, however, if the participant elects to receive payments as of the early retirement date, the benefit will be equal to the actuarial equivalent of the normal retirement benefit.

Form of Benefit   

Normal Retirement: Paid as a monthly pension commencing on the participant’s retirement date and continuing for the participant’s life, with survivor benefits following the participant’s death continuing to the participant’s spouse during the spouse’s life at a rate equal to 50% of the rate at which such benefits were payable to the participant (i.e., a joint and 50% survivor annuity). A participant who is unmarried at the time benefits become payable under the Pension Plan shall be entitled to a monthly pension continuing for the participant’s life. However, the form of distribution of such benefit shall be determined pursuant to the provisions of the pension plan (i.e., one lump-sum cash payment, monthly pension payable over the life of the participant, etc.)

 

Early Retirement: Same as normal retirement.

Potential Payments Upon Termination of Employment or Change in Control

The following summaries and tables describe and quantify the potential payments and benefits that we would provide to our named executive officers in connection with termination of employment and/or change in control. In determining amounts payable, we have assumed in all cases that the termination of employment and/or change in control occurred on December 31, 2012. The amounts that would actually be paid to our executive officers upon a termination of employment will depend on the circumstances and timing of termination or change in control.

Severance Benefits

Sheryl Palmer . If Ms. Palmer resigns for good reason or if we terminate her employment without cause (including our election not to renew her employment agreement), Ms. Palmer will be entitled to receive the following payments and benefits, subject to a release of claims against us and her continued compliance with her post-employment restrictive covenants:

 

   

cash severance equal to two and a half times her base salary, payable in equal installments over a thirty month period in accordance with our standard payroll practices, provided that if Ms. Palmer’s date of termination is on or prior to July 13, 2013, her cash severance payment shall be no less than $2,000,000;

 

   

a prorated annual bonus for the fiscal year in which her employment terminates, payable in a lump sum and based on actual performance for the year (determined by the board of directors of Taylor Morrison Holdings following completion of the performance year and paid at the same time as other executives participating in the applicable plan); and

 

 

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we will pay the employer’s portion of Ms. Palmer’s COBRA premiums for up to thirty months following her date of termination of employment or such shorter period if she becomes eligible to receive comparable coverage under another employer plan.

 

   

Solely in the event that a qualifying termination occurred within the twenty four month period following a change in control, in addition to the severance payments and benefits described above, Ms. Palmer will be entitled to receive a cash payment equal to two and a half times her target bonus for the then current fiscal year payable in equal installments over the thirty month.

 

   

In 2012, we also amended Ms. Palmer’s employment agreement to provide her with an opportunity to receive a special retirement bonus in the amount of $1,000,000, if, after May 15, 2013, she voluntarily terminates her employment from the homebuilding industry and does not resume employment in the industry in any capacity for a period of five years following such departure. In the event that Ms. Palmer resumes employment in the home building industry within such five-year period, she will be required to repay the special retirement bonus to us. The purpose of providing Ms. Palmer this retirement bonus is twofold: retention of her services through at least May 15, 2013 and to deter her from directly competing with us for a period of five years following any such departure which could cause significant harm our business.

Termination of Ms. Palmer for “cause” generally means (i) a material breach by Ms. Palmer of her employment agreement, any equity agreement or any of our policies; (ii) Ms. Palmer’s gross negligence or willful misconduct, which is injurious to us; or (iii) Ms. Palmer’s commission of a felony or other crime involving dishonesty, fraud, breach of any fiduciary obligation to the board of directors of Taylor Morrison Holdings or any equity holder, or unethical business conduct, in the case of clause (i) subject to up to a fifteen day period to cure such breach or failure if reasonably susceptible to cure.

Resignation by Ms. Palmer for “good reason” generally means (i) any material diminution in the nature or status of Ms. Palmer’s duties and responsibilities, (ii) any material diminution in Ms. Palmer’s base salary or bonus opportunity, other than a decrease in base salary or bonus opportunity that applies to a similarly situated class of employees, or (iii) a change of the Ms. Palmer’s principal place of business to a location more than 50 miles from its then present location; provided, that Ms. Palmer provides us with written notice of any fact or circumstance believed by her to constitute good reason within 90 days of the occurrence of such fact or circumstance, and subject to a 30 day period to cure such fact or circumstance.

A “change in control” generally includes: an acquisition in excess of 80% of the stock of our predecessor (which includes a merger and sale or transfer of equity interests), an acquisition in excess of 80% of the equity interests in our subsidiaries, the acquisition of the power to replace a majority of the members of the board of directors of Taylor Morrison Holdings or the sale of all or substantially all of our and our subsidiaries’ assets.

Messrs. Cone, Wethor and Steffens and Ms. Kelley . The employment of Messrs. Cone, Wethor and Steffens and Ms. Kelley may be terminated by us or by the executive at any time, with or without cause. Pursuant to each such executive’s employment agreement, the executive is entitled to receive severance benefits upon termination by us without “cause” or upon resignation for “good reason” that is in connection with a “change in control.” Upon an eligible termination, the terminated executive will be entitled to continued payment of base salary for 12 months, a prorated annual bonus for the year of termination, and company-paid COBRA premiums for continued participation in our welfare plans for up to one year or such shorter period if the executive becomes eligible for coverage under another group program. The executive’s entitlement to these severance payments and benefits is generally conditioned on continued compliance with obligations not to solicit our employees, customers or suppliers and a general release of all claims against us.

Resignation for “good reason” generally includes: (i) a material change in the executive’s level, scope of duties and responsibilities or total compensation; or (ii) a relocation of more than 50 miles of the executive’s principal place of employment; provided that, in each case, notice of resignation is delivered to us within 30 days of such occurrence.

 

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Termination for “cause” generally includes any of the following actions by the executive: (i) conviction, guilty plea or confession to any felony, act of fraud, theft or embezzlement; (ii) malfeasance, negligence or intentional failure to perform duties that is not cured after 5 days of receipt of notice from us; or (iii) failure to comply with our employment policies a failure to comply with executive’s agreement or deviation from any of our employee policies or directives of the board of directors of Taylor Morrison Holdings.

“Change in control” generally includes: the sale of all of the assets of the employer entity; sale of 50% or more of any parent entity that controls the employer; or merger of the employer entity or its controlling parent entity.

Each executive (including Mr. Carr and Mr. Cone) is also subject to a restrictive covenants agreement in which he or she has agreed, among other things, not to compete with us for 18 months following termination of employment by us (other than for cause) or by the executive for good reason, provided that we are paying the executive severance and, except with respect to Ms. Kelley, upon voluntary termination of employment.

Mr. Carr . As an employee in Canada without a written employment agreement upon a termination by us without cause, Mr. Carr will be entitled to reasonable notice of termination, or pay in lieu thereof, under Canadian common law (whether or not following a change in control). The amount of such compensation will be determined at the time of dismissal and will be subject to negotiation. We did not enter into any agreement with Mr. Carr that provided him with single trigger benefits in the event of a change in control.

Mr. Barnes . In connection with his departure on June 19, 2012, we entered into a separation and release agreement with Mr. Barnes which provides him with the right to receive severance payments equal to $480,000 in the aggregate, payable in equal installments in accordance with our regular payroll practices, a prorated bonus for 2012 payable at the same time as other executives receive their bonuses, and company-paid COBRA premiums for up to one year or until he obtains coverage from another employer. In exchange for such severance payments, Mr. Barnes released us from any claims he may have had and agreed to certain restrictions on his activities, including a restriction from soliciting our customers and suppliers for a two-year period following his date of termination.

Change in Control Benefits

We do not provide our named executive officers with any single-trigger change in control payments or benefits. If a change in control were to have occurred on December 31, 2012, and none of our named executive officers were terminated, there would have been no payments due to our named executive officers under any of our plans. Each named executive officer’s Class M Units (Phantom Units with respect to Mr. Carr) that are subject to performance-based vesting conditions will only become vested upon receipt by our Principal Equityholders of the relevant returns described above, whether or not in connection with a change in control.

Each named executive officer’s Class M Units or Phantom Units that are subject only to time-based vesting conditions will become 100% vested in connection with any termination by us without “cause” or by the executive for “good reason” (each as defined in the relevant award agreement) that occurs within 24 months following a “change in control.” A change in control is generally defined as: (i) a sale of 80% or more of the equity of TMM or a subsidiary if such subsidiary holds substantially all of the assets of TMM and its subsidiaries; (ii) a sale of substantially all of the assets of TMM and its subsidiaries; or (iii) a transfer pursuant to which the acquirer has power to replace TMM’s general partner.

No named executive officer has any right to receive a “gross up” for any excise tax imposed by Section 4999 of the U.S. Internal Revenue Code, or any other U.S. federal, state and local income tax.

 

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Calculations of Benefits to Which Executives Would be Entitled

Assuming no change in control had occurred and termination of employment occurred on December 31, 2012, the dollar value of the payments and other benefits to be provided to each of the named executive officers are estimated to be as follows:

Estimated Payments and Benefits upon Termination without Cause or

Resignation for Good Reason Assuming No Change in Control had Occurred

 

Name

   Salary
Continuation
    Prorated
Bonus
    Continued
Benefits
    Other
Compensation
    TOTAL  

Sheryl Palmer

   $ 2,000,000 (1)    $ 1,050,000 (2)    $ 54,065 (3)      —        $ 3,104,065   

C. David Cone

   $ 400,000 (4)    $ 100,000 (2)    $ 21,626 (3)      —        $ 521,626   

Steve Wethor

   $ 450,000 (4)    $ 607,500 (2)    $ 21,626 (3)      —        $ 1,079,126   

Ed Barnes(5)

   $ 480,000      $ 175,070      $ 21,626        —        $ 676,696   

Lou Steffens

   $ 475,000 (4)    $ 641,250 (2)    $ 21,626 (3)      —        $ 1,137,876   

Tawn Kelley

   $ 425,000 (4)    $ 573,750 (2)    $ 21,626 (3)    $ 19,263 (6)    $ 1,039,639   

Brad Carr(7)

   $ 416,672      $ 405,098      $ 9,537        —       $ 831,307   

 

(1) Ms. Palmer’s base severance amount is two and a half times her base salary ($1,750,000); however, in the event that she was terminated on or prior to July 13, 2013, her base severance payment would have been no less than $2,000,000.
(2) Pursuant to their respective employment agreements, each of our named executive officers (other than Messrs. Carr and Barnes) is entitled to a prorated annual bonus for the fiscal year in which employment terminates. For purposes of this table, we have calculated the bonuses assuming that each named executive officer would have received his or her respective target bonus amount, except that Mr. Cone’s bonus for 2012 would be prorated based on his commencement of employment with us on October 15, 2012. The annual target bonus percentage for fiscal year 2012 for the named executive officers were as follows: Ms. Palmer — 150%, Mr. Cone 100%, Mr. Wethor — 135%, Mr. Barnes — 100%, Mr. Steffens — 135%, Ms. Kelley — 135%.
(3) These amounts reflect the estimated COBRA premiums for the executives and their respective eligible dependents enrolled (if any) in any then existing group health plans for one year (or in the case of Ms. Palmer, 30 months) as required by their respective employment agreements and assumes that the executive does not become eligible for other health coverage.
(4) Pursuant to their respective employment agreements, Messrs. Cone, Wethor and Steffens and Ms. Kelley are entitled to an amount equal to one times the named executive officer’s base salary.
(5) As described above, Mr. Barnes’ employment with us was terminated on June 19, 2012 and this table reflects the actual amounts of severance payable to him in connection with his departure, except that the prorated bonus amount has been calculated assuming that he will receive a prorated bonus based on his target bonus amount of 100%.
(6) The amount reflected in this table represents the outstanding commissions owed to Ms. Kelley based on 25% of net profit dollars earned on each joint venture/spot retail closing in 2012.
(7) As an employee in Canada without a written employment agreement, Mr. Carr will be entitled to compensation in the event of his dismissal without cause (whether or not following a change in control) in accordance with Canadian law. Such compensation will be determined at the time of dismissal and will be subject to negotiation. The amount reflected is an estimate of his potential severance package, including salary continuation, prorated bonus and continued benefits, and the actual amount that could be due cannot be determined with certainty.

 

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Assuming a change in control and termination of employment occurred on December 31, 2012, the dollar value of the payments and other benefits to be provided to each of the named executive officers are estimated to be as follows:

Estimated Payments and Benefits upon Termination in Connection with a Change in Control

 

Name

   Salary
Continuation
    Prorated
Bonus
    Continued
Benefits
    Other
Compensation
    Equity or
Equity-Based

Value(1)
     TOTAL  

Sheryl Palmer

   $ 2,000,000 (2)    $ 1,050,000 (3)    $ 54,065 (4)    $ 2,625,000 (5)    $ 2,230,000       $ 7,959,065   

C. David Cone

   $ 400,000 (6)    $ 100,000      $ 21,626 (4)      —        $ 214,286       $ 735,912   

Steve Wethor

   $ 450,000 (6)    $ 607,500 (3)    $ 21,626 (4)      —        $ 864,179       $ 1,943,305   

Ed Barnes(9)

   $ 480,000      $ 175,500      $ 21,626        —        $ 0       $ 677,126   

Lou Steffens

   $ 475,000 (6)    $ 573,750 (3)    $ 21,626 (4)      —        $ 848,750       $ 1,919,126   

Tawn Kelley

   $ 425,000 (6)    $ 641,250 (3)    $ 21,626 (4)    $ 75,070 (7)    $ 410,000       $ 1,572,946   

Brad Carr(8)

   $ 416,672      $ 405,098      $ 9,537        —        $ 437,500       $ 1,268,807   

 

(1) In accordance with the terms of the equity-based awards, the vesting of all of the individual’s Class M Units or Phantom Units subject only to time-based vesting conditions would have accelerated and become vested as of the date of termination of employment and change in control. There was no public market for the Class M Units as of December 31, 2012 and thus the market value is based on the Compensation Committee’s valuation of $1.45 per unit as of such date, and the amount reflected in the tables represents the value of the accelerated vesting of unvested time-based Class M Units or Phantom Units. We have assumed for purposes of this disclosure that return to our Principal Equityholders in connection with any such change in control would have been, based on a per unit value of $1.45, insufficient to trigger any vesting of the performance-based Class M Units or Phantom Units which would have been forfeited without any consideration payable.
(2) Ms. Palmer’s base severance amount is two and a half times her base salary ($1,750,000); however, in the event that she was terminated on or prior to July 13, 2013, her base severance payment would have been no less than $2,000,000.
(3) Pursuant to their respective employment agreements, each of our named executive officers (other than Messrs. Carr and Barnes) is entitled to a prorated annual bonus for the fiscal year in which employment terminates. For purposes of this table, we have calculated the bonuses assuming that each named executive officer would have received their respective target bonus amount, except Mr. Cone’s bonus for 2012 would be prorated based on his commencement of employment with us on October 15, 2012. The annual target bonus percentage for fiscal year 2012 for the name executive officers were as follows: Ms. Palmer — 150%, Mr. Cone — 100%, Mr. Wethor — 135%, Mr. Barnes — 100%, Mr. Steffens — 135%, and Ms. Kelley — 135%.
(4) These amounts reflect the estimated COBRA premiums for the executives and their respective eligible dependents enrolled (if any) in any then existing group health plans for one year (or in the case of Ms. Palmer, 30 months) as required by their respective employment agreements.
(5) This amount reflects two and a half times an amount equal to 150% of Ms. Palmer’s base salary, as payable pursuant to her employment agreement, to the extent she is terminated either by us without cause or she resigns for good reason during the 24 month period following a change in control. This amount would be payable in installments over a 30-month period.
(6) Pursuant to their respective employment agreements, Messrs. Cone, Wethor, and Steffens and Ms. Kelley are entitled to an amount equal to one times the named executive officer’s base salary.
(7) The amount reflected in this table represents the outstanding commissions owed to Ms. Kelley based on 25% of net profit dollars earned on each joint venture/spot retail closing in 2012.
(8) As an employee in Canada without a written employment agreement, Mr. Carr will be entitled to compensation in the event of his dismissal without cause (whether or not following a change in control) in accordance with Canadian law. Such compensation will be determined at the time of dismissal and will be subject to negotiation. The amount reflected is an estimate of his potential severance package, including salary continuation, prorated bonus and continued benefits, and the actual amount that could be due cannot be determined with certainty.
(9) As described above, Mr. Barnes’ employment with us was terminated on June 19, 2012 and this table reflects the actual amounts of severance payable to him in connection with his departure except that the prorated bonus amount has been calculated assuming that he will receive a pro-rated bonus based on his target bonus amount of 100%. All of Mr. Barnes’ Class M Unit awards were forfeited as of June 19, 2012, therefore no dollar amount is reported in the column titled “Equity Value.”

 

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Director Compensation

The following table summarizes the compensation earned by, or awarded or paid to, certain of our directors for the year ended December 31, 2012.

 

Name and Principal Position

   Fees
Earned
or Paid
     TMM
Class  M
Units

(1)
     Total  

Timothy Eller, Chairman

   $ 46,667       $ 512,000       $ 558,667   

Peter Lane

   $ 23,333       $ 256,000       $ 279,333   

 

(1) On June 29, 2012, Mr. Lane received a one-time equity grant in the amount of 400,000 Class M Units, and Mr. Eller who as Chairman received a one-time equity grant in the amount of 800,000 Class M Units. The amounts reported in this column reflect the aggregate grant date fair value computed in accordance with Accounting Standards Codification topic 718, “Stock Compensation,” as issued by the Financial Accounting Standards Board. These values have been determined based on the assumptions set forth in Note 19 to our audited financial statements included elsewhere in this prospectus.

In respect of 2012, each of our non-employee directors was appointed by our Principal Equityholders (or their affiliates). None of them is party to any service contract with us, and, except as otherwise described below, none receive any compensation from us.

Effective as of July 1, 2012, the Board of Directors approved annual compensation to be provided to two of our non-employee directors who do not otherwise receive compensation for the services provided to us by any of the Principal Equityholders (or their affiliates). Such non-employee directors are entitled to annual retainers and a one-time appointment equity-based grant of Class M Units. Our Board of Directors and Compensation Committee believe it is important for key members of our senior management team and our non-employee directors who receive compensation from us to build and maintain a long-term ownership position in our business, to further align their financial interests with those of our stockholders and to encourage the creation of long-term value.

The compensation levels for Mr. Lane and Mr. Eller are as follows:

 

   

annual retainer fee for Mr. Lane equal to $40,000;

 

   

annual retainer fee for Mr. Eller equal to $80,000;

 

   

for Mr. Lane, a one-time appointment grant of 400,000 Class M Units under the MIP, with an ultimate target value ranging from $600,000 to $1,000,000, depending on the return achieved by our Principal Equityholders, vesting over five years in equal annual installments;

 

   

for Mr. Eller, a one-time appointment grant of 800,000 Class M Units under the MIP, with an ultimate target value ranging from $1,360,000 to $2,160,000, depending on the return achieved by our Principal Equityholders, vesting over five years in equal annual installments; and

 

   

for both Messrs. Lane and Eller, an opportunity to invest in Class A units with a minimum investment amount of $100,000 and Messrs. Lane and Eller both invested more than the minimum amount.

The annual cash retainer is paid to such non-employee directors in quarterly installments in arrears. We also reimburse our non-employee directors for reasonable travel and other related expenses to attend Board of Directors and Committee meetings.

 

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DESCRIPTION OF CERTAIN INDEBTEDNESS

Senior Notes

On April 13, 2012, the Operating Subsidiaries issued $550.0 million in aggregate principal amount of 7.750% Senior Notes due 2020. A portion of the net proceeds of the senior notes was used to repay $350.0 million of the Sponsor Loan and the remainder was used for general corporate purposes. The senior notes are unsecured and guaranteed by TMM and certain of TMM’s domestic subsidiaries. On August 21, 2012, the Operating Subsidiaries issued an additional $125.0 million in aggregate principal amount of the senior notes under the same indenture.

The indenture governing the senior notes contains covenants that limit the ability of the Operating Subsidiaries, TMM and certain of their subsidiaries to, among other things, sell assets, pay dividends or make other distributions on capital stock or make payments in respect of subordinated indebtedness, make investments, incur additional indebtedness or issue preferred stock, create certain liens, enter into agreements that restrict dividends or other payments from certain restricted subsidiaries, consolidate, merge or transfer all or substantially all of their assets, engage in transactions with affiliates and create additional, unrestricted subsidiaries. The senior notes are also subject to a requirement that we offer to purchase the senior notes at par with certain proceeds of asset sales (to the extent not applied in accordance with the senior notes indenture). We are also required to offer to purchase all of the outstanding senior notes at 101% of their aggregate principal amount upon the occurrence of specified change of control events. The senior notes do not have any registration rights.

The senior notes mature on April 15, 2020. Interest on the senior notes accrues at the rate of 7.750% per annum and is payable semiannually in arrears on April 15 and October 15 of each year.

We may redeem some or all of the senior notes at any time prior to April 15, 2015, at a redemption price equal to 100% of the aggregate principal amount of the notes to be redeemed, plus a make-whole premium and accrued and unpaid interest, if any, to, but not including, the redemption date. On or after April 15, 2015, we may also redeem some or all of the notes at the redemption prices specified in the indenture relating to the senior notes.

At any time prior to April 15, 2015, we may also redeem up to 40% of the original aggregate principal amount of the senior notes with the net cash proceeds of this offering and other equity offerings, at a redemption price equal to 103.875% (if the redemption occurs prior to April 15, 2013) or 107.750% (if the redemption occurs on or after April 15, 2013) of the aggregate principal amount of the notes to be redeemed, plus accrued and unpaid interest, if any, to, but not including, the redemption date.

Revolving Credit Facility

Concurrently with the Acquisition, TMC and Monarch Corporation (together, the “Revolver Co-Borrowers”), entered into the Revolving Credit Facility, in an aggregate principal amount of $75.0 million, the proceeds of which may be used by the Revolver Co-Borrowers for working capital and general corporate purposes. The Revolving Credit Facility matures on July 13, 2016. The aggregate amount of commitments under the Revolving Credit Facility was increased to $125.0 million in August 2012 and $225.0 million in December 2012.

The obligations under the Revolving Credit Facility are unconditionally and irrevocably guaranteed, jointly and severally, by TMM, Taylor Morrison Holdings, Monarch Communities, Monarch Parent Inc. and each material current and future wholly owned domestic subsidiary of TMC (other than certain excluded subsidiaries and any unrestricted subsidiaries) (the “Revolver Subsidiary Guarantors,” and together with TMM, Taylor Morrison Holdings, Monarch Communities and Monarch Parent Inc., the “Revolver Guarantors”) and are secured by (a) a pledge of the equity interests of Monarch Parent Inc., Monarch Corporation and TMC and (b) substantially all of the assets of TMC and the Revolver Subsidiary Guarantors.

 

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On April 13, 2012, TMC, Monarch Corporation, the lenders and the other parties thereto amended and restated the Revolving Credit Facility in order to, among other things, (a) permit us to measure borrowing availability under the facility by reference to a formula based on the amount of real estate collateral pledged to the secured parties under the Revolving Credit Facility (but not exceeding the aggregate principal amount of commitments under the Revolving Credit Facility) (such calculated amount being referred to hereinafter as the “Availability Amount”), (b) permit Monarch Corporation and its subsidiaries to incur certain indebtedness and liens without limitation (but subject to certain conditions) so long as the total utilization of the Revolving Credit Facility does not exceed the Availability Amount and (c) permit us to make up to $150.0 million, in the aggregate, of restricted payments, investments and/or asset sales consisting of certain property or assets of Monarch Corporation or its restricted subsidiaries that may be designated by Monarch Corporation from time to time, subject to certain conditions. At any time our total utilization of the Revolving Credit Facility exceeds the Availability Amount, we are required to either repay loans (without reducing commitments) under the Revolving Credit Facility or deliver additional mortgages that, in each case, would be sufficient to eliminate any such over-utilization. On August 15, 2012, the Revolver Co-Borrowers increased the aggregate principal amount of the commitments under the Revolving Credit Facility to $125.0 million through the exercise of a $50.0 million incremental facility provision.

On December 27, 2012, the Revolver Co-Borrowers amended the Revolving Credit Facility to increase to $225.0 million the aggregate revolving commitments under the facility, to permit the Revolver Co-Borrowers to take out base rate loans on a same-day basis and to join Citibank, N.A., JPMorgan Chase Bank, N.A. and Goldman Sachs Bank USA as lenders. As of December 31, 2012, we had borrowed $50.0 million under the Revolving Credit Facility to finance in part the acquisition of Darling. See “Summary—Recent Developments.”

Borrowings under the Revolving Credit Facility may be made in Canadian dollars (subject to a $15.0 million sublimit) and in U.S. dollars. Amounts outstanding under the Revolving Credit Facility bear a variable interest rate based upon either a LIBOR or CDOR interest rate option, as applicable, or a base rate or Canadian prime rate option, as applicable, as selected by the Revolver Co-Borrowers, plus, in each case, an applicable margin. The applicable margin for (a) any Eurodollar Rate Loan or CDOR Rate Loan, is 3.25% per annum, payable on the last date of each applicable interest period or at the end of each three-month period if the applicable interest period is longer than 3 months and (b) any Base Rate Loan or Canadian Prime Rate Loan, is 2.25% per annum, payable quarterly. There is a fee of 0.75% per annum on the commitments under the Revolving Credit Facility (whether drawn or undrawn), payable quarterly in arrears, subject to a 0.25% step-down based upon a capitalization ratio. The Revolver Co-Borrowers have the right to make “amend and extend” offers to lenders of a particular class.

The Revolving Credit Facility contains certain “springing” financial covenants based on (a) consolidated total debt and consolidated adjusted tangible net worth, requiring TMM and its subsidiaries to comply with a certain maximum capitalization ratio and (b) consolidated adjusted EBITDA and consolidated cash interest expense, requiring TMM and its subsidiaries to comply with a certain minimum interest coverage ratio. As of September 30, 2012, our capitalization ratio was 49% (compared with the requirement not to exceed 60%) while our interest coverage ratio for the twelve-month period then ended was 2.7 to 1.0 (compared with the requirement not to fall below 1.75 to 1.0).

The financial covenants will be in effect for any fiscal quarter during which any (a) loans under the Revolving Credit Facility are outstanding during the last day of such fiscal quarter or on more than five separate days during such fiscal quarter or (b) unpaid drawings in respect of letters of credit issued under the Revolving Credit Facility are outstanding on the last day of such fiscal quarter or for more than five consecutive days during such fiscal quarter. For purposes of determining compliance with the financial covenants for any fiscal quarter, TMM may exercise an equity cure by issuing certain permitted securities for cash or otherwise recording cash contributions to its capital that will, upon the contribution of such cash to TMC and/or Monarch Corporation, be included in the calculation of consolidated adjusted EBITDA and consolidated total capitalization. The equity cure right may not be exercised more than twice in any period of four consecutive fiscal quarters and may not be exercised more than five times.

 

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The Revolving Credit Facility also contains customary restrictive covenants, including limitations on incurrence of indebtedness, incurrence of liens, dividends and other distributions, asset dispositions, investments, sale and leasebacks, passive holding entities (with respect to TMM, Taylor Morrison Holdings, Monarch Communities and Monarch Parent Inc.) and limitation on debt payments and amendments.

The Revolving Credit Facility contains customary events of default, subject to applicable grace periods, including for nonpayment of principal, interest or other amounts, violation of covenants (including financial covenants, subject to the exercise of an equity cure), incorrectness of representations and warranties in any material respect, cross default and cross acceleration, bankruptcy, material monetary judgments, ERISA events with material adverse effect, actual or asserted invalidity of material guarantees, material security or intercreditor agreements or subordination provisions, and change of control.

As of September 30, 2012, we were in compliance with all of the applicable covenants under the Revolving Credit Facility.

Letters of Credit and Surety Bonds

We are committed, under various letters of credit and surety bonds, to perform certain development and construction activities and provide certain guarantees in the normal course of business. Outstanding letters of credit and surety bonds under these arrangements, including our share of responsibility for arrangements with our joint ventures, totaled $256.8 million as of September 30, 2012. Although significant development and construction activities have been completed related to these site improvements, the letters of credit and surety bonds are reduced as development and construction work is completed, but not fully released until warranty periods have expired. We do not believe that it is probable that any outstanding surety bonds as of September 30, 2012 will be drawn upon.

Monarch Corporation is party to a credit facility with The Toronto-Dominion Bank, which we refer to as the “TD Facility.” The TD Facility provides revolving operating facilities (including letters of credit) of up to CAD $100.0 million (or its U.S. dollar equivalent) to provide direct and letter of credit financing in support of Monarch Corporation’s projects. Under the terms of the TD Facility, the first $80.0 million drawn under the facility is secured by liens over the interests of Monarch Corporation in certain Canadian real property. Amounts drawn above CAD $80.0 million are secured with cash. As of September 30, 2012, there were CAD $64.2 million letters of credit outstanding under the TD Facility.

Monarch Corporation is also party to a credit facility with HSBC Bank Canada, which we refer to as the “HSBC Facility.” The HSBC Facility provides a partially revolving letter of credit facility of up to CAD $24.2 million (reduced from $25.6 million as of September 30, 2012) in support of Monarch Corporation’s construction projects. Under the terms of the HSBC Facility, amounts drawn under this facility are secured by liens over the interests of Monarch Corporation in certain Canadian real property or cash. As of September 30, 2012, there were CAD $25.6 million letters of credit outstanding under the HSBC Facility.

Each of the TD Facility and the HSBC Facility is scheduled to expire on June 30, 2013.

The TD Facility and HSBC Facility contain certain financial covenants. We are required to maintain a minimum net equity and a minimum debt-to-equity ratio as well as maintain an interest coverage ratio. As of September 30, 2012, our net equity, as defined in the TD Facility and the HSBC Facility, was CAD $346.8 million (compared with the minimum requirement of CAD $250 million) and our debt-to-equity ratio was 91% (compared with the requirement not to exceed 125%) while our interest coverage ratio is only calculated annually (the requirement is not to fall below 2.50 to 1.0). As of September 30, 2012, our interest coverage ratio was 2.7 to 1.0. Violations of the financial covenants in the TD Facility and HSBC Facility, if not waived by the lenders or cured, could result in acceleration by the lenders. In the event these violations were not waived by the lenders or cured, the violations could also result in a default under our other indebtedness. As of September 30, 2012, we were in compliance with all of the covenants under the TD Facility and HSBC Facility.

 

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Mortgage Company Loan Facilities

In December 2010, TMHF, our wholly owned mortgage subsidiary, entered into the Flagstar Facility, as agent and representative for itself and other buyers of our held-for-sale mortgages named in such agreement. The purpose of the Flagstar Facility is to finance the origination of up to $30.0 million of mortgage loans at any one time by TMHF, subject to certain sublimits, with a temporary accordion feature subject to approval by Flagstar, which allows for borrowings in excess of the total availability under the facility. Borrowings under the facility are accounted for as a secured borrowing under ASC Topic 860. The Flagstar Facility is terminable by either party with 30 days’ notice and bears interest at a rate of LIBOR plus 2.5% per annum, with a minimum floor of 3.95% per annum. Borrowings under this facility are paid back with proceeds received when our mortgages are sold to participating lenders in the Flagstar Facility, or to other buyers subject to certain sublimits. The time period from borrowing to repayment is typically 10 business days.

As of September 30, 2012, there was $27.7 million in outstanding borrowings under the Flagstar Facility, and $8.2 million under the Comerica Facility which comprise the balance of mortgage borrowings in the accompanying consolidated balance sheet. The Flagstar Facility does not have a scheduled maturity date but is subject to an annual renewal process, which was last completed in December 2012.

In December 2011, TMHF entered into the Comerica Facility. The purpose of the Comerica Facility is to finance the origination of up to $30.1 million of mortgage loans at any one time by TMHF, subject to certain sublimits. The Comerica Facility matures on October 29, 2013 (subject to an annual renewal process). We expect the annual renewal process to proceed in a manner similar to that in previous years. The Comerica Facility bears interest at a rate of daily adjusting LIBOR plus 2.5% per annum with a minimum floor of 3.75% per annum. Borrowings under the Comerica Facility are paid back with proceeds received when our mortgages are sold to participating lenders in the Comerica Facility, or to other buyers subject to certain sublimits.

Other Loans Payable and Other Borrowings

Other loans payable and other borrowings as of September 30, 2012 consist of project-level debt due to various land sellers and municipalities, and is generally secured by the land that was acquired. Principal payments generally coincide with corresponding project lot sales or a principal reduction schedule. As of September 30, 2012, we estimate that approximately $30.1 million of the loans are scheduled to be repaid during 2012, which we expect to repay from available cash. The weighted average interest rate on $50.5 million of the loans, as of September 30, 2012 was 3% per annum, and $65.5 million of the loans were noninterest bearing. As of September 30, 2012, loans payable increased by $37.6 million compared to December 31, 2011 primarily due to the closing of transactions under land purchase contracts with seller financing.

Guarantees of Indebtedness of Unconsolidated Joint Ventures

In certain instances, Monarch Corporation and the other partners in a joint venture provide guarantees and indemnities to lenders with respect to the debt of the unconsolidated joint ventures related to our Canadian business, which may be triggered under certain conditions when the joint venture fails to fulfill its obligations under its loan agreements. As of September 30, 2012, Monarch Corporation’s total recourse exposure under its guarantees of joint venture debt was $168.9 million. To the extent any or all of our joint ventures default on obligations secured by the assets of such joint venture or guaranteed by Monarch Corporation, the assets of our joint ventures could be forfeited to our joint ventures’ third party lenders, and Monarch Corporation could be liable to such third party lenders to the full extent of its guarantees and, in the case of secured guarantees, to the extent of the assets of Monarch Corporation that secure the applicable guarantee. Any such default by our joint ventures could cause significant losses, with a resulting adverse effect on our financial condition and results of operations. Recent market conditions have required us to provide a greater number of such guarantees and we expect this trend to continue.

 

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PRINCIPAL STOCKHOLDERS

The following table sets forth information regarding beneficial ownership of our Class A common stock for:

 

   

each person whom we know to own beneficially more than 5% of any class of our shares;

 

   

each of the directors and named executive officers individually; and

 

   

all directors and executive officers as a group.

The number of shares of Class A common stock outstanding and the percentage of beneficial ownership before this offering are based on the number of shares of Class B common stock and TMM partnership interests to be issued and outstanding immediately prior to this offering and after giving effect to the Reorganization Transactions (based on the midpoint of the public offering price range set forth on the cover of this prospectus). The number of shares of Class A common stock outstanding and the percentage of beneficial ownership after this offering are based on the number of shares of Class A common stock issued in this offering and the number of shares of Class B common stock and TMM partnership interests to be issued and outstanding immediately after this offering and after giving effect to the Reorganization Transactions (based on the midpoint of the initial public offering price range set forth on the cover of this prospectus). Partnership interests in TMM held directly or indirectly by existing partners at the time of this offering may be exchanged at any time (along with a corresponding number of shares of our Class B common stock) for shares of our Class A common stock on a one-for-one equivalent basis.

Beneficial ownership is determined in accordance with the rules of the SEC. These rules generally attribute beneficial ownership of securities to persons who possess sole or shared voting power or investment power with respect to such securities. Except as otherwise indicated, all persons listed below have sole voting and investment power with respect to the shares beneficially owned by them, subject to applicable community property laws. Unless otherwise indicated, the address for each listed stockholder is: c/o Taylor Morrison Home Corporation, 4900 N. Scottsdale Road, Suite 2000, Scottsdale, Arizona, 85251.

 

     Class A Common Stock
Owned After Giving Effect to

the Reorganization
Transactions and Before this
Offering
   Class A Common Stock
Owned After Giving Effect to
the Reorganization
Transactions and this
Offering
   Class A Common  Stock
Owned After Giving Effect to
the Reorganization

Transactions and this
Offering(1)

Name and Address of Beneficial
Owner

   Number    Percent    Number    Percent    Number    Percent

Principal Equityholders

                 

Oaktree TM Holdings TP, SRL(2)(3)

                 

TPG Entities(2)(4)

                 

JHI Holding Limited Partnership(2)(5)

                 

Directors and Executive Officers

                 

Sheryl Palmer

                 

Stephen Wethor

                 

Louis Steffens

                 

Erik Heuser

                 

Tawn Kelley

                 

 

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     Class A Common Stock
Owned After Giving Effect to

the Reorganization
Transactions and Before this
Offering
   Class A Common Stock
Owned After Giving Effect to
the Reorganization
Transactions and this
Offering
   Class A Common  Stock
Owned After Giving Effect to
the Reorganization

Transactions and this
Offering(1)

Name and Address of Beneficial
Owner

   Number    Percent    Number    Percent    Number    Percent

Timothy R. Eller

                 

John Brady(6)

                 

Kelvin Davis(7)

                 

Joe S. Houssian

                 

Jason Keller(8)

                 

Greg Kranias(9)

                 

Peter Lane

                 

R. Michael Miller(10)

                 

Rajath Shourie(11)

                 

All Directors and executive officers as a group (20 persons)

                 

 

* Less than 1%
(1) Assumes exercise of the underwriters’ over-allotment option in full. See “Underwriting.”
(2) In connection with this offering, we intend to enter into a stockholders agreement with the Principal Equityholders and other partners of TMM whereby, among other things, the Principal Equityholders will have the right to nominate a majority of our board of directors and will agree to vote for each others nominees. See “Management—Board Structure” and “Certain Relationships and Related Transactions—Stockholders Agreement.”
(3)

Includes partnership interests in TMM and shares of Class B Common Stock held by Oaktree TM Holdings TP, SRL. Oaktree TM Holdings TP, SRL is owned by Oaktree Opportunities Fund VIII, L.P., Oaktree Opportunities Fund VIII (Parallel), L.P., Oaktree Opportunities Fund VIII (Parallel 2), L.P., Oaktree Huntington Investment Fund, L.P., Oaktree Real Estate Opportunities Fund V, L.P., Oaktree Remington Investment Fund, L.P., and Oaktree FF Investment Fund, L.P. The general partner of each of Oaktree Opportunities Fund VIII, L.P., Oaktree Opportunities Fund VIII (Parallel), L.P., and Oaktree Opportunities Fund VIII (Parallel 2), L.P. is Oaktree Opportunities Fund VIII GP, L.P. The general partner of Oaktree Opportunities Fund VIII GP, L.P. is Oaktree Opportunities Fund VIII GP, Ltd. The sole shareholder of Oaktree Opportunities Fund VIII GP, Ltd. is Oaktree Fund I GP, L.P. The general partner of Oaktree Huntington Investment Fund, L.P. is Oaktree Huntington Investment Fund GP, L.P. The general partner of Oaktree Huntington Investment Fund GP, L.P. is Oaktree Huntington Investment Fund GP Ltd. The sole shareholder of Oaktree Huntington Investment Fund GP Ltd. is Oaktree Fund I GP, L.P. The general partner of Oaktree Real Estate Opportunities Fund V, L.P. is Oaktree Real Estate Opportunities Fund V GP, L.P. The general partner of Oaktree Real Estate Opportunities Fund V GP, L.P. is Oaktree Fund GP IIA, LLC. The managing member of Oaktree Fund GP IIA, LLC is Oaktree Fund GP II, L.P. The general partner of Oaktree Remington Investment Fund, L.P. is Oaktree Remington Investment Fund GP, L.P. The general partner of Oaktree Remington Investment Fund GP, L.P. is Oaktree Fund GP IIA, LLC. The managing member of Oaktree Fund GP IIA, LLC is Oaktree Fund GP II, L.P. The general partner of Oaktree FF Investment Fund, L.P. is Oaktree FF Investment Fund GP, L.P. The general partner of Oaktree FF Investment Fund GP, L.P. is Oaktree FF Investment Fund Ltd. The sole shareholder of Oaktree FF Investment Fund Ltd. is Oaktree Fund GP I, L.P. The general partner of Oaktree Fund GP I, L.P. is Oaktree Capital I, L.P. The general partner of Oaktree Capital I, L.P. is OCM Holdings I, LLC. The managing member of OCM Holdings I, LLC is Oaktree Holdings, LLC. The managing member of Oaktree Holdings, LLC is Oaktree Capital Group, LLC. The general partner of Oaktree Fund GP II, L.P. is Oaktree Capital II, L.P. The general partner of Oaktree Capital II, L.P. is Oaktree Holdings, Inc. The sole shareholder of Oaktree Holdings, Inc. is Oaktree Capital Group, LLC. The holder of a majority of the voting units of Oaktree Capital Group, LLC is Oaktree Capital Group Holdings, L.P. The general partner of Oaktree

 

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  Capital Group Holdings, L.P. is Oaktree Capital Group Holdings GP, LLC. The members of Oaktree Capital Group Holdings GP, LLC are Kevin Clayton, John Frank, Stephen Kaplan, Bruce Karsh, Larry Keele, David Kirchheimer, Howard Marks and Sheldon Stone, who, by virtue of their membership interests in Oaktree Capital Group Holdings GP, LLC, may be deemed to share voting and dispositive power with respect to the Class B shares held by Oaktree TM Holdings TP, SRL. Each of the general partners, managing members, unit holders and members described above disclaims beneficial ownership of any TMM partnership interests and shares of Class B common stock owned beneficially or of record by Oaktree TM Holdings TP, SRL, except to the extent of any pecuniary interest therein. The address for all of the entities and individuals identified above is 333 S. Grand Avenue, 28th Floor, Los Angeles, California 90071.
(4) Includes TMM partnership interests and shares of Class B common stock collectively held by (i) Builders Holdings International, L.P., a Barbados limited partnership and a TPG Entity (as defined herein), and (ii) Toeis, L.P., a Barbados limited partnership and a TPG Entity (as defined herein). The general partner of each of the TPG Entities is TPG TM III, SRL, a Barbados society with restricted liability, whose sole member is TPG TM IV, SRL, a Barbados society with restricted liability, whose sole member is TPG TM IV-A, L.P., a Cayman limited partnership, whose general partner is TPG GenPar VI AIV TM, L.P., a Cayman limited partnership, whose general partner is TPG GenPar VI AIV TM Advisors, Inc., a Cayman corporation, whose sole shareholder is TPG Holdings III, L.P., a Delaware limited partnership, whose general partner is TPG Holdings III-A, L.P., a Cayman limited partnership, whose general partner is TPG Holdings III-A, Inc., a Cayman corporation, whose sole shareholder is TPG Group Holdings (SBS), L.P., a Delaware limited partnership, whose general partner is TPG Group Holdings (SBS) Advisors, Inc., a Delaware corporation (“Group Advisors”). David Bonderman and James G. Coulter are directors, officers and sole shareholders of Group Advisors and may therefore be deemed to beneficially own the TMM partnership interests and shares of Class B common stock held by the TPG Entities. Messrs. Bonderman and Coulter disclaim beneficial ownership of the TMM partnership interests and shares of Class B common stock held by the TPG Entities except to the extent of their pecuniary interest therein. The address of Group Advisors and Messrs. Bonderman and Coulter is c/o TPG Global, LLC, 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102.
(5) Includes TMM partnership interests and shares of Class B common stock held by JHI Holding Limited Partnership. JHI Holding Limited Partnership is owned by JSH Investment Corporation, Intracorp Investments, LLC and its general partner, JHI Advisory Ltd. The sole shareholder of JHI Advisory Ltd. is JH Investments. The sole shareholder of JH Investments Inc. is Joe S. Houssian. Joe S. Houssian is the sole director of JHI Advisory Ltd., JSH Investment Corporation and JH Investments. The members of Intracorp Investments LLC are R. Michael Miller, and members of his family. The sole managing member of Intracorp Investments, LLC is R. Michael Miller. Each of the general partners, managing members, unit holders and members described above disclaims beneficial ownership of TMM partnership interests and shares of Class B common stock held by JHI Holding Limited Partnership, except to the extent of any pecuniary interest therein. The address for Joe S. Houssian, JH Investments, JHI Advisory Ltd. and JHI Holding Limited Partnership is 3260 – 666 Burrard Street, Vancouver, British Columbia V6C 2X8. The address for R. Michael Miller and Intracorp Investments, LLC is 419 Occidental Avenue South, Suite 300, Seattle, Washington 98104.
(6) Mr. Brady, who is one of our directors, is a Managing Director of Oaktree Capital Management. Mr. Brady has no voting or investment power over and disclaims beneficial ownership of TMM partnership interests and shares of Class B common stock held by Oaktree TM Holdings TP, SRL. The address for Mr. Brady is c/o Oaktree Capital Management at 333 S. Grand Avenue, 28th Floor, Los Angeles, California 90071.
(7) Mr. Davis, who is one of our directors, is a TPG Partner. Mr. Davis has no voting or investment power over and disclaims beneficial ownership of TMM partnership interests and shares of Class B common stock held by the TPG Entities. The address for Mr. Davis is c/o TPG Global, LLC, 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102.

 

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(8) Mr. Keller, who is one of our directors, is a Senior Vice President of Oaktree Capital Management. Mr. Keller has no voting or investment power over and disclaims beneficial ownership of TMM partnership interest and shares of Class B common stock held by Oaktree TM Holdings TP, SRL. The address for Mr. Keller is c/o Oaktree Capital Management at 333 S. Grand Avenue, 28th Floor, Los Angeles, California 90071.
(9) Mr. Kranias, who is one of our directors, is a TPG Principal. Mr. Kranias has no voting or investment power over and disclaims beneficial ownership of the TMM partnership interests and shares of Class B common stock held by the TPG Entities. The address for Mr. Kranias is c/o TPG Global, LLC, 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102.
(10) Mr. Miller, who is one of our directors, is Chairman and Chief Executive Officer of Intracorp Management Services. Mr. Miller has no voting or investment power over and disclaims beneficial ownership of TMM partnership interests and shares of Class B common stock held by JHI Holding Limited Partnership. The address for Mr. Miller is c/o Intracorp Investments, LLC at 419 Occidental Avenue South, Suite 300, Seattle, Washington 98104.
(11) Mr. Shourie, who is one of our directors, is a Managing Director of Oaktree Capital Management. Mr. Shourie has no voting or investment power over and disclaims beneficial ownership of TMM partnership interests and shares of Class B common stock held by Oaktree TM Holdings TP, SRL. The address for Mr. Shourie is c/o Oaktree Capital Management at 333 S. Grand Avenue, 28th Floor, Los Angeles, California 90071.

 

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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

Amended and Restated TMM Limited Partnership Agreement

In connection with the Reorganization Transactions, the partners of TMM will enter into the Amended and Restated Limited Partnership Agreement of TMM (“TMM Limited Partnership Agreement”). As a result of the Reorganization Transactions and in accordance with the terms of the TMM Limited Partnership Agreement, we will, through TMM’s subsidiaries, operate our business. TMHC will control all of the business and affairs of TMM and its subsidiaries.

Exchange Agreement

In connection with the closing of this offering, we and certain of the existing limited partners of TMM will enter into the Exchange Agreement under which, from time to time, the existing limited partners of TMM (or certain transferees thereof) will have the right to exchange their direct or indirect partnership interests in TMM (along with a corresponding number of our Class B common stock) for shares of our Class A common stock on a one-for-one equivalent basis, subject to customary conversion rate adjustments for stock splits, stock dividends and reclassifications.

Stockholders Agreement

In connection with the Reorganization Transactions, we intend to enter into a stockholders agreement with certain of the existing limited partners of TMM. The stockholders agreement will contain provisions related to the composition of the Board of Directors of TMHC, the committees of the Board of Directors of TMHC and TMHC’s corporate governance. Under the stockholders agreement, the Principal Equityholders will be entitled to nominate a majority of the members of our board of directors. The Principal Equityholders will agree in the stockholders agreement to vote for each other’s board nominees.

Amended and Restated Registration Rights Agreement

In connection with the offering we intend to amend and restate the TMM registration rights agreement to provide certain customary demand, piggyback and shelf registration rights to certain holders of partnership interests in TMM who are entitled under the Exchange Agreement to exchange their TMM partnership interests for shares of Class A common stock.

The Sponsor Loan

In connection with the Acquisition, we borrowed $625.0 million under the Sponsor Loan from affiliates of Oaktree and TPG, of which $500.0 million was priced at a 2.5% discount to par and $125.0 million was priced at par, yielding total proceeds to us of $612.5 million. The Sponsor Loan bore interest at a rate of 13.0% per annum. In August 2011, we repaid the $125.0 million balance of the Sponsor Loan that had been borrowed at par. In April 2012, we used a portion of the net proceeds from the issuance of the senior notes to repay $350.0 million of the Sponsor Loan. The affiliates of TPG and Oaktree who were lenders under the Sponsor Loan caused the then remaining $150.0 million of the Sponsor Loan to be acquired by subsidiaries of TMM, and the TPG Entities and Oaktree acquired an additional $150.0 million of limited partnership interests in TMM. After the completion of these transactions, the Sponsor Loan is no longer outstanding.

Management Services Agreements

In connection with the Acquisition, affiliates of the Principal Equityholders entered into management services agreements with TMM, Taylor Morrison Holdings and Monarch Communities relating to the provision of certain management, advisory and consulting services. In consideration of financial and structural advice and analysis made in connection with the Acquisition, Taylor Morrison Holdings and Monarch Communities paid a one-time transaction fee of $13.7 million to the Principal Equityholders, and also reimbursed the Principal Equityholders for third-party, out-of-pocket expenses incurred in connection with the Acquisition, including fees, expenses and disbursements of lawyers, accountants, consultants and other advisors. In addition, as compensation

 

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for ongoing services provided by affiliates of the Principal Equityholders under the management services agreements, Taylor Morrison Holdings and Monarch Communities agreed to pay to affiliates of the Principal Equityholders an annual aggregate management fee of $5.0 million.

In addition, in conjunction with the formation of TMM and in connection with the Acquisition, an affiliate of JH entered into a partnership services agreement with TMM relating to the provision of certain services to TMM. In consideration of these services, TMM granted to the JH affiliate an amount of partnership interests, subject to certain terms, conditions and restrictions contained in a unit award agreement and the TMM limited partnership agreement.

In connection with this offering, the management services agreements will be terminated in exchange for an aggregate payment of $        .

Indemnification of Directors and Officers

We expect to enter into customary indemnification agreements with our executive officers and directors that provide, in general, that we will provide them with customary indemnification in connection with their service to us or on our behalf.

Real Estate Acquisitions

From time to time, we may engage in transactions with entities that are affiliated with one or more of the Principal Equityholders through either lending or equity ownership arrangements. Transactions with related parties are executed in the normal course of operations and at arm’s length. Real estate acquisitions from affiliates of Oaktree amounted to approximately $30.0 million in the period from July 13, 2011 (the date of the Acquisition) through September 30, 2012.

Related Person Transactions Policy

We have adopted a Related Person Transaction Policy, which sets forth our policy with respect to the review, approval, ratification and disclosure of all related person transactions by TMHC’s audit committee. In accordance with our Related Person Transaction Policy, TMHC’s audit committee has overall responsibility for the implementation and compliance with this policy.

For the purposes of our Related Person Transaction Policy, a “related person transaction” is a transaction, arrangement or relationship (or any series of similar transactions, arrangements or relationships) in which we were, are or will be a participant and in which any related person (as defined in our Related Person Transaction Policy) had, has or will have a direct or indirect material interest, in excess of $120,000. A “related person transaction” does not include any employment relationship or transaction involving an executive officer and any related compensation resulting solely from that employment relationship which has been reviewed and approved by TMHC’s Board of Directors or compensation committee.

Our Related Person Transaction Policy requires that notice of a proposed related person transaction be provided to our legal department prior to entering into such transaction. If our legal department determines that such transaction is a related person transaction, the proposed transaction will be submitted to TMHC’s audit committee for consideration at its next meeting. Under our Related Person Transaction Policy, only TMHC’s audit committee will be permitted to approve those related person transactions that are in, or not inconsistent with, our best interests. In the event we become aware of a related person transaction that has not been previously reviewed, approved or ratified under our Related Person Transaction Policy and that is ongoing or is completed, the transaction will be submitted to TMHC’s audit committee so that it may determine whether to ratify, rescind or terminate the related person transaction.

Our Related Person Transaction Policy also provides that TMHC’s audit committee will review certain previously approved or ratified related person transactions that are ongoing to determine whether the related person transaction remains in our best interests and the best interests of our stockholders.

 

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DESCRIPTION OF CAPITAL STOCK

Capital Stock

In connection with the Reorganization Transactions, we intend to amend and restate our certificate of incorporation so that our authorized capital stock will consist of              million shares of Class A common stock, par value $0.00001 per share,              million shares of Class B common stock, par value $0.00001 per share, and a million shares of preferred stock, par value $0.00001 per share.

Immediately following the Reorganization Transactions, we will have approximately              holders of record of our Class B common stock. Of the authorized shares of our capital stock,              shares of our Class B common stock will be issued and outstanding and no shares of preferred stock will be issued and outstanding.

After consummation of this offering, we expect to have              shares of our Class A common stock outstanding,              shares of our Class B common stock outstanding, and no shares of preferred stock outstanding.

Common Stock

Voting . Holders of our Class A common stock and Class B common stock will be entitled to one vote for each share held on all matters submitted to stockholders for their vote or approval. The holders of our Class A common stock and Class B common stock will vote together as a single class on all matters submitted to stockholders for their vote or approval, except with respect to the amendment of certain provisions of our amended and restated certificate of incorporation that would alter or change the powers, preferences or special rights of the Class B common stock so as to affect them adversely, which amendments must be approved by a majority of the votes entitled to be cast by the holders of the shares affected by the amendment, voting as a separate class, or as otherwise required by applicable law. The voting power of the outstanding Class B common stock (expressed as a percentage of the total voting power of all common stock) will be equal to the percentage of partnership interests not held directly or indirectly by TMHC.

Upon completion of this offering and the application of the net proceeds from this offering, our Principal Equityholders will control approximately      % of the combined voting power of our common stock. Accordingly, our Principal Equityholders will be able to control our business policies and affairs and any action requiring the general approval of our stockholders, including the adoption of amendments to our certificate of incorporation and bylaws and the approval of mergers or sales of substantially all of our assets. The Principal Equityholders will also have the power to nominate members to our Board of Directors under our new stockholders agreement and the stockholders agreement will provide that each group of Principal Equityholders will agree to vote for the other’s nominees. The concentration of ownership and voting power of our Principal Equityholders may also delay, defer or even prevent an acquisition by a third party or other change of control of our company and may make some transactions more difficult or impossible without the support of our Principal Equityholders, even if such events are in the best interests of minority stockholders.

Dividends . The holders of Class A common stock will be entitled to receive dividends when, as, and if declared by our board of directors out of legally available funds. The holders of our Class B common stock will not have any right to receive dividends other than dividends consisting of shares of our Class B common stock paid proportionally with respect to each outstanding share of our Class B common stock.

Liquidation or Dissolution . Upon our liquidation or dissolution, the holders of our Class A common stock will be entitled to share ratably in those of our assets that are legally available for distribution to stockholders after payment of liabilities and subject to the prior rights of any holders of preferred stock then outstanding. Other than their par value, the holders of our Class B common stock will not have any right to receive a distribution upon a liquidation or dissolution of our company.

 

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Transferability and Exchange . Subject to the terms of the Exchange Agreement, the existing holders of TMM limited partnership interests may exchange their direct or indirect TMM partnership interests (along with a corresponding number of shares of our Class B common stock) for shares of our Class A common stock. Each such exchange will be on a one-for-one equivalent basis, subject to customary conversion rate adjustments for stock splits, stock dividends and reclassifications. Shares of Class B common stock may not be transferred except in connection with an exchange or transfer of direct or indirect TMM partnership interests.

At such time as no direct or indirect TMM partnership interests remain exchangeable into shares of our Class A common stock, our Class B common stock will be cancelled.

Preferred Stock

After the consummation of this offering, we will be authorized to issue up to              million shares of preferred stock. Our Board of Directors will be authorized, subject to limitations prescribed by Delaware law and our amended and restated certificate of incorporation, to determine the terms and conditions of the preferred stock, including whether the shares of preferred stock will be issued in one or more series, the number of shares to be included in each series and the powers, designations, preferences and rights of the shares. Our Board of Directors will also be authorized to designate any qualifications, limitations or restrictions on the shares without any further vote or action by the stockholders. The issuance of preferred stock may have the effect of delaying, deferring or preventing a change in control of our company and may adversely affect the voting and other rights of the holders of our Class A common stock and Class B common stock, which could have an adverse impact on the market price of our Class A common stock. We have no current plan to issue any shares of preferred stock following the consummation of this offering.

Corporate Opportunities

Our amended and restated certificate of incorporation will provide that we renounce any interest or expectancy in the business opportunities of the Principal Equityholders and of their officers, directors, agents, stockholders, members, partners, affiliates and subsidiaries and each such party shall not have any obligation to offer us those opportunities unless presented to one of our directors or officers in his or her capacity as a director or officer. See “Risk Factors—The Principal Equityholders have a great deal of influence over our business and their interests may differ from our interests or those of our other stockholders.”

Anti-Takeover Effects of our Certificate of Incorporation and Bylaws

Our amended and restated certificate of incorporation and bylaws will contain certain provisions that are intended to enhance the likelihood of continuity and stability in the composition of the board of directors and which may have the effect of delaying, deferring or preventing a future takeover or change in control of the company unless such takeover or change in control is approved by our board of directors.

These provisions include:

Classified Board. Our amended and restated certificate of incorporation will provide that our Board of Directors will be divided into three classes of directors, with the classes as nearly equal in number as possible. As a result, approximately one-third of our Board of Directors will be elected each year. The classification of directors will have the effect of making it more difficult for stockholders to change the composition of our board. Our amended and restated certificate of incorporation will also provide that, subject to any rights of holders of preferred stock to elect additional directors under specified circumstances, the number of directors will be fixed exclusively pursuant to a resolution adopted by our Board of Directors (after the initial number is set by such amended and restated certificate of incorporation). Our Board of Directors will initially have 11 members.

Action by Written Consent; Special Meetings of Stockholders. Our amended and restated certificate of incorporation will provide that stockholder action can be taken only at an annual or special meeting of

 

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stockholders and cannot be taken by written consent in lieu of a meeting once investment funds affiliated with the Principal Equityholders cease to beneficially own more than 50% of our outstanding shares. Our amended and restated certificate of incorporation and bylaws will also provide that, except as otherwise required by law, special meetings of the stockholders can only be called by the chairman or vice-chairman of the board, the chief executive officer, or pursuant to a resolution adopted by a majority of the board of directors or, until the date that investment funds affiliated with the Principal Equityholders cease to beneficially own more than 50% of our outstanding shares, at the request of holders of 50% or more of our outstanding shares. Except as described above, stockholders will not be permitted to call a special meeting or to require the board of directors to call a special meeting.

Advance Notice Procedures . Our bylaws will establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of our stockholders, including proposed nominations of persons for election to the board of directors. Stockholders at an annual meeting will only be able to consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of the board of directors or by a stockholder who was a stockholder of record on the record date for the meeting, who is entitled to vote at the meeting and who has given our Secretary timely written notice, in proper form, of the stockholder’s intention to bring that business before the meeting. Although the bylaws will not give the board of directors the power to approve or disapprove stockholder nominations of candidates or proposals regarding other business to be conducted at a special or annual meeting, the bylaws may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed or may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain control of the company.

Super Majority Approval Requirements . The Delaware General Corporation Law generally provides that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless either a corporation’s certificate of incorporation or bylaws require a greater percentage. Our amended and restated certificate of incorporation and bylaws will provide that the affirmative vote of holders of at least 75% of the total votes eligible to be cast in the election of directors will be required to amend, alter, change or repeal specified provisions, including those relating to the classified board, actions by written consent of stockholders, calling of special meetings of stockholders and the provisions relating to business combinations, once investment funds affiliated with the Principal Equityholders cease to beneficially own more than 50% of our outstanding shares. This requirement of a supermajority vote to approve amendments to our amended and restated certificate of incorporation and bylaws could enable a minority of our stockholders to exercise veto power over any such amendments.

Authorized but Unissued Shares . Our authorized but unissued shares of common stock and preferred stock will be available for future issuance without stockholder approval. These additional shares may be utilized for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized but unissued shares of common stock and preferred stock could render more difficult or discourage an attempt to obtain control of a majority of our common stock by means of a proxy contest, tender offer, merger or otherwise.

Business Combinations with Interested Stockholders. We intend to elect in our amended and restated certificate of incorporation not to be subject to Section 203 of the Delaware General Corporation Law, an antitakeover law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a business combination, such as a merger, with a person or group owning 15% or more of the corporation’s voting stock for a period of three years following the date the person became an interested stockholder, unless (with certain exceptions) the business combination or the transaction in which the person became an interested stockholder is approved in a prescribed manner. Accordingly, we will not be subject to any anti-takeover effects of Section 203. However, our amended and restated certificate of incorporation will contain provisions that have the same effect as Section 203, except that they provide that our Principal Equityholders and their respective affiliates will not be deemed to be “interested stockholders,” regardless of the percentage of our voting stock owned by them, and accordingly will not be subject to such restrictions.

 

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Directors’ Liability; Indemnification of Directors and Officers

Our amended and restated certificate of incorporation will limit the liability of our directors to the fullest extent permitted by the Delaware General Corporation Law and provides that we will provide them with customary indemnification. We expect to enter into customary indemnification agreements with each of our executive officers and directors that provide them, in general, with customary indemnification in connection with their service to us or on our behalf.

Transfer Agent and Register

The transfer agent and registrar for our Class A common stock will be             .

Securities Exchange

We intend to apply to list the shares of Class A common stock on a national securities exchange under the symbol “TMHC.”

 

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SHARES ELIGIBLE FOR FUTURE SALE

Prior to this offering, there has been no market for our Class A common stock. Future sales of substantial amounts of our Class A common stock in the public market could adversely affect market prices prevailing from time to time. Furthermore, because only a limited number of shares will be available for sale shortly after this offering due to existing contractual and legal restrictions on resale as described below, there may be sales of substantial amounts of our Class A common stock in the public market after the restrictions lapse. This may adversely affect the prevailing market price and our ability to raise equity capital in the future.

All of the              shares of Class A common stock (or              shares if the underwriters exercise their over-allotment option in full) outstanding following this offering will have been issued in this offering and will be freely transferable without restriction or registration under the Securities Act, except for any shares purchased by one of our existing “affiliates,” as that term is defined in Rule 144 under the Securities Act.

In addition, upon consummation of the offering and the application of the net proceeds from this offering, the Principal Equityholders and certain members of our management will directly or indirectly own an aggregate of      % of the partnership interests in TMM and              shares of our Class B common stock (or      % of the partnership interests in TMM and shares of our Class B common stock if the underwriters exercise their over-allotment option in full). Pursuant to the terms of the Exchange Agreement, certain of the existing holders of partnership interests in TMM could from time to time exchange their direct or indirect partnership interests in TMM (and corresponding shares of our Class B common stock) for shares of our Class A common stock on a one-for-one equivalent basis. Shares of our Class A common stock issuable to the existing holders of partnership interests in TMM upon an exchange of direct or indirect partnership interests in TMM (along with the corresponding number of shares of Class B common stock) would be considered “restricted securities,” as that term is defined in Rule 144 at the time of this offering, unless the exchange is registered under the Securities Act.

Restricted securities may be sold in the public market only if they qualify for an exemption from registration under Rule 144 under the Securities Act, which is summarized below, or any other applicable exemption under the Securities Act, or pursuant to a registration statement that is effective under the Securities Act. Immediately following the consummation of this offering, the holders of approximately         shares of our Class A common stock (on an assumed as-exchanged basis) will be entitled to dispose of their shares following the expiration of an initial 180-day underwriter “lock-up” period pursuant to the holding period, volume and other restrictions of Rule 144. The representatives of the underwriters are entitled to waive these lock-up provisions at their discretion prior to the expiration dates of such lock-up agreements.

Rule 144

In general, under Rule 144 as currently in effect, once we have been a reporting company subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act for 90 days, an affiliate who has beneficially owned restricted shares of our Class A common stock for at least six months would be entitled to sell within any three-month period a number of shares that does not exceed the greater of either of the following:

 

   

1% of the number of shares of Class A common stock then outstanding, which will equal shares immediately after this offering; and

 

   

the average weekly reported volume of trading of our Class A common stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale.

However, the six month holding period increases to one year in the event we have not been a reporting company for at least 90 days. In addition, any sales by affiliates under Rule 144 are also limited by manner of sale provisions and notice requirements and the availability of current public information about us.

The volume limitation, manner of sale and notice provisions described above will not apply to sales by non-affiliates. For purposes of Rule 144, a non-affiliate is any person or entity who is not our affiliate at the time of sale

 

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and has not been our affiliate during the preceding three months. Once we have been a reporting company for 90 days, a non-affiliate who has beneficially owned restricted shares of our Class A common stock for six months may rely on Rule 144 provided that certain public information regarding us is available. The six month holding period increases to one year in the event we have not been a reporting company for at least 90 days. However, a non-affiliate who has beneficially owned the restricted shares proposed to be sold for at least one year will not be subject to any restrictions under Rule 144 regardless of how long we have been a reporting company.

We are unable to estimate the number of shares that will be sold under Rule 144 since this will depend on the market price for our Class A common stock, the personal circumstances of the stockholder and other factors.

Amended and Restated Registration Rights Agreement

In connection with the offering we intend to amend and restate the TMM registration rights agreement to provide certain customary demand, piggyback and shelf registration rights to certain holders of direct or indirect partnership interests in TMM who are entitled under the Exchange Agreement to exchange their direct or indirect TMM partnership interests for shares of Class A common stock.

Stock Options and Other Equity Compensation Awards

Upon completion of this offering, we intend to file a registration statement under the Securities Act covering all shares of Class A common stock issuable pursuant to our 2013 Plan. Shares registered under this registration statement will be available for sale in the open market, subject to Rule 144 volume limitations applicable to affiliates, vesting restrictions with us or the contractual restrictions described below.

Lock-up Agreements

Our executive officers, directors and Principal Equityholders will agree that, for a period of 180 days from the date of this prospectus, they will not, without the prior written consent of the representatives of the underwriters, dispose of or hedge any shares of our Class A common stock or any securities convertible into or exchangeable for our Class A common stock, including the TMM limited partnership interests and the Class B common stock, subject to certain exceptions.

Immediately following the consummation of this offering and the application of the net proceeds from this offering, stockholders subject to lock-up agreements will hold shares of our Class A common stock (on an assumed as-exchanged basis), representing approximately          % of then outstanding shares of our Class A common stock, or approximately          % if the underwriters exercise their option to purchase additional shares in full (on an assumed as-exchanged basis).

We will agree not to issue, sell or otherwise dispose of any shares of our Class A common stock or any securities convertible into or exchangeable for our Class A common stock, including the TMM limited partnership interests and the Class B common stock, during the 180-day period following the date of this prospectus. We may, however, grant awards under the 2013 Plan and we may issue or sell Class A common stock in connection with an acquisition or business combination as long as the acquirer of such Class A common stock agrees in writing to be bound by the obligations and restrictions of our lock-up agreement.

The 180-day restricted period described in the preceding paragraphs will be automatically extended if (i) during the last 17 days of the 180-day restricted period we issue an earnings release or announce material news or a material event relating to us occurs or (ii) prior to the expiration of the 180-day restricted period, we announce that we will release earnings results during the 15-day period beginning on the last day of the 180-day restricted period, in which case the restrictions described in the preceding paragraph will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or material event.

 

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MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR NON-U.S. HOLDERS OF CLASS A COMMON STOCK

The following is a general discussion of certain U.S. federal income tax considerations with respect to the ownership and disposition of our Class A common stock applicable to Non-U.S. Holders (as defined below). This discussion is based on current provisions of the Internal Revenue Code of 1986, as amended, or the Code, existing and proposed U.S. Treasury regulations promulgated thereunder, and administrative rulings and court decisions in effect as of the date hereof, all of which are subject to change at any time, possibly with retroactive effect. No opinion of counsel has been obtained, and we do not intend to seek a ruling from the IRS as to any of the tax considerations described below. There can be no assurance that the IRS will not challenge one or more of the tax considerations described below.

This discussion only addresses beneficial owners of our Class A common stock, and it is assumed for purposes of this discussion that Non-U.S. Holders (as defined below) hold shares of our Class A common stock as capital assets within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all aspects of U.S. federal income taxation that may be important to a Non-U.S. Holder in light of such Non-U.S. Holder’s particular circumstances or that may be applicable to Non-U.S. Holders subject to special treatment under U.S. federal income tax law (including, for example, financial institutions, dealers in securities, traders in securities that elect mark-to-market treatment, insurance companies, tax-exempt entities, Non-U.S. Holders who acquire our Class A common stock pursuant to the exercise of employee stock options or otherwise as compensation, entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors therein), Non-U.S. Holders liable for the alternative minimum tax, controlled foreign corporations, passive foreign investment companies, companies that accumulate earnings to avoid U.S. federal income tax, former citizens or former long-term residents of the United States, and Non-U.S. Holders who hold our Class A common stock as part of a hedge, straddle, constructive sale or conversion transaction). In addition, this discussion does not address U.S. federal tax laws other than those pertaining to the U.S. federal income tax (such as U.S. federal estate tax or the Medicare contribution tax on certain net investment income), nor does it address any aspects of U.S. state, local or non-U.S. taxes. Non-U.S. Holder should consult with their own tax advisors regarding the possible application of these taxes.

For the purposes of this discussion, the term “Non-U.S. Holder” means a beneficial owner of our Class A common stock that is an individual, corporation, estate or trust, other than:

 

   

an individual who is a citizen or resident of the United States as determined for U.S. federal income tax purposes;

 

   

a corporation, or other entity taxable as a corporation for U.S. federal income tax purposes, created or organized in the United States or under the laws of the United States, any state thereof or the District of Columbia;

 

   

an estate, the income of which is includible in gross income for U.S. federal income tax purposes regardless of its source; or

 

   

a trust if (1) a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons (as defined in the Code) have the authority to control all substantial decisions of the trust, or (2) it has a valid election in effect under applicable U.S. Treasury regulations to be treated as a domestic trust.

If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds shares of our Class A common stock, the tax treatment of a person treated as a partner generally will depend on the status of the partner and the activities of the partnership. Persons that, for U.S. federal income tax purposes, are treated as a partner in a partnership holding shares of our Class A common stock should consult their own tax advisors.

 

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THIS SUMMARY IS FOR GENERAL INFORMATION ONLY AND IS NOT INTENDED TO CONSTITUTE A COMPLETE DESCRIPTION OF ALL TAX CONSEQUENCES RELATING TO THE OWNERSHIP AND DISPOSITION OF OUR CLASS A COMMON STOCK. HOLDERS OF OUR CLASS A COMMON STOCK SHOULD CONSULT WITH THEIR OWN TAX ADVISORS REGARDING THE TAX CONSEQUENCES TO THEM (INCLUDING THE APPLICATION AND EFFECT OF OTHER U.S. FEDERAL TAX LAWS AND ANY STATE, LOCAL, NON-U.S. INCOME AND OTHER TAX LAWS) OF THE OWNERSHIP AND DISPOSITION OF OUR CLASS A COMMON STOCK.

Dividends

Distributions of cash or property that we pay in respect of our Class A common stock will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and profits (as determined under U.S. federal income tax principles). Except as described below under “— Effectively Connected Income ,” a Non-U.S. Holder generally will be subject to U.S. federal withholding tax at a 30% rate, or at a reduced rate prescribed by an applicable income tax treaty, on any dividends received in respect of our Class A common stock. If the amount of the distribution exceeds our current and accumulated earnings and profits, such excess first will be treated as a return of capital to the extent of the Non-U.S. Holder’s tax basis in our Class A common stock, and thereafter will be treated as capital gain. However, except to the extent that we elect (or the paying agent or other intermediary through which a Non-U.S. Holder holds our Class A common stock elects) otherwise, we (or the intermediary) must generally withhold on the entire distribution, in which case the Non-U.S. Holder would be entitled to a refund from the IRS for the withholding tax on the portion of the distribution that exceeded our current and accumulated earnings and profits. In order to obtain a reduced rate of U.S. federal withholding tax under an applicable income tax treaty, a Non-U.S. Holder will be required to provide a properly executed IRS Form W-8BEN (or successor form) certifying such stockholder’s entitlement to benefits under the treaty. If a Non-U.S. Holder is eligible for a reduced rate of U.S. federal withholding tax under an income tax treaty, the Non-U.S. Holder may obtain a refund or credit of any excess amounts withheld by filing an appropriate claim for a refund with the IRS. Non-U.S. Holders are urged to consult their own tax advisors regarding possible entitlement to benefits under an income tax treaty.

Gain on Disposition of our Class A Common Stock

Subject to the discussion below under “— Information Reporting and Backup Withholding ” and “— FATCA ,” a Non-U.S. Holder generally will not be subject to U.S. federal income tax or withholding tax on any gain realized upon the sale or other taxable disposition of our Class A common stock unless:

 

   

the gain is effectively connected with the conduct, by such Non-U.S. Holder, of a trade or business in the United States, and if an applicable income tax treaty applies, is attributable to a U.S. permanent establishment, in which case the gain will be subject to tax in the manner described below under “— Effectively Connected Income ”;

 

   

the Non-U.S. Holder is an individual who is present in the United States for a period or periods aggregating 183 days or more during the calendar year in which the sale or disposition occurs and certain other conditions are met, in which case the gain (reduced by any U.S.-source capital losses) will be subject to 30% (or a lower applicable treaty rate) tax; or

 

   

we are, or have been, a “United States real property holding corporation” for U.S. federal income tax purposes, at any time during the shorter of the five-year period preceding such disposition and the Non-U.S. Holder’s holding period in our Class A common stock; provided, that so long as our Class A common stock is regularly traded on an established securities market, a Non-U.S. Holder generally would be subject to taxation with respect to a taxable disposition of our Class A common stock, only if at any time during that five-year or shorter period it owned more than 5% directly or by attribution, of our Class A common stock.

 

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Under U.S. federal income tax laws, we will be a U.S. real property holding corporation if at least 50% of the fair market value of our assets consists of “United States real property interests.” We believe that we are currently a U.S. real property holding corporation based upon the composition of our assets. Accordingly, any taxable gains recognized by a Non-U.S. Holder that meets the ownership requirements described in the third bullet point above on the sale or other taxable disposition of our Class A common stock will be subject to tax as if the gain were effectively connected with the conduct of the Non-U.S. Holder’s trade or business in the United States (except the branch profits tax would not apply) so long as we remain a U.S. real property holding corporation or were a U.S. real property holding corporation at any time during the period described in such bullet. See “— Effectively Connected Income .” In addition, if our Class A common stock ceases to be regularly traded on an established securities market, the transferee of our common stock would generally be required to withhold tax, under U.S. federal income tax laws, in an amount equal to 10% of the amount realized by the Non-U.S. Holder on the sale or other taxable disposition of our Class A common stock. The rules regarding U.S. real property interests are complex, and Non-U.S. Holders are urged to consult with their own tax advisors on the application of these rules based on their particular circumstances.

Effectively Connected Income

If a dividend received on our Class A common stock, or gain from a sale or other taxable disposition of our Class A common stock, is treated as effectively connected with a Non-U.S. Holder’s conduct of a trade or business in the United States (and, if required by an applicable income tax treaty, is attributable to such Non-U.S. Holder’s U.S. permanent establishment), such Non-U.S. Holder will generally be exempt from withholding tax on any such dividend and any gain realized on such a disposition, provided such Non-U.S. Holder complies with certain certification requirements (generally on IRS Form W-8ECI). Instead such Non-U.S. Holder will generally be subject to U.S. federal income tax on a net income basis on any such gains or dividends in the same manner as if such holder were a U.S. person (as defined in the Code) unless an applicable income tax treaty provides otherwise. In addition, a Non-U.S. Holder that is a foreign corporation may be subject to a branch profits tax at a rate of 30% (or a lower rate provided by an applicable income tax treaty) on such holder’s earnings and profits for the taxable year that are effectively connected with such holder’s conduct of a trade or business in the United States (and, if required by an applicable income tax treaty, are attributable to such holder’s U.S. permanent establishment), subject to adjustments.

Information Reporting and Backup Withholding

Generally, we must report to our Non-U.S. Holders and the IRS the amount of dividends paid during each calendar year, if any, and the amount of any tax withheld. These information reporting requirements apply even if no withholding is required (e.g., because the distributions are effectively connected with the Non-U.S. Holder’s conduct of a United States trade or business, or withholding is eliminated by an applicable income tax treaty). This information also may be made available under a specific treaty or agreement with the tax authorities in the country in which the Non-U.S. Holder resides or is established.

Backup withholding, however, generally will not apply to distributions payable to a Non-U.S. Holder of shares of our Class A common stock provided the Non-U.S. Holder furnishes to us or our paying agent the required certification as to its non-U.S. status, such as by providing a valid IRS Form W-8BEN or IRS Form W-8ECI, or certain other requirements are met. Notwithstanding the foregoing, backup withholding may apply if either we or our paying agent has actual knowledge, or reason to know, that the Non-U.S. Holder is a U.S. person (as defined in the Code) that is not an exempt recipient.

Payments on the sale or other taxable disposition of our Class A common stock made to or through a foreign office of a foreign broker generally will not be subject to backup withholding or information reporting. However, if such broker is for U.S. federal income tax purposes: a U.S. person, a controlled foreign corporation, a foreign person 50% or more of whose gross income is effectively connected with a U.S. trade or business for a specified three-year period, or a foreign partnership with certain connections to the United States, then information

 

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reporting will be required unless the broker has in its records documentary evidence that the Non-U.S. Holder is not a U.S. person (as defined in the Code) and certain other conditions are met or the Non-U.S. Holder otherwise establishes an exemption. Backup withholding may apply to any payment that such broker is required to report if the broker has actual knowledge or reason to know that the payee is a U.S. person. Payments to or through the U.S. office of a broker will be subject to backup withholding and information reporting unless the Non-U.S. Holder certifies, under penalties of perjury, that it is not a U.S. person, or otherwise establishes an exemption.

Backup withholding is not an additional tax but merely an advance payment, which may be credited against a Non-U.S. Holder’s U.S. federal income tax liability or refunded to the extent it results in an overpayment of tax and the appropriate information is timely supplied by the Non-U.S. Holder to the IRS.

FATCA

Pursuant to the Foreign Account Tax Compliance Act, or “FATCA,” foreign financial institutions (which include most foreign hedge funds, private equity funds, mutual funds, securitization vehicles and any other investment vehicles) and certain other foreign entities must comply with new information reporting rules with respect to their U.S. account holders and investors or confront a new withholding tax on U.S. source payments made to them (whether received as a beneficial owner or as an intermediary for another party). More specifically, a foreign financial institution or other foreign entity that does not comply with the FATCA reporting requirements will generally be subject to a new 30% withholding tax with respect to any “withholdable payments.” For this purpose, withholdable payments include generally U.S.-source payments otherwise subject to nonresident withholding tax (e.g., U.S.-source dividends) and also include the entire gross proceeds from the sale of any equity or debt instruments of U.S. issuers. The new FATCA withholding tax will apply even if the payment would otherwise not be subject to U.S. nonresident withholding tax (e.g., because it is capital gain). IRS administrative guidance defers this withholding obligation until January 1, 2014 for payments of dividends on U.S. common stock and until January 1, 2017 for gross proceeds from dispositions of U.S. common stock. FATCA withholding will not apply to withholdable payments made directly to foreign governments, international organizations, foreign central banks of issue and individuals, and Treasury is authorized to provide additional exceptions.

Non-U.S. Holders are urged to consult with their own tax advisors regarding the effect, if any, of the FATCA provisions to them based on their particular circumstances.

 

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UNDERWRITING

Credit Suisse Securities (USA) LLC and Citigroup Global Markets Inc. are acting as representatives of the underwriters named below. Under the terms and subject to the conditions contained in an underwriting agreement dated as of the date of this prospectus each underwriter named below has agreed, on a several and not joint basis, to purchase, and we have agreed to sell to that underwriter, the number of shares of our Class A common stock set forth opposite the underwriter’s name:

 

Underwriter

   Number
of Shares

Credit Suisse Securities (USA) LLC

  

Citigroup Global Markets Inc.

  

Deutsche Bank Securities Inc.

  

Goldman, Sachs & Co.

  

J.P. Morgan Securities LLC

  

Zelman Partners LLC

  
  

 

Total

  
  

 

The underwriting agreement provides that the obligations of the underwriters to purchase the shares included in this offering are subject to approval of legal matters by counsel and to other conditions. The underwriting agreement provides that the underwriters are obligated to purchase all the shares of Class A common stock in this offering if any are purchased, other than those shares covered by the over-allotment option described below. The underwriting agreement also provides that if an underwriter defaults, the purchase commitments of non-defaulting underwriters may be increased or the offering may be terminated.

If the underwriters sell more shares of Class A common stock than the total number set forth in the table above, we have granted to the underwriters an option, exercisable for 30 days from the date of this prospectus, to purchase on a pro rata basis up to             additional shares of Class A common stock from us at the initial public offering price less the underwriting discounts and commissions. The option may be exercised only to cover over-allotments of Class A common stock, if any, in connection with this offering. To the extent the option is exercised, each underwriter must purchase a number of additional shares approximately proportionate to that underwriter’s initial purchase commitment. Any shares issued or sold under the option will be issued and sold on the same terms and conditions as the other shares that are the subject of this offering.

The underwriters propose to offer the shares of Class A common stock initially at the public offering price on the cover page of this prospectus and to selling group members at the public offering price less a selling concession of up to $             per share. After the initial public offering, the representatives may change the public offering price and selling concession.

The following table summarizes the compensation we will pay:

 

     Per Share      Total  
     Without
Over-allotment
     With
Over-allotment
     Without
Over-allotment
     With
Over-allotment
 

Underwriting Discounts and Commissions paid by us

   $                   $                   $                   $               

We estimate that our portion of the total expenses of this offering, excluding the underwriting discounts and commissions set forth above, will be $            .

The representatives have informed us that the underwriters do not expect sales to accounts over which the underwriters have discretionary authority to exceed 5% of the shares of our Class A common stock being offered by them.

 

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We have agreed that we will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the SEC a registration statement under the Securities Act relating to, any shares of our Class A common stock or securities convertible into or exchangeable or exercisable for any shares of our Class A common stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, without the prior written consent of the representatives, for a period of 180 days after the date of this prospectus. However, in the event that either (1) during the last 17 days of the “lock-up” period, we release earnings results or material news or a material event relating to us occurs or (2) prior to the expiration of the “lock-up” period, we announce that we will release earnings results during the 16-day period beginning on the last day of the “lock-up” period, then in either case the expiration of the “lock-up” will be extended until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of the material news or event, as applicable, unless the representatives waive, in writing, such an extension. The representatives in their sole discretion may release any of the securities subject to these “lock-up” agreements at any time without notice.

Our directors and officers and the Principal Equityholders have agreed that they will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any shares of our Class A common stock or securities convertible into or exchangeable or exercisable for any shares of our Class A common stock (including TMM partnership interests and Class B common stock), enter into a transaction that would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of our Class A common stock, whether any of these transactions are to be settled by delivery of our Class A common stock or other securities, in cash or otherwise, or publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement, without, in each case, the prior written consent of the representatives for a period of 180 days after the date of this prospectus. However, in the event that either (1) during the last 17 days of the “lock-up” period, we release earnings results or material news or a material event relating to us occurs or (2) prior to the expiration of the “lock-up” period, we announce that we will release earnings results during the 16-day period beginning on the last day of the “lock-up” period, then in either case the expiration of the “lock-up” will be extended until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of the material news or event, as applicable, unless the representatives waive, in writing, such an extension. The representatives in their sole discretion may release any of the securities subject to these “lock-up” agreements at any time without notice.

We have agreed to indemnify the underwriters against liabilities under the Securities Act, or contribute to payments that the underwriters may be required to make in that respect.

We intend to apply to list the shares of Class A common stock on a national securities exchange under the symbol “TMHC.”

Prior to this offering, there has been no public market for our Class A common stock. Consequently, the initial public offering price for the shares will be determined by negotiations between us and the representatives and will not necessarily reflect the market price of the Class A common stock following this offering. The principal factors that will be considered in determining the initial public offering price will include:

 

   

the information presented in this prospectus and otherwise available to the underwriters;

 

   

the history of, the economic conditions in and the prospects for, the industry in which we will compete;

 

   

the ability of our management;

 

   

the prospects for our future earnings;

 

   

the present state of our development, our results of operations and our current financial condition;

 

   

our markets;

 

   

the prevailing general condition of the equity securities markets at the time of this offering; and

 

   

the recent market prices of, and the demand for, publicly traded common stock of generally comparable companies.

 

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We cannot assure you that the initial public offering price will correspond to the price at which our Class A common stock will trade in the public market subsequent to this offering or that an active trading market for the Class A common stock will develop and continue after this offering.

In connection with this offering, the representatives, on behalf of the underwriters, may purchase and sell shares of Class A common stock in the open market. These transactions may include stabilizing transactions, over-allotment transactions, syndicate covering transactions and penalty bids in accordance with Regulation M under the Exchange Act.

 

   

Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum.

 

   

Over-allotment involves sales by the underwriters of shares in excess of the number of shares the underwriters are obligated to purchase, which creates a syndicate short position. The short position may be either a covered short position or a naked short position. In a covered short position, the number of shares over-allotted by the underwriters is not greater than the number of shares that they may purchase in the over-allotment option. In a naked short position, the number of shares involved is greater than the number of shares in the over-allotment option. The underwriters may close out any covered short position by either exercising their over-allotment option and/or purchasing shares in the open market.

 

   

Syndicate covering transactions involve purchases of our Class A common stock in the open market after the distribution has been completed in order to cover syndicate short positions. In determining the source of shares to close out the short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase shares through the over-allotment option. If the underwriters sell more shares than could be covered by the over-allotment option, a naked short position, the position can only be closed out by buying shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there could be downward pressure on the price of the shares in the open market after pricing that could adversely affect investors who purchase in this offering.

These stabilizing transactions, syndicate covering transactions and penalty bids, as well as other purchases by the underwriters for their own accounts, may have the effect of raising or maintaining the market price of our Class A common stock or preventing or retarding a decline in the market price of the common stock. As a result the price of our Class A common stock may be higher than the price that might otherwise exist in the open market in the absence of these transactions. These transactions may be effected on a national securities exchange, in the over-the-counter market or otherwise and, if commenced, may be discontinued at any time.

A prospectus in electronic format may be made available on the web sites maintained by one or more of the underwriters, or selling group members, if any, participating in this offering and one or more of the underwriters participating in this offering may distribute prospectuses electronically. The representatives may agree to allocate a number of shares to underwriters and selling group members for sale to their online brokerage account holders. Internet distributions will be allocated by the underwriters and selling group members that will make internet distributions on the same basis as other allocations.

Other Relationships

Certain of the underwriters and their respective affiliates have performed, and may in the future perform, various investment banking, financial advisory and other services for us, our affiliates and our officers in the ordinary course of business, for which they received and may receive customary fees and reimbursement of expenses. In particular, Credit Suisse Securities (USA) LLC acted as representative of the initial purchasers of the senior notes. In addition, an affiliate of Credit Suisse Securities (USA) LLC is a lender and the administrative agent under the Revolving Credit Agreement.

 

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In addition, in the ordinary course of their business activities, the underwriters and their affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers. Such investments and securities activities may involve securities and/or instruments of ours or our affiliates. The underwriters and their affiliates may also make investment recommendations and/or publish or express independent research views in respect of such securities or financial instruments and may hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments.

Notice to Prospective Investors in the European Economic Area

In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (each, a relevant member state), with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the relevant implementation date), an offer of shares described in this prospectus may not be made to the public in that relevant member state other than:

 

   

to any legal entity which is a qualified investor as defined in the Prospectus Directive;

 

   

to fewer than 100 or, if the relevant member state has implemented the relevant provision of the 2010 PD Amending Directive, 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the relevant Dealer or Dealers nominated by us for any such offer; or

 

   

in any other circumstances falling within Article 3(2) of the Prospectus Directive,

provided that no such offer of shares shall require us or any underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive.

For purposes of this provision, the expression an “offer of securities to the public” in any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and the shares to be offered so as to enable an investor to decide to purchase or subscribe for the shares, as the expression may be varied in that member state by any measure implementing the Prospectus Directive in that member state, and the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the relevant member state) and includes any relevant implementing measure in the relevant member state. The expression 2010 PD Amending Directive means Directive 2010/73/EU.

The sellers of the shares have not authorized and do not authorize the making of any offer of shares through any financial intermediary on their behalf, other than offers made by the underwriters with a view to the final placement of the shares as contemplated in this prospectus. Accordingly, no purchaser of the shares, other than the underwriters, is authorized to make any further offer of the shares on behalf of the sellers or the underwriters.

Notice to Prospective Investors in the United Kingdom

This prospectus is only being distributed to, and is only directed at, persons in the United Kingdom that are qualified investors within the meaning of Article 2(1)(e) of the Prospectus Directive that are also (i) investment professionals falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order”) or (ii) high net worth entities, and other persons to whom it may lawfully be communicated, falling within Article 49(2)(a) to (d) of the Order (each such person being referred to as a “relevant person”). This prospectus and its contents are confidential and should not be distributed, published or reproduced (in whole or in part) or disclosed by recipients to any other persons in the United Kingdom. Any person in the United Kingdom that is not a relevant person should not act or rely on this document or any of its contents.

 

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Notice to Prospective Investors in France

Neither this prospectus nor any other offering material relating to the shares described in this prospectus has been submitted to the clearance procedures of the Autorité des Marchés Financiers or of the competent authority of another member state of the European Economic Area and notified to the Autorité des Marchés Financiers. The shares have not been offered or sold and will not be offered or sold, directly or indirectly, to the public in France. Neither this prospectus nor any other offering material relating to the shares has been or will be:

 

   

released, issued, distributed or caused to be released, issued or distributed to the public in France; or

 

   

used in connection with any offer for subscription or sale of the shares to the public in France.

Such offers, sales and distributions will be made in France only:

 

   

to qualified investors ( investisseurs qualifiés ) and/or to a restricted circle of investors ( cercle restreint d’investisseurs ), in each case investing for their own account, all as defined in, and in accordance with articles L.411-2, D.411-1, D.411-2, D.734-1, D.744-1, D.754-1 and D.764-1 of the French Code monétaire et financier ;

 

   

to investment services providers authorized to engage in portfolio management on behalf of third parties; or

 

   

in a transaction that, in accordance with article L.411-2-II-1°-or-2°-or 3° of the French Code monétaire et financier and article 211-2 of the General Regulations ( Règlement Général ) of the Autorité des Marchés Financiers , does not constitute a public offer ( appel public à l’épargne ).

The shares may be resold directly or indirectly, only in compliance with articles L.411-1, L.411-2, L.412-1 and L.621-8 through L.621-8-3 of the French Code monétaire et financier .

Notice to Prospective Investors in Hong Kong

The shares may not be offered or sold in Hong Kong by means of any document other than (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong), or (ii) to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder, or (iii) in other circumstances which do not result in the document being a “prospectus” within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong) and no advertisement, invitation or document relating to the shares may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with respect to shares which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder.

Notice to Prospective Investors in Japan

The shares offered in this prospectus have not been and will not be registered under the Financial Instruments and Exchange Law of Japan. The shares have not been offered or sold and will not be offered or sold, directly or indirectly, in Japan or to or for the account of any resident of Japan (including any corporation or other entity organized under the laws of Japan), except (i) pursuant to an exemption from the registration requirements of the Financial Instruments and Exchange Law and (ii) in compliance with any other applicable requirements of Japanese law.

 

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Notice to Prospective Investors in Singapore

This prospectus has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the shares may not be circulated or distributed, nor may the shares be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”), (ii) to a relevant person pursuant to Section 275(1), or any person pursuant to Section 275(1A), and in accordance with the conditions specified in Section 275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA, in each case subject to compliance with conditions set forth in the SFA.

Where the shares are subscribed or purchased under Section 275 of the SFA by a relevant person which is:

 

   

a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or

 

   

a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an accredited investor,

shares, debentures and units of shares and debentures of that corporation or the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferred within six months after that corporation or that trust has acquired the shares pursuant to an offer made under Section 275 of the SFA except:

 

   

to an institutional investor (for corporations, under Section 274 of the SFA) or to a relevant person defined in Section 275(2) of the SFA, or to any person pursuant to an offer that is made on terms that such shares, debentures and units of shares and debentures of that corporation or such rights and interest in that trust are acquired at a consideration of not less than S$200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount is to be paid for in cash or by exchange of securities or other assets, and further for corporations, in accordance with the conditions specified in Section 275 of the SFA;

 

   

where no consideration is or will be given for the transfer; or

 

   

where the transfer is by operation of law.

 

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LEGAL MATTERS

Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York, will pass on the validity of the Class A common stock offered by this prospectus for us. The underwriters have been represented by Cravath, Swaine & Moore LLP, New York, New York.

EXPERTS

The financial statements as of December 31, 2011 (Successor) and 2010 (Predecessor), and for the period from July 13, 2011 through December 31, 2011 (Successor), for the period January 1, 2011 through July 12, 2011 (Predecessor), and for the years ended December 31, 2010 and 2009 (Predecessor), included in this prospectus, have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report appearing herein which includes an explanatory paragraph indicating that the financial information of the predecessor and successor periods is not comparable. Such financial statements have been so included in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.

The balance sheet of Taylor Morison Home Corporation as of November 30, 2011 included in this prospectus has been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report appearing herein. Such balance sheet is included in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.

WHERE YOU CAN FIND MORE INFORMATION

We have filed with the SEC a registration statement on Form S-1, which includes exhibits, schedules and amendments, under the Securities Act with respect to this offering of our securities. Although this prospectus, which forms a part of the registration statement, contains all material information included in the registration statement, parts of the registration statement have been omitted as permitted by rules and regulations of the SEC. We refer you to the registration statement and its exhibits for further information about us, our securities and this offering. The registration statement and its exhibits, as well as any other documents that we have filed with the SEC, can be inspected and copied at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549-1004. The public may obtain information about the operation of the public reference room by calling the SEC at 1-800-SEC-0330. In addition, the SEC maintains a website at http://www.sec.gov that contains the registration statement and other reports, proxy and information statements and information that we file will electronically with the SEC.

After we have completed this offering, we will file annual, quarterly and current reports, proxy statements and other information with the SEC. We intend to make these filings available on our website once the offering is completed. You may read and copy any reports, statements or other information on file at the public reference rooms. You can also request copies of these documents, for a copying fee, by writing to the SEC, or you can review these documents on the SEC’s website, as described above. In addition, we will provide electronic or paper copies of our filings free of charge upon request.

 

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I NDEX TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS

 

    Page  

Taylor Morrison Home Corporation

 

Report of Independent Registered Public Accounting Firm

    F-2   

Balance Sheet as of November 30, 2012

    F-3   

Notes to the Balance Sheet

    F-4   

TMM Holdings Limited Partnership

 

Audited Consolidated and Combined Financial Statements

 

Report of Independent Registered Public Accounting Firm

    F-5   

Balance Sheets as of December 31, 2011 (Successor) and 2010 (Predecessor)

    F-6   

Statements of Operations for the period from July 13, 2011 through December  31, 2011 (Successor), for the period from January 1, 2011 through July 12, 2011 (Predecessor), and for the years ended December 31, 2010 and 2009 (Predecessor)

    F-7   

Statements of Comprehensive Income (Loss) for the period from July 13, 2011 through December  31, 2011 (Successor), for the period from January 1, 2011 through July 12, 2011 (Predecessor), and for the years ended December 31, 2010 and 2009 (Predecessor)

    F-8   

Statements of Equity for the period from July 13, 2011 through December  31, 2011 (Successor), for the period from January 1, 2011 through July 12, 2011 (Predecessor), and for the years ended December 31, 2010 and 2009 (Predecessor)

    F-9   

Statements of Cash Flows for the period from July 13, 2011 through December  31, 2011 (Successor), for the period from January 1, 2011 through July 12, 2011 (Predecessor), and for the years ended December 31, 2010 and 2009 (Predecessor)

    F-10   

Notes to Consolidated and Combined Financial Statements

    F-12   

Unaudited Condensed Consolidated and Combined Financial Statements

 

Condensed Balance Sheets as of September 30, 2012 (Successor) (unaudited) and December  31, 2011 (Successor)

    F-54   

Unaudited Statements of Operations for the Three and Nine Months Ended September  30, 2012 (Successor), for the Period From July 13, 2011 to September 30, 2011 (Successor) and for the Period from January 1, 2011 through July 12, 2011 (Predecessor)

    F-55   

Unaudited Statements of Comprehensive Income (Loss) for the Three and Nine Months Ended September  30, 2012 (Successor), for the Period From July 13, 2011 to September 30, 2011 (Successor) and for the Period from January 1, 2011 through July 12, 2011 (Predecessor)

    F-56   

Unaudited Statements of Equity for the Nine Months Ended September  30, 2012 (Successor), for the Period From July 13, 2011 to September 30, 2011 (Successor) and for the Period from January 1, 2011 through July 12, 2011 (Predecessor)

    F-57   

Unaudited Statements of Cash Flows for the Nine Months Ended September  30, 2012 (Successor), for the Period From July 13, 2011 to September 30, 2011 (Successor) and for the Period from January 1, 2011 through July 12, 2011 (Predecessor)

    F-58   

Notes to Unaudited Condensed Consolidated and Combined Financial Statements

    F-60   

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Stockholders of

Taylor Morrison Home Corporation

Scottsdale, Arizona

We have audited the accompanying balance sheet of Taylor Morrison Home Corporation (the “Company”) as of November 30, 2012. This financial statement is the responsibility of the Company’s management. Our responsibility is to express an opinion on this financial statement based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the balance sheet is free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion . An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the balance sheet, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall balance sheet presentation. We believe that our audit of the balance sheet provides a reasonable basis for our opinion.

In our opinion, such balance sheet presents fairly, in all material respects, the financial position of the Company as of November 30, 2012, in conformity with accounting principles generally accepted in the United States of America.

/s/ Deloitte & Touche LLP

Phoenix, Arizona

December 4, 2012

 

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Taylor Morrison Home Corporation

Balance Sheet

(Amounts in whole dollars except share data)

 

     November 30,
2012
 

Assets

  

Cash and cash equivalents

   $ 1,000   
  

 

 

 

Total assets

   $ 1,000   
  

 

 

 

LIABILITIES AND EQUITY

  

Liabilities

  

Accounts payable

   $ —     
  

 

 

 

Total liabilities

     —     

Stockholders’ Equity

  

Common stock, 1,000 shares issued and outstanding

   $ 10   

Additional paid in capital

     990   
  

 

 

 

Total stockholders’ equity

     1,000   
  

 

 

 

TOTAL LIABILITIES AND EQUITY

   $ 1,000   
  

 

 

 

See accompanying notes to balance sheet

 

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TAYLOR MORRISON HOME CORPORATION

NOTES TO THE BALANCE SHEET

NOVEMBER 30, 2012

1.    ORGANIZATION

Organization and Description of the Business —Taylor Morrison Home Corporation (the “Company”), a Delaware Corporation was incorporated on November 15 th , 2012 as a holding company for the purposes of facilitating an initial public offering of common stock. The Company has not engaged in any business or other activities except in connection with its formation. It is expected that following an internal reorganization of TMM Holdings Limited Partnership (“TMM Holdings”) and the initial public offering of the Company, the Company will be or will control the sole general partner of TMM Holdings. The Company’s only business following the initial public offering of the Company will be to control the business and affairs of TMM Holdings and its subsidiaries. The Company will consolidate the financial results of TMM Holdings and its subsidiaries into the Company’s consolidated financial statements. TMM Holdings is the ultimate parent of Taylor Morrison Inc. (“Taylor Morrison”) and Monarch Corporation (“Monarch”). Taylor Morrison’s principal business is residential homebuilding and the development of lifestyle communities throughout the United States, with operations focused in Arizona, California, Colorado, Florida and Texas. Taylor Morrison’s product lines feature entry-level, move-up, and luxury homes. Monarch was founded in the province of Ontario in 1957 and is one of the oldest names in Canadian homebuilding. Its businesses concentrate on high-rise and low-rise residential construction in Ontario, Canada. Taylor Morrison and Monarch are the general contractors for all of their projects and retain subcontractors for home construction and site development. In addition to homebuilding, Taylor Morrison offers financial services to its customers in the U.S. through its mortgage brokerage subsidiary, Taylor Morrison Home Funding, LLC, and title examination services in some locations through various joint ventures.

2.    SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Basis of Presentation —The accompanying balance sheet has been prepared in accordance with accounting principles generally accepted in the United States. Separate statements of income and changes in stockholders equity have not been presented because there have been no operating activities or equity transactions of this entity. A separate statement of cash flows has not been presented, as the only transactions impacting such statement are fully described below.

3.    STOCKHOLDERS EQUITY

The company is authorized to issue 1,000 shares of Class A common stock, par value $0.01 per share. At November 15, 2012, 1,000 shares of Class A common stock, par value of $.01 per share, were issued for a subscription price $1,000.00.

4.    UNAUDITED SUBSEQUENT EVENTS

Management has evaluated subsequent events through December 4, 2012, the date the financial statements were available to be issued. No subsequent events were identified that would require recognition in the financial statement or disclosure in the notes to the balance sheet.

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Partners of

TMM Holdings Limited Partnership:

We have audited the accompanying consolidated and combined balance sheets of TMM Holdings Limited Partnership (the “Company”) as of December 31, 2011 (Successor) and 2010 (Predecessor), and the related consolidated and combined statements of operations, comprehensive income (loss), equity, and cash flows for the period from July 13, 2011 through December 31, 2011 (Successor), for the period from January 1, 2011 through July 12, 2011 (Predecessor), and for the years ended December 31, 2010 and 2009 (Predecessor). These consolidated and combined financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated and combined financial statements based on our audits.

We conducted our audits in accordance the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, such consolidated and combined financial statements present fairly, in all material respects, the consolidated and combined financial position of the Company as of December 31, 2011 (Successor) and 2010 (Predecessor), and the results of its operations and its cash flows for the period from July 13, 2011 through December 31, 2011 (Successor), for the period from January 1, 2011 through July 12, 2011 (Predecessor), and for the years ended December 31, 2010 and 2009 (Predecessor), in conformity with accounting principles generally accepted in the United States of America.

As described in Note 1 to the consolidated and combined financial statements, the Company acquired all outstanding shares of Taylor Woodrow Holdings (USA), Inc. and Monarch Corporation on July 13, 2011, at which date all assets and liabilities of the acquired companies were recorded at fair value. The financial information for the Predecessor periods, which combines the operations of the two acquired entities, is not comparable with that for the Successor period.

/s/ Deloitte & Touche LLP

Phoenix, Arizona

December 4, 2012

 

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TMM HOLDINGS LIMITED PARTNERSHIP

CONSOLIDATED AND COMBINED BALANCE SHEETS

(In thousands)

 

     December 31, 2011
(Successor)
     December 31, 2010
(Predecessor)
 

Assets

       

Cash and cash equivalents

   $ 279,322       $ 165,415   

Restricted cash

     5,000         3,447   

Real estate inventory

     1,003,482         1,073,953   

Land deposits

     13,565         6,006   

Loans receivable, net

     55,895         54,237   

Mortgage receivables

     33,961         4,854   

Tax indemnification receivable

     122,871         —     

Prepaid expenses and other assets, net

     50,253         51,774   

Other receivables, net

     53,109         118,720   

Investment in unconsolidated entities

     37,640         27,544   

Income taxes receivable

     —           4,734   

Deferred tax assets, net

     —           5,844   

Property and equipment, net

     6,236         7,001   

Goodwill and intangible assets, net

     9,733         3,792   
  

 

 

    

 

 

 

Total assets

   $ 1,671,067       $ 1,527,321   
  

 

 

    

 

 

 

LIABILITIES AND EQUITY

       

Liabilities

       

Accounts payable

   $ 64,843       $ 46,680   

Accrued expenses and other liabilities

     194,652         200,980   

Income taxes payable

     119,032         132,198   

Deferred tax liabilities, net

     4,032         —     

Customer deposits

     60,193         76,164   

Mortgage borrowings

     32,730         4,642   

Loans payable and other borrowings

     78,623         101,191   

Long-term debt (Due to related party)

     488,397         —     

Net payable to the Predecessor Parent Company

     —           499,935   
  

 

 

    

 

 

 

Total liabilities

     1,042,502         1,061,790   
 

COMMITMENTS AND CONTINGENCIES (Note 17)

       

Equity

       

Net owners’ equity

     649,209         463,211   

Accumulated other comprehensive loss

     (30,065      (2,503
  

 

 

    

 

 

 

Total owners’ equity

     619,144         460,708   

Noncontrolling interests

     9,421         4,823   
  

 

 

    

 

 

 

Total equity

     628,565         465,531   
  

 

 

    

 

 

 

TOTAL LIABILITIES AND EQUITY

   $ 1,671,067       $ 1,527,321   
  

 

 

    

 

 

 

See notes to consolidated and combined financial statements.

 

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TMM Holdings Limited Partnership

Consolidated and Combined Statements of Operations

(Amounts in thousands, except per unit data)

 

     Successor      Predecessor  
     July 13, 2011
Through
December 31,
2011
     January 1, 2011
Through
July 12, 2011
    For the Year
Ended
December 31,
2010
    For the Year
Ended
December 31,
2009
 

Home closing revenue

   $ 731,216       $ 600,069      $ 1,273,160      $ 1,224,082   

Land closing revenue

     10,657         13,639        12,116        24,967   

Mortgage operations revenue

     8,579         6,027        12,591        13,415   
  

 

 

    

 

 

   

 

 

   

 

 

 

Total revenues

     750,452         619,735        1,297,867        1,262,464   

Cost of home closings

     591,891         474,534        1,003,172        1,003,694   

Cost of land closings

     8,583         7,133        6,028        17,001   

Inventory Impairments

          —          4,054        78,241   

Mortgage operations expenses

     4,495         3,818        7,246        6,269   
  

 

 

    

 

 

   

 

 

   

 

 

 

Total cost of revenues

     604,969         485,485        1,020,500        1,105,205   

Operating gross margin

     145,483         134,250        277,367        157,259   

Sales, commissions and other marketing costs

     36,316         40,126        85,141        100,534   

General and administrative expenses

     32,883         35,743        66,232        71,300   

Equity in net income of unconsolidated entities

     (5,247      (2,803     (5,319     (347

Interest (income) expense — net

     (3,867      941        40,238        20,732   

Transaction expense

     39,442         —          —          —     

Indemnification expense

     12,850         —          —          —     

Other (income) expense, net

     2,308         (10,658     2,351        1,260   
  

 

 

    

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     30,798         70,901        88,724        (36,220

Income tax provision (benefit)

     4,031         20,881        (1,878     (35,396
  

 

 

    

 

 

   

 

 

   

 

 

 

Net income (loss)

     26,767         50,020        90,602        (824

Loss (income) attributable to noncontrolling interests

     (1,178      (4,122     (3,235     (5,138
  

 

 

    

 

 

   

 

 

   

 

 

 

Net income (loss) attributable to Owners

   $ 25,589       $ 45,898      $ 87,367      $ (5,962
  

 

 

    

 

 

   

 

 

   

 

 

 

Income per Class A unit:

         

Basic

   $ 0.04          

Diluted

   $ 0.04          

Weighted Average Number of Class A units:

         

Basic

     620,646          

Diluted

     620,646          

See notes to consolidated and combined financial statements

 

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TMM Holdings Limited Partnership

Consolidated and Combined Statements of Comprehensive Income (Loss)

(Amounts in thousands)

 

     Successor      Predecessor  
     July 13, 2011
Through
December 31,
2011
     January 1, 2011
Through
July 12, 2011
    For the Year
Ended
December 31,
2010
    For the
Year Ended
December 31,
2009
 

Net income (loss)

   $ 26,767       $ 50,020      $ 90,602      $ (824

Other comprehensive income, net of zero tax:

         

Foreign currency translation adjustment

     (22,320      8,866        18,708        53,876   

Post-retirement benefits adjustments

     (7,745      214        (1,032     5,529   
  

 

 

    

 

 

   

 

 

   

 

 

 

Comprehensive income (loss)

     (3,298      59,100        108,278        58,581   

Income attributable to noncontrolling interests

     (1,178      (4,122     (3,235     (5,138
  

 

 

    

 

 

   

 

 

   

 

 

 

Comprehensive income (loss) attributable to owners

   $ (4,476    $ 54,978      $ 105,043      $ 53,443   
  

 

 

    

 

 

   

 

 

   

 

 

 

See notes to consolidated and combined financial statements

 

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TMM HOLDINGS LIMITED PARTNERSHIP

CONSOLIDATED AND COMBINED STATEMENTS OF EQUITY

(Amounts in thousands)

 

    Net Owners
Equity
    Accumulated
other
Comprehensive
(Loss) Income
    Total
Owners
Equity
    Non-Controlling
Interest
    Total Equity  

BALANCE — January 1, 2009 (Predecessor)

  $ 117,910      $ (79,584   $ 38,326      $ 18,928      $ 57,254   

Net (loss) income

    (5,962     —          (5,962     5,138        (824

Other comprehensive income

    —          59,405        59,405        —          59,405   

Receivable from Predecessor Parent Company — net

    (3,843     —          (3,843     —          (3,843

Distributions to Predecessor Parent Company

    (7,601     —          (7,601     —          (7,601

Distributions to noncontrolling interests

    —          —          —          (618     (618
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

BALANCE — December 31, 2009 (Predecessor)

    100,504        (20,179     80,325        23,448        103,773   

Net income

    87,367        —          87,367        3,235        90,602   

Other comprehensive income (loss)

    —          17,676        17,676        —          17,676   

Contributions from Predecessor Parent Company

    406,440        —          406,440        —          406,440   

Receivable from Predecessor Parent Company — net

    (127,761     —          (127,761     —          (127,761

Distributions to Predecessor Parent Company

    (3,339     —          (3,339     —          (3,339

Distributions to noncontrolling interests

    —          —          —          (21,860     (21,860
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

BALANCE — December 31, 2010 (Predecessor)

    463,211        (2,503     460,708        4,823        465,531   

Net income

    45,898        —          45,898        4,122        50,020   

Other comprehensive income

    —          9,080        9,080        —          9,080   

Receivable from Predecessor Parent Company — net

    11,359        —          11,359        —          11,359   

Distributions to noncontrolling interests

    —          —          —          (5,326     (5,326
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

BALANCE — July 12, 2011 (Predecessor)

    520,468        6,577        527,045        3,619        530,664   

Initial capital contribution and purchase price allocation adjustments

    99,852        (6,577     93,275        9,574        102,849   

Net income

    25,589          25,589        1,178        26,767   

Other comprehensive income (loss)

    —          (30,065     (30,065     —          (30,065

Issuance of partnership units

    3,300        —          3,300        —          3,300   

Distributions to noncontrolling interests

    —          —          —          (4,950     (4,950
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

BALANCE — December 31, 2011 (Successor)

  $ 649,209      $ (30,065   $ 619,144      $ 9,421      $ 628,565   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See notes to consolidated and combined financial statements

 

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Table of Contents

TMM HOLDINGS LIMITED PARTNERSHIP

CONSOLIDATED AND COMBINED STATEMENTS OF CASH FLOWS

(In thousands)

 

    Successor     Predecessor  
    For the
Period from
July 13, 2011
through
December 31,
2011
    For the Period
from
January 1, 2011
through
July 12,

2011
    For the Year
Ended
December 31,
2010
    For the Year
Ended
December 31,
2009
 

CASH FLOWS FROM OPERATING ACTIVITIES:

         

Net income (loss)

  $ 26,767      $ 50,020      $ 90,602      $ (824

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

         

Equity in net income of unconsolidated entities

    (5,247     (2,803     (5,319     (347

Inventory impairment charges and deposit write-offs

          4,054        78,241   

Loss on disposal of property and equipment

            625   

Distributions of earnings from unconsolidated entities

    5,684        9,603        4,558        2,405   

Depreciation and amortization

    2,564        1,655        3,242        2,917   

Deferred income taxes

    (11,676     423        61        2,049   

Changes in operating assets and liabilities:

         

Real estate inventory and land deposits

    52,587        23,832        (71,853     45,560   

Receivables, prepaid expenses, and other assets

    25,757        (8,426     (80,291     (4,690

Income taxes receivable

          70,448        (1,087

Customer deposits

    (8,534     (6,506     (3,246     (1,088

Accounts payable, accrued expenses, and other liabilities

    12,484        (9,407     2,585        (60,638

Income taxes payable

    6,645        (6,992     (23,213     63,089   
 

 

 

   

 

 

   

 

 

   

 

 

 

Net cash provided by (used in) operating activities

    107,031        51,399        (8,372     126,212   
 

 

 

   

 

 

   

 

 

   

 

 

 

CASH FLOWS FROM INVESTING ACTIVITIES:

         

Purchase of property and equipment

    (1,428     (1,329     (2,937     (1,677

Business acquisitions

            (3,877

Decrease (increase) in restricted cash

    1,686        (3,260     51,616        (49,889

Investments of capital into unconsolidated entities

    (1,000       (15     (395

Distributions of capital from unconsolidated entities

          2,301        1,044   
 

 

 

   

 

 

   

 

 

   

 

 

 

Net cash (used in) provided by investing activities

    (742     (4,589     50,965        (54,794
 

 

 

   

 

 

   

 

 

   

 

 

 

CASH FLOWS FROM FINANCING ACTIVITIES:

         

Payments on net payable to Predecessor Parent Company

        (3,000     (270,873     (420,777

Borrowings on net payable to Predecessor Parent Company

        80,554        291,642        323,170   

Distributions to noncontrolling interests

    (4,950     (5,326     (21,860     (618

Distributions to Predecessor Parent Company

          (3,339     (7,601

Increase in receivable from Predecessor Parent Company

          (148,813     (8,737

Decrease in receivable from Predecessor Parent Company

        8,560        21,053        4,894   

Capital contributions

    58,800         

Net borrowing on line of credit related to mortgage borrowings

    596        27,492        4,642     

Proceeds from loans payable and other borrowings

          60,202     

Repayments of loans payable and other borrowings

    (161,497     (27,778     (5,091     (30,783

Deferred financing costs

    (2,751      
 

 

 

   

 

 

   

 

 

   

 

 

 

Net cash (used in) provided by financing activities

    (109,802     80,502        (72,437     (140,452
 

 

 

   

 

 

   

 

 

   

 

 

 

EFFECT OF EXCHANGE RATE CHANGES ON CASH AND CASH EQUIVALENTS

    (12,591     2,699        6,227        20,595   
 

 

 

   

 

 

   

 

 

   

 

 

 

(Continued)

See notes to consolidated and combined financial statements

 

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TMM HOLDINGS LIMITED PARTNERSHIP

CONSOLIDATED AND COMBINED STATEMENTS OF CASH FLOWS

(In thousands)

 

    Successor     Predecessor  
    For the
Period from
July 13, 2011
through
December 31,
2011
    For the Period
from
January 1, 2011
through
July 12,

2011
     For the
Year Ended
December 31,
2010
     For the
Year Ended
December 31,
2009
 

NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS

  $ (16,104)      $ 130,011       $ (23,617)       $ (48,439)   

CASH AND CASH EQUIVALENTS — Beginning of period

    295,426        165,415         189,032         237,471   
 

 

 

   

 

 

    

 

 

    

 

 

 

CASH AND CASH EQUIVALENTS — End of period

  $ 279,322      $ 295,426       $ 165,415       $ 189,032   
 

 

 

   

 

 

    

 

 

    

 

 

 

SUPPLEMENTAL CASH FLOW INFORMATION:

           

Interest paid — net of amounts capitalized

  $ —        $ —         $ 45,759       $ 18,087   
 

 

 

   

 

 

    

 

 

    

 

 

 

Income taxes (paid) refunded — net

  $ (17,986)      $ (24,024)       $ 46,572       $ 108,292   
 

 

 

   

 

 

    

 

 

    

 

 

 

SUPPLEMENTAL NONCASH INVESTING AND FINANCING ACTIVITIES:

           

Conversion of loans payable to Predecessor Parent Company to contributions from Predecessor Parent Company

  $ —        $ 499,935       $ 406,440       $ —     
 

 

 

   

 

 

    

 

 

    

 

 

 

Increase in notes payable issued to sellers in connection with land purchase contracts

  $ 35,972      $ 5,707       $ —         $ 8,729   
 

 

 

   

 

 

    

 

 

    

 

 

 

Decrease in tax indemnification receivable from seller

  $ 12,850      $ —         $ —         $ —     
 

 

 

   

 

 

    

 

 

    

 

 

 

 

See notes to consolidated and combined financial statements.

     (Concluded)   

 

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TMM HOLDINGS LIMITED PARTNERSHIP

NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS

AS OF DECEMBER 31, 2011 (SUCCESSOR) AND 2010 (PREDECESSOR), FOR THE PERIOD FROM JULY 13, 2011 THROUGH DECEMBER 31, 2011 (SUCCESSOR), FOR THE PERIOD FROM JANUARY 1, 2011 THROUGH JULY 12, 2011 (PREDECESSOR), AND FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009 (PREDECESSOR)

1. BUSINESS

Organization and Description of the Business  — TMM Holdings Limited Partnership (“TMM Holdings” or the “Company”) is a British Columbia limited partnership formed in 2011 by a consortium comprised of affiliates of TPG Global, LLC (the “TPG Entities”), investment funds managed by Oaktree Capital Management, L.P. or their respective subsidiaries, and affiliates of JH Investments (the “Sponsors”). On July 13, 2011, TMM Holdings, through various wholly owned acquisition subsidiaries, acquired all of the outstanding shares of Taylor Woodrow Holdings (USA), Inc. (“Taylor Morrison”) and Monarch Corporation (“Monarch”) from Taylor Wimpey plc (“Predecessor Parent Company”), through a combination of equity and debt (the “Acquisition”). In conjunction with the Acquisition, a series of holding companies and partnerships were established to hold TMM Holdings’ investments in the acquired businesses. Taylor Morrison’s principal business is residential homebuilding and the development of life style communities throughout the United States, with operations focused in Arizona, California, Colorado, Florida, and Texas. Taylor Morrison’s product lines feature entry-level, move-up, and luxury homes. Monarch was founded in the province of Ontario in 1957 and is one of the oldest names in Canadian homebuilding. Its businesses focus on high-rise and low-rise residential construction in Ontario, Canada. Taylor Morrison and Monarch are the general contractors for all of their projects and retain subcontractors for home construction and site development. In addition to homebuilding, Taylor Morrison offers financial services to its customers in the U.S. through its mortgage brokerage subsidiary and title examination services in some locations through various joint ventures.

Taylor Morrison and Monarch represented the North American subsidiaries of the Predecessor Parent Company, a United Kingdom publicly held homebuilder incorporated under the Company Act of 2006.

2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Basis of Presentation and Consolidation  — The accompanying consolidated financial statements include the accounts of TMM Holdings, Taylor Morrison, Monarch, their consolidated subsidiaries, partnerships, and other entities in which the companies have a controlling financial interest (collectively, “we,” “us,” “our,” “TMM Holdings,” and the “Company”). The consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (U.S. GAAP), and all intercompany balances and transactions have been eliminated in consolidation. In accordance with Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) 805, Business Combinations , the acquisition was accounted for on July 13, 2011, under the acquisition method of accounting and all acquired assets and assumed liabilities were recorded at fair value. In connection with the Acquisition, the Company is sometimes referred to as the “Successor” for the period on or after July 13, 2011, and the “Predecessor” for periods prior to July 13, 2011. The Predecessor’s financial statements include the accounts of Taylor Morrison and Monarch, their consolidated subsidiaries and other entities in which the companies have controlling financial interests, and have been combined given the common ownership and control by the Predecessor Parent Company.

On July 13, 2011, TMM Holdings and its subsidiaries acquired 100% of the issued share capital of Taylor Morrison and Monarch for aggregate cash consideration of approximately $1.2 billion. The Acquisition has been accounted for under ASC Topic 805, “ Business Combinations .” As a result of the change in ownership, the Company’s historical financial data for periods prior to the July 13, 2011 Acquisition (the predecessor periods) are derived from the historical financial statements of the predecessor, the North American business of Taylor Wimpey plc., which financial statements have been prepared using the historical cost basis of accounting that existed prior to the Acquisition. The Company’s financial statements for periods from and after the July 13, 2011

 

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Acquisition (the successor period) are derived from the financial statements of TMM Holdings, which reflect adjustments made as a result of the application of purchase accounting in connection with the Acquisition. Therefore, the financial information for the predecessor periods is not comparable with that for the successor period.

Unless otherwise stated, amounts are shown in U.S. dollars. Assets and liabilities recorded in foreign currencies are translated at the exchange rate on the balance sheet date, and revenues and expenses are translated at average rates of exchange prevailing during the year. Translation adjustments resulting from this process are recorded to net owners’ equity in the accompanying consolidated balance sheets and statements of equity.

Purchase Price Allocation and Related Acquisition Accounting  — TMM Holdings acquired the Taylor Morrison and Monarch businesses for total consideration of approximately $1.2 billion. In accordance with ASC 805, the effects of the acquisition are reflected on the date of the transaction in the financial statements of the acquired businesses by recording the assets and liabilities at their fair values in order to reflect the purchase price paid in the acquisition.

Cash and cash equivalents, other assets, accounts payable, and accrued and other liabilities were generally stated at historical carrying values given the short-term nature of these assets and liabilities. Income tax receivables and liabilities were recorded at historical carrying values in accordance with ASC 805. The Predecessor Parent Company is indemnifying the Company for specific uncertain tax positions for which tax liabilities are included in income taxes payable in the accompanying consolidated balance sheets. A receivable due from the Predecessor Parent Company for the indemnification is valued at the same amount as the estimated income tax liability.

The Company determined the fair value of inventory on a community-by-community basis primarily using the sales comparison and income approaches. The income approach derives a value indication for income-producing property by converting anticipated benefits, i.e. cash flow, into property value. This approach was used exclusively for finished lots. The sales comparison approach uses recent land sales to provide a lot value for finished lots or an average value for raw land. In markets where there were no recent land sales, the third party appraiser conducts interviews with local market participants, including brokers and appraisers, to gain an understanding of local land and lot values. In instances where both the income and sales approaches were used, equal weightings where typically given to each approach. These estimated cash flows are significantly affected by estimates related to expected average selling prices and sales incentives, expected sales paces and cancellation rates, expected land development and construction timelines, and anticipated land development, construction, and overhead costs. Such estimates must be made for each individual community and may vary significantly between communities.

The fair value of acquired intangible assets was determined based on valuations performed by independent valuation specialists. The intangibles were valued at $10.2 million and relate to trade names of Taylor Morrison and Monarch and are being amortized over 10 years. For the period from July 13, 2011 through December 31, 2011, amortization of $0.5 million was recorded and is included in general and administrative expense in the accompanying consolidated statements of operations.

 

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The Company has completed its business combination accounting as of December 31, 2011. A summary of the fair value of assets acquired and liabilities assumed as of July 13, 2011, is as follows (in thousands):

 

Financial Statement Caption    Total  

Cash and cash equivalents

   $ 295,426   

Restricted cash

     6,705   

Inventory

     1,036,068   

Land deposits

     9,667   

Loan receivables

     76,386   

Mortgage receivables

     32,531   

Other receivables

     64,481   

Tax indemnity receivable

     129,686   

Prepaid expenses and other assets — net

     48,781   

Investments in unconsolidated entities

     38,488   

Property and equipment — net

     6,591   

Intangible assets

     10,200   

Net deferred tax liabilities

     (16,240

Accounts payable

     (44,763

Accrued expenses and other liabilities

     (199,235

Income taxes payable

     (120,878

Customer deposits

     (71,155

Mortgage borrowings

     (32,134

Loans payable and other borrowings

     (80,092

Noncontrolling interests

     (13,193
  

 

 

 

Net assets acquired at fair value

     1,177,320   

Less amounts financed through debt

     (612,500
  

 

 

 

Equity infusion paid to seller

     564,820   

Cash contributed by the Sponsors

     55,500   
  

 

 

 

Net Sponsors equity

     620,320   

Less carrying basis of Predecessors’ equity

     (527,045
  

 

 

 

Initial capital contribution and purchase price allocation adjustments

   $ 93,275   
  

 

 

 

Transaction and Integration Costs  — Transaction and integration costs directly related to the acquisition, excluding the impact of restructuring costs and acquisition accounting adjustments, totaled $39.4 million, which were incurred by TMM Holdings and the Sponsors and are recorded in the consolidated statements of operations as transaction expenses.

 

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Unaudited supplemental pro-forma information  — The unaudited supplemental pro forma information presented below includes the effects of the acquisition of the Taylor Morrison and Monarch businesses as if it had been completed as of January 1, 2010. The pro forma results include (i) the impact of certain estimated fair value adjustments and (ii) interest expense associated with debt used to fund the acquisition. The pro forma results for the year ended December 31, 2010 and the period from January 1, 2011 through July 12, 2011 include adjustments for the financial impact of certain acquisition related items incurred during the period from July 13, 2011 through December 31, 2011. Accordingly, the following unaudited pro forma financial information should not be considered indicative of either future results or results that might have occurred had the acquisition been consummated as of January 1, 2010 (in thousands):

 

     For the
Year Ended
December 31, 2010
     For the
Period from
January 1 through
July 12, 2011
 

Total revenues

   $ 1,297,867       $ 619,735   

Net income

     148,284         57,603   

Use of Estimates  — The preparation of financial statements in accordance with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Significant estimates include the purchase price allocation, valuation of certain real estate, deferred tax assets valuation allowance and reserves for warranty and self-insured risks. Actual results could differ from those estimates.

Cash and Cash Equivalents  — Cash and cash equivalents consist of cash on hand, demand deposits with financial institutions, and short-term, highly liquid investments. We consider all highly liquid investments with original maturities of 90 days or less, such as certificates of deposit, money market funds, and commercial paper to be cash equivalents. Non-interest-bearing cash accounts are temporarily guaranteed for an unlimited amount, through December 31, 2012, and all other cash accounts are insured for up to $250,000. The Company’s cash is, in some cases, in excess of the federally insured limits by the Federal Deposit Insurance Corporation (FDIC) of up to $250,000. No losses have been experienced to date.

Restricted Cash  — Restricted cash consists of $3 million pledged to collateralize mortgage credit lines through certificates of deposit known as Certificate of Deposit Account Registry Service (CDARS) (see Note 16) and $2 million pledged for bonding capacity lines through certificates of deposit.

Concentration of Credit Risk  — Financial instruments that potentially subject us to concentrations of credit risk are primarily cash and cash equivalents. Cash and cash equivalents include amounts on deposit with financial institutions in excess of the FDIC federally insured limits. As of December 31, 2011, the Company has a $122.9 million receivable from the Predecessor Parent Company, which represents the indemnification of certain covered tax matters as agreed to in connection with the Acquisition. The Company has $15.0 million in standby letters of credit from the Predecessor Parent Company for a portion of this receivable. In addition, the Company is exposed to credit risk to the extent that mortgage and loan borrowers may fail to meet their contractual obligations. This risk is mitigated by collateralizing the mortgaged property or land that was sold to the buyer.

Loans Receivable  — Loans receivable consist of amounts due from land buyers and certain of our joint ventures, are generally secured by underlying land, bear interest at average interest rates of 5% and 0% as of December 31, 2011 and 2010, respectively, and mature at various dates through 2013. The Company imputes interest based on relevant market data for loans with no stated interest rate.

Mortgage Receivables  — Mortgage receivables consist of mortgages due from buyers of Taylor Morrison homes that are financed through Taylor Morrison’s mortgage brokerage subsidiary. Mortgages receivable are held for sale and are carried at fair value, which is calculated using observable market information, including pricing from actual market transactions, investor commitment prices, or broker quotations.

 

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Tax Indemnification Receivable  — The Predecessor Parent Company has indemnified TMM Holdings for specific uncertain tax positions existing as of the date of the transaction. An indemnification receivable was recorded at $129.7 million at Acquisition. The indemnification receivable also includes a periodic increase for accrued interest, penalties, and additional identified tax issues covered by the indemnity, offset by periodic decreases as uncertain tax matters and related tax obligations are resolved. The receivable due from the Predecessor Parent Company for the indemnification is valued at the same amount as the estimated income tax liability.

Other Receivables  — Our other accounts receivable primarily consist of amounts due from buyers of condominiums, as well as other amounts expected to be recovered from various community development districts and utility deposits. Allowances of $4 million and $3.5 million as of December 31, 2011 and 2010, respectively, are maintained for potential credit losses based on historical experience, present economic conditions, and other factors considered relevant by management.

Real Estate Inventory  — Inventory consists of land, land under development, homes under construction, completed homes, and model homes. Inventory is carried at cost, net of impairment charges. In addition to direct carrying costs, we also capitalize interest, real estate taxes, and related development costs that benefit the entire community, such as field construction supervision and related direct overhead. Home construction costs are accumulated and charged to cost of sales at home closing using the specific identification method. Land acquisition, development, interest, taxes, overhead, and condominium construction costs are allocated to homes and units using methods that approximate the relative sales value method. These costs are capitalized to inventory from the point development begins to the point construction is completed. For those communities that have been temporarily closed or development has been discontinued, we do not allocate interest or other costs to the community’s inventory until activity begins again. Changes in estimated costs to be incurred in a community are generally allocated to the remaining homes on a prospective basis.

In accordance with the provisions of ASC 360, Property, Plant, and Equipment , we review our real estate inventory for indicators of impairment by evaluating each community during each reporting period. In conducting our review for indicators of impairment on a community level, we evaluate, among other things, the margins on homes that have been delivered, margins on homes under 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 estimated fair value of the land itself. The Company pays particular attention to communities in which inventory is moving at a slower than anticipated absorption pace and communities whose average sales price and/or margins are trending downward and are anticipated to continue to trend downward. From this review, the Company identifies communities with indicators of impairment, and then performs additional analysis to determine if the carrying value exceeds the communities undiscounted cash flows. ASC 360 requires that companies evaluate long-lived assets that are expected to be held and used in operations, including inventories, for recoverability based on undiscounted future cash flows of the assets at the lowest level for which there are identifiable cash flows. If the carrying value of the assets exceeds their estimated undiscounted cash flows, then the assets are deemed to be impaired and are recorded at fair value as of the assessment date. The Company estimates the fair value of its communities using a discounted cash flow model. The projected cash flows for each community are significantly impacted by estimates related to market supply and demand, product type by community, 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. Every division evaluates the historical performance of each of its communities as well as current trends in the market and economy impacting the community and its surrounding areas. These trends are analyzed for each of the estimates listed above.

The Company’s projected cash flows are impacted by many assumptions. Some of the most critical assumptions in the Company’s cash flow model are projected absorption pace for home sales, sales prices and costs to build and deliver homes on a community by community basis.

 

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In order to arrive at the assumed absorption pace for home sales included in the Company’s cash flow model, the Company analyzes its historical absorption pace in the community as well as other comparable communities in the geographical area. In addition, the Company considers internal and external market studies and trends, which generally include, but are not limited to, statistics on population demographics, unemployment rates and availability of competing product in the geographic area where the community is located. When analyzing the Company’s historical absorption pace for home sales and corresponding internal and external market studies, the Company places greater emphasis on more current metrics and trends such as the absorption pace realized in its most recent quarters as well as forecasted population demographics, unemployment rates and availability of competing product.

In order to determine the assumed sales prices included in its cash flow models, the Company analyzes the historical sales prices realized on homes it delivered in the community and other comparable communities in the geographical area as well as the sales prices included in its current backlog for such communities. In addition, the Company considers internal and external market studies and trends, which generally include, but are not limited to, statistics on sales prices in neighboring communities and sales prices on similar products in non-neighboring communities in the geographic area where the community is located. When analyzing its historical sales prices and corresponding market studies, the Company also places greater emphasis on more current metrics and trends such as future forecasted sales prices in neighboring communities as well as future forecasted sales prices for similar products in non-neighboring communities.

In order to arrive at the Company’s assumed costs to build and deliver homes, the Company generally assumes a cost structure reflecting contracts currently in place with its vendors adjusted for any anticipated cost reduction initiatives or increases in cost structure. Costs assumed in the cash flow model for the Company’s communities are generally based on the rates the Company is currently obligated to pay under existing contracts with its vendors adjusted for any anticipated cost reduction initiatives or increases in cost structure.

Since the estimates and assumptions included in the Company’s cash flow models are based upon historical results and projected trends, they do not anticipate unexpected changes in market conditions or strategies that may lead the Company to incur additional impairment charges in the future. Using all available information, the Company calculates its best estimate of projected cash flows for each community. While many of the estimates are calculated based on historical and projected trends, all estimates are subjective and change from market to market and community to community as market and economic conditions change. The determination of fair value also requires discounting the estimated cash flows at a rate the Company believes a market participant would determine to be commensurate with the inherent risks associated with the assets and related estimated cash flow streams. The discount rate used in determining each asset’s fair value depends on the community’s projected life and development stage. For the period from July 13, 2011 through December 31, 2011, and the period from January 1, 2011 through July 12, 2011, no impairment charges were identified and recorded. We recorded inventory impairment charges, inclusive of land deposits write-offs, of $4.1 million, $78.2 million for the years ended December 31, 2010 and 2009, respectively. For the years ended December 31, 2010 and 2009, discount rates used in the discounted cash flows averaged 16.2% and 14.8%, respectively, with ranges from 14.0% to 19.5% in 2010, and 13.0% to 20.5% in 2009. Management believes these rates are commensurate with the risk associated with the related communities.

In certain cases, we may elect to stop development and/or marketing of an existing community if we believe the economic performance of the community would be maximized by deferring development for a period of time to allow market conditions to improve. The decision may be based on financial and/or operational metrics. If we decide to stop developing a project, we will impair such project if necessary to its fair value as discussed above and then cease future development and/or marketing activity until such a time when management believes that market conditions have improved and economic performance can be maximized. Quarterly, we review all communities, for potential impairments.

When we elect to stop development of a community, it is management’s belief that the community is affected by local market conditions that are expected to improve within the next 3 to 5 years. Therefore, a temporary

 

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postponement of construction and development is expected to yield better returns. For these communities, as well as our real estate held for development or sale, our assessment of the carrying value of these assets typically includes subjective estimates of future performance, including the timing of when development will recommence, the type of product to be offered, and the margin to be realized. In the future some of these inactive communities may be re-opened while others may be sold. As of December 31, 2011, we had 34 inactive communities with a carrying value of $55.1 million of which $25.0 and $30.1 million is in our West and East Region, respectively. During the twelve months ended December 31, 2011, we placed 14 communities into inactive status and moved 10 into active status.

The life cycle of a community generally ranges from three to five years, commencing with the acquisition of unentitled or entitled land, continuing through the land development phase, and concluding with the sale, construction, and delivery of homes. Actual community lives will vary based on the size of the community, the sales absorption rate, and whether we purchased the property as raw land or finished lots. As of December 31, 2011 and 2010, we were actively selling in 135 and 150 communities, respectively.

Inventory as of December 31, 2011 and 2010, consists of the following (in thousands):

 

     Successor
2011
     Predecessor
2010
 

Operating communities

   $ 830,573       $ 938,860   

Real estate held for development or sale

     172,909         129,997   

Consolidated real estate not owned

     —           5,096   
  

 

 

    

 

 

 

Total

   $ 1,003,482       $ 1,073,953   
  

 

 

    

 

 

 

Inventory impairment charges are recognized against all inventory costs of a community, such as land, land improvements, cost of home construction, and capitalized interest. Impairment charges of $4.1 million for the year ended December 31, 2010, represented $2.1 million, $0.5 million, and $1.5 million of write downs for operating communities, land owned and controlled, and terminated land options, respectively. Impairment charges of $78.2 million for the year ended December 31, 2009, represented $71.6 million, $3.8 million, and $2.8 million or write downs for operating communities, land owned and controlled, and terminated land options, respectively.

Capitalized Interest  — We capitalize certain interest costs to inventory during the development and construction periods. Capitalized interest is charged to cost of sales when the related inventory is delivered or when the related inventory is charged to cost of sales under the percentage-of-completion method of accounting. Interest capitalized, incurred, and expensed as of December 31, 2011 and 2010, and during the related periods is as follows (in thousands):

 

     Successor      Predecessor  
     July 13
Through
December 31,
2011
     January 1
Through
July 12,
2011
    For the
Year Ended
December 31,
2010
    For the
Year Ended
December 31,
2009
 

Interest capitalized — beginning of period

   $ 0       $ 68,202      $ 68,185      $ 64,903   

Interest capitalized

     37,605         23,091        37,282        53,230   

Interest amortized to cost of sales and impairments

     (10,114      (19,422     (37,370     (50,354

Foreign currency adjustment

     —           51        105        406   
  

 

 

    

 

 

   

 

 

   

 

 

 

Interest capitalized — end of period

   $ 27,491       $ 71,922      $ 68,202      $ 68,185   
  

 

 

    

 

 

   

 

 

   

 

 

 

Interest incurred was $37.6 million during the period from July 13, 2011 through December 31, 2011, $23.1 million during the period from January 1, 2011 through July 12, 2011, $85.7 million and $87.7 million for the years ended December 31, 2010 and 2009, respectively.

 

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Land Deposits  — Deposits we pay related to land options and land purchase contracts are capitalized when paid and classified as land deposits until the associated property is purchased. Deposits are recorded as a component of inventory at the time the deposit is applied to the acquisition price of the land based on the terms of the underlying agreements. To the extent the deposits are nonrefundable, deposits are charged to expense if the land acquisition process is terminated or no longer determined probable. We review the likelihood of the acquisition of contracted lots in conjunction with our periodic real estate impairment analysis.

We are subject to the usual obligations associated with entering into contracts (including option contracts) for the purchase, development, and sale of real estate in the routine conduct of our business. We have a number of land purchase option contracts, generally through cash deposits or letters of credit, for the right to purchase land or lots at a future point in time with predetermined terms. We do not have title to the property and the creditors generally have no recourse against us, except in Canada where sellers have full recourse under statutory regulations. Our obligations with respect to the option contracts are generally limited to the forfeiture of the related nonrefundable cash deposits and/or letters of credit. As of December 31, 2011 and 2010, we had the right to purchase approximately 4,523 and 3,472 lots under land option and land purchase contracts, respectively, which represents purchase commitments of $239.5 million and $124.8 million as of December 31, 2011 and 2010, respectively. As of December 31, 2011, we had $13.6 million in land deposits and $43.6 million in letters of credit related to land options and land purchase contracts. As of December 31, 2010, we had $6 million in land deposits and $11.1 million in letters of credit related to land options and land purchase contracts.

For the years ended December 31, 2010 and 2009, we incurred pretax charges of $1.5 million and $2.8 million, respectively, related to the impairment of option deposits and capitalized preacquisition costs for abandoned projects, which is included in inventory impairments in the accompanying consolidated statements of operations. We continue to evaluate the terms of open land option and purchase contracts in light of housing market conditions and may impair additional option deposits and capitalized preacquisition costs in the future, particularly in those instances where land sellers or third-party financial entities are unwilling to renegotiate significant contract terms.

Investments in Unconsolidated Entities and Variable Interest Entities (VIEs)  — In the ordinary course of business, we enter into land and lot option purchase contracts in order to procure land or lots for the construction of homes. Lot option contracts enable us to control significant lot positions with a minimal capital investment and substantially reduce the risks associated with land ownership and development. In June 2009, the FASB revised its guidance regarding the determination of a primary beneficiary of a VIE.

In accordance with ASC 810, Consolidation , we have concluded that when we enter into an option or purchase agreement to acquire land or lots and pay a nonrefundable deposit, a VIE may be created because we are deemed to have provided subordinated financial support that will absorb some or all of an entity’s expected losses if they occur. For each VIE, we assess whether we are the primary beneficiary by first determining if we have the ability to control the activities of the VIE that most significantly affect its economic performance. Such activities include, but are not limited to, the ability to determine the budget and scope of land development work, if any; the ability to control financing decisions for the VIE; the ability to acquire additional land into the VIE or dispose of land in the VIE not under contract with the Company; and the ability to change or amend the existing option contract with the VIE. If we are not able to control such activities, we are not considered the primary beneficiary of the VIE. If we do have the ability to control such activities, we will continue our analysis by determining if we are expected to absorb a potentially significant amount of the VIE’s losses or, if no party absorbs the majority of such losses, if we will potentially benefit from a significant amount of the VIE’s expected gains. If we are the primary beneficiary of the VIE, we will consolidate the VIE in our consolidated financial statements and reflect such assets and liabilities as consolidated real estate not owned within our inventory balance in the accompanying consolidated balance sheets. We currently have no VIE’s that we consolidate. Our exposure to loss related to our option contracts with third parties and unconsolidated entities consisted of our nonrefundable option deposits totaling $13.6 million and $6 million, as of December 31, 2011 and 2010, respectively. Additionally, we posted $43.6 million and $11.1 million of letters of credit in lieu of cash deposits under certain

 

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option contracts as of December 31, 2011 and 2010, respectively. Creditors of these VIEs, if any, have no recourse against us.

We are also involved in several joint ventures with independent third parties for our homebuilding activities. We use the equity method of accounting for investments that qualify as VIEs where we are not the primary beneficiary and entities that we do not control or where we do not own a majority of the economic interest, but have the ability to exercise significant influence over the operating and financial policies of the investee. For those unconsolidated entities in which we function as the managing member, we have evaluated the rights held by our joint venture partners and determined that they have substantive participating rights that preclude the presumption of control. For joint ventures accounted for using the equity method, our share of net earnings or losses is included in equity in net income of unconsolidated entities when earned and distributions are credited against our investment in the joint venture when received. See Note 3 for financial statement information related to unconsolidated entities.

We evaluate our investments in unconsolidated entities for indicators of impairment during each reporting period. A series of operating losses of an investee or other factors may indicate that a decrease in value of the Company’s investment in the unconsolidated entity has occurred which is other-than-temporary. The amount of impairment recognized is the excess of the investment’s carrying amount over its estimated fair value.

The evaluation of the Company’s investment in unconsolidated entities includes certain critical assumptions made by management: (1) projected future distributions from the unconsolidated entities, (2) discount rates applied to the future distributions and (3) various other factors. The Company’s assumptions on the projected future distributions from the unconsolidated entities are dependent on market conditions. Specifically, distributions are dependent on cash to be generated from the sale of inventory by the unconsolidated entities. Such inventory is also reviewed for potential impairment by the unconsolidated entities. The unconsolidated entities generally use a discount rate of approximately 12-18% in their reviews for impairment, subject to the perceived risks associated with the community’s cash flow streams relative to its inventory. If a valuation adjustment is recorded by an unconsolidated entity related to its assets, the Company’s proportionate share is reflected in the equity in loss from unconsolidated entities with a corresponding decrease to its investment in unconsolidated entities.

Additionally, the Company considers various qualitative factors to determine if a decrease in the value of the investment is other-than-temporary. These factors include age of the venture, stage in its life cycle, intent and ability for the Company to recover its investment in the entity, financial condition and long-term prospects of the entity, short-term liquidity needs of the unconsolidated entity, trends in the general economic environment of the land, entitlement status of the land held by the unconsolidated entity, overall projected returns on investment, defaults under contracts with third parties (including bank debt), recoverability of the investment through future cash flows and relationships with the other partners. If the Company believes that the decline in the fair value of the investment is temporary, then no impairment is recorded.

Merger and Restructuring Costs  — As a result of the July 2007 combination of Taylor Woodrow Holdings (USA), Inc., and Morrison Homes, Inc., the Company incurred total merger and restructuring charges of $34.9 million. Although a significant portion of the merger and restructuring charges were recorded in 2007, the Company incurred restructuring related costs of $1.7 million for the year ended December 31, 2009, which was included in other expense in the accompanying consolidated statements of operations. The liability for restructuring costs of $3 million and $3.8 million which is included in accrued expenses and other liabilities at December 31, 2011 and 2010, respectively, relate to lease termination costs that will be paid through March of 2016.

Noncontrolling Interests  — We consolidate joint ventures when we are the primary beneficiary. Therefore, those entities’ financial statements are consolidated in the Company’s consolidated financial statements and the other partners’ equity is recorded as noncontrolling interests.

 

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Goodwill  — The excess of the purchase price of a business acquisition over the net fair value of assets acquired and liabilities assumed is capitalized as goodwill in accordance with ASC 350, Intangibles — Goodwill and Other . ASC 350 requires that goodwill and intangible assets that do not have finite lives not be amortized, but instead be assessed for impairment at least annually or more frequently if certain impairment indicators are present. No goodwill impairment charges were recorded in 2010 and 2009 and for the period from January 1, 2011 through July 12, 2011. There was no goodwill recorded in connection with the Acquisition on July 13, 2011 (see Note 4).

Property and Equipment  — Property and equipment are stated at cost, less accumulated depreciation. Gross property and equipment at December 31, 2011 and 2010, consist of $7.9 million and $18.2 million, respectively. Accumulated depreciation related to these assets was $1.7 million and $11.2 million at December 31, 2011 and 2010, respectively. Depreciation expense was $1.7 million for the period from July 13, 2011 through December 31, 2011, $1.6 million for the period from January 1, 2011 through July 12, 2011, $3.3 million and $2.5 million for the years ended December 31, 2010 and 2009, respectively and is recorded in general and administrative expenses in the accompanying Consolidated and Combined Statements of Operations. Depreciation is generally computed using the straight-line method over the estimated useful lives of the assets, ranging from 3 to 40 years. Maintenance and repair costs are expensed as incurred.

Income Taxes  — We account for income taxes in accordance with ASC 740, Income Taxes . Deferred tax assets and liabilities are recorded based on future tax consequences of both temporary differences between the amounts reported for financial reporting purposes and the amounts deductible for income tax purposes, and are measured using enacted tax rates expected to apply in the years in which the 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 earnings in the period when the changes are enacted.

In accordance with the provisions of ASC 740, we periodically assess our deferred tax assets, including the benefit from net operating losses (NOLs), to determine if a valuation allowance is required. A valuation allowance must be established when, based upon available evidence, it is more likely than not that all or a portion of the deferred tax assets will not be realized. Realization of the deferred tax assets is dependent upon, among other matters, taxable income in prior years available for carryback, estimates of future income, tax planning strategies, and reversal of existing temporary differences. Given the downturn in the homebuilding industry over the past several years, the degree of the economic recession, the instability and deterioration of the financial markets, and the resulting uncertainty in projections of our future taxable income, we recorded a full valuation allowance against our deferred tax assets during 2007. Taylor Morrison continues to maintain a valuation allowance against net deferred tax assets at December 31, 2011, 2010 and 2009, as we have determined that the weight of the negative evidence exceeds that of the positive evidence and it continues to be more likely than not that we will not be able to utilize all of our deferred tax assets.

Insurance Costs and Self-Insurance Reserves  — We have certain deductible limits under our workers’ compensation, automobile, and general liability insurance policies, and we record expense and liabilities for the estimated costs of potential claims for construction defects. The excess liability limits are $50 million per occurrence in the annual aggregate and apply in excess of automobile liability, employers liability under workers compensation and general liability primary policies. We also generally require our subcontractors and design professionals to indemnify us for liabilities arising from their work, subject to certain limitations. We are the parent of Beneva Indemnity Company (“Beneva”), which provides insurance coverage for construction defects discovered during a period of time up to 10 years following the sale of a home, coverage for premise operations risk, and property coverage. We accrue for the expected costs associated with the deductibles and self-insured amounts under our various insurance policies based on historical claims, estimates for claims incurred but not reported, and potential for recovery of costs from insurance and other sources. The estimates are subject to significant variability due to factors, such as claim settlement patterns, litigation trends, and the extended period of time in which a construction defect claim might be made after the closing of a home.

 

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Warranty Reserves:

U.S. Operations  — We offer warranties on our homes that generally provide for one-year warranties to cover various defects in workmanship or materials and 10 years to cover structural construction defects. Warranty reserves are established as homes close in an amount estimated to be adequate to cover expected costs of materials and outside labor during warranty periods. Our warranty reserves are based on factors that include an actuarial study (for structural warranty), historical and anticipated warranty claims, trends related to similar product types, number of home closings, and geographical areas. The structural warranty is carried by Beneva, a wholly owned subsidiary of Taylor Morrison. We also provide third-party warranty coverage on homes where required by Federal Housing Administration or Veterans Administration lenders.

Canadian Operations  — We offer a limited warranty that generally provides for seven years of structural coverage; two years of coverage for water penetration, electrical, plumbing, heating, and exterior cladding defects; and one year of coverage for workmanship and materials. We are responsible for performing all of the work during the warranty period. As a result, warranty reserves are established as homes close in an amount estimated to be adequate to cover expected costs of materials and labor during warranty periods. The warranty reserves are determined using historical experience and trends related to similar product types, and number of home closings.

We regularly review the reasonableness and adequacy of our recorded warranty reserves and make adjustments to the balance of the preexisting reserves to reflect changes in trends and historical data as information becomes available. Warranty reserves are included in accrued expenses and other liabilities in the accompanying consolidated and combined balance sheets. A summary of changes in our self-insurance and warranty reserves at and during the years ended December 31, 2011 and 2010, are as follows (in thousands):

 

     Successor      Predecessor  
     July 13
Through
December 31,
2011
     January 1
Through
July 12,
2011
    For the
Year Ended
December 31,
2010
    For the
Year Ended
December 31,
2009
 

Reserve — beginning of period

   $ 45,929       $ 50,069      $ 52,222      $ 52,578   

Purchase price allocation adjustments

     (2,731      —          —          —     

Additions to reserves

     2,950         9,634        10,753        19,161   

Costs and claims incurred

     (15,428      (16,267     (22,051     (20,238

Change in estimates to preexisting reserves

     13,036         2,346        8,866        (80

Foreign currency adjustment

     (598      147        279        801   
  

 

 

    

 

 

   

 

 

   

 

 

 

Reserve — end of period

   $ 43,158       $ 45,929      $ 50,069      $ 52,222   
  

 

 

    

 

 

   

 

 

   

 

 

 

Revenue Recognition:

Home Sales  — Revenues from home sales are recorded using the completed contract method of accounting at the time each home is delivered, title and possession are transferred to the buyer, there is no significant continuing involvement with the home, and the buyer has demonstrated sufficient initial and continuing investment in the property.

Condominium Sales  — Revenues from the sale of condominium units is recognized when construction is beyond the preliminary stage, the buyer is committed to the extent of being unable to require a refund except for non-delivery of the unit, sufficient units in the project have been sold to ensure that the property will not be converted to a rental property, the sales proceeds are collectible, and the aggregate sales proceeds and the total cost of the project can be reasonably estimated. For our Canadian high rise condominiums, these conditions are met when a certificate of occupancy has been received, all significant conditions of registration have been performed and the purchaser has the right to occupy the unit.

 

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Land Sales  — Revenues from land sales are recognized when title is transferred to the buyer, there is no significant continuing involvement, and the buyer has demonstrated sufficient initial and continuing investment in the property sold. If the buyer has not made an adequate initial or continuing investment in the property, the profit on such sales is deferred until these conditions are met.

Financial Services Revenues  — Revenues from loan origination are recognized at the time the related real estate transactions are completed, usually upon the close of escrow. All of the loans Taylor Morrison Home Funding, LLC (TMHF) originates are sold within a short period of time, generally 10 days, on a nonrecourse basis as further described in Note 16. After the loans are sold, the Company retains potential liability for possible claims by purchasers that it breached certain limited industry-standard representations and warranties in the loan sale agreement. Gains or losses from the sale of mortgages are recognized based on the difference between the selling price and carrying value of the related loans upon sale.

Deposits  — Forfeited buyer deposits related to home, condominium, and land sales are recognized in other income in the accompanying consolidated statements of operations in the period in which we determine that the buyer will not complete the purchase of the property and the deposit is determined to be nonrefundable to the buyer.

Sales Discounts and Incentives  — We grant our home buyers sales discounts and incentives from time to time, including cash discounts, discounts on options included in the home, option upgrades, and seller-paid financing or closing costs. Discounts are accounted for as a reduction in the sales price of the home.

Advertising Costs  — We expense advertising costs as incurred. Advertising costs were $6.1 million for the period from July 13, 2011 through December 31, 2011, $7 million for the period from January 1, 2011 through July 12, 2011, and $14.9 million and $18.1 million for the years ended December 31, 2010 and 2009, respectively.

Earnings per Unit  — Basic earnings per unit is computed by dividing net earnings attributable to Owners by the weighted average number of common units outstanding for the period. Diluted earnings per unit reflects the potential dilution that could occur if securities or other contracts to issue partnership units were exercised or converted into partnership units that then shared in earnings of the Company.

Recently Issued Accounting Pronouncements  — In May 2011, the FASB issued Accounting Standards Update (ASU) 2011-04, which amended ASC 820, Fair Value Measurements , providing a consistent definition and measurement of fair value, as well as similar disclosure requirements between U.S. GAAP and International Financial Reporting Standards. ASU 2011-04 changes certain fair value measurement principles, clarifies the application of existing fair value measurement, and expands the disclosure requirements. ASU 2011-04 will be effective for us beginning January 1, 2012. The adoption of ASU 2011-04 is not expected to have a material effect on our consolidated financial statements or disclosures.

In June 2011, the FASB issued ASU 2011-05, Presentation of Comprehensive Income . ASU 2011-05 requires the presentation of comprehensive income in either (i) a continuous statement of comprehensive income or (ii) two separate, but consecutive statements. ASU 2011-05 eliminates the option to present the components of other comprehensive income as part of the statement of changes in stockholders’ equity. The amendments in this ASU do not change the items that must be reported in other comprehensive income or when an item of other comprehensive income must be reclassified to net income. ASU 2011-05 should be applied retrospectively and is effective for public entities for fiscal years, and interim periods within those years, beginning after December 15, 2011, with early adoption permitted. As a result of the adoption of ASU 2011-05 the Company added separate, but consecutive statements of comprehensive income.

 

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3. INVESTMENTS IN UNCONSOLIDATED ENTITIES

We participate in a number of joint ventures with unrelated third parties. These entities are generally involved in real estate development or mortgage lending and title services. We use the equity method of accounting for our investments in unconsolidated entities, which are not VIEs and which we do not control, but normally have ownership interests up to 50%.

Summarized condensed financial information of unconsolidated entities that are accounted for by the equity method as of and for the years ended December 31, 2011 and 2010, is as follows (in thousands):

 

Balance Sheets    Successor
2011
     Predecessor
2010
 

Assets:

       

Inventories

   $ 354,243       $ 232,399   

Other assets

     86,057         126,104   
  

 

 

    

 

 

 

Total assets

   $ 440,300       $ 358,503   
  

 

 

    

 

 

 

Liabilities and owners’ equity:

       

Debt

   $ 135,065       $ 43,649   

Other liabilities

     262,412         246,016   
  

 

 

    

 

 

 

Total liabilities

     397,477         289,665   
  

 

 

    

 

 

 

Owners’ equity:

       

TMM Holdings

     18,596         27,544   

Others

     24,227         41,294   
  

 

 

    

 

 

 

Total owners’ equity

     42,823         68,838   
  

 

 

    

 

 

 

Total liabilities and owners’ equity

   $ 440,300       $ 358,503   
  

 

 

    

 

 

 

 

     Successor      Predecessor  
Statements of Operations    July 13
Through
December 31,
2011
     January 1
Through
July 12,
2011
    For the
Year Ended
December 31,
2010
    For the
Year Ended
December 31,
2009
 

Revenues

   $ 77,426       $ 22,374      $ 113,476      $ 146,715   

Costs and expenses

     (61,860      (17,027     (89,516     (146,149
  

 

 

    

 

 

   

 

 

   

 

 

 

Net earnings of unconsolidated entities

   $ 15,566       $ 5,347      $ 23,960      $ 566   
  

 

 

    

 

 

   

 

 

   

 

 

 

Company’s share in net earnings of unconsolidated entities

   $ 5,247       $ 2,803      $ 5,319      $ 347   
  

 

 

    

 

 

   

 

 

   

 

 

 

We have investments in, and advances to, a number of joint ventures with unrelated parties to develop land and to develop condominium projects, including for-sale residential units and commercial space. Some of these joint ventures develop land for the sole use of the venture participants, including us, and others develop land for sale to the joint venture participants and to unrelated builders. Our share of the joint venture profit relating to lots we purchase from the joint ventures is deferred until homes are delivered by us and title passes to a homebuyer.

The investment in unconsolidated entities on the accompanying consolidated balance sheets includes the fair value adjustments as a result of purchase accounting, while the amounts in this note represent the original equity amounts. Fair value adjustments for the Company’s investment in unconsolidated entities are recorded at the Company level and are amortized against the Company’s share of earnings of the underlying joint ventures as the underlying joint venture assets are sold.

 

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4. GOODWILL AND OTHER INTANGIBLE ASSETS

In April 2009, Taylor Morrison purchased the remaining 35% membership interest in TMHF, a subsidiary of Mortgage Funding Direct Ventures, LLC (MFDV), along with the remaining 35% of the voting shares of common stock in MHF, Inc. The purchase price for the interest and shares totaled $4.1 million, which resulted in $3.8 million in goodwill. Prior to this transaction, we held a 65% ownership interest in TMHF and MHF, Inc., and had been consolidating these entities with our operations. In June 2009, we purchased the total interest in MFDV from one of our corporate officers for a nominal amount. In conjunction with the July 13, 2011 Acquisition, the goodwill balance was written down to $0 as of July 13, 2011.

In October 2009, Taylor Morrison acquired from the Predecessor Parent Company certain U.S. intellectual property rights (IPR), which include trademarks, logos, and domain names, that are integral to its U.S. operations. Prior to our acquisition, royalty fees paid to the Predecessor Parent Company in 2009 for the use of the IPR were $3.2 million. In September 2010, Monarch acquired from the Predecessor Parent Company certain Canadian IPR similar to those acquired by Taylor Morrison. Prior to our acquisition, Monarch paid the Predecessor Parent Company $0.2 million and $1 million in royalty fees during 2010 and 2009, respectively. These rights are recorded in the accompanying consolidated financial statements at the Predecessor Parent Company’s carrying value of $0 in accordance with U.S. GAAP for transfers of assets between entities under common control. The amounts paid of $3.3 million and $7.6 million in 2010 and 2009, respectively, are reflected as distributions to Predecessor Parent Company.

In conjunction with the Acquisition, the Company performed an analysis on the fair value of the trade names using the income approach, and concluded that the fair value of the Taylor Morrison trade name was $4.1 million and the fair value of the Monarch trade name was $6.1 million. These amounts are being amortized over a 10-year period, and the amortization expense recorded during the period from July 13, 2011 through December 31, 2011, was $0.5 million. Annual amortization expense is estimated to be $1.1 million in each of the next five years.

5. PREPAID EXPENSES AND OTHER ASSETS

Prepaid expenses and other assets as of December 31, 2011 and 2010, consist of the following (in thousands):

 

     Successor
2011
     Predecessor
2010
 

Prepaid expenses

   $ 37,832       $ 43,940   

Other assets

     12,421         7,834   
  

 

 

    

 

 

 

Total prepaid expenses and other assets

   $ 50,253       $ 51,774   
  

 

 

    

 

 

 

Our prepaid expenses consist primarily of prepaid sales commissions, sales presentation centers, and model home costs, such as design fees and furniture. The prepaid sales commissions are recorded on preclosing sales activities, which are recognized on the ultimate closing of the units to which they relate. The model home and sales presentation centers costs are paid in advance and amortized over the life of the project on a per-unit basis, or a maximum of three years. Other assets consist primarily of various operating and escrow deposits, golf club membership inventory, preacquisition costs, and other deferred costs.

 

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6. ACCRUED EXPENSES AND OTHER LIABILITIES

Accrued expenses and other liabilities as of December 31, 2011 and 2010, consist of the following (in thousands):

 

     Successor
2011
     Predecessor
2010
 

Real estate development costs to complete

   $ 45,670       $ 46,393   

Compensation and employee benefits

     33,518         35,059   

Insurance, litigation reserves, and other professional fees

     19,917         19,534   

Self-insurance and warranty reserves

     43,158         50,069   

Interest payable

     17,322         11,698   

Merger and restructuring reserves

     2,803         3,760   

Property and sales taxes payable

     9,616         14,566   

Other accruals

     22,648         19,901   
  

 

 

    

 

 

 

Total accrued expenses and other liabilities

   $ 194,652       $ 200,980   
  

 

 

    

 

 

 

7. NET PAYABLE TO THE PREDECESSOR PARENT COMPANY

Amounts payable to the Predecessor Parent Company as of December 31, 2010, consist of the following (in thousands):

 

Loan payable — George Wimpey, plc (“GW Loan”)

   $   

Note payable — George Wimpey, plc Revolving Line (“GW Revolving Line”)

  

Loan payable — Taylor Woodrow, plc (“TWPLC Loan”)

     529,997   

Funds on deposit with Predecessor Parent Company

     (30,062
  

 

 

 

Total net payable to the Predecessor Parent Company

   $ 499,935   
  

 

 

 

During 2010 and until July 12, 2011, Taylor Morrison’s funds on deposit with the Predecessor Parent Company were offset against the amount of term and revolving debt in accordance with the conditions set by the Predecessor Parent Company regarding cash retention. The Predecessor Parent Company, in its discretion, was able to offset any outstanding debt with cash collected from the respective subsidiaries.

In December 2010, the Predecessor Parent Company recapitalized Taylor Morrison by contributing capital and settling certain of the loans and notes payable with funds that were on deposit with and due from the Predecessor Parent Company (the “Recapitalization”).

 

a. The GW Loan, GW Revolving Line, and TWPLC Loan debt facilities payable to the Predecessor Parent Company had the following terms:

GW Loan  — 6.44% interest per annum, compounded annually, and paid annually on December 20 of each year. This note was settled in December 2010, as part of the recapitalization of Taylor Morrison by the Predecessor Parent Company.

GW Revolving Line  — Interest accrued at a rate of London InterBank Offered Rate (LIBOR), plus 2.05%. This note was settled in December 2010, as part of the recapitalization of Taylor Morrison by the Predecessor Parent Company.

TWPLC Loan  — 7.02% interest per annum, compounded annually, and paid semiannually. Principal balance and unpaid interest payable were due on December 20, 2010; however, the Predecessor Parent Company had extended the maturity of this loan to July 15, 2011, and subsequently converted the loan into

 

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equity prior to the 2011 Acquisition. Accrued interest payable as of December 31, 2010, was $0.5 million and was included as a reduction of funds on deposit with the Predecessor Parent Company in the table above. The balance of the TWPLC Loan on the date of the 2010 Recapitalization was $755.1 million and was reduced by $225.2 million recorded as capital contributed by the Predecessor Parent Company.

During the year ended December 31, 2010, through the date of Recapitalization, various other intercompany accounts were settled for an additional $17.2 million that was contributed to the Company by the Predecessor Parent Company.

 

b. The Predecessor Parent Company paid interest monthly on funds it held on deposit at rates that are based upon LIBOR and are adjusted periodically. Interest rates were 0.26% and 0.23% as of December 31, 2010 and 2009, respectively. Interest earned from the Predecessor Parent Company from funds held on deposit was $9,000 during the period from January 1, 2011 through July 12, 2011, $1.2 million and $1.2 million during 2010 and 2009, respectively.

For the period from January 1, 2011 through July 12, 2011, and for the years ended December 31, 2010 and 2009, interest expense incurred related to the above debt was $19.2 million, $80.5 million and $78.6 million, respectively, and, after deducting capitalized interest, is included in interest (income) expense — net in the accompanying consolidated statements of operations. Of the interest expense incurred related to the above debt, $19.2 million, $36.6 million and $52.8 million was capitalized to inventory during the period from January 1, 2011 through July 12, 2011, and for the years ended December 31, 2010 and 2009, respectively.

8. LOANS PAYABLE AND OTHER BORROWINGS

Loans payable and other borrowings as of December 31, 2011 and 2010, consist of the amounts due to land sellers. Loans payable bear interest at rates that ranged from 0% to 7% at both December 31, 2011 and 2010, and generally are secured by the land that was acquired with the loans. The Company imputes interest for loans with no stated interest rates. As of December 31, 2011 and 2010, we were in compliance with all loan terms and covenants.

Principal maturities of loans payable and other borrowings for each of the next five years ending December 31 are as follows (in thousands):

 

Years Ending

December 31

      

2012

   $ 72,653   

2013

     4,504   

2014

     553   

2015

     415   

2016

     498   
  

 

 

 

Total loans payable and other borrowings

   $ 78,623   
  

 

 

 

9. LONG-TERM DEBT

Long-term debt at December 31, 2011, consists of related-party borrowings obtained from affiliates of TPG and investment funds managed by Oaktree Capital Management as part of the Acquisition of the Company on July 13, 2011 (the “Notes”).

 

a.

The loan agreement dated July 13, 2011, consisted of a $625 million senior unsecured term loan and was made between the Company and related parties of the Sponsors. The Notes have a maturity date of July 13, 2018, at which time all loan amounts become due. The Notes were issued at a discount of 2.5% for $500 million of the balance and at par for the remaining $125 million balance. The outstanding balance of the Notes, net of unamortized original issue discount as of December 31, 2011, was $488.4 million.

 

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  Amortization expense of the discount was $0.9 million for the period from July 13, 2011 through December 31, 2011, and is included in interest expense in the accompanying consolidated statements of operations.

 

b. The Notes bear a 13% annual interest rates calculated on a 360-day year. Interest amounts are paid quarterly on the final day of the period. No interest was unpaid and accrued as of December 31, 2011.

 

c. In August 2011, $125 million of the Notes were repaid by Monarch from operating cash in accordance with the planned capitalization structure of the Sponsors.

For the period from July 13, 2011 through December 31, 2011, interest expense incurred related to the above debt was $31 million, and after deducting capitalized interest, is included in interest expense — net in the accompanying consolidated statements of operations. Of the interest expense incurred related to the above debt, $31 million was capitalized to inventory during the period from July 13, 2011 through December 31, 2011.

In conjunction with the July 13, 2011, transaction, the Company finalized a $75 million revolving line of credit with Credit Suisse, HSBC, and Deutsche Bank, secured by the underlying assets of the U.S. operations. Borrowings under the senior secured revolving credit facility (the “Credit Facility”) may be made in U.S. dollars and in Canadian dollars (subject to a U.S. $15.0 million sublimit) and bear interest based upon either a LIBOR or CDOR interest rate option, as applicable, or a base rate or Canada prime rate option, as applicable, as selected by the borrowers plus, in each case, an applicable margin. The Credit Facility matures on July 13, 2016. The applicable margin for (a) any Eurodollar Rate Loan or CDOR Rate Loan is 3.25% per annum, payable on the last date of each applicable interest period or at the end of each three-month period if the applicable interest period is longer than three months and (b) any Base Rate Loan or Canadian Prime Rate Loan, 2.25% per annum, payable quarterly. There is a fee of 0.75% per annum on the commitment (whether drawn or undrawn), payable quarterly in arrears, and subject to a 25 basis point reduction upon the completion of the second full quarter after the closing date based upon the achievement of a specified capitalization ratio. The borrowers have the right to make “amend and extend” offers to lenders of a particular class. No draws have been made under the Credit Facility and there was no outstanding balance at December 31, 2011.

In connection with the acquisition of the credit line, the Company capitalized $3.8 million of financing fees and incurred amortization of $0.4 million for the period from July 13, 2011 through December 31, 2011. Capitalized finance fees are included in prepaid expenses and other assets on the consolidated balance sheets.

The Credit Facility contains certain “springing” financial covenants. In the event that, either there are (a) any loans outstanding thereunder on the last day of any fiscal quarter or on more than five separate days of such fiscal quarter or (b) any unreimbursed letters of credit thereunder on the last day of such fiscal quarter or for more than five consecutive days of such fiscal quarter, we will be required to, in respect of such fiscal quarter, comply with a maximum capitalization ratio test as well as a minimum interest coverage ratio test.

The Credit Facility also contains customary restrictive covenants, including limitations on incurrence of indebtedness, incurrence of liens, dividends and other distributions, asset dispositions, investments, sale and leasebacks, passive holding entities (with respect to TMM Holdings, Taylor Morrison Holdings, Inc., Monarch Communities Inc. and Monarch Parent Inc.) and limitation on debt payments and amendments.

The Credit Facility contains customary events of default, subject to applicable grace periods, including for nonpayment of principal, interest or other amounts, violation of covenants (including financial covenants, subject to the exercise of an equity cure), incorrectness of representations and warranties in any material respect, cross default and cross acceleration, bankruptcy, material monetary judgments, ERISA events with material adverse effect, actual or asserted invalidity of material guarantees, material security or intercreditor agreements or subordination provisions, and change of control. As of December 31, 2011 we were in compliance with our covenants.

 

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10. FAIR VALUE DISCLOSURES

We have adopted ASC 820 for fair value measurements of our financial instruments. ASC 820 provides a framework for measuring fair value under U.S. GAAP, expands disclosures about fair value measurements, and establishes a fair value hierarchy, which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. The three levels of the fair value hierarchy are summarized as follows:

Level 1  — Fair value is based on quoted prices in active markets for identical assets or liabilities.

Level 2  — Fair value is determined using significant observable inputs, generally either quoted prices in active markets for similar assets or liabilities, or quoted prices in markets that are not active.

Level 3  — Fair value is determined using one or more significant input that is unobservable in active markets at the measurement date, such as a pricing model, discounted cash flow, or similar technique.

As described in Note 2 and in conjunction with the Acquisition, all assets and liabilities of the Company were adjusted to fair value using significant Level 3 unobservable assumptions and valuation inputs. Our nonfinancial assets measured at fair value on a nonrecurring basis for the years ended December 31, 2010 and 2009, are as follows (in thousands):

 

     Predecessor
Fair Value Measurements, Year Ended
December 31, 2010
 
Description    Quoted
Prices in
Active
Markets
(Level 1)
    

Significant
Other
Observable
Inputs

(Level 2)

    

Significant
Unobservable
Inputs

(Level 3)

     Total  

Housing projects and land under development

   $ —         $ —         $ 5,933       $ 5,933   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ —         $ —         $ 5,933       $ 5,933   
  

 

 

    

 

 

    

 

 

    

 

 

 
     Predecessor
Fair Value Measurements, Year Ended
December 31, 2009
 
Description    Quoted
Prices in
Active
Markets
(Level 1)
     Significant
Other
Observable
Inputs
(Level 2)
     Significant
Unobservable
Inputs (Level 3)
     Total  

Housing projects and land under development

   $ —         $ —         $ 148,048       $ 148,048   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ —         $ —         $ 148,048       $ 148,048   
  

 

 

    

 

 

    

 

 

    

 

 

 

During the year ended December 31, 2010, in accordance with ASC 360, certain housing projects and land under development were written down to a fair value of $5.9 million, resulting in an inventory impairment charge of $2.5 million. During the year ended December 31, 2009, in accordance with ASC 360, certain housing projects and land under development were written down to a fair value of $148 million, resulting in an inventory impairment charge of $75.4 million. Fair values for housing projects and land under development using Level 3 inputs were primarily based on the estimated future cash flows discounted for inherent risk associated with each asset. In 2010, discount rates used in our fair value estimates ranged from 14% to 19.5%. In 2009, discount rates used in our fair value estimates ranged from 13.0% to 20.5%. These discounted cash flows are impacted by the expected risk based on estimated land development, construction, and delivery timelines; market risk from potential future price erosion; cost uncertainty due to development or construction cost increases; and other risks specific to the asset or conditions in the market in which the asset is located at the time the assessment is made. These factors are specific to each community and may vary among communities.

 

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Mortgage receivables and mortgage borrowings attributable to Taylor Morrison are recorded at fair value which are considered a level 2 valuation in the hierarchy of fair value calculated using observable market information, including pricing from actual market transactions, investor commitment prices, or broker quotations. Loans receivable are recorded at fair value, which is considered a level 2 valuation in the hierarchy of fair value calculated using observable market information, which exceeds the face value by approximately $0.7 million and $2.4 million as of December 31, 2012 and December 31, 2011, respectively.

At December 31, 2011, the carrying value of our loans payable and other borrowings had a fair value of approximately $79 million. At December 31, 2010, the carrying value of our loans payable and other borrowings had a fair value of approximately $100 million. The estimated fair values of our loans payable are considered a level 2 valuation in the hierarchy for fair value measurement and are based on a cash flow model discounted at market interest rates that considers the underlying risks of unsecured debt.

The carrying value of external debt from the Sponsors cannot be readily determinable based on the related party nature of the debt and the absence of market equivalents.

The fair values of advances to and from the Predecessor Parent Company and affiliated companies are not determinable given their related-party nature and the absence of market equivalents. We consider the carrying value of cash and cash equivalents, restricted cash, accounts receivable, notes receivable, and accounts payable to approximate fair value due to their short-term nature.

11. INCOME TAXES

The effective tax rate for the period from July 13, 2011 through December 31, 2011, the period from January 1, 2011 through July 12, 2011, and for the years ended December 31, 2010 and 2009, of the Company was composed of the statutory tax rates in the United States and Canada and was affected primarily by the change in valuation allowance against the net deferred tax asset, state income taxes, the recognition of previously unrecognized tax benefits, and interest relating to uncertain tax positions.

The (benefit) provision for income taxes for the period from July 13, 2011 through December 31, 2011, the period from January 1, 2011 through July 12, 2011, and for the years ended December 31, 2010 and 2009, consists of the following (in thousands):

 

     Successor      Predecessor  
     July 13
Through
December 31,
2011
     January 1
Through
July 12,
2011
     For the
Year Ended
December 31,
2010
    For the
Year Ended
December 31,
2009
 

Federal

   $ (11,893    $ 4,228       $ (40,240   $ (65,008

Foreign

     15,924         16,653         38,362        29,612   
  

 

 

    

 

 

    

 

 

   

 

 

 

Total income tax provision (benefit)

   $ 4,031       $ 20,881       $ (1,878   $ (35,396
  

 

 

    

 

 

    

 

 

   

 

 

 

Current

   $ 15,462       $ 20,418       $ (2,192   $ (37,502

Deferred

     (11,431      463         314        2,106   
  

 

 

    

 

 

    

 

 

   

 

 

 

Total income tax provision (benefit)

   $ 4,031       $ 20,881       $ (1,878   $ (35,396
  

 

 

    

 

 

    

 

 

   

 

 

 

 

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The components of income (loss) before income taxes are as follows:

 

     Successor      Predecessor  
     July 13
Through
December 31,
2011
     January 1
Through
July 12,
2011
     For the
Year Ended
December 31,
2010
    For the
Year Ended
December 31,
2009
 

Domestic

   $ (19,486    $ 11,065       $ (32,471   $ (122,712

Foreign

     50,284         59,836         121,195        86,492   
  

 

 

    

 

 

    

 

 

   

 

 

 

Income (loss) before income taxes

   $ 30,798       $ 70,901       $ 88,724      $ (36,220
  

 

 

    

 

 

    

 

 

   

 

 

 

At December 31, 2011 and 2010, we had a valuation allowance of $397.4 million and $518.7 million, respectively, against net deferred tax assets, which include the tax benefit from federal and state net operating loss (“NOL”) carryovers. Federal net operating loss carryforwards may be used to offset future taxable income for 20 years and begin to expire in 2028. State net operating loss carryforwards may be used to offset future taxable income for a period of time ranging from 5 to 20 years, depending on the state, and begin to expire in 2013. NOL carryovers in Canada expire in 20 years. The change in the valuation allowance from 2010 to 2011, from 2009 to 2010, and from 2008 to 2009, was a decrease of $121.2 million, $20.3 million, and $20.8 million, respectively. Our future deferred tax asset realization depends on sufficient taxable income in the carryforward periods under existing tax laws, which currently would allow us to offset future federal taxable income generated through 2029. State deferred tax assets included approximately $24.5 million and $22.9 million in 2011 and 2010, respectively, of tax benefits related to state NOL carryovers, which began to expire in 2011. On an ongoing basis, we will continue to review all available evidence to determine if and when we expect to realize our deferred tax assets and federal and state NOL carryovers.

 

     Successor      Predecessor  
     July 13
through
December  31,

2011
     January 1
through
July 12, 2011
    For the
Year Ended
December 31,

2010
    For the
Year Ended
December 31,

2009
 

Tax at federal statutory rate

     35.0      35.0     35.0     35.0

State income taxes (net of federal benefit)

     0.3         0.1        0.0        0.0   

Foreign income taxed below US Rate

     (14.7      (5.7     (5.5     4.8   

Valuation allowance

     (11.8      (3.4     14.4        109.4   

Tax Indemnity

     15.4         —          —          —     

Uncertain tax positions

     (39.1      3.3        (42.3     (51.9

Transaction costs

     35.3         —          —          —     

Non-controlling interest

     (1.3      (2.0     (1.6     5.0   

Other

     (6.0      2.3        (2.2     (4.5
  

 

 

    

 

 

   

 

 

   

 

 

 

Effective Rate

     13.1      29.6     (2.2 )%      (97.8 )% 
  

 

 

    

 

 

   

 

 

   

 

 

 

On November 6, 2009, the Worker, Homeownership, and Business Assistance Act of 2009 was enacted into law and amended Section 172 of the Internal Revenue Code (IRC) to extend the permitted carryback period for offsetting certain NOLs against earnings to up to five years. Due to this recently enacted federal tax legislation, Taylor Morrison was able to carry back and offset its 2009 NOL against earnings it generated in 2005 and 2004. As a result, the Company filed an application for a federal tax refund of $78.7 million and received the cash proceeds from the refund in March 2010. The Company also filed for an additional refund of $4.7 million in December 2010, which is included in income taxes receivable as of December 31, 2010, and was received in March 2011.

In 2009, the Company filed an application for a federal refund of $148.8 million for the carryback of its 2008 losses to taxable income generated in 2006. Such refunds were received in full in 2009.

 

 

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The components of net deferred tax assets and liabilities at December 31, 2011 and 2010, consisted of timing differences related to inventory impairment, expense accruals, provisions for liabilities, and NOL carryforwards. The Company has approximately $138.5 million in available federal NOL carryforwards, which will begin to expire in 2028. The Company has approximately $6.7 million in available NOL carryforwards related to the Canadian operations. A partial valuation allowance was placed on the net deferred tax asset. A summary of these components at December 31, 2011 and 2010, is as follows (in thousands):

 

     As of
December 31, 2011
     As of
December 31, 2010
 

Deferred tax assets

     

Inventory

   $ 277,289       $ 320,418   

Accruals and reserves

     38,530         53,434   

Other

     22,414         8,024   

Net operating losses

     80,354         153,899   
  

 

 

    

 

 

 

Total deferred tax assets

     418,587         535,775   
 

Deferred tax liabilities

       

Inventory, intangibles, other

     (25,184      (11,255
  

 

 

    

 

 

 

Valuation allowance

     (397,435      (518,676
  

 

 

    

 

 

 

Total net deferred tax asset (liability)

   $ (4,032    $ 5,844   
  

 

 

    

 

 

 

The table of the net deferred tax assets at December 31, 2011, has been restated to properly reflect the gross deferred tax liabilities and valuation allowance. Subsequent to the issuance of the 2011 financial statements, the Company’s management determined that there was an error in the disclosure of the gross deferred tax liabilities as of December 31, 2011, which had been overstated by $44.1 million and the valuation allowance as of December 31, 2011, which had been understated by $44.1 million. The correction had no impact on the total net deferred tax liability. The Company has determined that the correction of this error is not material to the consolidated financial statements

We account for uncertain tax positions in accordance with ASC 740. This guidance clarifies the accounting for uncertainty in income taxes and prescribes a recognition threshold and measurement attributes for the financial statement recognition and measurement of a tax position taken, or expected to be taken, in a tax return. ASC 740 also provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure, and transition. ASC 740 requires a company to recognize the financial statement effect of a tax position when it is more likely than not (defined as a substantiated likelihood of more than 50%) based on the technical merits of the position that the position will be sustained upon examination. A tax position that meets the more-likely-than-not recognition threshold is measured to determine the amount of benefit to be recognized in the consolidated financial statements based upon the largest amount of benefit that is greater than 50% likely of being realized upon ultimate settlement with a taxing authority that has full knowledge of all relevant information. Our inability to determine that a tax position meets the more-likely-than-not recognition threshold does not mean that the IRS or any other taxing authority will disagree with the position that we have taken.

If a tax position does not meet the more-likely-than-not recognition threshold despite our belief that our filing position is supportable, the benefit of that tax position is not recognized in the consolidated financial statements and we are required to accrue potential interest and penalties until the uncertainty is resolved. Potential interest and penalties are recognized as components of the provision for income taxes in the accompanying consolidated statements of operations. Differences between amounts taken in a tax return and amounts recognized in the consolidated financial statements are considered unrecognized tax benefits. We believe that we have a reasonable basis for each of our filing positions and intend to defend those positions if challenged by the IRS or other taxing jurisdictions. If the IRS or other taxing authorities do not disagree with our position and after the statute of limitations expires, we will recognize the unrecognized tax benefit in the period that the uncertainty of the tax position is eliminated.

 

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The following is a tabular reconciliation of the total amounts of unrecognized tax benefits (in thousands):

 

     Successor      Predecessor  
     July 13
through
December 31,
2011
     January 1
through
July 12,
2011
     For the
Year Ended
December 31,
2010
    For the
Year Ended
December 31,
2009
 

Beginning of the period

   $ 120,033       $ 119,901       $ 158,815      $ 147,797   

Increases of current year items

     5,211         —           —          —     

Increases of prior year items

     —           —           1,687        10,526   

Settlement with tax authorities

     —           —           (5,137     —     

Decreased for tax positions of prior years

             (35,690  

Decreased due to statute of limitations

     (16,049      —           —          —     

Foreign exchange differences

     (240      132         226        491   
  

 

 

    

 

 

    

 

 

   

 

 

 

End of the period

   $ 108,955       $ 120,033       $ 119,901      $ 158,815   
  

 

 

    

 

 

    

 

 

   

 

 

 

During the period from July 13, 2011 through December 31, 2011, the period from January 1, 2011 through July 12, 2011, and for the years ended December 31, 2010 and 2009, we recognized potential interest expense on our uncertain tax positions of $4.1 million, $2.3 million, $2.1 million, and $5.3 million, respectively, which is included in income tax benefit in the accompanying consolidated statements of operations. Accrued interest of $18.4 million and $10.8 million is recorded at December 31, 2011 and 2010, respectively, and is included in other liabilities in the accompanying consolidated balance sheets. Accrued penalties of $2.1 million is recorded at December 31, 2011 and 2010 and is included in the income taxes payable account in the accompanying consolidated balance sheets. Penalties of $6 million were released in the year ended December 31, 2010. No penalties were recognized in the year ended December 31, 2009.

We are currently under examination by various taxing jurisdictions and anticipate finalizing the examinations with certain jurisdictions within 12 months from the consolidated balance sheet date of December 31, 2011. For the filing period of 2004 to 2007, we have effectively settled with the IRS Office of Appeals (“IRS Appeals”) for returns filed under the legacy Taylor Woodrow, plc operations. In April 2010, the Company received a favorable ruling in an IRS Appeals hearing regarding their carryback of losses. The agreement of the 2004 to 2007 legacy Taylor Woodrow, plc position was forwarded to the Joint Committee on Taxation of the U.S. Congress for review, and the Company received a consent agreement regarding those carrybacks. As a result, $18.6 million of our previously unrecognized tax positions were recognized in 2010. For the periods 2005 to 2007, we have entered appeals with the IRS for the legacy Morrison Homes operations and are fully reserved for $13.5 million of liabilities related to the appeal of this issue. The Company has agreed a tentative settlement on the issue and is awaiting consent from the Joint Committee on Taxation. In addition, income tax payable in the accompanying consolidated balance sheet at December 31, 2011, includes reserves of $8.7 million and $74.8 million related to this issue for the tax years 2009 and 2008, respectively. An IRS exam is ongoing at the field level for the 2009 and 2008 Taylor Woodrow Holdings (USA), Inc. and subsidiaries tax return. We are also currently under examination on our 2006 and 2007 California worldwide legacy Taylor Woodrow, plc returns. The outcomes of the remaining examinations are not yet determinable. The statute of limitations for these examinations remains open with various expiration dates, the latest of which is September 15, 2013.

We currently are under exams and appeals for various periods beginning in 2000 for our Canadian operations with the Canada Revenue Authority, the outcome of which are not readily determinable at this time.

The Company has received an indemnity from the Predecessor Parent Company for certain tax matters where a liability is related to periods ending prior to December 31, 2010.

 

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We currently operate in five states and are subject to various state tax jurisdictions. We estimate our state tax liability based upon the individual taxing authorities’ regulations, estimates of income by taxing jurisdiction, and our ability to utilize certain tax-saving strategies. Primarily due to a change in our estimate of the allocation of income or loss, as the case may be, among the various taxing jurisdictions and changes in tax regulations and their impact on our tax strategies, our estimated rate for state income taxes was 3.2% and 3.8% for 2011 and 2010, respectively, before consideration of any applicable valuation allowance.

During the next 12 months, the amount of unrecognized tax benefits could decrease as a result of the completion of tax audits where certain of the filing positions are ultimately accepted by the IRS and/or other tax jurisdictions and/or expiration of tax statutes and successfully settled to the benefit of the Company. As a result of the lapse of the statute of limitations for the federal and Arizona jurisdictions, unrecognized tax benefits of $16.1 million were recognized in income tax expense in the period from July 13, 2011 through December 31, 2011. As of December 31, 2011, our cumulative gross unrecognized tax benefits were $98.3 million in the U.S. and $10.6 million in Canada and all unrecognized tax benefits, if recognized, would affect the effective tax rate. As of December 31, 2010, our cumulative gross unrecognized tax benefits were $114.4 million in the U.S. and $5.5 million in Canada. These amounts are included in income taxes payable in the accompanying consolidated balance sheets at December 31, 2011 and 2010. Total unrecognized tax benefits expected to reverse in the next 12 months is $16.9 million.

As a result of the Acquisition on July 13, 2011, the Company had a “change in control” as defined by IRC Section 382. IRC Section 382 imposes certain limitations on the Company’s ability to utilize certain tax attributes and net unrealized built-in losses that existed as of July 13, 2011. The gross deferred tax asset represents amounts that may be considered to be net unrealized built-in losses. To the extent these net unrealized losses are realized during the five-year period after July 13, 2011, they may not be deductible for federal income tax reporting purposes to the extent they exceed the Company’s overall IRC Section 382 limitation.

12. NET PREDECESSOR PARENT COMPANY INVESTMENT

Net Predecessor Parent Company investment as of December 31, 2010, consisted of the following (in thousands, except for share data) — Taylor Wimpey Holdings of Canada Corp. as presented in the table below was amalgamated into Monarch Corporation as of the acquisition date:

 

     Predecessor  
     Taylor
Woodrow
Holdings
(USA), Inc.
    

Taylor

Wimpey
Holdings
of Canada Corp.

    Total  

Common stock — shares authorized

     2,500         Unlimited     

Common stock — shares issued

     757         5,000,000     

Owners’ equity

   $ 91,538       $ 874,429      $ 965,967   

Receivable from Predecessor Parent Company

        (502,756     (502,756
  

 

 

    

 

 

   

 

 

 

Net owners’ equity

   $ 91,538       $ 371,673      $ 463,211   
  

 

 

    

 

 

   

 

 

 

Subsequent to the issuance of the Company’s 2011 financial statements, management identified errors in the Predecessor Parent Company’s accounting for foreign currency translation adjustments resulting from translating Monarch’s financial statements into the U.S. Dollar for the period from January 1, 2011 through July 12, 2011 (Predecessor), and for the years ended December 31, 2010 and 2009 (Predecessor). Monarch’s functional currency was the Canadian Dollar. The Company determined that it had reported translation adjustments from translating Monarch’s financial statements as a direct adjustment to “Net Owners Equity” rather than in “Accumulated Other Comprehensive (Loss) Income” as required by ASC 830, Foreign Currency Matters . The error had no impact on the reported “Net income (loss)” or “Net owners’ equity” for the periods effected. The Company has restated the Combined Statements of Equity for the period from January 1, 2011 through July 12,

 

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2011 (Predecessor), and for the years ended December 31, 2010 and 2009 (Predecessor), to reflect the correction of the following errors, which management has concluded is not material to its previously issued Predecessor combined financial statements:

 

Balance Sheet at December 31, 2010:    As
Previously
Reported
    As
Corrected
 

Net owners’ equity

   $ 470,133      $ 463,211   

Accumulated other comprehensive income (loss)

     (9,425     (2,503

Statements of Equity

    

Net owners’ equity at January 1, 2009

     52,032        117,910   

Accumulated other comprehensive income (loss) at January 1, 2009

     (13,706     (79,584

Net owners’ equity at December 31, 2009

     88,643        100,504   

Accumulated other comprehensive income (loss) at December 31, 2009

     (8,318     (20,179

Net owners’ equity at December 31, 2010

     470,133        463,211   

Accumulated other comprehensive income (loss) at December 31, 2010

     (9,425     (2,503

Net owners’ equity at July 12, 2011

     536,303        520,468   

Accumulated other comprehensive income (loss) at July 12, 2011

     (9,258     6,577   

13. RELATED-PARTY TRANSACTIONS

From time to time, the Company may engage in transactions with entities that are affiliated with one or more of the Sponsors through either lending or equity ownership arrangements. Transactions with related parties are in the normal course of operations and are executed at arm’s length as they are entered into at terms comparable to those with unrelated third parties. Real estate acquisition from such affiliates amounted to approximately $8.6 million during the period from July 13, 2011 through December 31, 2011. As of December 31, 2011, the Company is under contract to acquire real estate in the amount of $30 million from entities affiliated with one of the Sponsors.

Management and Advisory Fees — In connection with the Acquisition, affiliates of the Sponsors entered into services agreements with Taylor Morrison and Monarch relating to the provision of financial and strategic advisory services and consulting services. We paid affiliates of the Sponsors a one-time transaction fee of $13.7 million for structuring the Acquisition. This amount was included in the overall purchase price of the Acquisition and is included in transaction expenses in the accompanying statements of operations. In addition, we pay a monitoring fee for management services and advice. Fees for the period from July 13, 2011 through December 31, 2011, were $2.3 million and are included in general and administrative expense in the accompanying consolidated statements of operations.

In addition, in conjunction with the formation of TMM Holdings and in connection with the Acquisition, an affiliate of JHI entered into a partnership services agreement with TMM Holdings relating to the provision of certain services to TMM Holdings. In consideration of these services, TMM Holdings granted to the JH Investments affiliate an amount of partnership interests, subject to certain terms, conditions and restrictions contained in a unit award agreement and the TMM Holdings limited partnership agreement.

Expense for management services provided by the Predecessor Parent Company to the Company was zero for the period from January 1, 2011 through July 12, 2011, and $2.5 million and $2.4 million for the years ended December 31, 2010 and 2009, respectively, and is included in general and administrative expense in the accompanying consolidated statements of operations.

 

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U.S. Operations  — For the period from January 1, 2011 through July 12, 2011, and for the years ended December 31, 2010 and 2009, interest expense incurred related to fixed and revolving debt due to the Predecessor Parent Company was $19.2 million, $80.5 million, and $78.6 million, respectively, and is included in interest expense in the accompanying consolidated statements of operations, net of amounts capitalized.

In October 2009, Taylor Morrison acquired from the Predecessor Parent Company certain U.S. intellectual property rights (“IPR”), which includes trademarks, logos, and domain names. Prior to the acquisition, expense in 2009 for use of these rights was $3.2 million, which is included in other expense in the accompanying consolidated statements of operations. These rights were recorded in the accompanying consolidated financial statements at the Predecessor Parent Company’s carrying value of $0 in accordance with U.S. GAAP for transfers of assets between entities under common control and the amount paid of $7.6 million is reflected in distributions to the Predecessor Parent Company.

In June 2009, we purchased from one of our officers the entire interest in MFDV for a nominal amount. This entity was the former venture partner of TMHF, which was wholly acquired in April 2009.

Canadian Operations  — Accounts receivable due from joint ventures and partners in the joint ventures was $24 million and $29.1 million as of December 31, 2011 and 2010, respectively. Loans receivable due from joint ventures and partners in the joint ventures was $42.1 million and $17.9 million as of December 31, 2011 and 2010, respectively.

Receivable from Predecessor Parent Company, which is included as an offset to the Predecessor Parent Company net owners’ equity in the accompanying consolidated balance sheets are amounts due from a subsidiary of the Predecessor Parent Company, which is a company under common control, of $502.8 million at December 31, 2010. The amounts bear interest at varying rates based on Canadian LIBOR, are guaranteed by the Predecessor Parent Company, and are due on demand. Included in these amounts is $0.1 million at December 31, 2010, which is noninterest bearing, unsecured, and due on demand. Interest expense — net in the accompanying consolidated statements of operations for the period from January 1, 2011 through July 12, 2011, and for the years ended December 31, 2010 and 2009, includes $6.8 million, $7.3 million, and $6.0 million, respectively, of interest income earned from the Predecessor Parent Company.

Interest income of $1.5 million was earned on additional amounts receivable from Predecessor Parent Company in 2009 and is included in interest expense — net in the accompanying consolidated statements of operations for additional receivables

In September 2010, Monarch acquired from the Predecessor Parent Company certain Canadian intellectual property rights, which include trademarks, logos, and domain names that are integral to its Canadian operations. Prior to the acquisition, expense in 2010 and 2009 for use of these rights was $0.2 million and $1.0 million, respectively, and is included in other expense in the accompanying consolidated statements of operations. These rights were recorded in the accompanying consolidated financial statements at the Predecessor Parent Company’s carrying value of $0 in accordance with U.S. GAAP for transfers of assets between entities under common control and the amount paid of $3.3 million is reflected in distributions to the Predecessor Parent Company in the year ended December 31, 2010.

14. EMPLOYEE BENEFIT, RETIREMENT, AND DEFERRED COMPENSATION PLANS

U.S. Operations  — We maintain a defined contribution plan pursuant to Section 401(k) of the IRC (“401(k) Plan”). Each eligible employee may elect to make before-tax contributions up to the current tax limits. We match 100% of employees’ voluntary contributions up to a maximum of 3.5% of eligible compensation. We contributed $0.6 million, $0.5 million, $0.9 million, and $1.5 million to the 401(k) Plan for the period from July 13, 2011 through December 31, 2011, the period from January 1, 2011 through July 12, 2011, and for the years ended December 31, 2010 and 2009, respectively.

 

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The Taylor Morrison NonQualified Deferred Compensation Plan (the “NQDC Plan”) is an unfunded plan that permits select key employees to defer a portion of their compensation to future periods. All contributions to this plan on behalf of the participant are fully vested and placed into a grantor trust, commonly referred to as a “rabbi trust.” We may contribute an amount equal to the amount the employee does not receive as matching contributions under the 401(k) Plan as a result of certain limitations. The NQDC Plan invests the contributions in diversified securities from a selection of investments identical to that of our 401(k) Plan. The participants choose their investments and may periodically reallocate the assets in their respective accounts. Title and beneficial ownership of the assets are at all times subject to the creditors of Taylor Morrison and the participants have no property rights in those assets. Participants are entitled to receive the benefits in their accounts upon separation of service from Taylor Morrison for any reason or disability or upon their deaths. The NQDC Plan assets are included in prepaid expenses and other assets — net, in the accompanying consolidated balance sheets. At December 31, 2010, we had accrued $1.1 million for our obligations under the plan. We did not contribute deferred compensation to the NQDC Plan on behalf of employees in the years ended December 31, 2011 and 2010. The NQDC Plan contained a change of control provision that was triggered in July 2011 as a result of the Acquisition and all amounts were paid to the participants prior to December 2011.

The Taylor Woodrow (USA) UK Supplementary Pension Plan is an unfunded, nonqualified pension plan for several individuals who transferred from our UK-related companies to the employment of Taylor Woodrow on or before October 1, 1995. The payments represent benefits accrued by these individuals for service with Taylor Woodrow prior to the employees’ participation in the U.S. pension plan minus any benefit accrued in any other pension-type benefit plans sponsored by or contributed to by a Taylor Woodrow Group-related company for the period of service prior to participation in the U.S. plan. In accordance with the plan document, the participants are entitled to a fixed monthly pension and a fixed survivor benefit after the age of 65. At December 31, 2011 and 2010, we had accrued $1.9 million and $1.2 million, respectively, for our obligations under this plan.

We have a long-term incentive plan (LTIP), which was awarded to select key employees based on their compensation packages. This is an unfunded, compulsory nonqualified deferred compensation plan in which the deferred compensation is credited with earnings in the form of interest compounded annually from the date of deposit to the date of payment at a rate equal to 6% per annum. Payment of deferred compensation and interest earned is paid to the participant over three years beginning the second calendar year after the performance period in which the bonus award was earned. The last year the LTIP goals were attained and, therefore, payouts earned was the 2005 plan. The 2006 and 2007 plans did not perform and the LTIP was not carried forward to following years. Accruals remaining for our obligations under the LTIP were $2.1 million at December 31, 2009. The remaining obligations under the LTIP were paid in full in January 2010.

We also maintain the Taylor Morrison Cash Balance Pension Plan (the “U.S. Cash Balance Plan”). This is a consolidated defined benefit plan arising from the 2007 merger of Taylor Woodrow and Morrison Homes, Inc. All full-time employees are eligible to participate in this plan. The percent of our contribution is based on the participant’s age and ranges from 2% to 4% of eligible compensation, plus 1% of eligible compensation over the social security wage base. We contributed to the plan $0.5 million, $0.5 million, $4.3 million, and $2.0 million for the period from July 13, 2011 through December 31, 2011, the period from January 1, 2011 through July 12, 2011, and for the for the years ended December 31, 2010 and 2009, respectively. At December 31, 2011 and 2010, the unfunded status of the plan was $12.1 million and $5.7 million, respectively.

Effective December 31, 2010, the U.S. Cash Balance Plan was amended to freeze participation so that no new or reemployed employees may become participants and to freeze all future benefit accruals to existing participants.

 

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The changes in the total benefit obligation and in the fair value of assets and the funded status of the U.S. Cash Balance Plan as of and for the years ended December 31, 2011 and 2010, are as follows (in thousands):

 

     Successor      Predecessor  
     July 13
Through
December 31,
2011
     January 1
Through
July 12,
2011
    For the Year
Ended
December 31,
2010
 

Change in benefit obligations:

         

Benefit obligation — beginning of period

   $ 25,036       $ 25,192      $ 22,861   

Service cost

            831   

Interest on liabilities

     691         688        1,366   

Benefits paid

     (672      (844     (1,336

Actuarial loss

     6,407           2,419   

Curtailment

            (949
  

 

 

    

 

 

   

 

 

 

Benefit obligation — end of period

     31,462         25,036        25,192   
  

 

 

    

 

 

   

 

 

 

Change in fair value of plan assets:

         

Fair value of plan assets — beginning of period

     19,631         19,517        14,922   

Return on plan assets

     (75      508        1,617   

Employer contributions

     510         450        4,314   

Benefits paid

     (672      (844     (1,336
  

 

 

    

 

 

   

 

 

 

Fair value of plan assets — end of period

     19,394         19,631        19,517   
  

 

 

    

 

 

   

 

 

 

Unfunded status — end of period

   $ 10,068       $ 5,405      $ 5,675   
  

 

 

    

 

 

   

 

 

 

Components of net periodic pension cost of the U.S. Cash Balance Plan for the years ended December 31, 2011, 2010, and 2009, are as follows (in thousands):

 

     Successor      Predecessor  
     July 13
Through
December 31,
2011
     January 1
Through
July 12,
2011
    For the Year
Ended
December 31,
2010
    For the Year
Ended
December 31,
2009
 

Service cost

   $ —         $ —        $ 831      $ 1,036   

Interest cost

     691         688        1,366        1,356   

Amortization of net actuarial loss

          75        725        1,334   

Expected return on plan assets

     (692      (686     (1,108     (1,083
  

 

 

    

 

 

   

 

 

   

 

 

 

Net periodic pension cost

   $ (1    $ 77      $ 1,814      $ 2,643   
  

 

 

    

 

 

   

 

 

   

 

 

 

Accumulated other comprehensive loss of $7.5 million as of December 31, 2010, consisted of net actuarial loss that had not yet been recognized as a component of net periodic pension cost. On July 13, 2011, in connection with the accounting for the Acquisition, the accumulated other comprehensive loss was adjusted to zero. Accumulated other comprehensive loss of $6.4 million as of December 31, 2011, consists of net actuarial loss that arose during the period from July 13, 2011 through December 31, 2011, and has not yet been recognized as a component of net periodic pension cost. In the year ending December 31, 2012, $0.1 million of amortization of net actuarial loss is expected to be recognized in net periodic pension cost.

 

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The estimated future benefit payments in the next five years and the five years thereafter in aggregate are as follows (in thousands):

 

Years Ending       
December 31       

2012

   $ 1,027   

2013

     749   

2014

     888   

2015

     1,242   

2016

     1,027   

2017–2021

     6,914   

We expect to contribute $1.1 million to the U.S. Cash Balance Plan in the year ending December 31, 2012.

The significant weighted-average assumptions adopted in measuring the benefit obligations and net periodic pension cost as of and for the years ended December 31, 2011 and 2010, are as follows:

 

     Successor      Predecessor  
     July 13
Through
December 31,
2011
     January 1
Through
July 12,
2011
    For the Year
Ended
December 31,
2010
    For the Year
Ended
December 31,
2009
 

Discount rate:

           

Net periodic pension cost

     5.56      5.47     5.08     5.80

Pension obligation

     4.31         5.56        5.47        5.94   

Expected return on plan assets

     7.00         7.00        8.00        8.00   

Rate of compensation increase

     N/A         N/A        3.00        3.00   

The overall expected long-term rate of return on plan assets assumption is determined based on the plan’s targeted allocation among asset classes and the weighted-average expected return of each class. The expected return of each class is determined based on the current yields on inflation-indexed bonds, current forecasts of inflation, and long-term historical real returns.

The fair value of the U.S. Cash Balance Plan’s assets by asset categories as of December 31, 2011 and 2010, is as follows (in thousands):

 

     Successor  
     Fair Value Measurements at December 31, 2011  
Asset Category    Quoted
Prices in
Active
Markets
(Level 1)
     Significant
Other
Observable
Inputs
(Level 2)
     Significant
Unobservable
Inputs (Level 3)
     Total  

U.S. equity securities

   $ 7,910       $ —         $ —         $ 7,910   

International equity securities

     2,427               2,427   

Fixed-income securities

     7,872               7,872   

Cash

     792               792   

Other

     393               393   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 19,394       $ —         $ —         $ 19,394   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

 

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     Predecessor  
     Fair Value Measurements at December 31, 2010  
Asset Category    Quoted
Prices in
Active
Markets
(Level 1)
     Significant
Other
Observable
Inputs
(Level 2)
     Significant
Unobservable
Inputs (Level 3)
     Total  

U.S. equity securities

   $ 7,360       $ —         $ —         $ 7,360   

International equity securities

     2,316               2,316   

Fixed-income securities

     5,637               5,637   

Cash

     3,868               3,868   

Other

     336               336   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 19,517       $ —         $ —         $ 19,517   
  

 

 

    

 

 

    

 

 

    

 

 

 

The U.S. Cash Balance Plan’s assets are invested in a manner consistent with generally accepted standards of fiduciary responsibility. Taylor Morrison’s primary investment objective is to build and maintain the plan’s assets through employer contributions and investment returns to satisfy legal requirements and benefit payment requirements when due. Because of the long-term nature of the plan’s obligations, Taylor Morrison has the following goals in managing the plan: long-term (i.e., five years and more) performance objectives, maintenance of cash reserves sufficient to pay benefits, and achievement of the highest long-term rate of return practicable without taking excessive risk that could jeopardize the plan’s funding policy or subject the Company to undue funding volatility. The investment portfolio contains a diversified blend of equity, fixed-income securities, and cash, though allocation will favor equity investments in order to reach the U.S. Cash Balance Plan’s stated objectives. One of the U.S. Cash Balance Plan’s investment criteria is that over a complete market cycle, each of the investment funds should typically rank in the upper half of the universe of all active investment funds in the same asset class with similar investment objectives. Investments in commodities, private placements, or letter stock are not permitted. The equity securities are diversified across U.S. and non-U.S. stocks, as well as growth and value. Investment performance is measured and monitored on an ongoing basis through quarterly portfolio reviews and annual reviews relative to the objectives and guidelines of the plan.

The range of target allocation percentages of plan assets of the U.S. Cash Balance Plan for the year ended December 31, 2011, is as follows:

 

     Minimum     Maximum     Target  

U.S. equity securities

     37     47     42

International equity securities

     8        18        13   

Fixed-income securities

     35        45        40   

Other

       10        5   
      

 

 

 
         100
      

 

 

 

Canadian Operations  — Effective January 31, 2006, Monarch elected to convert the defined benefit provisions of the plan to defined contribution provisions for service beyond January 31, 2006. As part of this conversion, the plan members were given the option to convert their defined benefits accrued prior to February 1, 2006, to the defined contribution plan. As a result, Monarch maintains both a defined benefit plan (the “Monarch Plan”) and a defined contribution plan. Total expense for the defined contribution plan was $0.1 million, $0.1 million, $0.8 million, and $0.7 million for the period from July 13, 2011 through December 31, 2011, the period from January 1, 2011 through July 12, 2011, and for the years ended December 31, 2010 and 2009, respectively.

Our funding policy in regard to the Monarch Plan is to make contributions to our pension funds based on various actuarial cost methods as permitted by pension regulatory bodies, and Monarch is responsible to adequately fund the plan. Contributions reflect actuarial assumptions concerning future investment returns and future service benefits. Plan assets are represented primarily by Canadian and foreign equities, government and corporate bonds, debentures, and secured mortgages.

 

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We use a December 31 measurement date for our employee benefit plan. Actuaries provide an annual estimate for the plan and perform a full valuation at least every three years to determine the actuarial present value of the accrued pension benefits. The latest actuarial valuation prepared for the Monarch Plan was as of December 31, 2011.

The changes in the total benefit obligation and in the fair value of assets and the funded status of the Monarch Plan as of and for the years ended December 31, 2011 and 2010, are as follows (in thousands):

 

     Successor      Predecessor  
     July 13
Through
December 31,
2011
     January 1
Through
July 12,
2011
    For the
Year Ended
December 31,
2010
 

Change in benefit obligations:

         

Benefit obligation — beginning of period

   $ 10,956       $ 10,846      $ 9,503   

Interest on liabilities

     253         310        562   

Benefits paid

     (294      (458     (673

Actuarial loss

     665           963   

Currency translation adjustment

     (488      258        491   
  

 

 

    

 

 

   

 

 

 

Benefit obligation — end of period

     11,092         10,956        10,846   
  

 

 

    

 

 

   

 

 

 

Change in fair value of plan assets:

         

Fair value of plan assets — beginning of period

     11,556         11,460        10,603   

Return on plan assets

     (225      203        856   

Employer contributions

     74         76        144   

Benefits paid

     (294      (458     (673

Currency translation adjustment

     (481      275        530   
  

 

 

    

 

 

   

 

 

 

Fair value of plan assets — end of period

     10,630         11,556        11,460   
  

 

 

    

 

 

   

 

 

 

Funded status — deficit (surplus) — end of period

   $ 462       $ (600   $ (614
  

 

 

    

 

 

   

 

 

 

Components of net periodic pension cost for the years ended December 31, 2011, 2010, and 2009, are as follows (in thousands):

 

     Successor      Predecessor  
     July 13
Through
December 31,
2011
     January 1
Through
July 12,
2011
    For the
Year Ended
December 31,
2010
    For the
Year Ended
December 31,
2009
 

Interest cost

   $ 253       $ 310      $ 562      $ 542   

Amortization of net actuarial gain

            (856     67   

Expected return on plan assets

     (333      (408     1,342        (583
  

 

 

    

 

 

   

 

 

   

 

 

 

Net periodic pension cost

   $ (80    $ (98   $ 1,048      $ 26   
  

 

 

    

 

 

   

 

 

   

 

 

 

Accumulated other comprehensive loss of $2 million as of December 31, 2010, consisted of net actuarial loss and transition obligation that had not yet been recognized as a component of net periodic pension cost. On July 13, 2011, in connection with the accounting for the Acquisition, the accumulated other comprehensive loss was adjusted to zero. Accumulated other comprehensive loss of $0.7 million as of December 31, 2011, consists of net actuarial loss that has not yet been recognized as a component of net periodic pension cost. During the year ending December 31, 2012, the amount of amortization of net actuarial loss is not expected to be significant.

 

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The estimated future benefit payments in the next five years and the five years thereafter in aggregate are as follows (in thousands):

 

Years Ending December 31       

2012

   $ 736   

2013

     768   

2014

     776   

2015

     783   

2016

     787   

2017–2021

     3,950   

We expect to contribute $0.1 million to the Monarch Plan in the year ending December 31, 2012.

The significant weighted-average assumptions adopted in measuring the benefit obligations and net periodic pension cost as of and for the years ended December 31, 2011 and 2010, are as follows:

 

     Successor      Predecessor  
     July 13
Through
December 31,
2011
     January 1
Through
July 12,
2011
    For the Year
Ended
December 31,
2010
    For the Year
Ended
December 31,
2009
 

Discount rate:

           

Net periodic pension cost

     4.875      5.25     5.25     6.00

Pension obligation

     4.75         4.875        5.25        5.25   

Expected return on plan assets

     6.50         6.50        6.50        6.50   

The expected long-term rate of return on plan assets assumption was determined by reviewing the current investment policy as compared to current expected rates of return for all asset categories.

The fair value of the Monarch Plan’s assets by asset categories as of December 31, 2011 and 2010, is as follows (in thousands):

 

     Successor  
     Fair Value Measurements at December 31, 2011  
Asset Category    Quoted
Prices
in Active
Markets
(Level 1)
     Significant
Other
Observable
Inputs
(Level 2)
    

Significant
Unobservable
Inputs

(Level 3)

     Total  

Canadian equity securities

   $ —         $ 3,482       $ —         $ 3,482   

U.S. equity securities

        656            656   

International equity securities

        652            652   

Fixed-income securities

        4,762            4,762   

Balanced income securities

        1,078            1,078   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ —         $ 10,630       $ —         $ 10,630   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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Table of Contents
     Predecessor  
     Fair Value Measurements at December 31, 2010  
Asset Category    Quoted
Prices
in Active
Markets
(Level 1)
     Significant
Other
Observable
Inputs
(Level 2)
     Significant
Unobservable
Inputs
(Level 3)
     Total  

Canadian equity securities

   $ —         $ 4,584       $ —         $ 4,584   

U.S. equity securities

        802            802   

International equity securities

        917            917   

Fixed-income securities

        5,157            5,157   

Balanced income securities

           
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ —         $ 11,460       $ —         $ 11,460   
  

 

 

    

 

 

    

 

 

    

 

 

 

The table of fair value measurements at December 31, 2010, has been restated to correctly classify the Monarch Plan investments as Level 2 of the fair value hierarchy. Subsequent to the issuance of the Predecessor Parent Company’s 2010 combined financial statements, the Company’s management determined that there was an error in the table of fair value measurements of the Monarch Plan investments as of December 31, 2010, which had been classified as Level 1 of the fair value hierarchy. The Company has determined that the correction of this error is not material to the consolidated financial statements.

Monarch employs a total return investment approach whereby a mix of equities and fixed-income securities is used to maximize the long-term return of plan assets for an appropriate level of risk. Risk tolerance is established through careful consideration of plan liabilities, plan funded status, and corporate financial condition. The investment portfolio contains a diversified blend of equity and fixed-income securities. One of the Monarch Plan’s investment criteria is that the plan will achieve a rate of return that exceeds the rate of wage inflation, as measured by the Wage Price Index provided by Statistics Canada, by 1% per annum over the long term. The equity securities are diversified across Canadian and non-Canadian stocks, as well as growth and value. Investment performance is measured and monitored on an ongoing basis through quarterly portfolio reviews and annual reviews relative to the objectives and guidelines of the Monarch Plan.

The range of target allocation percentages of plan assets of the Monarch Plan for the years ended December 31, 2011 and 2010, is as follows:

 

     Minimum     Maximum  

Canadian equity securities

     25     60

Foreign equity securities (including U.S. and global equities)

       20   

Fixed-income securities

     30        60   

Real estate

       15   

Cash and cash equivalents

       40   

Resource properties

       5   

 

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15. OPERATING AND REPORTING SEGMENTS

In accordance with ASC Topic 280, Segment Reporting, we have ten homebuilding operating divisions which we aggregate into three reporting regions. These segments are engaged in the business of acquiring and developing land, constructing homes, marketing and selling those homes, and providing warranty and customer service. We aggregate our operating segments into a reporting segment based on similar long-term economic characteristics and geographical proximity. The company has no inter-segment sales, as all sales are to external customers. In addition we include financial services as a separate segment. Our reporting segments are as follows:

 

West (Domestic)

   Arizona, California, and Colorado

East (Domestic)

   Florida and Texas

Canada: (Foreign)

   Ontario

Financial Services (Domestic)

   Mortgage and Title Services

Management’s evaluation of segment performance is based on segment operating income/(loss), which we define as homebuilding and land revenue less cost of home construction, commissions and other sales costs, land development and other land sales costs and other costs incurred by or allocated to each segment, including impairments. Each reportable segment follows the same accounting policies described in Note 2. Operating results for each segment may not be indicative of the results for such segment had it been an independent, stand-alone entity. The following is our segment information (in thousands):

 

     Successor      Predecessor  
     July 13, 2011
Through
December 31,
2011
     January 1,
2011
Through
July 12,
2011
    For the
year ended
December 31,
2010
    For the year
ended
December 31
2009
 

West

   $ 153,997       $ 142,578      $ 319,641      $ 402,107   

East

     246,866         192,847        390,508        459,262   

Canada

     341,010         278,283        575,127        387,680   

Financial services

     8,579         6,027        12,591        13,415   
  

 

 

    

 

 

   

 

 

   

 

 

 

Total revenues

     750,452         619,735        1,297,867        1,262,464   

Operating gross margin:

           

West

     22,976         20,071        45,859        (1,520

East

     49,173         42,194        80,805        40,871   

Canada

     69,250         70,326        145,358        110,762   

Financial services

     4,084         1,659        5,345        7,146   
  

 

 

    

 

 

   

 

 

   

 

 

 

Total operating margin

     145,483         134,250        277,367        157,259   

Corporate and unallocated expenses (1)

     (69,199      (75,869     (151,373     (171,834

Earnings from unconsolidated entities, net

     5,247         2,803        5,319        347   

Transaction expense

     (39,442      —          —          —     

Indemnification income (expense)

     (12,850      —          —          —     

Interest and other (expense) income

     1,559         9,717        (42,589     (21,992
  

 

 

    

 

 

   

 

 

   

 

 

 

Income before income taxes

   $ 30,798       $ 70,901      $ 88,724      $ (36,220
  

 

 

    

 

 

   

 

 

   

 

 

 

 

(1) Represents selling and general administrative expenses which do not have a readily determinable metric to allocate to the segments

 

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December 31, 2011

 

     West      East      Canada      Corporate
and
Unallocated
     Financial
Services
     Total  

Inventory and land deposits

   $ 414,046       $ 378,070       $ 224,931       $ —           —         $ 1,017,047   

Investments in unconsolidated entities

     —           2,789         34,379         0         472         37,640   

Other assets

     22,683         46,148         288,670         215,241         43,638         616,380   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total assets

   $ 436,729       $ 427,007       $ 547,980       $ 215,241         44,110       $ 1,671,067   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

December 31, 2010

 

     West      East      Canada      Corporate
and
Unallocated
     Financial
Services
     Total  

Inventory and land deposits

   $ 469,207       $ 329,803       $ 279,889       $ 1,060         —         $ 1,079,959   

Investments in unconsolidated entities

     —           4,686         22,758         0         100         27,544   

Other assets

     20,114         44,892         288,633         52,505         13,674         419,818   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total assets

   $ 489,321       $ 379,381       $ 591,280       $ 53,565         13,774       $ 1,527,321   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Recorded in the other assets of the financial services segment for December 31, 2010 is $3.8 million of goodwill related to the Company’s acquisition of Taylor Morrison Home Funding.

16. SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)

Quarterly results for the years ended December 31, 2011 and 2010 follow (in thousands, except unit and per unit data)

 

     Predecessor     Successor  
     First
Quarter
    Second
Quarter
     July 1, 2011
to
July 12, 2011
    July 13, 2011
to
September 30,
2011
    Fourth
Quarter
 

Total closing revenue

   $ 219,399      $ 379,473       $ 14,836      $ 305,340      $ 436,533   

Gross profit

     52,138        76,170         3,733        60,123        81,276   

Income (loss) before income taxes

     26,603        45,606         (1,308     (4,909     35,707   

Net income (loss) attributable to owners

     14,237        33,578         (1,917     (14,275     39,864   

Basic and diluted earnings per unit

            (.03     .07   
     Predecessor  
     First
Quarter
    Second
Quarter
     Third
Quarter
          Fourth
Quarter
 

Total closing revenue

   $ 206,189      $ 353,283       $ 272,411        $ 453,393   

Gross profit

     44,533        69,245         55,264          102,980   

Income (loss) before income taxes

     (2,008     18,856         22,808          49,068   

Net income (loss) attributable to owners

     (7,096     6,921         46,411          41,131   

17. COMMITMENTS AND CONTINGENCIES

Letters of Credit and Surety Bonds  — We are committed, under various letters of credit and surety bonds, to perform certain development and construction activities and provide certain guarantees in the normal course of business. Outstanding letters of credit and surety bonds under these arrangements, including our share of responsibility for arrangements with our joint ventures, totaled $206.3 million and $200.5 million as of

 

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December 31, 2011 and 2010, respectively. Although significant development and construction activities have been completed related to these site improvements, the bonds are generally not released until all development and construction activities are completed. We do not believe that it is probable that any outstanding bonds as of December 31, 2011, will be drawn upon.

Monarch is party to a credit facility with The Toronto-Dominion Bank, as lender, dated September 27, 2011, as modified by a consent letter dated July 12, 2011 and as amended from time to time (the “TD Facility”). The TD facility provides partially revolving operating facilities (including letters of credit) of up to CAD $163.5 million as of December 31, 2011 (or its U.S. dollar equivalent) to provide direct and letter of credit financing requirements in support of Monarch’s projects. Amounts drawn under the TD facility are secured by liens over all present and after-acquired personal property of Monarch and are secured or will be secured by liens over the interests of Monarch in certain Canadian real property assets or cash.

Monarch is also party to a credit facility pursuant to a Facility Letter from HSBC Bank Canada, as lender, dated July 11, 2011 and as amended from time to time (the “HSBC Facility”). The HSBC Facility provides a letter of credit facility of up to CAD $29.3 million in support of Monarch’s construction projects, servicing works and/or other obligations. Amounts drawn under the HSBC Facility are secured by liens over all present and after-acquired personal property of Monarch Corp. and are secured or will be secured by liens over the interests of Monarch Corp. in certain Canadian real property assets or cash.

Under the terms of the TD Facility, all reductions or cancellations of letters of credit are permanent reductions to the facility down to a floor amount of credit availability of CAD $15.0 million. As of December 31, 2011, there were CAD $116.8 million in letters of credit outstanding under the TD Facility and CAD $29.3 million in letters of credit under the HSBC facility. Under the terms of the HSBC Facility, borrowing availability is permanently reduced as letters of credit outstanding reduce.

Prior to the Acquisition, the TD Facility and the HSBC Facility were revolving. Pursuant to modifications made in connection with the Acquisition, the TD Facility and the HSBC facility are now non-revolving, such that to the extent any letters of credit are cancelled, or have been cancelled, the size of each facility will be reduced by the amount of such cancellation. The TD Facility and HSBC Facility are each secured by a pari passu CAD $150.0 million first continuing collateral mortgage on certain lands owned by Monarch, subject to the terms of an intercreditor agreement between the Toronto-Dominion Bank and HSBC Bank Canada. Each of the TD Facility and the HSBC Facility have been renewed with an expiration date of June 30, 2013.

Land Deposits  — We are subject to the usual obligations associated with entering into contracts (including option contracts) for the purchase, development, and sale of real estate in the routine conduct of our business. We have a number of land purchase option contracts, generally through cash deposits or letters of credit, for the right to purchase land or lots at a future point in time with predetermined terms. We do not have title to the property and the creditors generally have no recourse against us except in Canada where sellers have full recourse under statutory regulations. Our obligations with respect to the option contracts are generally limited to the forfeiture of the related nonrefundable cash deposits and/or letters of credit. At December 31, 2011 and 2010, we had the right to purchase approximately 4,523 and 3,472 lots under land option and land purchase contracts, respectively, which represents purchase commitments of $239.5 million and $124.8 million at December 31, 2011 and 2010, respectively. At December 31, 2011, we had $13.6 million in land deposits and $43.6 million in letters of credit related to land options and land purchase contracts, respectively. At December 31, 2010, we had $6 million in land deposits and $11.1 million in letters of credit related to land options and land purchase contracts.

Legal Proceedings  — Between 2008 and 2010, we confirmed the presence of defective Chinese-made drywall in several of our communities, primarily in west Florida homes, which were generally delivered between May 2006 and November 2007. The estimated cost of repair for affected homes that we have inspected is included in our warranty reserve. The Company is continuing its investigation of homes to determine whether there are additional homes, not yet inspected, with defective Chinese-made drywall. If the outcome of the Company’s

 

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inspection identifies more homes with defective Chinese-made drywall than we have currently estimated, it may require an increase in the Company’s warranty reserve in the future. However, the number of requests for inspections decreased over the last two quarters of 2011. The Company continues to seek and has been successful in obtaining partial reimbursements from its subcontractors, suppliers, insurers, and manufacturers for costs the Company has incurred to investigate and repair homes with defective Chinese-made drywall. We believe that adequate provision for costs associated with the repair of homes currently known to have defective Chinese-made drywall has been made and that these costs are not expected to have a material adverse effect on our consolidated financial condition, results of operations, or cash flows. It is reasonably possible that additional affected homes could be identified in the future but the number of homes is not readily determinable and, therefore, the range of loss is not estimable.

Between 2000 and 2007, we acquired lots and constructed homes on 316 lots in a master planned community known as Vista Lakes near Orlando, Florida. Of the 316 lots, 55 are adjacent to a formerly used defense site, which was used as a World War II bombing range. Upon the purchase of the 316 finished lots from a nonrelated master plan developer, the Company was unaware of the use of the adjacent property as a formerly used defense site. In 2007 and 2008, the U.S. Army Corps of Engineers conducted an investigation in portions of the Vista Lakes master plan to determine the existence of munitions within the master plan. Two inert World War II practice bombs were found on lots owned by another unrelated party, but near the 55 lots sold by the Company. No munitions were found on any of the 55 lots inspected by the U.S. Army Corps of Engineers, although the methodology for the investigation did not include analysis of potential munitions beneath the slabs of existing homes. In 2007 and 2008, homeowners filed two lawsuits against the Company for failure to disclose the former use of the adjacent property, seeking rescission of the purchase of their homes, diminution in value, and other damages. One suit is a consolidated action with 97 homeowners. The other lawsuit by two homeowners seeks class action certification and was amended in 2009 to also name TMHF as a defendant. The Company has several defenses to the claims and is aggressively defending the lawsuits. Even though exposure to loss in excess of the liability already accrued is reasonably possible, it is not possible to reasonably estimate the size of the possible loss or range of loss. We believe that the disposition of this matter will not have a material adverse effect on our business or on our consolidated financial condition, results of operations, or cash flows.

Additionally, we are involved in various other legal proceedings arising in the ordinary course of business, some of which are covered by insurance. We have accrued for losses that we believe are probable of being incurred with respect to legal claims, and at December 31, 2011 and 2010, we had legal accruals of $17.8 million and $17.4 million, respectively. We believe that the disposition of these matters will not have a material effect on our business or on our consolidated financial condition, results of operations or cash flows.

Operating Leases  — We lease office facilities and certain equipment under operating lease agreements. In most cases, we expect that, in the normal course of business, leases that expire will be renewed or replaced by other leases. Approximate future minimum payments under the noncancelable leases in effect at December 31, 2011, are as follows (in thousands):

 

Years Ending

December 31

   Lease
Payments
 

2012

   $ 5,739   

2013

     5,160   

2014

     4,370   

2015

     4,045   

2016

     2,637   

Thereafter

     2,810   
  

 

 

 

Total

   $ 24,761   
  

 

 

 

Rent expense under noncancelable operating leases for the period from July 13, 2011 through December 31, 2011, the period from January 1, 2011 through July 12, 2011, and for the years ended December 31, 2010 and

 

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2009, was $1.6 million, $2.0 million, $5.3 million, and $6.0 million, respectively, and is included in general and administrative expenses or sales commissions and other marketing costs in the accompanying consolidated statements of operations.

Sublease income under noncancelable operating leases for the period from July 13, 2011 through December 31, 2011, the period from January 1, 2011 through July 12, 2011, and for the years ended December 31, 2010 and 2009, was $0.5 million, $0.5 million, $0.7 million, and $1.2 million, respectively, and is included in general and administrative expenses or sales commissions and other marketing costs in the accompanying consolidated statements of operations. Total sublease income to be received in years subsequent to December 31, 2011, is $1.5 million.

18. MORTGAGE COMPANY LOAN FACILITIES

In December 2010, TMHF, the Company’s wholly owned mortgage subsidiary, entered into an agreement with Flagstar Bank (the “Flagstar agreement”), as agent and representative for itself and other buyers of our held-for-sale mortgages named therein. The purpose of the Flagstar agreement is to finance the origination of up to $30 million of mortgage loans at any one time by TMHF, subject to certain sublimits and with a temporary accordion feature subject to approval by Flagstar, which allows for borrowings in excess of the total availability under the facility. Borrowings under the facility are accounted for as a secured borrowing under ASC 860, Transfers and Servicing . The Flagstar agreement is terminable by either party with 30 days’ notice and bears interest at a rate of LIBOR plus 2.5%, with a minimum floor of 4%. Borrowings under this facility are paid back with proceeds received when our mortgages are sold to participating lenders in the Flagstar agreement, or to other buyers subject to certain sublimits. The time period from borrowing to repayment is typically less than 10 business days.

At December 31, 2011 and 2010, there were $32.7 million and $4.6 million, respectively, in outstanding borrowings under the Flagstar agreement, which comprise the balance of mortgage borrowings in the accompanying consolidated balance sheets. The borrowings outstanding as of December 31, 2011 and 2010, are collateralized by $34 million and $4.9 million, respectively, of mortgage loans held for sale, which comprise the balance of mortgage receivables in the accompanying consolidated balance sheets, and $3 million of restricted short-term investments in certificate of deposits known as CDARS, which are included in restricted cash in the accompanying consolidated balance sheets.

In December of 2011, TMHF entered into an agreement with Comerica Bank, as agent and representative for itself and other buyers of our held-for-sale mortgages named within. The line will have the capacity to finance up to $15 million of mortgage loans at any one time by TMHF. The line will become available for use in 2012.

19. CAPITAL STRUCTURE

The capital structure described below is reflective of TMM’s capital structure as it existed as of December 31, 2011.

(a) General

On July 13, 2011, (the TPG Entities), investment funds managed by Oaktree Capital Management or their respective subsidiaries (“Oaktree” and collectively with the TPG Entities, the “Principal Sponsors”), and affiliates of JH Investments (“JHI”) acquired Taylor Morrison and Monarch from Taylor Wimpey plc. The transaction was funded by an approximately $500.0 million senior unsecured term loan (“Sponsor Loan”) and $620.3 million in equity. Certain members of management contributed approximately $3.3 million in equity. Following the transaction, there were 623,619,973 Class A Units outstanding held by the limited partners. Also as part of the transaction and in addition to Class A Units, JHI received 30,265,998 Class J1 Units, 15,133,000 Class J2 Units, and 15,133,000 Class J3 Units (“Class J Units”). The Company did not realize any proceeds

 

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relating to the issuance of the Class J Units, which were issued in consideration for services to be provided by the holders of such units. TMM Holdings GP, Inc., (“General Partner”) a British Columbia Corporation formed in 2011, is the general partner of the Partnership.

On April 13, 2012, the certain subsidiaries of the Company issued $550.0 million of 7.75 percent Senior Notes due 2020 (the “Senior Notes”) at an initial offering price of 100 percent of the principal amount. The

net proceeds from the sale of the Senior Notes were $537.4 million, net of debt issuance costs of $12.6 million, were used, in part, to repay $350.0 million of the Sponsor Loan. The remaining $150.0 million of the Sponsor Loan was acquired by a subsidiary of the Company, and the Principal Sponsors acquired an additional 136,363,636 Class A Units for $150.0 million. As part of the new equity issuance, certain members of management were given the opportunity to purchase additional Class A Units. Accordingly, an additional 2,189,415 Class A Units were issued for proceeds of approximately $2.4 million.

From time to time the Company has also issued Class M Units to certain members of management as equity compensation, subject to time and performance vesting conditions, as discussed below.

(b) Voting

Holders of Class A Units are entitled to one vote per unit in respect of any matter that requires the action, consent or approval of the limited partners. Class J Units and Class M Units are not entitled to vote. The Company requires the approval of both Principal Sponsors (one Principal Sponsor if the other Principal Sponsor’s position is no longer 50.0 percent of its original position, or a majority of all Class A Units outstanding if neither Principal Sponsor holds 50.0 percent of its original position) to perform certain actions including: any transactions or series of transactions involving the merger or consolidation of the Partnership; any transaction or series of transactions involving the sale, lease, exchange, or other disposal by the Partnership of any assets for consideration in excess of $5.0 million and 25.0 percent of the fair value of the total assets in the Partnership; any transaction or series of transactions involving the purchase, rent, license, exchange or other acquisition by the Partnership of any assets for consideration in excess of the greater of $5.0 million and 25.0 percent of the fair value of total asset of the Partnership; any authorization or issuance of equity securities of the Partnership other than pursuant to any equity incentive plans or arrangements of the Partnership approved by the board of directors; any redemption with respect to the equity securities of the Partnership; the IPO of the Partnership; and the exercise of any registration rights in respect to any securities owned by the Partnership.

(c) Priority on Distributions

Distributions are made at such times as determined by the General Partner, which is owned by affiliates of TPG Global, LLC, Oaktree and JH Investments. Class A Units rank senior to Class J Units and Class M Units. Class J Units and Class M Units are not entitled to distributions until Class A Unit holders have received distributions equal to their original aggregate capital contributions. Class J Units and Class M Units would then participate in any distributions dependent on certain aggregate returns and internal rate of return (“IRR”) thresholds being met on the Principal Sponsors’ aggregate capital contributions, as further described in the Unit Award Agreements.

Any distributions to any holder of Class M Units or Class J Units that have not yet become vested pursuant to the agreement to which such Units were issued will be held back and distributed to the holder if and when such Units vest. Class M Units are eligible to participate in distributions only to the extent that the aggregate value of the distributions exceeds the Class M Return Threshold applicable to that Unit. Class J Units are eligible to participate in the distributions only to the extent that the aggregate value of the distributions exceed the Class J Return Threshold applicable to that Unit.

(d) Tax Distributions

The Partnership may distribute to each Limited Partner on an annual basis or more frequently, to the extent the Partnership has available cash and is not subject to any provisions prohibiting it from doing so, tax distributions

 

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in an amount equal to the greater of (i) the amount of the Limited Partner’s U.S. federal, state and local income taxes or (ii) the amount of the Limited Partner’s Canadian income taxes, with respect to the Limited Partner’s allocable share of any Partnership net taxable income and gain for such fiscal period, determined by assuming that such income or gain, as applicable, is taxable to the Limited partner, at the greater of (x) the highest marginal U.S. federal income tax rate then in effect, and a state and local income tax rate equal to the highest marginal rate then in effect for an individual or corporation that is a resident of New York, New York or (y) the highest combined provincial and federal income tax rate applicable to an individual or corporation that is a resident of Canada and is subject to tax in the province of Canada that has the highest income tax rate.

Class A Units

The following is the activity for the Class A Units during the period from July 13, 2011 to December 31, 2011:

 

As of July 13, 2011

     —         $ —     

Issuance of Class A Units

     623,619,973         623,619,973   
  

 

 

    

 

 

 

As of December 31, 2011

     623,619,973       $ 623,619,973   
  

 

 

    

 

 

 

Equity-Based Compensation — Class M

The Partnership has one class of Units (Class M) that have been issued as long-term incentive compensation to management and independent member of the board of directors. In addition, the Partnership has issued phantom M Units to certain employees resident in Canada, which are treated as Class M Units for purposes of this description and the financial statements. The Class M Units are subject to the participation preferences and other rights of the Class A capital as described in this note.

In conjunction with the Partnership’s 2011 Management Incentive Plan, the Partnership issued 23,717,500 Class M Units in December, 2011. The Class M Units have certain time vesting and performance based vesting provisions, as more precisely defined in the grant agreements. Generally, 5/7 or 71.4% of the Class M Units designated as Time Vesting Units vest at the rate of twenty percent (20%) on each of the first, second, third, fourth and fifth anniversaries of the grant date. For the purposes of calculating periodic equity-based compensation expense, a five-year requisite service period has been assumed for the Time Vesting Units and expense is recognized using the straight-line allocation method. In addition, upon termination of a participant for any reason other than Cause or upon resignation for good reason within the twenty four (24) month period following a change in control, all the then outstanding unvested Time Vesting Units shall immediately become vested upon such termination. The remaining 2/7 or 28.6% of the M Units that are designated as Performance Vesting Units vest 50% upon a 2.0x cash return on sponsor contributed capital and the remaining 50% upon a 2.5x cash return on sponsor contributed capital. The performance conditions for 2011 have not been met. At each future reporting period, the Partnership will assess the probability of the likelihood that the Performance Vesting Units will become eligible to vest.

As of December 31, 2011, there is a pool of additional 9,278,929 Time Vesting Units and 3,711,571 Performance Vesting Units that have been authorized for issuance. As of December 31, 2011 there were 180,000 units vested.

 

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The following is the activity for the Class M Units during the period from July 13, 2011 to December 31, 2011:

 

Class M Units (Time Vesting Units)    Number of
Awards
     Grant Date Fair
Value per Unit
(Weighted
Average)
 

As of July 13, 2011

     —         $ —     

Granted

     16,992,500         0.30   

Forfeited

     —           —     
  

 

 

    

 

 

 

As of December 31, 2011

     16,992,500       $ 0.30   
  

 

 

    

 

 

 
Class M Units (Performance Vesting Units)    Number of
Awards
     Fair
Value
 

As of July 13, 2011

     —         $ —     

Granted

     6,725,000         0.26   

Forfeited

     —           —     
  

 

 

    

 

 

 

As of December 31, 2011

     6,725,000       $ 0.26   
  

 

 

    

 

 

 

Equity-Based Awards to Non-Employees-Class J

The Partnership has one class of Units (Class J) that have been issued as awards to non-employees for services rendered to the Partnership. The Class J Units are subject to the participation preferences and other rights of the Class A and Class M units as described in this note along with time and performance metrics that have not yet been met. No J Units have vested. Once these metrics are achieved and vesting occurs, the Company would record an expense relating to the value of the J shares. At each future reporting period, the Partnership will assess the probability of the likelihood that the Performance Vesting Units will become eligible to vest.

The following is the activity for the Class J Units during the period from July 13, 2011 to December 31, 2011:

 

     Number of
Awards
 

Class J-1 Units

As of July 13, 2011

     —     

Issuance of Class J-1 Units

     30,265,198   
  

 

 

 

As of December 31, 2011

     30,265,198   
  

 

 

 

Class J-2 Units

As of July 13, 2011

     —     

Issuance of Class J-2 Units

     15,133,000   
  

 

 

 

As of December 31, 2011

     15,133,000   
  

 

 

 

Class J-3 Units

As of July 13, 2011

     —     

Issuance of Class J-3 Units

     15,133,000   
  

 

 

 

As of December 31, 2011

     15,133,000   
  

 

 

 

The Class M Units and Class J Units contain certain repurchase provisions which could result in an award being settled in cash in the event of certain types of termination scenarios. The Company established a policy that settlement will not occur until the point in time where the unitholder has borne sufficient risks and rewards of equity ownership, assumed as six-months and one-day post vesting.

 

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Equity-based compensation- Fair value

The Company accounts for equity-based compensation in accordance with the fair value provisions of ASC 718. Principals of option pricing theory were used to calculate the fair value of the subject grants. Under this methodology, the Company’s various classes of Units are modeled as call options with distinct claims on the assets of the Company. The characteristics of the Unit classes, as determined by the unit agreements and the Company’s limited partnership agreements, determine the uniqueness of each Unit’s claim on the Company’s assets relative to each other and the other components of the Company’s capital structure. Periodic valuations are performed in order to properly recognize equity-based compensation expense.

The equity unit valuations included the following key assumptions in the determination of grant date fair value, summarized as follows:

 

     Period ended  
     December 31, 2011  

Implied Equity Volatility

     60

Expected Dividends

     None   

Risk-free Rate

     0.9

Expected term

     5.0 years   

20. EARNINGS PER UNIT

Basic and diluted earnings per unit for period of July 13 to December 31, 2011 (Successor) were calculated as follows (in thousands, except per unit amounts):

 

     July 13, 2011
Through
September 30,
2011
 

Basic weighted average number of units outstanding

     620,646   

Effect of dilutive securities

     —     
  

 

 

 

Dilutive average units outstanding

     620,646   
  

 

 

 

Net income attributable to owners

   $ 25,589   

Net income attributable to other securities

     0   

Net income attributable to Class A units

     25,589   

Basic earnings per Class A unit

   $ 0.04   

Dilutive earnings per Class A unit

   $ 0.04   

21. SUBSEQUENT EVENTS

Management has evaluated subsequent events through December 4, 2012, the date the consolidated financial statements were available to be issued. Except for the following items, we are not aware of any significant events that occurred subsequent to the balance sheet date, but prior to the completion of this report, that would have a material impact on the consolidated financial statements.

On April 13, 2012, we issued $550.0 million of 7.75% Senior Notes due 2020 (the “Initial Notes”) at an initial offering price of 100% of the principal amount (the “Offering”). The net proceeds from the sale of the Initial Notes were $537.4 million, net of debt issuance costs of $12.6 million, and were used, in part, to repay $350.0 million of the Sponsor Loan. The remaining proceeds of approximately $187.4 million from the Offering were retained by the Company for general corporate purposes. The remaining $150.0 million of the Sponsor Loan net of discount was contributed to a subsidiary of TMM Holdings, and the Sponsors acquired additional Class A units of the Company. The remaining balance of the unamortized discount totaling $7.9 million was written off in the quarter ended June 30, 2012 as a result of the retirement of the Sponsor Loan.

 

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On August 21, 2012, we issued an additional $125.0 million of 7.75% Senior Notes due 2020 (the “Additional Notes” together with the Initial Notes the “Senior Notes”) at an initial offering price of 105.5% of the principal amount. The Company received $132.5 million, net of debt issuance costs of $2.8 million. The net proceeds were used for general corporate purposes. The Additional Notes issued August 21, 2012 were issued pursuant to the existing indenture dated as of April 13, 2012.

In conjunction with the August 21, 2012 Additional Notes offering, the Company exercised the accordion feature of the Credit Facility and expanded the line from $75.0 million to $125.0 million in capacity.

As of December 31, 2011, the Company has a $122.9 million receivable from the Predecessor Parent Company, which represents the indemnification of certain covered tax matters as agreed to in connection with the Acquisition. Subsequent to December 31, 2011, the Company increased the standby letters of credit from the Predecessor Parent Company from $15.0 million to $84.0 million in connection the tax indemnification receivable.

******

 

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TMM Holdings Limited Partnership

Condensed Consolidated Balance Sheets

(Amounts in thousands)

       September 30,
2012
    December 31,
2011
 
     (unaudited)        

Assets

    

Cash and cash equivalents

   $ 412,779      $ 279,322   

Restricted cash

     2,955        5,000   

Real estate inventory

     1,275,763        1,003,482   

Land deposits

     11,927        13,565   

Loans receivable, net

     62,946        55,895   

Mortgage receivables

     38,884        33,961   

Tax indemnification receivable

     113,316        122,871   

Prepaid expenses and other assets, net

     94,967        50,253   

Other receivables, net

     46,805        53,109   

Investment in unconsolidated entities

     77,987        37,640   

Deferred tax assets, net

     2,809        —     

Property and equipment, net

     5,995        6,236   

Intangible assets, net

     9,166        9,733   
  

 

 

   

 

 

 

Total assets

   $ 2,156,299      $ 1,671,067   
  

 

 

   

 

 

 

LIABILITIES AND EQUITY

    

Liabilities

    

Accounts payable

   $ 88,887      $ 64,843   

Accrued expenses and other liabilities

     167,830        194,652   

Income taxes payable

     111,531        119,032   

Deferred tax liabilities, net

     —          4,032   

Customer deposits

     84,553        60,193   

Mortgage borrowings

     35,890        32,730   

Loans payable and other borrowings

     116,397        78,623   

Long-term debt (Due to related party)

     —          488,397   

Senior notes

     681,764        —     
  

 

 

   

 

 

 

Total liabilities

     1,286,852        1,042,502   

COMMITMENTS AND CONTINGENCIES (Note 14)

    

Equity

    

Net owners’ equity

     881,676        649,209   

Accumulated other comprehensive loss

     (19,922     (30,065
  

 

 

   

 

 

 

Total owners’ equity

     861,754        619,144   

Non controlling interests

     7,693        9,421   
  

 

 

   

 

 

 

Total equity

     869,447        628,565   
  

 

 

   

 

 

 

TOTAL LIABILITIES AND EQUITY

   $ 2,156,299      $ 1,671,067   
  

 

 

   

 

 

 

See accompanying notes to condensed consolidated and combined financial statements

 

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TMM Holdings Limited Partnership

Unaudited Condensed Consolidated and Combined Statements of Operations

(Amounts in thousands except per unit data)

 

      Successor     Predecessor  
      Three Months
Ended
September 30,
2012
    Nine Months
Ended
September 30,
2012
    July 13, 2011
Through
September 30,
2011
    July 1,
2011
Through
July 12,
2011
    January 1,
2011
Through
July 12,
2011
 

Home closing revenue

  $ 302,899      $ 829,221      $ 299,163      $ 14,836      $ 600,069   

Land closing revenue

    13,452        36,102        6,177        —          13,639   

Mortgage operations revenue

    5,104        13,705        3,384        —          6,027   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total revenues

    321,455        879,028        308,724        14,836        619,735   

Cost of home closings

    235,517        663,656        239,740        11,103        474,534   

Cost of land closings

    8,918        27,881        5,477        —          7,133   

Mortgage operations expenses

    2,996        7,667        2,071        —          3,818   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total cost of revenues

    247,431        699,204        247,288        11,103        485,485   

Operating gross margin

    74,024        179,824        61,436        3,733        134,250   

Sales, commissions and other marketing costs

    19,092        52,230        14,342        1,481        40,126   

General and administrative expenses

    13,123        41,091        15,251        3,591        35,743   

Equity in net income of unconsolidated entities

    (3,710     (11,497     (488     (274     (2,803

Loss on extinguishment of debt

    —          7,853        —          —          —     

Transaction expense

    —          —          38,278        —          —     

Indemnification (income) expense

    793        13,063        (1,104     —          —     

Other (income) expense, net

    703        (1,655     66        243        (9,717
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

    44,023        78,739        (4,909     (1,308     70,901   

Income tax provision (benefit)

    1,586        (3,090     8,500        609        20,881   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss)

    42,437        81,829        (13,409     (1,917     50,020   

Loss (income) attributable to noncontrolling interests

    166        (72     (866     —          (4,122

Net income (loss) attributable to Owners

  $ 42,603      $ 81,757      $ (14,275   $ (1,917   $ 45,898   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income per Class A unit

         

Basic

  $ 0.06      $ 0.12      $ (0.02    

Dilutive

  $ 0.06      $ 0.12      $ (0.02    

Weighted Average Number of Class A units

         

Basic

    762,173        710,089        620,320       

Diluted

    762,173        710,089        620,320       

See accompanying notes to condensed consolidated and combined financial statements

 

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TMM Holdings Limited Partnership

Unaudited Condensed Consolidated and Combined Statements of Comprehensive Income (Loss)

(Amounts in thousands)

 

       Successor     Predecessor  
     Three Months
Ended
September 30,
2012
     Nine Months
Ended
September 30,
2012
    July 13, 2011
Through
September 30,
2011
    July 1, 2011
Through
July 12,
2011
    January 1, 2011
Through
July 12,
2011
 

Net income (loss)

   $ 42,437       $ 81,829      $ (13,409   $ (1,917   $ 50,020   

Other comprehensive income, net of zero tax:

             

Foreign currency translation adjustment

     14,981         7,745        (27,383     —          8,866   

Post-retirement benefits adjustments

     1,098         2,398        —          —          214   
  

 

 

    

 

 

   

 

 

   

 

 

   

 

 

 

Comprehensive income (loss)

     55,516         91,972        (40,792     (1,917     59,100   

Loss (income) attributable to noncontrolling interests

     166         (72     (866     —          (4,122
  

 

 

    

 

 

   

 

 

   

 

 

   

 

 

 

Comprehensive income (loss) attributable to owners

   $ 58,682       $ 91,900      $ (41,658   $ (1,917   $ 54,978   
  

 

 

    

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying notes to condensed consolidated and combined financial statements

 

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TMM HOLDINGS LIMITED PARTNERSHIP

UNAUDITED CONDENSED CONSOLIDATED AND COMBINED STATEMENTS OF EQUITY

(Amounts in thousands)

 

     Net
Owners’
Equity
    Accumulated
Other
Comprehensive
(Loss)Income
    Total
Owners’
Equity
    Noncontrolling
Interests
    Total
Equity
 

Balance – December 31, 2010, Predecessor

   $ 463,211      $ (2,503   $ 460,708      $ 4,823      $ 465,531   

Net income

     45,898        —          45,898        4,122        50,020   

Other Comprehensive Income

     —          9,080        9,080        —          9,080   

Receivable from Predecessor Parent Company, net

     11,359        —          11,359        —          11,359   

Distributions to noncontrolling interests

     —          —          —          (5,326     (5,326
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance – July 12, 2011, Predecessor

     520,468        6,577        527,045        3,619        530,664   

Initial Capital Contribution and purchase price allocation

     99,852        (6,577     93,275        9,574        102,849   

Net Income

     (14,275     —          (14,275     866        (13,409

Other Comprehensive Income

     —          (27,383     (27,383     —          (27,383

Distributions to noncontrolling interests

     —          —          —          (2,250     (2,250
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance – September 30, 2011, Successor

   $ 606,045      $ (27,383   $ 578,662      $ 11,809      $ 590,471   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
     Net
Owners’
Equity
    Accumulated
Other
Comprehensive
(Loss)Income
    Total
Owners’
Equity
    Noncontrolling
Interests
    Total
Equity
 

Balance – December 31, 2011, Successor

   $ 649,209      $ (30,065   $ 619,144      $ 9,421      $ 628,565   

Net income

     81,757        —          81,757        72        81,829   

Other Comprehensive Income

     —          10,143        10,143        —          10,143   

Share based compensation

     1,664        —          1,664        —          1,664   

Distributions to noncontrolling interests

     —          —          —          (1,800     (1,800

Contribution of debt in exchange for equity

     146,633        —          146,633        —          146,633   

Equity contributions

     2,413        —          2,413        —          2,413   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance – September 30, 2012, Successor

   $ 881,676      $ (19,922   $ 861,754      $ 7,693      $ 869,447   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying notes to condensed consolidated and combined financial statements

 

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TMM HOLDINGS LIMITED PARTNERSHIP

UNAUDITED CONDENSED CONSOLIDATED AND COMBINED STATEMENTS OF CASH FLOWS

(Amounts in thousands)

 

     Successor     Predecessor  
     Nine Months
Ended
September 30,
2012
    July 13, 2011
Through
September 30,
2011
    January 1,
2011
Through
July 12,
2011
 

CASH FLOWS FROM OPERATING ACTIVITIES:

      

Net income

   $ 81,829      $ (13,409   $ 50,020   

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

      

Share based compensation expense

     1,664        —          —     

Equity in net (income) loss of unconsolidated entities

     (11,497     (488     (2,803

Distributions of earnings from unconsolidated entities

     9,409        1,731        9,603   

Depreciation and amortization

     4,595        1,149        1,655   

Loss on extinguishment of debt

     7,853        —       

Deferred income taxes

     (6,908     (4,639     423   

Changes in operating assets and liabilities:

      

Inventory and land deposits

     (202,508     1,778        23,832   

Receivables, prepaid expenses, and other assets

     (63,685     2,713        (8,426

Customer deposits

     22,392        (7,969     (6,506

Accounts payable, accrued expenses, and other liabilities

     (19,409     (11,864     (9,407

Income taxes payable

     17,877        134        (6,992
  

 

 

   

 

 

   

 

 

 

Net cash (used in) provided by operating activities

     (158,388     (30,864     51,399   
  

 

 

   

 

 

   

 

 

 

CASH FLOW FROM INVESTING ACTIVITIES:

      

Purchase of property and equipment

     (2,098     (189     (1,329

Investments in unconsolidated entities

     (7,325     (246     —     

Decrease (increase) in restricted cash

     2,045        (809     (3,260
  

 

 

   

 

 

   

 

 

 

Net cash used in investing activities

     (7,378     (1,244     (4,589
  

 

 

   

 

 

   

 

 

 

CASH FLOW FROM FINANCING ACTIVITIES:

      

Deferred financing costs

     (18,455     (2,751     —     

Payments on net payable to Predecessor Parent Company

     —          —          (3,000

Borrowings on net payable to Predecessor Parent Company

     —          —          80,554   

Distributions to noncontrolling interests

     (1,800     (2,250     (5,326

Increase in receivable from Predecessor Parent Company

     —          —          8,560   

Net borrowings on line of credit related to mortgages payable

     3,160        (8,686     27,492   

Proceeds from senior notes, loans payable and other borrowings

     707,629        —          —     

Repayments of long term debt, loans payable and other borrowings

     (399,442     (139,506     (27,778

Equity contributions

     2,413        55,500        —     
  

 

 

   

 

 

   

 

 

 

Net cash provided by financing activities

     293,505        (97,693     80,502   
  

 

 

   

 

 

   

 

 

 

EFFECT OF EXCHANGE RATE CHANGES ON CASH AND CASH EQUIVALENTS

   $ 5,718      $ (18,639   $ 2,699   
  

 

 

   

 

 

   

 

 

 

See accompanying notes to condensed consolidated and combined financial statements                (Continued)

 

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TMM HOLDINGS LIMITED PARTNERSHIP

UNAUDITED CONDENSED CONSOLIDATED AND COMBINED STATEMENTS OF CASH FLOWS

(Amounts in thousands)

 

     Successor     Predecessor  
     Nine Months
Ended
September 30,
2012
    July 13, 2011
Through
September 30,
2011
    January 1,
2011
Through
July 12,
2011
 

NET INCREASE IN CASH AND CASH EQUIVALENTS

   $ 133,457      $ (148,440   $ 130,011   

CASH AND CASH EQUIVALENTS — Beginning of period

     279,322        295,426        165,415   
  

 

 

   

 

 

   

 

 

 

CASH AND CASH EQUIVALENTS — End of period

     412,779        146,986        295,426   
  

 

 

   

 

 

   

 

 

 

SUPPLEMENTAL CASH FLOW INFORMATION:

      

Interest paid — net of amounts capitalized

     —          —          —     
  

 

 

   

 

 

   

 

 

 

Income taxes paid — net

   $ (33,180   $ (42   $ (24,024
  

 

 

   

 

 

   

 

 

 

SUPPLEMENTAL NONCASH OPERATING, INVESTING AND FINANCING ACTIVITIES:

      

Decrease (increase) in notes payable issued to sellers in connection with land purchase contracts

   $ (59,729   $ —        $ 5,707   

Contribution of debt in exchange for equity

   $ 146,633      $ —        $ 499,935   

Conversion of loan receivable to equity of joint ventures

   $ 29,143      $ —        $ —     

Decrease in tax indemnification from Predecessor Parent Company

   $ 9,555      $ (1,104   $ —     

See accompanying notes to condensed consolidated and combined financial statements

 

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TMM HOLDINGS LIMITED PARTNERSHIP

NOTES TO UNAUDITED CONDENSED CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS

FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 2012 AND 2011

1. BUSINESS

Organization and Description of the Business  — TMM Holdings Limited Partnership (“TMM Holdings” or “the Company”) is a British Columbia limited partnership formed in 2011 by a consortium comprised of affiliates of TPG Global, LLC, investment funds managed by Oaktree Capital Management, L.P. or their respective subsidiaries, and affiliates of JH Investments (the “Sponsors”). On July 13, 2011, TMM Holdings, through various wholly owned acquisition subsidiaries, acquired all of the outstanding shares of Taylor Woodrow Holdings (USA), Inc. (“Taylor Morrison”) (now known as Taylor Morrison Communities, Inc.) and Monarch Corporation (“Monarch”) (now known as Monarch Communities, Inc.) from Taylor Wimpey plc. (“Predecessor Parent Company”) through a combination of equity and debt (the “Acquisition”). In conjunction with the Acquisition, a series of holding companies and partnerships were established to hold TMM Holdings’ investments in the acquired businesses. Taylor Morrison’s principal business is residential homebuilding and the development of lifestyle communities throughout the United States, with operations focused in Arizona, California, Colorado, Florida, and Texas. Taylor Morrison’s product lines feature entry-level, move-up, and luxury homes. Monarch was founded in the province of Ontario in 1957 and is one of the oldest names in Canadian homebuilding. Its businesses concentrate on high-rise and low-rise residential construction in Ontario, Canada. Taylor Morrison and Monarch are the general contractors for all of their projects and retain subcontractors for home construction and site development. In addition to homebuilding, Taylor Morrison offers financial services to its customers in the U.S. through its mortgage brokerage subsidiary, Taylor Morrison Home Funding (TMHF), and title examination services in some locations through various joint ventures.

Taylor Morrison and Monarch represented the North American subsidiaries of the Predecessor Parent Company, a United Kingdom publicly held homebuilder, incorporated under the Company Act of 2006.

2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Basis of Presentation and Consolidation  — The accompanying consolidated and combined financial statements include the accounts of TMM Holdings, Taylor Morrison, Monarch, their consolidated subsidiaries, partnerships, and other entities in which the companies have a controlling financial interest (collectively, “we,” “us,” “our,” “TMM Holdings”, and the “Company”). The consolidated and combined financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (U.S. GAAP) for interim financial information. Accordingly, they do not include all of the information and footnotes required by GAAP for complete financial statements and should be read in conjunction with our report of the consolidated and combined financial statements for the period from July 13, 2011 through December 31, 2011 (Successor), and for the period from January 1, 2011 through July 12, 2011 (Predecessor). In the opinion of management, the accompanying interim financial statements and footnotes include all adjustments necessary, which only include normal recurring adjustments, for fair presentation of our results for the interim periods presented. Results of interim periods are not necessarily indicative of results to be expected for the full year. In accordance with Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) 805, Business Combinations , the acquisition was accounted for on July 13, 2011 under the acquisition basis of accounting and all acquired assets and assumed liabilities were recorded at fair value. In connection with the Acquisition, the Company is sometimes referred to as the “Successor” for the period on or after July 13, 2011, and the “Predecessor” for periods prior to July 13, 2011. The Predecessor’s financial statements include the accounts of Taylor Morrison and Monarch, their consolidated subsidiaries and other entities in which the companies have controlling financial interests, and have been combined given the common ownership and control by the Predecessor Parent Company.

 

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On July 13, 2011, TMM and its subsidiaries acquired 100% of the issued share capital of Taylor Morrison and Monarch. for aggregate cash consideration of approximately $1.2 billion. The Acquisition has been accounted for as a purchase under ASC Topic 805, “ Business Combinations .” As a result of the change in ownership, the Company’s historical financial data for periods prior to the July 13, 2011 Acquisition (the predecessor periods) are derived from the historical financial statements of the predecessor, the North American business of Taylor Wimpey plc., which financial statements have been prepared using the historical cost basis of accounting that existed prior to the Acquisition. The Company’s financial statements for periods from and after the July 13, 2011 Acquisition (the successor period) are derived from the financial statements of TMM Holdings, which reflect adjustments made as a result of the application of purchase accounting in connection with the Acquisition. Therefore, the financial information for the predecessor periods is not comparable with that for the successor period.

All intercompany balances and transactions have been eliminated in consolidation. Unless otherwise stated, amounts are shown in U.S. dollars. Assets and liabilities recorded in foreign currencies are translated at the exchange rate on the balance sheet date, and revenues and expenses are translated at average rates of exchange prevailing during the applicable period presented.

Purchase Price Allocation and Related Acquisition Accounting  — TMM Holdings acquired the Taylor Morrison and Monarch businesses for total consideration of approximately $1.2 billion. In accordance with ASC 805, the effects of the acquisition are reflected on the date of the transaction in the financial statements of the acquired businesses by recording the assets and liabilities at their fair values in order to reflect the purchase price paid in the acquisition.

Cash and cash equivalents, other assets, accounts payable, and accrued and other liabilities were generally stated at historical carrying values given the short-term nature of these assets and liabilities. Income tax receivables and liabilities were recorded at historical carrying values in accordance with ASC 805. The Predecessor Parent Company is indemnifying the Company for specific uncertain tax positions for which tax liabilities are included in income taxes payable in the accompanying consolidated balance sheets. A receivable due from the Predecessor Parent Company for the indemnification is valued at the same amount as the estimated income tax liability. Increases in the indemnification or releases of the indemnification amounts are recorded in the indemnification expense line of the accompany condensed consolidated statement of income.

The Company determined the fair value of inventory on a community-by-community basis primarily using the sales comparison and income approaches. The income approach derives a value indication for income producing property by converting anticipated benefits, i.e. cash flow, into property value. This approach was used exclusively for finished lots. The sales comparison approach uses recent land sales to provide a lot value for finished lots or an average value for raw land. In markets where there were no recent land sales the third party appraiser conducted interviews with local market participants, including brokers and appraisers, to gain an understanding at local land and lot values. In instances where both the income and sales approaches were used, equal weighting were typically given to each approach. These estimated cash flows are significantly impacted by estimates related to expected average selling prices and sales incentives, expected sales paces and cancellation rates, expected land development and construction timelines, and anticipated land development, construction, and overhead costs. Such estimates must be made for each individual community and may vary significantly between communities.

The fair value of acquired intangible assets was determined based on valuations performed by independent valuation specialists. The intangibles were valued at $10.2 million and relate to trade names of Taylor Morrison and Monarch and are being amortized over 10 years. For the three and nine months ended September 30, 2012 , amortization of $0.26 million and $0.77 million, respectively, was recorded and is included in general and administrative expenses in the accompanying condensed consolidated statements of income. The corresponding amortization for the period from July 13, 2011 to September 30, 2011 was $0.22 million.

 

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The Company completed its business combination accounting as of December 31, 2011. A summary of the fair value of assets acquired and liabilities assumed as of July 13, 2011, is as follows (in thousands):

 

Financial Statement Caption    Total  

Cash and cash equivalents

   $ 295,426   

Restricted cash

     6,705   

Inventory

     1,036,068   

Land deposits

     9,667   

Loan receivables

     76,386   

Mortgage receivables

     32,531   

Other receivables

     64,481   

Tax indemnity receivable

     129,686   

Prepaid expenses and other assets — net

     48,781   

Investments in unconsolidated entities

     38,488   

Property and equipment — net

     6,591   

Intangible assets

     10,200   

Net deferred tax liabilities

     (16,240

Accounts payable

     (44,763

Accrued expenses and other liabilities

     (199,235

Income taxes payable

     (120,878

Customer deposits

     (71,155

Mortgage borrowings

     (32,134

Loans payable and other borrowings

     (80,092

Noncontrolling interests

     (13,193
  

 

 

 

Net assets acquired at fair value

     1,177,320   

Less amounts financed through debt

     (612,500
  

 

 

 

Equity infusion paid to seller

     564,820   

Cash contributed by the Sponsors

     55,500   
  

 

 

 

Net Sponsors equity

     620,320   

Less carrying basis of Predecessors’ equity

     (527,045
  

 

 

 

Initial capital contribution and purchase price allocation adjustments

   $ 93,275   
  

 

 

 

Unaudited supplemental pro-forma information  — The unaudited supplemental pro forma information presented below includes the effects of the acquisition of the Taylor Morrison and Monarch businesses as if it had been completed as of January 1, 2011. The pro forma results include (i) the impact of certain estimated fair value adjustments and (ii) interest expense associated with debt used to fund the acquisition. The pro forma results for the nine months ended September 30, 2011 include adjustments for the financial impact of certain acquisition related items incurred during the period from July 13, 2011 through December 31, 2011. Accordingly, the following unaudited pro forma financial information should not be considered indicative of either future results or results that might have occurred had the acquisition been consummated as of January 1, 2011 (in thousands):

 

       Nine Months
Ended
September 30,
2011
 

Total revenues

   $ 928,159   

Net income

   $ 82,472   

 

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Transaction and Integration Costs  — Transaction and integration costs directly related to the acquisition, excluding the impact of restructuring costs and acquisition accounting adjustments, totaled $39.4 million, of which $38.3 million was incurred as of September 30, 2011 by TMM Holdings and the Sponsors and are recorded as transaction expenses in the Successor period.

Use of Estimates  — The preparation of financial statements in accordance with GAAP requires management to make estimates and assumptions that affect the amounts reported in the unaudited condensed consolidated and combined financial statements and accompanying notes. Significant estimates include the purchase price allocation, valuation of certain real estate, deferred tax assets, reserves for warranty and self-insured risks, and valuations performed for measuring the fair value of equity arrangements. Actual results could differ from those estimates.

Cash and Cash Equivalents  — Cash and cash equivalents consist of cash on hand, demand deposits with financial institutions, and short-term, highly liquid investments. We consider all highly liquid investments with original maturities of 90 days or less, such as certificates of deposit, money market funds, and commercial paper to be cash equivalents.

Restricted Cash  — Restricted cash consists of amounts pledged to collateralize mortgage credit lines, outstanding letters of credit and funds in escrow related to community development district bonds.

Concentration of Credit Risk  — Financial instruments that potentially subject us to concentrations of credit risk include cash and cash equivalents. Cash and cash equivalents include amounts on deposit with financial institutions in excess of the federally insured limits. As of September 30, 2012, the Company had $113.3 million receivable from the Predecessor Parent Company which represents the indemnification of certain covered tax matters as agreed to in connection with the Acquisition. The Company has $84.0 million in standby letters of credit from the Predecessor Parent Company for a portion of this receivable. In addition, the Company is exposed to credit risk to the extent that mortgage and loan borrowers may fail to meet their contractual obligations. This risk is mitigated by collateralizing the mortgaged property or land that was sold to the buyer.

Loan Receivables  — Loans receivable consist of loans receivable due from land buyers and certain of our joint ventures, are secured by underlying land, bear interest at various rates from 0% to 7.14% as of September 30, 2012 and December 31, 2011, and mature at various dates through 2015. The Company imputes interest for loans with no stated interest rates. The Company reviews the creditworthiness and past performance of entities it has receivables from as well as monitors the value of the secured assets supporting those receivables on an ongoing basis.

Mortgage Receivables  — Mortgage receivables consist of mortgages due from buyers of Taylor Morrison homes that are financed through Taylor Morrison’s mortgage brokerage subsidiary. Mortgages receivable are held for sale and are carried at fair value, which is calculated using observable market information, including pricing from actual market transactions, investor commitment prices, or broker quotations.

Tax Indemnification from Predecessor Parent Company  — The Predecessor Parent Company has indemnified TMM Holdings for specific uncertain tax positions existing as of the date of the Acquisition. An indemnification receivable was recorded at Acquisition and is reduced as the related uncertain tax liabilities are resolved. The indemnification receivable also includes a periodic increase for accrued interest, penalties, and additional identified tax issues covered by the indemnity, offset by periodic decreases as uncertain tax matters and related tax obligations are resolved. The receivable due from the Predecessor Parent Company for the indemnification is valued at the same amount as the estimated income tax liability.

Other Receivables  — Our other accounts receivable primarily consist of amounts due from buyers of condominiums, as well as other amounts expected to be recovered from various community development districts, utility deposits, and rebates due from construction materials vendors. Allowances of $2.7 million as of

 

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September 30, 2012 and $3.9 million at December 31, 2011 are maintained for probable credit losses based on historical experience, present economic conditions, and other factors considered relevant by management.

Real Estate Inventory  — Real estate inventory consists of land, land under development, homes under construction, completed homes, and model homes, and is stated at cost, net of impairment charges. In addition to direct acquisition costs, we also capitalize interest, real estate taxes, and related development costs that benefit the entire community, such as field construction supervision and related direct overhead. Home construction costs are accumulated and charged to cost of sales at home closing using the specific identification method. Land acquisition, development, interest, taxes, overhead, and condominium construction costs are allocated to homes and units using methods that approximate the relative sales value method. These costs are capitalized to inventory from the point development begins to the point construction is completed, while selling costs are expensed as incurred. For those communities that have been temporarily closed or development has been discontinued, we do not allocate interest or other costs to the community’s inventory until activity begins again. Changes in estimated costs to be incurred in a community are generally allocated to the remaining homes on a prospective basis.

We assess the recoverability of our real estate inventory in accordance with the provisions of ASC Topic 360, Property, Plant, and Equipment . ASC 360 requires that companies evaluate long-lived assets that are expected to be held and used in operations, including inventories, for recoverability based on undiscounted future cash flows of the assets at the lowest level for which there are identifiable cash flows, which we consider to be at the individual community level. If the carrying value of the assets exceeds their estimated undiscounted cash flows, then the assets are deemed to be impaired and are recorded at fair value as of the assessment date. We evaluate cash flows on a community-by-community basis. These cash flows are significantly impacted by various estimates of sales prices, construction costs, sales pace, and other factors, and the estimated fair values are determined by applying a discount rate to the estimated future cash flows of the community. For the three and nine months ended September 30, 2012 and 2011, no impairment charges were recorded.

In certain cases, we may elect to stop development and/or marketing of an existing community if we believe the economic performance of the community would be maximized by deferring development for a period of time to allow market conditions to improve. The decision may be based on financial and/or operational metrics. If we decide to stop developing a project, we will impair such project if necessary to its fair value as discussed above and then cease future development and/or marketing activity until such a time when management believes that market conditions have improved and economic performance can be maximized. Quarterly, we review all communities, for potential impairments.

When we elect to stop development of a community, it is management’s belief that the community is affected by local market conditions that are expected to improve within the next 3 to 5 years. Therefore, a temporary postponement of construction and development is expected to yield better returns. For these communities, as well as our real estate held for development or sale, our assessment of the carrying value of these assets typically includes subjective estimates of future performance, including the timing of when development will recommence, the type of product to be offered, and the margin to be realized. In the future some of these inactive communities may be re-opened while others may be sold. As of December 31, 2011, we had 34 inactive communities. As of September 30, 2012, we had 13 inactive communities with a carrying value of $20.7 million of which $17.8 million and $2.9 million is in our West and East Region, respectively. During the nine months ended September 30, 2012, we placed no communities into inactive status.

The life cycle of an active community generally ranges from three to five years, commencing with the acquisition of unentitled or entitled land, continuing through the land development phase and concluding with the sale, construction and delivery of homes. Actual community lives will vary based on the size of the community, the sales absorption rate and whether we purchased the property as raw land or finished lots. Due to recent economic conditions, estimated community lives could be significantly longer than they have been previously. As of September 30, 2012 and December 31, 2011, we were actively selling in126 and 135 communities, respectively.

 

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Inventory as of September 30, 2012 and December 31, 2011, consists of the following (in thousands):

 

     September 30,
2012
     December 31,
2011
 

Operating communities

   $ 1,132,066       $ 830,573   

Real estate held for development or sale

     143,697         172,909   
  

 

 

    

 

 

 

Total inventory

   $ 1,275,763       $ 1,003,482   
  

 

 

    

 

 

 

Capitalized Interest  — We capitalize certain interest costs to inventory during the development and construction periods. Capitalized interest is charged to cost of sales when the related inventory is delivered or when the related inventory is charged to cost of revenues under the percentage-of-completion method of accounting. Interest capitalized, incurred, and expensed as of and during the three and nine months ended September 30, 2012 and 2011, is as follows (in thousands):

 

     Successor     Predecessor  
     Three Months
Ended
September 30,
2012
    Nine Months
Ended
September 30,
2012
    July 13, 2011
Through
September 30,
2011
    January 1, 2011
Through
July 12, 2011
 

Interest capitalized – beginning of period

   $ 48,159      $ 27,491      $        $ 68,202   

Interest capitalized

     12,989        46,132        17,846        23,091   

Interest amortized to cost of sales

     (6,744     (19,219     (1,273     (19,244

Foreign currency adjustment

     —          —          —          51   
  

 

 

   

 

 

   

 

 

   

 

 

 

Interest capitalized – end of period

   $ 54,404      $ 54,404      $ 16,573      $ 72,100   
  

 

 

   

 

 

   

 

 

   

 

 

 

Interest incurred during the three and nine months ended September 30, 2012 was $13.0 million and $46.1 million, respectively, and $17.9 million and $41.0 million for the period from July 13, 2011 to September 30, 2011 and for the period from January 1, 2011 through July 12, 2011, respectively.

Land Deposits  — Deposits we pay related to land options and land purchase contracts are capitalized when paid and classified as land deposits until the associated property is purchased. Deposits are recorded as a component of inventory at the time the deposit is applied to the acquisition price of the land based on the terms of the underlying agreements. To the extent the deposits are nonrefundable, deposits are charged to expense if the land acquisition process is terminated or no longer determined probable. We review the likelihood of the acquisition of contracted lots in conjunction with our periodic real estate impairment analysis.

We are subject to the usual obligations associated with entering into contracts (including option contracts) for the purchase, development, and sale of real estate in the routine conduct of our business. We have a number of land purchase option contracts, generally through cash deposits or letters of credit, for the right to purchase land or lots at a future point in time with predetermined terms. With respect to option agreements, we do not have title to the property and the creditors generally have no recourse against us. Our obligations with respect to the option contracts are generally limited to the forfeiture of the related nonrefundable cash deposits and/or letters of credit. As of September 30, 2012 and December 31, 2011, we had the option to purchase approximately 6,980 and 4,523 lots under land option and land purchase contracts, respectively, which represents purchase commitments of $283.5 million and $239.5 million, respectively. As of September 30, 2012, we had $11.9 million in land deposits and $17.6 million in letters of credit related to land options and land purchase contracts. As of December 31, 2011, we had $13.6 million in land deposits and $43.6 million in letters of credit related to land options and land purchase contracts.

For the three and nine months ended September 30, 2012 and 2011, no impairments of option deposits or capitalized pre-acquisition costs were recorded.

 

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Investments in Unconsolidated Entities and Variable Interest Entities (VIEs)  — In the ordinary course of business, we enter into land and lot option purchase contracts in order to procure land or lots for the construction of homes. Lot option contracts enable us to control significant lot positions with a minimal capital investment and substantially reduce the risks associated with land ownership and development.

In accordance with ASC 810, Consolidation , we have concluded that when we enter into an option or purchase agreement to acquire land or lots and pay a nonrefundable deposit, a VIE may be created because we are deemed to have provided subordinated financial support that will absorb some or all of an entity’s expected losses if they occur. For each VIE, we assess whether we are the primary beneficiary by first determining if we have the ability to control the activities of the VIE that most significantly impact its economic performance. Such activities include, but are not limited to, the ability to determine the budget and scope of land development work, if any; the ability to control financing decisions for the VIE; the ability to acquire additional land into the VIE or dispose of land in the VIE not under contract with the Company; and the ability to change or amend the existing option contract with the VIE. If we are not able to control such activities, we are not considered the primary beneficiary of the VIE. If we do have the ability to control such activities, we will continue our analysis by determining if we are expected to absorb a potentially significant amount of the VIE’s losses or, if no party absorbs the majority of such losses, if we will potentially benefit from a significant amount of the VIE’s expected gains. If we are the primary beneficiary of the VIE, we will consolidate the VIE in our consolidated and combined financial statements and reflect such assets and liabilities as consolidated real estate not owned within our inventory balance in the accompanying consolidated balance sheets. We currently have no VIE’s that we consolidate. Our exposure to loss related to our option contracts with third parties and unconsolidated entities consisted of our nonrefundable option deposits totaling $11.9 million and $13.6 million, as of September 30, 2012 and December 31, 2011, respectively. Additionally, we posted $17.6 million and $43.6 million of letters of credit in lieu of cash deposits under certain option contracts as of September 30, 2012 and December 31, 2011, respectively. Creditors of these VIEs, if any, have no recourse against us.

We are also involved in several joint ventures with independent third parties for our homebuilding activities. We use the equity method of accounting for investments that qualify as VIEs where we are not the primary beneficiary and entities that we do not control or where we do not own a majority of the economic interest, but have the ability to exercise significant influence over the operating and financial policies of the investee. For those unconsolidated entities in which we function as the managing member, we have evaluated the rights held by our joint venture partners and determined that they have substantive participating rights that preclude the presumption of control. For joint ventures accounted for using the equity method, our share of net earnings or losses is included in equity in net earnings (loss) of unconsolidated entities when earned and distributions are credited against our investment in the joint venture when received.

Noncontrolling Interests  — We have consolidated joint ventures where the Company was determined to be the controlling member. Therefore, those entities’ financial statements are consolidated in the Company’s unaudited condensed consolidated and combined financial statements and the other partners’ equity is recorded as noncontrolling interests.

Property and Equipment  — Property and equipment is stated at cost, less accumulated depreciation. Gross property and equipment excluding software licenses at September 30, 2012 and December 31, 2011, consists of $8.1 million and $7.9 million, respectively, of computer and office equipment. Accumulated depreciation related to these assets was $2.4 million and $1.7 million at September 30, 2012 and December 31, 2011, respectively. Depreciation expense was $0.2 million and $0.7 million for the three and nine months ending September 30, 2012, respectively and $0.7 million and $2.3 million for for the period from July 13, 2011 to September 30, 2011 and for the period from January 1, 2011 through July 12, 2011, respectively and is recorded in general and administrative expenses in the accompanying Consolidated and Combined Statements of Operations. Depreciation is generally computed using the straight-line method over the estimated useful lives of the assets, ranging from 3 to 40 years. Maintenance and repair costs are expensed as incurred.

Income Taxes  — We account for income taxes in accordance with ASC 740, Income Taxes . Deferred tax assets and liabilities are recorded based on future tax consequences of temporary differences between the amounts

 

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reported for financial reporting purposes and the amounts deductible for income tax purposes, and are measured using enacted tax rates expected to apply in the years in which the 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 earnings in the period when the changes are enacted.

In accordance with the provisions of ASC 740, we periodically assess our deferred tax assets, including the benefit from net operating losses (NOLs), to determine if a valuation allowance is required. A valuation allowance must be established when, based upon available evidence, it is more likely than not that all or a portion of the deferred tax assets will not be realized. Realization of the deferred tax assets is dependent upon, among other matters, taxable income in prior years available for carryback, estimates of future income, tax planning strategies, and reversal of existing temporary differences. Given the downturn in the homebuilding industry over the past several years, the degree of the economic recession, the instability and deterioration of the financial markets, and the resulting uncertainty in projections of our future taxable income, we recorded a full valuation allowance against our deferred tax assets during 2007. Taylor Morrison continues to maintain a partial valuation allowance against net deferred tax assets at September 30, 2012 and December 31, 2011, as we have determined that the weight of the negative evidence exceeds that of the positive evidence and it continues to be more likely than not that we will not be able to utilize all of our deferred tax assets. We continue to evaluate improving industry conditions and when appropriate in the future expect to recognize a portion of the deferred tax asset.

Insurance Costs and Self-Insurance Reserves  — We have certain deductible limits under our workers’ compensation, automobile, and general liability insurance policies and we record expense and liabilities for the estimated costs of potential claims for construction defects. The excess liability limits are $50 million per occurrence in the annual aggregate and apply in excess of automobile liability, employers liability under workers compensation, and general liability policies. We also generally require our subcontractors and design professionals to indemnify us for liabilities arising from their work, subject to certain limitations. We are the parent of Beneva Indemnity Company (“Beneva”), which provides insurance coverage for construction defects discovered during a period of time up to 10 years following the sale of a home, coverage for premise operations risk, and property coverage. We accrue for the expected costs associated with the deductibles and self-insured amounts under our various insurance policies based on historical claims, estimates for claims incurred but not reported, and potential for recovery of costs from insurance and other sources. The estimates are subject to significant variability due to factors, such as claim settlement patterns, litigation trends, and the extended period of time in which a construction defect claim might be made after the closing of a home. Although we believe our accruals are adequate, there can be no assurance that they will be sufficient over time to cover ultimate losses.

Warranty Reserves:

U.S. Operations  — We offer limited warranties on our homes that generally provide for one-year warranties to cover various defects in workmanship or materials and we may cover certain structural warranties depending on statutory requirements for up to10 years. Warranty reserves are established as homes close in an amount estimated to be adequate to cover expected costs of materials and outside labor during warranty periods. Our warranty reserves are based on factors that include an actuarial study (for structural warranty), historical and anticipated warranty claims, trends related to similar product types, number of home closings, and geographical areas. The structural warranty is carried by Beneva, a wholly owned subsidiary of Taylor Morrison. We also provide third-party warranty coverage on homes where required by Federal Housing Administration or Veterans Administration lenders.

Canadian Operations  — We offer a limited warranty that generally provides for seven years of structural coverage; two years of coverage for water penetration, electrical, plumbing, heating, and exterior cladding defects; and one year of coverage for workmanship and materials. We are responsible for performing all of the work during the warranty period. As a result, warranty reserves are established as homes close in an amount estimated to be adequate to cover expected costs of materials and labor during warranty periods. The warranty reserves are determined using historical experience and trends related to similar product types, and number of home closings.

 

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We regularly review the reasonableness and adequacy of our recorded warranty reserves and make adjustments to the balance of the preexisting reserves to reflect changes in trends and historical data as information becomes available. Warranty reserves are included in accrued expenses and other liabilities in the accompanying unaudited consolidated balance sheets. A summary of changes in our self-insurance and warranty reserves at and during the three and nine months ended September 30, 2012 and for the period from July 13, 2011 to September 30, 2011 and for the period from January 1, 2011 through July 12, 2011, respectively are as follows (in thousands):

 

       Successor     Predecessor  
     Three Months
Ended
September 30,
2012
    Nine
Months
Ended
September  30,
2012
    July 13, 2011
Through
September 30,
2011
    January  1,
2011
Through

July 12,
2011
 

Warranty reserve – beginning of period

   $ 36,989      $ 43,158      $ 45,929      $ 50,069   

Additions to reserves

     1,823        5,141        6,858        9,634   

Costs and claims incurred

     (1,163     (11,658     (10,333     (16,267

Change in estimates to preexisting reserves

     (187     572        1,077        2,346   

Fair value adjustments

         (2,731     —     

Foreign currency adjustment

     (1     248          147   
  

 

 

   

 

 

   

 

 

   

 

 

 

Warranty reserve – end of period

   $ 37,461      $ 37,461      $ 40,800      $ 45,929   
  

 

 

   

 

 

   

 

 

   

 

 

 

Revenue Recognition:

Home Sales  — Revenues from home sales are recorded using the completed contract method of accounting at the time each home is delivered, title and possession are transferred to the buyer, there is no significant continuing involvement with the home, and the buyer has demonstrated sufficient initial and continuing investment in the property.

Condominium Sales  — Revenues from the sale of condominium units is recognized when construction is beyond the preliminary stage, the buyer is committed to the extent of being unable to require a refund except for non-delivery of the unit, sufficient units in the project have been sold to ensure that the property will not be converted to a rental property, the sales proceeds are collectible, and the aggregate sales proceeds and the total cost of the project can be reasonably estimated. For our Canadian high rise condominiums, these conditions are met when a certificate of occupancy has been received, all significant conditions of registration have been performed and the purchaser has the right to occupy the unit.

Land Sales  — Revenues from land sales are recognized when title is transferred to the buyer, there is no significant continuing involvement, and the buyer has demonstrated sufficient initial and continuing investment in the property sold. If the buyer has not made an adequate initial or continuing investment in the property, the profit on such sales is deferred until these conditions are met.

Mortgage Operations Revenue  — Revenues from loan origination are recognized at the time the related real estate transactions are completed, usually upon the close of escrow. All of the loans Taylor Morrison Home Funding, LLC (TMHF) originates are sold within a short period of time, generally 20 days, on a nonrecourse basis as further described in Note 15. After the loans are sold, the Company retains potential liability for possible claims by purchasers that it breached certain limited industry-standard representations and warranties in the loan sale agreement. Gains or losses from the sale of mortgages are recognized based on the difference between the selling price and carrying value of the related loans upon sale.

Deposits  — Forfeited buyer deposits related to home, condominium, and land sales are recognized in other income in the accompanying unaudited condensed consolidated statements of income in the period in which we determine that the buyer will not complete the purchase of the property and the deposit is determined to be nonrefundable to the buyer.

 

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Sales Discounts and Incentives  — We grant our home buyers sales discounts and incentives from time to time, including cash discounts, discounts on options included in the home, option upgrades, and seller-paid financing or closing costs. Discounts are accounted for as a reduction in the sales price of the home.

Advertising Costs  — We expense advertising costs as incurred. Advertising costs were $3.8 million and $10.8 million for the three and nine months ending September 30, 2012 and $2.1 million and $9.1 million for the July 13 2011 to September 30, 2011 and January 1, 2011 to July 12, 2011 periods, respectively.

Recently Adopted Accounting Pronouncements  — In May 2011, the FASB issued ASU 2011-04, Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRS . ASU 2011-04 provides a consistent definition and measurement of fair value, as well as similar disclosure requirements between U.S. GAAP and International Financial Reporting Standards. ASU 2011-04 changes certain fair value measurement principles, clarifies the application of existing fair value measurement and expands the ASC 820 disclosure requirements, particularly for Level 3 fair value measurements. The adoption of ASU 2011-04 did not have a material effect on the Company’s condensed consolidated and combined financial statements, but did require additional disclosures.

In June 2011, the FASB issued ASU 2011-05, Presentation of Comprehensive Income . ASU 2011-05 requires the presentation of comprehensive income in either (i) a continuous statement of comprehensive income or (ii) two separate, but consecutive statements. ASU 2011-05 eliminates the option to present the components of other comprehensive income as part of the statement of changes in stockholders’ equity. The amendments in this ASU do not change the items that must be reported in other comprehensive income or when an item of other comprehensive income must be reclassified to net income. ASU 2011-05 should be applied retrospectively and is effective for public entities for fiscal years, and interim periods within those years, beginning after December 15, 2011, with early adoption permitted. As a result of the adoption of ASU 2011-05 the Company added separate, but consecutive statements of comprehensive income.

3. INVESTMENTS IN UNCONSOLIDATED ENTITIES

We participate in a number of joint ventures with unrelated third parties. These entities are generally involved in real estate development or mortgage lending and title services. We use the equity method of accounting for our investments in unconsolidated entities, which are not VIEs and which we do not control, but have ownership interests up to 50%.

We have investments in, and advances to, a number of joint ventures with unrelated parties to develop land and to develop condominium projects, including for-sale residential units and commercial space. Some of these joint ventures develop land for the sole use of the venture participants, including us, and others develop land for sale to the joint venture participants and to unrelated builders. Our share of the joint venture profit relating to lots we purchase from the joint ventures is deferred until homes are delivered by us and title passes to a homebuyer.

The investment in unconsolidated entities on the accompanying condensed consolidated balance sheets includes the fair value adjustments as a result of purchase accounting. Fair value adjustments for the Company’s investment in unconsolidated entities are recorded at the Company level and are amortized against the Company’s share of earnings of the underlying joint ventures as the underlying joint venture assets are sold.

4. INTANGIBLE ASSETS

In conjunction with the Acquisition, the Company performed an analysis on the fair value of the trade names using the income approach, and concluded that the fair value of the Taylor Morrison trade name was $4.1 million and the fair value of the Monarch trade name was $6.1 million. These amounts are being amortized over a 10-year period, and the amortization expense recorded during the three and nine months ended September 30,

 

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2012, was $0.25 million and $0.75 million. There was $0.25 of amortization expense for the for the July 13, 2011 to September 30, 2011 period. Annual amortization expense is estimated to be $1.1 million in each of the next five years.

5. PREPAID EXPENSES AND OTHER ASSETS

Prepaid expenses and other assets as of September 30, 2012 and December 31, 2011 in the accompanying condensed consolidated balance sheets, consist of the following (in thousands):

 

     September 30,
2012
     December 31,
2011
 

Prepaid expenses

   $ 62,675       $ 37,832   

Other assets

     32,292         12,421   
  

 

 

    

 

 

 

Total prepaid expenses and other assets

   $ 94,967       $ 50,253   
  

 

 

    

 

 

 

Our prepaid expenses consist primarily of prepaid sales commissions, sales presentation centers, and model home costs, such as design fees and furniture. The prepaid sales commissions are recorded on pre-closing sales activities which are recognized on the ultimate closing of the units to which they relate. The model home and sales presentation centers costs are paid in advance and amortized over the life of the project on a per-unit basis, or a maximum of three years. Other assets consist primarily of various operating and escrow deposits, financing costs of Senior Notes, golf club membership inventory, pre-acquisition costs, and other deferred costs.

6. ACCRUED EXPENSES AND OTHER LIABILITIES

Accrued expenses and other liabilities as of September 30, 2012 and December 31, 2011 in the accompanying condensed consolidated balance sheets, consist of the following (in thousands):

 

     September 30,
2012
     December 31,
2011
 

Real estate development costs to complete

   $ 27,138       $ 45,670   

Compensation and employee benefits

     34,039         33,518   

Insurance, litigation reserves, and other professional fees

     9,941         19,917   

Self-insurance and warranty reserves

     37,461         43,158   

Interest payable

     25,330         17,322   

Merger and restructuring reserves

     2,414         2,803   

Property and sales tax payable

     7,800         9,616   

Other accruals

     23,707         22,648   
  

 

 

    

 

 

 

Total accrued expenses and other liabilities

   $ 167,830       $ 194,652   
  

 

 

    

 

 

 

7. LOANS PAYABLE AND OTHER BORROWINGS

Loans payable and other borrowings as of September 30, 2012 and December 31, 2011 in the accompanying condensed consolidated balance sheets, consist of the amounts due to land sellers and for the financing of high-rise projects in Canada. Loans payable bear interest at rates that ranged from 0% to 8% at both September 30, 2012 and December 31, 2011, and generally are secured by the land that was acquired in connection with the loans. As of September 30, 2012 a total of $29.9 million of loans payable and other borrowings is scheduled for maturity during the subsequent twelve months. As of September 30, 2012 and December 31, 2011, we were in compliance with all financial covenants.

 

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8. LONG-TERM DEBT

Sponsor Loan

In connection with the Acquisition in July 2011, the Company entered into a loan agreement with certain investment funds managed by Oaktree Capital Management and affiliates of TPG, providing for a $625.0 million senior unsecured loan (the “Sponsor Loan”) maturing on July 13, 2018. The Sponsor Loan was issued at a discount of 2.5% for $500.0 million of the balance and at par for the remaining $125.0 million balance. In August 2011, $125.0 million of the Sponsor Loan was repaid by Monarch from operating cash. In April 2012, in connection with the offering of the Senior Notes (as defined below), $350.0 million of the Sponsor Loan was repaid in full and the remaining $150.0 million was acquired by a subsidiary of the Company, and affiliates of TPG Global and investment funds managed by Oaktree Capital Management acquired $150.0 million of additional equity of the Company. The remaining balance of the unamortized discount totaling $7.9 million was written off in the quarter ended June 30, 2012 as a result of the retirement of the Sponsor Loan and is included in loss on extinguishment of debt in the accompanying condensed consolidated statements of income for the nine months ended September 30, 2012. Amortization expense of the discount was $0 and $0.4 million for the three and nine months ended September 30, 2012, respectively, and for $0.4 million the period of July 13, 2011 to September 30, 2011 which is included in interest expense in the accompanying condensed consolidated statements of operations. The Sponsor Loan bore a 13% annual interest rate calculated on a 360-day year. Interest amounts were paid quarterly on the final day of the period. Interest expense for the period of July 13, 2011 to September 30, 2011 was $14.4 million. Interest expense for the three and nine months ending September 30, 2012 was zero and $18.6 million, respectively. No interest was unpaid or accrued as of September 30, 2012 and December 31, 2011, respectively.

The outstanding balance of the Sponsor Loan was $488.4 million as of December 31, 2011, net of $11.6 million of unamortized discount, and $0 as of September 30, 2012.

Senior Notes

On April 13, 2012, we issued $550.0 million of 7.75% Senior Notes due 2020 (the “Initial Notes”) at an initial offering price of 100% of the principal amount (the “Offering”). The net proceeds from the sale of the Initial Notes were $537.4 million, net of debt issuance costs of $12.6 million, were used, in part, to repay $350.0 million of the Sponsor Loan. The remaining proceeds of approximately $187.4 million from the Offering were retained by the Company for general corporate purposes. The remaining $150.0 million of the Sponsor Loan net of discount was contributed to a subsidiary of TMM Holdings, and the Sponsors acquired additional Class A units of the Company. The remaining balance of the unamortized discount totaling $7.9 million was written off in the quarter ended June 30, 2012 as a result of the retirement of the Sponsor Loan.

On August 21, 2012, the Company issued an additional $125.0 million of 7.75% Senior Notes due 2020 (the “Additional Notes” together with the Initial Notes the “Senior Notes”) at an initial offering price of 105.5% of the principal amount. The Company received $132.5 million, net of debt issuance costs of $2.8 million. The net proceeds will be used for general corporate purposes. The Additional Notes issued August 21, 2012 were issued pursuant to the existing indenture dated as of April 13, 2012.

There were approximately $17.5 million in bond financing costs at September 30, 2012 related to the Senior Notes, which are included in prepaid expenses and other assets on the accompanying condensed consolidated balance sheets. During the three and nine month periods ended September 30, 2012, the Company amortized $0.2 million and $0.4 million, respectively, of deferred financing costs.

The indenture for our Senior Notes contains covenants that limit (i) the investments we can make, (ii) the payment of dividends and the redemption of equity and junior debt, (iii) the incurrence of additional indebtedness, (iv) asset dispositions, (v) mergers and similar corporate transactions, (vi) the incurrence of liens, (vii) the incurrence of prohibitions on payments and asset transfers among the issuers and restricted subsidiaries and (viii) transactions with affiliates, among other items.

 

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Obligations to pay principal and interest on the Senior Notes are guaranteed by the U.S. homebuilding subsidiaries (collectively, the “Guarantor Subsidiaries”) who guarantee the Credit Facility (as defined below), each of which is directly or indirectly 100% owned by TMM Holdings. Such guarantees are full and unconditional, and joint and several. We do not provide separate financial statements of the Guarantor Subsidiaries or condensed consolidating financial information because the Senior Notes are not registered and are not subject to registration rights.

At any time prior to April 15, 2015, we are entitled to redeem up to 40% of the aggregate principal amount of the Senior Notes at a redemption price of 103.875% of the principal amount (if the redemption occurs prior to April 15, 2013) or at a redemption price of 107.750% of the principal amount (if the redemption occurs on or after April 15, 2013 and prior to April 15, 2015).

Revolving Credit Facility

In 2011, the Company entered into a $75.0 million Credit Facility with Credit Suisse, HSBC, and Deutsche Bank, secured by the underlying assets of the U.S. operations. In conjunction with the August 21, 2012 Additional Notes offering the Company exercised the accordion feature of the facility and expanded the line to $125.0 million in capacity.

Borrowings under the Credit Facility may be made in U.S. dollars and in Canadian dollars (subject to a U.S. $15.0 million sublimit) and bear interest based upon either a LIBOR or CDOR interest rate option, as applicable, or a base rate or Canada prime rate option, as applicable, as selected by the borrowers plus, in each case, an applicable margin. The Credit Facility matures on July 13, 2016. The applicable margin for (a) any Eurodollar Rate Loan or CDOR Rate Loan is 3.25% per annum, payable on the last date of each applicable interest period or at the end of each three-month period if the applicable interest period is longer than three months and (b) any Base Rate Loan or Canadian Prime Rate Loan, 2.25% per annum, payable quarterly. There is a fee of 0.75% per annum on the commitment (whether drawn or undrawn), payable quarterly in arrears, and subject to a 25 basis point reduction upon the completion of the second full quarter after the closing date based upon the achievement of a specified capitalization ratio. The borrowers have the right to make “amend and extend” offers to lenders of a particular class. No draws have been made under the Credit Facility and there was no outstanding balance at September 30, 2012 or December 31, 2011. In connection with the implementation of the Credit Facility the Company capitalized $3.8 million of financing fees and incurred amortization of $0.2 million and $0.5 million for the three and nine months ended September 30, 2012 and $0.2 million for the July 13, 2011 to September 30, 2011 period.

Under the terms of the Credit Facility, we have the ability to issue letters of credit totaling up to $125.0 million. Borrowing availability is reduced by the amount of letters of credit outstanding. As of September 30, 2012, there were $5.4 million in letters of credit outstanding under the Credit Facility.

The Credit Facility contains certain “springing” financial covenants. In the event that, either there are (a) any loans outstanding thereunder on the last day of any fiscal quarter or on more than five separate days of such fiscal quarter or (b) any unreimbursed letters of credit thereunder on the last day of such fiscal quarter or for more than five consecutive days of such fiscal quarter, we will be required to, in respect of such fiscal quarter, comply with a maximum capitalization ratio test as well as a minimum interest coverage ratio test.

The Credit Facility also contains customary restrictive covenants, including limitations on incurrence of indebtedness, incurrence of liens, dividends and other distributions, asset dispositions, investments, sale and leasebacks, passive holding entities (with respect to TMM Holdings, Taylor Morrison Holdings, Inc., Monarch Communities Inc. and Monarch Parent Inc.) and limitation on debt payments and amendments.

The Credit Facility contains customary events of default, subject to applicable grace periods, including for nonpayment of principal, interest or other amounts, violation of covenants (including financial covenants, subject

 

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to the exercise of an equity cure), incorrectness of representations and warranties in any material respect, cross default and cross acceleration, bankruptcy, material monetary judgments, ERISA events with material adverse effect, actual or asserted invalidity of material guarantees, material security or intercreditor agreements or subordination provisions, and change of control. As of September 30, 2012 and December 31, 2011 we were in compliance with our financial covenants.

Debt Payable to Predecessor Parent Company

After the Acquisition, the North American subsidiaries of the Predecessor Parent Company had no outstanding borrowings payable to the Predecessor Parent Company. The net debt payable to Predecessor Parent Company bore interest at 7.02% per annum and had a maturity of July 15, 2011. For the period from July 13, 2011 to September 30, 2011 and for the period from January 1, 2011 through July 12, 2011, respectively, interest expense incurred related to the Predecessor Parent Company payable was $0 and $19.2 million, all of which was capitalized to inventory during the nine months ended September 30, 2011.

Mortgage Company Loan Facilities

TMHF, the Company’s wholly owned mortgage subsidiary, has certain outstanding facilities, as described further in Note 15, below.

Letters of Credit, Surety Bonds and Guarantees

We are committed, under various letters of credit and surety bonds, to perform certain development and construction activities and provide certain guarantees in the normal course of business. These guarantees have been made in connection with joint venture funding of our operations in Canada. Outstanding letters of credit and surety bonds under these arrangements, including our share of responsibility for arrangements with our joint ventures, totaled $256.1 million as of September 30, 2012. Although significant development and construction activities have been completed related to these site improvements, the letters of credit and surety bonds are reduced as development and construction work is completed, but not fully released until warranty periods have expired.

Monarch is party to a credit facility with The Toronto-Dominion Bank, which we refer to as the “TD Facility.” The TD Facility provides revolving operating facilities (including letters of credit) of up to CAD $100.0 million (or its U.S. dollar equivalent) to provide direct and letter of credit financing in support of Monarch’s projects. Under the terms of the TD Facility, the first $80.0 million drawn under the facility is secured by liens over the interests of Monarch in certain Canadian real property. Amounts drawn above CAD $80.0 million are secured with cash. As of September 30, 2012, there were CAD $64.2 million letters of credit outstanding under the TD Facility.

Monarch is also party to a credit facility with HSBC Bank Canada, which we refer to as the “HSBC Facility.” The HSBC Facility provides a partially revolving letter of credit facility of up to CAD $24.2 million (reduced from $25.6 million as of September 30, 2012) in support of Monarch’s construction projects. Under the terms of the HSBC Facility, amounts drawn under this facility are secured by liens over the interests of Monarch in certain Canadian real property or cash. As of September 30, 2012, there were CAD $25.6 million letters of credit outstanding under the HSBC Facility.

Both the TD Facility and the HSBC Facility are 364-day facilities scheduled to expire on June 30, 2013.

Under the terms of the TD Facility, all reductions or cancellations of letters of credit are permanent reductions to the facility down to a floor amount of credit availability of CAD $15.0 million. All amounts drawn above CAD $80.0 million must be secured with cash. As of September 30, 2012, there were CAD $64.2 million in letters of credit outstanding under the TD Facility and CAD $25.6 million in letters of credit under the HSBC facility. Under the terms of the HSBC Facility, borrowing availability is permanently reduced as letters of credit outstanding reduce.

 

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Prior to the Acquisition, the TD Facility and the HSBC Facility were revolving. Pursuant to modifications made in connection with the Acquisition, the TD Facility and the HSBC facility are now non-revolving, such that to the extent any letters of credit are cancelled, or have been cancelled, the size of each facility will be reduced by the amount of such cancellation. The TD Facility and HSBC Facility are each secured by a pari passu CAD $150.0 million first continuing collateral mortgage on certain lands owned by Monarch, subject to the terms of an intercreditor agreement between the Toronto-Dominion Bank and HSBC Bank Canada.

9. FAIR VALUE DISCLOSURES

We have adopted ASC 820 Fair Value Measurements for valuation of our financial instruments. ASC 820 provides a framework for measuring fair value under GAAP, expands disclosures about fair value measurements, and establishes a fair value hierarchy, which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. The three levels of the fair value hierarchy are summarized as follows:

Level 1  — Fair value is based on quoted prices in active markets for identical assets or liabilities.

Level 2  — Fair value is determined using significant observable inputs, generally either quoted prices in active markets for similar assets or liabilities, or quoted prices in markets that are not active.

Level 3  — Fair value is determined using one or more significant input that is unobservable in active markets at the measurement date, such as a pricing model, discounted cash flow, or similar technique.

Mortgage receivables and mortgage borrowings attributable to Taylor Morrison are recorded at fair value which are considered a level 2 valuation in the hierarchy of fair value calculated using observable market information, including pricing from actual market transactions, investor commitment prices, or broker quotations. Loans receivable are recorded at fair value, which is considered a level 2 valuation in the hierarchy of fair value calculated using observable market information, which exceeds the face value by approximately $0.9 million and $1.3 million as of September 30, 2012 and December 31, 2011, respectively.

At September 30, 2012 and December 31, 2011, the carrying value of our loans payable and other borrowings of $116.4 million and $78.6 million, respectively, approximated fair value. The estimated fair values of our loans payable are considered a level 2 valuation in the hierarchy for fair value measurement and are based on a cash flow model discounted at market interest rates that considers the underlying risks of unsecured debt.

As described in Note 2 and in conjunction with the Acquisition all assets and liabilities of the Company were adjusted to fair value using significant Level 3 unobservable assumptions and valuation inputs.

The fair value of our Senior Notes is considered a Level 2 valuation in the hierarchy for fair value measurement and is derived from quoted market prices by independent dealers and is as follows (in thousands):

 

     September 30, 2012      December 31, 2011  
       Aggregate
Principal
     Estimated
Fair Value
     Aggregate
Principal
     Estimated
Fair
Value
 

Description:

           

7.75% Senior Notes

   $ 675,000       $ 721,600       $ —         $ —     

We consider the carrying value of cash and cash equivalents, restricted cash, accounts receivable, notes receivable, and accounts payable to approximate fair value due to their short-term nature.

 

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10. INCOME TAXES

The effective tax rate for the three and nine months ended September 30, 2012 and 2011 of the Company was composed of the statutory tax rates in the United States and Canada and was affected primarily by the change in valuation allowance against the net deferred tax asset, state income taxes, the recognition of previously unrecognized tax benefits, and interest relating to uncertain tax positions.

The deferred tax assets as of September 30, 2012 are composed of $1.7 million of assets related to certain state tax attributes related to the Company’s Texas operations and $1.1 million of assets related to the Company’s Canadian operations.

The provision (benefit) for income taxes for each of the three and nine months periods ended September 30, 2012 and 2011 consists of the following (in thousands):

 

     Successor     Predecessor  
     Three Months
Ended
September 30,
2012
    Nine Months
Ended
September 30,
2012
    July 13, 2011
Through
September 30,
2011
    July 1, 2011
through
July 12,
2011
     January  1,
2011
Through

July 12, 2011
 

United States

   $ (785   $ (13,852   $ 244      $ 0       $ 4,229   

Foreign

     2,371        10,762        8,256        609         16,652   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Total income tax provision (benefit)

   $ 1,586      $ (3,090   $ 8,500      $ 609       $ 20,881   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

In accordance with ASC 740-10, Income Taxes , we evaluate our deferred tax assets, including the benefit from NOLs, to determine if a valuation allowance is required. Companies must assess whether a valuation allowance should be established based on the consideration of all available evidence using a “more likely than not” standard with significant weight being given to evidence that can be objectively verified. This assessment considers, among other matters, the nature, frequency and severity of current and cumulative losses, forecasts of future profitability, the length of statutory carryforward periods, our experience with operating losses and our experience of utilizing tax credit carryforwards and tax planning alternatives. We continue to maintain a valuation allowance against the net deferred tax assets at September 30, 2012 as we have determined that the weight of the negative evidence exceeds that of the positive evidence and it continues to be more likely than not that we will not be able to utilize all of our deferred tax assets and NOL carryovers.

At September 30, 2012 and December 31, 2011, we had a valuation allowance of $382.9 million and $397.4 million respectively, against deferred tax assets which include the tax benefit from NOL carryovers. Our future deferred tax asset realization depends on sufficient taxable income in the carryforward periods under existing tax laws. Federal net operating loss carryforwards may be used to offset future taxable income for 20 years and begin to expire in 2028. State net operating loss carryforwards may be used to offset future taxable income for a period of time ranging from 5 to 20 years, depending on the state, and begin to expire in 2013. On an ongoing basis, we will continue to review all available evidence to determine if and when we expect to realize our deferred tax assets and NOL carryovers.

As of September 30, 2012, we had $98.3 million of unrecognized tax benefits of which $98.3 million, if recognized, would affect our effective tax rate. As of December 31, 2011, we had $109.0 million of unrecognized tax benefits of which $109.0 million, if recognized, would have affected our effective tax rate.

As of September 30, 2012 and December 31, 2011 we had accrued interest related to uncertain tax positions of $18.3 million and $18.4 million, respectively, net of federal income tax benefits. We recorded $1.2 million of reversal of expense and $0.5 million of net expense for the three and nine months ending September 30, 2012 and $1.3 million and $4.5 million of net expense for the three and nine months ending September 30, 2011.

 

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During the second quarter of fiscal year 2012, we reached a settlement of an I.R.S. audit of tax years 2005 to 2007, which reduced our income tax expense by $17.4 million. We believe it is reasonably possible that the total amount of remaining unrecognized tax benefits will decrease by $84.4 million within the next 12 months, as our appeal of our IRS audit is likely to be settled within that time period.

We are currently in appeals with the I.R.S. for the 2008 to 2009 Taylor Morrison returns and believe it is reasonably possible a settlement will be reached within the next twelve months regarding the Company’s filing position regarding the carryback of net operating losses.

We are also currently under examination on our 2006 and 2007 California worldwide legacy Taylor Woodrow, plc. returns. The outcomes of the remaining examinations are not yet determinable. The statute of limitations for these examinations remains open with various expiration dates, the latest of which is September 15, 2013.

We currently are under exams and appeals for various periods beginning in 2000 for our Canadian operations with the Canada Revenue Authority, the outcome of which are not readily determinable at this time.

The Company has received an indemnity from the Predecessor Parent Company for certain tax matters where a liability is related to periods ending prior to December 31, 2010.

As a result of the Acquisition on July 13, 2011, the Company had a “change in control” as defined by IRC Section 382. IRC Section 382 imposes certain limitations on the Company’s ability to utilize certain tax attributes and net unrealized built-in losses that existed as of July 13, 2011. The gross deferred tax asset represents amounts that may be considered to be net unrealized built-in losses. To the extent these net unrealized losses are realized during the five-year period after July 13, 2011, they may not be deductible for federal income tax reporting purposes to the extent they exceed the Company’s overall Internal Revenue Code (IRC) Section 382 limitation.

11. RELATED-PARTY TRANSACTIONS

From time to time, the Company may engage in transactions with entities that are affiliated with one or more of the Sponsors through either lending or equity ownership arrangements. Transactions with related parties are in the normal course of operations and executed at arm’s length as they are entered into at terms comparable to those with unrelated third parties. Real estate acquisition from such affiliates amounted to approximately $8.6 million and $30.0 million during the period from July 13, 2011 through September 30, 2011, and for the nine months ended September 30, 2012, respectively.

Sponsor Loan — Please see Note 8 for a detailed description of the Sponsor Loan and related transactions.

Management and Advisory Fees — In connection with the Acquisition, affiliates of the Sponsors entered into a services agreement with Taylor Morrison and Monarch relating to the provision of financial and strategic advisory services and consulting services. We paid affiliates of the Sponsors a one-time transaction fee of $13.7 million for structuring the Acquisition. This amount was included in transaction expenses in the statements of operations during the quarter ended September 30, 2011. In addition, we pay ongoing fees for management services and advice. Fees for the three and nine months ended September 30, 2012 were $1.25 million and $3.8 million, respectively, and is included in general and administrative expense in the accompanying consolidated statements of operations. $1.2 million in management fees were charged for the period from July 13, 2011 to September 30, 2011(Successor).

In addition, in conjunction with the formation of TMM Holdings and in connection with the Acquisition, an affiliate of JHI entered into a partnership services agreement with TMM Holdings relating to the provision of certain services to TMM Holdings. In consideration of these services, TMM Holdings granted to the JH Investments affiliate an amount of partnership interests, subject to certain terms, conditions and restrictions contained in a unit award agreement and the TMM Holdings limited partnership agreement.

 

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Canadian Operations  — Loans receivable due from joint ventures and partners in the joint ventures was $51.5 million and $42.1 million as of September 30, 2012 and December 31, 2011, respectively. Accounts receivable due from joint ventures and partners in the joint venture was $0.0 and $24.0 million as of September 30, 2012 and December 31, 2011, respectively.

Other income in the accompanying condensed consolidated statement of income during the Predecessor Period includes $6.8 million of interest income received from funds on deposit with the Predecessor Parent Company.

12. EMPLOYEE BENEFIT, RETIREMENT, AND DEFERRED COMPENSATION PLANS

U.S. Operations  — We maintain a defined contribution plan pursuant to Section 401(k) of the Internal Revenue Code (“401(k) Plan”). Each eligible employee may elect to make before-tax contributions up to the current tax limits. We match 100% of employees’ voluntary contributions up to a maximum of 3.5% of eligible compensation. We contributed $0.3 million and $0.8 million and $0.3 million and $0.7 million, respectively, to the 401(k) Plan for the three and nine months ended September 30, 2012 and 2011.

The Taylor Woodrow (USA) UK Supplementary Pension Plan is an unfunded, nonqualified pension plan for several individuals who transferred from our UK-related companies to the employment of Taylor Woodrow on or before October 1, 1995. The payments represent benefits accrued by these individuals for service with Taylor Woodrow prior to the employees’ participation in the U.S. pension plan minus any benefit accrued in any other pension-type benefit plans sponsored by or contributed to by a Taylor Woodrow Group-related company for the period of service prior to participation in the U.S. plan. In accordance with the plan document, the participants are entitled to a fixed monthly pension and a fixed survivor benefit after the age of 65. At September 30, 2012 and December 31, 2011, we had accrued $1.8 million and $1.9 million, respectively, for our obligations under this plan that is included in accrued expenses and other liabilities in the accompanying condensed consolidated balance sheet.

We also maintain the Taylor Morrison Cash Balance Pension Plan (the “U.S. Cash Balance Plan”). This is a combined defined benefit plan arising from the 2007 merger of Taylor Woodrow and Morrison Homes, Inc. All full-time employees are eligible to participate in this plan. The percent of our contribution is based on the participant’s age and ranges from 2% to 4% of eligible compensation, plus 1% of eligible compensation over the social security wage base. We made $286,000 and $869,000 in contributions to the plan for the three and nine months ended September 30, 2012. There were contributions of $255,000 and $450,000 for the period of July 13, 2011 to September 30, 2011 and January 1, 2011 to July 12, 2011, respectively. At September 30, 2012 and December 31, 2011, the unfunded status of the plan was $9.1 million and $12.1 million, respectively.

Effective December 31, 2010, the U.S. Cash Balance Plan was amended to freeze participation so that no new or reemployed employees may become participants and to freeze all future benefit accruals to existing participants.

Canadian Operations  — Effective January 31, 2006, Monarch elected to convert the defined benefit provisions of the plan to defined contribution provisions for service beyond January 31, 2006. As part of this conversion, the plan members were given the option to convert their defined benefits accrued prior to February 1, 2006, to the defined contribution plan. As a result, Monarch maintains both a defined benefit plan (the “Monarch Plan”) and a defined contribution plan. Total expense for the defined contribution plan was $174,000 and $518,000 for the three and nine months ending September 30, 2012 and $35,000 and $111,000 for the period from July 13, 2011 to September 30, 2011 and for the period from January 1, 2011 through July 12, 2011, respectively.

 

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13. OPERATING AND REPORTING SEGMENTS

As defined in ASC Topic 280, Segment Reporting , we have ten homebuilding operating divisions which we aggregate into three reporting regions. These segments are engaged in the business of acquiring and developing land, constructing homes, marketing and selling those homes, and providing warranty and customer service. We aggregate our operating segments into a reporting segment based on similar long-term economic characteristics and geographical proximity. The Company has no inter segment sales, as all sales are to external customers. In addition we include financial services as a separate segment. Our reporting segments are as follows:

 

  West: (Domestic)    Arizona, California, and Colorado
  East: (Domestic)    Florida and Texas
  Canada: (Foreign)    Canada
  Financial Services: (Domestic)    Mortgage and Title Services

Management’s evaluation of segment performance is based on segment operating income/(loss), which we define as homebuilding and land revenue less cost of home construction, commissions and other sales costs, land development and other land sales costs and other costs incurred by or allocated to each segment, including impairments. Each reportable segment follows the same accounting policies described in Note 2, “Summary of Significant Accounting Policies,” to the unaudited condensed consolidated and combined financial statements. Operating results for each segment may not be indicative of the results for such segment had it been an independent, stand-alone entity. The following is our segment information (in thousands):

 

     Successor     Predecessor  
     Three Months
Ended
September 30,
2012
    Nine Months
Ended
September 30,
2012
    July 13, 2011
Through
September 30,
2011
    July 1, 2011
Through
July 12,
2011
    January 1,
2011
Through
July 12,
2011
 

Revenues:

          

West

   $ 112,253      $ 277,789      $ 57,684      $ 2,038      $ 142,578   

East

     117,961        355,429        90,936        4,553        192,847   

Canada

     86,137        232,105        156,720        8,245        278,283   

Financial services

     5,104        13,705        3,384        0        6,027   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total revenues

     321,455        879,028        308,724        14,836        619,735   

Operating gross margin:

          

West

     21,970        45,738        8,027        242        20,071   

East

     22,859        68,986        16,087        896        41,644   

Canada

     27,087        59,062        36,009        2,595        70,326   

Financial services

     2,108        6,038        1,312        0        2,209   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total operating margin

     74,024        179,824        61,435        3,733        134,250   

Corporate and unallocated expenses (1)

     (32,215     (93,320     (29,592     (5,072     (75,869

Equity in net income of unconsolidated entities, net

     5,770        13,557        488        274        2,803   

Transaction expense

     —          —          (38,278     —          —     

Indemnification income (expense)

     1,334        (10,936     1,104        —          —     

Interest and other (expense) income

     (1,597     (7,093     (66     (243     9,717   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income before income taxes

   $ 47,316      $ 82,032      $ (4,909   $ (1,308   $ 70,901   

 

(1) Represents selling and general administrative expenses which do not have a readily determinable metric to allocate to the segments

 

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     September 30, 2012  
     West      East      Canada      Corporate
and
Unallocated
     Financial
SUCS
     Total  

Inventory and land deposits

   $ 598,977       $ 415,586       $ 273,127       $ 0         0       $ 1,287,690   

Investments in unconsolidated entities

     0         783         76,732         0         472         77,987   

Other assets

     31,185         64,823         258,967         385,414         50,233         790,622   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total assets

   $ 630,162       $ 481,192       $ 608,826       $ 385,414         50,705       $ 2,156,299   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 
     December 31, 2011  
     West      East      Canada      Corporate
and
Unallocated
     Financial
SUCS
     Total  

Inventory and land deposits

   $ 414,046       $ 378,070       $ 224,931       $ 0         0       $ 1,017,047   

Investments in unconsolidated entities

     0         2,789         34,379         0         472         37,640   

Other assets

     22,683         46,148         288,670         215,241         43,638         616,380   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total assets

   $ 436,729       $ 427,007       $ 547,980       $ 215,241         44,110       $ 1,671,067   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

14. COMMITMENTS AND CONTINGENCIES

Legal Proceedings  — Between 2008 and 2012, we confirmed the presence of defective Chinese-made drywall in several of our communities, primarily in west Florida homes, which were generally delivered between May 2006 and November 2007. The estimated cost of repair for affected homes that we have inspected is included in our warranty reserve. Taylor Morrison is continuing its investigation of homes to determine whether there are additional homes, not yet inspected, with defective Chinese-made drywall. If the outcome of Taylor Morrison’s inspection identifies more homes with defective Chinese-made drywall than we have currently identified, it may require an increase in Taylor Morrison’s warranty reserve in the future. Taylor Morrison is seeking reimbursement from its subcontractors, suppliers, insurers, and manufacturers for costs that Taylor Morrison has incurred to investigate and repair homes with defective Chinese-made drywall. We believe that adequate provision for costs associated with the repair of homes currently known to have defective Chinese-made drywall has been made and that these costs are not expected to have a material adverse effect on our financial condition, results of operations, or cash flows.

Between 2000 and 2007, we acquired lots and constructed homes on 316 lots in a master planned community known as Vista Lakes near Orlando, Florida. Of the 316 lots, 55 are adjacent to a formerly used defense site, which was used as a World War II bombing range. Upon the purchase of the 316 finished lots from a nonrelated master plan developer, Taylor Morrison was unaware of the use of the adjacent property as a formerly used defense site. In 2007 and 2008, the U.S. Army Corps of Engineers conducted an investigation in portions of the Vista Lakes master plan to determine the existence of munitions within the master plan. Two inert World War II practice bombs were found on lots owned by another unrelated party but near the 55 lots sold by Taylor Morrison. No munitions were found on any of the 55 lots inspected by the U.S. Army Corps of Engineers, although the methodology for the investigation did not include analysis of potential munitions beneath the slabs of existing homes. In 2007 and 2008, homeowners filed two lawsuits against Taylor Morrison for failure to disclose the former use of the adjacent property, seeking rescission of the purchase of their homes, diminution in value, and other damages. One suit is a consolidated action with 97 homeowners. The other lawsuit by two homeowners seeks class action certification and was amended in 2009 to also name TMHF as a defendant. Taylor Morrison has settled both the purported class action case and the consolidated action with 97 individual homeowners; however, the consolidated action with 97 homeowners is subject to approval of each individual plaintiff and the purported class action settlement is subject to court approval and if the class action settlement is approved by the court, homeowners will have the right to opt out of the settlement. We believe that the final disposition of this matter will not have a material adverse effect on our business or on our financial condition, results of operations, or cash flows.

 

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Additionally, we are involved in various other legal proceedings arising in the ordinary course of business, some of which are covered by insurance. We have accrued for losses that we believe are probable of being incurred with respect to legal claims and at September 30, 2012 and December 31, 2011; we had legal accruals of $7.4 million and $17.8 million, respectively. During the three and nine months ended September 30, 2012 we reversed $1.9 and $9.0 million, respectively, of those accruals through the statement of income as the advancement of cases required less reserves. We believe that the disposition of these matters will not have a material adverse effect on our business or on our financial condition, results of operations, or cash flows.

15. MORTGAGE COMPANY LOAN FACILITIES

In December 2010, TMHF, the Company’s wholly owned mortgage subsidiary, entered into an agreement with Flagstar bank (the “Flagstar agreement”), as agent and representative for itself and other buyers of our held-for-sale mortgages named therein. The purpose of the Flagstar agreement is to finance the origination of up to $30 million of mortgage loans at any one time by TMHF, subject to certain sublimits. Borrowings under the facility are accounted for as a secured borrowing under ASC Topic 860, Transfers and Servicing . The Flagstar agreement is terminable by either party with 30 days’ notice and bears interest at a rate of LIBOR plus 2.5%, with a minimum floor of 4%. Borrowings under this facility are paid back with proceeds received when our mortgages are sold to participating lenders in the Flagstar agreement, or to other buyers subject to certain sublimits and with a temporary accordion feature subject to approval by Flagstar, which allows for borrowings in excess of the total availability under the facility. The time period from borrowing to repayment is typically less than 20 business days.

In December of 2011, TMHF entered into an agreement with Comerica Bank, (the “Comerica agreement”) as agent and representative for itself and other buyers of our held-for-sale mortgages named within. The line has the capacity to finance up to $15.0 million of mortgage loans at any one time by TMHF. The Comerica Facility bears interest at a rate of Daily Adjusting LIBOR plus 2.5% with a minimum floor of 3.95%. Borrowings under the Comerica Facility are paid back with proceeds received when our mortgages are sold to approved lenders participating in the Comerica Facility.

At September 30, 2012 and December 31, 2011, there were $27.7 million and $32.7 million in outstanding borrowings under the Flagstar agreement, and $8.2 million and $0 outstanding borrowings under the Comerica agreement, which are collateralized by mortgage receivables of $38.9 million and $34.0 million, respectively, and $2.0 million of restricted short-term investments in certificate of deposits known as Certificate of Deposit Account Registry Service (CDARS), which are included in restricted cash in the accompanying unaudited consolidated and combined balance sheet. We considered the carrying value of our mortgage borrowings to approximate fair value due to their short term nature.

16. CAPITAL STRUCTURE

Class A Units

The following is the activity for the Class A Units during the period from January 1, 2012 to September 30, 2012 (amounts in thousands except unit data):

 

     Number of units      Amount  

As of December 31, 2011

     623,619,973       $ 623,620   

Issuance of Class A Units

     138,553,052         152,408   
  

 

 

    

 

 

 

As of September 30, 2012

     762,173,025       $ 776,028   
  

 

 

    

 

 

 

 

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Equity-Based Compensation – Class M

The following is the activity for the Class M Units during the period from January 1, 2012 to September 30, 2012:

 

M Units (Time Vesting Units)    Number of
Awards
    Grant
Date Fair

Value
(Weighted
Average)
 

As of December 31, 2011

     16,992,500        0.30   

Granted

     7,596,429        0.64   

Forfeited

     (2,062,500     0.30   
  

 

 

   

 

 

 

As of September 30, 2012

     22,526,429      $ 0.41   
  

 

 

   

 

 

 
Class M Units (Performance Vesting Units)    Number of
Awards
    Grant
Date Fair
Value
(Weighted
Average)
 

As of December 31, 2011

     6,725,000        0.26   

Granted

     2,558,571        0.57   

Forfeited

     (825,000     0.26   
  

 

 

   

 

 

 

As of September 30, 2012

     8,458,571      $ 0.35   
  

 

 

   

 

 

 

3,542,500 Time Vesting Class M Units with an aggregate grant date fair value of $1,062,750 vested during the period ended September 30, 2012. Time Vesting Class M Units which are outstanding and unvested as of September 30, 2012 have an aggregate grant date fair value of $7,682,964. Compensation expense of $4,649,644 for those units is expected to be recorded over a weighted average period of 4.5 years.

No Performance Vesting Class M Units vested during the period ended September 30, 2012. Performance Vesting Class M Units which are outstanding and unvested as of September 30, 2012 have an aggregate grant date fair value of 2,775,386. Compensation expense for those units will be recorded when the performance conditions are met.

Equity-Based Awards to Non-Employees-Class J

The Class J Units are subject to time and performance metrics that have not yet been met as of September 30, 2012. No Class J Units have vested as of September 30, 2012. There were no issuances or forfeitures of Class J units during the period from January 1, 2012 to September 30, 2012.

Equity-based compensation- Fair value

The Company accounts for equity-based compensation in accordance with the fair value provisions of ASC 718. Compensation – Stock Compensation. Principals of option pricing theory were used to calculate the fair value of the subject grants. Under this methodology, the Company’s various classes of Units are modeled as call options with distinct claims on the assets of the Company. The characteristics of the Unit classes, as determined by the unit agreements and the Company’s limited partnership agreements, determine the uniqueness of each Unit’s claim on the Company’s assets relative to each other and the other components of the Company’s capital structure. Periodic valuations are performed in order to properly recognize equity-based compensation expense.

During 2012, the Company’s periodic business enterprise valuations increased as a result of the following significant factors:

 

   

Additional capital contributions associated with the conversion of the Senior Debt to Legacy Class A Units and associated management purchases of Legacy Class A Units, discussed above;

 

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Issuance of Senior Notes;

 

   

Increases in multiples of book value of invested capital for several of the Company’s comparable publicly-traded peers; and

 

   

Greater visibility and likelihood, over the course of the period, with respect to the prospects for marketability of the Company’s equity securities.

The equity unit valuations during 2012 included the following key assumptions in the determination of grant date fair value, summarized as follows:

 

     January 1, 2012 to
September 30, 2012

Implied Equity Volatility

   55%

Expected Dividends

   None

Risk-free Rate

   0.9%

Expected term

   4.5 years

17. EARNINGS/(LOSS) PER UNIT

Basic and diluted earnings/ (loss) per unit for the three and nine months ended September 30, 2012 and 2011 (successor) were calculated as follows (in thousands, except per unit amounts):

 

    Three Months
Ended
September 30,
2012
    Nine Months
Ended
September 30,
2012
    July 13, 2011
Through
September 30,
2011
 

Basic weighted average number of Class A units outstanding

    762,173        710,089        620,320   

Effect of dilutive securities:

     
    —          —          —     
 

 

 

   

 

 

   

 

 

 

Dilutive average shares outstanding

    762,173        710,089        620,320   
 

 

 

   

 

 

   

 

 

 

Net Income/ (loss) attributable to owners

  $ 42,603      $ 81,757      $ (14,275

Net Income/(loss) attributable to other participating securities

    —          —          —     
 

 

 

   

 

 

   

 

 

 

Net income (loss) attributable to Class A units

  $ 42,603      $ 81,757      $ (14,275
 

 

 

   

 

 

   

 

 

 

Basic earnings/(loss) per Class A unit

  $ 0.06      $ 0.12      $ (0.02

Diluted earnings/(loss) per Class A unit

  $ 0.06      $ 0.12      $ (0.02

18. SUBSEQUENT EVENTS

Management has evaluated subsequent events through December 4, 2012 the date the unaudited condensed consolidated and combined financial statements were available to be issued, and noted that the Canadian lines of credit with The Toronto Dominion Bank and HSBC Bank Canada have been renewed at substantially the same terms and conditions as the expiring lines and the maturity date for both facilities is June 30, 2013. Management has also evaluated subsequent events through January 15, 2013 and identified that on December 31, 2012, Taylor Morrison, Inc., through its subsidiary Darling Homes of Texas, LLC, acquired the assets of Darling Interests, Inc. (“Darling”), a Texas-based homebuilder. Darling builds homes under the Darling Homes brand for move-up buyers in the Dallas-Fort Worth Metroplex and Greater Houston Area markets. The consideration for the acquisition of the Darling assets included an initial cash payment of $115.0 million, which is subject to post-closing adjustment under certain circumstances. A portion of this amount was financed by $50.0 million of borrowings under our Credit Facility. Approximately $26.0 million of additional consideration for the acquisition was financed by the sellers. Subsequent payments of up to an aggregate of $50.0 million, plus 5% of any cumulative EBIT (or earnings before interest and taxes) above $221.5 million over the four year period following December 31, 2012, may be made to the sellers pursuant to an earnout arrangement.

 

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As of December 31, 2012, we increased the total amount of commitments under the Credit Facility from $125.0 million to $225.0 million and borrowed $50.0 million under the Credit Facility to finance in part the acquisition of Darling.

No other subsequent events would require recognition in the unaudited condensed consolidated and combined financial statements or disclosure in the notes to the unaudited condensed consolidated and combined financial statements.

 

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LOGO


Table of Contents

 

 

             Shares

 

LOGO

Taylor Morrison Home Corporation

CLASS A COMMON STOCK

 

Credit Suisse   Citigroup

 

Deutsche Bank Securities   Goldman, Sachs & Co.   J.P. Morgan   Zelman Partners LLC

Through and including                     , 2013 (the 25th day after the date of this prospectus), all dealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.

 

 

 


Table of Contents

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 13. Other Expenses of Issuance and Distribution.

 

     Amount
To Be Paid
 

Registration fee(1)

   $ 34,100   

FINRA filing fee(1)

     38,000   

Stock exchange fee

     *   

Transfer agent’s fees

     *   

Printing and engraving expenses

     *   

Legal fees and expenses

     *   

Accounting fees and expenses

     *   

Miscellaneous

     *   
  

 

 

 

Total

   $ *        
  

 

 

 

Each of the amounts set forth above, other than the Registration fee and the FINRA filing fee, is an estimate.

 

  * To be included by amendment.
  (1) Previously paid.

 

Item 14. Indemnification of Directors and Officers.

Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the Registrant. The Delaware General Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. The Registrant’s Bylaws provide for indemnification by the Registrant of its directors, officers and employees to the fullest extent permitted by the Delaware General Corporation Law.

Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant’s Certificate of Incorporation provides for such limitation of liability.

The Registrant maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act, and (b) to the Registrant with respect to payments which may be made by the Registrant to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.

The proposed form of Underwriting Agreement filed as Exhibit 1 to this Registration Statement provides for indemnification of directors and officers of the Registrant by the underwriters against certain liabilities.

We expect to enter into customary indemnification agreements with our executive officers and directors that provide them, in general, with customary indemnification in connection with their service to us or on our behalf.

 

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Item 15. Recent Sales of Unregistered Securities.

On November 15, 2012 the registrant issued 1,000 shares of Class A common stock to certain of the Principal Equityholders for aggregate consideration of $1,000. The shares of Class A common stock described above were issued in reliance on the exemption contained in Section 4(a)(2) of the Securities Act of 1933 on the basis that the transaction did not involve a public offering.

In connection with the Reorganization Transactions described under “Organizational Structure” in the accompanying prospectus, the registrant will issue an aggregate of                  shares of its Class B common stock to the Principal Equityholders and other existing limited partners of TMM. The shares of Class B common stock described above will be issued in reliance on the exemption contained in Section 4(a)(2) of the Securities Act of 1933 on the basis that the transaction will not involve a public offering. No underwriters will be involved in the transaction.

 

Item 16. Exhibits and Financial Statement Schedules.

(a) The following exhibits are filed as part of this Registration Statement:

 

Exhibit
Number

 

Description

  1   Form of Underwriting Agreement*
  3.1   Amended and Restated Certificate of Incorporation of Taylor Morrison Home Corporation*
  3.2   Amended and Restated Bylaws of Taylor Morrison Home Corporation*
  4.1   Indenture, dated as of April 13, 2012, relating to Taylor Morrison Communities, Inc.’s and Monarch Communities Inc.’s 7.750% Senior Notes due 2020, among Taylor Morrison Communities, Inc., Monarch Communities Inc., the guarantors party thereto and Wells Fargo Bank, National Association, as trustee
  4.2   Specimen Class A Common Stock Certificate of Taylor Morrison Home Corporation*
  5   Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP*
10.1   Credit Agreement, dated as of July 13, 2011, among Taylor Morrison Communities, Inc., Monarch Corporation, TMM Holdings Limited Partnership, Monarch Communities Inc., Monarch Parent Inc., Taylor Morrison Holdings, Inc., the lenders party thereto and Credit Suisse AG, as administrative agent*
10.1(a)   Amended and Restated Credit Agreement, dated as of April 13, 2012, among Taylor Morrison Communities, Inc., Monarch Corporation, TMM Holdings Limited Partnership, Monarch Communities Inc., Monarch Parent Inc., Taylor Morrison Holdings, Inc., Taylor Morrison Finance, Inc., the lenders party thereto and Credit Suisse AG, as administrative agent
10.1(b)   First Amendment to the Amended and Restated Credit Agreement, dated as of August 15, 2012, among Taylor Morrison Communities, Inc., Monarch Corporation, TMM Holdings Limited Partnership, Monarch Communities Inc., Monarch Parent Inc., Taylor Morrison Holdings, Inc., Taylor Morrison Finance, Inc., the lenders party thereto and Credit Suisse AG, as administrative agent
10.1(c)   Second Amendment to the Amended and Restated Credit Agreement, dated as of December 27, 2012, among Taylor Morrison Communities, Inc., Monarch Corporation, TMM Holdings Limited Partnership, Monarch Communities Inc., Monarch Parent Inc., Taylor Morrison Holdings, Inc., Taylor Morrison Finance, Inc., the lenders party thereto and Credit Suisse AG, as administrative agent
10.2   Amended and Restated Registration Rights Agreement*
10.3   Amended and Restated Limited Partnership Agreement of TMM Holdings Limited Partnership.*
10.4   Form of Indemnification Agreement*
10.5   Exchange Agreement*
10.6   Stockholders Agreement*
10.7   Employment Agreement, dated as of July 13, 2011, between Taylor Morrison, Inc. and Sheryl Palmer*

 

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Table of Contents

Exhibit
Number

 

Description

10.8   First Amendment to Employment Agreement, dated May 17, 2012, between Taylor Morrison, Inc. and Sheryl Palmer*
10.9   Employment Agreement, dated as of February 1, 2011, between Taylor Morrison, Inc. and Steve Wethor*
10.10   Employment Agreement, dated as of February 1, 2011, between Taylor Morrison, Inc. and Tawn Kelley*
10.11   Form of Restrictive Covenants Agreement with Taylor Morrison, Inc.*
10.12   TMM Holdings Limited Partnership 2011 Management Incentive Plan*
10.13   Form of Class M Unit Agreement for use with the TMM Holdings Limited Partnership 2011 Management Incentive Plan*
10.14   Taylor Morrison 2013 Omnibus Equity Incentive Plan*
10.15   Taylor Morrison Long-Term Cash Incentive Plan*
10.16   Form of Reorganization Agreement*
21.1   Subsidiaries of Taylor Morrison Home Corporation
23.1   Consent of Deloitte & Touche LLP
23.2   Consent of Paul, Weiss, Rifkind, Wharton & Garrison LLP (included in Exhibit 5)*
24.1   Power of Attorney

 

* To be filed by amendment.
Previously filed.

(b) Financial Statement Schedules:

See our Consolidated Financial Statements starting on page F-1. All other schedules for which provision is made in the applicable accounting regulations of the SEC are not required, are inapplicable or the information is included in the consolidated financial statements, and have therefore been omitted.

 

Item 17. Undertakings

(a) The undersigned registrant hereby undertakes to provide to the underwriters at the closing date specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

(c) The undersigned registrant hereby undertakes that:

(1) for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective.

(2) for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scottsdale, State of Arizona, on the 15th day of January, 2013.

 

T AYLOR M ORRISON H OME C ORPORATION

By:

 

/s/ Sheryl Palmer

  Name:       Sheryl Palmer
  Title:       President and Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities, in the locations and on the dates indicated.

 

Signature

  

Title

 

Date

/s/ Sheryl Palmer

  

President, Chief Executive Officer and Director

(Principal Executive Officer)

 

January 15, 2013

Sheryl Palmer     

/s/ C. David Cone

  

Chief Financial Officer

(Principal Financial Officer and

Principal Accounting Officer)

 

January 15, 2013

C. David Cone     

*

   Director  

January 15, 2013

John Brady     

*

   Director  

January 15, 2013

Kelvin Davis     

*

  

Director and Chairman of the

Board of Directors

 

January 15, 2013

Timothy R. Eller     

*

   Director  

January 15, 2013

Joe S. Houssian     

*

   Director  

January 15, 2013

Jason Keller     

 

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Signature

  

Title

 

Date

*

   Director  

January 15, 2013

Greg Kranias     

*

   Director  

January 15, 2013

Peter Lane     

*

   Director  

January 15, 2013

R. Michael Miller     

*

   Director  

January 15, 2013

Rajath Shourie     

 

*By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman, Attorney-in-Fact

 

II-5


Table of Contents

EXHIBIT INDEX

 

Exhibit
Number

 

Description

  1   Form of Underwriting Agreement*
  3.1   Amended and Restated Certificate of Incorporation of Taylor Morrison Home Corporation*
  3.2   Amended and Restated Bylaws of Taylor Morrison Home Corporation*
  4.1   Indenture, dated as of April 13, 2012, relating to Taylor Morrison Communities, Inc.’s and Monarch Communities Inc.’s 7.750% Senior Notes due 2020, among Taylor Morrison Communities, Inc., Monarch Communities Inc., the guarantors party thereto and Wells Fargo Bank, National Association, as trustee
  4.2   Specimen Class A Common Stock Certificate of Taylor Morrison Home Corporation*
  5   Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP*
10.1   Credit Agreement, dated as of July 13, 2011, among Taylor Morrison Communities, Inc., Monarch Corporation, TMM Holdings Limited Partnership, Monarch Communities Inc., Monarch Parent Inc., Taylor Morrison Holdings, Inc., Taylor Morrison Finance, Inc., the lenders party thereto and Credit Suisse AG, as administrative agent*
10.1(a)   Amended and Restated Credit Agreement, dated as of April 13, 2012, among Taylor Morrison Communities, Inc., Monarch Corporation, TMM Holdings Limited Partnership, Monarch Communities Inc., Monarch Parent Inc., Taylor Morrison Holdings, Inc., Taylor Morrison Finance, Inc., the lenders party thereto and Credit Suisse AG, as administrative agent
10.1(b)   First Amendment to the Amended and Restated Credit Agreement, dated as of August 15, 2012, among Taylor Morrison Communities, Inc., Monarch Corporation, TMM Holdings Limited Partnership, Monarch Communities Inc., Monarch Parent Inc., Taylor Morrison Holdings, Inc., Taylor Morrison Finance, Inc., the lenders party thereto and Credit Suisse AG, as administrative agent
10.1(c)   Second Amendment to the Amended and Restated Credit Agreement, dated as of December 27, 2012, among Taylor Morrison Communities, Inc., Monarch Corporation, TMM Holdings Limited Partnership, Monarch Communities Inc., Monarch Parent Inc., Taylor Morrison Holdings, Inc., Taylor Morrison Finance, Inc., the lenders party thereto and Credit Suisse AG, as administrative agent
10.2   Amended and Restated Registration Rights Agreement*
10.3   Amended and Restated Limited Partnership Agreement of TMM Holdings Limited Partnership*
10.4   Form of Indemnification Agreement*
10.5   Exchange Agreement*
10.6   Stockholders Agreement*
10.7   Employment Agreement, dated as of July 13, 2011, between Taylor Morrison, Inc. and Sheryl Palmer*
10.8   First Amendment to Employment Agreement, dated May 17, 2012, between Taylor Morrison, Inc. and Sheryl Palmer*
10.9   Employment Agreement, dated as of February 1, 2011, between Taylor Morrison, Inc. and Steve Wethor*
10.10   Employment Agreement, dated as of February 1, 2011, between Taylor Morrison, Inc. and Tawn Kelley*

 

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Table of Contents

Exhibit
Number

  

Description

10.11    Form of Restrictive Covenants Agreement with Taylor Morrison, Inc*
10.12    TMM Holdings Limited Partnership 2011 Management Incentive Plan*
10.13    Form of Class M Unit Agreement for use with the TMM Holdings Limited Partnership 2011 Management Incentive Plan*
10.14    Taylor Morrison 2013 Omnibus Equity Incentive Plan*
10.15    Taylor Morrison Long-Term Cash Incentive Plan*
10.16    Form of Reorganization Agreement*
21.1    Subsidiaries of Taylor Morrison Home Corporation
23.1    Consent of Deloitte & Touche LLP
23.2    Consent of Paul, Weiss, Rifkind, Wharton & Garrison LLP (included in Exhibit 5)*
24.1    Power of Attorney†

 

* To be filed by amendment.
Previously filed.

 

II-7

Exhibit 4.1

EXECUTION VERSION

TAYLOR MORRISON COMMUNITIES, INC.

MONARCH COMMUNITIES INC.

Issuers

 

 

7.750% SENIOR NOTES DUE 2020

INDENTURE

Dated as of April 13, 2012

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

Trustee


TABLE OF CONTENTS

 

         Page  
ARTICLE 1.   
DEFINITIONS AND INCORPORATION   
BY REFERENCE   

Section 1.01

 

Definitions

     1   

Section 1.02

 

Other Definitions

     34   

Section 1.03

 

Incorporation by Reference of Trust Indenture Act

     34   

Section 1.04

 

Rules of Construction and Calculation

     35   
ARTICLE 2.   
THE NOTES   

Section 2.01

 

Form and Dating

     35   

Section 2.02

 

Execution and Authentication

     36   

Section 2.03

 

Registrar and Paying Agent

     37   

Section 2.04

 

Paying Agent to Hold Money in Trust

     37   

Section 2.05

 

Holder Lists

     37   

Section 2.06

 

Transfer and Exchange

     37   

Section 2.07

 

Replacement Notes

     48   

Section 2.08

 

Outstanding Notes

     48   

Section 2.09

 

Treasury Notes

     48   

Section 2.10

 

Temporary Notes

     48   

Section 2.11

 

Cancellation

     49   

Section 2.12

 

Defaulted Interest

     49   

Section 2.13

 

CUSIP Numbers

     49   

Section 2.14

 

Issuance of Additional Notes

     49   
ARTICLE 3.   
REDEMPTION AND PREPAYMENT   

Section 3.01

 

Notices to Trustee

     50   

Section 3.02

 

Selection of Notes to Be Redeemed or Purchased

     50   

Section 3.03

 

Notice of Redemption

     50   

Section 3.04

 

Effect of Notice of Redemption

     51   

Section 3.05

 

Deposit of Redemption or Purchase Price

     51   

Section 3.06

 

Notes Redeemed or Purchased in Part

     52   

Section 3.07

 

Optional Redemption

     52   

Section 3.08

 

Mandatory Redemption

     52   

Section 3.09

 

Offer to Purchase by Application of Excess Proceeds

     53   
ARTICLE 4.   
COVENANTS   

Section 4.01

 

Payment of Notes

     54   

Section 4.02

 

Maintenance of Office or Agency

     54   

Section 4.03

 

Reports

     55   

Section 4.04

 

Compliance Certificate

     57   

Section 4.05

 

Taxes

     57   

Section 4.06

 

Stay, Extension and Usury Laws

     57   

Section 4.07

 

Restricted Payments

     58   

Section 4.08

 

Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries

     62   

Section 4.09

 

Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock

     64   

 

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Section 4.10

 

Asset Sales

     69   

Section 4.11

 

Transactions with Affiliates

     71   

Section 4.12

 

Liens

     73   

Section 4.13

 

Permitted Business Activities

     74   

Section 4.14

 

Limitation on Business Activities of Holdings

     74   

Section 4.15

 

Offer to Repurchase Upon Change of Control

     75   

Section 4.16

 

Designation of Restricted and Unrestricted Subsidiaries

     77   

Section 4.17

 

Payments for Consent

     77   

Section 4.18

 

Additional Note Guarantees

     77   

Section 4.19

 

Covenant Termination

     78   
ARTICLE 5.   
SUCCESSORS   

Section 5.01

 

Merger, Consolidation, or Sale of Assets

     78   

Section 5.02

 

Successor Corporation Substituted

     79   
ARTICLE 6.   
DEFAULTS AND REMEDIES   

Section 6.01

 

Events of Default

     80   

Section 6.02

 

Acceleration

     81   

Section 6.03

 

Other Remedies

     81   

Section 6.04

 

Waiver of Past Defaults

     81   

Section 6.05

 

Control by Majority

     82   

Section 6.06

 

Limitation on Suits

     82   

Section 6.07

 

Rights of Holders to Receive Payment

     82   

Section 6.08

 

Collection Suit by Trustee

     82   

Section 6.09

 

Trustee May File Proofs of Claim

     82   

Section 6.10

 

Priorities

     83   

Section 6.11

 

Undertaking for Costs

     83   
ARTICLE 7.   
TRUSTEE   

Section 7.01

 

Duties of Trustee

     83   

Section 7.02

 

Rights of Trustee

     84   

Section 7.03

 

Individual Rights of Trustee

     85   

Section 7.04

 

Trustee’s Disclaimer

     85   

Section 7.05

 

Notice of Defaults

     85   

Section 7.06

 

[Reserved]

     85   

Section 7.07

 

Compensation and Indemnity

     85   

Section 7.08

 

Replacement of Trustee

     86   

Section 7.09

 

Successor Trustee by Merger, etc.

     87   

Section 7.10

 

Eligibility; Disqualification

     87   

Section 7.11

 

Preferential Collection of Claims Against Issuers

     87   
ARTICLE 8.   
LEGAL DEFEASANCE AND COVENANT DEFEASANCE   

Section 8.01

 

Option to Effect Legal Defeasance or Covenant Defeasance

     87   

Section 8.02

 

Legal Defeasance and Discharge

     87   

Section 8.03

 

Covenant Defeasance

     88   

Section 8.04

 

Conditions to Legal or Covenant Defeasance

     88   

Section 8.05

 

Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions

     89   

Section 8.06

 

Repayment to Issuers

     90   

 

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Section 8.07

 

Reinstatement

     90   
ARTICLE 9.   
AMENDMENT, SUPPLEMENT AND WAIVER   

Section 9.01

 

Without Consent of Holders

     90   

Section 9.02

 

With Consent of Holders

     91   

Section 9.03

 

Compliance with Trust Indenture Act

     92   

Section 9.04

 

Revocation and Effect of Consents

     92   

Section 9.05

 

Notation on or Exchange of Notes

     92   

Section 9.06

 

Trustee to Sign Amendments, etc.

     92   
ARTICLE 10.   
NOTE GUARANTEES   

Section 10.01

 

Guarantee

     93   

Section 10.02

 

Limitation on Guarantor Liability

     94   

Section 10.03

 

Execution and Delivery of Note Guarantee

     94   

Section 10.04

 

Guarantors May Consolidate, etc., on Certain Terms

     95   

Section 10.05

 

Releases

     95   
ARTICLE 11.   
SATISFACTION AND DISCHARGE   

Section 11.01

 

Satisfaction and Discharge

     96   

Section 11.02

 

Application of Trust Money

     97   
ARTICLE 12.   
MISCELLANEOUS   

Section 12.01

 

Indenture Shall Control

     97   

Section 12.02

 

Notices

     98   

Section 12.03

 

[Reserved]

     98   

Section 12.04

 

Certificate and Opinion as to Conditions Precedent

     98   

Section 12.05

 

Statements Required in Certificate or Opinion

     99   

Section 12.06

 

Rules by Trustee and Agents

     99   

Section 12.07

 

No Personal Liability of Directors, Officers, Employees and Stockholders

     99   

Section 12.08

 

Governing Law

     99   

Section 12.09

 

No Adverse Interpretation of Other Agreements

     99   

Section 12.10

 

Successors

     99   

Section 12.11

 

Severability

     100   

Section 12.12

 

Counterpart Originals

     100   

Section 12.13

 

Table of Contents, Headings, etc.

     100   

Section 12.14

 

Waiver of Jury Trial

     100   

Section 12.15

 

Force Majeure

     100   

Section 12.16

 

Consent to Jurisdiction and Service

     100   

Section 12.17

 

Currency Indemnity

     101   

Section 12.18

 

U.S.A. Patriot Act

     101   

EXHIBITS

 

Exhibit A1

  FORM OF NOTE

Exhibit A2

  FORM OF REGULATION S TEMPORARY GLOBAL NOTE

Exhibit B

  FORM OF CERTIFICATE OF TRANSFER

Exhibit C

  FORM OF CERTIFICATE OF EXCHANGE

Exhibit D

  FORM OF NOTATION OF NOTE GUARANTEE

Exhibit E

  FORM OF SUPPLEMENTAL INDENTURE

 

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INDENTURE dated as of April 13, 2012, among Taylor Morrison Communities, Inc., a Delaware corporation, and Monarch Communities Inc., a British Columbia corporation (together, the “ Issuers ”), the Guarantors (as defined) and Wells Fargo Bank, National Association, a national banking association, as trustee (the “ Trustee ”).

The Issuers, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined) of the Issuers’ 7.750% Senior Notes due 2020 (the “ Notes ”):

ARTICLE 1.

DEFINITIONS AND INCORPORATION

BY REFERENCE

Section 1.01 Definitions .

144A Global Note ” means a Global Note substantially in the form of Exhibit A1 hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.

Acquired Debt ” means, with respect to any specified Person:

(1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and

(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

Additional Assets ” means any property or assets (other than Indebtedness and Capital Stock) to be used by the Restricted Parents or any of their Restricted Subsidiaries in a Permitted Business.

Additional Notes ” means any Notes (other than the Initial Notes), if any, issued under this Indenture in accordance with Sections 2.02, 2.14 and 4.09.

Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.

Acquisition ” means (1) the acquisition by Aylesbury Acquisition, Inc. of Taylor Woodrow Holdings (USA) Inc. and (2) the acquisition by 2279154 Ontario, Inc. from Taylor Wimpey plc of Taylor Wimpey Holdings of Canada, Corporation and the amalgamations thereafter resulting in the Canadian Issuer becoming the successor of Monarch Corporation, Taylor Wimpey Holdings of Canada, Corporation and 2279154 Ontario Inc., in each case in accordance with and pursuant to the terms of the Stock Purchase Agreement.

Applicable Accounting Standards ” means, as of the Issue Date, U.S. GAAP; provided , however , that the Issuers may, upon not less than sixty (60) days’ prior written notice to the Trustee, change the Applicable Accounting Standards to IFRS; provided , however , that notwithstanding the foregoing, if the Issuers so change to IFRS, they may elect, in their sole discretion, to continue to utilize U.S. GAAP for the purposes of making all calculations under this Indenture that are subject to Applicable Accounting Standards and the notice to the Trustee required upon the change to IFRS shall set forth whether or not the Issuers intend to continue to use U.S. GAAP for purposes of making all calculations under this Indenture.

 

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In the event the Issuers elect to change to IFRS for purposes of making calculations under this Indenture, references in this Indenture to a standard or rule under U.S. GAAP shall be deemed to refer to the most nearly comparable standard or rule under IFRS.

Agent ” means any Registrar, co-registrar, Paying Agent or additional paying agent.

Applicable Premium ” means, with respect to any Note on any Redemption Date, the greater of:

(1) 1.0% of the principal amount of such Note; and

(2) the excess, if any, of (a) the present value at such Redemption Date of (i) the redemption price (such redemption price being set forth in the table appearing in Section 3.07(c)) of such Note at April 15, 2015, plus (ii) all required interest payments due on such Note (excluding accrued but unpaid interest to the Redemption Date) to, but excluding, April 15, 2015, computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over (b) the principal amount of such Note.

Applicable Procedures ” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.

Asset Sale ” means:

(1) the sale, lease (other than operating leases), conveyance or other disposition of any assets or rights outside of the ordinary course of business; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Restricted Parents and their Restricted Subsidiaries, taken as a whole, will be governed by Section 4.15 and/or Section 5.01 and not by the provisions of Section 4.10; and

(2) the issuance of Equity Interests in any of the Restricted Parents’ Restricted Subsidiaries or the sale of Equity Interests in any such Restricted Subsidiary (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Restricted Parents or any of their Restricted Subsidiaries).

Notwithstanding the preceding, none of the following items shall be deemed to be an Asset Sale:

(1) any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $7.5 million;

(2) a transfer of assets between or among the Restricted Parents and their Restricted Subsidiaries;

(3) an issuance of Equity Interests by a Restricted Subsidiary of a Restricted Parent to any other Restricted Subsidiary of a Restricted Parent or to either Restricted Parent;

(4) the sale, factoring or lease of inventory (including homes, Housing Units, land, Lots and all or portions of master planned communities and condominium units, including in each case any facilities or amenities relating thereto), Model Home Units, mortgages or other loans, including loans of a Mortgage Subsidiary, services or accounts receivable (including at a discount and in connection with factoring arrangements) in the ordinary course of business or consistent with past practice and any sale or other disposition of damaged, worn-out, negligible, surplus or obsolete assets in the ordinary course of business;

(5) the sale or other disposition of Cash Equivalents;

(6) a Restricted Payment or Permitted Investment that does not violate Section 4.07;

 

- 2 -


(7) sale and leaseback transaction with respect to any assets within 180 days of the acquisition of such assets;

(8) any exchange of like-kind property of the type described in Section 1031 of the Internal Revenue Code of 1986, as amended, for use in a Permitted Business;

(9) a disposition of assets or property subject to a Lien held by the Restricted Parents or a Restricted Subsidiary of a Restricted Parent in a foreclosure or other similar proceeding or in connection with a transfer in lieu of a foreclosure;

(10) the unwinding of any Hedging Obligations;

(11) the sale or disposition of any assets or property received as a result of a foreclosure by the Restricted Parents or any of their Restricted Subsidiaries;

(12) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice;

(13) the sale, lease, conveyance, disposition or other transfer of the securities of, or any Investment in, any Unrestricted Subsidiary;

(14) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind;

(15) a disposition of leasehold improvements or leased assets in connection with the termination of any operating lease;

(16) leases or subleases, or assignments of leased facilities, to third persons;

(17) in the ordinary course of business, any swap of assets, or lease, assignment or sublease of any real or personal property, in exchange for services (including in connection with any outsourcing arrangements) of comparable or greater value or usefulness to the business of the Restricted Parents and its Restricted Subsidiaries as a whole, as determined in good faith by an Issuer;

(18) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;

(19) the sale of interests in a joint venture pursuant to customary put-call or buy-sell arrangements; and

(20 the creation or realization of a Lien to the extent that the granting of such Lien was not in violation of Section 4.12.

Bankruptcy Law ” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.

Below Investment Grade Rating Event ” means that the Notes become rated below an Investment Grade Rating by one or more of the Rating Agencies on any date from the date of the public notice of an arrangement that results in a Change of Control until the end of the 60 day period following public notice of the occurrence of a Change of Control (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies). In determining whether a Change of Control has occurred for purposes of this definition, clause (E) of the last paragraph of the definition of Change of Control shall be disregarded.

 

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Board of Directors ” means:

(1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

(2) with respect to a partnership, the Board of Directors of the general partner of the partnership;

(3) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and

(4) with respect to any other Person, the board or committee of such Person serving a similar function.

Bridge Loans ” means the Indebtedness under that certain Unsecured Facility Credit Agreement, dated as of July 13, 2011, among Holdings, U.S. Holdings, the Issuers, TPG Partners VI, L.P. and Oaktree Capital Management, L.P. and certain Affiliates of Oaktree Capital Management, L.P., as amended to date.

Business Day ” means each day that is not a Saturday, a Sunday or a day on which banking institutions are not required to be open in the State of New York, the State of Arizona or the Province of Ontario. If a payment date is not a Business Day at such place, payment may be made at such place on the next succeeding Business Day, and no interest shall accrue for the intervening period.

Canadian Issuer ” means Monarch Communities Inc., a British Columbia corporation.

Canadian LC Facilities ” means (i) that certain credit facility among the Canadian Issuer and The Toronto-Dominion Bank, dated July 27, 2011, as modified by a consent letter dated July 12, 2011 and as further modified by an amendment dated December 22, 2011 and (ii) that certain credit facility among the Canadian Issuer and HSBC Bank Canada, as lender, dated July 11, 2011, providing for up to an aggregate of CAN $150.0 million of letters of credit, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced by any other Indebtedness (including by means of sales of debt securities and including any amendment, restatement, modification, renewal, refunding, replacement or refinancing that increases the amount borrowed thereunder or extends the maturity thereof) in whole or in part from time to time. Any agreement or instrument other than the Canadian LC Facilities in effect on the Issue Date must be designated in a writing delivered to the Trustee by the Issuers as a “Canadian LC Facility” for purposes of this Indenture in order to be deemed a Canadian LC Facility.

Capital Lease Obligation ” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with Applicable Accounting Principles, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.

Capital Stock ” means:

(1) in the case of a corporation, corporate stock;

(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

- 4 -


Cash Equivalents ” means:

(1) United States dollars or any other currencies held from time to time in the ordinary course of business;

(2) securities issued or directly and fully and unconditionally guaranteed or insured by the United States government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition;

(3) certificates of deposit, time deposits and eurodollar time deposits with maturities of two years or less from the date of acquisition, bankers’ acceptances with maturities not exceeding two years and overnight bank deposits, in each case with any domestic commercial bank having capital and surplus of not less than $250.0 million;

(4) repurchase obligations for underlying securities of the types described in clauses (2), (3) and (7) entered into with any financial institution meeting the qualifications specified in clause (3) above;

(5) commercial paper rated at least P-1 by Moody’s or at least A-1 by S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Issuers) and in each case maturing within 24 months after the date of creation thereof and Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of 24 months or less from the date of acquisition;

(6) marketable short-term money market and similar funds either having (A) assets in excess of $250.0 million or (B) a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Issuers);

(7) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Issuers) with maturities of 24 months or less from the date of acquisition;

(8) readily marketable direct obligations issued by any foreign government or any political subdivision or public instrumentality thereof, in each case having an Investment Grade Rating from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Issuers) with maturities of 24 months or less from the date of acquisition; and

(9) investment funds investing at least 90% of their assets in securities of the types described in clauses (1) through (8) above.

Change of Control ” means the occurrence of any of the following:

(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Restricted Parents and their Restricted Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d) of the Exchange Act) other than Permitted Holders;

 

- 5 -


(2) the adoption of a plan relating to the liquidation or dissolution of Holdings, U.S. Holdings or an Issuer; or

(3) Holdings, U.S. Holdings or an Issuer becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by (A) any Person (other than any Permitted Holder) or (B) Persons (other than any Permitted Holder) that are together a group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any such group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of more than 50.0% of the total voting power of the Voting Stock of Holdings directly or indirectly through any direct or indirect parent holding companies of Holdings; provided that a Change of Control shall not be deemed to have occurred solely as a result of Holdings becoming a Subsidiary of any direct or indirect parent holding companies so long as no Person or Persons that are together a group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any such group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision), in each case other than the Permitted Holders, owns or holds, directly or indirectly, more than 50.0% of the total voting power of the ultimate parent holding company. For purposes of calculating beneficial ownership of any Person under this clause (3), such Person will be deemed to also have beneficial ownership of all securities that such Person has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time.

Notwithstanding the foregoing: (A) the transfer of assets between or among the Restricted Subsidiaries, Holdings and the Restricted Parents shall not itself constitute a Change of Control; (B) the term “Change of Control” shall not include a merger or consolidation of a Restricted Parent (or any direct or indirect parent thereof) with, or the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of such Restricted Parent (or direct or indirect parent thereof) to, an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing U.S. Holdings or an Issuer in another jurisdiction and/or for the sole purpose of forming or collapsing a holding company structure; (C) a “person” or “group” shall not be deemed to have beneficial ownership of securities subject to a stock purchase agreement, merger agreement or similar agreement (or voting or option agreement related thereto) until the consummation of the transactions contemplated by such agreement; (D) a sale of assets pursuant to a Designated Asset Sale or a transfer of Excess Designated Proceeds shall not itself constitute a Change of Control; and (E) any of the events described above in clauses (1) through (3) shall not constitute a “Change of Control” after a Covenant Termination Event unless a Below Investment Grade Rating Event also occurs in connection therewith.

Clearstream ” means Clearstream Banking, S.A.

Consolidated Adjusted EBITDA ” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:

(1) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

(2) the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that such Fixed Charges were deducted in computing such Consolidated Net Income; plus

 

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(3) depreciation, amortization (including amortization of intangibles, deferred financing fees, debt incurrence costs, commissions, fees and expenses, but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses or charges (including any write-offs of debt issuance or deferred financing costs or fees and impairment charges and the impact on depreciation and amortization of purchase accounting, but excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses or charges were deducted in computing such Consolidated Net Income; plus

(4) the amount of net loss resulting from the payment of any premiums, fees or similar amounts that are required to be paid under the terms of the instrument(s) governing any Indebtedness upon the repayment, prepayment or other extinguishment of such Indebtedness in accordance with the terms of such Indebtedness, to the extent any such net loss reduced Consolidated Net Income; plus

(5) transaction costs incurred in connection with any acquisition or financing, in each case to the extent deducted in computing such Consolidated Net Income; plus

(6) any impairment charges or asset write-offs, in each case pursuant to Applicable Accounting Principles, to the extent such charges or write-offs were deducted in computing Consolidated Net Income; minus

(7) non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business; plus

(8) (A) other non-recurring or one-time cash charges and expenses to the extent such charges or expenses reduced Consolidated Net Income, (B) restructuring charges or reserves or non-recurring integration costs, to the extent such charges, reserves or costs were deducted in computing Consolidated Net Income and (C) the amount of Pro Forma Cost Savings (net of the amount of actual benefits realized prior to or during such period) projected by Holdings in good faith to be realized during the next four consecutive fiscal quarters (which Pro Forma Cost Savings shall be added to Consolidated Adjusted EBITDA except to the extent actually realized and calculated as though such cost savings had been realized on the first day of such period); provided that the aggregate amount added pursuant to this clause (8) in such period shall not exceed (i) with respect to any twelve-month period ending on or prior to December 31, 2013, 15%, and (ii) with respect to any twelve-month period ending thereafter, 10%, in each case of Consolidated Adjusted EBITDA of Holdings, U.S. Holdings, the Issuers and their Restricted Subsidiaries on a consolidated basis for such period (calculated prior to giving effect to any adjustment pursuant to this clause (8)); plus

(9) the amount of management, monitoring, consulting, advisory and other fees (including termination fees) and indemnities and expenses paid or accrued in such period; and plus

(10) the amount of Net Income excluded pursuant to clause (5) of the definition of Consolidated Net Income, except to the extent that the declaration or payment of dividends or similar distributions by the relevant Person of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to the relevant Person or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived.

Consolidated Adjusted Tangible Assets ” means, as at any date of determination, the total amount of all assets of Holdings and its Restricted Subsidiaries as shown on the consolidated balance sheet of Holdings for the then most recently completed fiscal quarter for which internal financial statements are available, less, without duplication, Intangible Assets and assets purchased, constructed, leased, installed or

 

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improved after the Issue Date with the proceeds of Indebtedness incurred under Section 4.09(b)(4); provided that assets of Restricted Subsidiaries that are not Wholly Owned Subsidiaries of a Restricted Parent will be included in the calculation of Consolidated Adjusted Tangible Assets only to the extent the Capital Stock of such Restricted Subsidiaries is owned by a Restricted Parent and/or any Restricted Subsidiary of a Restricted Parent, in each case, determined on a consolidated basis in accordance with Applicable Accounting Standards, with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set out in the definition of Fixed Charge Coverage Ratio.

Consolidated Net Income ” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with Applicable Accounting Standards; provided that, without duplication:

(1) any net after-tax extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) and any restructuring expenses, including any severance expenses, relocation expenses, one-time compensation charges, curtailments or modifications to pension and post-retirement employee benefit plans, any expenses related to any reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternate uses and fees, expenses or charges relating to facilities closing costs, acquisition integration costs, facilities opening costs, business optimization costs, signing, retention or completion bonuses or expenses (including relating to severance, relocation, one-time compensation charges, the acquisition transaction and reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternate uses, facilities closing costs, acquisition integration costs, facilities opening costs, business optimization costs and signing, retention or completion bonuses) shall be excluded;

(2) the cumulative effect of a change in accounting principles during such period, whether effected through a cumulative effect adjustment or a retroactive application in each case in accordance with Applicable Accounting Principles shall be excluded;

(3) any net after-tax income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed or discontinued operations shall be excluded;

(4) any net after-tax gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions or the sale or other disposition of any Capital Stock of any Person other than in the ordinary course of business, as determined in good faith by an Issuer, shall be excluded;

(5) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of such Person shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period (subject in the case of dividends, distributions or other payments made to a Restricted Subsidiary to the limitations contained in clause (6) below);

(6) solely for the purpose of determining the amount available for Restricted Payments under the Cumulative Buildup Basket, the Net Income for such period of any Restricted Subsidiary (other than any Subsidiary Guarantor) shall be excluded if the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided that Consolidated Net Income of such Person shall be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) to a Restricted Parent or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein;

 

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(7) any increase in amortization or depreciation or other noncash charges resulting from the application of purchase accounting in relation to any acquisition that is consummated after the Issue Date, net of taxes, shall be excluded;

(8) any net after-tax income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments shall be excluded;

(9) any impairment charge or asset write-off (other than with respect to inventory), in each case pursuant to Applicable Accounting Standards, and the amortization of intangibles arising pursuant to Applicable Accounting Standards shall be excluded;

(10) any unrealized net after-tax income (loss) from Hedging Obligations or cash management Obligations and the application of Accounting Standards Codification Topic 815 “Derivatives and Hedging” or from other derivative instruments shall be excluded;

(11) currency translation gains or losses (or similar charges) or net gains or losses related to currency remeasurements of Indebtedness (including any net loss or gain resulting from Hedging Obligations for currency exchange risk entered in relation with Indebtedness) will be excluded;

(12) any charges resulting from the application of Accounting Standards Codification Topic 805 “Business Combinations,” Accounting Standards Codification Topic 350 “Intangibles—Goodwill and Other,” Accounting Standards Codification Topic 360-10-35-15 “Impairment or Disposal of Long-Lived Assets” (other than with respect to impairments or write-offs of inventory), Accounting Standards Codification Topic 480-10-25-4 “Distinguishing Liabilities from Equity—Overall—Recognition” or Accounting Standards Codification Topic 820 “Fair Value Measurements and Disclosures” shall be excluded;

(13) non-cash interest expense resulting from the application of Accounting Standards Codification Topic 470-20 “Debt—Debt with Conversion Options—Recognition” shall be excluded;

(14) any expenses or charges related to the Transactions, any Equity Offering, non-ordinary course Permitted Investment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by this Indenture; including a refinancing thereof (whether or not successful) and any amendment or modification to the terms of any such transactions, shall be excluded;

(15) all net after-tax charges, expenses, gain or income with respect to curtailments, discontinuations or modifications to pension and post-retirement employee benefit plans shall be excluded;

(16) any (a) one-time non-cash compensation charges, (b) non-cash costs or expenses resulting from stock option plans, employee benefit plans, compensation charges or post-employment benefit plans, or grants or awards of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other rights and (c) write-offs or write-downs of goodwill will be excluded; and

(17) the net after-tax effect of any purchase accounting adjustments to housing inventory under production at the date of the Acquisition will be excluded.

Consolidated Total Indebtedness ” means, as at any date of determination, an amount equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of Holdings and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, Obligations in respect

 

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of Capital Lease Obligations and debt obligations evidenced by promissory notes and similar instruments, as determined in accordance with Applicable Accounting Standards (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with any permitted acquisition under this Indenture) and (2) the aggregate amount of all outstanding Disqualified Stock of Holdings and its Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with Applicable Accounting Standards; provided that Consolidated Total Indebtedness shall not include Indebtedness in respect of (i) letters of credit, except to the extent of unreimbursed amounts thereunder, (ii) Unrestricted Subsidiaries, (iii) Hedging Obligations and (iv) Guarantees, except to the extent Holdings or any of its Restricted Subsidiaries has made any payment in respect of any such Guarantee. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock or preferred stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or preferred stock as if such Disqualified Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock, such fair market value shall be determined reasonably and in good faith by the Issuers.

Corporate Trust Office of the Trustee ” shall be at the address of the Trustee specified in Section 12.02 or such other address as to which the Trustee may give notice to the Issuers.

Credit Agreement ” means that certain Credit Agreement, dated as of July 13, 2011, by and among the U.S. Issuer and Monarch Corporation, as borrowers, Holdings, the Canadian Issuer, U.S. Holdings, Credit Suisse AG, as administrative agent, and various lenders providing for revolving credit borrowings, including any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced by any other term or revolving Indebtedness (including by means of sales of debt securities and including any amendment, restatement, modification, renewal, refunding, replacement or refinancing that increases the amount borrowed thereunder or extends the maturity thereof) in whole or in part from time to time. Any agreement or instrument other than the Credit Agreement in effect on the Issue Date must be designated in a writing delivered to the trustee by the Issuers as a “Credit Agreement” for purposes of this Indenture in order to be deemed a Credit Agreement.

Credit Facilities ” means one or more debt facilities or commercial paper facilities (including the credit facilities provided under the Credit Agreement), in each case, with banks or other lenders or credit providers or a Trustee providing for the revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables), bankers acceptances, letters of credit or issuances of debt securities, including any related notes, guarantees, collateral documents, instruments, documents and agreements executed in connection therewith and in each case, as amended, restated, modified, renewed, extended, supplemented, restructured, refunded, replaced in any manner (whether upon or after termination or otherwise) or in part from time to time, in one or more instances and including any amendment increasing the amount of Indebtedness incurred or available to be borrowed thereunder, extending the maturity of any Indebtedness incurred thereunder or contemplated thereby or deleting, adding or substituting one or more parties thereto (whether or not such added or substituted parties are banks or other institutional lenders), including one or more separate instruments or facilities, in each case, whether any such amendment, restatement, modification, renewal, extension, supplement, restructuring, refunding, replacement or refinancing occurs simultaneously or not with the termination or repayment of a prior Credit Facility. Any agreement or instrument other than the Credit Agreement in effect on the Issue Date must be designated in a writing delivered to the Trustee by the Issuers as a “Credit Facility” for purposes of this Indenture in order to be a Credit Facility.

Custodian ” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.

 

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Default ” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

Definitive Note ” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06, substantially in the form of Exhibit A1 hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.

Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.

Designated Asset Sale ” means the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of Designated Assets (including by way of a sale and lease-back transaction and including the disposition of Capital Stock of any Subsidiary) of Holdings, U.S. Holdings, the Issuers or any of their Restricted Subsidiaries such that, on a pro forma basis, after giving effect to such sale, conveyance, transfer or other disposition (and the repayment, prepayment, purchase or other retirement (if any) of any Indebtedness of Holdings or any of its Restricted Subsidiaries related to such transaction), the Specified Inventory Ratio of Holdings and its Restricted Subsidiaries is greater than 2.00 to 1.00; provided , however , that the aggregate amount of all Designated Asset Sales plus the aggregate amount of all Restricted Payments made in reliance on the last sentence of the definition of “Excess Designated Proceeds” shall not exceed $150.0 million since the Issue Date.

Designated Assets ” means any property or assets (including Capital Stock of any Subsidiary) of Holdings, U.S. Holdings, the Issuers and their Restricted Subsidiaries constituting a business, a line or unit of a business or used in operating a business substantially as an entirety.

Designated Noncash Consideration ” means any non-cash consideration received by a Restricted Parent or any of Restricted Subsidiary of a Restricted Parent in connection with an Asset Sale that is designated as Designated Noncash Consideration pursuant to an Officer’s Certificate delivered to the Trustee.

Designated Preferred Stock ” means with respect to any specified Person preferred stock of such Person (other than Disqualified Stock), that is issued for cash (other than to a Subsidiary Guarantor, a Restricted Parent or a Restricted Subsidiary of a Restricted Parent) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate executed on the date of such issuance.

Disqualified Stock ” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 90 days after the date on which the Notes mature. Notwithstanding the preceding sentence, (x) any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Person that issued such Capital Stock to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock, (y) any Capital Stock that would constitute Disqualified Stock solely as a result of any redemption feature that is conditioned upon, and subject to, compliance with Section 4.07 will not constitute Disqualified Stock and (z) any Capital Stock issued to any plan for the benefit of employees will not constitute Disqualified Stock solely because it may be required to be repurchased by the Person that issued such Capital Stock in order to satisfy applicable statutory or regulatory obligations. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Restricted Parents and their Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

 

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Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

Equity Offering ” means a public or private offering of Capital Stock (other than Disqualified Stock) of a Restricted Parent or a direct or indirect parent of a Restricted Parent.

Euroclear ” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.

Excess Designated Proceeds ” means, with respect to any Designated Asset Sale:

(1) that portion of the Net Proceeds from such Designated Asset Sale that remains after giving effect to the repayment or prepayment, purchase or other retirement of Indebtedness in connection with such Designated Asset Sale; and

(2) any non-cash proceeds of any Designated Asset Sale.

For purposes of Section 4.07(b)(15) any Designated Assets used to make a Restricted Payment in kind shall constitute Excess Designated Proceeds if the Specified Inventory Ratio of Holdings and its Restricted Subsidiaries, on a pro forma basis, after giving effect to such Restricted Payment and the repayment, prepayment, purchase or other retirement (if any) of any Indebtedness in connection with the making of such Restricted Payment, is greater than 2.00 to 1.00; provided , however , that the aggregate amount of all Designated Asset Sales plus the aggregate amount of all such in-kind Restricted Payments made in reliance on this sentence shall not exceed $150.0 million since the Issue Date.

Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time.

Excluded Contributions ” means net cash proceeds, marketable securities or Qualified Proceeds received on or after the Issue Date by a Restricted Parent from (a) contributions to its common equity capital and (b) the sale (other than to a Restricted Parent or a Subsidiary of a Restricted Parent or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of a Restricted Parent or a Subsidiary of a Restricted Parent) of Equity Interests (other than Disqualified Stock and Designated Preferred Stock) of Holdings, in each case designated as Excluded Contributions pursuant to an Officer’s Certificate on the date such capital contributions are made or the date such Equity Interests are sold, as the case may be, that are excluded from the calculation of the Cumulative Buildup Basket; provided that Excluded Contributions shall not duplicate amounts received in transactions in respect of Indebtedness described in Section 4.07(b)(17).

Excluded Subsidiary ” means (a) any Subsidiary that is restricted by applicable law from guaranteeing the Notes, (b) any Immaterial Subsidiary (provided that Immaterial Subsidiaries shall not be excluded from Guaranteeing the Notes to the extent that (i) the aggregate amount of gross revenue for all Immaterial Subsidiaries excluded by this clause (b) exceeds 5% of the consolidated gross revenues of Holdings, U.S. Holdings, the Issuers and their Restricted Subsidiaries for Holdings’ most recently ended four full fiscal quarters for which internal financial statements are available or (ii) the aggregate amount of total assets for all Immaterial Subsidiaries excluded by this clause (b) exceeds 5% of Consolidated Adjusted Tangible Assets, (c) any Mortgage Subsidiary, (d) any Insurance Subsidiary and (e) any Non-U.S. Subsidiary. In the event it is necessary for one or more Immaterial Subsidiaries to guarantee the Notes to comply with the proviso to clause (b) above, the Restricted Parents will cause one or more Immaterial Subsidiaries to Guarantee the Notes as and to the extent required to comply with such proviso within 30 days from when the financial statements referred to above are available.

Existing Indebtedness ” means Indebtedness existing on the Issue Date after giving effect to the Transactions, plus interest accruing thereon.

Fair Market Value ” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Board of Directors, chief executive officer or chief financial officer of an Issuer (unless otherwise provided in this Indenture).

 

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Fixed Charge Coverage Ratio ” means with respect to Holdings for any period, the ratio of the Consolidated Adjusted EBITDA of Holdings and its Restricted Subsidiaries for such period to the Fixed Charges of Holdings and its Restricted Subsidiaries for such period. In the event that Holdings or any of its Restricted Subsidiaries incurs, assumes, Guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock or Disqualified Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “ Calculation Date ”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock or Disqualified Stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period; provided , however , that the pro forma calculation of Fixed Charges shall not give effect to (x) any Permitted Debt incurred on the Calculation Date or (y) any discharge of Indebtedness on the Calculation Date to the extent such discharge results from the proceeds of Permitted Debt.

In addition, for purposes of calculating the Fixed Charge Coverage Ratio:

(1) Investments, acquisitions, mergers, consolidations, dispositions, amalgamations (including the Transactions), discontinued operations (as determined in accordance with Applicable Accounting Standards) and any operational changes that have been made by Holdings or any of its Restricted Subsidiaries, or any Person or any of its Restricted Subsidiaries acquired by, merged or consolidated with Holdings or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date will be given pro forma effect, including giving effect to Pro Forma Cost Savings, as if they had occurred on the first day of the four-quarter reference period;

(2) the Consolidated Adjusted EBITDA attributable to discontinued operations, as determined in accordance with Applicable Accounting Standards, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded;

(3) the Fixed Charges attributable to discontinued operations, as determined in accordance with Applicable Accounting Standards, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of Holdings or any of its Restricted Subsidiaries following the Calculation Date;

(4) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;

(5) any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period; and

(6) if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness).

For purposes of this definition, whenever pro forma effect is given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of an Issuer. For purposes of determining whether any Indebtedness constituting a Guarantee may be incurred, the interest on the Indebtedness to be guaranteed shall be included in calculating the Fixed Charge Coverage Ratio on a pro forma basis. Interest on a Capital Lease Obligation shall be deemed to accrue at an

 

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interest rate reasonably determined by a responsible financial or accounting officer of an Issuer to be the rate of interest implicit in such Capital Lease Obligation in accordance with Applicable Accounting Standards. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as an Issuer may designate.

Fixed Charges ” means, with respect to Holdings and its Restricted Subsidiaries for any period, the sum, without duplication, of:

(1) the consolidated interest expense of Holdings and its Restricted Subsidiaries for such period, net of interest income, whether paid or accrued, including original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all cash payments made or received pursuant to Hedging Obligations in respect of interest rates, and excluding amortization or write-off of deferred financing costs; plus

(2) any interest on Indebtedness of another Person that is guaranteed by Holdings or one of its Restricted Subsidiaries or secured by a Lien on assets of Holdings or one of its Restricted Subsidiaries, other than guarantees incurred under clauses (30) or (31) of Section 4.09(b) and Permitted Liens associated therewith (unless Holdings or any of its Restricted Subsidiaries has made any payment in respect of such guarantee); plus

(3) all cash dividends, paid on any series of Disqualified Stock of Holdings or preferred stock of any of its Restricted Subsidiaries (other than to a Restricted Parent or a Restricted Subsidiary of a Restricted Parent); plus

(4) capitalized interest, in each case, determined on a consolidated basis in accordance with Applicable Accounting Standards.

Notwithstanding the foregoing, any charges arising from (i) the application of Accounting Standards Codification Topic 480-10-25-4 “Distinguishing Liabilities from Equity—Overall—Recognition” to any series of preferred stock other than Disqualified Stock or (ii) the application of Accounting Standards Codification Topic 470-20 “Debt—Debt with Conversion Options—Recognition,” in each case, shall be disregarded in the calculation of Fixed Charges.

Global Note Legend ” means the legend set forth in Section 2.06(f)(2) which is required to be placed on all Global Notes issued under this Indenture.

Global Notes ” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A1 and A2 hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or 2.06(e).

Government Securities ” means direct obligations of, or obligations guaranteed by, the United States of America (including any agency or instrumentality thereof) and the payment for which the United States pledges its full faith and credit.

Guarantee ” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).

 

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Guarantors ” means (a) each Person that executes this Indenture on the date hereof (other than the Issuers and the Trustee) and (b) each Person that subsequently executes a Note Guarantee in accordance with the provisions of this Indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.

Hedging Obligations ” means, with respect to any specified Person, the obligations of such Person under:

(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

(2) other agreements or arrangements designed to manage interest rates or interest rate risk; and

(3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.

Holder ” means a Person in whose name a Note is registered.

Holdings ” means TMM Holdings Limited Partnership, a British Columbia limited partnership.

Housing Unit ” means a detached or attached (including townhouse condominium or condominium) single-family house (but excluding mobile homes) owned by a Restricted Parent or a Subsidiary of a Restricted Parent (i) which is completed or for which there has been a start of construction and (ii) which has been or is being constructed on any real estate which immediately prior to the start of construction constituted a Lot.

IFRS ” means the International Financial Reporting Standards, as promulgated by the International Accounting Standards Board (or any successor board or agency), as in effect on the date of the election, if any, by the Issuers to change Applicable Accounting Standards to IFRS; provided that IFRS shall not include any provision of such standards that would require a lease that would be classified as an operating lease under U.S. GAAP to be classified as indebtedness or a finance or capital lease.

Immaterial Subsidiary ” means, at any date of determination, any Subsidiary of a Restricted Parent whose total assets at the last day of the most recently ended fiscal quarter ending immediately prior to such date for which internal financial statements are available were less than 5.0% of Consolidated Adjusted Tangible Assets at such last day and whose gross revenues for the most recently ended four fiscal quarters ending immediately prior to such date for which internal financial statements are available were less than 5% of the consolidated gross revenues of Holdings, U.S. Holdings, the Issuers and their Restricted Subsidiaries for such period, in each case determined in accordance with Applicable Accounting Standards.

Indebtedness ” means, with respect to any specified Person, the principal and premium (if any) of any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent (without duplication):

(1) in respect of borrowed money;

(2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof) (other than letters of credit issued in respect of trade payables);

 

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(3) in respect of banker’s acceptances;

(4) representing Capital Lease Obligations;

(5) representing the balance deferred and unpaid of the purchase price of any property or services due more than twelve months after such property is acquired or such services are completed (except any such balance that constitutes a trade payable or similar obligation to a trade creditor); or

(6) representing the net obligations under any Hedging Obligations,

if and to the extent any of the preceding items (other than letters of credit, and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with Applicable Accounting Standards. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. Notwithstanding the foregoing, the term “Indebtedness” shall not include (a) in connection with the purchase by any of the Restricted Parents or their Restricted Subsidiaries of any business, post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing unless such payments are required under Applicable Accounting Standards to appear as a liability on the balance sheet (excluding the footnotes); provided , however , that at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 30 days thereafter; (b) contingent obligations; incurred in the ordinary course of business and not in respect of borrowed money; (c) deferred or prepaid revenues; (d) any Capital Stock other than Disqualified Stock; or (e) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller. Notwithstanding anything in this Indenture to the contrary, Indebtedness shall not include, and shall be calculated without giving effect to, the effects of ASC Topic 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result of accounting for any embedded derivatives created by the terms of such Indebtedness; and any such amounts that would have constituted Indebtedness under this Indenture but for the application of this sentence shall not be deemed an Incurrence of Indebtedness under this Indenture.

Independent Qualified Party ” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in the real estate business of nationally recognized standing that is, in the good faith judgment of the Board of Directors of the Issuers, qualified to perform the task for which it has been engaged; provided , however , that such firm or consultant is not an Affiliate of Holdings.

Indenture ” means this Indenture, as amended or supplemented from time to time.

Indirect Participant ” means a Person who holds a beneficial interest in a Global Note through a Participant.

Initial Notes ” means the first $550.0 million aggregate principal amount of Notes issued under this Indenture.

Initial Purchasers ” means Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and HSBC Securities (USA) Inc.

Insurance Subsidiaries ” means (1) Taylor Woodrow Insurance Services, Inc., (2) Beneva Indemnity Company and (3) any other corporation, limited partnership, limited liability company or business trust that is (A) organized after the Issue Date or designated by an Issuer as an Insurance Subsidiary pursuant to an Officer’s Certificate delivered to the Trustee and (B) a Subsidiary of a Restricted Parent; provided that, in the case of clause (1), (2) and (3), such Person is primarily engaged in the business it is engaging in on the Issue Date or is otherwise primarily engaged in the business of

 

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providing title insurance, captive insurance (whether for an Issuer and its Subsidiaries or otherwise) or insurance agency or other ancillary or complementary services that in each case is subject to state regulation and/or licensing requirements.

Intangible Assets ” means all unamortized debt discount and expense, unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, write-ups of assets over their prior carrying value (other than write-ups which occurred prior to July 14, 2011 and other than, in connection with the acquisition of an asset, the write-up of the value of such asset (within one year of its acquisition) to its fair market value in accordance with Applicable Accounting Standards) and all other items which would be treated as intangible on the consolidated balance sheet of Holdings, U.S. Holdings, the Issuers and their Restricted Subsidiaries prepared in accordance with Applicable Accounting Standards.

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.

Investments ” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel, relocation and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with Applicable Accounting Standards. The outstanding amount of any Investment shall be the original cost thereof, reduced by all returns on such Investment (including dividends, interest, distributions, returns of principal and profits on sale).

Issue Date ” means April 13, 2012.

Issuers ” shall have the meaning assigned to such term in the introductory statement of this Indenture.

Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.

Lots ” means all land owned by a Restricted Parent or a Subsidiary of a Restricted Parent which is zoned by the applicable governmental authority having jurisdiction for construction and use as Housing Units.

Management Services Agreements ” means the Management Services Agreements as in effect on July 13, 2011, as described under the caption “Certain Relationships and Related Party Transactions” in the Offering Circular.

Model Home Unit ” means a completed Housing Unit to be used as a model home in connection with the sale of Housing Units in a residential housing project.

Moody’s ” means Moody’s Investors Service, Inc.

Mortgage Subsidiary ” means (1) Taylor Morrison Home Funding LLC, (2) Mortgage Funding Direct Ventures, LLC and (3) any corporation, limited partnership, limited liability company or business trust that is (A) organized after the Issue Date or designated by an Issuer as a Mortgage Subsidiary pursuant to an Officer’s Certificate delivered to the Trustee and (B) a Subsidiary of a Restricted Parent; provided that, in the case of clause (1), (2) and (3), such Person is primarily engaged in the business it is engaging in on the Issue Date or is otherwise primarily engaged in the business of issuing mortgage loans

 

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on residential properties (whether for purchase of homes or refinancing of existing mortgages), purchasing and selling mortgage loans, issuing securities backed by mortgage loans, acting as a broker of mortgage loans and other activities customarily associated with mortgage banking and related businesses.

Net Income ” means, with respect to any specified Person, such Person’s net income (loss) attributable to owners, determined in accordance with Applicable Accounting Standards and before any reduction in respect of preferred stock dividends.

Net Proceeds ” means the aggregate cash proceeds received by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent in respect of any Asset Sale (including any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, including legal, accounting and investment banking fees, payments made in order to obtain a necessary consent or required by applicable law, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, including taxes resulting from the transfer of the proceeds of such Asset Sale to an Issuer, in each case, after taking into account:

(1) any available tax credits or deductions and any tax sharing arrangements;

(2) amounts required to be applied to the repayment of Indebtedness secured by a Lien on the asset or assets that were the subject of such Asset Sale;

(3) any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with Applicable Accounting Standards;

(4) any reserve for adjustment in respect of any liabilities associated with the asset disposed of in such transaction and retained by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent after such sale or other disposition thereof;

(5) any distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Sale; and

(6) in the event that a Restricted Subsidiary of a Restricted Parent consummates an Asset Sale and makes a pro rata payment of dividends to all of its stockholders from any cash proceeds of such Asset Sale, the amount of dividends paid to any stockholder other than a Restricted Parent or any Restricted Subsidiary of a Restricted Parent,

provided that any net proceeds of an Asset Sale by a Non-Guarantor Subsidiary that are subject to restrictions on repatriation to the U.S. Issuer or the Canadian Issuer will not be considered Net Proceeds for so long as such proceeds are subject to such restrictions.

New York Office of the Trustee ” means the office of Wells Fargo Bank, National Association at 45 Broadway, 14th Floor, New York, New York 10006.

Non-Guarantor Subsidiaries ” means, at any time, any Subsidiary of a Restricted Parent that at such time (1) is an Unrestricted Subsidiary, (2) is an Excluded Subsidiary, (3) is not a Wholly Owned U.S. Subsidiary; provided that, in the case of any Wholly-Owned Subsidiary that becomes a non-Wholly Owned U.S. Subsidiary after the Issue Date, the related issuance or sale of Capital Stock in such Subsidiary does not violate Section 4.10 or (4) has not created, incurred, issued, assumed, guaranteed or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness that is owed or otherwise outstanding at such time. The Board of Directors of a Restricted Parent may designate any Subsidiary of such Restricted Parent as a Non-Guarantor Subsidiary by filing with the Trustee a certified copy of a resolution of such Board of Directors giving effect to such designation and an Officer’s Certificate certifying as to the applicable clause of the definition of Non-Guarantor Subsidiaries that warrants such designation.

 

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Non-Recourse Debt ” means Indebtedness:

(1) as to which neither a Restricted Parent nor any Restricted Subsidiary of a Restricted Parent (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender;

(2) no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent to declare a default on such other Indebtedness or cause the payment of such other Indebtedness to be accelerated or payable prior to its Stated Maturity; and

(3) as to which the lenders have been notified in writing or have agreed in writing (in the agreement relating thereto or otherwise) that they will not have any recourse to the stock or assets of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent.

Non-U.S. Subsidiary ” means, with respect to any Person, any Subsidiary of such Person that is not a U.S. Subsidiary and any Subsidiary of such a Subsidiary, whether or not a U.S. Subsidiary.

Notes ” has the meaning assigned to it in the preamble to this Indenture.

Note Guarantee ” means the Guarantee by each Guarantor of the Issuers’ obligations under this Indenture and the Notes, executed pursuant to the provisions of this Indenture.

Obligations ” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

Offering Circular ” means the final offering circular dated March 30, 2012 for the Initial Notes.

Officer ” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, the Controller, the Secretary or any Vice-President of such Person.

Officer’s Certificate ” means a certificate signed on behalf of the Issuers by one Officer of an Issuer, who must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of such Issuer, that meets the requirements of Section 12.05.

Opinion of Counsel ” means an opinion from legal counsel that meets the requirements of Section 12.05, which opinion may be subject to customary assumptions, qualifications and exceptions. The counsel may be an employee of or counsel to Holdings or any Subsidiary of Holdings.

PAPA ” means an arrangement, other than with an Affiliate of Holdings, which may be unsecured or secured by a Lien granted in conjunction with purchase contracts for the purchase of real estate and which provides for future payments due to the sellers of such real estate at the time of the sale of homes constructed on such real estate and which payments may be contingent on the sale price of such homes, which arrangement may include (1) adjustments to the land purchase price, (2) profit participations, (3) community marketing fees and community enhancement fees and (4) reimbursable costs paid by the land developer.

Pari Passu Indebtedness ” means:

(1) all Indebtedness of U.S. Holdings, the Issuers or any Subsidiary Guarantor outstanding under a Credit Agreement or under any other Credit Facilities (including post-petition interest at the rate provided in the documentation with respect thereto, whether or not allowed as a claim in any bankruptcy proceeding), and all Hedging Obligations and Treasury Management Obligations with respect thereto;

 

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(2) any other Indebtedness of U.S. Holdings, the Issuers or any Subsidiary Guarantor permitted to be incurred under the terms of this Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the Notes or any Note Guarantee; and

(3) all Obligations with respect to the items listed in the preceding clauses (1) and (2).

Notwithstanding anything to the contrary in the preceding clauses (1), (2) and (3), Pari Passu Indebtedness will not include:

(1) any intercompany Indebtedness of the Restricted Parents or any of their Subsidiaries to any of their Affiliates;

(2) any trade payables;

(3) the portion of any Indebtedness that is incurred in violation of this Indenture (but only to the extent so incurred); provided that Indebtedness outstanding under Credit Facilities will not cease to be Pari Passu Indebtedness as a result of this clause (3) if the lenders or agents thereunder obtained a representation from the Restricted Parents or any of their Subsidiaries on the date such Indebtedness was incurred to the effect that such Indebtedness was not prohibited by this Indenture; or

(4) Indebtedness which is classified as non-recourse in accordance with Applicable Accounting Standards or any unsecured claim arising in respect thereof by reason of the application of Section 1111(b)(1) of the Bankruptcy Code.

Participant ” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).

Permitted Business ” means (i) any business engaged in by the Restricted Parents or any of their Restricted Subsidiaries on the Issue Date, (ii) any business or other activities that are reasonably similar, ancillary, complementary or related to, or a reasonable extension, development or expansion of, the businesses described in clause (i) of this definition and (iii) any business in the homebuilding, real estate development or community planning industries.

Permitted Holders ” means (i) JH Investments Inc., Oaktree Capital Management, L.P. and TPG Capital, L.P. and their respective Affiliates and all investment funds managed by any of the foregoing (excluding, for the avoidance of doubt, their respective portfolio companies or other operating companies affiliated with JH Investments Inc., Oaktree Capital Management, L.P. or TPG Capital, L.P.), (ii) any Person or any of the Persons who were a group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision) whose ownership of assets or Voting Stock has triggered a Change of Control in respect of which a Change of Control Offer has been made and all Notes that were tendered therein have been accepted and paid, (iii) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing beneficially own, without giving effect to the existence of such group or any other group, more than 50.0% of the total voting power of the aggregate Voting Stock of the U.S. Issuer and the Canadian Issuer held directly or indirectly by such group and (iv) any members of a group described in clause (iii) for so long as such Person is a member of such group.

Permitted Investments ” means:

(1) any Investment in a Restricted Parent or in a Restricted Subsidiary of a Restricted Parent; provided that Investments in Restricted Subsidiaries of U.S. Holdings that are neither the

 

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U.S. Issuer nor a Subsidiary Guarantor, when taken together with all other Investments in such Persons pursuant to this proviso to this clause (1) that are at the time outstanding, net of any return of or on any such Investments in such Persons previously made pursuant to this clause (1) received by U.S. Holdings, the Issuers or any Subsidiary Guarantor, not to exceed the greater of $75.0 million and 4.5% of Consolidated Adjusted Tangible Assets at the time of such incurrence or making of such Investment;

(2) any Investment in Cash Equivalents;

(3) any Investment by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent in a Person, if as a result of such Investment:

(a) such Person becomes a Restricted Subsidiary of a Restricted Parent; or

(b) such Person, in one transaction or a series of transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, a Restricted Parent or a Restricted Subsidiary of a Restricted Parent;

(4) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 4.10;

(5) any Investment solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of a Restricted Parent or a direct or indirect parent thereof;

(6) any Investments received in compromise, settlement or resolution of (A) obligations of trade creditors or customers that were incurred in the ordinary course of business of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer, (B) litigation, arbitration or other disputes with Persons who are not Affiliates or (C) as a result of a foreclosure by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;

(7) Investments represented by Hedging Obligations;

(8) any Investment in payroll, travel and similar advances to cover business-related travel expenses, moving expenses or other similar expenses, in each case incurred in the ordinary course of business;

(9) Investments in receivables owing to a Restricted Parent or any Restricted Subsidiary of a Restricted Parent if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided , however , that such trade terms may include such concessionary trade terms as such Restricted Parent or Restricted Subsidiary deems reasonable under the circumstances;

(10) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business;

(11) obligations of one or more officers or other employees of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent in connection with such officer’s or employee’s acquisition of shares of Capital Stock of a Restricted Parent or a direct or indirect parent thereof so long as no cash or other assets are paid by a Restricted Parent or any Restricted Subsidiaries of a Restricted Parent to such officers or employees in connection with the acquisition of any such obligations;

 

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(12) loans or advances to and guarantees provided for the benefit of employees, agents or consultants made in the ordinary course of business of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent in an aggregate principal amount not to exceed $7.5 million at any one time outstanding;

(13) (i) Investments (other than those described in clause (23) below) existing as of the Issue Date, (ii) Investments made pursuant to a binding commitment existing on the Issue Date or (iii) Investments consisting of any extension, modification or renewal of any Investment described in clause (i) or (ii) (excluding any such extension, modification or renewal involving additional advances, contributions or other investments of cash or property or other increases thereof unless it is a result of the accrual or accretion of interest or original issue discount or payment-in-kind pursuant to the terms, as of the Issue Date, of the original Investment so extended, modified or renewed);

(14) repurchases of the Notes and the Notes Guarantees;

(15) other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (15) that are at the time outstanding, after giving effect to any return of or on any Investments previously made pursuant to this clause (15) received by a Restricted Parent or any of their Restricted Subsidiaries, not to exceed the greater of $50.0 million and 3.0% of Consolidated Adjusted Tangible Assets; provided , however , that if any Investment pursuant to this clause (15) is made in any Person that is not a Restricted Subsidiary of a Restricted Parent (and is also not a Subsidiary Guarantor, in the case of a Person that is a Subsidiary of U.S. Holdings) at the date of the making of such Investment and such Person becomes a Restricted Subsidiary of a Restricted Parent (and a Subsidiary Guarantor, in the case of a Person that becomes a Restricted Subsidiary of U.S. Holdings) after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above (and not the proviso thereto) and shall cease to have been made pursuant to this clause (15) for so long as such Person continues to be a Restricted Subsidiary of a Restricted Parent (and a Subsidiary Guarantor, in the case of a Person that becomes a Restricted Subsidiary of U.S. Holdings) (it being understood that if such Person thereafter ceases to be such, such Investment will again be deemed to have been made pursuant to this clause (15));

(16) Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in the joint venture arrangements and similar binding arrangements;

17) extensions of trade credit and credit in connection with the sale of Lots and Housing Units, asset purchases (including purchases of inventory, supplies and materials) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business;

(18) any Investment in any entity or purchase of a business or assets in each case owned (or previously owned) by a customer of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent as a condition or in connection with such customer (or any member of such customer’s group) contracting with a Restricted Parent or any such Restricted Subsidiary, in each case in the ordinary course of business;

(19) obligations (but not payments thereon) with respect to homeowners association obligations, community facility district bonds, metro district bonds, mello-roos bonds and subdivision improvement bonds and similar bonding requirements arising in the ordinary course of business of a homebuilder;

(20) guarantee obligations, including completion guarantee or indemnification obligations (other than for the payment of borrowed money) entered into in the ordinary course of business and incurred for the benefit of any adjoining landowner, lender, seller of real property or municipal government authority (or enterprises thereof) in connection with the acquisition, construction, subdivision, entitlement and development of real property;

 

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(21) Investments by a Restricted Subsidiary that is not a Subsidiary Guarantor in another Restricted Subsidiary that is not a Subsidiary Guarantor;

(22) Investments in any Guarantor, Restricted Subsidiary of a Restricted Parent or joint venture engaged in a Permitted Business in connection with intercompany cash management arrangements in the ordinary course of business;

(23) Investments in joint ventures engaged in a Permitted Business by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent that do not exceed at the time such Investments are made, after giving effect to any return of or on any Investments previously made pursuant to this clause (23) received by a Restricted Parent or any Restricted Subsidiary, the sum of (A) the aggregate amount of the Investments by the Restricted Parents and their Restricted Subsidiaries in joint ventures committed on the Issue Date plus (B) an amount not to exceed the greater of $100.0 million and 6.5% of Consolidated Adjusted Tangible Assets, in each case net of any return of or on such Investments received by a Restricted Parent or any Restricted Subsidiary;

(24) Investments resulting from the acquisition of a Person, otherwise permitted by this Indenture, which Investments at the time of such acquisition were held by the acquired Person and were not acquired in contemplation of the acquisition of such Person;

(25) reclassification of any Investment initially made in (or reclassified as) one form into another (such as from equity to loan or vice versa); provided in each case that the amount of such Investment is not increased thereby;

(26) Guarantees otherwise permitted by the terms of this Indenture;

(27) Investments consisting of purchases and acquisitions of supplies, material or equipment or the licenses or contribution of intellectual property in the ordinary course of business pursuant to joint marketing, joint development or similar arrangements with other Persons;

(28) advances, loans, rebates and extensions of credit (including the creation of receivables) to suppliers, customers and vendors, and performance and completion guarantees, in each case in the ordinary course of business;

(29) the pledge of the Equity Interests of an SPE as security for Indebtedness that is permitted to be incurred under clause (22) of Section 4.09(b);

(30) capital contributions or other Investments in any Insurance Subsidiary by any direct or indirect parent company any such Insurance Subsidiary to the extent required to comply with applicable laws (including solvency laws) or to satisfy other regulatory requirements applicable to such Insurance Subsidiary; and

(31) Investments in any Mortgage Subsidiary or Insurance Subsidiary at any time outstanding not to exceed the greater of $10.0 million and 0.5% of Consolidated Adjusted Tangible Assets, net of any return of or on capital received by a Restricted Parent or any Restricted Subsidiary.

 

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Permitted Liens ” means:

(1) prior to delivery of a Covenant Termination Event Notice pursuant to a Covenant Termination Event:

(a) Liens in favor of the Restricted Parents or the Subsidiary Guarantors;

(b) Liens on property or assets of a Person, plus renewals and extensions of such Liens, existing at the time such Person is merged with or into, consolidated with or acquired by a Restricted Parent or any Subsidiary of a Restricted Parent; provided that such Liens were in existence prior to the contemplation of such merger, consolidation or acquisition and do not extend to any assets other than those of the Person merged into, consolidated with or acquired by such Restricted Parent or such Subsidiary, and other than pursuant to customary after-acquired property clauses;

(c) Liens on property (including Capital Stock) and additions, accessions, improvements and replacements and customary deposits in connection therewith and proceeds and products therefrom; existing at the time of acquisition of the property by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent; provided that such Liens were in existence prior to, such acquisition, and not incurred in contemplation of, such acquisition;

(d) Liens (including deposits and pledges) to secure the performance of public or statutory obligations, progress payments, surety or appeal bonds, performance bonds, completion bonds, completion guarantees or other obligations of a like nature incurred in the ordinary course of business;

(e) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by Section 4.09(b)(4) covering only the assets acquired, constructed or improved with or financed by such Indebtedness, and additions, accessions, improvements and replacements and customary deposits in connection therewith and proceeds and products therefrom; provided that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;

(f) Liens existing on the Issue Date (other than Liens securing the Credit Agreement), plus renewals and extensions of such Liens;

(g) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with Applicable Accounting Standards has been made therefor;

(h) Liens imposed by law, such as carriers’, warehousemen’s, landlord’s, materialmen’s, repairmen’s, construction contractors’, laborers’, employees’, suppliers’ and mechanics’ Liens, in each case, incurred in the ordinary course of business;

(i) survey exceptions, title defects, encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that do not materially interfere with the ordinary conduct of the business of the Restricted Parents and their Subsidiaries, taken as a whole;

(j) Liens created for the benefit of (or to secure) the Notes (or the Note Guarantees);

 

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(k) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Indenture; provided , however , that:

(i) the new Lien shall be limited to all or part of the same property and assets securing the original Indebtedness (and additions, accessions, improvements and replacements and customary deposits in connection therewith and proceeds and products therefrom); and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Indebtedness; and

(ii) the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (x) the outstanding principal amount, or, if greater, the committed amount, of the Permitted Refinancing Indebtedness, plus accrued interest thereon and (y) an amount necessary to pay any fees, commissions, discounts and expenses, including premiums, related to such renewal, refunding, refinancing, replacement, defeasance or discharge;

(l) Liens incurred with respect to obligations that do not exceed the greater of $25.0 million and 1.5% of Consolidated Adjusted Tangible Assets at any one time outstanding;

(m) Liens incurred or pledges or deposits made in connection with workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds, utility services, developer’s or others’ obligations to make on-site or off-site improvements and other similar obligations (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business but not including any Liens imposed under the Pension Benefits Act (Ontario) or any pension standards legislation of any other applicable jurisdiction in Canada;

(n) zoning restrictions, easements, licenses, reservations, provisions, encroachments, encumbrances, protrusion permits, servitudes, covenants, conditions, waivers, restrictions on the use of property or minor irregularities of title (and with respect to leasehold interests, mortgages, obligations, liens and other encumbrances incurred, created, assumed or permitted to exist and arising by, through or under a landlord or owner of the leased property, with or without consent of the lessee), in each case, not materially interfering with the ordinary conduct of the business of the Restricted Parents and their Subsidiaries, taken as a whole;

(o) leases, subleases, licenses or sublicenses to third parties entered into in the ordinary course of business;

(p) Liens securing Hedging Obligations and cash management obligations;

(q) Liens arising out of judgments, decrees, orders or awards in respect of which an Issuer shall in good faith be prosecuting an appeal or proceedings for review which appeal or proceedings shall not have been finally terminated, or if the period within which such appeal or proceedings may be initiated shall not have expired;

(r) Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligation of such Unrestricted Subsidiary;

(s) Liens for homeowner, condominium and similar association fees, assessments and other payments;

 

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(t) rights of purchasers and borrowers with respect to security deposits, escrow funds and other amounts held by a Restricted Parent or any Subsidiary of a Restricted Parent;

(u) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(v) Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by a Restricted Parent and any Restricted Subsidiary of a Restricted Parent in the ordinary course of business;

(w) deposits made in the ordinary course of business to secure liability to insurance carriers;

(x) judgment and attachment Liens not giving rise to an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made;

(y) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;

(z) Liens incurred to secure cash management services or to implement cash pooling arrangements in the ordinary course of business;

(aa) any amounts held by a trustee in the funds and accounts under an indenture securing any revenue bonds issued for the benefit of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent;

(bb) Liens arising by virtue of any statutory or common law provisions relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depository or financial institution;

(cc) pledges, deposits and other Liens existing under, or required to be made in connection with, (i) earnest money obligations, escrows or similar purpose undertakings or indemnifications in connection with any purchase and sale agreement, (ii) development agreements or other contracts entered into with governmental authorities (or an entity sponsored by a governmental authority) in connection with the entitlement of real property or (iii) agreements for the funding of infrastructure, including in respect of the issuance of community facility district bonds, metro district bonds, subdivision improvement bonds and similar bonding requirements arising in the ordinary course of business of a homebuilder;

(dd) Liens on Model Home Units and additions, accessions, improvements and replacements and customary deposits in connection therewith and proceeds and products therefrom;

(ee) Liens deemed to exist by reason of (i) any encumbrance or restriction (including put and call arrangements) with respect to the Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement or (ii) any encumbrance or restriction imposed under any contract for the sale by a Restricted Parent or any Subsidiary of a Restricted Parent of the Capital Stock of any Subsidiary of a Restricted Parent, or any business unit or division of a Restricted Parent or any Subsidiary of a Restricted Parent permitted by this Indenture; provided that in each case such Liens shall extend only to the relevant Capital Stock;

 

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(ff) Liens securing Specified SPE Debt of a Restricted Parent or a Restricted Subsidiary of a Restricted Parent; provided that such Liens do not at any time encumber any property, other than the Equity Interests of the relevant SPE and the property financed by such Indebtedness and additions, accessions, improvements and replacements and customary deposits in connection therewith and proceeds and products therefrom;

(gg) Liens securing obligations of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent to any third party in connection with PAPAs, any option, repurchase right or right of first refusal to purchase real property granted to the master developer or the seller of real property that arises as a result of the non-use or non-development of such real property by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent and joint development agreements with third parties to perform and/or pay for or reimburse the costs of construction and/or development related to or benefiting property (and additions, accessions, improvements and replacements and customary deposits in connection therewith and proceeds and products therefrom) of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent and property belonging to such third parties, in each case entered into in the ordinary course of business; provided that such Liens do not at any time encumber any property, other than the property (and additions, accessions, improvements and replacements and customary deposits in connection therewith and proceeds and products therefrom) financed by such Indebtedness and the proceeds and products thereof;

(hh) Liens securing Indebtedness under one or more Credit Facilities or other Pari Passu Indebtedness permitted to be incurred pursuant to Section 4.09 in an amount not to exceed the greater of (i) the amount of Indebtedness permitted to be incurred pursuant to Section 4.09(b)(1) and (ii) 10.0% of Consolidated Adjusted Tangible Assets at the time of incurrence of such Indebtedness;

(ii) Liens on assets of Mortgage Subsidiaries securing Indebtedness incurred by Mortgage Subsidiaries pursuant to Section 4.09(b)(28);

(jj) Liens securing Guarantees incurred pursuant to clause (30) or (31) of Section 4.09(b); and

(kk) Purchase money mortgages and mortgages securing construction, improvement or development loans (including, without limitation, Capital Lease Obligations and purchase money Indebtedness), including with respect to Obligations Incurred pursuant to clause (4) of Section 4.09(b), covering only the assets acquired, constructed, improved, developed or financed by such Indebtedness (and additions, accessions, improvements and replacements and customary deposits in connection therewith and proceeds and products of the foregoing); provided that any such Liens are established within 365 days of such purchase, construction, improvement or development.

(2) from and after delivery of a Covenant Termination Event Notice pursuant to a Covenant Termination Event:

(a) Liens described in clause (1) of this definition (other than subclauses (e), (k) and (t)); and

(b) Liens securing Indebtedness (other than Indebtedness that is secured equally and ratably with the Notes) in an aggregate principal amount not to exceed 15% of Consolidated Adjusted Tangible Assets at the time of incurrence of such Indebtedness.

Permitted Payments to Holdings ” means, without duplication:

(1) payments, directly or indirectly, to Holdings to be used by Holdings to pay (or to pay dividends or make other distributions to allow any direct or indirect parent of Holdings to pay) the

 

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tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or such parent), but only to the extent of taxes that U.S. Holdings and the Issuers would have to pay if they filed tax returns on a standalone basis for each of themselves and their respective Subsidiaries; provided , that such payments are used by Holdings for such purposes within 90 days of the receipt of such payments;

(2) payments, directly or indirectly, to Holdings if the proceeds thereof are used to pay general corporate and overhead expenses (including salaries and other compensation of employees) incurred in the ordinary course of its business as a direct or indirect holding company for the Restricted Parents and their Subsidiaries;

(3) any “deemed dividend” recognized for accounting purposes resulting from, or in connection with, the filing of a consolidated or combined federal income tax return by U.S. Holdings and the Issuers or any direct or indirect parent or Subsidiary of U.S. Holdings and the Issuers; and

(4) any Restricted Payment in the form of dividends or distributions or similar payments paid to Holdings in an amount equal to a substantially concurrent Investment by Holdings in a Restricted Parent (which payments and Investment will be excluded from the calculation of “Cumulative Buildup Basket”, from clause (2) and clause (17) of Section 4.07(b) and from the definition of Excluded Contributions).

Permitted Refinancing Indebtedness ” means any Indebtedness of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent issued in exchange for, or the net proceeds of which are used to extend, renew, refund, refinance, replace, defease or discharge other Indebtedness of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent (other than intercompany Indebtedness); provided that:

(1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness extended, renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all fees, commissions, discounts and expenses, including premiums, incurred in connection therewith);

(2) either (a) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased or discharged or (b) all scheduled payments on or in respect of such Permitted Refinancing Indebtedness (other than interest payments) shall be at least 91 days following the final scheduled maturity of the Notes; and if such Indebtedness is Pari Passu Indebtedness and has a final stated maturity later than the final stated maturity of the Notes, such Permitted Refinancing Indebtedness has a final stated maturity later than the final stated maturity of the Notes;

(3) if the Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased or discharged; and

(4) Permitted Refinancing Indebtedness may not be incurred by a Person other than an Issuer and any of the Guarantors to renew, refund, refinance, replace, defease or discharge any Indebtedness of an Issuer or a Guarantor.

Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

 

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Private Placement Legend ” means the legend set forth in Section 2.06(f)(1) to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.

Pro Forma Cost Savings ” means, with respect to any period, the reduction in net costs and related adjustments that (i) were directly attributable to an Investment, acquisition, merger, consolidation, disposition, amalgamation (including the Transactions), discontinued operations (as determined in accordance with Applicable Accounting Standards) and any operational changes that occurred during the four-quarter reference period or subsequent to the four-quarter reference period and on or prior to the Calculation Date or (ii) have been realized or for which the steps necessary for realization have been taken or are reasonably expected to be taken within 12 months following any such Investment, acquisition, merger, consolidation, disposition, amalgamation (including the Transactions) or discontinued operations (as determined in accordance with Applicable Accounting Standards) and any operational changes and, in the case of each of (i) and (ii), are described, as provided below, in an Officer’s Certificate, as if all such reductions in costs had been effected as of the beginning of such period. Pro Forma Cost Savings described above shall be accompanied by an Officer’s Certificate delivered to the Trustee from an Issuer’s chief financial officer that outlines the specific actions taken or to be taken, and the net cost savings achieved or to be achieved from each such action.

QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

Qualified Proceeds ” means any of the following or any combination of the following:

(1) Cash Equivalents;

(2) the Fair Market Value of assets that are used or useful in the Permitted Business; and

(3) the Fair Market Value of the Capital Stock of any Person engaged primarily in a Permitted Business if, in connection with the receipt of such Capital Stock, such Person becomes a Restricted Subsidiary of a Restricted Parent or such Person is merged or consolidated into a Restricted Parent or any of their Restricted Subsidiaries,

provided that Qualified Proceeds shall not include Excluded Contributions.

Rating Agencies ” mean Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuers (as certified by a resolution by their Board of Directors) which shall be substituted for Moody’s or S&P or both, as the case may be.

Regulation S ” means Regulation S promulgated under the Securities Act.

Regulation S Global Note ” means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as appropriate.

Regulation S Permanent Global Note ” means a permanent Global Note in the form of Exhibit A1 hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Restricted Period.

Regulation S Temporary Global Note ” means a temporary Global Note in the form of Exhibit A2 hereto deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance on Rule 903 of Regulation S.

Replacement Preferred Stock ” means any Disqualified Stock or preferred stock of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent issued in exchange for, or the net

 

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proceeds of which are used to renew, refund, refinance, replace or discharge any other preferred stock of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent (other than intercompany preferred stock); provided that such Replacement Preferred Stock is issued by a Restricted Parent or the Restricted Subsidiary of a Restricted Parent who is the issuer of the preferred stock being renewed, refunded, refinanced, replaced or discharged.

Responsible Officer ” when used with respect to the Trustee, means any officer within the corporate trust administration of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject and who shall have responsibility for the administration of this Indenture.

Restricted Definitive Note ” means a Definitive Note bearing the Private Placement Legend.

Restricted Global Note ” means a Global Note bearing the Private Placement Legend.

Restricted Investment ” means an Investment other than a Permitted Investment.

Restricted Parents ” means the Canadian Issuer and U.S. Holdings.

Restricted Period ” means the 40-day distribution compliance period as defined in Regulation S.

Restricted Subsidiary ” of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary. For the avoidance of doubt, (a) the Restricted Subsidiaries of U.S. Holdings shall include the U.S. Issuer and the Restricted Subsidiaries of the U.S. Issuer; (b) the Restricted Subsidiaries of the Restricted Parents shall be construed as a collective reference to each Restricted Subsidiary of either the Canadian Issuer or U.S. Holdings; and (c) a reference to the Restricted Subsidiaries of Holdings for purposes of the calculation of Consolidated Net Income, Consolidated Total Indebtedness, Consolidated Adjusted Tangible Assets, Consolidated Adjusted EBITDA, Fixed Charge Coverage Ratio, Fixed Charges and Specified Inventory Ratio (and components of any of the foregoing) shall be deemed to include the Restricted Parents, the U.S. Issuer and all Restricted Subsidiaries of the Restricted Parents (and any intermediate holding companies between Holdings and the Restricted Parents).

Rule 144 ” means Rule 144 promulgated under the Securities Act.

Rule 144A ” means Rule 144A promulgated under the Securities Act.

Rule 903 ” means Rule 903 promulgated under the Securities Act.

Rule 904 ” means Rule 904 promulgated under the Securities Act.

S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

SEC ” means the Securities and Exchange Commission.

Securities Act ” means the Securities Act of 1933, as amended.

Significant Subsidiary ” means, with respect to any specified Person, any Subsidiary of such Person that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue Date.

SPE ” means (i) an entity formed for the purpose of holding, acquiring, constructing, developing or improving assets whose acquisition, construction, development or improvement will be financed by Specified SPE Debt or equity Investments in such entity or (ii) an entity acquired by a Restricted Parent or a Restricted Subsidiary of a Restricted Parent whose outstanding Indebtedness is all Specified SPE Debt.

 

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Specified Inventory Ratio ” means, as at any date of determination, the ratio of (a) the aggregate amount of inventory (other than real estate not owned) of Holdings and its Restricted Subsidiaries as of the end of the most recent fiscal quarter for which internal financial statements are available plus the aggregate amount of unrestricted cash and Cash Equivalents of Holdings and its Restricted Subsidiaries as of the end of such fiscal quarter to (b) Consolidated Total Indebtedness of Holdings and its Restricted Subsidiaries as of the end of such fiscal quarter, in each case determined on a consolidated basis in accordance with Applicable Accounting Standards and with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”

Specified SPE Debt ” means, with respect to any SPE, Indebtedness of such SPE for which the sole legal recourse for collection of principal and interest on such Indebtedness is against the assets of such SPE and its Subsidiaries or the assets of any projects, land, lots or Housing Units acquired, developed or improved by such SPE and its Subsidiaries. Notwithstanding the foregoing, Indebtedness which otherwise constitutes Specified SPE Debt will not lose its character as Specified SPE Debt because there is recourse to an Issuer, any Note Guarantor or any other Person with respect to such Indebtedness for or in respect of (a) environmental warranties and indemnities, (b) indemnities for and losses arising from fraud, misrepresentation, misapplication or nonpayment of rents, profits, insurance and condemnation proceeds and other sums actually received by the relevant borrower from secured assets to be paid to the lender, waste and mechanics’ liens, (c) a voluntary bankruptcy filing (or similar filing or action) or collusive involuntary bankruptcy filings by such borrower, and other events, actions and circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate indemnification agreements or guarantees in non-recourse financings of real estate, (d) performance and completion guarantees, or (e) financial guarantees by a Restricted Parent or any of its Restricted Subsidiaries incurred in compliance with Section 4.09 (other than pursuant to clause (9) of Section 4.09(b)).

Specified SPE Guarantees ” means the items listed in clauses (a) through (e) of the second sentence in the definition of “Specified SPE Debt”.

Sponsor Loan Contribution ” means the retirement by the lenders of the Bridge Loans, or the contribution or other transfer directly or indirectly to a Subsidiary of Holdings, of $150.0 million aggregate principal amount of Bridge Loans, as described in the Offering Circular.

Stated Maturity ” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the Issue Date, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

Stock Purchase Agreement ” means the Stock Purchase Agreement dated as of March 30, 2011, among Holdings, Taylor Morrison Communities, Inc., Monarch Corporation, Taylor Wimpey plc, Wimpey Overseas Holdings Limited and Taylor Wimpey 2007 Limited.

Subordinated Indebtedness ” means

(a) with respect to the Issuers, any Indebtedness of such Issuer which is by its terms subordinated in right of payment to the Notes, and

(b) with respect to any Guarantor, any Indebtedness of such Guarantor which is by its terms subordinated in right of payment to the Note Guarantee of such Guarantor.

 

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Subsidiary ” means, with respect to any specified Person:

(1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).

Subsidiary Guarantors ” means each Restricted Subsidiary of a Restricted Parent (other than the U.S. Issuer) that executes a Note Guarantee in accordance with the provisions of this Indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.

TIA ” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb).

Transactions ” means, collectively, the transactions contemplated by the Acquisition, the Credit Agreement, this Indenture and the offering of the Initial Notes, the partial repayment of the Bridge Loans (as described in the Offering Circular under “Use of Proceeds” and “Capitalization”), the Sponsor Loan Contribution, the consummation of any other transactions in connection with the foregoing and the payment of the fees and expenses incurred in connection with any of the foregoing.

Treasury Management Obligations ” means obligations under any agreement governing the provision of treasury or cash management services, including deposit accounts, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services. Treasury Management Obligations shall not constitute Indebtedness.

Treasury Rate ” means, as of any redemption date or date of deposit, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the redemption date or date of deposit (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 15, 2015; provided that if the period from the redemption date to April 15, 2015 is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year will be used.

Trustee ” means the party named as such in the preamble to this Indenture until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

Unrestricted Global Note ” means a Global Note that does not bear and is not required to bear the Private Placement Legend.

Unrestricted Definitive Note ” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.

 

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Unrestricted Subsidiary ” means any Subsidiary of a Restricted Parent and any Subsidiary of an Unrestricted Subsidiary that is designated by the Board of Directors of a Restricted Parent as an Unrestricted Subsidiary pursuant to a resolution of such Board of Directors, but only to the extent that such Subsidiary:

(1) has no Indebtedness other than Non-Recourse Debt;

(2) except as permitted by Section 4.11, is not party to any agreement, contract, arrangement or understanding with a Restricted Parent or any Restricted Subsidiary of a Restricted Parent unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to such Restricted Parent or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuers;

(3) is a Person with respect to which neither a Restricted Parent nor any Restricted Subsidiary of a Restricted Parent has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and

(4) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent, except in the case of clauses (3) and (4) above, to the extent:

(A) that such Restricted Parent or Restricted Subsidiary could otherwise provide such a guarantee or incur such Indebtedness under Section 4.09(a), and

(B) the provision of such guarantee and the incurrence of such indebtedness otherwise would be permitted under Section 4.07.

U.S. GAAP ” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on the Issue Date.

U.S. Holdings ” means Taylor Morrison Holdings, Inc. a Delaware corporation.

U.S. Issuer ” means Taylor Morrison Communities, Inc., a Delaware corporation.

U.S. Person ” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.

“U.S. Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is organized or existing under the laws of the United States, any state thereof, or the District of Columbia.

Voting Stock ” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

(1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

(2) the then outstanding principal amount of such Indebtedness.

 

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Wholly Owned U.S. Subsidiary ” means any Restricted Subsidiary of U.S. Holdings that was formed under the laws of the United States or any state of the United States or the District of Columbia that is a Wholly Owned Subsidiary of U.S. Holdings.

Wholly Owned Subsidiary ” of any specified Person means a Subsidiary of such Person all of the outstanding Capital Stock or other ownership interest of which (other than directors’ qualifying shares) will at that time be owned by such Person or by one or more Wholly Owned Subsidiaries of such person.

Section 1.02 Other Definitions .

 

Term

  

Defined in Section

 

Affiliate Transaction

     4.11   

Aggregate Payments

     10.01(e)   

Asset Sale Offer

     4.10   

Authentication Order

     2.02   

Calculation Date

     1.01 (Definition of “Fixed Charge Coverage Ratio”)   

Change of Control Offer

     4.15   

Change of Control Payment

     4.15   

Change of Control Payment Date

     4.15   

Contributing Guarantor

     10.01(e)   

Covenant Defeasance

     8.03   

Covenant Termination Event

     4.21   

Covenant Termination Event Notice

     4.21   

Cumulative Buildup Basket

     4.07   

DTC

     2.03   

Event of Default

     6.01   

Exchange Rate

     12.17   

Excess Proceeds

     4.10   

Fair Share

     10.01(e)   

Fair Share Contribution Amount

     10.01(e)   

Financial Reports

     4.03   

Funding Guarantor

     10.01(e)   

incur

     4.09   

Legal Defeasance

     8.02   

Offer Amount

     3.09   

Offer Period

     3.09   

Paying Agent

     2.03   

Payment Default

     6.01   

Permitted Debt

     4.09   

Purchase Date

     3.09   

Registrar

     2.03   

Restricted Payment s”

     4.07   

Triggering Lien

     4.12   

Section 1.03 Incorporation by Reference of Trust Indenture Act .

Whenever this Indenture refers to a provision of the TIA and subject to Section 12.01, the provision is incorporated by reference in and made a part of this Indenture.

The following TIA terms if and to the extent used in this Indenture by virtue of Section 7.11 have the following meanings:

indenture securities ” means the Notes;

indenture security Holder ” means a Holder of a Note;

 

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indenture to be qualified ” means this Indenture;

indenture trustee ” or “institutional trustee” means the Trustee; and

obligor ” on the Notes and the Note Guarantees means the Issuers and the Guarantors, respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively.

Section 1.04 Rules of Construction and Calculation .

(a) Unless the context otherwise requires:

(1) a term has the meaning assigned to it;

(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with Applicable Accounting Standards;

(3) “or” is not exclusive;

(4) words in the singular include the plural, and in the plural include the singular;

(5) “will” shall be interpreted to express a command;

(6) provisions apply to successive events and transactions;

(7) references to sections of or rules under the Securities Act will be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;

(8) “including” shall be interpreted to mean “including without limitation”;

(9) references to Sections refer to Sections of this Indenture; and

(10) the term “all or substantially all,” when applied to the assets of a Person and/or its Subsidiaries shall not be read to mean “any” of such assets as a result of such Person and/or its Subsidiaries being in the “zone of insolvency.”

(b) All financial calculations regarding the Issuers and its Subsidiaries for periods prior to the Issue Date shall be based upon the consolidated financial statements of Holdings and its Subsidiaries.

ARTICLE 2.

THE NOTES

Section 2.01 Form and Dating .

(a) General . The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibits A1 or A2 attached hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage ( provided that any such notation, legend or endorsement required by usage is in a form reasonably acceptable to the Issuers). Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Issuers, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

(b) Global Notes . Notes issued in global form shall be substantially in the form of Exhibits A1 or A2 attached hereto (including the Global Note Legend thereon and the “Schedule of

 

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Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form shall be substantially in the form of Exhibit A1 attached hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, repurchases, and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 and shall be made on the records of the Trustee and the Depositary.

(c) Temporary Global Notes . Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Regulation S Temporary Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Custodian, at its New York office and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Issuers and authenticated by the Trustee as hereinafter provided. Following the expiration of the Restricted Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note upon the receipt by the Trustee of:

(1) a written certificate from the Depositary, together with copies of certificates from Euroclear and Clearstream certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Restricted Period pursuant to another exemption from registration under the Securities Act and who shall take delivery of a beneficial ownership interest in a 144A Global Note bearing a Private Placement Legend, all as contemplated by Section 2.06(b)); and

(2) an Officer’s Certificate from the Issuers.

Any such exchange of beneficial interests in the Regulation S Temporary Global Note for beneficial interests in the Regulation S Permanent Global Note shall be subject to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.

(d) Euroclear and Clearstream Procedures Applicable . The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable to transfers of beneficial interests in the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes that are held by Participants through Euroclear or Clearstream.

Section 2.02 Execution and Authentication .

At least one Officer of each Issuer must sign the Notes for the Issuers by manual or facsimile signature.

If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.

A Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated under this Indenture.

 

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The Trustee shall authenticate and deliver: (i) on the Issue Date, an aggregate principal amount of $550.0 million 7.750% Senior Notes due 2020 and (ii) Additional Notes for an original issue in an aggregate principal amount specified in an Authentication Order pursuant to this Section 2.02 and Section 2.14, in each case upon a written order of the Issuers signed by one Officer of each Issuer (an “ Authentication Order ”). Such Authentication Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of the Notes is to be authenticated.

The Trustee may appoint an authenticating agent acceptable to the Issuers to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuers.

Section 2.03 Registrar and Paying Agent .

The Issuers shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“ Registrar ”) and an office or agency where Notes may be presented for payment (“ Paying Agent ”). The Registrar shall keep a register of the Notes and of their transfer and exchange. The Issuers may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Issuers may change any Paying Agent or Registrar without notice to any Holder. The Issuers shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuers fail to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. An Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.

The Issuers initially appoint The Depository Trust Company (“ DTC ”) to act as Depositary with respect to the Global Notes.

The Issuers initially appoint the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.

Section 2.04 Paying Agent to Hold Money in Trust .

The Issuers shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and shall notify the Trustee in writing of any default by the Issuers in making any such payment. While any such default continues, the Trustee may require in writing a Paying Agent to pay all money held by it in trust to the Trustee. The Issuers at any time may require in writing a Paying Agent to pay all money held by it in trust to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than Holdings or any of its Subsidiaries) shall have no further liability for the money. If Holdings or any of its Subsidiaries acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to Holdings or any of its Subsidiaries, the Trustee shall serve as Paying Agent for the Notes.

Section 2.05 Holder Lists .

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Issuers shall furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders.

Section 2.06 Transfer and Exchange .

(a) Transfer and Exchange of Global Notes . A Global Note may not be transferred except in whole (but not in part) by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes shall be exchanged by the Issuers for Definitive Notes if:

(1) the Depositary (a) notifies the Issuers that it is unwilling or unable to continue as Depositary for the Global Notes or (b) has ceased to be a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuers within 120 days after the date of such notice from the Depositary;

 

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(2) the Issuers in their sole discretion determine that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and deliver a written notice to such effect to the Trustee; provided that in no event shall the Regulation S Temporary Global Note be exchanged by the Issuers for Definitive Notes prior to (x) the expiration of the Restricted Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act; or

(3) there has occurred and is continuing an Event of Default with respect to the Notes.

Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Sections 2.07 or 2.10, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c).

(b) Transfer and Exchange of Beneficial Interests in the Global Notes . The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:

(1) Transfer of Beneficial Interests in the Same Global Note . Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided , however , that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1).

(2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes . In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar either:

(A) both:

(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and

 

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(ii) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or

(B) both:

(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and

(ii) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in clause (i) above; provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Regulation S Temporary Global Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule 903 under the Securities Act.

Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(g).

(3) Transfer of Beneficial Interests to Another Restricted Global Note . A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar receives the following:

(A) if the transferee shall take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and

(B) if the transferee shall take delivery in the form of a beneficial interest in the Regulation S Global Note then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.

(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note . A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar receives the following:

(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or

(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case, if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

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If any such transfer is effected at a time when an Unrestricted Global Note has not yet been issued, the Issuers shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred.

Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.

(c) Transfer or Exchange of Beneficial Interests for Definitive Notes .

(1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes . If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:

(A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;

(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

(C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

(D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

(E) if such beneficial interest is being transferred to an Issuer or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

(F) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g), and the Issuers shall execute and, upon receipt of an Authentication Order, the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

 

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(2) Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes . Notwithstanding Sections 2.06(c)(1)(A) and (C), a beneficial interest in the Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a transfer pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.

(3) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes . A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if the Registrar receives the following:

(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or

(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

(iii) and, in each such case, if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

(4) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes . If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2), the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g), and the Issuers shall execute and, upon receipt of an Authentication Order, the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(4) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(4) shall not bear the Private Placement Legend.

(d) Transfer and Exchange of Definitive Notes for Beneficial Interests .

(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes . If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:

(A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;

 

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(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

(D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

(E) if such Restricted Definitive Note is being transferred to an Issuer or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

(F) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

the Trustee shall cancel the Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of the applicable Global Note.

(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes . A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:

(i) if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or

(ii) if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case, if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2), the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.

(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes . A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof

 

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in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.

If any such exchange or transfer from a Definitive Note to a beneficial interest is effected at a time when an Unrestricted Global Note has not yet been issued, the Issuers shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes transferred or exchanged.

(e) Transfer and Exchange of Definitive Notes for Definitive Notes . Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).

(1) Restricted Definitive Notes to Restricted Definitive Notes . Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:

(A) if the transfer shall be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

(B) if the transfer shall be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

(C) if the transfer shall be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications required by item (3) thereof, if applicable.

(2) Restricted Definitive Notes to Unrestricted Definitive Notes . Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:

(i) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or

(ii) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case, if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

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(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes . A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.

(f) Legends . The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.

(1) Private Placement Legend.

(A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:

“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

(1) REPRESENTS THAT IT, AND ANY ACCOUNT FOR WHICH IT IS ACTING, (A) IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) OR (B) IS NOT A “U.S. PERSON” (WITHIN THE MEANING OF RULE 902 OF REGULATION S UNDER THE SECURITIES ACT), AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND

(2) AGREES FOR THE BENEFIT OF THE ISSUERS THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS DEFINED IN THE NEXT PARAGRAPH), EXCEPT:

(A) TO THE PARENT OR ANY SUBSIDIARY THEREOF;

(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT;

(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT;

(D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT; OR

(E) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

THE RESALE RESTRICTION TERMINATION DATE WILL BE THE DATE (1) THAT IS AT LEAST ONE YEAR AFTER THE ORIGINAL ISSUE DATE HEREOF AND (2) ON WHICH THE ISSUERS INSTRUCT THE TRUSTEE THAT THIS LEGEND SHALL BE DEEMED REMOVED FROM THIS SECURITY, IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE RELATED TO THIS SECURITY. PRIOR TO THE REGISTRATION OF ANY TRANSFER OTHER THAN IN ACCORDANCE WITH 2(B) ABOVE, THE ISSUERS AND THE

 

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TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.”

(F) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2) or (e)(3) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.

(2) Global Note Legend . Each Global Note shall bear a legend in substantially the following form:

“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.01 AND SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUERS OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”

(3) Regulation S Temporary Global Note Legend . Each Regulation S Temporary Global Note shall bear a legend in substantially the following form:

“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).

THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE

 

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HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH AN ISSUER OR ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A)(1) TO TAYLOR MORRISON COMMUNITIES, INC., MONARCH COMMUNITIES INC. OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (3) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (4) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT (“REGULATION S”) IN AN OFFSHORE TRANSACTION COMPLYING WITH REGULATION S OR (5) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS’ AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (A)(4) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S OR PURSUANT TO CLAUSE (A)(5) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER APPLICABLE JURISDICTIONS. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

(4) OID Legend. To the extent required by Section 1275(c)(1)(A) of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.1275-3(b)(1), each Note issued at a discount to its stated redemption price at maturity shall bear a legend (the “ OID Legend ”) in substantially the following form (with any necessary amendments thereto to reflect any amendments occurring after the Issue Date to the applicable sections):

“FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT. YOU MAY CONTACT THE ISSUERS AT TAYLOR MORRISON COMMUNITIES, INC., 4900 NORTH SCOTTSDALE ROAD, SUITE 2000, SCOTTSDALE, ARIZONA 85251, ATTENTION: TREASURER, AND THE ISSUERS WILL PROVIDE YOU WITH THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE AND THE YIELD TO MATURITY OF THIS NOTE.”

(g) Cancellation and/or Adjustment of Global Notes . At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who shall take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who shall take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

 

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(h) General Provisions Relating to Transfers and Exchanges .

(1) To permit registrations of transfers and exchanges, the Issuers shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 or at the Registrar’s request.

(2) No service charge shall be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuers may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05).

(3) The Registrar shall not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

(4) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuers, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.

(5) The Issuers shall not be required:

(A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of selection;

(B) to register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part; or

(C) to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.

(6) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuers may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuers shall be affected by notice to the contrary.

(7) The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02.

(8) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.

(9) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Notes (including any transfers between or among Depositary Participants or beneficial owners of interests in any Global Notes) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. Neither the Trustee nor any Agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.

 

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Section 2.07 Replacement Notes .

If any mutilated Note is surrendered to the Trustee or the Issuers and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuers shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Issuers, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuers to protect the Issuers, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuers may charge for their expenses, including the Trustee’s expenses, in replacing a Note.

Every replacement Note is an additional obligation of the Issuers and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

Section 2.08 Outstanding Notes .

The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section as not outstanding. Except as set forth in Section 2.09, a Note does not cease to be outstanding because the Issuers or an Affiliate of the Issuers holds the Note; however, Notes held by Holdings or a Subsidiary of Holdings shall not be deemed to be outstanding for purposes of Section 3.07(a).

If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.

If the principal amount of any Note is considered paid under Section 4.01, it ceases to be outstanding and interest on it ceases to accrue.

If the Paying Agent (other than the Issuers, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.

Section 2.09 Treasury Notes .

In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by an Issuer or any Guarantor, or by any Person directly or indirectly controlled by an Issuer or any Guarantor, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.

Section 2.10 Temporary Notes .

Until certificates representing Notes are ready for delivery, the Issuers may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Issuers consider appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuers shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.

Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.

 

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Section 2.11 Cancellation .

The Issuers at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of such canceled Notes (subject to the record retention requirement of the Exchange Act) in accordance with its customary procedures. Certification of the disposal of all canceled Notes shall be delivered to the Issuers upon their written request therefor. The Issuers may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.

Section 2.12 Defaulted Interest .

If the Issuers default in a payment of interest on the Notes, they shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01. The Issuers shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Issuers shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Issuers (or, upon five Business Days’ prior written request of the Issuers, the Trustee in the name and at the expense of the Issuers) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.

Section 2.13 CUSIP Numbers .

The Issuers in issuing the Notes may use CUSIP numbers (if then generally in use), and, if so, the Trustee will use CUSIP numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption will not be affected by any defect in or omission of such numbers. The Issuers will promptly notify the Trustee in writing of any change in the CUSIP numbers.

Section 2.14 Issuance of Additional Notes .

The Issuers will be entitled, from time to time, subject to its compliance with Section 4.09, without consent of the Holders, to issue Additional Notes under this Indenture with identical terms as the Initial Notes issued on the Issue Date other than with respect to (i) the date of issuance and initial accrual of interest, (ii) the issue price, (iii) the amount of interest payable on the first interest payment date and (iv) any adjustments in order to conform to and ensure compliance with the Securities Act (or other applicable securities laws). The Initial Notes issued on the Issue Date and any Additional Notes will be treated as a single class for all purposes under this Indenture, except that Additional Notes issued with “original issue discount” within the meaning of the Internal Revenue Code of 1986, as amended, shall not have the same CUSIP number as any Initial Notes and, to the extent required by applicable tax regulations, may be treated as a separate class for purposes of transfer and exchanges of Notes.

With respect to any Additional Notes, the Issuers will set forth in an Officer’s Certificate pursuant to a resolution of the Board of Directors of the Issuers, copies of which will be delivered to the Trustee, the following information:

(1) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;

(2) the issue price, the issue date and the CUSIP number of such Additional Notes; and

(3) whether such Additional Notes will be subject to transfer restrictions.

 

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ARTICLE 3.

REDEMPTION AND PREPAYMENT

Section 3.01 Notices to Trustee .

If the Issuers elect to redeem Notes pursuant to the optional redemption provisions of Section 3.07, they must furnish to the Trustee, at least 30 days but not more than 60 days before the redemption date, an Officer’s Certificate setting forth:

(1) the clause of this Indenture pursuant to which the redemption shall occur;

(2) the redemption date;

(3) the principal amount of Notes to be redeemed; and

(4) the redemption price.

Section 3.02 Selection of Notes to Be Redeemed or Purchased .

If less than all of the Notes are to be redeemed or are required to be purchased at any time, the Trustee shall select Notes for redemption or purchase on a pro rata basis except:

(1) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed; or

(2) if otherwise required by law or the procedures of DTC.

If less than all of the Notes are to be redeemed or are required to be purchased, the particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding Notes not previously called for redemption or purchase; provided , however , that the Issuers have delivered to the Trustee, at least 35 days prior to the redemption date (or such shorter or longer period as the Trustee may agree (but in no case less than 30 days prior to the redemption date)), an Officer’s Certificate requesting that the Trustee make such selection as provided in the preceding paragraph.

The Trustee shall promptly notify the Issuers in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of $2,000 or integral multiples of $1,000; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.

Section 3.03 Notice of Redemption .

Subject to the provisions of Section 3.09, at least 30 days but not more than 60 days before a redemption date, the Issuers shall mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Articles 8 or 11 of this Indenture.

The notice shall identify the Notes to be redeemed (including CUSIP Number(s)) and shall state:

(1) the redemption date;

 

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(2) the redemption price;

(3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued in the name of the applicable Holder upon cancellation of the original Note;

(4) the name and address of the Paying Agent;

(5) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

(6) that, unless the Issuers default in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date;

(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and

(8) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes.

At the Issuers’ request, the Trustee shall give the notice of redemption in the Issuers’ name and at its expense; provided , however , that the Issuers have delivered to the Trustee, at least 35 days prior to the redemption date (or such shorter period as the Trustee may agree (but in no case less than 30 days prior to the redemption date)), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph. The Issuers may provide in a notice of redemption that payment of the redemption price and the performance of the Issuers’ obligations with respect to such redemption may be performed by another Person.

Section 3.04 Effect of Notice of Redemption .

Once a notice of redemption is mailed in accordance with Section 3.03, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price. Any such notice of redemption may, in the Issuers’ discretion, be subject to the satisfaction of one or more conditions precedent, including the occurrence of a Change of Control.

Section 3.05 Deposit of Redemption or Purchase Price .

Prior to 11:00 a.m., New York City time, on the relevant redemption date or required purchase date, the Issuers shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of, and accrued interest on, all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent shall promptly return to the Issuers any money deposited with the Trustee or the Paying Agent by the Issuers in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest on, all Notes to be redeemed or purchased.

If the Issuers comply with the provisions of the preceding paragraph, on and after the redemption or required purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Issuers to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.

 

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Section 3.06 Notes Redeemed or Purchased in Part .

Upon surrender of a Note that is redeemed or purchased in part, the Issuers shall issue and, upon receipt of an Authentication Order, the Trustee shall authenticate for the Holder at the expense of the Issuers a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.

Section 3.07 Optional Redemption .

(a) At any time prior to April 15, 2015, the Issuers are entitled, on any one or more occasions, to redeem up to 40% of the aggregate principal amount of Notes issued under this Indenture (including Additional Notes, if any) at a redemption price of 103.875% of the principal amount (if the redemption occurs prior to April 15, 2013) or at a redemption price of 107.750% of the principal amount (if the redemption occurs on or after April 15, 2013 and prior to April 15, 2015), in each case plus accrued and unpaid interest to, but excluding, the redemption date, using cash contributed directly or indirectly by Holdings to the common equity capital of a Restricted Parent in an amount not to exceed the net cash proceeds of one or more Equity Offerings by Holdings (or the net cash proceeds of one or more contributions to the common equity capital of Holdings in an amount not to exceed the net cash proceeds of one or more Equity Offerings by a direct or indirect parent of Holdings), in each case, other than Excluded Contributions and the net proceeds of a sale of Designated Preferred Stock of Holdings or any such parent of Holdings; provided that:

(1) at least 50% of the aggregate principal amount of Notes originally issued under this Indenture (excluding Notes held by the Issuers or Affiliates of the Issuers and including Additional Notes, if any) remains outstanding immediately after the occurrence of any such redemption; and

(2) the redemption occurs prior to 90 days after the date of the closing of such Equity Offering or equity contribution.

(b) At any time prior to April 15, 2015, the Issuers are entitled to redeem all or a part of the Notes, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, but excluding, the date of redemption (the “ Redemption Date ”), subject to the rights of Holders of record of Notes on the relevant record date to receive interest due on the relevant interest payment date.

(c) On or after April 15, 2015, the Issuers are entitled to redeem all or a part of the Notes upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest on the Notes redeemed to, but excluding, the applicable redemption date, if redeemed during the twelve-month period beginning on April 15 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date:

 

Year

   Percentage  

2015

     105.813

2016

     103.875

2017

     101.938

2018 and thereafter

     100.000

(d) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06.

Section 3.08 Mandatory Redemption .

The Issuers are not required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

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Section 3.09 Offer to Purchase by Application of Excess Proceeds .

In the event that, pursuant to Section 4.10, the Issuers are required to commence an Asset Sale Offer, it shall follow the procedures specified below.

The Asset Sale Offer shall be made to all Holders and if the Issuers elect (or are required by the terms of other Pari Passu Indebtedness), all holders of other Pari Passu Indebtedness. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “ Offer Period ”). No later than five Business Days after the termination of the Offer Period (the “ Purchase Date ”), the Issuers shall apply all Excess Proceeds (the “ Offer Amount ”) to the purchase of Notes and such other Pari Passu Indebtedness, if any, (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made pursuant to Section 4.01.

If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer.

Upon the commencement of an Asset Sale Offer, the Issuers shall send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which shall govern the terms of the Asset Sale Offer, shall state:

(1) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 and the length of time the Asset Sale Offer shall remain open;

(2) the Offer Amount, the purchase price and the Purchase Date;

(3) that any Note not tendered or accepted for payment shall continue to accrue interest;

(4) that, unless the Issuers defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;

(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 or integral multiples of $1,000 only;

(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Issuers, a Depositary, if appointed by the Issuers, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;

(7) that Holders shall be entitled to withdraw their election if the Issuers, the Depositary or the Paying Agent, as the case may be, receives, not later than on the expiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;

(8) that, if the aggregate principal amount of Notes and other Pari Passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Issuers shall select the Notes and other Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other Pari Passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Issuers so that only Notes in denominations of $2,000, or integral multiples of $1,000, shall be purchased); and

(9) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).

 

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On or before the Purchase Date, the Issuers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes and Pari Passu Indebtedness or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes and Pari Passu Indebtedness tendered, and shall deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuers in accordance with the terms of this Section 3.09. The Issuers, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuers for purchase, and the Issuers, shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Issuers to the Holder thereof. The Issuers shall publicly announce the results of the Asset Sale Offer on the Purchase Date.

Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06.

ARTICLE 4.

COVENANTS

Section 4.01 Payment of Notes .

The Issuers shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Issuers or a Subsidiary thereof, holds as of 11:00 a.m., New York City time, on the due date money deposited by or on behalf of the Issuers in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.

The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the Notes. The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the rate equal to the then applicable interest rate on the Notes. Interest on the Notes shall accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

Section 4.02 Maintenance of Office or Agency .

The Issuers shall maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuers in respect of the Notes and this Indenture may be served. The Issuers shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuers fail to maintain any such required office or agency or fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.

The Issuers may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided , however , that no such designation or rescission shall in any manner relieve the Issuers of their obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Issuers shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

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The Issuers hereby designate the New York Office of the Trustee as one such office or agency of the Issuers in accordance with Section 2.03.

Section 4.03 Reports .

(a) So long as any Notes are outstanding, the Issuers shall distribute, as provided in this Section 4.03, the following information:

(1) within 90 days after the end of each fiscal year, annual consolidated reports of Holdings and its Subsidiaries containing substantially all of the information that would have been required to be contained (pursuant to applicable rules and regulations in effect on the Issue Date) in an Annual Report on Form 10-K under the Exchange Act if Holdings had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Circular), including (A) “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (B) audited financial statements prepared in accordance with Applicable Accounting Standards, but, without limiting the generality of the foregoing, such reports (A) will not be required to contain information required by Items 1B, 4, 5, 9A or 14 of Form 10-K and (B) will not be required to contain information required by Items 10 and 11 of Form 10-K (relating to management and compensation) but in lieu of such information will include information of the type and scope contained in the Offering Circular under the caption “Management”;

(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, quarterly consolidated reports of Holdings and its Subsidiaries containing substantially all of the information that would have been required to be contained (pursuant to applicable rules and regulations in effect on the Issue Date) in a Quarterly Report on Form 10-Q under the Exchange Act if Holdings had been a reporting company under the Exchange Act (but only to the extent similar information is provided in the Offering Circular), including (A) “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (B) unaudited quarterly financial statements prepared in accordance with Applicable Accounting Standards but, without limiting the generality of the foregoing, such reports will not be required to contain information required by Items 2 or 4 of Part II of Form 10-Q; provided , however , that the quarterly consolidated report of Holdings and its Subsidiaries for the three months ended March 31, 2012 shall not be required to be distributed to the Trustee by the Issuers pursuant to this clause (2) until the date that is 60 days after March 31, 2012; and

(3) within five Business Days after the occurrence of each event that would have been required to be reported (pursuant to applicable rules and regulations in effect on the Issue Date) in a Current Report on Form 8-K under the Exchange Act if Holdings had been a reporting company under the Exchange Act, current reports containing substantially all of the information that would have been required to be contained (pursuant to applicable rules and regulations in effect on the Issue Date) in a Current Report on Form 8-K under the Exchange Act if Holdings had been a reporting company under the Exchange Act; provided , however , that (A) no such current report will be required to be furnished if Holdings determines in its good faith judgment that such event is not material to Holders or the business, assets, operations, financial positions or prospects of the Issuers and their Restricted Subsidiaries, taken as a whole and (B) such reports will not be required to contain information required by Items 2.02, 3.01, 3.02 of Form 8-K or Items 5.02(c), (d) or (e) (except to the extent similar information is contained in the Offering Circular under the caption “Management”) of Form 8-K;

provided , however , that all of the foregoing reports (A) will not be required to comply with Section 302 or Section 404 of the Sarbanes-Oxley Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the SEC, or Item 10(e)(l)(ii) of Regulation S-K promulgated by the SEC (with respect to any non-GAAP financial measures contained therein), (B) will not be required to contain the separate

 

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financial information for Guarantors and non-guarantor subsidiaries contemplated by Rule 3-10 of Regulation S-X promulgated by the SEC and (C) will not be required to contain information required by Item 601 of Regulation S-K.

(b) At any time that there shall be one or more Unrestricted Subsidiaries that, in the aggregate, hold more than 15.0% of Consolidated Adjusted Tangible Assets, the quarterly and annual financial information required by the preceding paragraph shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto of the financial condition and results of operations of Holdings and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.

(c) References under this Section 4.03 to the laws, rules, forms, items, articles and sections shall be to such laws, rules, forms, items, articles and sections as they exist on the Issue Date, without giving effect to amendments thereto that may take effect after the Issue Date.

(d) All such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports. Each annual report will include a report on the relevant entity’s consolidated financial statements by the relevant entity’s certified independent accountants. Notwithstanding the deadlines for the reports set forth in Section 4.03(a), such report by the certified independent accountants need not be provided until 120 days after the end of the relevant fiscal year, so long as the related annual report contains unaudited financial statements as of the time it is distributed in accordance with the deadlines set forth in Section 4.03(a).

(e) In addition, the Issuers agree that, for so long as any notes remain outstanding, if at any time they are not required to file with the SEC the reports required by the foregoing provisions of this Section 4.03, they will furnish to the Holders and beneficial owners of Notes and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

(f) Any subsequent restatement of financial statements shall have no retroactive effect for purposes of calculations previously made pursuant to the covenants contained in the indenture.

(g) The Issuers shall (1) distribute the information and reports described in Section 4.03(a) (the “ Financial Reports ”) electronically to the Trustee and (2) make the Financial Reports available to any Holder or beneficial owner of Notes, any prospective investor, any security analyst and any market maker affiliated with any Initial Purchaser by posting the Financial Reports on Intralinks or any comparable password protected online data system; provided that the Issuers shall not be required to make available any password or other login information to any person other than any such Holder, beneficial owner, prospective investor, security analyst or market maker that establishes its identity as such to the reasonable satisfaction of the Issuers.

(h) In addition, the Issuers shall:

(1) hold a quarterly conference call to discuss the information contained in the Financial Reports not later than ten business days from the time the Issuers furnish the Financial Reports to the Trustee; and

(2) no fewer than three Business Days prior to the date of the conference call required to be held in accordance with clause (1) above, issue a press release to the appropriate U.S. wire services announcing the time and date of such conference call and directing the Holders and beneficial owners of, and prospective investors in, the Notes and securities analysts and market makers to contact an individual at the Issuers (for whom contact information shall be provided in such press release) to obtain the Financial Reports and information on how to access such conference call.

(i) If at any time the Notes are guaranteed by a direct or indirect parent of Holdings, and such company has furnished the Financial Reports described herein with respect to such company as

 

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required by this Section 4.03 as if such company were Holdings (including any financial information required hereby), Holdings and the Issuers shall be deemed to be in compliance with the provisions of this Section 4.03. Any information filed with, or furnished to, the SEC within the time periods specified in this Section 4.03 shall be deemed to have been made available as required by this Section 4.03, and to the extent such filings comply with the rules and regulations of the SEC regarding such filings, they will be deemed to comply with the requirements of this Section 4.03. The subsequent filing or making available of any materials or conference call required by this Section 4.03 shall be deemed automatically to cure any Default or Event of Default resulting from the failure to file or make available such materials or conference call within the required time frame. The Trustee shall have no obligation whatsoever to determine whether or not such filings referred to in this Section 4.03 have been made.

Section 4.04 Compliance Certificate .

(a) The Issuers shall deliver to the Trustee, within 105 days after the end of each fiscal year of Holdings, an Officer’s Certificate signed by the principal executive officer or the principal financial officer stating that a review of the activities of Holdings and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Issuers and the Guarantors have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to his or her knowledge the Issuers and the Guarantors have kept, observed, performed and fulfilled each and every covenant contained in this Indenture and are not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Issuers are taking or propose to take with respect thereto) and that to his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Issuers are taking or propose to take with respect thereto.

(b) So long as any of the Notes are outstanding, the Issuers shall deliver to the Trustee, within 30 days after any Officer becoming aware of any Default or Event of Default, an Officer’s Certificate specifying such Default or Event of Default and what action the Issuers are taking or propose to take with respect thereto.

Section 4.05 Taxes .

The Restricted Parents shall pay, and shall cause each of their respective Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders.

Section 4.06 Stay, Extension and Usury Laws .

The Issuers and each of the Guarantors covenant (to the extent that they may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuers and each of the Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.

 

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Section 4.07 Restricted Payments .

(a) The Restricted Parents shall not, and shall not permit any of their Restricted Subsidiaries to, directly or indirectly:

(A) declare or pay any dividend or make any other payment or distribution on account of U.S. Holdings’, the Canadian Issuer’s or any of their Restricted Subsidiaries’ Equity Interests (including any payment in connection with any merger or consolidation involving U.S. Holdings, the Canadian Issuer or any of their Restricted Subsidiaries) or similar payments to the direct or indirect holders of U.S. Holdings’, the Canadian Issuer’s or any of their Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions or similar payments payable in Equity Interests (other than Disqualified Stock) of U.S. Holdings or the Canadian Issuer);

(B) purchase, redeem or otherwise acquire or retire for value (including in connection with any merger or consolidation involving any Restricted Parent) any Equity Interests of a Restricted Parent or any direct or indirect parent of a Restricted Parent;

(C) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness of a Restricted Parent, the U.S. Issuer or any Subsidiary Guarantor (excluding any intercompany Indebtedness between or among the Restricted Parents and any of their Restricted Subsidiaries), except (i) a payment of interest or principal at the Stated Maturity thereof or (ii) the purchase, repurchase, repayment, prepayment, defeasance or other acquisition or retirement for value of any such Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or payment at final maturity, in each case due within one year of the date of purchase, repurchase or other acquisition; or

(D) make any Restricted Investment;

(all such payments and other actions set forth in these clauses (A) through (D) above being collectively referred to as “ Restricted Payments ”), unless, at the time of and after giving effect to such Restricted Payment:

(1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;

(2) the Restricted Parents would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and

(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Restricted Parents and their Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17) and (18) of Section 4.07(b)), is less than the sum, without duplication, of:

(A) 50% of the Consolidated Net Income of Holdings for the period (taken as one accounting period) from April 1, 2012 to the end of Holdings’ most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus

(B) 100% of the aggregate Qualified Proceeds received by a Restricted Parent subsequent to the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of a Restricted Parent (other than Disqualified Stock, Excluded Contributions and the net proceeds from a sale of Designated Preferred Stock of a Restricted Parent) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of a Restricted Parent or any of its Restricted Subsidiaries that have been converted into or exchanged for

 

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Equity Interests of a Restricted Parent or Holdings (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Guarantor, a Restricted Parent or a Subsidiary of a Restricted Parent) that, in each case, have been contributed to the common equity capital of a Restricted Parent; plus

(C) to the extent not already included in Consolidated Net Income, 100% of the aggregate Qualified Proceeds from (A) the sale or other disposition (other than to a Guarantor, a Restricted Parent or a Restricted Subsidiary of a Restricted Parent) of any Restricted Investment that was made after the Issue Date and (B) repurchases, redemptions and repayments of such Restricted Investments and the receipt of any dividends or distributions from such Restricted Investments; plus

(D) to the extent that any Unrestricted Subsidiary of a Restricted Parent designated as such after the Issue Date is redesignated as a Restricted Subsidiary after the Issue Date, the Fair Market Value of the Restricted Parents’ Investment in such Subsidiary as of the date of such redesignation; plus

(E) in the event that a Restricted Parent and/or any Restricted Subsidiary of a Restricted Parent makes any Investment in a Person that, as a result of or in connection with such Investment, becomes a Restricted Subsidiary of a Restricted Parent, an amount equal to the existing Investment of the Restricted Parents and/or any of their Restricted Subsidiaries in such Person that was previously treated as a Restricted Payment.

The sum of all amounts under clauses (A) through (E) above are referred to as the “ Cumulative Buildup Basket .”

(b) Section 4.07(a) shall not prohibit:

(1) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Indenture;

(2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the sale (other than to a Guarantor, a Restricted Parent or a Restricted Subsidiary of a Restricted Parent) of, Equity Interests of a Restricted Parent (or a direct or indirect parent thereof) (other than Disqualified Stock) or from the contribution of common equity capital to a Restricted Parent (or a direct or indirect parent thereof), which sale or contribution occurs within 60 days prior to such Restricted Payment; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment must have been contributed to the common equity capital of a Restricted Parent, must not be Excluded Contributions and will be excluded from clause (3)(B) of the Cumulative Buildup Basket;

(3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of a Restricted Parent, the U.S. Issuer or a Subsidiary Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness, which incurrence occurs within 60 days prior to such repurchase, redemption, defeasance or other acquisition or retirement for value;

(4) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent issued on or after the Issue Date in accordance with Section 4.09;

(5) the repurchase, redemption or other acquisition or retirement for value of Disqualified Stock of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent made in exchange for, or out of the proceeds of the sale of Replacement Preferred Stock that is permitted to be incurred pursuant to Section 4.09, which sale occurs within 60 days prior to such repurchase, redemption or other acquisition or retirement for value;

 

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(6) the payment of any dividend or other distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by a Restricted Parent after the Issue Date in accordance with Section 4.09;

(7) the payment of any dividend (or any similar distribution) by a Restricted Subsidiary of a Restricted Parent to the holders of its Equity Interests on a pro rata basis;

(8) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of a Restricted Parent (or a direct or indirect parent thereof) held by any current or former officer, director, employee or consultant of a Restricted Parent (or a direct or indirect parent thereof) or any Restricted Subsidiary of a Restricted Parent, and any dividend payment or other distribution by a Restricted Parent or a Restricted Subsidiary of a Restricted Parent to a direct or indirect parent of a Restricted Parent utilized for the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of such direct or indirect parent held by any current or former officer, director, employee or consultant of a Restricted Parent (or a direct or indirect parent thereof) or any Restricted Subsidiary of a Restricted Parent, in each case, pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement or benefit plan of any kind; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $10.0 million in any fiscal year (it being understood, however, that unused amounts permitted to be paid pursuant to this proviso are available to be carried over to subsequent fiscal years); provided further that such amount in any fiscal year may be increased by an amount not to exceed:

(A) the net cash proceeds from the sale of Equity Interests of a Restricted Parent and, to the extent contributed to a Restricted Parent as common equity capital, Equity Interests of the Restricted Parents’ direct or indirect parent entities, in each case to members of management, directors or consultants of a Restricted Parent, any Subsidiary of a Restricted Parent or any direct or indirect parent entities of the Restricted Parents that occurs after the Issue Date, excluding Disqualified Stock, Designated Preferred Stock of a Restricted Parent and Excluded Contributions; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment must have been contributed to the common equity capital of a Restricted Parent and will be excluded from clause (3)(B) of the Cumulative Buildup Basket, plus

(B) the cash proceeds of key man life insurance policies received by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent after the Issue Date; less

(C) the amount of any Restricted Payments previously made pursuant to clauses (A) and (B) of this clause (8);

and provided further that cancellation of Indebtedness owing to a Restricted Parent or any of its Restricted Subsidiaries from members of management, directors or consultants of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent, or any direct or indirect parent holding company of a Restricted Parent, in connection with a repurchase of Equity Interests of a Restricted Parent or any direct or indirect parent of a Restricted Parent will not be deemed to constitute a Restricted Payment for purposes of this Section 4.07 or any other provision of this Indenture;

(9) the repurchase of Equity Interests deemed to occur upon the exercise of options, rights or warrants to the extent such Equity Interests represent a portion of the exercise price of those options, rights or warrants;

(10) the repurchase, redemption, defeasance, repayment, prepayment or other acquisition or retirement for value of Subordinated Indebtedness of a Restricted Parent, the U.S. Issuer or any Subsidiary Guarantor with any Excess Proceeds that remain after consummation of an Asset Sale Offer;

 

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(11) so long as no Default has occurred and is continuing or would be caused thereby, after the occurrence of a Change of Control and within 60 days after the completion of the offer to repurchase the Notes pursuant to Section 4.15 (including the purchase of the Notes tendered),any purchase or redemption of Subordinated Indebtedness of a Restricted Parent, the U.S. Issuer or a Subsidiary Guarantor required pursuant to the terms thereof as a result of such Change of Control at a purchase or redemption price not to exceed 101% of the outstanding principal amount thereof, plus any accrued and unpaid interest;

(12) cash payments in lieu of fractional shares issuable as dividends on preferred stock or upon the conversion of any convertible debt securities of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent

(13) Permitted Payments to Holdings;

(14) so long as no Default has occurred and is continuing or would be caused thereby, the payment by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent to any direct or indirect parent of a Restricted Parent, which payment is used by the Person receiving such payment or a direct or indirect parent thereof, following the first initial public offering of common Equity Interests by such Person or a direct or indirect parent thereof, to pay dividends of up to 6% per annum of the net proceeds received by such Person or a direct or indirect parent thereof in such public offering that are contributed to a Restricted Parent as common equity capital (excluding public offerings of common Equity Interests registered on Form S-8 and any other public sale to the extent the proceeds thereof are Excluded Contributions);

(15) Restricted Payments that are made with Excluded Contributions or Excess Designated Proceeds;

(16) payments made or to be made in connection with the application of the proceeds of the offering of Initial Notes and the Transactions and payments (including management fees) made as described under the caption “Certain Relationships and Related Party Transactions” in the Offering Circular, including all payments contemplated by the definition of Transactions;

(17) Restricted Payments in an aggregate amount equal to the principal amount of any Indebtedness of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent (other than Indebtedness owed to a Restricted Parent or a Subsidiary of a Restricted Parent) which on or after the Issue Date has been (a) converted into or exchanged for Equity Interests (other than Disqualified Stock) of a Restricted Parent or any direct or indirect parent of a Restricted Parent or (b) contributed by the applicable lender to a Restricted Parent, the U.S. Issuer or any Subsidiary Guarantor in exchange for no consideration or Equity Interests (other than Disqualified Stock) of a Restricted Parent or any direct or indirect parent of a Restricted Parent (including the Sponsor Loan Contribution); and

(18) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount, after giving effect to the return of or on any Restricted Payments previously made pursuant to this clause (18), not to exceed the greater of (x) $30.0 million since the Issue Date and (y) 2.0% of Consolidated Adjusted Tangible Assets.

(c) The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by a Restricted Parent or a Restricted Subsidiary of a Restricted Parent, as the case may be, pursuant to the Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued by this Section 4.07 shall be determined in good faith by the Board of Directors of an Issuer whose resolution with respect thereto shall be delivered to the Trustee; provided , however , that in the case of a Restricted Payment made pursuant to clause (15) of Section 4.07(b) in reliance on the last sentence of the definition of Excess

 

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Designated Proceeds with a Fair Market Value greater than $35.0 million (or in the case of a related series of any such Restricted Payments with an aggregate Fair Market Value greater than $35.0 million), then, in any such case, the Fair Market Value of any such Restricted Payment (or all such related Restricted Payments), as applicable, will be determined in good faith by the Board of Directors of an Issuer based on an appraisal, valuation, fairness opinion or similar document issued by an Independent Qualified Party.

(d) For purposes of determining compliance with the foregoing provisions of this Section 4.07, in the event that a Restricted Payment or Permitted Investment meets the criteria of more than one of the types of Restricted Payments or Permitted Investments described in the above clauses or the definitions thereof, the Restricted Parents, in their sole discretion, may order and classify, and from time to time may reorder and reclassify (based on circumstances existing at the time of such reclassification), such Restricted Payment or Permitted Investment if it would have been permitted at the time such Restricted Payment or Permitted Investment was made and at the time of any such reclassification.

Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries .

(a) The Restricted Parents shall not, and shall not permit any of their Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any such Restricted Subsidiary to:

(i) pay dividends or make any other distributions on its Capital Stock to a Restricted Parent or any other Restricted Subsidiary of a Restricted Parent, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to a Restricted Parent or any Restricted Subsidiary of a Restricted Parent;

(ii) make loans or advances to a Restricted Parent or any other Restricted Subsidiary of a Restricted Parent; or

(iii) sell, lease or transfer any of its properties or assets to a Restricted Parent or any other Restricted Subsidiary of a Restricted Parent.

(b) Section 4.08(a) shall not apply to encumbrances or restrictions existing under or by reason of:

(1) agreements governing Existing Indebtedness and Credit Facilities as in effect on the Issue Date and any other agreements in effect on the Issue Date;

(2) this Indenture, the Notes and the Note Guarantees;

(3) applicable law, rule, regulation or order;

(4) any instrument governing Indebtedness or Capital Stock of a Restricted Subsidiary acquired by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or any of its Subsidiaries, or the property or assets of the Person or any of its Subsidiaries, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;

(5) customary non-assignment provisions in contracts and licenses entered into in the ordinary course of business;

(6) customary restrictions in leases (including capital leases), security agreements or mortgages or other purchase money obligations for property acquired in the ordinary course of business to the extent they impose restrictions on the property purchased or leased of the nature described in clause (iii) of Section 4.08(a);

 

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(7) any agreement for the sale or other disposition of all or substantially all the Capital Stock or the assets of a Restricted Subsidiary of a Restricted Parent to the extent it restricts distributions by that Restricted Subsidiary pending the sale or other disposition;

(8) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

(9) Liens permitted to be incurred under Section 4.12 to the extent they limit the right of the debtor to dispose of the assets subject to such Liens;

(10) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject of such agreements;

(11) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;

(12) customary provisions imposed on the transfer of copyrighted or patented materials;

(13) customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent;

(14) contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent in any manner material to any such Restricted Parent or Restricted Subsidiary;

(15) restrictions on the transfer of property or assets required by any regulatory authority having jurisdiction over a Restricted Parent or any Restricted Subsidiary of a Restricted Parent or any of their businesses;

(16) restrictions arising in connection with Indebtedness permitted under this Indenture of a Restricted Subsidiary of a Restricted Parent that is neither the U.S. Issuer nor a Subsidiary Guarantor;

(17) any encumbrances or restrictions existing under (A) development agreements or other contracts entered into with municipal entities, agencies or sponsors in connection with the entitlement or development of real property or (B) agreements for funding of infrastructure, including in respect of the issuance of community facility district bonds, metro district bonds, mello-roos bonds and subdivision improvement bonds, and similar bonding requirements arising in the ordinary course of business of a homebuilder;

(18) any encumbrances or restrictions that require “lockbox” or similar obligations with respect to Non-Recourse Debt, Specified SPE Debt (or related Specified SPE Guarantees) and Indebtedness secured by a Permitted Lien pursuant to clause (kk) of the definition thereof;

(19) any Restricted Payment or Permitted Investment not prohibited by Section 4.07; and

(20) any encumbrances or restrictions of the type referred to in clauses (i) through (iii) of Section 4.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (19) of this Section 4.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuers (as evidenced by an Officer’s

 

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Certificate), not materially more restrictive, taken as a whole, with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.

Section 4.09 Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock .

(a) The Restricted Parents shall not, and shall not permit any of their Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “ incur ”) with respect to any Indebtedness (including Acquired Debt), and the Restricted Parents will not issue any shares of Disqualified Stock and will not permit any of their Restricted Subsidiaries to issue any shares of Disqualified Stock or preferred stock; provided , however , that the Restricted Parents, the U.S. Issuer and the Subsidiary Guarantors may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock or preferred stock, if the Fixed Charge Coverage Ratio for Holdings’ most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.

(b) The provisions of Section 4.09(a) shall not prohibit the incurrence of any of the following items of Indebtedness or the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, “ Permitted Debt ”):

(1) the incurrence by a Restricted Parent and/or any Restricted Subsidiary of a Restricted Parent (and the Guarantee thereof by a Restricted Parent or any such Restricted Subsidiary) of Indebtedness under the Credit Agreement and other Credit Facilities entered into after the date of the Credit Agreement in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Restricted Parents and their Restricted Subsidiaries thereunder) not to exceed the greater of:

(A) $125.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied by the Restricted Parents and their Restricted Subsidiaries since the Issue Date to permanently repay any term Indebtedness under a Credit Facility or to permanently repay any revolving credit Indebtedness under a Credit Facility and effect a corresponding commitment reduction thereunder pursuant to Section 4.10; and

(B) 9.5% of Consolidated Adjusted Tangible Assets at the time of incurrence;

(2) the incurrence by the Restricted Parents and their Restricted Subsidiaries of the Existing Indebtedness (other than the Indebtedness described in clauses (1), (3) and (24) of this Section 4.09(b));

(3) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes to be issued on the Issue Date, replacement Notes in respect thereof, if any, and the related Note Guarantees;

(4) the incurrence or issuance by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent of Indebtedness (including Capital Lease Obligations and Indebtedness incurred in connection with a sale/leaseback transaction), Disqualified Stock or preferred stock, in each case, incurred or issued for the purpose of financing all or any part of the purchase price or cost of design, construction, lease, installation or improvement of property, plant or equipment used or useful in a Permitted Business which occurs within 365 days of such purchase, design, construction, lease, installation or improvement, in an aggregate principal amount at any time outstanding, not to exceed the greater of $15.0 million and 1.0% of Consolidated Adjusted Tangible Assets at the time of incurrence;

 

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(5) the incurrence by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent of Permitted Refinancing Indebtedness or Replacement Preferred Stock in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness and the Bridge Loans) or any Disqualified Stock or preferred stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clauses (2), (3), (4), (5) or (16) of this Section 4.09(b);

(6) the incurrence by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent of intercompany Indebtedness between or among the Restricted Parents and any of their Restricted Subsidiaries; provided , however , that:

(A) if U.S. Holdings, an Issuer or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not U.S. Holdings, an Issuer or a Subsidiary Guarantor, such Indebtedness must be unsecured and subordinated in right of payment to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of an Issuer, or the Note Guarantee, in the case of U.S. Holdings or a Subsidiary Guarantor, except to the extent such subordination would violate a material contract as in effect on the Issue Date or is not permitted pursuant to applicable laws, rules or regulations; and

(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Restricted Parent or a Restricted Subsidiary of a Restricted Parent and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either a Restricted Parent or a Restricted Subsidiary of a Restricted Parent, will be deemed, in each case, to constitute a new incurrence of such Indebtedness by such Restricted Parent or such Restricted Subsidiary, as the case may be, which new incurrence is not permitted by this clause (6);

(7) the issuance by any Restricted Subsidiary of a Restricted Parent to a Restricted Parent or to any other Restricted Subsidiary of a Restricted Parent of shares of preferred stock; provided , however , that:

(A) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than a Restricted Parent or a Restricted Subsidiary of a Restricted Parent; and

(B) any sale or other transfer of any such preferred stock to a Person that is not either a Restricted Parent or a Restricted Subsidiary of a Restricted Parent;

will be deemed, in each case, to constitute a new issuance of such preferred stock by such Restricted Parent or such Restricted Subsidiary which new issuance is not permitted by this clause (7);

(8) the incurrence by the Restricted Parents or any of their Restricted Subsidiaries of Hedging Obligations not for speculative purposes;

(9) the guarantee:

(A) by the Restricted Parents, the U.S. Issuer or any of the Subsidiary Guarantors of Indebtedness of a Restricted Parent or a Restricted Subsidiary of a Restricted Parent that was permitted to be incurred by another provision of this Section 4.09 (other than clause (22) of this Section 4.09(b)); provided that if the Indebtedness being guaranteed is subordinated to or pari passu in right of payment with the Notes, then the guarantee shall be subordinated or pari passu in right of payment, as applicable, to the same extent as the Indebtedness guaranteed; and

(B) by any Restricted Subsidiary that is neither the U.S. Issuer nor a Subsidiary Guarantor of Indebtedness of a Restricted Subsidiary that is neither the U.S. Issuer nor a Subsidiary Guarantor;

 

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(10) the incurrence by the Restricted Parents or any of their Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, letters of credit, performance bonds, completion bonds, bid bonds, surety bonds, appeal bonds, performance, completion and compliance guarantees or other similar obligations incurred in the ordinary course of business; provided , however , that upon the drawing of letters of credit for reimbursement obligations, including with respect to workers’ compensation claims, or the incurrence of other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;

(11) the incurrence by the Restricted Parents or any of their Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is extinguished within five Business Days;

(12) the incurrence of Indebtedness arising from agreements of a Restricted Parent or a Restricted Subsidiary of a Restricted Parent providing for indemnification, adjustment of purchase price, holdback, contingency payment obligations or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business, assets or Capital Stock of a Restricted Parent or any such Restricted Subsidiary;

(13) the incurrence of Indebtedness or the issuance of any Disqualified Stock or preferred stock by any Non-Guarantor Subsidiary that is a Restricted Subsidiary of U.S. Holdings, in an aggregate principal amount at any time outstanding not to exceed the greater of $25.0 million and 1.5% of Consolidated Adjusted Tangible Assets;

(14) the incurrence of Indebtedness or the issuance of any Disqualified Stock or preferred stock by any Non-Guarantor Subsidiary that is a Restricted Subsidiary of the Canadian Issuer, in an aggregate principal amount at any time outstanding not to exceed the greater of $50.0 million and 3.0% of the Consolidated Adjusted Tangible Assets;

(15) the incurrence of Indebtedness resulting from endorsements of negotiable instruments for collection in the ordinary course of business;

(16) Indebtedness, Disqualified Stock or preferred stock of Persons that are acquired by any Restricted Parent or any Restricted Subsidiary of a Restricted Parent (including by way of merger or consolidation) in accordance with the terms of this Indenture; provided that after giving effect to such acquisition or merger, either

(A) the Restricted Parents would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio in Section 4.09(a); or

(B) Holdings’ Fixed Charge Coverage Ratio after giving pro forma effect to such acquisition or merger would be greater than Holdings’ actual Fixed Charge Coverage Ratio immediately prior to such acquisition or merger;

(17) Indebtedness of a Restricted Parent or a Restricted Subsidiary of a Restricted Parent in respect of netting services, overdraft protection and otherwise in connection with deposit accounts; provided that such Indebtedness remains outstanding for ten Business Days or less;

 

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(18) the incurrence or issuance by a Restricted Parent or a Restricted Subsidiary of a Restricted Parent of additional Indebtedness, Disqualified Stock or preferred stock in an aggregate principal amount (or accreted value or liquidation preference, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness and all Replacement Preferred Stock incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness, Disqualified Stock and preferred stock incurred or issued pursuant to this clause (18), not to exceed the greater of $40.0 million and 2.5% of Consolidated Adjusted Tangible Assets at the time of incurrence;

(19) the incurrence of guarantees by a Restricted Parent or a Restricted Subsidiary of a Restricted Parent in the ordinary course of business in respect of obligations to suppliers, customers, franchisees, lessors and licensees of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent;

(20) Indebtedness incurred in connection with a sale/leaseback of any Model Home Unit;

(21) the incurrence of Indebtedness by a Restricted Parent or a Restricted Subsidiary of a Restricted Parent in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligation) in the ordinary course of business and not in connection with the borrowing of money or any Hedging Obligations;

(22) the incurrence of (a) Specified SPE Debt by a Restricted Parent or a Restricted Subsidiary of a Restricted Parent and any refinancings thereof that constitute Specified SPE Debt and (b) Specified SPE Guarantees in respect thereof (other than the financial guarantees described in clause (e) of the definition of “Specified SPE Debt”);

(23) the incurrence of Indebtedness by a Restricted Parent or a Restricted Subsidiary of a Restricted Parent in respect of a PAPA;

(24) Indebtedness of the Canadian Issuer or any of its Restricted Subsidiaries pursuant to letters of credit issued under the Canadian LC Facilities, in an aggregate amount not to exceed the aggregate committed amount of letters of credit under such Canadian LC Facilities as of the Issue Date;

(25) Indebtedness of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in supply arrangements, in each case in the ordinary course of business;

(26) the incurrence of Indebtedness by a Restricted Parent or a Restricted Subsidiary of a Restricted Parent deemed to exist pursuant to the terms of a joint venture agreement as a result of the failure of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent to make a required capital contribution therein; provided that the only recourse on such Indebtedness is limited to such Restricted Parent or Restricted Subsidiary’s equity interests in the related joint venture;

(27) obligations of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent under an agreement with any governmental authority, adjoining (or common masterplan) landowner or seller of real property, in each case entered into in the ordinary course of business in connection with the acquisition of real property, to entitle, develop or construct infrastructure thereupon;

(28) Indebtedness incurred by Mortgage Subsidiaries in their ordinary course of business or consistent with past practice;

 

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(29) Indebtedness consisting of Indebtedness issued by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent to any current or former officer, director, employee or consultant of a Restricted Parent (or a direct or indirect parent thereof) or any Restricted Subsidiary of a Restricted Parent, in each case to finance the purchase or redemption of Equity Interests of a Restricted Parent or any direct or indirect parent company of a Restricted Parent to the extent described in clause (8) of Section 4.07(b);

(30) Guarantees issued from time to time by a Restricted Parent or its Restricted Subsidiaries of Indebtedness incurred by any (i) Restricted Subsidiary of a Restricted Parent or (ii) joint venture in which a Restricted Parent or its Restricted Subsidiaries has an equity Investment (or incurred by any Subsidiaries of such joint ventures), in an amount not to exceed at any time outstanding the aggregate principal amount of all such Indebtedness committed to be Guaranteed by the Restricted Parents and their Restricted Subsidiaries on the Issue Date;

(31) Guarantees issued from time to time by a Restricted Parent or its Restricted Subsidiaries of Indebtedness incurred by any (i) Restricted Subsidiary of a Restricted Parent or (ii) joint venture in which a Restricted Parent or its Restricted Subsidiaries has an equity Investment (or incurred by any Subsidiaries of such joint ventures), in an amount not to exceed at any time outstanding the greater of $125.0 million and 7.5% of Consolidated Adjusted Tangible Assets at the time of incurrence; and

(32) Indebtedness of the Restricted Parents or their Restricted Subsidiaries under letters of credit used to refund, renew or replace letters of credit existing on Issue Date in an aggregate amount not to exceed $15.0 million at any time outstanding.

Any indebtedness incurred under a Credit Facility pursuant to clause (1) of this Section 4.09(b) shall be deemed for purposes of this Section 4.09 to have been incurred on the date such Indebtedness was first incurred until such Indebtedness is actually repaid, other than pursuant to “cash sweep” provisions or any similar provisions under any Credit Facility that provide that such Indebtedness is deemed to be repaid daily (or otherwise periodically).

For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (32) of Section 4.09(b), or is entitled to be incurred pursuant to Section 4.09(a), the Issuers shall be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify (based on circumstances existing at the time of such reclassification) all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the Issue Date will be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of this Section 4.09(b). The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock or preferred stock in the form of additional shares of the same class of Disqualified Stock or preferred stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred stock for purposes of this Section 4.09; provided , in each such case, that the amount thereof is included in Fixed Charges of Holdings as accrued (other than the reclassification of preferred stock as Indebtedness due to a change in accounting principles).

(c) The amount of any Indebtedness outstanding as of any date will be:

(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;

(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and

(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:

(A) the Fair Market Value of such assets at the date of determination; and

(B) the amount of the Indebtedness of the other Person.

 

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Section 4.10 Asset Sales.

(a) The Restricted Parents shall not, and shall not permit any of their Restricted Subsidiaries to, consummate an Asset Sale unless:

(1) a Restricted Parent or any such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and

(2) at least 75% of the consideration received in the Asset Sale by such Restricted Parent or any such Restricted Subsidiary, as the case may be, is in the form of cash. For purposes of this clause (2), each of the following will be deemed to be cash:

(A) Cash Equivalents;

(B) any liabilities, as shown on a recent consolidated balance sheet, of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are (i) assumed by the transferee of any such assets pursuant to a customary novation agreement that releases such Restricted Parent or any such Restricted Subsidiary, as the case may be, from further liability or (ii) retired, cancelled or otherwise terminated in connection with such Asset Sale;

(C) any securities, Notes or other obligations received by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent from such transferee that are converted by the recipient into cash within 180 days of receipt, to the extent of the cash received in that conversion;

(D) any Designated Noncash Consideration the Fair Market Value of which, when taken together with all other Designated Noncash Consideration received pursuant to this clause (D) (and not subsequently converted into Cash Equivalents that are treated as Net Proceeds of an Asset Sale), does not exceed the greater of $60.0 million since the Issue Date and 3.5% of Consolidated Adjusted Tangible Assets at the time of the receipt of such Designated Noncash Consideration, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value;

(E) any stock or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b);

(F) the proceeds of any Designated Asset Sale.

Notwithstanding the foregoing, the 75% limitation referred to in clause (2) of this Section 4.10(a) shall not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation.

(b) Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the applicable Restricted Parent or Restricted Subsidiary, as the case may be, may apply such Net Proceeds at its option:

(1) to permanently repay or prepay:

(x) Obligations under (i) Indebtedness secured by Permitted Liens pursuant to clause (l) or (hh) of the definition of “Permitted Liens” (whose commitments shall be correspondingly reduced permanently upon such repayment or prepayment) or (ii) other Indebtedness secured by the assets subject to such Asset Sale;

 

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(y) Obligations under the Notes or any other Pari Passu Indebtedness of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent; provided that if a Restricted Parent or any such Restricted Subsidiary shall so repay or prepay any such other Pari Passu Indebtedness, the Issuers will reduce Obligations under the Notes on a pro rata basis (based on the amount so applied to such repayments or prepayments) by, at their option, (A) redeeming Notes pursuant to Section 3.07, (B) making an offer (in accordance with the procedures set forth in Section 3.09 for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased or (C) purchasing Notes through privately negotiated transactions or open market purchases, in a manner that complies with this Indenture and applicable securities law; or

(z) Indebtedness of a Restricted Subsidiary of a Restricted Parent that is neither the U.S. Issuer nor a Guarantor, other than Indebtedness owed to a Restricted Parent or another Restricted Subsidiary of a Restricted Parent;

(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of a Restricted Parent;

(3) to make a capital expenditure; or

(4) to acquire Additional Assets or improve or develop existing assets to be used in a Permitted Business,

provided that the requirements of clauses (2) through (4) of this Section 4.10(b) shall be extended by an additional 180 days if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to therein is entered into by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent within 450 days after the receipt of such Net Proceeds and such Net Proceeds are applied in accordance with such agreement.

Pending the final application of any Net Proceeds, the Issuers may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.

(c) Any Net Proceeds from Asset Sales (other than Excess Designated Proceeds) that are not applied or invested as provided in Section 4.10(b) shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within ten Business Days thereafter, the Issuers shall make an Asset Sale Offer to all Holders of Notes and if the Issuers elect (or are required by the terms of such other Pari Passu Indebtedness), all holders of other Pari Passu Indebtedness (an “ Asset Sale Offer ”) to purchase the maximum aggregate principal amount of Notes and such Pari Passu Indebtedness, in denominations of $2,000 initial principal amount and multiples of $1,000 in excess thereof, that may be purchased with an amount equal to the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, or, in the case of Pari Passu Indebtedness represented by securities sold at a discount, the amount of the accreted value thereof at such time, plus accrued and unpaid interest to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. In the event that a Restricted Parent or any Restricted Subsidiary of a Restricted Parent prepays any Pari Passu Indebtedness that is outstanding under a revolving credit or other committed loan facility pursuant to an Asset Sale Offer, such Restricted Parent or Restricted Subsidiary shall cause the related loan commitment to be reduced in an amount equal to the principal amount so prepaid. After the completion of an Asset Sale, the Restricted Parents and their Restricted Subsidiaries may make an Asset Sale Offer prior to the time they are required to do so by the first sentence of this paragraph. If a Restricted Parent or any Restricted

 

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Subsidiary of a Restricted Parent completes such an Asset Sale Offer with respect to any Net Proceeds, the Restricted Parents and their Restricted Subsidiaries shall be deemed to have complied with this Section 4.10(c) with respect to the application of such Net Proceeds, and any such Net Proceeds remaining after completion of such Asset Sale Offer may be used by the Restricted Parents and their Restricted Subsidiaries for any purpose not prohibited by this Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Restricted Parents and their Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other Pari Passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.

(d) The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.

Section 4.11 Transactions with Affiliates.

(a) The Restricted Parents shall not, and shall not permit any of their Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of their properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of a Restricted Parent involving aggregate consideration in excess of $10.0 million (each, an “ Affiliate Transaction ”), unless:

(1) the Affiliate Transaction is on terms that, taken as a whole, are not materially less favorable to the relevant Restricted Parent or Restricted Subsidiary than those that would have been obtained in a comparable transaction by such Restricted Parent or Restricted Subsidiary with an unrelated Person; and

(2) an Issuer delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, a resolution of the Board of Directors of such Issuer set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors of such Issuer disinterested with respect to such Affiliate Transaction.

(b) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the provisions of Section 4.11(a):

(1) any employment, consultancy, advisory or other compensatory agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent in the ordinary course of business and payments pursuant thereto;

(2) transactions between or among the Restricted Parents and/or their Restricted Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction;

(3) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of a Restricted Parent solely because a Restricted Parent owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;

(4) payment of reasonable directors’ fees;

 

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(5) any transaction in which the only consideration paid by the Restricted Parents or any of their Restricted Subsidiaries is in the form of Equity Interests (other than Disqualified Stock) of Holdings to Affiliates of Holdings or any equity capital contribution made to Holdings or the Restricted Parents (other than in respect of Disqualified Stock);

(6) Permitted Investments or Restricted Payments (other than payments made under the Management Services Agreements) that do not violate Section 4.07;

(7) payment of fees and the reimbursement of other expenses to the Permitted Holders in connection with the Transactions on the terms as described in the Offering Circular under the caption “Certain Relationships and Related Party Transactions” (other than with respect to payments made under the Management Services Agreements);

(8) the payment of management, consulting, monitoring, advisory and other fees, indemnities and expenses pursuant to the Management Services Agreements (plus any unpaid management, consulting, monitoring, advisory and other fees, indemnities and expenses accrued in any prior year) and the termination fees pursuant to the Management Services Agreements, or any amendment thereto or replacement thereof so long as any such amendment or replacement is not disadvantageous in the good faith judgment of the Board of Directors of an Issuer to the Holders of the Notes when taken as a whole, as compared to the Management Services Agreements as in effect on the Issue Date;

(9) loans (or cancellation of loans) or advances to employees in the ordinary course of business;

(10) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority of the Board of Directors of the Issuers;

(11) any agreement as in effect as of the Issue Date (other than the Management Services Agreements), including any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, or refinancings are, in the good faith judgment of the Issuers (as evidenced by an Officer’s Certificate), not materially more disadvantageous, taken as a whole, to the Holders of the Notes);

(12) transactions with customers, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services, in each case which are in the ordinary course of business (including pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture, and which are fair to the Restricted Parents and their Restricted Subsidiaries, as applicable, in the reasonable determination of the Board of Directors, chief executive officer or chief financial officer of a Restricted Parent or any Restricted Subsidiary of a Restricted Parent, as applicable, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;

(13) the existence of, or the performance by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent of their obligations under the terms of, any stockholders agreement, partnership agreement or limited liability company agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date as described in the Offering Circular under the caption “Certain Relationships and Related Party Transactions” and any similar agreements which it may enter into thereafter; provided , however , that the existence of, or the performance by a Restricted Parent or any such Restricted Subsidiary of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date will only be permitted by this clause (13) to the extent that the terms of any such amendment or new agreement, taken as a whole, are not materially disadvantageous to the Holders of the Notes, as determined in good faith by the Board of Directors, or the chief executive officer or chief financial officer of an Issuer;

 

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(14) the Transactions, including all payments made or to be made in connection with the Transactions as described under the captions “Use of Proceeds”, “Capitalization” and/or “Certain Relationships and Related Party Transactions” in the Offering Circular;

(15) Permitted Payments to Holdings;

(16) customary payments (including reimbursement of fees and expenses) by a Restricted Parent and/or any Restricted Subsidiary of a Restricted Parent to the Permitted Holders made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities (including in connection with acquisitions or divestitures, whether or not consummated), which payments are approved by a majority of the members of the Board of Directors of an Issuer in good faith;

(17) the issuance of Equity Interests (other than Disqualified Stock) in Holdings for compensation purposes;

(18) intellectual property licenses in the ordinary course of business;

(19) payments to or from, and transactions with, any joint venture in the ordinary course of business; provided , however , that no Affiliate of Holdings (other than the Restricted Parents or their Restricted Subsidiaries) has any Investment in any such joint venture;

(20) transactions entered into in good faith with an Affiliate of a Restricted Parent which provide for shared services and/or facilities arrangements and which provide cost savings and/or other operations efficiencies to the Restricted Parents and their Restricted Subsidiaries, taken as a whole;

(21) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business; provided that any amounts paid by Holdings or its Subsidiaries in respect of tax liabilities do not exceed amounts that would be paid by Holdings and its Subsidiaries for their tax liabilities if they were not part of such consolidated group;

(22) (x) the guarantee by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent of the Indebtedness of any parent company of a Restricted Parent that becomes the parent company of a Restricted Parent in a Change of Control transaction consummated in accordance with this Indenture, or of any Indebtedness of Subsidiaries of such parent company; provided that such guarantee was permitted by the terms of this Indenture to be incurred and (y) the granting by a Restricted Parent or any of its Restricted Subsidiaries of any Liens to secure such Indebtedness or such guarantee; provided that such Liens are permitted to be incurred under this Indenture; and

(23) transactions in which a Restricted Parent or any of their Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that the financial terms of such transaction are fair to such Restricted Parent or such Restricted Subsidiary, as applicable, from a financial point of view (or words of similar import) or meets the requirements of clause (1) of Section 4.11(a).

Section 4.12 Liens.

(a) The Restricted Parents shall not, and shall not permit the U.S. Issuer or any of the Subsidiary Guarantors to create, incur, assume or otherwise cause or suffer to exist or become effective any Lien (a “ Triggering Lien ”) of any kind (other than Permitted Liens) securing Indebtedness upon any of their property or assets, now owned or hereafter acquired, or any income or profits therefrom unless all payments due under this Indenture and the Notes (or under a Note Guarantee in the case of Liens of a Guarantor) are secured on an equal and ratable basis with the obligations so secured until such time as such obligations are no longer secured by a Triggering Lien.

 

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(b) For purposes of determining compliance with this Section 4.12, (A) a Lien securing an item of Indebtedness need not be permitted solely by reference to the above paragraph or to one category (or portion thereof) of Permitted Liens described in clauses (1)(a) through (kk) (or, if applicable, clause (2)(a) and (b)) of the definition of “Permitted Liens” but may be permitted in part under any combination thereof and (B) in the event that a Lien securing an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of the above paragraph or one or more of the categories (or portions thereof) of Permitted Liens described in clauses (1)(a) through (kk) (or, if applicable, clause (2)(a) and (b)) of the definition of “Permitted Liens,” the Issuers shall, in their sole discretion, divide, classify or reclassify, or later divide, classify, or reclassify, such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies (based on circumstances existing at the time of such division, classification or reclassification) with this Section 4.12.

(c) With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “ Increased Amount ” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms or in the form of common equity of a Restricted Parent or any direct or indirect parent of a Restricted Parent, the payment of dividends on Preferred Stock in the form of additional shares of Preferred Stock of the same class, accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness described in the definition of “Indebtedness.”

Section 4.13 Permitted Business Activities.

The Restricted Parents shall not, and shall not permit any of their Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Restricted Parents and their Restricted Subsidiaries, taken as a whole; it being understood that the Restricted Parents and their Restricted Subsidiaries shall be deemed to be in compliance with this Section 4.13 if the Restricted Parents or their Restricted Subsidiaries acquire another Person that is primarily engaged in Permitted Businesses or acquire business operations that primarily consist of Permitted Businesses and continue to operate such acquired Person’s operations or such acquired business operations, as the case may be.

Section 4.14 Limitation on Business Activities of Holdings .

(a) Holdings will not conduct, transact or otherwise engage in any business or operations, or own or acquire any assets or incur any liabilities, other than:

(1) direct or indirect ownership of the Capital Stock of the Restricted Parents;

(2) the maintenance of its legal existence, including the ability to incur fees, costs and expenses relating to such maintenance;

(3) participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings, U.S. Holdings and the Issuers;

(4) the performance of and incurrence of liabilities under, the documentation governing (i) the Credit Agreement, (ii) the Stock Purchase Agreement, (iii) the other agreements contemplated by the Stock Purchase Agreement and (iv) any guarantee of Indebtedness permitted under the covenant described under Section 4.09;

(5) any public offering of Capital Stock of Holdings or any other issuance or registration of Holdings’ Capital Stock for sale or resale or any issuance of equity awards under any plan for the benefit of employees of Holdings, the Restricted Parents or any of their Subsidiaries, payment of dividends, making contributions to the capital of their Subsidiaries and guaranteeing the obligations of the Restricted Parents and their Restricted Subsidiaries, including the costs, fees and expenses related thereto;

 

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(6) holding any Restricted Payments made by a Restricted Parent in accordance with Section 4.07 pending application thereof by the recipient in the manner contemplated by Section 4.07 (if so specified);

(7) incurring fees, costs and expenses relating to overhead and general operating including professional fees for legal, tax and accounting issues;

(8) providing indemnification to officers, directors, consultants and agents;

(9) the incurrence of liabilities permitted to be incurred by it by the Credit Agreement; and

(10) activities incidental to the businesses or activities described in clauses (1) to (9) of this Section 4.14(a).

(b) For so long as the Notes are outstanding, Holdings will beneficially own all the Voting Stock of U.S. Holdings and the Canadian Issuer, and U.S. Holdings will beneficially own all of the Voting Stock of the U.S. Issuer, it being understood that, notwithstanding the foregoing, Holdings may interpose one or more holding companies between itself and the Restricted Parents, so long as such holding companies also agree to guarantee the Notes pursuant to a Note Guarantee and adhere to limitations that are substantially similar to the limitations on the activities of Holdings under Section 4.14(a).

Section 4.15 Offer to Repurchase Upon Change of Control.

(a) If a Change of Control occurs after the Issue Date, unless, prior to the time the Issuers are required to make a Change of Control Offer, the Issuers have previously or concurrently mailed a redemption notice that is or has become unconditional with respect to all the outstanding Notes as described under Section 3.07 or 11.01, the Issuers shall make an offer to purchase all of the Notes pursuant to the offer described below (the “ Change of Control Offer ”) at a price in cash (the “ Change of Control Payment ”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest to, but excluding, the date of purchase, subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date. Within 30 days following any Change of Control, the Issuers shall send notice of such Change of Control Offer by first class mail, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the security register with a copy to the Trustee or otherwise in accordance with the procedures of DTC, with the following information:

(1) that a Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuers;

(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “ Change of Control Payment Date ”);

(3) that any Note not properly tendered will remain outstanding and continue to accrue interest;

(4) that, unless the Issuers default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Payment Date;

(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;

 

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(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuers to purchase such Notes; provided that the Paying Agent receives, not later than the expiration time of the Change of Control Offer, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;

(7) that if a Holder requests that only a portion of a Note held by it be purchased, such Holder will be issued a new Note equal in principal amount to the unpurchased portion of the Note surrendered. The unpurchased portion of the Note must be equal to $2,000 or an integral multiple of $1,000 in excess thereof;

(8) if such notice is delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and

(9) the other instructions, as determined by the Issuers, consistent with this Section 4.15, that a Holder must follow.

While the Notes are in global form and the Issuers make an offer to purchase all of the Notes pursuant to the Change of Control Offer, a holder of Notes may exercise its option to elect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.

The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.15, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue of such compliance.

(b) On the Change of Control Payment Date, the Issuers shall, to the extent lawful:

(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;

(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and

(3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuers.

The Paying Agent shall promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee shall, upon receipt of an Authentication Order, promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any. The Issuers shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

(c) Notwithstanding anything to the contrary in this Section 4.15, the Issuers shall not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.15 and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or (2) a notice of redemption that is or has become unconditional has been given pursuant to Section 3.07 unless and until there is a Default in payment of the applicable redemption price.

 

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(d) Notwithstanding anything to the contrary in this Section 4.15, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of the making of such Change of Control Offer.

Section 4.16 Designation of Restricted and Unrestricted Subsidiaries.

The Board of Directors of a Restricted Parent may designate any Restricted Subsidiary of a Restricted Parent to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary of a Restricted Parent is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Restricted Parents and their Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary shall be deemed to be an Investment made as of the time of the designation and shall reduce the Cumulative Buildup Basket or amounts available under one or more clauses of the definition of Permitted Investments or one or more clauses of Section 4.07(b), as determined by the Issuers. That designation shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of an Issuer or a Restricted Parent may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default and either: (1) the Restricted Parents could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test in Section 4.09(a) or (2) the Fixed Charge Coverage Ratio for Holdings and its Restricted Subsidiaries would be greater than such ratio for Holdings and its Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such designation.

Any designation of a Subsidiary of a Restricted Parent as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of a Restricted Parent giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the requirements of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of a Restricted Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Restricted Parents shall be in Default of Section 4.09. The Board of Directors of a Restricted Parent may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of a Restricted Parent; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of a Restricted Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation shall only be permitted if (1) such Indebtedness is permitted under Section 4.09 and (2) no Default or Event of Default would be in existence following such designation.

Section 4.17 Payments for Consent.

The Restricted Parents shall not, and shall not permit any of their Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. Notwithstanding the foregoing, in the case of an offering of securities to Holders of Notes by the Restricted Parents or any of their Restricted Subsidiaries (including, without limitation, an exchange offer) in which a consent, waiver or amendment is sought, if such offering is intended to be exempt from the registration requirements of the Securities Act, the Restricted Parents and their Restricted Subsidiaries may offer and issue such securities only to Holders of Notes who are eligible to receive such securities in accordance with such exemption from registration.

Section 4.18 Additional Note Guarantees.

If at any time any existing or future Restricted Subsidiary of U.S. Holdings does not qualify as a Non-Guarantor Subsidiary and such Subsidiary is not at that time a Guarantor, then that

 

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Restricted Subsidiary will, within 30 days from being acquired, created or ceasing to qualify as a Non-Guarantor Subsidiary, as applicable, become a Guarantor and execute a supplemental indenture and deliver an Officer’s Certificate and Opinion of Counsel reasonably satisfactory to the Trustee; provided that no such Restricted Subsidiary will be required to so become a Guarantor for so long as such Subsidiary does not Guarantee any Obligations or otherwise become an obligor under any Credit Agreement. The form of such supplemental indenture is attached as Exhibit E hereto.

Section 4.19 Covenant Termination.

At any time after the Notes have received Investment Grade Ratings from two Rating Agencies (a “ Covenant Termination Event ”), upon notice by the Issuers to the Trustee certifying that a Covenant Termination Event has occurred and that at the time of the giving of such notice no Default has occurred and is continuing under this Indenture (a “ Covenant Termination Event Notice ”), the Restricted Parents and their Restricted Subsidiaries will not thereafter be subject to the following provisions of this Indenture:

(1) Section 4.07;

(2) Section 4.08;

(3) Section 4.09;

(4) Section 4.10;

(5) Section 4.11;

(6) any provision contained in Section 4.16 requiring compliance with any test for the incurrence of Indebtedness;

(7) Section 4.18; and

(8) Section 5.01(a)(4).

Upon the delivery of a Covenant Termination Event Notice pursuant to a Covenant Termination Event, the Guarantees of the Guarantors will also be released.

ARTICLE 5.

SUCCESSORS

Section 5.01 Merger, Consolidation, or Sale of Assets.

(a) Neither the Restricted Parents nor the U.S. Issuer shall, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not it is the surviving corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Restricted Parents and their Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless:

(1) in the case of a consolidation or merger of, or a sale, assignment, transfer, conveyance or other disposition by, the U.S. Issuer or U.S. Holdings, the Person formed by or surviving any such consolidation or merger (if other than the U.S. Issuer or U.S. Holdings) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia;

(2) the Person formed by or surviving any such consolidation or merger (if other than a Restricted Parent or the U.S. Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of such Restricted Parent and/or such Issuer, as applicable under the Notes or the Note Guarantees, as applicable, and this Indenture pursuant to agreements reasonably satisfactory to the Trustee;

 

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(3) immediately after such transaction, no Default or Event of Default exists; and

(4) either:

(A) on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, the Restricted Parents, or the Person formed by or surviving any such consolidation or merger (if other than a Restricted Parent), or to which such sale, assignment, transfer, conveyance or other disposition has been made, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or

(B) the Fixed Charge Coverage Ratio of Holdings, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than the actual Fixed Charge Coverage Ratio of Holdings immediately prior to such transaction.

In addition, the Restricted Parents shall not, and shall not permit their Restricted Subsidiaries to, directly or indirectly, lease all or substantially all of the properties and assets of the Restricted Parents and their Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any other Person.

(b) The provisions of Section 5.01(a) shall not apply to:

(1) a merger of a Restricted Parent or the U.S. Issuer with an Affiliate solely for the purpose of reincorporating such Restricted Parent or the U.S. Issuer in another jurisdiction; provided that in the case of the U.S. Issuer and U.S. Holdings such other jurisdiction is any state of the United States or the District of Columbia;

(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among Restricted Parents and their Restricted Subsidiaries; and

(3) any sale or other transfer of assets pursuant to a Designated Asset Sale or that constitute Excess Designated Proceeds.

Section 5.02 Successor Corporation Substituted.

Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of properties or assets in a transaction that is subject to, and that complies with the provisions of, Section 5.01, the successor Person formed by such consolidation or into or with which the applicable Restricted Parent or U.S. Issuer is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to a “Restricted Parent” or the “U.S. Issuer”, as applicable, shall refer instead to the successor Person and not to such Restricted Parent or the U.S. Issuer), and may exercise every right and power of such Restricted Parent or the U.S. Issuer, as applicable, under this Indenture with the same effect as if such successor Person had been named as a Restricted Parent or the U.S. Issuer herein; provided , however , that the predecessor Restricted Parents or the U.S. Issuer, if any, shall not be relieved from the obligation to pay the principal of and interest on the Notes except in the case of a sale of all or substantially all of the properties or assets of the Restricted Parents and their Restricted Subsidiaries, taken as whole, in a transaction that is subject to, and that complies with the provisions of, Section 5.01.

 

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ARTICLE 6.

DEFAULTS AND REMEDIES

Section 6.01 Events of Default.

Each of the following is an “ Event of Default ”:

(1) default for 30 days in the payment when due of interest on the Notes;

(2) default in the payment when due (at maturity, upon redemption, acceleration or otherwise) of the principal of, or premium, if any, on, the Notes;

(3) failure by a Restricted Parent or any Restricted Subsidiary of a Restricted Parent to comply with Section 5.01;

(4) failure by Holdings or any Restricted Subsidiary of Holdings for 60 days after notice to an Issuer by the Trustee or the holders of at least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to comply with any of the other agreements in this Indenture;

(5) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by a Restricted Parent or any Significant Subsidiary of a Restricted Parent (or the payment of which is guaranteed by a Restricted Parent or any Significant Subsidiary of a Restricted Parent), whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, if that default:

(A) is caused by a failure to pay principal at the final Stated Maturity of such Indebtedness (a “ Payment Default ”); or

(B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $30.0 million or more;

(6) with respect to any judgment or decree for the payment of money (net of any amount covered by insurance issued by a reputable and creditworthy insurer that has not contested coverage or reserved rights with respect to an underlying claim) in excess of $30.0 million or its foreign currency equivalent against a Restricted Parent or any Restricted Subsidiary of a Restricted Parent, the failure by a Restricted Parent or such Restricted Subsidiary, as applicable, to pay such judgment or decree, which judgment or decree has remained outstanding for a period of 60 days after such judgment or decree became final and nonappealable without being paid, discharged, waived or stayed;

(7) except as permitted by this Indenture, any Note Guarantee of a Restricted Parent or any Significant Subsidiary of a Restricted Parent is declared to be unenforceable or invalid by any final and nonappealable judgment or decree or ceases for any reason to be in full force and effect, or a Restricted Parent or any Subsidiary Guarantor that is a Significant Subsidiary of a Restricted Parent or any Person acting on behalf of a Restricted Parent or any such Subsidiary Guarantor denies or disaffirms its obligations in writing under its Note Guarantee and such Default continues for 10 days after receipt of the notice specified in this Indenture;

(8) any of Holdings, a Restricted Parent, the U.S. Issuer or any Subsidiary of any of the foregoing that is a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:

(A) commences a voluntary case,

(B) consents to the entry of an order for relief against it in an involuntary case,

 

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(C) consents to the appointment of a custodian of it or for all or substantially all of its property,

(D) makes a general assignment for the benefit of its creditors, or

(E) generally is not paying its debts as they become due; and

(9) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(A) is for relief against any of Holdings, a Restricted Parent, the U.S. Issuer or any Subsidiary of any of the foregoing that is a Significant Subsidiary in an involuntary case;

(B) appoints a custodian of any of Holdings, a Restricted Parent, the U.S. Issuer or any Subsidiary of any of the foregoing that is a Significant Subsidiary for all or substantially all of the property of Holdings, such Restricted Parent, the U.S. Issuer or such Significant Subsidiary, as applicable; or

(C) orders the liquidation of any of Holdings, a Restricted Parent, the U.S. Issuer or any Subsidiary of any of the foregoing that is a Significant Subsidiary;

and the order or decree remains unstayed and in effect for 60 consecutive days.

Section 6.02 Acceleration.

In the case of an Event of Default specified in clause (8) or (9) of Section 6.01, all outstanding Notes shall become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately.

Upon any such declaration, the Notes shall become due and payable immediately. The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders, rescind an acceleration or waive any existing Default or Event of Default and its consequences under this Indenture except a continuing Default or Event of Default in the payment of interest or premium, if any, on, or the principal of, the Notes.

Section 6.03 Other Remedies.

If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

Section 6.04 Waiver of Past Defaults.

Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders, waive any existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on, the Notes; provided , however , that the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

 

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Section 6.05 Control by Majority.

Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders or that may involve the Trustee in personal liability.

Section 6.06 Limitation on Suits.

Except to enforce the right to receive payment of principal, premium, if any, or interest when due, no Holder may pursue any remedy with respect to this Indenture or the Notes unless:

(1) such Holder has previously given the Trustee written notice that an Event of Default is continuing;

(2) Holders of at least 25% in aggregate principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy;

(3) such Holders have offered the Trustee indemnity or security reasonably satisfactory to the Trustee against any loss, liability or expense;

(4) the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and

(5) Holders of a majority in aggregate principal amount of the then-outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.

Section 6.07 Rights of Holders to Receive Payment.

Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal, premium, if any, and interest on the Notes, on or after the respective due dates expressed in the Notes (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

Section 6.08 Collection Suit by Trustee.

If an Event of Default specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as Trustee of an express trust against the Issuers and each Guarantor for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

Section 6.09 Trustee May File Proofs of Claim.

The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Issuers (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to

 

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the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee hereunder. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee hereunder out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

Section 6.10 Priorities.

If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:

First : to the Trustee, its agents and attorneys for amounts due hereunder, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

Second : to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and

Third : to the Issuers or to such party as a court of competent jurisdiction shall direct.

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.

Section 6.11 Undertaking for Costs.

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.

ARTICLE 7.

TRUSTEE

Section 7.01 Duties of Trustee.

(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

(b) Except during the continuance of an Event of Default:

(1) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

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(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of certificates or opinions specifically required by any provision hereof to be furnished to it, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not to confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

(c) The Trustee may not be relieved from liabilities for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:

(1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;

(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and

(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05.

(d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.

(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability.

(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuers. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

Section 7.02 Rights of Trustee.

(a) The Trustee may conclusively rely in good faith upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.

(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.

(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture provided , however , that the Trustee’s conduct does not constitute willful misconduct or gross negligence.

(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from an Issuer shall be sufficient if signed by an Officer of such Issuer.

(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee security and indemnity reasonably satisfactory to it against any loss, liability or expense that might be incurred by it in compliance with such request or direction.

 

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(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.

(h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.

(i) The Trustee may request that the Issuers deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.

(j) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

(k) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.

Section 7.03 Individual Rights of Trustee.

The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuers or any Affiliate of the Issuers with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11.

Section 7.04 Trustee’s Disclaimer.

The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuers’ use of the proceeds from the Notes or any money paid to the Issuers or upon the Issuers’ direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.

Section 7.05 Notice of Defaults.

If a Default or Event of Default occurs and is continuing and if it is actually known to the Trustee, the Trustee shall mail to Holders a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default relating to the payment of principal of, premium, if any, or interest on, any Note, the Trustee may withhold the notice if and so long as it in good faith determines that withholding the notice is in the interests of the Holders of the Notes.

Section 7.06 [Reserved]

Section 7.07 Compensation and Indemnity.

(a) The Issuers shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder as agreed to in writing between the Issuers and the Trustee. The Trustee’s compensation shall not be limited by any law on compensation of a Trustee of an express trust. The Issuers shall reimburse the Trustee promptly upon request for all disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

 

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(b) The Issuers and the Guarantors, jointly and severally, shall indemnify the Trustee against any and all losses, liabilities, claims, damages or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Issuers and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Issuers, the Guarantors, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense shall be determined to have been caused by its own gross negligence or willful misconduct. The Trustee shall notify the Issuers promptly of any claim of which a Responsible Officer has received written notice for which it may seek indemnity. Failure by the Trustee to so notify the Issuers shall not relieve the Issuers or any of the Guarantors of their obligations hereunder. The Issuers or such Guarantor shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Issuers shall pay the reasonable fees and expenses of such counsel. Neither the Issuers nor any Guarantor need pay for any settlement made without its consent, which consent shall not be unreasonably withheld.

(c) The obligations of the Issuers and the Guarantors under this Section 7.07 shall survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.

(d) To secure the Issuers’ and the Guarantors’ payment obligations in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.

(e) When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(8) or (9) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

Section 7.08 Replacement of Trustee.

(a) A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.

(b) The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuers. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuers in writing. The Issuers may remove the Trustee if:

(1) the Trustee fails to comply with Section 7.10;

(2) the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

(3) a custodian or public officer takes charge of the Trustee or its property; or

(4) the Trustee becomes incapable of acting.

(c) If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for any reason, the Issuers shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuers.

(d) If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuers, or the Holders of at least 10% in principal amount of the then outstanding Notes may petition, at the expense of the Issuers, any court of competent jurisdiction for the appointment of a successor Trustee.

 

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(e) If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

(f) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuers. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to the Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuers’ obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.

Section 7.09 Successor Trustee by Merger, etc.

If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.

Section 7.10 Eligibility; Disqualification.

There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that together with its affiliates has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition. No Person directly or indirectly controlling, controlled by or under common control with either of the Issuers or any Guarantor shall serve as the Trustee.

Section 7.11 Preferential Collection of Claims Against Issuers.

The provisions of TIA § 311 are hereby expressly incorporated by reference herein and made a part hereof with the same force and effect as if reproduced in its entirety herein. If any provision of this Indenture limits, qualifies or conflicts with § 311 of the TIA, the provision of § 311 of the TIA shall control.

ARTICLE 8.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE

Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.

The Issuers may, at any time, elect to have either Section 8.02 or 8.03 applied to all outstanding Notes and all obligations of the Guarantors with respect to the Note Guarantees upon compliance with the conditions set forth below in this Article 8.

Section 8.02 Legal Defeasance and Discharge.

Upon the Issuers’ exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuers and each of the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth in Section 8.04 are satisfied (hereinafter, “ Legal Defeasance ”). For this purpose, Legal Defeasance means that the Issuers and the Guarantors shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in clauses (1) and

 

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(2) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Issuers, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:

(1) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest or premium, if any, on, such Notes when such payments are due from the trust referred to in Section 8.04;

(2) the Issuers’ obligations with respect to such Notes under Article 2 and Section 4.02;

(3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuers’ and the Guarantors’ obligations in connection therewith; and

(4) this Article 8.

Subject to compliance with this Section 8.02, the Issuers may exercise their option under this Section 8.02 notwithstanding the prior exercise of their option under Section 8.03.

Section 8.03 Covenant Defeasance.

Upon the Issuers’ exercise under Section 8.01 of the option applicable to this Section 8.03, Holdings, the Restricted Parents and their Restricted Subsidiaries shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from each of their obligations under the covenants contained in Sections 4.03, 4.04(a), 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18 and Section 5.01 with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 are satisfied (hereinafter, “ Covenant Defeasance ”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and the Note Guarantees, Holdings, the Restricted Parents and their Restricted Subsidiaries may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees shall be unaffected thereby. In addition, upon the Issuers’ exercise under Section 8.01 of the option applicable to this Section 8.03 subject to the satisfaction of the conditions set forth in Section 8.04, Sections 6.01(3) through 6.01(7) and, to the extent relating to a Significant Subsidiary of an Issuer, Sections 6.01(8) and 6.01(9) shall not constitute Events of Default.

Section 8.04 Conditions to Legal or Covenant Defeasance.

In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03:

(1) the Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as shall be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, or interest and premium, if any, on, the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be, and the Issuers must specify whether the Notes are being defeased to such stated date for payment or to a particular redemption date;

 

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(2) in the case of Legal Defeasance, the Issuers must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes shall not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and shall be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

(3) in the case of Covenant Defeasance, the Issuers must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and shall be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

(4) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement (including the Credit Agreement) or instrument (other than this Indenture) to which an Issuer or any Subsidiary of an Issuer is a party or by which an Issuer or any Subsidiary of an Issuer is bound;

(5) the Issuers must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuers with the intent of preferring the Holders over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuers or others; and

(6) the Issuers must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions .

Subject to Section 8.06, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “ Trustee ”) pursuant to Section 8.04 in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuers acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.

The Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.

Notwithstanding anything in this Article 8 to the contrary, the Trustee shall deliver or pay to the Issuers from time to time upon the request of the Issuers any money or non-callable Government Securities held by it as provided in Section 8.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(1)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

 

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Section 8.06 Repayment to Issuers .

Any money deposited with the Trustee or any Paying Agent, or then held by the Issuers, in trust for the payment of the principal of, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Issuers on their request or (if then held by the Issuers) shall be discharged from such trust; and the Holder of such Note shall thereafter be permitted to look only to the Issuers for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuers as trustee thereof, shall thereupon cease.

Section 8.07 Reinstatement .

If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuers’ and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03, as the case may be; provided , however , that, if the Issuers make any payment of principal of, premium, if any, or interest on any Note following the reinstatement of their obligations, the Issuers shall be subrogated to the rights of the Holders of such Notes to receive such payment from the cash or Government Securities held by the Trustee or Paying Agent.

ARTICLE 9.

AMENDMENT, SUPPLEMENT AND WAIVER

Section 9.01 Without Consent of Holders .

(a) Notwithstanding Section 9.02, the Issuers, the Guarantors and the Trustee may amend or supplement this Indenture, the Note Guarantees or the Notes (and any other documents related thereto) without the consent of any Holder of a Note:

(1) to cure any ambiguity, defect or inconsistency;

(2) to provide for uncertificated Notes in addition to or in place of certificated Notes;

(3) to provide for the assumption of an Issuer’s or a Guarantor’s obligations to the Holders under the Notes and/or the Note Guarantees by a successor to such Issuer or such Guarantor pursuant to Article 5 or Section 10.05;

(4) to make any change that would provide any additional rights or benefits (including the addition of collateral) to the Holders or that does not adversely affect in any material respect the legal rights hereunder of any such Holder;

(5) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA (to the extent this Indenture is or becomes so qualified);

(6) to conform the text of this Indenture, the Note Guarantees or the Notes to any provision of the “Description of Notes” section of the Offering Circular;

(7) to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture as of the Issue Date;

(8) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with respect to the Notes; or

(9) to comply with the rules of any applicable securities depository.

 

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(b) Upon the request of the Issuers accompanied by a resolution of its Board of Directors authorizing the execution of any such amendment or supplement to this Indenture, and upon receipt by the Trustee of the documents described in Section 7.02(b), the Trustee shall join with the Issuers and the Guarantors in the execution of any amendment or supplement to this Indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

Section 9.02 With Consent of Holders .

(a) Except as provided below in this Section 9.02, the Issuers, the Guarantors and the Trustee may amend or supplement this Indenture (including, without limitation, Section 3.09, 4.10 and 4.15), the Note Guarantees or the Notes (and any documents related thereto) with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), and, subject to Sections 6.04 and 6.07, any existing Default or Event of Default or compliance with any provision of this Indenture, the Note Guarantees or the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes).

(b) Upon the request of the Issuers accompanied by a resolution of its Board of Directors authorizing the execution of any such amendment or supplement to this Indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02(b), the Trustee shall join with the Issuers and the Guarantors in the execution of such amendment or supplement to this Indenture unless such amendment or supplement directly affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amendment or supplement.

(c) It is not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it is sufficient if such consent approves the substance thereof.

(d) After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuers shall mail to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuers to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver. Subject to Sections 6.04 and 6.07, the Holders of a majority in aggregate principal amount of the Notes then outstanding, voting as a single class, may waive compliance in a particular instance by the Issuers and the Guarantors with any provision of this Indenture, the Notes, or the Note Guarantees. However, without the consent of each Holder affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

(1) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;

(2) reduce the principal of or change the fixed maturity of any Note or alter the provisions with respect to the redemption of the Notes, except as provided above with respect to Sections 3.09, 4.10 and 4.15 and except with respect to provisions specifying the notice periods for effecting a redemption;

(3) reduce the rate of or change the time for payment of interest, including default interest, on any Note;

(4) waive a Default or Event of Default in the payment of principal of, or interest or premium, if any, on, the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment default that resulted from such acceleration);

 

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(5) make any Note payable in money other than that stated in the Notes;

(6) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders to receive payments of principal of, or interest or premium, if any, on, the Notes;

(7) waive a redemption payment with respect to any Note (other than a payment required by Sections 3.09, 4.10 or 4.15);

(8) release any Guarantor from any of its obligations under its Note Guarantee or this Indenture, except in accordance with the terms of this Indenture;

(9) impair the right of any Holder of the Notes to receive payment of principal of, or interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;

(10) make any change to or modify the ranking as to contractual right of payment of any such Note or related Guarantee that would adversely affect the Holders; or

(11) make any change in the preceding amendment and waiver provisions.

Section 9.03 Compliance with Trust Indenture Act .

Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended or supplemental indenture that complies with the TIA as then in effect if this Indenture is then qualified under the TIA.

Section 9.04 Revocation and Effect of Consents .

Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

Section 9.05 Notation on or Exchange of Notes .

The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuers in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.

Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

Section 9.06 Trustee to Sign Amendments, etc .

The Trustee shall sign any amendment or supplement to this Indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Issuers may not sign an amendment or supplement to this Indenture until the Board of Directors of each Issuer approves of such amendment or supplement. In executing any amendment or supplement to this Indenture, the Trustee shall be provided with and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by

 

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Section 12.04, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amendment or supplement is authorized or permitted by this Indenture and that such amendment or supplement is the legal, valid and binding obligation of the Issuers, enforceable against them in accordance with its terms.

ARTICLE 10.

NOTE GUARANTEES

Section 10.01 Guarantee .

(a) Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuers hereunder or thereunder, that:

(1) the principal of, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other Obligations of the Issuers to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

(2) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.

Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(b) The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenant that this Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture or by release in accordance with the provisions of this Indenture.

(c) If any Holder or the Trustee is required by any court or otherwise to return to the Issuers, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or the Guarantors, any amount paid by either the Issuers or the Guarantors to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

(d) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such Obligations as provided in Article 6, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee.

 

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(e) All Guarantors desire to allocate among themselves (collectively, the “ Contributing Guarantors ”), in a fair and equitable manner, the economic consequences resulting from the performance of their respective obligations arising under this Indenture. Accordingly, in the event any payment or distribution is made on any date by a Guarantor (a “ Funding Guarantor ”) under its Notes Guarantee such that its Aggregate Payments exceed its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “ Fair Share ” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor, to (ii) the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors, multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding Guarantors under their respective Notes Guarantees in respect of the obligations guaranteed. “ Fair Share Contribution Amount ” means, with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such Contributing Guarantor under its Notes Guarantee that would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or any comparable applicable provisions of state law; provided that solely for purposes of calculating the Fair Share Contribution Amount with respect to any Contributing Guarantor for purposes of this Section 10.01, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities of such Contributing Guarantor. “ Aggregate Payments ” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate amount of all payments and distributions made on or before such date by such Contributing Guarantor in respect of its Notes Guarantee (including in respect of this Section 10.01), minus (2) the aggregate amount of all payments received on or before such date by such Guarantor from the other Contributing Guarantors as contributions under this Section 10.01. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Guarantor. Each Contributing Guarantor is a third party beneficiary to the contribution agreement set forth in this Section 10.01(e). For the avoidance of doubt, nothing in this Section 10.01(e) shall limit or impair, by implication or otherwise, each Guarantor’s obligations under its Note Guarantee.

Section 10.02 Limitation on Guarantor Liability .

Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor shall be limited to the maximum amount that shall, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.

Section 10.03 Execution and Delivery of Note Guarantee .

To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that a notation of such Note Guarantee substantially in the form attached as Exhibit D hereto shall be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of such Guarantor by one of its Officers.

Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.

 

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If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid nevertheless.

The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.

Section 10.04 Guarantors May Consolidate, etc., on Certain Terms .

Except as otherwise provided in this Section 10.04, neither U.S. Holdings nor any Subsidiary Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not it is the surviving Person) another Person, other than a Restricted Parent, the U.S. Issuer or another Subsidiary Guarantor, unless:

(1) immediately after giving effect to such transaction, no Default or Event of Default exists; and

(2) either:

(a) the Person (if other than a Restricted Parent, the U.S. Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than a Restricted Parent, the U.S. Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or merger assumes all the obligations of U.S. Holdings or that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture satisfactory to the Trustee; or

(b) such transfer is permitted under Section 4.10.

In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person shall succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Issuers and delivered to the Trustee. All the Note Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.

Except as set forth in Articles 4 and 5, and notwithstanding subclauses (a) and (b) of the second preceding paragraph, nothing in this Indenture or in any of the Notes shall prevent any consolidation or merger of U.S. Holdings or a Subsidiary Guarantor with or into a Restricted Parent, the U.S. Issuer or another Subsidiary Guarantor, or shall prevent any sale or conveyance of the property of U.S. Holdings or a Subsidiary Guarantor as an entirety or substantially as an entirety to a Restricted Parent, the U.S. Issuer or another Subsidiary Guarantor.

Section 10.05 Releases .

The Note Guarantee of a Subsidiary Guarantor will be released:

(a) in connection with any sale or other disposition of all or substantially all of the assets of that Subsidiary Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) a Restricted Parent or a Restricted Subsidiary of a Restricted Parent, if the sale or other disposition does not violate Section 4.10;

(b) in connection with any sale or other disposition of all of the Capital Stock of that Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transaction) a Restricted Parent or a Restricted Subsidiary of a Restricted Parent, if the sale or other disposition does not violate Section 4.10;

 

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(c) if a Restricted Parent designates any Restricted Subsidiary that is a Subsidiary Guarantor to be a Non-Guarantor Subsidiary in accordance with the definition of Non-Guarantor Subsidiary;

(d) if that Subsidiary Guarantor is released from its guarantees under all Credit Agreements (other than upon the release of all Subsidiary Guarantors from their guarantees under all Credit Agreements in connection with the termination or discharge in full of all Credit Agreements);

(e) upon legal defeasance in accordance with Article 8 or satisfaction and discharge in accordance with Article 11; or

(f) upon delivery of a Covenant Termination Event Notice pursuant to a Covenant Termination Event.

If any Subsidiary Guarantor is released from its Note Guarantee (other than a Subsidiary Guarantor so released pursuant to clause (c) above in reliance upon clause (2) or clause (4) of the definition of Non-Guarantor Subsidiary), any of its Subsidiaries that are Subsidiary Guarantors will also be released from their Note Guarantees, if any. Notwithstanding the foregoing, U.S. Holdings shall not be released from its Note Guarantee.

Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 10.05 shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under this Indenture as provided in and subject to any limitations contained in this Article 10.

ARTICLE 11.

SATISFACTION AND DISCHARGE

Section 11.01 Satisfaction and Discharge .

This Indenture shall be discharged and shall cease to be of further effect as to all Notes issued hereunder, when:

(1) either:

(a) all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust and thereafter repaid to the Issuers, have been delivered to the Trustee for cancellation; or

(b) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption that is or has become unconditional or otherwise or shall become due and payable within one year and the Issuers or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as shall be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption (for the avoidance of doubt, in the case of a discharge that occurs in connection with a redemption that is to occur on a Redemption Date, the amount to be deposited shall be the amount that, as of the date of such deposit, is deemed reasonably sufficient to make such payment and discharge on the Redemption Date, in the good-faith determination of the Board of Directors of Holdings pursuant to a resolution of the Board of Directors of Holdings and as evidenced by an Officer’s Certificate;

 

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(2) no Default or Event of Default has occurred and is continuing on the date of the deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the incurrence of any Lien in respect thereof) and the deposit shall not result in a breach or violation of, or constitute a default under, any other instrument to which the Issuers or any Guarantor is a party or by which the Issuers or any Guarantor is bound;

(3) the Issuers or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and

(4) the Issuers have delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be.

In addition, the Issuers must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.

Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to sub-clause (b) of clause (1) of this Section 11.01, the provisions of Sections 12.02 and 8.06 shall survive. In addition, nothing in this Section 11.01 shall be deemed to discharge those provisions of Section 7.07, that, by their terms, survive the satisfaction and discharge of this Indenture.

Section 11.02 Application of Trust Money .

Subject to the provisions of Section 8.06, all money deposited with the Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including an Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

To the extent that and so long as the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 11.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuers’ and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01; provided , however , that if the Issuers have made any payment of principal of, premium, if any, or interest on any Notes following the reinstatement of their obligations, the Issuers shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.

ARTICLE 12.

MISCELLANEOUS

Section 12.01 Indenture Shall Control .

In the event of a conflict between the terms and provisions of this Indenture on the one hand and the terms and provisions of any Note or Note Guarantee on the other hand, the terms and provisions of this Indenture shall govern and be controlling.

 

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Section 12.02 Notices .

Any notice or communication by either of the Issuers, any Guarantor or the Trustee to the others is duly given if in writing and delivered in Person or mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next day delivery, to the others’ address:

If to either of the Issuers and/or any Guarantor:

Taylor Morrison Communities, Inc.

Attention: General Counsel

4900 North Scottsdale Road, Suite 2000

Scottsdale, Arizona 85251

Telecopy: (866) 629-4310

If to the Trustee:

Wells Fargo Bank, National Association, as Trustee

625 Marquette Avenue, 11 th Floor

MAC N9311-110

Minneapolis, MN 55479

Attn: Corporate Trust Services,

Administrator—Taylor Morrison Communities, Inc.

Telecopy: (612) 667-9825

The Issuers, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.

All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by courier to its address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.

If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

If an Issuer mails a notice or communication to Holders, it shall provide a copy to the Trustee and each Agent at the same time.

Section 12.03 [Reserved]

Section 12.04 Certificate and Opinion as to Conditions Precedent .

Upon any request or application by an Issuer or a Restricted Parent to the Trustee to take any action under this Indenture, such Issuer or Restricted Parent, as applicable, shall furnish to the Trustee:

(1) an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and

(2) except with respect to the issuance of the Initial Notes, an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.

 

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Section 12.05 Statements Required in Certificate or Opinion .

Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture must include:

(1) a statement that the Person making such certificate or opinion has read such covenant or condition;

(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant has been complied with or such condition has been satisfied; and

(4) a statement as to whether or not, in the opinion of such Person, such condition has been satisfied or such covenant has been complied with.

Section 12.06 Rules by Trustee and Agents .

The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders .

No director, officer, employee, incorporator, stockholder, member or other holder of Equity Interests of the Issuers or any Guarantor, in their capacities as such and without limiting the Note Guarantees, shall have any liability for any obligations of the Issuers or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability that may arise other than pursuant to a Note Guarantee. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.

Section 12.08 Governing Law .

THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

Section 12.09 No Adverse Interpretation of Other Agreements .

This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuers or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

Section 12.10 Successors .

All agreements of the Issuers in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.05.

 

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Section 12.11 Severability .

In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 12.12 Counterpart Originals .

The parties may sign any number of copies of this Indenture. Each signed copy (including copies transmitted via telecopy or electronic mail) shall be an original, but all of them together represent the same agreement.

Section 12.13 Table of Contents, Headings, etc .

The Table of Contents and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

Section 12.14 Waiver of Jury Trial .

EACH OF THE ISSUERS, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.

Section 12.15 Force Majeure .

In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

Section 12.16 Consent to Jurisdiction and Service .

Each of the Canadian Issuer and the Note Guarantors organized under Canadian law hereby irrevocably and unconditionally: (1) submit itself and its property in any legal action or proceeding relating to this Indenture, the Notes and, as applicable, its Note Guarantee for recognition and enforcement of any judgment in respect thereof, to the general jurisdiction of the courts of the State of New York, sitting in the Borough of Manhattan, The City of New York, the courts of the United States of America for the Southern District of New York, appellate courts from any thereof and courts of its own corporate domicile, with respect to actions brought against it as defendant; (2) consent that any such action or proceeding may be brought in such courts and waive any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; (3) designate and appoint U.S. Issuer as its authorized agent upon which process may be served in any action, suit or proceeding arising out of or relating to this Indenture, the Notes and, as applicable, its Note Guarantee that may be instituted in any federal or state court in the State of New York (and the U.S. Issuer hereby accepts such appointments); and (4) agree that service of any process, summons, notice or document by U.S. registered mail addressed to the U.S. Issuer, with written notice of said service to such Person at the address of the U.S. Issuer set forth in this Indenture shall be effective service of process for any action, suit or proceeding brought in any such court.

 

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Section 12.17 Currency Indemnity .

The U.S. dollar is the sole currency of account and payment for all sums payable by the Issuers or any Note Guarantor under or in connection with the Notes, including damages. Any amount with respect to the Notes received or recovered in a currency other than U.S. dollars, whether as a result of, or the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuers or any Note Guarantor or otherwise by any Holder of a Note or by the Trustee, in respect of any sum expressed to be due to it from the Issuers or any Note Guarantor will only constitute a discharge to the Issuers or any Note Guarantor to the extent of the U.S. dollar amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so).

If that U.S. dollar amount is less than the U.S. dollar amount expressed to be due to the recipient or the Trustee under the Notes, the Issuers and each Note Guarantor will indemnify such recipient and/or the Trustee against any loss sustained by it as a result. In any event, the Issuers and each Note Guarantor will indemnify the recipient against the cost of making any such purchase. For the purposes of this Section 12.17, it will be prima facie evidence of the matter stated therein, for the Holder of a Note or the Trustee to certify in a manner satisfactory to the Issuers (indicating the sources of information used) the loss it incurred in making any such purchase. These indemnities constitute a separate and independent obligation from the Issuers and each Note Guarantor’s other obligations, shall give rise to a separate and independent cause of action, shall apply irrespective of any waiver granted by any Holder of a Note or the Trustee (other than a waiver of the indemnities set out herein) and will continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any Note or to the Trustee. For the purposes of determining the amount in a currency other than U.S. dollars, such amount shall be determined using the Exchange Rate then in effect.

For purposes of this Section 12.17, “ Exchange Rate ” means, on any day, the rate at which the currency other than U.S. dollars may be exchanged into U.S. dollars at approximately 11:00 a.m., New York City time, on such date on the Bloomberg Key Cross Currency Rates Page for the relevant currency. In the event that such rate does not appear on any Bloomberg Key Cross Currency Rate Page, the Exchange Rate shall be determined by the Issuers in good faith.

Section 12.18 U.S.A. Patriot Act .

The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.

(Signature Pages Follow)

 

- 101 -


IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of April 13, 2012

ISSUERS:

 

TAYLOR MORRISON COMMUNITIES, INC.
By:  

LOGO

  Name:   Sheryl Palmer
  Title:   President
MONARCH COMMUNITIES INC
By:  

LOGO

  Name:   Sheryl Palmer
  Title:   President

TRUSTEE:

 

WELLS FARGO BANK, NATIONAL ASSOCIATION , as Trustee
By:  

 

  Name:  
  Title:  

 

S-1


IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of April 13, 2012

ISSUERS:

 

TAYLOR MORRISON COMMUNITIES, INC.
By:  

 

  Name:  
  Title:  
MONARCH COMMUNITIES INC.
By:  

 

  Name:  
  Title:  

TRUSTEE:

 

WELLS FARGO BANK, NATIONAL ASSOCIATION , as Trustee
By:  

LOGO

  Name:   [ILLEGIBLE]
  Title:   Vice President

 

S-1


TMM HOLDINGS LIMITED PARTNERSHIP
  By:   TMM Holdings (G.P.) Inc., its General Partner
    By:  

LOGO

      Name:  
      Title:  
TAYLOR MORRISON HOLDINGS, INC.
    By:  

LOGO

      Name:   Sheryl Palmer
      Title:   President

 

S-2


MONARCH PARENT INC.
    By:  

LOGO

      Name:   Sheryl Palmer
      Title:   President
MONARCH CORPORATION
    By:  

LOGO

      Name:   Sheryl Palmer
      Title:   Senior-Vice President
ATDP, LLC
TAYLOR MORRISON AT CRYSTAL FALLS, LLC
TAYLOR MORRISON FINANCE, INC.
TAYLOR MORRISON HOLDINGS OF ARIZONA, INC.
TAYLOR MORRISON OF CALIFORNIA, LLC
TAYLOR MORRISON OF COLORADO, INC.
TAYLOR MORRISON OF FLORIDA, INC.
TAYLOR MORRISON OF TEXAS, INC.
TAYLOR MORRISION SERVICES, INC.
TAYLOR MORRISON, INC.
TAYLOR MORRISON/ARIZONA, INC.
TAYLOR WOODROW COMMUNITIES – LEAGUE CITY, LTD.
TAYLOR WOODROW COMMUNITIES AT MIRASOL, LTD.
TAYLOR WOODROW COMMUNITIES AT PORTICO, L.L.C.
TAYLOR WOODROW COMMUNITIES AT ST. JOHNS FOREST, L.L.C.
TAYLOR WOODROW HOMES – CENTRAL FLORIDA DIVISION, L.L.C.
TAYLOR WOODROW HOMES – SOUTHWEST FLORIDA DIVISION, L.L.C.
TM HOMES OF ARIZONA, INC.
TW ACQUISITIONS, INC.
TWC/FALCONHEAD WEST, L.L.C.
TWC/MIRASOL, INC.
TWC/STEINER RANCH, LLC
On behalf of each of the above named entities,
By:  

LOGO

  Name:   Calvin Boyd
  Title:   Authorized Officer

 

S-3


EXHIBIT A1

[Face of Note]

CUSIP/CINS             

7.750% Senior Notes due 2020

 

No.                 $            

TAYLOR MORRISON COMMUNITIES, INC.

MONARCH COMMUNITIES INC.

promises to pay to                      or registered assigns,

the principal sum of          DOLLARS on April 15, 2020.

Interest Payment Dates: April 15 and October 15

Record Dates: April 1 and October 1

Dated:                     

 

A1-1


TAYLOR MORRISON COMMUNITIES, INC.
By:  

 

  Name:
  Title:
MONARCH COMMUNITIES INC.
By:  

 

  Name:
  Title:

This is one of the Notes referred to

in the within-mentioned Indenture:

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
By:  

 

  Authorized Signatory

 

A1-2


[Back of Note]

7.750% Senior Notes due 2020

[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]

[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]

[Insert the OID Legend, if applicable pursuant to the provisions of the Indenture.]

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) INTEREST. Taylor Morrison Communities, Inc., a Delaware corporation, and Monarch Communities Inc., a British Columbia corporation (together, the “ Issuers ”), promise to pay interest on the principal amount of this Note at 7.750% per annum from [ ] until maturity. The Issuers shall pay interest semi-annually in arrears on April 15 and October 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “ Interest Payment Date ”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from [ ]; provided that the first Interest Payment Date shall be [ ]. The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the rate equal to the then applicable interest rate on the Notes. The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the rate equal to the then applicable interest rate on the Notes. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.

(2) METHOD OF PAYMENT . The Issuers shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the April 1 or October 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes shall be payable as to principal, interest and premium, if any, at the office or agency of the Paying Agent within the City and State of New York, or, at the option of the Issuers, payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds shall be required with respect to principal, interest and premium, if any, on all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuers or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

(3) PAYING AGENT AND REGISTRAR . Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Issuers may change any Paying Agent or Registrar without notice to any Holder. An Issuer or any of its Subsidiaries may act in any such capacity.

(4)  INDENTURE . The Issuers issued the Notes under an Indenture dated as of April 13, 2012 (the “Indenture”), among the Issuers, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. In the event of a conflict between the terms and provisions of the Indenture on the one hand and the terms and provisions of this Note or any Note Guarantee on the other hand, the terms and provisions of the Indenture shall govern and be controlling. The Notes are general unsecured obligations of the Issuers. Subject to the conditions set forth in the Indenture, the Issuers may issue Additional Notes.

 

A1-3


(5) OPTIONAL REDEMPTION .

(a) Except as set forth in subparagraph (b) and (c) of this Paragraph 5, the Issuers shall not have the option to redeem the Notes prior to April 15, 2015. On or after April 15, 2015, the Issuers may redeem all or part of the Notes upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest thereon to, but excluding, the applicable redemption date, if redeemed during the twelve-month period beginning on April 15 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date:

 

Year

   Percentage  

2015

     105.813

2016

     103.875

2017

     101.938

2018 and thereafter

     100.000

(b) At any time prior to April 15, 2015, the Issuers are entitled, on any one or more occasions, to redeem up to 40% of the aggregate principal amount of Notes issued under the Indenture (including Additional Notes, if any) at a redemption price of 103.875% of the principal amount (if the redemption occurs prior to April 15, 2013) or at a redemption price of 107.750% of the principal amount (if the redemption occurs on or after April 15, 2013 and prior to April 15, 2015), in each case, plus accrued and unpaid interest to, but excluding, the redemption date using cash contributed directly or indirectly by Holdings to the common equity capital of a Restricted Parent in an amount not to exceed the net cash proceeds of one or more Equity Offerings by Holdings (or the net cash proceeds of one or more contributions to the common equity capital of Holdings in an amount not to exceed the net cash proceeds of one or more Equity Offerings by a direct or indirect parent of Holdings), in each case, other than Excluded Contributions and the net proceeds of a sale of Designated Preferred Stock of Holdings of or any such parent of Holdings; provided that (i) at least 50% in aggregate principal amount of the Notes originally issued under the Indenture (excluding Notes held by the Issuers or Affiliates of the Issuers and including Additional Notes, if any) remains outstanding immediately after the occurrence of any such redemption; and (ii) the redemption occurs prior to 90 days after the date of the closing of such Equity Offering or equity contribution.

(c) At any time prior to April 15, 2015, the Issuers are entitled to redeem all or a part of the Notes, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, but excluding, the Redemption Date, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date.

(6) MANDATORY REDEMPTION . The Issuers shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.

(7) REPURCHASE AT THE OPTION OF HOLDER .

The Issuers may be required to repurchase the Notes as a result of a Change of Control, as provided in Section 4.15 of the Indenture. The Issuers may be required to repurchase the Notes as a result of Asset Sales, as provided in Sections 4.10 and 3.09 of the Indenture. Holders may elect to have such Notes purchased pursuant to a Change of Control Offer or an Asset Sale Offer by completing the form entitled “ Option of Holder to Elect Purchase ” attached to the Notes.

(8) NOTICE OF REDEMPTION . Notice of redemption shall be provided pursuant to Section 3.03 of the Indenture.

(9) DENOMINATIONS, TRANSFER, EXCHANGE . The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuers may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuers need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Issuers need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.

(10) PERSONS DEEMED OWNERS . The registered Holder of a Note may be treated as its owner for all purposes.

 

A1-4


(11) AMENDMENT, SUPPLEMENT AND WAIVER . Subject to certain exceptions, the Indenture, the Note Guarantees or the Notes (and any documents related thereto) may be amended or supplemented, both with and without the consent of the Holders of Notes, as provided in Article 9 of the Indenture.

(12) DEFAULTS AND REMEDIES . Events of Default include default for 30 days in the payment when due of interest on the Notes, default in the payment when due (at maturity, upon redemption, acceleration or otherwise) of the principal of, or premium, if any, on the Notes, as well as other Events of Default set forth in Section 6.01 of the Indenture. The Issuers are required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuers are required, within 30 days after any Officer becomes aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

(13) TRUSTEE DEALINGS WITH ISSUERS . The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Issuers or its Affiliates, and may otherwise deal with the Issuers or its Affiliates, as if it were not the Trustee.

(14) NO RECOURSE AGAINST OTHERS . No director, officer, employee, incorporator, stockholder, member or other holder of Equity Interests of the Issuers or any Guarantor, in their capacities as such and without limiting the Note Guarantees, shall have any liability for any obligations of the Issuers or Guarantors under the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability that may arise other than pursuant to a Note Guarantee. The waiver and release are part of the consideration for the issuance of the Notes.

(15) AUTHENTICATION . This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

(16) ABBREVIATIONS . Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17) CUSIP NUMBERS . Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuers have caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

The Issuers shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

Taylor Morrison Communities, Inc.

Attention: General Counsel

4900 North Scottsdale Road, Suite 2000

Scottsdale, Arizona 85251

 

A1-5


ASSIGNMENT FORM

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:  

 

  (Insert assignee’s legal name)

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                                                               to transfer this Note on the books of the Issuers. The agent may substitute another to act for him.

 

Date:  

 

 

   Your Signature:   

 

      (Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*:

 

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

A1-6


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Issuers pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:

¨ Section 4.10                 ¨ Section 4.15

If you want to elect to have only part of the Note purchased by the Issuers pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$                     

 

Date:  

 

 

   Your Signature:   

 

      (Sign exactly as your name appears on the face of this Note)
   Tax Identification No.:

 

Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

A1-7


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of Exchange

   Amount of
decrease in
Principal
Amount of this
Global Note
   Amount of
increase in
Principal
Amount of this
Global Note
   Principal Amount
of this Global
Note following
such decrease

(or increase)
   Signature of
authorized
signatory of
Trustee or
Custodian
           

 

* This schedule should be included only if the Note is issued in global form.

 

A1-8


EXHIBIT A2

[Face of Regulation S Temporary Global Note]

CUSIP/CINS             

7.750% Senior Notes due 2020

 

No.    $            

TAYLOR MORRISON COMMUNITIES, INC.

MONARCH COMMUNITIES INC.

promises to pay to CEDE & CO. or registered assigns,

the principal sum of              DOLLARS on April 15, 2020.

Interest Payment Dates: April 15 and October 15

Record Dates: April 1 and October 1

Dated:                     

 

A2-1


  TAYLOR MORRISON COMMUNITIES, INC.
By  

 

  Name:  
  Title:  
  MONARCH COMMUNITIES INC.
By  

 

  Name:  
  Title:  

This is one of the Notes referred to

in the within-mentioned Indenture:

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
By:  

 

  Authorized Signatory

 

A2-2


[Back of Regulation S Temporary Global Note]

7.750% Senior Notes due 2020

THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).

THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH AN ISSUER OR ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A)(1) TO TAYLOR MORRISON COMMUNITIES, INC., MONARCH COMMUNITIES INC. OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (3) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (4) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT (“REGULATION S”) IN AN OFFSHORE TRANSACTION COMPLYING WITH REGULATION S OR (5) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS’ AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (A)(4) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S OR PURSUANT TO CLAUSE (A)(5) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER APPLICABLE JURISDICTIONS. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.01 AND SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.

 

A2-3


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUERS OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

[Insert the OID Legend, if applicable pursuant to the provisions of the Indenture.]

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) INTEREST. Taylor Morrison Communities, Inc., a Delaware corporation, and Monarch Communities Inc., a British Columbia corporation (together, the “ Issuers ”), promise to pay interest on the principal amount of this Note at 7.750% per annum from [ ] until maturity. The Issuers shall pay interest semi-annually in arrears on April 15 and October 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “ Interest Payment Date ”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from [ ]; provided that the first Interest Payment Date shall be [ ]. The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the rate equal to the then applicable interest rate on the Notes. The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the rate equal to the then applicable interest rate on the Notes. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.

(2) METHOD OF PAYMENT . The Issuers shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the April 1 or October 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes shall be payable as to principal, interest and premium, if any, at the office or agency of the Paying Agent within the City and State of New York, or, at the option of the Issuers, payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds shall be required with respect to principal, interest and premium, if any, on all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuers or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

(3) PAYING AGENT AND REGISTRAR . Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Issuers may change any Paying Agent or Registrar without notice to any Holder. An Issuer or any of its Subsidiaries may act in any such capacity.

(4) INDENTURE . The Issuers issued the Notes under an Indenture dated as of April 13, 2012 (the “Indenture”), among the Issuers, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. In the event of a conflict between the terms and provisions of the Indenture on the one hand and the terms and provisions of this Note or any Note Guarantee on the other hand, the terms and provisions of the Indenture shall govern and be controlling. The Notes are general unsecured obligations of the Issuers. Subject to the conditions set forth in the Indenture, the Issuers may issue Additional Notes.

 

A2-4


(5) OPTIONAL REDEMPTION .

(a) Except as set forth in subparagraph (b) and (c) of this Paragraph 5, the Issuers shall not have the option to redeem the Notes prior to April 15, 2015. On or after April 15, 2015, the Issuers may redeem all or part of the Notes upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest thereon to, but excluding, the applicable redemption date, if redeemed during the twelve-month period beginning on April 15 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date:

 

Year

   Percentage  

2015

     105.813

2016

     103.875

2017

     101.938

2018 and thereafter

     100.000

(b) At any time prior to April 15, 2015, the Issuers are entitled, on any one or more occasions, to redeem up to 40% of the aggregate principal amount of Notes issued under the Indenture (including Additional Notes, if any) at a redemption price of 103.875% of the principal amount (if the redemption occurs prior to April 15, 2013) or at a redemption price of 107.750% of the principal amount (if the redemption occurs on or after April 15, 2013 and prior to April 15, 2015), in each case, plus accrued and unpaid interest to, but excluding, the redemption date using cash contributed directly or indirectly by Holdings to the common equity capital of a Restricted Parent in an amount not to exceed the net cash proceeds of one or more Equity Offerings by Holdings (or the net cash proceeds of one or more contributions to the common equity capital of Holdings in an amount not to exceed the net cash proceeds of one or more Equity Offerings by a direct or indirect parent of Holdings), in each case, other than Excluded Contributions and the net proceeds of a sale of Designated Preferred Stock of Holdings of or any such parent of Holdings; provided that (i) at least 50% in aggregate principal amount of the Notes originally issued under the Indenture (excluding Notes held by the Issuers or Affiliates of the Issuers and including Additional Notes, if any) remains outstanding immediately after the occurrence of any such redemption; and (ii) the redemption occurs prior to 90 days after the date of the closing of such Equity Offering or equity contribution.

(c) At any time prior to April 15, 2015, the Issuers are entitled to redeem all or a part of the Notes, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, but excluding, the Redemption Date, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date.

(6) MANDATORY REDEMPTION . The Issuers shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.

(7) REPURCHASE AT THE OPTION OF HOLDER .

The Issuers may be required to repurchase the Notes as a result of a Change of Control, as provided in Section 4.15 of the Indenture. The Issuers may be required to repurchase the Notes as a result of Asset Sales, as provided in Sections 4.10 and 3.09 of the Indenture. Holders may elect to have such Notes purchased pursuant to a Change of Control Offer or an Asset Sale Offer by completing the form entitled “ Option of Holder to Elect Purchase ” attached to the Notes.

(8) NOTICE OF REDEMPTION . Notice of redemption shall be provided pursuant to Section 3.03 of the Indenture.

(9) DENOMINATIONS, TRANSFER, EXCHANGE . The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuers may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuers need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being

 

A2-5


redeemed in part. Also, the Issuers need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.

(10) PERSONS DEEMED OWNERS . The registered Holder of a Note may be treated as its owner for all purposes.

(11) AMENDMENT, SUPPLEMENT AND WAIVER . Subject to certain exceptions, the Indenture, the Note Guarantees or the Notes (and any documents related thereto) may be amended or supplemented, both with and without the consent of the Holders of Notes, as provided in Article 9 of the Indenture.

(12) DEFAULTS AND REMEDIES . Events of Default include default for 30 days in the payment when due of interest on the Notes, default in the payment when due (at maturity, upon redemption, acceleration or otherwise) of the principal of, or premium, if any, on the Notes, as well as other Events of Default set forth in Section 6.01 of the Indenture. The Issuers are required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuers are required, within 30 days after any Officer becomes aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

(13) TRUSTEE DEALINGS WITH ISSUERS . The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Issuers or its Affiliates, and may otherwise deal with the Issuers or its Affiliates, as if it were not the Trustee.

(14) NO RECOURSE AGAINST OTHERS . No director, officer, employee, incorporator, stockholder, member or other holder of Equity Interests of the Issuers or any Guarantor, in their capacities as such and without limiting the Note Guarantees, shall have any liability for any obligations of the Issuers or Guarantors under the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability that may arise other than pursuant to a Note Guarantee. The waiver and release are part of the consideration for the issuance of the Notes.

(15) AUTHENTICATION . This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

(16) ABBREVIATIONS . Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17) CUSIP NUMBERS . Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuers have caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

The Issuers shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

Taylor Morrison Communities, Inc.

Attention: General Counsel

4900 North Scottsdale Road, Suite 2000

Scottsdale, Arizona 85251

 

A2-6


ASSIGNMENT FORM

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:  

 

  (Insert assignee’s legal name)

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                                                               to transfer this Note on the books of the Issuers. The agent may substitute another to act for him.

 

Date:  

 

 

   Your Signature:   

 

      (Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*:

 

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

A2-7


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Issuers pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:

¨ Section 4.10                 ¨ Section 4.15

If you want to elect to have only part of the Note purchased by the Issuers pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$                     

Date:  

 

 

   Your Signature:   

 

      (Sign exactly as your name appears on the face of this Note)
   Tax Identification No.:

 

Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

A2-8


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of Exchange

   Amount of
decrease in
Principal Amount
of
this Global Note
   Amount of
increase in
Principal
Amount of
this Global Note
   Principal Amount
of this Global
Note following
such decrease
(or  increase)
   Signature of
authorized
signatory of
Trustee or
Custodian
           
           

 

* This schedule should be included only if the Note is issued in global form.

 

A2-9


EXHIBIT B

FORM OF CERTIFICATE OF TRANSFER

Taylor Morrison Communities, Inc.

Monarch Communities Inc.

4900 North Scottsdale Road, Suite 2000

Scottsdale, Arizona 85251

Wells Fargo Bank – DAPS Reorg.

MAC N9303-121

608 2nd Avenue South

Minneapolis, MN 55479

Telephone No.: (877) 872-4605

Fax No.: (866) 969-1290

Email: DAPSReorg@wellsfargo.com

 

  Re: 7.750% Senior Notes due 2020

Reference is hereby made to the Indenture, dated as of April 13, 2012 (the “ Indenture ”), among Taylor Morrison Communities, Inc., a Delaware corporation, and Monarch Communities Inc., a British Columbia corporation (together, the “ Issuers ”), the Guarantors party thereto and Wells Fargo Bank, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

                    , (the “ Transferor ”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $         in such Note[s] or interests (the “ Transfer ”), to                      (the “ Transferee ”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:

[CHECK ALL THAT APPLY]

1. ¨ Check if Transferee shall take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A . The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “ Securities Act ”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note shall be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

2. ¨ Check if Transferee shall take delivery of a beneficial interest in the Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S . The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration

 

B-1


requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note shall be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

3. ¨ Check and complete if Transferee will take delivery of a beneficial interest in a Restricted Global Note or a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S . The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):

(a)  ¨ such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;

or

(b) ¨ such Transfer is being effected to an Issuer or a subsidiary of an Issuer.

or

(c) ¨ such Transfer is being effected pursuant to an effective registration statement under the Securities Act.

4. ¨ Check if Transferee shall take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note .

(a) ¨ Check if Transfer is pursuant to Rule 144 . (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note shall no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

(b) ¨ Check if Transfer is Pursuant to Regulation S . (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note shall no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

(c) ¨ Check if Transfer is Pursuant to Other Exemption . (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note shall not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.

 

B-2


This certificate and the statements contained herein are made for your benefit and the benefit of the Issuers.

 

 

[Insert Name of Transferor]
By:  

 

  Name:
  Title:

 

Dated:    

 

B-3


ANNEX A TO CERTIFICATE OF TRANSFER

 

1. The Transferor owns and proposes to transfer the following:

[CHECK ONE OF (a) OR (b)]

 

  (a) ¨ a beneficial interest in the:

 

  (i) ¨ 144A Global Note (CUSIP             ), or

 

  (ii) ¨ Regulation S Global Note (CUSIP             ), or

 

  (b) ¨ a Restricted Definitive Note.

 

2. After the Transfer the Transferee shall hold:

[CHECK ONE]

 

(a) ¨ a beneficial interest in the:

 

  (i) ¨ 144A Global Note (CUSIP             ), or

 

  (ii) ¨ Regulation S Global Note (CUSIP             ), or

 

  (iii) ¨ Unrestricted Global Note (CUSIP             ); or

 

  (b) ¨ a Restricted Definitive Note; or

 

  (c) ¨ an Unrestricted Definitive Note,

in accordance with the terms of the Indenture.

 

B-4


EXHIBIT C

FORM OF CERTIFICATE OF EXCHANGE

Taylor Morrison Communities, Inc.

Monarch Communities Inc.

4900 North Scottsdale Road, Suite 2000

Scottsdale, Arizona 85251

Wells Fargo Bank – DAPS Reorg.

MAC N9303-121

608 2nd Avenue South

Minneapolis, MN 55479

Telephone No.: (877) 872-4605

Fax No.: (866) 969-1290

Email: DAPSReorg@wellsfargo.com

 

Re: 7.750% Senior Notes due 2020

(CUSIP             )

Reference is hereby made to the Indenture, dated as of April 13, 2012 (the “ Indenture ”), among Taylor Morrison Communities, Inc., a Delaware corporation, and Monarch Communities Inc., a British Columbia corporation (together, the “ Issuers ”), the Guarantors party thereto and Wells Fargo Bank, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

                    , (the “ Owner ”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $         in such Note[s] or interests (the “ Exchange ”). In connection with the Exchange, the Owner hereby certifies that:

1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note

(a) ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note . In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “ Securities Act ”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

(b) ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note . In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

(c) ¨ Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note . In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being

 

C-1


acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

(d) ¨ Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note . In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes

(a)  ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note . In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued shall continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.

(b) ¨ Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note . In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ¨ 144A Global Note, ¨ Regulation S Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued shall be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuers.

 

 

[Insert Name of Transferor]
By:  

 

  Name:
  Title:

 

Dated:    

 

C-2


EXHIBIT D

[FORM OF NOTATION OF NOTE GUARANTEE]

For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of April 13, 2012 (the “ Indenture ”) among Taylor Morrison Communities, Inc., a Delaware corporation, and Monarch Communities Inc., a British Columbia corporation (together, the “ Issuers ”), the Guarantors party thereto and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”), (a) the due and punctual payment of the principal, premium and interest on, the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful, and the due and punctual performance of all other Obligations of the Issuers to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee. Each Holder of a Note, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee, on behalf of such Holder, to take such action as may be necessary or appropriate to effectuate provisions of the Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such purpose.

In the event of a conflict between the terms and provisions of the Indenture on the one hand and the terms and provisions of this Notation of Note Guarantee on the other hand, the terms and provisions of the Indenture shall govern and be controlling.

Capitalized terms used but not defined herein have the meanings given to them in the Indenture.

 

D-1


TMM HOLDINGS LIMITED PARTNERSHIP
  By:   TMM Holdings (G.P.) Inc., its General Partner
    By:  

 

      Name:
      Title:
TAYLOR MORRISON HOLDINGS, INC.
    By:  

 

      Name:
      Title:

(Signature Page to Notation of Note Guarantee)

 

D-2


MONARCH PARENT INC.
  By:  

 

    Name:
    Title:
MONARCH CORPORATION
  By:  

 

    Name:
    Title:
ATPD, LLC
TAYLOR MORRISON AT CRYSTAL FALLS, LLC
TAYLOR MORRISON FINANCE, INC.
TAYLOR MORRISON HOLDINGS OF ARIZONA, INC.
TAYLOR MORRISON OF CALIFORNIA, LLC
TAYLOR MORRISON OF COLORADO, INC.
TAYLOR MORRISON OF FLORIDA, INC.
TAYLOR MORRISON OF TEXAS, INC.
TAYLOR MORRISON SERVICES, INC.
TAYLOR MORRISON, INC.
TAYLOR MORRISON/ARIZONA, INC.
TAYLOR WOODROW COMMUNITIES – LEAGUE CITY, LTD.
TAYLOR WOODROW COMMUNITIES AT MIRASOL, LTD.
TAYLOR WOODROW COMMUNITIES AT PORTICO, L.L.C.
TAYLOR WOODROW COMMUNITIES AT ST. JOHNS FOREST, L.L.C.
TAYLOR WOODROW HOMES – CENTRAL FLORIDA DIVISION, L.L.C.
TAYLOR WOODROW HOMES – SOUTHWEST
FLORIDA DIVISION, L.L.C.
TM HOMES OF ARIZONA, INC.
TW ACQUISITIONS, INC.
TWC/FALCONHEAD WEST, L.L.C.
TWC/MIRASOL, INC.
TWC/STEINER RANCH, LLC
On behalf of each of the above named entities,
By:  

 

  Name:
  Title:

 

D-3


EXHIBIT E

FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS

SUPPLEMENTAL INDENTURE (this “ Supplemental Indenture ”), dated as of             , 20    , among Taylor Morrison Communities, Inc., a Delaware corporation, Monarch Communities Inc., a British Columbia corporation (collectively, the “ Issuers ”), the other Guarantors (as defined in the Indenture referred to herein) and Wells Fargo Bank, National Association, as trustee under the Indenture referred to below (the “ Trustee ”).

W I T N E S S E T H

WHEREAS, the Issuers have heretofore executed and delivered to the Trustee an indenture (the “ Indenture ”), dated as of April 13, 2012 providing for the issuance of 7.750% Senior Notes due 2020 (the “ Notes ”);

WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuers’ Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “ Note Guarantee ”); and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby provides an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture, including Article 10 thereof.

3. NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator, stockholder, member or other holder of Equity Interests of the Guaranteeing Subsidiary, in their capacities as such and without limiting the Note Guarantees, shall have any liability for any obligations of the Issuers or the Guarantors under the Notes, any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability that may arise other than pursuant to a Note Guarantee. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws.

4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

5. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original (including copies transmitted via facsimile or electronic mail), but all of them together represent the same agreement.

6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.

 

E-1


7. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Issuers.

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

Dated:             , 20         

 

[GUARANTEEING SUBSIDIARY]
By:  

 

  Name:
  Title:
TAYLOR MORRISON COMMUNITIES, INC.
By:  

 

  Name:
  Title:
MONARCH COMMUNITIES INC.
By:  

 

  Name:
  Title:
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
By:  

 

  Authorized Signature

(Signature Pages to Follow)

 

E-2


GUARANTORS:

 

[EXISTING GUARANTORS]
  By:  

 

    Name:
    Title:

 

E-3

Exhibit 10.1(a)

EXECUTION COPY

‘AMENDMENT AGREEMENT dated as of April 13, 2012 (this “ Amendment ”), to the Credit Agreement dated as of July 13, 2011 (the “ Existing Credit Agreement ”), among TAYLOR MORRISON COMMUNITIES, INC. (F/K/A TAYLOR WOODROW HOLDINGS (USA) INC.), a Delaware corporation (the “ U.S. Borrower ”), as co-borrower, MONARCH CORPORATION, an Ontario corporation (the “ Canadian Borrower ” and, together with the U.S. Borrower, the “ Co-Borrowers ”), TMM HOLDINGS LIMITED PARTNERSHIP, a British Columbia limited partnership (“ Holdings ”), MONARCH COMMUNITIES INC. (F/K/A 0913741 B.C. LTD.), a company continued under the laws of the province of British Columbia (“ Canada Holdings ”), MONARCH PARENT INC. (F/K/A 0914457 B.C. LTD.), a company incorporated under the laws of the province of British Columbia (“ Canada Intermediate Holdings ”), TAYLOR MORRISON HOLDINGS, INC. (F/K/A AYLESBURY ACQUISITION PARENT, INC.), a Delaware corporation (“ U.S. Holdings ”), TAYLOR MORRISON FINANCE, INC., a Delaware corporation (“ U.S. FinCo ”), the lenders party thereto (the “ Lenders ”), and CREDIT SUISSE AG, as administrative agent (in such capacity, the “ Administrative Agent ”) and as collateral agent for the Lenders (in such capacity, the “ Collateral Agent ”).

A. Pursuant to the Existing Credit Agreement, the Lenders have extended, and have agreed to extend, credit to the Co-Borrowers.

B. Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Requisite Lenders under the Existing Credit Agreement desire to amend and restate the Existing Credit Agreement in the form of the Amended and Restated Credit Agreement attached hereto as Exhibit A (the “ Restated Credit Agreement ”), subject to the satisfaction of the conditions precedent to effectiveness referred to in Section 3 hereof.

C. Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Subsidiary Guarantors are party to one or more of the Collateral Documents, pursuant to which, among other things, Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Subsidiary Guarantors guaranteed the Obligations of the Co-Borrowers under the Existing Credit Agreement and provided security therefor.

D. The Requisite Lenders under the Existing Credit Agreement are willing to amend and restate the Existing Credit Agreement as provided herein, on the terms set forth herein and in the Restated Credit Agreement and subject to the conditions set forth herein.


E. For purposes of this Amendment, the following capitalized terms used but not defined in this Amendment shall have the meanings given them in the Existing Credit Agreement: Loan Documents, Collateral Documents, Obligations and Requisite Lenders. All other capitalized terms used but not defined herein shall have the meanings given them in the Restated Credit Agreement.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Amendment and Restatement of Existing Credit Agreement . Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Requisite Lenders under the Existing Credit Agreement agree that:

 

  A. Effective as of the Effective Date:

 

  a. the Existing Credit Agreement is hereby amended and restated in its entirety to be in the form of the Restated Credit Agreement attached hereto as Exhibit A .

 

  b. each Exhibit to the Existing Credit Agreement is hereby amended and restated to be in the form of the corresponding Exhibit attached to the Restated Credit Agreement.

 

  c. Schedule 5.1C (Subsidiaries of Holdings) to the Existing Credit Agreement are hereby amended and restated in their entirety to be in the forms attached hereto as Schedule 5.1C .

 

  B. Except as expressly set forth in Section 1A hereof, all Schedules referred to in the Restated Credit Agreement shall be deemed to refer to the corresponding Schedules to the Existing Credit Agreement, mutatis mutandis . As used in the Restated Credit Agreement, the terms “Agreement”, “this Agreement”, “herein”, “hereinafter”, “hereto”, “hereof’, and words of similar import shall, unless the context otherwise requires, mean, from and after the replacement of the terms of the Existing Credit Agreement by the terms of the Restated Credit Agreement, the Restated Credit Agreement.

SECTION 2. Representations and Warranties . To induce the other parties hereto to enter into this Amendment, Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers represent and warrant to each of the Lenders, the Administrative Agent, the Issuing Bank and the Collateral Agent that, after giving effect to this Amendment, (a) the representations and warranties set forth in Section 5 of the Restated Credit Agreement are true and correct in all material respects on

 

2


and as of the date hereof to the same extent as if made on and as of the date hereof, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date and (b) no Default or Event of Default has occurred and is continuing.

SECTION 3. Amendment Agreement Effectiveness; Conditions Precedent to Borrowing of Term Loans . This Amendment shall become effective on the date (the “ Restatement Effective Date ”) on which: (a) the Administrative Agent shall have received counterparts of this Amendment that, when taken together, bear the signatures of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Requisite Lenders and (b) the Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all costs and out-of-pocket expenses required to be reimbursed or paid by the Co-Borrowers in connection with the transactions contemplated hereby or under any other Loan Document.

SECTION 4. Effect of Amendment . On and after the Restatement Effective Date, each reference to the Existing Credit Agreement in any Loan Document shall be deemed to be a reference to the Restated Credit Agreement. Nothing herein shall be deemed to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement, the Restated Credit Agreement or any other Loan Document in similar or different circumstances. This Amendment shall constitute a “Loan Document” for all purposes of the Restated Credit Agreement and the other Loan Documents.

SECTION 5. Acknowledgement and Consent . Each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, each Co-Borrower and each of the Subsidiary Guarantors identified on the signature pages hereto (collectively, Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and such Subsidiary Guarantors, the “ Reaffirming Loan Parties ”) hereby acknowledges that it expects to receive substantial direct and indirect benefits as a result of this Amendment and the transactions contemplated hereby. Each Reaffirming Loan Party hereby consents to this Amendment and the transactions contemplated hereby, and hereby confirms and agrees that (a) its respective guarantees, pledges and grants of security interests, as applicable, under each of the Loan Documents to which it is party, notwithstanding the effectiveness of this Amendment and the transactions contemplated hereby, shall continue in full force and effect and shall accrue to the benefit of the Secured Parties, (b) notwithstanding the effectiveness of this Amendment or the Restated Credit Agreement, the obligations of such Reaffirming Loan Party under each of the Loan Documents to which it is a party shall not be impaired and each of the Loan Documents to which such Reaffirming Loan Party is a party is, and shall continue to be, in full force and effect and is hereby confirmed and ratified in all respects, in each case, as amended hereby and (c) all the representations and warranties made by or relating to it

 

3


contained in the Restated Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the Restatement Effective Date with the same effect as though made on and as of the Restatement Effective Date, except to the extent such representations and warranties expressly relate to an earlier date.

SECTION 6. Counterparts . This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same contract. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or other customary means of electronic transmission (e.g., “pdf’) shall be as effective as delivery of a manually executed counterpart hereof.

SECTION 7. Applicable Law . THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

SECTION 8. Submission to Jurisdiction . EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT SITTING IN THE BOROUGH OF MANHATTAN, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ONLY IN SUCH FEDERAL COURT (EXCEPT THAT, IN THE CASE OF ANY BANKRUPTCY, INSOLVENCY OR SIMILAR PROCEEDINGS WITH RESPECT TO ANY CREDIT PARTY, ACTIONS OR PROCEEDINGS RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN SUCH COURT HOLDING SUCH BANKRUPTCY, INSOLVENCY OR SIMILAR PROCEEDINGS). EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY AGENT, ANY LENDER OR ANY ISSUING BANK MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST HOLDINGS, CANADA HOLDINGS, U.S. HOLDINGS, CANADA INTERMEDIATE HOLDINGS, U.S. FINCO, A CO-BORROWER OR THEIR RESPECTIVE PROPERTIES IN THE COURTS OF ANY JURISDICTION.

 

4


SECTION 9. Headings . The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

[Remainder of page intentionally left blank]

 

5


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the date first above written.

 

  HOLDINGS:   TMM HOLDINGS LIMITED PARTNERSHIP,
    By: TMM Holdings (G.P.) Inc., its General Partner
    By:  

LOGO

      Name: Jason Keller
      Title:   Director
  CANADA HOLDINGS:   MONARCH COMMUNITIES INC. (F/K/A 0913741 B.C. LTD.),
    By:  

 

      Name:
      Title:
  CANADA INTERMEDIATE HOLDINGS:   MONARCH PARENT INC. (F/K/A 0914457 B.C. LTD.),
    By:  

 

      Name:
      Title:
  U.S. HOLDINGS:   TAYLOR MORRISON HOLDINGS, INC. (F/K/A AYLESBURY ACQUISITION PARENT, INC.),
    By:  

 

      Name:
      Title:


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the date first above written.

 

  HOLDINGS:   TMM HOLDINGS LIMITED PARTNERSHIP ,
    By:   TMM Holdings (G.P.) Inc., its General Partner
    By:  

 

      Name:
      Title:
  CANADA HOLDINGS:   MONARCH COMMUNITIES INC. (F/K/A 0913741 B.C. LTD.),
    By:  

LOGO

      Name: Darrell Sherman
      Title:   Vice President/Secretary
  CANADA INTERMEDIATE HOLDINGS:   MONARCH PARENT INC. (F/K/A 0914457 B.C. LTD.),
    By:  

LOGO

      Name: Darrell Sherman
      Title:   Vice President/Secretary
  U.S. HOLDINGS:   TAYLOR MORRISON HOLDINGS, INC. (F/K/A AYLESBURY ACQUISITION PARENT, INC.),
    By:  

LOGO

      Name: Darrell Sherman
      Title:   Vice President/Secretary


  U.S. FINCO   TAYLOR MORRISON FINANCE, INC.,
    By:  

LOGO

      Name: Darrell Sherman
      Title:   Vice President/Secretary
  U.S. BORROWER:   TAYLOR MORRISON COMMUNITIES, INC. (F/K/A TAYLOR WOODROW HOLDINGS (USA) INC.),
    By:  

LOGO

      Name: Darrell Sherman
      Title:   Vice President/Secretary
  CANADIAN BORROWER:   MONARCH CORPORATION ,
    By:  

LOGO

      Name: Darrell Sherman
      Title:   SR. Vice President
  SUBSIDIARY GUARANTOR:    
   

ATPD, LLC

TAYLOR MORRISON, INC.

TAYLOR MORRISON AT CRYSTAL FALLS, LLC

TAYLOR MORRISON HOLDINGS OF ARIZONA, INC.

TAYLOR MORRISON OF CALIFORNIA, LLC

TAYLOR MORRISON OF COLORADO, INC.

TAYLOR MORRISON OF FLORIDA, INC.

TAYLOR MORRISON OF TEXAS, INC.

TAYLOR MORRISON SERVICES, INC.

TAYLOR MORRISON/ARIZONA, INC.

TAYLOR WOODROW COMMUNITIES – LEAGUE CITY, LTD.


TAYLOR WOODROW COMMUNITIES AT MIRASOL, LTD.

TAYLOR WOODROW COMMUNITIES AT PORTICO, L.L.C.

TAYLOR WOODROW COMMUNITIES AT ST. JOHNS FOREST, L.L.C.

TAYLOR WOODROW HOMES – CENTRAL FLORIDA DIVISION, L.L.C.

TAYLOR WOODROW HOMES – SOUTHWEST FLORIDA DIVISION, L.L.C.

TM HOMES OF ARIZONA, INC.

TW ACQUISITIONS, INC.

TWC/FALCONHEAD WEST, L.L.C.

TWC/MIRASOL, INC.

TWC/STEINER RANCH, LLC

On behalf of each of the above named entities,
By:  

LOGO

  Name: Darrell Sherman
  Title:   Vice President/Secretary


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,

 

individually as a Lender, Swing Line Lender and Issuing Bank, and as the Administrative Agent and the Collateral Agent

By:  

LOGO

  Name:   BILL O’DALY
  Title:   DIRECTOR
By:  

LOGO

  Name:   Sanja Gazahi
  Title:   Associate


DEUTSCHE BANK AG, NEW YORK BRANCH,

as a Lender,

By:  

LOGO

  Name:   Omayra Laucella
  Title:   Director
    LOGO
   

Evelyn Thierry

Director


HSBC Realty Credit Corporation (USA),

as a Lender,

By:  

LOGO

  Name: Michael C. Leung
  Title:   Senior Vice President


EXHIBIT A

 

 

 

AMENDED AND RESTATED CREDIT AGREEMENT

dated as of

July 13, 2011

as amended and restated as of April 13, 2012

Among

TAYLOR MORRISON COMMUNITIES, INC. (F/K/A TAYLOR WOODROW HOLDINGS

(USA) INC.),

as U.S. Borrower

MONARCH CORPORATION,

as Canadian Borrower

TMM HOLDINGS LIMITED PARTNERSHIP,

as Holdings

MONARCH COMMUNITIES INC. (F/K/A 0913741 B.C. LTD.),

as Canada Holdings

MONARCH PARENT INC. (F/K/A 0914457 B.C. LTD.),

as Canada Intermediate Holdings

TAYLOR MORRISON HOLDINGS, INC. (F/K/A AYLESBURY ACQUISITION PARENT, INC.),

as U.S. Holdings

TAYLOR MORRISON FINANCE, INC.

as U.S. FinCo

THE LENDERS PARTY HERETO,

as Lenders

and

CREDIT SUISSE AG,

as Administrative Agent, Collateral Agent, Swing Line Lender

and Issuing Bank

 

 

CREDIT SUISSE SECURITIES (USA) LLC,

DEUTSCHE BANK SECURITIES INC.

and HSBC SECURITIES (USA) INC.,

as Joint Lead Arrangers and Joint Bookrunners

$75,000,000 REVOLVING CREDIT FACILITY

 

 

 


TABLE OF CONTENTS

 

     Page  

SECTION 1. DEFINITIONS

     2   

1.1

 

Certain Defined Terms

     2   

1.2

 

Defined Terms; Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement

     47   

1.3

 

Exchange Rates

     48   

SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS

     48   

2.1

 

Commitments; Loans

     48   

2.2

 

Interest on the Loans

     55   

2.3

 

Fees

     59   

2.4

 

Repayments and Prepayments; General Provisions Regarding Payments

     60   

2.5

 

Use of Proceeds

     64   

2.6

 

Special Provisions Governing Eurodollar Rate Loans

     64   

2.7

 

Increased Costs; Taxes

     66   

2.8

 

Mitigation Obligations; Replacement of Lenders

     71   

2.9

 

Loan Modification Offers

     72   

SECTION 3. LETTERS OF CREDIT

     73   

3.1

 

Issuance of Letters of Credit and Lenders’ Purchase of Participations Therein

     73   

3.2

 

Letter of Credit Fees

     75   

3.3

 

Drawings and Payments and Reimbursement of Amounts Drawn or Paid Under Letters of Credit

     76   

3.4

 

Obligations Absolute

     78   

3.5

 

Nature of Issuing Bank’s Duties

     79   

SECTION 4. CONDITIONS

     80   

4.1

 

[Reserved]

     80   

4.2

 

Conditions to All Loans

     80   

4.3

 

Conditions to Letters of Credit

     80   

SECTION 5. REPRESENTATIONS AND WARRANTIES

     81   

5.1

 

Corporate Status; Corporate Power and Authority; Enforceability; Subsidiaries

     81   

5.2

 

No Violation; Governmental Approvals; Collateral Documents

     81   

5.3

 

Financial Statements

     83   

5.4

 

No Material Adverse Change

     83   

 

   i    CREDIT AGREEMENT


5.5

 

Title to Properties; Liens; Real Property; Intellectual Property

     83   

5.6

 

Litigation; Compliance with Laws

     84   

5.7

 

Payment of Taxes

     84   

5.8

 

Governmental Regulation

     84   

5.9

 

Compliance with ERISA and Similar Applicable Law

     84   

5.10

 

Environmental Matters

     85   

5.11

 

Employee Matters

     86   

5.12

 

Solvency

     86   

5.13

 

[Reserved]

     86   

5.14

 

True and Complete Disclosure

     86   

5.15

 

Sanctioned Persons

     86   

5.16

 

Insurance

     87   

SECTION 6. AFFIRMATIVE COVENANTS

     87   

6.1

 

Financial Statements and Other Reports

     87   

6.2

 

Consolidated Corporate Franchises

     92   

6.3

 

Payment of Taxes

     92   

6.4

 

Maintenance of Properties; Insurance

     93   

6.5

 

Inspection; Books and Records

     93   

6.6

 

Compliance with Statutes

     94   

6.7

 

Execution of Guaranty and Collateral Documents by Future Subsidiaries

     94   

6.8

 

Further Assurances

     95   

6.9

 

Transactions with Affiliates

     96   

6.10

 

End of Fiscal Years; Fiscal Quarters

     97   

6.11

 

Use of Proceeds

     97   

6.12

 

Changes in Business

     98   

6.13

 

Designation of Subsidiaries

     98   

6.14

 

Ratings

     98   

6.15

 

ANTI-MONEY LAUNDERING LEGISLATION

     98   

SECTION 7. NEGATIVE COVENANTS

     99   

7.1

 

Indebtedness

     99   

7.2

 

Limitation on Liens, etc.

     107   

7.3

 

Investments; Joint Ventures

     113   

7.4

 

Restricted Payments

     116   

7.5

 

Financial Covenants

     119   

7.6

 

Restriction on Fundamental Changes; Asset Sales

     120   

7.7

 

Sale Leasebacks

     125   

7.8

 

Passive Holding Entities

     125   

7.9

 

Limitation on Debt Payments and Amendments

     126   

7.10

 

Equity Interests of Restricted Subsidiaries

     127   

 

   ii    CREDIT AGREEMENT


SECTION 8. EVENTS OF DEFAULT

     128   

8.1

 

Failure to Make Payments When Due

     128   

8.2

 

Default in Other Agreements

     128   

8.3

 

Breach of Certain Covenants

     128   

8.4

 

Breach of Warranty

     128   

8.5

 

Bankruptcy, etc.

     129   

8.6

 

Subordination and Intercreditor Matters

     129   

8.7

 

Judgments and Attachments

     130   

8.8

 

Employee Benefit Plans

     130   

8.9

 

Change in Control

     130   

8.10

 

Invalidity of the Guaranty

     131   

8.11

 

Failure of Security

     131   

8.12

 

Borrowers’ Right to Cure

     132   

SECTION 9. AGENTS

     133   

9.1

 

Appointment

     133   

9.2

 

Rights as a Lender

     134   

9.3

 

Exculpatory Provisions

     134   

9.4

 

Reliance by the Agents

     135   

9.5

 

Delegation of Duties

     135   

9.6

 

Resignation of Administrative Agent and/or Collateral Agent; Successor Swing Line Lender

     136   

9.7

 

Collateral Documents; Successor Collateral Agent

     137   

9.8

 

Non-Reliance on Agents and Other Lenders

     137   

9.9

 

Duties of Other Named Entities

     137   

SECTION 10. MISCELLANEOUS

     138   

10.1

 

Assignments and Participations in Loans

     138   

10.2

 

Expenses; Indemnity; Damage Waiver

     142   

10.3

 

Right of Set-Off

     144   

10.4

 

Sharing of Payments by Lenders

     144   

10.5

 

Amendments and Waivers

     145   

10.6

 

Independence of Covenants

     147   

10.7

 

Notices

     147   

10.8

 

Survival of Representations, Warranties and Agreements

     148   

10.9

 

Failure or Indulgence Not Waiver; Remedies Cumulative

     148   

10.10

 

Marshalling; Payments Set Aside

     148   

10.11

 

Severability

     148   

10.12

 

Obligations Several; Independent Nature of the Lenders’ Rights

     149   

10.13

 

Maximum Amount

     149   

10.14

 

Headings

     150   

10.15

 

Applicable Law

     150   

10.16

 

Successors and Assigns

     150   

 

   iii    CREDIT AGREEMENT


10.17

 

Consent to Jurisdiction and Service of Process

     150   

10.18

 

Waiver of Jury Trial

     151   

10.19

 

Confidentiality

     151   

10.20

 

Integration; Effectiveness; Electronic Execution

     153   

10.21

 

USA Patriot Act Notification

     153   

10.22

 

Agency of the U.S. Borrower for each other Loan Party

     154   

10.23

 

No Fiduciary Duties

     154   

10.24

 

Judgment Currency

     155   

10.25

 

Additional Borrowing Subsidiaries

     155   

EXHIBITS

 

I

   FORM OF NOTICE OF BORROWING

II

   FORM OF NOTICE OF CONVERSION/CONTINUATION

III

   FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT

IV-A

   FORM OF REVOLVING NOTE

IV-B

   FORM OF SWING LINE NOTE

V

   FORM OF GUARANTY

VI

   FORM OF SECURITY AGREEMENT

VII

   FORM OF MORTGAGE

VIII

   FORM OF TRADEMARK SECURITY AGREEMENT

IX-A

   FORM OF OFFICER’S CERTIFICATE OF HOLDINGS

IX-B

   FORM OF OFFICER’S CERTIFICATE OF THE CO-BORROWERS

X

   FORM OF ASSIGNMENT AGREEMENT

XI

   INTERCREDITOR AGREEMENT SUMMARY OF TERMS

XII

   FORM OF BORROWING SUBSIDIARY AGREEMENT

XIII

   FORM OF BORROWING SUBSIDIARY TERMINATION

XIV

   FORM OF AFFILIATE SUBORDINATION AGREEMENT

XV

   FORM OF GLOBAL INTERCOMPANY NOTE (GRANTOR PAYOR/ GRANTOR PAYEE)

XVI

   FORM OF GLOBAL INTERCOMPANY NOTE (NON-GRANTOR PAYOR/GRANTOR PAYEE)

XVII

   FORM OF MORTGAGED PROPERTY STATEMENT

SCHEDULES

 

1.1

   MORTGAGED PROPERTIES

2.1

   COMMITMENTS

4.1B

   MORTGAGE FILING OFFICES

5.1C

   SUBSIDIARIES OF HOLDINGS

5.5B

   OWNED U.S. REAL PROPERTY

5.16

   INSURANCE

6.9

   TRANSACTIONS WITH AFFILIATES

7.1A

   CERTAIN EXISTING INDEBTEDNESS

7.2

   CERTAIN EXISTING LIENS

7.3

   CERTAIN EXISTING INVESTMENTS

 

   iv    CREDIT AGREEMENT


CREDIT AGREEMENT

This AMENDED AND RESTATED CREDIT AGREEMENT is dated as of July 13, 2011, amended and restated as of April 13, 2012, and entered into by and among TAYLOR MORRISON COMMUNITIES, INC. (F/K/A TAYLOR WOODROW HOLDINGS (USA) INC.) , a Delaware corporation (the “ U.S. Borrower ”), as co-borrower, MONARCH CORPORATION , an Ontario corporation (the “ Canadian Borrower ” and, together with the U.S. Borrower, the “ Co-Borrowers ”), TMM HOLDINGS LIMITED PARTNERSHIP , a British Columbia limited partnership (“ Holdings ”), MONARCH COMMUNITIES INC. (F/K/A 0913741 B.C. LTD.) , a company continued under the laws of the province of British Columbia (“ Canada Holdings ”), MONARCH PARENT INC. (F/K/A 0914457 B.C. LTD.) , a company incorporated under the laws of the province of British Columbia (“ Canada Intermediate Holdings ”), TAYLOR MORRISON HOLDINGS, INC. (F/K/A AYLESBURY ACQUISITION PARENT, INC.) , a Delaware corporation (“ U.S. Holdings ”), TAYLOR MORRISON FINANCE, INC. , a Delaware corporation (“ U.S. FinCo ”), EACH LENDER FROM TIME TO TIME PARTY HERETO (each individually referred to herein as a “ Lender ” and collectively as “ Lenders ”) and CREDIT SUISSE AG , as administrative agent for the Lenders (in such capacity, the “ Administrative Agent ”), as collateral agent (in such capacity, the “ Collateral Agent ”), as swing line lender (in such capacity, the “ Swing Line Lender ”) and as Issuing Bank.

R E C I T A L S

A. WHEREAS , capitalized terms used and not defined in these recitals shall have the meanings assigned to such terms in Section 1.1;

B. WHEREAS , the Co-Borrowers, the lenders party thereto and Credit Suisse AG, as administrative agent and collateral agent, have previously entered into a Credit Agreement dated as of July 13, 2011 (the “ Existing Credit Agreement ”) pursuant to which the Co-Borrowers requested (a) the Lenders to extend credit in the form of Revolving Loans at any time and from time to time prior to the Commitment Termination Date, in an aggregate principal amount at any time outstanding not in excess of the U.S. Dollar Equivalent of $75,000,000, (b) the Issuing Banks to issue Letters of Credit in an aggregate Stated Amount at any time outstanding not to exceed the U.S. Dollar Equivalent of $75,000,000 and (c) the Swing Line Lender to extend credit, at any time and from time to time prior to the Commitment Termination Date, in the form of Swing Line Loans, in an aggregate principal amount at any time outstanding not in excess of the U.S. Dollar Equivalent of $5,000,000;

C. WHEREAS , the proceeds of the Revolving Loans and the Swing Line Loans have been and shall be used, and Letters of Credit have been and shall be issued, solely for the purposes set forth in Section 2.5;

D. WHEREAS , the Lenders are willing to continue to extend such credit to the Co-Borrowers, and the Issuing Banks are willing to issue Letters of Credit for the accounts of the Co-Borrowers, in each case on the terms and subject to the conditions set forth herein; and

E. WHEREAS , pursuant to the Amendment Agreement, Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers, the Requisite Lenders (as defined in the Existing Credit Agreement) and the Administrative Agent have agreed to amend and restate the Existing Credit Agreement in the form hereof. The amendment and restatement of the Existing Credit Agreement evidenced by this Agreement shall become effective as provided in the Amendment Agreement;

 

      CREDIT AGREEMENT


NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION 1.

DEFINITIONS

 

1.1 Certain Defined Terms.

The following terms used in this Agreement shall have the following meanings:

Acquisition ” means (i) the acquisition by US Acquisitionco of Taylor Woodrow Holdings (USA) Inc. and (ii) the acquisition by 2279154 Ontario, Inc. from Taylor Wimpey plc of Taylor Wimpey Holdings of Canada, Limited and the amalgamations thereafter resulting in the Canadian Borrower becoming the successor of Monarch Corporation, Taylor Wimpey Holdings of Canada, Limited and 2279154 Ontario Inc., in each case in accordance with and pursuant to the terms of the Stock Purchase Agreement.

Additional Facilities Amount ” means $50,000,000; provided that to the extent any additional Commitments with a maturity date later than the Commitment Termination Date are made pursuant to Section 2.1A(iii) concurrently with a permanent reduction pursuant to Section 2.4A(ii) in the Commitments existing immediately prior to such time, the Additional Facilities Amount shall be deemed increased by the lesser of (i) the amount of such additional Commitments and (ii) the amount of such permanent reduction.

Adjusted Aggregate Mortgaged Property Amount ” means, at any time, the Aggregate Mortgaged Property Amount at such time less an amount equal to the Excess Property Amount at such time for all states in which any Mortgaged Property is located at such time.

Administrative Agent ” has the meaning assigned to that term in the preamble to this Agreement.

Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

Affected Class ” has the meaning assigned to that term in Section 10.5A.

Affected Lender ” has the meaning assigned to that term in Section 2.6C.

Affected Loans ” has the meaning assigned to that term in Section 2.6C.

Affiliate ” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. The term “ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms “ Controlling ” and “ Controlled ” have meanings correlative thereto.

 

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Agents ” means the Administrative Agent and the Collateral Agent.

Aggregate Mortgaged Property Amount ” means, at any time, the aggregate book value of the Mortgaged Property as set forth in the most recently delivered statement provided to the Administrative Agent pursuant to (a) Section 6.1(i) or (ii), (b) Section 6.1(iv)(a) or (c) Section 6.1(iv)(b); provided , that in the case of clause (b), a statement setting forth the aggregate book value of the Mortgaged Property as of the date referred to Section 6.1(iv)(a) shall be required to be delivered to the Administrative Agent at least 15 Business Days prior to any determination of the Aggregate Mortgaged Property Amount in reliance on such clause (b); provided , further that the calculation of Aggregate Mortgaged Property Amount shall exclude the book value of any Mortgaged Property in respect of which the Lien in favor of the Collateral Agent for the benefit of the Secured Parties has, in connection with a Permitted Subordination Event, been subordinated to a Lien or other encumbrance incurred in respect of (I) any Indebtedness incurred, recorded, filed or created prior to the Effective Date to acquire such Mortgaged Property or any portion thereof, (II) any Indebtedness incurred, recorded, filed or created after the Effective Date to acquire such Mortgaged Property or any portion thereof and which Mortgaged Property was made subject to the Lien securing the Obligations pursuant to Section 6.8B hereof or (III) any Indebtedness incurred to refinance any such Indebtedness described in clause (I) or (II) or this clause (III).

Agreement ” means this Credit Agreement as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

Amended Canadian Surviving Debt Documents ” means (1) the Consent Letter, dated July 12, 2011, executed and delivered by The Toronto Dominion Bank, as lender, in respect of that certain Facility Letter, dated June 27, 2011, by and between The Toronto Dominion Bank, as lender, and Monarch Corporation, as borrower and (2) the Facility Letter dated July 11, 2011, between HSBC Bank Canada, as lender, and Monarch Corporation, as borrower, in each case, as amended, extended, supplemented, replaced or otherwise modified from time to time, and replacement therefor on terms not materially adverse to the Lenders.

Amendment Agreement ” means the Amendment Agreement dated as of the Restatement Effective Date, effecting, among other things, the amendment and restatement of the Existing Credit Agreement.

Applicable Laws ” means, as to any Person, any law (including common law), statute, regulation, ordinance, rule, order, decree, judgment, consent decree, writ, injunction, settlement agreement or governmental requirement enacted, promulgated or imposed or entered into or agreed by any Governmental Authority (including the USA PATRIOT Act, ERISA and laws relating to Foreign Plans and obligations), in each case applicable to or binding on such Person or any of its property or assets or to which such Person or any of its property or assets is subject.

 

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Applicable Margin ” means, for any day, with respect to: (a) any Eurodollar Rate Loan or any CDOR Rate Loan, 3.25% per annum, and (b) any Base Rate Loan or Canadian Prime Rate Loan, 2.25% per annum.

Approved Fund ” means any Fund or similar investment vehicle that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Arrangers ” means Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and HSBC Securities (USA) Inc., as joint lead arrangers and joint bookrunners.

Asset Sale ” means any Disposition (other than operating leases entered into in the ordinary course of business) by Holdings or any of its Subsidiaries to any Person (other than the Loan Parties) of any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, Capital Stock (including, Capital Stock of any Subsidiary of Holdings), but excluding (a) sales (including bulk sales), leases, assignments, conveyances, transfers or other dispositions (including exchanges or swaps) of amenities, homes, Model Home Units, land, other real property, inventory or goods, in each case held for sale or otherwise disposed of in the ordinary course of a Real Estate Business; (b) Dispositions arising out of, or the granting of, any options or rights of first refusal to purchase real property granted to the master developer or the seller of real property that arise as a result of the non-use or non-development of such real property by a Loan Party; (c) sales, assignments, conveyances, transfers or other dispositions of obsolete or worn out assets in the ordinary course of a Real Estate Business; (d) the creation of Permitted Encumbrances and dispositions in connection with, or pursuant to the exercise of remedies under, Permitted Encumbrances; (e) licenses of Intellectual Property entered into in the ordinary course of a Real Estate Business; (f) sales of Cash Equivalents; (g) immaterial Dispositions (including lot line adjustments) of portions of any Real Estate for dedication to the public or otherwise in connection with the development of Real Estate; (h) immaterial Dispositions for the purpose of resolving any encroachment issues and (i) the dissolution, liquidation or other Disposition of any Liquidating Subsidiary or any Closed-Out Subsidiary.

Assignment Agreement ” means an assignment and assumption agreement in substantially the form of Exhibit X annexed hereto or in such other form as may be approved by the Administrative Agent.

Attributable Indebtedness ” means, on any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

Availability Amount ” means, at any time, an amount equal to the greater of (a) 22.2% multiplied by the Aggregate Mortgaged Property Amount at such time and (b) 25.0% multiplied by the Adjusted Aggregate Mortgaged Property Amount at such time.

Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy”, the Bankruptcy and Insolvency Act (Canada) and the Companies’ Creditors Arrangement Act (Canada), in each case as now and hereafter in effect, or any successor statutes.

Base Rate ” means, at any time, the highest of (a) the Prime Rate, (b) the rate which is 0.5% in excess of the Federal Funds Effective Rate and (c) the Reserve Adjusted Eurodollar Rate on such

 

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day (or if such day is not a Business Day, the immediately preceding Business Day) for a deposit in dollars with a maturity of one month plus 1%; provided that, solely for purposes of the foregoing, the Reserve Adjusted Eurodollar Rate for any day shall be calculated using the Eurodollar Base Rate based on the rate set forth on such day at approximately 11:00 a.m. (London time) by reference to the British Bankers’ Association Interest Settlement Rates for deposits in U.S. Dollars (as set forth by any service selected by the Administrative Agent which has been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such rates) for a period equal to one month; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the Eurodollar Base Rate shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in U.S. Dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Reference Lenders at approximately 11:00 a.m. (London time) on such day. If any of the Reference Lenders shall be unable or shall otherwise fail to supply such rates to the Administrative Agent upon its request, the rate of interest shall be determined on the basis of the quotations of the remaining Reference Lenders.

Base Rate Loans ” means Loans bearing interest at rates determined by reference to the Base Rate as provided in Section 2.2A.

Board ” means the Board of Governors of the Federal Reserve System of the United States (or any successor).

Board of Directors ” means (a) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board, (b) with respect to a partnership, the board of directors of the general partner of the partnership, (c) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof and (d) with respect to any other Person, the board or committee of such Person serving a similar function.

Borrowers ” means the U.S. Borrower, the Canadian Borrower and any additional Subsidiary of a Co-Borrower that becomes a Borrower under this Agreement pursuant to Section 10.25.

Borrowing Minimum ” means $1,000,000 or C$1,000,000, as applicable.

Borrowing Multiple ” means $500,000 or C$500,000, as applicable.

Business Day ” means a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided that, (a) with respect to matters relating to Eurodollar Rate Loans, the term “ Business Day ” means a day other than a Saturday, Sunday or other day on which commercial banks in New York City or London, England, are authorized or required by law to close and (b) when used in connection with any Canadian Loan or any Canadian Dollar Letter of Credit, the term “Business Day” shall also (i) exclude any day on which banks are not open for business in Toronto and (ii) include any day on which banks are open for business in Toronto.

Calculation Date ” has the meaning assigned to that term in Section 7.5A.

 

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Canada Holdings ” has the meaning assigned to that term in the preamble to this Agreement.

Canada Intermediate Holdings ” has the meaning assigned to that term in the preamble to this Agreement.

Canadian Borrower ” has the meaning assigned to that term in the preamble to this Agreement.

Canadian Dollars ” or “ C$ ” means the lawful currency of Canada.

Canadian Dollar Equivalent ” means, on any date of determination with respect to an amount in Dollars, the equivalent thereof in Canadian Dollars, determined by the Administrative Agent using the Exchange Rate then in effect pursuant to Section 1.3.

Canadian Dollar Letter of Credit ” means any Letter of Credit denominated in Canadian Dollars.

Canadian LC Disbursement ” means a payment made by an Issuing Bank pursuant to a Canadian Dollar Letter of Credit.

Canadian LC Exposure ” means, at any time, the U.S. Dollar Equivalent of the sum of (a) the aggregate Stated Amount of all Canadian Dollar Letters of Credit that remain available for drawing at such time and (b) the aggregate amount of all Canadian LC Disbursements that have not yet been reimbursed by or on behalf of the Borrowers at such time. The Canadian LC Exposure of any Lender at any time shall be its Pro Rata Share of the total Canadian LC Exposure at such time.

Canadian Loan ” means any Loan denominated in Canadian Dollars.

Canadian Pension Plan ” means a “registered pension plan” as that term is defined in subsection 248(1) of the Income Tax Act (Canada).

Canadian Prime Rate ” means, on any day, the annual rate of interest equal to the greater of: (a) the annual rate of interest determined from time to time by the Administrative Agent as its prime rate in effect at its principal office in Toronto, Ontario (or such other office selected by the Administrative Agent in which its Canadian lending operations are conducted) on such day for interest rates on Canadian Dollar-denominated commercial loans made in Canada; and (b) the sum of (i) the yearly interest rate to which the one-month CDOR Rate is equivalent in effect on such day and (ii) 1.0%.

Canadian Prime Rate Loan ” means a Loan denominated in Canadian Dollars the rate of interest applicable to which is based on the Canadian Prime Rate.

Canadian Revolving Exposure ” means, with respect to the Lenders, at any time, the sum of (a) the U.S. Dollar Equivalent of the aggregate principal amount of the Lenders’ Canadian Revolving Loans outstanding at such time, (b) the Lenders’ Canadian LC Exposure at such time and (c) the Lenders’ Canadian Swing Line Exposure at such time. The Canadian Revolving Exposure of any Lender at any time shall be such Lender’s Pro Rata Share of the aggregate Canadian Revolving Exposure at such time.

 

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Canadian Revolving Loan ” means a Revolving Loan which is denominated in Canadian Dollars.

Canadian Sublimit ” means $15,000,000.

Canadian Swing Line Exposure ” means, at any time, the U.S. Dollar Equivalent of the aggregate principal amount of all Swing Line Loans denominated in Canadian Dollars outstanding at such time. The Canadian Swing Line Exposure of any Lender at any time shall be its Pro Rata Share of the total Canadian Swing Line Exposure at such time.

Capital Lease ” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person. Notwithstanding the foregoing, all leases of any Person that are or would be treated as operating leases in accordance with GAAP on the Effective Date (whether or not such operating leases are in effect on the Effective Date) shall continue to be accounted for as operating leases (and not as Capital Leases) for purposes of this Agreement regardless of any change in GAAP following the Effective Date which would otherwise require such leases to be treated as Capital Leases.

Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, excluding from all of the foregoing any debt securities convertible into Capital Stock so long as such debt securities are not entitled to share in the payment or distribution of any Dividends (other than Dividends paid in the form of Capital Stock) at any time prior to their conversion into Capital Stock.

Capitalization Ratio ” has the meaning assigned to that term in Section 7.5A.

Cash ” means (a) money, (b) currency or (c) a credit balance in a Deposit Account with a Cash Equivalent Bank.

Cash Equivalent Bank ” means any Lender or any commercial bank organized under the laws of the United States of America, any state thereof, the District of Columbia or Canada, in each case having unimpaired capital and surplus of not less than $500,000,000 (or the Canadian Dollar Equivalent thereof).

Cash Equivalents ” means (a) marketable securities issued or directly and unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof; (b) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having the highest rating obtainable from either S&P or Moody’s (or, at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent from another U.S. nationally recognized rating service); (c) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the Government of Canada or of any Canadian province (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the Government of Canada or of such Canadian province), in each case maturing within one year from the date of acquisition thereof;

 

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(d) commercial paper maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s (or, at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent from another U.S. nationally recognized rating service); (e) certificates of deposit or bankers’ acceptances maturing within one year from the date of acquisition thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s, issued by any Cash Equivalent Bank; (f) Eurodollar time deposits having a maturity of less than one year purchased directly from any Cash Equivalent Bank (provided such deposit is with such bank or any other Cash Equivalent Bank); (g) repurchase agreements with a term of not more than 30 days for underlying securities of the type described in clauses (a), (b), (c) and (f) above entered into with any Cash Equivalent Bank or securities dealers of recognized national standing; (h) marketable short-term money market and similar securities having a rating of at least A-1 or P-1 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another U.S. nationally recognized rating service); (i) shares of investment companies that are registered under the Investment Company Act of 1940, as amended, and invest solely in one or more of the types of securities described in clauses (a) through (h) above; and (j) other short-term investments utilized by Restricted Subsidiaries in jurisdictions other than the United States and Canada in accordance with normal investment practices for cash management in investments of a type analogous to the foregoing.

Cash Management Bank ” means any Person that is an Agent, a Lender or an Affiliate of an Agent or a Lender at the time it provides any Cash Management Services or that is an Agent, a Lender or an Affiliate of an Agent or Lender at any time after it has provided any Cash Management Services.

Cash Management Obligations ” means obligations owed by Holdings, a Co-Borrower, U.S. FinCo or any Restricted Subsidiary to any Cash Management Bank in connection with, or in respect of, any Cash Management Services.

Cash Management Services ” means treasury, depository and cash management services and any automated clearing house fund transfer services.

CDOR Rate ” means, on any day, the sum of (a) the annual rate of interest that is the rate based on an average rate applicable to Canadian Dollar bankers’ acceptances for a term equal to the term of the relevant Interest Period appearing on the Reuters Screen CDOR Page (as defined in the International Swaps and Derivatives, Inc. 2000 definitions, as supplemented or amended from time to time) at approximately 10:00 a.m. (Toronto time), on such date, or if such date is not a Business Day, on the immediately preceding Business Day and (b) 0.10% per annum; provided that if such rate does not appear on the Reuters Screen CDOR Page on such date as contemplated, then the CDOR Rate on such date shall be the rate that would be applicable to Canadian Dollar bankers’ acceptances quoted by the Administrative Agent at its principal office in Toronto, Ontario (or such other office selected by the Administrative Agent in which its Canadian lending operations are conducted) as of 10:00 a.m. (Toronto time) on such date or, if such date is not a Business Day, on the immediately preceding Business Day.

CDOR Rate Loan ” means a Loan denominated in Canadian Dollars the rate of interest applicable to which is based on the CDOR Rate.

 

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Change in Law ” means the occurrence, after the Effective Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, regulations or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines, regulations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued, in each case to the extent materially different from that in effect on the Effective Date.

Class ”, when used in reference to any Loans or Commitments, means each of the following classes of Loans or Commitments: (a) the Commitments and the Revolving Loans, (b) if any additional Commitments are made pursuant to Section 2.1A(iii) that are Other Credit Extensions, such additional Commitments and Other Credit Extensions (it being understood that any Other Credit Extensions (together with the Commitments in respect thereof) having different terms shall each be construed to be a different Class) or (c) if any Loan Modification Offers are made and accepted pursuant to Section 2.9, the Commitments of the Accepting Lenders and the Loans made thereunder (it being understood that the Loans of Accepting Lenders (together with the Commitments in respect thereof) having different terms shall each be construed to be a different Class); provided , however , that at no time shall there be more than four Classes of Loans or Commitments outstanding under this Agreement.

Closed-Out Subsidiaries ” means Taylor Woodrow Communities at Herons Glen, L.L.C., Taylor Woodrow Communities at Seven Meadows, Ltd., Taylor Woodrow Communities at Vasari, L.L.C., Taylor Woodrow U.S. Tower, Inc., The Beach Residences, L.L.C., TW Oaks Meridian, Inc., TW/Beach Residences–Hollywood, L.L.C., TW/Beach Residences–Venice Beach, L.L.C., TW/Olson Venture Management, L.L.C., TWC/Seven Meadows, L.L.C. and Valencia TM LLC.

Co-Borrowers ” has the meaning assigned to that term in the preamble to this Agreement.

Code ” means the Internal Revenue Code of 1986, as amended to the Restatement Effective Date and from time to time thereafter and any successor statute.

Collateral ” means any and all assets, whether real or personal, tangible or intangible (including the Mortgaged Properties), on which Liens are purported to be granted pursuant to the Security Agreement or any Mortgage as security for the Obligations, in each case except to the extent released in accordance with this Agreement.

Collateral Agent ” means Credit Suisse AG, in its capacity as Collateral Agent under the Collateral Documents, and any successor thereto.

Collateral Documents ” means the Security Agreement, the Trademark Security Agreement, the Mortgages, the Intercreditor Agreement, if any, and any other documents, instruments or agreements delivered by any Loan Party pursuant to this Agreement or any of the other Loan Documents in order to grant, protect or perfect Liens on any assets of such Loan Party as security for all or any of the Obligations.

 

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Commitment ” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans hereunder (and to acquire participations in Swing Line Loans and Letters of Credit as provided for herein) as set forth on Schedule 2.1 or in any agreement entered into by such Lender pursuant to Section 2.1A(iii), or in the Assignment Agreement pursuant to which such Lender assumed its Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.4A(ii) and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.1.

Commitment Termination Date ” means, with respect to any Class, the earliest of (a) July 13, 2016, subject to extension as provided in Section 2.9, (b) the date on which the Commitments of such Class are permanently reduced to zero pursuant to Section 2.4A(ii) and (c) the date of termination of the Commitments of such Class pursuant to Section 8.

Consolidated Adjusted EBITDA ” means, for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income (other than with respect to clause (xii)(B) below), the sum of the amounts for such period (as determined for Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries on a consolidated basis) of

(i) consolidated interest expenses for such period (net of interest income for such period),

(ii) provisions for taxes based on income, profits, net worth, tangible assets or capital, including franchise, excise and similar taxes, including any penalties and interest relating to any tax examinations deducted (and not added back) in computing Consolidated Net Income,

(iii) total depreciation expense,

(iv) total amortization expense (including amortized intangibles),

(v) the amount for such period of losses on sales of assets (excluding sales in the ordinary course of business) and other extraordinary cash losses, in each case, decreasing Consolidated Net Income,

(vi) extraordinary charges and expenses determined in accordance with GAAP,

(vii) any impairment charge or asset write-off in connection with any Permitted Acquisition pursuant to FASB Accounting Standards Codification 350 — Intangibles — Goodwill and Other, and Codification 360 — Property, Plant and Equipment and the amortization of intangibles arising pursuant to FASB Statement Accounting Standards Codification 805 — Business Combinations,

(viii) any non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights to officers, directors or employees,

(ix) non-recurring charges with respect to employee severance,

(x) other non-cash items (including non-cash impairment charges for land and other long-lived assets and option deposit forfeitures, but excluding the write-off or write-down of current

 

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assets); provided that, for purposes of this subclause (x) of this clause (a), any non-cash charges or losses shall be treated as cash charges or losses in any subsequent period during which cash disbursements attributable thereto are made,

(xi) expenses for (A) deferred compensation and bonuses incurred in connection with the Transactions and other acquisitions effected on or before the Effective Date and (B) deferred compensation and bonuses, deferred purchase price or earn-out obligations payable in connection with acquisitions effected after the Effective Date,

(xii) (A) other non-recurring or one-time cash charges and expenses, (B) cash restructuring charges or reserves or non-recurring integration costs and (C) the amount of net cost savings (net of the amount of actual benefits realized prior to or during such period) projected by Holdings in good faith to be realized during the next four consecutive Fiscal Quarters (which cost savings shall be added to Consolidated Adjusted EBITDA until fully realized and calculated on a Pro Forma Basis as though such cost savings had been realized on the first day of such period) as a result of an EBITDA Event or specific actions actually taken and identified as provided below, so long as (1) such cost savings are reasonably identifiable and factually supportable and (2) the actions causing such cost savings in connection with any EBITDA Event are taken within 12 months of any such EBITDA Event and the Administrative Agent shall have received an Officer’s Certificate of Holdings that such actions have been taken, or are reasonably anticipated to be taken, within such time period; provided that the aggregate amount added pursuant to this clause (xii) in such period shall not exceed (a) with respect to any twelve-month period ending on or prior to June 30, 2013, 15%, and (b) with respect to any twelve-month period ending thereafter, 10%, in each case of Consolidated Adjusted EBITDA of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries on a consolidated basis for such period (calculated prior to giving effect to any adjustment pursuant to this clause (xii)),

(xiii) management fees permitted pursuant to Section 6.9D,

(xiv) any non-cash loss attributable to the mark-to-market movement in the valuation of Hedge Agreements pursuant to FASB Accounting Standards Codification 815 — “Derivatives and Hedging”, provided that Consolidated Adjusted EBITDA shall be reduced in any subsequent period to the extent of any cash impact (other than any such cash impact from Hedge Agreements in respect of interest rates included in clause (i) above) resulting from such loss in such subsequent period (regardless of whether such loss is deducted in determining Consolidated Net Income in such subsequent period),

(xv) transaction related fees, costs and expenses incurred during such period (including fees and expenses for third-party professionals and advisors) in connection with financing transactions consummated or undertaken (whether or not consummated) and including fees, costs and expenses incurred in connection with (A) this Agreement or any other documents entered into in connection therewith and the transactions contemplated by any of the foregoing or (B)(1) the incurrence of Indebtedness under the Unsecured Facility Credit Agreement, and the Refinanced Unsecured Facility Indebtedness and (2) any amendment or other modification of the Unsecured Facility Credit Agreement and any Refinanced Unsecured Loan Documents, and

(xvi) costs and expenses incurred in such period in connection with any Permitted Acquisition and any other EBITDA Event,

 

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less (b) without duplication and to the extent increasing Consolidated Net Income, the sum of the amounts for such period (as determined for Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries on a consolidated basis) of

(i) non-cash items increasing Consolidated Net Income for such period (excluding any such non-cash gain to the extent it represents (a) the reversal of an accrual or reserve for potential cash gain in any prior period which reduced Consolidated Adjusted EBITDA in a prior period and (b) trade and other receivables in the ordinary course of business that represent income earned during such period),

(ii) the amount for such period of gains on sales of assets (excluding sales in the ordinary course of business) and other extraordinary, non-recurring or one-time cash gains,

(iii) any net after-tax income (less all fees and expenses or charges relating thereto) attributable to the early extinguishment of Indebtedness, all of the foregoing (except as otherwise provided in the definition of any term used herein) as determined on a consolidated basis in conformity with GAAP, and

(iv) any non-cash gain attributable to the mark-to-market movement in the valuation of Hedge Agreements pursuant to FASB Accounting Standards Codification 815 — “Derivatives and Hedging”, provided that Consolidated Adjusted EBITDA shall be increased in any subsequent period to the extent of any cash impact (other than any such cash impact from Hedge Agreements in respect of interest rates included in clause (a)(i) above) resulting from such gain in such subsequent period (regardless of whether such gain is added in determining Consolidated Net Income in such subsequent period);

provided , however , that for purposes of calculating Consolidated Adjusted EBITDA of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries (x) for any period during which a Permitted Acquisition has occurred, Consolidated Adjusted EBITDA for such period shall be adjusted on a Pro Forma Basis to give effect to such Permitted Acquisition, (y) for any period during which any Person, line of business or assets have been disposed of by Holdings, U.S. Holdings Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of the Restricted Subsidiaries, Consolidated Adjusted EBITDA for such period shall be adjusted to give effect to such disposition, assuming the consummation of such disposition and the repayment of any Indebtedness in connection therewith occurred on the first day of such period and (z) for any period during which a Restricted Subsidiary has been designated as an Unrestricted Subsidiary, Consolidated Adjusted EBITDA for such period shall be adjusted to give effect to such designation assuming it occurred on the first day of such period. For purposes of determining the Financial Performance Covenants as of or for the periods ended on September 30, 2011, December 31, 2011 and March 31, 2012, Consolidated Adjusted EBITDA (prior to giving effect to the immediately preceding proviso) will be deemed to be equal to $43,750,000 for each of the fiscal quarters ended December 31, 2010, March 31, 2011, and June 30, 2011.

Consolidated Adjusted Tangible Assets ” means, as of any date of determination, the total amount of all assets of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and their respective Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as shown on the most recently delivered Section 6.1

 

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Financials, less Intangible Assets; provided that assets of Restricted Subsidiaries that are not wholly-owned by U.S. FinCo or a Co-Borrower or any wholly-owned Restricted Subsidiary will be included in the calculation of Consolidated Adjusted Tangible Assets only to the extent the Capital Stock of such Restricted Subsidiaries is owned by U.S. FinCo or a Co-Borrower or any Restricted Subsidiary of U.S. FinCo or a Co-Borrower; provided , further , that the calculation of Consolidated Adjusted Tangible Assets will not include (i) the assets of any Mortgage Subsidiary for which outstanding Indebtedness of such Mortgage Subsidiary would be excluded from the definition of Consolidated Total Debt or (ii) any interest in respect of Indebtedness under the Unsecured Facility Credit Agreement or Refinanced Unsecured Facility Indebtedness.

Consolidated Adjusted Tangible Net Worth ” means, as of any date of determination, the sum of (a) consolidated stockholders’ equity of Holdings and its Subsidiaries calculated on a consolidated basis in accordance with GAAP, as shown on the most recently delivered Section 6.1 Financials, and (b) 50% of the aggregate principal amount of Indebtedness of any Loan Party included in Consolidated Total Debt as of such date of determination that (i) by its terms is subordinated in right of payment to the Obligations and (ii) has a final maturity date that is at least 90 days after the latest Commitment Termination Date hereunder at such time; provided that the amount of such Indebtedness included under this clause (b) shall not exceed an amount equal to 66  2 / 3 % of the consolidated stockholders’ equity of Holdings and its Subsidiaries as determined pursuant to clause (a) hereof; less (without duplication) the sum of (x) Intangible Assets, (y) Investments in Minority Investments and in joint ventures or similar entities that do not constitute Subsidiaries and (z) Investments in Subsidiaries of Holdings that are not Loan Parties to the extent the aggregate amount of such Investments exceeds 65% of Consolidated Tangible Net Worth as of such date of determination.

Consolidated Cash Interest Expense ” means, for any period (as determined for Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries on a consolidated basis), total interest expense (including that portion attributable to Capital Leases) payable in cash in such period, net of cash interest income received in such period, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net payments, if any, made (less net payments, if any, received) pursuant to Hedge Agreements in respect of interest rates, but excluding , however, (a) any amounts referred to in Section 2.3 payable to Agents or the Lenders payable on or before the Effective Date and (b) any amortized Transaction Costs. As used herein, Consolidated Cash Interest Expense shall at all times be calculated on a Pro Forma Basis with respect to any fiscal period during which an event occurred that is set forth in the definition of the term “Pro Forma Basis”.

Consolidated Net Income ” means, for any period, the net income (or loss) of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP; provided that there shall be excluded therefrom (a) the income of any Person (other than a Restricted Subsidiary of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo or a Co-Borrower) in which Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of their Subsidiaries has an equity interest, to the extent that the declaration or payment of dividends or other distributions of that income by such Person is not at the time permitted by operation of the terms of its charter (or similar organization documents) or any agreement or instrument between or among the holders of the Capital Stock of such Person, or any judgment, decree, statute, rule or

 

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governmental regulation applicable to such Person (other than “waterfall” provisions in respect of third-party Indebtedness), (b) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of Holdings or a Co-Borrower or is merged into or consolidated with Holdings or any of its Subsidiaries or that Person’s assets are acquired by Holdings or any of its Subsidiaries, (c) the income of any Subsidiary of Holdings to the extent that both (i) the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary (unless such restriction with respect to the payment of dividends or similar distribution has been legally waived) and (ii) such restriction on the declaration or payment of dividends or similar distributions would reasonably be expected to materially impair the ability of any Borrower to perform the Obligations, (d) any after-tax gains or losses attributable to discontinued operations, (e) one-time Transaction Costs and any fees, costs and expenses payable by Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and their Subsidiaries in connection with any Permitted Acquisitions, joint ventures or other Investments permitted hereunder (other than Investments made in the ordinary course of business and other than Investments in Subsidiaries) expensed or amortized in such period and including those fees, expenses or charges triggered by change in control provisions, (f) any net gain or loss resulting from currency remeasurements of Indebtedness (including any net loss or gain resulting from Hedge Agreements related to currency exchange risk) and any foreign currency translation gains or losses and (g) to the extent not included in clauses (a) through (f) above, any net extraordinary gains or net non cash extraordinary losses.

Consolidated Tangible Net Worth ” means, as of any date of determination, the consolidated stockholders’ equity of Holdings and its Subsidiaries calculated on a consolidated basis in accordance with GAAP, as shown on the most recently delivered Section 6.1 Financials, less Intangible Assets as of such date of determination.

Consolidated Total Assets ” means, as of any date of determination, the total amount of all assets of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and their respective Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as shown on the most recently delivered Section 6.1 Financials; provided that the calculation of Consolidated Total Assets will not include any interest in respect of Indebtedness under the Unsecured Facility Credit Agreement or Refinanced Unsecured Facility Indebtedness.

Consolidated Total Capitalization ” means, as of any date of determination, the sum of (a) Consolidated Adjusted Tangible Net Worth as of such date of determination and (b) Consolidated Total Debt as of such date of determination.

Consolidated Total Debt ” means, as at any date of determination, the aggregate amount of (a) all outstanding indebtedness of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries for borrowed money outstanding on such date (excluding (i) outstanding Indebtedness incurred by a Mortgage Subsidiary pursuant to Section 7.1(xxix) hereof, so long as neither Holdings nor any other Subsidiary of Holdings (other than such Mortgage Subsidiary) is directly or contingently liable for any such Indebtedness and (ii) Non-Recourse Indebtedness but including, for the avoidance of doubt, Non-Recourse Payment Guaranties), (b) all obligations under Capital Leases of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries outstanding on such date and (c) all obligations owed for all or any part of the deferred

 

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purchase price of property (including earn-outs with respect to acquisitions) due and payable in the applicable period to the extent that any such obligation becomes a liability on the balance sheet of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries, in accordance with GAAP, all calculated on a consolidated basis; provided that Consolidated Total Debt shall be determined net of the aggregate amount (not to exceed $50,000,000) of unrestricted Cash and Cash Equivalents of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries (in each case free and clear of all Liens, other than Liens granted under the Collateral Documents and nonconsensual liens permitted by Section 7.2) as of such date required to be reflected on a consolidated balance sheet in accordance with GAAP.

Consolidated Total Secured Debt ” means, at any date of determination, the aggregate amount of Consolidated Total Debt (without giving effect to the proviso set forth in the definition thereof) outstanding at such date that consists of Indebtedness that is then secured by Liens on property or assets of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, a Co-Borrower or any Restricted Subsidiary.

Construction Bonds ” means bonds issued by surety bond companies or other Persons or other security for the benefit of municipalities or other political subdivisions to secure the performance by any Borrower or any Subsidiary thereof of its obligations relating to Real Estate improvements and subdivision development and completion.

Contingent Obligation ” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of that Person (a) with respect to any Indebtedness, lease, dividend or other obligation of another if the primary purpose or intent thereof by the Person incurring the Contingent Obligation is to provide assurance to the obligee of such obligation of another that such obligation of another will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such obligation will be protected (in whole or in part) against loss in respect thereof, (b) with respect to any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings or (c) under Hedge Agreements. Contingent Obligations shall include (i) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another, (ii) the obligation to make take-or-pay or similar payments if required regardless of non-performance by any other party or parties to an agreement and (iii) any liability of such Person for the obligation of another through any agreement (contingent or otherwise) (A) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (B) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under subclause (A) or (B) of this sentence, the primary purpose or intent thereof is as described in the preceding sentence; provided , however , that the term “Contingent Obligation” shall not include (x) obligations (including indemnity obligations but excluding Indebtedness for borrowed money) incurred in the ordinary course of business, including in respect of land acquisition contracts, (y) endorsements of instruments for deposit or collection in the ordinary course of business and (z) mortgage loan repurchase obligations of any Mortgage Subsidiary. The amount of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if less, the amount to which such Contingent Obligation is specifically limited.

 

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Continuing Directors ” means the directors of the Board of Directors of the General Partner on the Effective Date, after giving effect to the Transactions and the other transactions contemplated thereby, and each other director if, in each case, such other director’s nomination for election to the Board of Directors of the General Partner is recommended by at least a majority of the then Continuing Directors or the election of such other director is approved by one or more Sponsors.

Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound other than the Obligations.

Daily Rate Loan ” means a Base Rate Loan or a Canadian Prime Rate Loan.

Default ” means a condition or event that, after notice or after any applicable grace period has lapsed, or both, would constitute an Event of Default.

Defaulting Lender ” means any Lender with respect to which a Lender Default is in effect.

Deposit Account ” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.

Designated Assets ” means any property or assets of the Canadian Borrower or its Restricted Subsidiaries (including Capital Stock of any Subsidiary of the Canadian Borrower) constituting a business, a line or unit of business or used in operating a business substantially as an entirety that may be designated from time to time for Disposition, Dividend or Investment in a written notice from the Canadian Borrower to the Administrative Agent.

Designated Asset Dividend ” means any Dividend (in kind or otherwise) (a) made with any Designated Assets, the Fair Market Value (as determined at the time of such Dividend) of which, when aggregated with and without duplication of the Designated Asset Dividends Aggregate Amount, the Designated Asset Investments Aggregate Amount and the Designated Asset Sales Aggregate Amount, does not exceed $150,000,000 in the aggregate, (b) made with any Excess Designated Proceeds or (c) made with the net cash proceeds of any Designated Asset Sale.

Designated Asset Dividends Aggregate Amount ” means the aggregate Fair Market Value of all Dividends previously made and described in clause (a) of the definition of Designated Asset Dividend, in each case as determined at the time the applicable Dividend was made.

Designated Asset Investment ” means any Investment (in kind or otherwise), whether made in a single transaction or a series of related transactions, consisting of any Designated Assets or Excess Designated Proceeds.

Designated Asset Investments Aggregate Amount ” means the aggregate Fair Market Value of all Designated Asset Investments previously made in reliance upon Section 7.6(B)(vii) and consisting of Designated Assets (and excluding, for the avoidance of doubt, any Designated Asset Investments consisting of Excess Designated Proceeds), in each case determined at the time the applicable Investment was made.

 

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Designated Asset Sale ” means any Disposition, whether in a single transaction or a series of related transactions, of any Designated Assets or non-cash Excess Designated Proceeds.

Designated Asset Sales Aggregate Amount ” means the aggregate Fair Market Value of all Designated Asset Sales previously made in reliance upon Section 7.6(B)(vii), in each case determined at the time the applicable Disposition was made.

Designated Non-Cash Consideration ” means the Fair Market Value of non-cash consideration received by U.S. FinCo, a Co-Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to Section 7.6B(iv) that is designated as Designated Non-Cash Consideration pursuant to an Officer’s Certificate of Holdings, setting forth the basis of such valuation (which amount will be reduced by the Fair Market Value of the portion of the non-cash consideration converted to cash within 120 days following the consummation of the applicable Disposition).

Development Agreement ” means an agreement entered into with one or more Governmental Authorities (or one or more entities sponsored by Governmental Authorities), other developers, joint venture partners or other Persons, in each case in connection with the payment of the cost of, or the performance of obligations relating to, infrastructure, amenities, common areas and the like, including roads, schools, sidewalks, plazas and parks.

Disposition ” has the meaning assigned to that term in Section 7.6B(ii).

Disqualified Domestic Subsidiary ” means any Domestic Subsidiary that (a) is a disregarded entity for U.S. Federal income tax purposes and (b) owns a Foreign Subsidiary, either directly or indirectly, exclusively through other entities that are disregarded entities for U.S. Federal income tax purposes and the sole assets of such disregarded entities (other than equity interests in each other) consist of Capital Stock of any Foreign Subsidiary.

Disqualified Stock ” means, with respect to any Person, any Capital Stock of such Person that, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise (other than solely as a result of a change of control), is convertible or exchangeable for Indebtedness or Disqualified Stock or is redeemable at the option of the holder thereof (other than solely as a result of a change of control), in whole or in part, in each case prior to the date that is 120 days after the Commitment Termination Date; provided , however , that if such Capital Stock is issued to any plan for the benefit of employees of Holdings or any of its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because (i) it may be required to be repurchased by Holdings or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or (ii) in the case of an option issued to any such employee, such option gives the employee the right, under certain circumstances, to require Holdings to withhold shares to pay the exercise price or the withholding taxes that are applicable upon exercise of such option.

Dividends ” has the meaning assigned to that term in Section 7.4.

Domestic Subsidiary ” means any Subsidiary of U.S. FinCo or the U.S. Borrower incorporated, formed or organized under the laws of any jurisdiction within the United States of America or any territory thereof.

 

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EBITDA Event ” means the Acquisition and any Permitted Acquisition, joint venture or Investment (other than an Investment made in the ordinary course of business and other than an Investment in any Subsidiary), in each case permitted hereunder.

Effective Date ” means July 13, 2011.

Eligible Assignee ” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, (d) a commercial bank organized under the laws of the United States or Canada, or any State thereof, and having a combined capital and surplus of at least $250,000,000, (e) a savings and loan association or savings bank organized under the laws of the United States or Canada, or any State or Province thereof, and having a combined capital and surplus of at least $250,000,000, (f) a commercial bank organized under the laws of any other country that is a member of the OECD or has concluded special lending arrangements with the International Monetary Fund associated with its General Arrangements to Borrow or a political subdivision of any such country, and having a combined capital and surplus of at least $250,000,000, so long as such bank is acting through a branch or agency located in the United States, (g) a finance company, insurance company or other financial institution or fund (whether a corporation, partnership, trust or other entity) that is engaged in making, purchasing or otherwise holding commercial loans in the ordinary course and having a combined capital and surplus of at least $250,000,000 or an Approved Fund thereof and (h) any other Person (other than a natural person) approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed) and so long as no Event of Default under Section 8.1 or 8.5 has occurred and is continuing, approved by Holdings (such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “ Eligible Assignee ” shall not include any Defaulting Lender, the Sponsors, Holdings, any Co-Borrower or any of their respective Subsidiaries or Affiliates.

EMU Legislation ” means the legislative measures of the European Union or any other country where the Euro is used for the introduction of, changeover to or operation of the Euro in one or more member states.

Environmental Claim ” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations (other than internal reports prepared by Holdings or any of its Subsidiaries (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing transaction or an acquisition or disposition of real estate) or proceedings relating in any way to any Environmental Law or any permit issued, or any approval given, under any Environmental Law (hereinafter, “ Claims ”), including (i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation, medical monitoring or injunctive relief relating to or resulting from the Release or threatened Release of Hazardous Materials or arising in any manner from alleged injury or threat of injury to health, safety or the environment.

Environmental Law ” means any applicable Federal, state, foreign or local statute, law, rule, regulation, directive, ordinance, code and rule of common law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree or judgment, relating to the protection of the environment or, to the extent relating to exposure to Hazardous Materials, of human health or safety.

 

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Environmental Liabilities ” means all liabilities, obligations, responsibilities and all Environmental Claims, arising from (a) environmental, health or safety conditions, (b) the presence, Release or threatened Release of Hazardous Materials at any location, whether or not owned, leased or operated by any Loan Party or any of its Subsidiaries, or (c) circumstances forming the basis of any violation, or alleged violation, of any Environmental Law.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time. Section references to ERISA are to ERISA as in effect at the Restatement Effective Date and any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefore unless such references refer to prior plan years, in which case such references are to ERISA as in effect for the applicable plan year.

ERISA Affiliate ” means each person (as defined in Section 3(9) of ERISA) that together with Holdings, the Co-Borrowers or any Subsidiary thereof would be deemed to be a “single employer” within the meaning of Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

Euro ” means the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the EMU Legislation.

Eurocurrency Reserve Requirements ” means, for each Interest Period for each Eurodollar Rate Loan, the highest reserve percentage applicable to any Lender during such Interest Period under regulations issued from time to time by the Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement), with respect to liabilities or assets consisting of or including Eurocurrency liabilities having a term equal to such Interest Period.

Eurodollar Base Rate ” means the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date which is two Business Days prior to the beginning of the relevant Interest Period (as specified in the applicable Notice of Borrowing or Notice of Conversion/Continuation) by reference to the British Bankers’ Association Interest Settlement Rates for deposits in U.S. Dollars (as set forth by any service selected by the Administrative Agent which has been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “Eurodollar Base Rate” shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in U.S. Dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Reference Lenders at approximately 11:00 a.m. (London time) on the date which is two Business Days prior to the beginning of such Interest Period. If any of the Reference Lenders shall be unable or shall otherwise fail to supply such rates to the Administrative Agent upon its request, the rate of interest shall be determined on the basis of the quotations of the remaining Reference Lenders.

Eurodollar Rate Loans ” means Loans bearing interest at rates determined by reference to the Reserve Adjusted Eurodollar Rate as provided in Section 2.2A.

Event of Default ” means each of the events set forth in Section 8.

 

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Excess Designated Proceeds ” means, with respect to any Designated Asset Sale, (a) that portion of the net cash proceeds from such Designated Asset Sale that remains after giving effect to the repayment or prepayment, purchase or other retirement of Indebtedness in connection with such Designated Asset Sale and (b) any non-cash proceeds of any Designated Asset Sale.

Excess Property Amount ” means, at any time and with respect to any state in which Mortgaged Property is located, the excess, if any, of the aggregate book value of the Mortgaged Property located in such state at such time (as determined in accordance with clause (a), (b) or (c) of the definition of Aggregate Mortgaged Property Amount, as the case may be) over an amount equal to the product of (x) 35.0% and (y) the aggregate book value of all of the Mortgaged Property at such time (as determined in accordance with clause (a), (b) or (c) of the definition of Aggregate Mortgaged Property Amount, as the case may be).

Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations promulgated thereunder from time to time, and any successor statute.

Exchange Rate ” means, on any day, the rate at which Canadian Dollars may be exchanged into U.S. Dollars (or, for purposes of the definition of “Canadian Dollar Equivalent” or any other provision of this Agreement requiring or permitting the conversion of U.S. Dollars to Canadian Dollars, the rate at which U.S. Dollars may be exchanged into Canadian Dollars as set forth at approximately 11:00 a.m., New York City time, on such date on the Bloomberg Key Cross Currency Rates Page for Canadian Dollars. In the event that such rate does not appear on any Bloomberg Key Cross Currency Rate Page, the Exchange Rate shall be determined by reference to such other publicly available services for displaying exchange rates as selected by the Administrative Agent, or, at the discretion of the Administrative Agent, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the primary market where its foreign currency exchange operations in respect of Canadian Dollars is then being conducted, at or about 10:00 a.m., local time, on such date for the purchase of U.S. Dollars (or Canadian Dollars, as the case may be) for delivery two Business Days later; provided that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent may use any reasonable method it deems appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.

Excluded Subsidiary ” means (a) any Subsidiary that is not a wholly-owned Subsidiary, (b) any wholly-owned Domestic Subsidiary that is restricted by Applicable Law from guaranteeing the Obligations, (c) any Immaterial Subsidiary (provided that Holdings shall not be permitted to exclude Immaterial Subsidiaries from guaranteeing the Obligations or pledging Collateral to the extent that (i) the aggregate amount of gross revenue for all Immaterial Subsidiaries (other than Unrestricted Subsidiaries) excluded by this clause (c) exceeds 5% of the consolidated gross revenues of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries for the most recent Test Period ended prior to the date of determination or (ii) the aggregate amount of total assets for all Immaterial Subsidiaries (other than Unrestricted Subsidiaries) excluded by this clause (c) exceeds 5% of the Consolidated Total Assets of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries as at the end of the most recent Test Period ended prior to the date of determination), (d) any Mortgage Subsidiary, (e) any Insurance Subsidiary, (f) any Domestic Subsidiary of a Foreign Subsidiary of the U.S. Borrower or U.S. FinCo, (g) any Subsidiary that is an SPE and (h) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent (confirmed in writing by notice to the U.S. Borrower), the cost or other consequences (including any adverse tax consequences) of providing a guarantee shall be excessive in view of the benefits to be obtained by the Lenders therefrom.

 

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Excluded Taxes ” means, with respect to any payment made by a Loan Party under any Loan Document, any of the following Taxes imposed on or with respect to the Administrative Agent, any Lender, any Issuing Bank, or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated), franchise taxes imposed on it (in lieu of net income taxes) and backup withholding taxes, in each case (1) that are Other Connection Taxes or (2) imposed by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lender Office is located, (b) any branch profits taxes imposed by the United States of America, (c) in the case of a Lender (other than an assignee pursuant to a request by a Borrower under Section 2.8B), any withholding Tax that is imposed on amounts payable to such Lender and is the result of any law in effect (including FATCA) on the date on which such Lender becomes a party hereto (or designates a new Lender Office), except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new Lender Office (or assignment), to receive additional amounts from the Borrowers with respect to such withholding Tax pursuant to Section 2.7E(i) and (d) any withholding Tax that is imposed on amounts payable to the Administrative Agent or a Lender that is attributable to the failure (other than as a result of a Change in Law) of the Administrative Agent or such Lender to comply with Section 2.7E(vi)(b).

Existing Credit Agreement ” has the meaning assigned to that term in the recitals to this Agreement.

Existing Indebtedness ” means Indebtedness described in Schedule 7.1A.

Facility Fee Rate ” means the applicable percentage set forth below as the case may be, based on the Capitalization Ratio as of the relevant Calculation Date:

 

CAPITALIZATION RATIO

   FACILITY FEE
RATE
 

Category 1

     0.750

³ 0.40 to 1.00

  

Category 2

     0.500

< 0.40 to 1.00

  

Each change in the Facility Fee Rate resulting from a change in the Capitalization Ratio shall be effective with respect to all Commitments on and after the date of delivery to the Administrative Agent of the Section 6.1 Financials indicating such change until the date immediately preceding the next date of delivery of Section 6.1 Financials indicating another such change. At any time (a) during which Holdings has failed to deliver Section 6.1 Financials or (b) after the occurrence and during the continuance of an Event of Default, the Capitalization Ratio shall be deemed to be in Category 1 for purposes of determining the Facility Fee Rate.

 

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Facility Fees ” has the meaning assigned thereto in Section 2.3A.

Fair Market Value ” with respect to any asset means the sale value that would be obtained in an arm’s length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy. Fair Market Value shall be determined by Holdings acting in good faith; provided that in the case of any assets that are designated for a Designated Asset Dividend or Designated Asset Investment and have an aggregate Fair Market Value greater than $35,000,000 (or in the case of a related series of any such Designated Asset Dividends or Designated Asset Investments, as applicable, with an aggregate Fair Market Value greater than $35,000,000), then, in any such case, the Fair Market Value of any such Designated Asset Investments or Designated Asset Dividends (or all such related Designated Asset Investments or Designated Asset Dividends), as applicable, will be determined in good faith by the Board of Directors of Holdings or a Co-Borrower based on an appraisal, valuation, fairness opinion or similar document issued by an Independent Qualified Party.

FASB ” means the Financial Accounting Standards Board.

FATCA means Sections 1471 through 1474 of the Code as of the Restatement Effective Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), and any applicable Treasury regulation promulgated thereunder or published administrative guidance implementing such law.

Federal Funds Effective Rate ” means, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent.

Financial Performance Covenants ” means the covenants of Holdings set forth in Section 7.5.

First-Out Provisions ” has the meaning assigned to such term in Section 8.6.

First Priority ” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the most senior Lien (other than Permitted Encumbrances and other Liens permitted pursuant to Section 7.2A) to which such Collateral is subject.

Fiscal Quarter ” means a fiscal quarter of a Fiscal Year.

Fiscal Year ” means the fiscal year of Holdings and its Subsidiaries ending on December 31 of each calendar year.

 

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Fixed Charges ” means, with respect to any Person for any period, without duplication, the sum of: (a) Consolidated Cash Interest Expense of such Person for such period, (b) all cash Dividends (excluding items eliminated in consolidation) on any series of Preferred Stock or Disqualified Stock, paid by such Person during such period and (c) the aggregate principal amount of all regularly scheduled principal payments or redemptions or similar acquisitions for value of outstanding debt for borrowed money, but excluding any such payments to the extent refinanced through the incurrence of additional Indebtedness otherwise expressly permitted under Section 7.1. As used herein, Fixed Charges shall at all times be calculated on a Pro Forma Basis with respect to any fiscal period during which an event occurred that is set forth in the definition of the term “Pro Forma Basis”.

Fixed Charge Coverage Ratio ” means, with respect to any Person for any period, the ratio of Consolidated Adjusted EBITDA of such Person for such period to the Fixed Charges of such Person for such period.

Fixed Rate Loan ” means a Eurodollar Rate Loan or a CDOR Rate Loan.

Foreign Benefit Event ” means, with respect to any Foreign Plan, (i) the existence of an Unfunded Current Liability in excess of the amount permitted under any Applicable Law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (ii) the failure to make the required contributions or payments, under the terms of the plan or any Applicable Law, on or before the due date for such contributions or payments, (iii) the receipt of a notice by a Governmental Authority relating to the intention to terminate any such Foreign Plan, in whole or in part, or to appoint a replacement administrator, trustee or similar official to administer any such Foreign Plan, or alleging the insolvency of any such Foreign Plan, (iv) the incurrence of any liability by Holdings, the Co-Borrowers or any of their respective Subsidiaries or any ERISA Affiliate under Applicable Law on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein, the occurrence of an event that could reasonably be expected to result in a complete or partial termination of a Canadian Pension Plan or (v) the occurrence of any transaction that is prohibited under any Applicable Law and that could reasonably be expected to result in the incurrence of any liability by Holdings, the Co-Borrowers or any of their respective Subsidiaries or any ERISA Affiliate, or the imposition on any of the foregoing entities of any fine, excise tax or penalty resulting from any noncompliance with any Applicable Laws.

Foreign Lender ” means any Lender or Issuing Bank that is not a U.S. Person.

Foreign Plan ” means any pension, retirement or employee benefit plan or arrangement that under Applicable Law outside of the United States is required to be funded through a trust, insurance contract or other funding vehicle, including a Canadian Pension Plan, and (i) that is maintained or contributed to by, or entered into with, Holdings, a Co-Borrower or any of their Subsidiaries or any ERISA Affiliate or (ii) with respect to which any of the foregoing entities would reasonably be expected to have actual liability; provided that, for the avoidance of doubt, a “Foreign Plan” does not include a “Plan” as defined below.

Foreign Subsidiary ” means any Subsidiary of U.S. FinCo or the U.S. Borrower that is not a Domestic Subsidiary.

 

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Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans or similar extensions of credit in the ordinary course.

Funding and Payment Office ” means the office of the Administrative Agent located at Eleven Madison Avenue, New York, NY 10010 (or such office of the Administrative Agent or any successor Administrative Agent specified by the Administrative Agent or such successor Administrative Agent in a written notice to the U.S. Borrower and the Lenders).

Funding Date ” means the date of the funding of a Loan, which shall be a Business Day.

GAAP ” means, subject to the limitations on the application thereof set forth in Section 1.2, generally accepted accounting principles, as in effect in the United States of America on the date of determination.

General Partner ” means TMM Holdings (G.P.) Inc., a British Columbia corporation and the general partner of Holdings.

Governmental Authority ” means the government of the United States, Canada, any other country or any multinational authority, or any state, province or political subdivision thereof, and any entity, body or authority exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including the PBGC and other quasi-governmental entities established to perform such functions.

Grantor ” means each of U.S. FinCo, the U.S. Borrower and each Subsidiary Guarantor.

Guarantee Obligations ” means, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof (including endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Effective Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement). The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

Guarantor ” means, individually, Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, each of the Subsidiary Guarantors or any other wholly-owned Domestic Subsidiary of U.S. FinCo or the U.S. Borrower that at any time has executed and delivered a Guaranty and that has not been released from the Obligations in accordance with the provisions of Section 9.7.

 

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Guaranty ” means the Guaranty, annexed as Exhibit V hereto, dated as of the Effective Date, and entered into by and among Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Subsidiary Guarantors, or executed and delivered by any additional Subsidiary Guarantor from time to time thereafter pursuant to Section 6.7, as such Guaranty may thereafter be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

Hazardous Materials ” means (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing regulated levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous waste”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or “pollutants”, or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, that is prohibited, limited or regulated by any Environmental Law.

Hedge Agreements ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.

Hedge Bank ” means any Person that is a Lender, an Agent or an Affiliate of a Lender or any Agent at the time it enters into a Hedge Agreement or that is a Lender or Agent or an Affiliate of a Lender or Agent at any time after it has entered into a Hedge Agreement, in its capacity as a party thereto.

Hedge Obligations ” means, with respect to any Person, the obligations of such Person under Hedge Agreements.

Historical Financial Statements ” means (i) audited consolidated balance sheets and related consolidated statements of income and cash flows of Holdings and its consolidated Subsidiaries for the 2009, 2010 and 2011 Fiscal Years and (ii) unaudited consolidated balance sheets and related consolidated statements of income and cash flows of Holdings and its consolidated Subsidiaries for each subsequent Fiscal Quarter after December 31, 2011, ended at least 45 days prior to the Restatement Effective Date.

Holdings ” has the meaning assigned to that term in the preamble to this Agreement.

 

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Housing Unit ” means a detached or attached (including townhouse condominium or condominium) single-family house (but excluding mobile homes) owned by a Co-Borrower or a Subsidiary of a Co-Borrower (i) which is completed or for which there has been a start of construction and (ii) which has been or is being constructed on any Real Estate which immediately prior to the start of construction constituted a Lot hereunder.

Independent Qualified Party ” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in the real estate business of nationally recognized standing that is, in the good faith judgment of the Board of Directors of the Co-Borrowers, qualified to perform the task for which it has been engaged; provided that such firm or consultant is not an Affiliate of Holdings.

Immaterial Subsidiary ” means, at any date of determination, any Restricted Subsidiary of U.S. FinCo or a Co-Borrower (a) whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal period for which Section 6.1 Financials have been delivered were less than 5% of the Consolidated Total Assets of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries at such date, and (b) whose gross revenues for such Test Period were less than 5% of the consolidated gross revenues of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP.

Indebtedness ” means, as applied to any Person, without duplication, (a) all indebtedness for borrowed money, (b) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP, (c) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money (other than current accounts payable and trade payables (including amounts payable under construction contracts) incurred in the ordinary course of business and accrued expenses incurred in the ordinary course of business), (d) any obligation owed for all or any part of the deferred purchase price of property or services (excluding any such obligations incurred under ERISA, current trade payables incurred in the ordinary course of business and obligations with respect to options or contracts to purchase real property, but including earn-outs with respect to any acquisition), (e) all obligations evidenced by notes, bonds (other than bid or performance bonds), debentures or other similar instruments, (f) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to any property or assets acquired by such Person (even though the rights and remedies of the seller or the lender under such agreement in the event of default are limited to repossession or sale of such property or assets), (g) all obligations, contingent or otherwise, as an account party under any letter of credit or under acceptance, letter of credit or similar facilities to the extent not reflected as trade liabilities on the balance sheet of such Person in accordance with GAAP, (h) all obligations, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Disqualified Stock, (i) all obligations under Hedge Agreements, including, as of any date of determination, the net amounts, if any, that would be required to be paid by such Person if such Hedge Agreements were terminated on such date, (j) all Contingent Obligations in respect of obligations of the kind referred to in clauses (a) through (i) above and (k) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; provided , that if such Person has not assumed such secured indebtedness that is nonrecourse to its credit, then the amount of indebtedness of such Person pursuant to this clause (k) shall be equal to the lesser of the amount of the secured indebtedness or the Fair Market Value of the assets of such Person which secure such indebtedness. For all purposes of this Agreement, the term

 

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“Indebtedness” shall not include any reimbursement obligations in respect of Performance Letters of Credit, Construction Bonds or guaranties of performance obligations (such as bid or performance bonds), or guaranties of non-financial obligations such as any completion guaranty.

Indemnified Taxes ” means Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by any Loan Party under any Loan Document.

Indemnitee ” has the meaning assigned to that term in Section 10.2B.

Initial Yield ” means with respect to additional Commitments extended pursuant to Section 2.1A(iii), the amount (as reasonably determined by the Administrative Agent) equal to the sum of (a) the margin above the Reserve Adjusted Eurodollar Rate or the CDOR Rate, as the case may be, on the Revolving Loans to be made under such Commitments (increased by (i) any “Facility Fee Rate” applicable on the date of the calculation and (ii) the amount that any “LIBOR floor” applicable to such Loans on the date of the calculation exceeds the Reserve Adjusted Eurodollar Rate for a one-month Interest Period on such date) and (b) the quotient obtained by dividing (i) the amount of any Up-Front Fees on such Commitments (including any fee or discount received by Lenders in connection with the initial extension thereof) by (ii) the lesser of (x) the Weighted Average Life to Maturity of such Commitments and (y) four.

Insurance Subsidiaries ” means (a) Taylor Woodrow Insurance Services, Inc., (b) Beneva Indemnity Company and (c) any other corporation, limited partnership, limited liability company or business trust that is (i) organized after the Effective Date or designated by Holdings as an Insurance Subsidiary on or after the Effective Date, (ii) a Subsidiary of Holdings and (iii) engaged in the business of providing title insurance, captive insurance (whether for Holdings and its Subsidiaries or otherwise) or insurance agency or other ancillary or complementary services that in each case is subject to state regulation and/or licensing requirements.

Intangible Assets ” means all unamortized debt discount and expense, unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, write-ups of assets over their prior carrying value (other than write-ups which occurred prior to the Effective Date and other than, in connection with the acquisition of an asset, the write-up of the value of such asset (within one year of its acquisition) to its fair market value in accordance with GAAP) and all other items which would be treated as intangible on the consolidated balance sheet of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries prepared in accordance with GAAP.

Intellectual Property ” has the meaning assigned to that term in Section 5.5C.

Intercreditor Agreement ” means any Intercreditor Agreement entered into among the Collateral Agent, the holders of one or more series of pari passu or junior secured debt (or any agent, trustee or authorized representative therefor) and the Loan Parties pursuant to Section 7.1(xxiv) or 7.2A(viii).

Interest Payment Date ” means:

(a) with respect to any Daily Rate Loan, the last Business Day in each of March, June, September and December of each year, commencing on June 30, 2011; and

 

27


(b) with respect to any Fixed Rate Loan, the last day of each Interest Period applicable to such Loan; provided that in the case of each Interest Period of longer than three months, “Interest Payment Date” shall also include the dates that are three months and, if applicable, six months, nine months, twelve months or such other period as agreed by all Lenders pursuant to Section 2.2B after the commencement of such Interest Period.

Interest Period ” has the meaning assigned to that term in Section 2.2B.

Interest Rate Determination Date ” means each date for calculating the Reserve Adjusted Eurodollar Rate or the CDOR Rate, as applicable, for purposes of determining the interest rate in respect of an Interest Period. The Interest Rate Determination Date for purposes of calculating the Reserve Adjusted Eurodollar Rate shall be the second Business Day prior to the first day of the related Interest Period and for purposes of calculating the CDOR Rate shall be the first day of the related Interest Period.

Investment ” means (a) any direct or indirect purchase or other acquisition by U.S. FinCo, a Co-Borrower or any of their respective Subsidiaries of, or of a beneficial interest in, stock or other Securities of any other Person, or (b) any direct or indirect loan, advance (other than loans or advances to employees for moving, education, computer, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contribution by U.S. FinCo, a Co-Borrower or any of their respective Subsidiaries to any other Person, including all indebtedness and accounts receivable acquired from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business; provided , however , that the term “Investment” shall not include (i) current trade and customer accounts receivable for goods furnished or services rendered in the ordinary course of business and payable in accordance with customary trade terms, (ii) advances and prepayments to suppliers for goods and services in the ordinary course of business, (iii) Capital Stock or other Securities acquired in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to U.S. FinCo, a Co-Borrower or any of their respective Subsidiaries or as security for any such Indebtedness or claims, (iv) Cash, (v) Cash Equivalents or (vi) the licensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other Persons, in the ordinary course of business. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment.

Issuing Bank ” means, with respect to any Letter of Credit issued on and after the Effective Date, Credit Suisse AG, in its capacity as issuer of Letters of Credit, and any other Lender reasonably acceptable to Holdings and the Administrative Agent. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

Knowledge ” means the actual knowledge, after due inquiry, of any Responsible Officer of Holdings or a Co-Borrower.

LC Disbursement ” has the meaning assigned to that term in Section 3.1C.

 

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Lender ” and “ Lenders ” means the Persons identified as “Lenders” and listed on Schedule 2.1 of this Agreement, together with their successors and permitted assigns pursuant to Section 10.1 and the term “Lenders” shall include (a) the Swing Line Lender unless the context otherwise requires and (b) any Lender providing an additional Commitment pursuant to Section 2.1A(iii); provided that the term “Lenders”, when used in the context of a particular Commitment, means the Lenders having that Commitment.

Lender Default ” means (a) the refusal (which has not been retracted within three Business Days) of a Lender to make available its portion of any Loans (including any Revolving Loans made to pay Refunded Swing Line Loans or to reimburse drawings under Letters of Credit) in accordance with Section 2.1A or its portion of Unpaid Drawing in accordance with Section 3.3C unless the subject of a good faith dispute, (b) a Lender having notified a Borrower and/or the Administrative Agent that it does not intend to comply with its obligations under Section 2.1 or Sections 3.1C, 3.3B or 3.3C unless the subject of a good faith dispute or (c) a Lender or any Person that directly or indirectly controls such Lender becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment; provided that a Lender Default shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interests in any Lender or any Person that directly or indirectly controls such Lender by a Governmental Authority or an instrumentality thereof.

Lender Office ” means, as to any Lender, the office or offices of such Lender specified in the Administrative Questionnaire completed by such Lender and delivered to the Administrative Agent, and the office or offices of such Lender that the Administrative Agent notifies Holdings promptly but no later than two days after the Effective Date, or such other office or offices as such Lender may from time to time designate to Holdings and the Administrative Agent.

Letters of Credit ” means the commercial Letters of Credit and standby Letters of Credit issued or to be issued by an Issuing Bank for the account of a Co-Borrower pursuant to Section 3.1 for general corporate purposes; provided , however , that Credit Suisse AG shall not be obligated to issue commercial (as opposed to standby) Letters of Credit hereunder.

Letter of Credit Issuing Office ” means, as to any Issuing Bank, the address from time to time specified in writing by such Issuing Bank to the Borrowers and the Administrative Agent as its letter of credit issuing office.

Letter of Credit Usage ” means, as at any date of determination, the sum of, without duplication, (a) the Canadian LC Exposure plus (b) the U.S. LC Exposure.

Lien ” means any mortgage, pledge, security interest, hypothecation, assignment, lien (statutory or other) or similar encumbrance, and any easement, right-of-way, license, restriction (including zoning restrictions), defect, exception or irregularity in title or similar charge or encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof); provided that in no event shall an operating lease be deemed to be a Lien.

Liquidating Subsidiary ” means each of Taylor Woodrow Georgia, L.L.C., Taylor Woodrow Tower Realty, Inc. and TW/Olson Venture Management, L.L.C.

 

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Loan ” or “ Loans ” means, as the context requires, one or more of the Revolving Loans, the Swing Line Loans or any combination thereof.

Loan Documents ” means this Agreement, the Amendment Agreement, the Notes, the Letters of Credit, the Guaranty and the Collateral Documents.

Loan Parties ” means Holdings, Canada Holdings, U.S. Holdings, Canada Intermediate Holdings, U.S. FinCo, each Borrower and each Subsidiary Guarantor.

Lots ” means all Land owned by a Loan Party which is zoned by the applicable Governmental Authority having jurisdiction for construction and use as Housing Units.

Management Agreements ” means (1) the Sponsor Management Services Agreement dated as of the Effective Date, among U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, TPG Capital, L.P. and OCM FIE, LLC and (2) JHI Management Services Agreement dated as of the Effective Date, by and among JHI Investments Inc., U.S. Holdings, Canada Holdings and Canada Intermediate Holdings.

Management Investors ” means the management officers, directors and employees of Holdings, any Co-Borrower or any Restricted Subsidiary who are investors in Holdings or any of its direct or indirect parent entities as of the Effective Date or who became investors in Holdings or any of its direct or indirect parent entities within 120 days of the Effective Date in connection with the Transactions.

Master Agreement ” has the meaning assigned to that term in the definition of “Hedge Agreements”.

Material Adverse Effect ” means a circumstance or condition affecting the business, assets, operations, properties or financial condition of Holdings and its Subsidiaries, taken as a whole, that would materially adversely affect (a) the ability of the Co-Borrowers and the other Loan Parties, taken as a whole, to perform their payment obligations under this Agreement or any of the other Loan Documents or (b) the rights and remedies of the Administrative Agent or the Collateral Agent and the Lenders under this Agreement or any of the other Loan Documents.

Maximum Amount ” has the meaning assigned to that term in Section 10.13A.

Measurement Quarter ” has the meaning set forth in Section 7.5.

Minority Investment ” means any Person (other than a Subsidiary of Holdings) in which U.S. FinCo, a Co-Borrower or any Restricted Subsidiary owns Capital Stock.

Model Home Unit ” means a completed Housing Unit to be used as a model home in connection with the sale of Housing Units in a residential housing project.

Moody’s ” means Moody’s Investors Service, Inc.

Mortgage ” means a mortgage or a deed of trust, deed to secure debt, trust deed or other security document entered into by the owner of a Mortgaged Property and the Collateral Agent for the benefit of the Secured Parties in respect of that Mortgaged Property, substantially in the form of Exhibit VII hereto, with such reasonable changes thereto as may be recommended by the Collateral

 

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Agent’s local counsel based on local laws or customary local mortgage or deed of trust practices, as such security instrument may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time.

Mortgaged Property ” means (a) each parcel of real property and improvements thereto specified on Schedule 1.1 together with any additional parcels of real property insured under the same lender’s title insurance policy as such parcels referred to in this clause (a) (collectively, “ Original Mortgaged Property ”), and (b) each other parcel of real property and improvements thereto with respect to which a Mortgage is granted pursuant to Section 6.8B, in each case to the extent that a Mortgage in favor of the Collateral Agent for the benefit of the Secured Parties remains in full force and effect and has not been released or otherwise terminated.

Mortgage Subsidiary ” means (a) Taylor Morrison Home Funding LLC, (b) Mortgage Funding Direct Ventures, LLC and (c) any corporation, limited partnership, limited liability company or business trust that is (i) organized after the Effective Date or designated by Holdings as a Mortgage Subsidiary on or after the Effective Date, (ii) a Subsidiary of Holdings and (iii) engaged in the business of issuing mortgage loans on residential properties (whether for purchase of homes or refinancing of existing mortgages), purchasing and selling mortgage loans, issuing securities backed by mortgage loans, acting as a broker of mortgage loans and other activities customarily associated with mortgage banking and related businesses.

Multiemployer Plan ” means a “multiemployer plan”, as defined in Section 4001(a)(3) of ERISA, that is subject to ERISA and is or was within the last six years maintained by Holdings, a Co-Borrower or any ERISA Affiliate, to which Holdings, a Co-Borrower or any ERISA Affiliate is contributing or to which Holdings, a Co-Borrower or any ERISA Affiliate had an obligation to contribute within the last six years or with respect to which Holdings, a Co-Borrower or any ERISA Affiliate has any liability (whether actual or contingent).

Non-Consenting Lender ” has the meaning assigned to that term in Section 10.5B.

Non-Recourse Indebtedness ” with respect to any Person means Indebtedness of such Person for which (a) the sole legal recourse for collection of principal and interest on such Indebtedness is (i) against the specific property identified in the instruments evidencing or securing such Indebtedness and such property was acquired (directly or indirectly, including through the purchase of Capital Stock of the Person owning such property) with the proceeds of such Indebtedness or such Indebtedness was incurred within 90 days after the acquisition (directly or indirectly, including through the purchase of Capital Stock of the Person owning such property) of such property, (ii) so long as such Person does not (A) own or acquire any assets other than such property being acquired with the proceeds of such Indebtedness and any other assets incidental thereto or (B) incur any liabilities other than such Indebtedness and any other liabilities incidental thereto, against any other assets of such Person, and (iii) the enforcement of any applicable Non-Recourse Payment Guaranties in respect of such Indebtedness and (b) no other assets of such Person may be realized upon in collection of principal or interest on such Indebtedness. Indebtedness which otherwise constitutes Non-Recourse Indebtedness will not lose its character as Non-Recourse Indebtedness because there is recourse to any borrower, any guarantor or any other Person with respect to such Indebtedness for or in respect of (a) environmental warranties and indemnities, (b) indemnities for and losses arising from fraud, misrepresentation, misapplication or non payment of rents, profits, insurance and condemnation proceeds and other sums actually received by the borrower from secured assets to be paid to the lender, waste and mechanics’ liens, (c) a voluntary

 

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bankruptcy filing (or similar filing or action) or collusive involuntary bankruptcy filings by such Person, and other events, actions and circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate indemnification agreements or guaranties in non-recourse financings of real estate or (d) completion guaranties (clauses (a) through (d) collectively being referred to hereinafter as “ Non-Recourse Indemnity Guaranties ”).

Non-Recourse Indemnity Guaranties ” has the meaning assigned to such term in the definition of “Non-Recourse Indebtedness”.

Non-Recourse Payment Guaranties ” has the meaning assigned to such term in Section 7.1(xxi).

Notes ” means one or more of the Revolving Notes, Swing Line Notes or any combination thereof.

Notice of Borrowing ” means a notice in the form of Exhibit I annexed hereto delivered by a Borrower to the Administrative Agent pursuant to Section 2.1B with respect to a proposed borrowing.

Notice of Conversion/Continuation ” means a notice substantially in the form of Exhibit II annexed hereto delivered by a Borrower to the Administrative Agent pursuant to Section 2.2D with respect to a proposed conversion or continuation of the applicable basis for determining the interest rate with respect to the Loans specified therein.

Notice of Intent to Cure ” has the meaning assigned to such term in Section 6.1(iii).

Notice of Issuance of Letter of Credit ” means a notice in the form of Exhibit III annexed hereto delivered by a Borrower to the Administrative Agent pursuant to Section 3.1B(i) with respect to the proposed issuance of a Letter of Credit.

Obligations ” means the collective reference to (a) the due and punctual payment of (i) the principal of and premium, if any, and interest at the applicable rate provided in this Agreement (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by any Borrower under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of any Borrower or any other Loan Party to any of the Secured Parties under this Agreement and the other Loan Documents, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of any Borrower under or pursuant to this Agreement and the other Loan Documents, (c) the due and punctual payment and performance of all the covenants, agreements, and liabilities of each other Loan Party under or pursuant to this Agreement or the other Loan Documents, (d) the due and punctual payment and performance of all obligations of each Loan Party under each Secured Hedge Agreement and (e) the due and punctual payment and performance of all Cash Management Obligations; provided , however , that the

 

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aggregate amount of Cash Management Obligations that shall constitute “Obligations” hereunder shall not exceed $5,000,000 at any time. Notwithstanding the foregoing, (i) the obligations of Holdings or any of its Subsidiaries under any Secured Hedge Agreement and the Cash Management Obligations shall be secured and guaranteed pursuant to the Collateral Documents and the Guaranty only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (ii) any release of Collateral or Guarantors effected in the manner permitted by this Agreement and the other Loan Documents, shall not require the consent of the holders of obligations under Secured Hedge Agreements or the holders of the Cash Management Obligations.

Officer’s Certificate ” means, with respect to any Person, a certificate executed on behalf of such Person (a) if such Person is a partnership or limited liability company, by its chairman of the board (if an officer) or chief executive officer or by the chief financial officer of its general partner or managing member or other Person authorized to do so by its Organizational Documents, (b) if such Person is a corporation, on behalf of such corporation by its chairman of the board (if an officer) or chief executive officer or its chief financial officer or any vice president, and (c) if such Person is Holdings or any of its Subsidiaries, a Responsible Officer.

Organizational Authorizations ” means, with respect to any Person, resolutions of its Board of Directors, equity holders, general partners or members of such Person, and such other Persons, groups or committees (including managers and managing committees), if any, required by the Organizational Certificate or Organizational Documents of such Person to authorize or approve the taking of any action or the entering into of any transaction.

Organizational Certificate ” means, with respect to any Person, the certificate or articles of incorporation, partnership or limited liability company or any other similar or equivalent organizational, charter or constitutional certificate or document filed with the applicable Governmental Authority in the jurisdiction of its incorporation, organization or formation, which, if such Person is a partnership or limited liability company, shall include such certificates, articles or other certificates or documents in respect of each partner or member of such Person.

Organizational Documents ” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and, if applicable, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

Original Issue Discount ” has the meaning assigned to that term in Section 1273 of the Code.

Other Connection Taxes ” means, with respect to any Lender or Issuing Bank, Taxes imposed as a result of a present or former connection between such Lender or Issuing Bank, as applicable, and the jurisdiction imposing such Taxes (other than a connection arising from such Lender or Issuing Bank having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in any other transaction pursuant to, any Loan Document).

 

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Other Credit Extensions ” has the meaning assigned to that term in Section 2.1A(iii).

Other Taxes ” means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

PAPA ” means an arrangement, other than with an Affiliate of any Loan Party, which may be unsecured or secured by a Lien granted in conjunction with purchase contracts for the purchase of Real Estate and which provides for future payments due to the sellers of such Real Estate, which future payments may be made at the time of the sale of homes constructed on such Real Estate (or on a date related to the sale or failure to sell such homes) and which payments may be contingent on the sale price of such homes, which arrangement may include (a) adjustments to the land purchase price, (b) profit participations, (c) community marketing fees and community enhancement fees and (d) reimbursable costs paid by the land developer.

Participant ” has the meaning assigned to that term in Section 10.1D.

PBGC ” means the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA (or any successor thereto).

Pension Act ” means the Pension Protection Act of 2006, as amended.

Performance Letter of Credit ” means any letter of credit of any Co-Borrower or any Subsidiary of a Co-Borrower that is issued for the benefit of a municipality, other Governmental Authority, utility, water or sewer authority, or other similar entity for the purpose of assuring such beneficiary of the letter of credit of the proper and timely completion of construction work.

Permitted Acquisitions ” means any acquisition, by merger or otherwise, of the assets constituting a business, division or product line of any other Person or 100% of the issued and outstanding Capital Stock of such Person not then held by any Loan Party or constituting directors’ qualifying shares; provided that (a) no Default or Event of Default shall have occurred and be continuing or result therefrom, (b) such Person (if required by Section 6.7) shall have become a Subsidiary Guarantor and the provisions of Section 6.7 shall have been complied with to the satisfaction of the Administrative Agent and the Collateral Agent and (c) Holdings shall be in compliance with the requirements of Section 7.5 after giving effect to such acquisition.

Permitted Amendments ” means an amendment to this Agreement, effected in connection with a Loan Modification Offer pursuant to Section 2.9, providing for an extension of the Commitment Termination Date applicable to all or a portion of the Loans and/or the Commitments of the Accepting Lenders and, in connection therewith, (a) a change in the interest rates with respect to the Loans and/or Commitments of the Accepting Lenders, (b) a change in the fees payable to, or the inclusion of new fees to be payable to, the Accepting Lenders and/or (c) such other modifications to this Agreements and the other Loan Documents to take effect after the Commitment Termination Date then in effect as may be specified therein.

Permitted Cure Securities ” means equity securities of Holdings having no mandatory redemption, repurchase or similar requirements prior to 120 days after the latest maturity date for any of the Loans, and upon which all dividends or distributions (if any) shall be payable solely in additional shares of such equity security.

 

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Permitted Encumbrances ” means the following types of Liens:

(a) Liens for taxes, assessments or other governmental or quasi-governmental charges or claims that (i) are not yet overdue for a period of more than 30 days, (ii) are being contested in good faith by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP, if required, or (iii) solely encumber property abandoned or in the process of being abandoned;

(b) Liens in respect of property or assets of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, a Co-Borrower or any Subsidiary of Holdings imposed by law, such as landlord’s, carriers’, warehousemen’s, repairmen’s, construction contractors’ and mechanics’ Liens and other similar Liens, in each case so long as such Liens arise in the ordinary course of business and (i) do not individually or in the aggregate have a Material Adverse Effect or (ii) are with respect to amounts that are (x) not yet overdue for a period of more than 30 days or (y) are being contested in good faith by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP, if required;

(c) Liens arising from judgments or decrees for the payment of money in circumstances not constituting an Event of Default under Section 8.7;

(d) Liens incurred or pledges or deposits made in connection with workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure (or secure the bonds or other comparable instrument securing) the performance of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds, utility services, developer’s or others’ obligations to make on-site or off-site improvements and other similar obligations (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business but not including any Liens imposed under the Pension Benefits Act (Ontario) or any pension standards legislation of any other applicable jurisdiction;

(e) ground leases or other leases, subleases, licenses or sublicenses in respect of real property on which properties owned or leased by U.S. FinCo, a Co-Borrower or any Subsidiary of U.S. FinCo or a Co-Borrower are located;

(f) easements, rights-of-way, licenses, dedications, covenants, conditions, assessment district or similar Liens in connection with municipal or special district financing, agreements with adjoining landowners or state or local Government Authorities, restrictions (including zoning restrictions, ordinances and similar restrictions), reservations, recorded plats, subdivision maps, Development Agreements, recorded condominium or home owner association documents, defects, exceptions or irregularities in title, encroachments, protrusions, water course rights, rights of water and rights in the nature of easements for walkways, sidewalk, public ways, sewers, drains, gas, soil, steam and water mains or pipelines, electrical lights and power, telephone, television and cable conduits, poles, wires or cables granted to reserved or vested in any Governmental Authority or public or private utility and other similar charges or encumbrances, all of which in the aggregate do not interfere in any material respect with the business of U.S. FinCo, the Co-Borrowers and their Subsidiaries, and that were not incurred in connection with and do not secure any Indebtedness (other than in connection with municipal or special district financing), and any exceptions on the title policies issued in connection with any Mortgaged Property and any other lien insured over by such title policies;

 

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(g) any interest or title of a lessor, sublessor, licensor or sublicensor or secured by a lessor’s, sublessor’s, licensor’s or sublicensor’s interest under any lease, sublease, license or sublicense in the ordinary course of business;

(h) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

(i) Liens on goods or inventory the purchase, shipment or storage price of which is financed by a documentary letter of credit or bankers’ acceptance issued or created for the account of U.S. FinCo or a Co-Borrower or any Subsidiary of U.S. FinCo or a Co-Borrower; provided that such Lien secures only the obligations of U.S. FinCo, the Co-Borrowers or such Subsidiaries in respect of such letter of credit to the extent permitted under Section 7.1;

(j) leases or subleases, licenses or sublicenses granted to others not interfering in any material respect with the business of U.S. FinCo, the Co-Borrowers and their Subsidiaries, taken as a whole;

(k) Liens created in the ordinary course of business in favor of banks and other financial institutions over credit balances of any bank accounts of U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries held at such banks or financial institutions, as the case may be, to facilitate the operation of cash pooling and/or interest set-off arrangements in respect of such bank accounts in the ordinary course of business;

(l) Liens arising from precautionary UCC financing statement or similar filings made in respect of operating leases entered into by U.S. FinCo, a Co-Borrower or any Subsidiary of U.S. FinCo or a Co-Borrower;

(m) Liens for homeowner, condominium and similar association fees, assessments and other payments;

(n) rights of purchasers and borrowers with respect to security deposits, escrow funds and other amounts held by U.S. FinCo, a Co-Borrower or any Subsidiary of U.S. FinCo or a Co-Borrower;

(o) pledges, deposits and other Liens existing under, or required to be made in connection with, (i) earnest money obligations, escrows or similar purpose undertakings or indemnifications in connection with any purchase and sale agreement, (ii) Development Agreements or other contracts entered into with Governmental Authorities (or an entity sponsored by a Governmental Authority) in connection with the entitlement of real property or (iii) agreements for the funding of infrastructure, including in respect of the issuance of community facility district bonds, metro district bonds, subdivision improvement bonds and similar bonding requirements arising the ordinary course of a Real Estate Business;

(p) Liens on or leases of Model Home Units;

(q) assignments of insurance or condemnation proceeds provided to landlords (or their mortgagees) pursuant to the terms of any lease of property leased by U.S. FinCo, a Co-Borrower or any Subsidiary of U.S. FinCo or a Co-Borrower, in each case with respect to the property so leased, and customary Liens and rights reserved in any lease for rent or for compliance with the terms of such lease;

 

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(r) without limiting the scope of clause (f) above, minor encroachments by improvements located on property over adjacent lands and minor encroachments over the property by improvements of adjacent landowners, if existing on the date of the title searches conducted for purposes of Schedule 7.2;

(s) in connection with any specific Liens listed on Schedule 7.2, any postponement of the same to another Permitted Encumbrance which is registered on title;

(t) with respect to any real property of the Canadian Borrower or any of its Subsidiaries located in Ontario, any subsisting restrictions, exceptions, reservations, limitations, provisos and conditions (including royalties, reservation of mines, mineral rights and timber rights, access to navigable waters and similar rights) expressed in any original grants from the applicable Governmental Authority;

(u) with respect to any real property of the Canadian Borrower or any of its Subsidiaries located in Ontario, any and all encumbrances (including rights, privileges and claims in the nature of profit a prendre) in favor of aboriginal peoples, native peoples or First Nations that do not impair in any material respect the value of the development project subject thereto or the ability of the Loan Parties and the Restricted Subsidiaries to develop such properties or sell residential units or lots in such project in the manner presently contemplated by the applicable parties; and

(v) with respect to any real property of the Canadian Borrower or any of its Subsidiaries located in Ontario, the exceptions or qualifications to title found in Section 44(1) of the Land Titles Act (Ontario), save and except for the exceptions and qualifications in paragraphs 1, 2, 3, 4, 5, 8, 11 and 14.

Permitted Refinancing Security ” means an equity security of Holdings having (i) no mandatory redemption, repurchase or similar requirements prior to 120 days after the latest Commitment Termination Date (other than customary change of control or asset sale prepayment, redemption or offer to purchase events so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale or offer to purchase event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable, the termination of the Commitments and the termination of, or backstop on terms reasonably satisfactory to the Administrative Agent and each relevant Issuing Bank of, all outstanding Letters of Credit), (ii) no financial maintenance covenants and (iii) non-economic terms that are no more restrictive, taken as a whole, to Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and their Subsidiaries than the corresponding terms set forth in this Agreement, taken as a whole (as determined by Holdings in good faith).

Permitted Release Event ” has the meaning assigned to that term in Section 7.6.

Permitted Subordination Event ” has the meaning assigned to that term in Section 7.2.

Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, limited partnership, governmental authority or other entity.

 

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Plan ” means (a) any Multiemployer Plan or (b) any single employer plan, as defined in Section 4001(a)(15) of ERISA that is subject to ERISA and (i) is maintained for employees of Holdings, a Co-Borrower or any Subsidiary of Holdings or ERISA Affiliate or (ii) was so maintained and in respect of which Holdings, a Co-Borrower or any Subsidiary of Holdings or ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

Preferred Stock ” means any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.

Prime Rate ” means the rate of interest per annum announced from time to time by Credit Suisse AG as its prime commercial lending rate in effect at its principal office in New York City. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Credit Suisse AG or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.

Pro Forma Basis ” means, with respect to compliance with any test or covenant hereunder, compliance with such covenant or test after giving effect to the Transactions or any proposed acquisition, investment, distribution or other action which requires compliance on a pro forma basis (including pro forma adjustments arising out of events that are attributable to specific transactions, or which are projected by Holdings in good faith as a result of reasonably identifiable and factually supportable net cost savings or additional net costs, as the case may be, realizable during such period; provided that any such pro forma effect shall be without duplication for net cost savings or additional net costs actually realized during such period, which pro forma adjustment shall be certified by the chief financial officer of Holdings), using, for purposes of determining such compliance, the historical financial statements of all entities or assets so acquired or to be acquired and the consolidated financial statements of Holdings and its Subsidiaries which shall be reformulated as if the Transactions or such acquisition, investment, distribution or other action, and any acquisitions which have been consummated during the period, and any Indebtedness or other liabilities incurred in connection with any such acquisition, investment, distribution or other action had been consummated at the beginning of such period (and assuming that such Indebtedness bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the weighted average of the interest rates applicable to outstanding Loans during such period).

Pro Rata Share ” means (a) with respect to all payments, computations and other matters relating to the Commitments or the Revolving Loans (or any Class of Commitments or Revolving Loans, in the case of the allocation of borrowings of Revolving Loans pursuant to Section 2.1A(i), 2.1A(iii) or 2.9 (except as otherwise expressly provided in any such Section), payments of principal in respect of Commitments and Revolving Loans on any Commitment Termination Date pursuant to Section 2.1A(i), 2.1A(iii) or 2.9, any payment of interest in respect of Revolving Loans pursuant to Section 2.2, any payment of Facility Fees pursuant to Section 2.3A and any payment of Letter of Credit fees pursuant to Section 3.2) of any Revolving Loan Lender, or any Letter of Credit issued by any Issuing Bank or any participations purchased by any Lender therein or in any Swing Line Loans, the percentage obtained by dividing (i) the Revolving Loan Exposure (or the Revolving Loan Exposure with respect to such Class of Commitments or Revolving Loans, as applicable) of that Revolving Loan Lender by (ii) the aggregate Revolving Loan Exposure (or the aggregate Revolving Loan Exposure with respect to such Class of Commitments or Revolving Loans, as applicable) of all the Revolving Loan Lenders of such Class. The Pro Rata Share of each Lender on the Restatement Effective Date shall be set forth in the Register.

 

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PTO ” means the United States Patent and Trademark Office.

Qualified Additional Lender ” means any Lender and/or any other financial institution that would qualify as an Eligible Assignee, and, if providing an additional Commitment pursuant to Section 2.1A(iii) has been approved by the Administrative Agent if not already a Revolving Loan Lender hereunder at such time (such approval not to be unreasonably withheld or delayed).

Qualified Public Offering ” means the initial underwritten public offering of common Capital Stock of Holdings or any of Holdings’ direct or indirect parent companies, in each case, pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (other than a registration statement on Form S-8 or any successor form), substantially all the net proceeds of which are received by or contributed to Holdings and which proceeds are in an amount not less than $100,000,000.

Real Estate ” has the meaning assigned to that term in Section 6.1(viii).

Real Estate Business ” means homebuilding, housing construction, real estate (including masterplan) development or construction and the sale of homes, land and related real estate activities, including the provision of mortgage financing, realty brokerage, title insurance or any other business substantially related or reasonably incidental thereto.

Recalculation Date ” has the meaning assigned to that term in Section 6.1(iv).

Reference Lenders ” means (a) Credit Suisse AG and (b) another Lender determined by the Administrative Agent with the consent of Holdings, which consent shall not be unreasonably withheld or delayed.

refinance ” means to modify, refinance, replace, renew, refund, repay, restate, defer, substitute, supplement, reissue or extend (including pursuant to any defeasance or discharge mechanisms); and the term “refinances,” “refinanced” and “refinancing” as used for any purpose in this Agreement shall have correlative meanings.

Refinancing Indebtedness ” means Indebtedness incurred to refinance any Indebtedness of U.S. FinCo, any Co-Borrower or any of their respective Subsidiaries (or, in the case of Indebtedness under the Unsecured Facility Loan Documents or any Refinancing Indebtedness thereof not prohibited by the terms of this Agreement, Holdings or Canada Holdings) existing on the Effective Date (after giving effect to the Transactions) or incurred in compliance with this Agreement (including Indebtedness of any Loan Party that refinances Indebtedness of any other Loan Party and Indebtedness of any Restricted Subsidiary that is not a Loan Party that refinances Indebtedness of another Restricted Subsidiary that is not a Loan Party (in each case to the extent otherwise permitted by this Agreement)) including Indebtedness that refinances Refinancing Indebtedness.

Refinanced Unsecured Facility Indebtedness ” has the meaning assigned to that term in Section 7.1(ix).

Refunded Swing Line Loans ” has the meaning assigned to that term in Section 2.1A(ii).

Register ” has the meaning assigned to that term in Section 10.1C.

 

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Related Parties ” means, with respect to any Person, such Person’s Affiliates and the directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.

Release ” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials into the environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Materials), or into or out of any property, including the movement of any Hazardous Material through the air, soil, surface water, groundwater or property.

Release Arrangement ” has the meaning assigned to that term in Section 7.6.

Release Notice ” has the meaning assigned to that term in Section 7.6.

Reportable Event ” means an event described in Section 4043 of ERISA and the regulations thereunder.

Requisite Class Lenders ” means, at any time of determination for any Class of Loans or Commitments, Lenders having or holding more than 50% of the aggregate Revolving Loan Exposure with respect to such Class; provided that the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Requisite Class Lenders at any time.

Requisite Lenders ” means Lenders having or holding more than 50% of the aggregate Revolving Loan Exposure of all Lenders; provided that the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Requisite Lenders at any time.

Reserve Adjusted Eurodollar Rate ” means, with respect to each day during each Interest Period pertaining to a Eurodollar Rate Loan, a rate per annum determined for such day in accordance with the following formula:

 

  Eurodollar Base Rate  
1.00 - Eurocurrency Reserve Requirements    

Reset Date ” means (a) the date of each Notice of Borrowing for a Revolving Loan or Swing Line Loan, if after giving effect thereto any Canadian Dollar Letter of Credit or Canadian Loan would be outstanding on such date, (b) the last Business Day of each month, if any Canadian Dollar Letter of Credit or Canadian Loan is outstanding on such day, (c) the date of the making of any Canadian Loan or the issuance, extension, renewal or amendment of any Canadian Dollar Letter of Credit and (d) any other day selected by the Administrative Agent (including any day on which the Administrative Agent calculates Letter of Credit Usage) if any Canadian Loan or Canadian Dollar Letter of Credit is outstanding on such day.

Responsible Officer ” means the President, the Vice President, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, the Treasurer, the Assistant Treasurer, with respect to certain limited liability companies that do not have officers, any manager thereof, any other senior officer of Holdings or any other Loan Party designated as such in writing to the Administrative Agent by Holdings or such other Loan Party, as applicable, and, with respect to any document delivered on the Restatement Effective Date, the Secretary or the Assistant Secretary of any Loan Party. Any document delivered hereunder that is signed by an Responsible Officer shall be

 

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conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership and/or other action on the part of Holdings or any other Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person.

Restatement Effective Date ” means April 13, 2012.

Restricted Subsidiary ” means, unless otherwise specified herein, any Subsidiary of a Co-Borrower or U.S. FinCo other than an Unrestricted Subsidiary.

Revolving Loan Exposure ” means, with respect to any Revolving Loan Lender as of any date of determination (a) prior to the termination of the Commitments, that Lender’s Commitment and (b) after the termination of the Commitments, the sum of (i) the U.S. Dollar Equivalent of the aggregate outstanding principal amount of the Revolving Loans (or the relevant Class of Revolving Loans in connection with a calculation by Class under the definition of “Pro Rata Share”) of that Lender, plus (ii) in the event that Lender is an Issuing Bank, the aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (net of any participations purchased by other Lenders in such Letters of Credit), plus (iii) the U.S. Dollar Equivalent of the aggregate amount of all participations purchased by that Lender in any issued Letters of Credit or any Unpaid Drawings, plus (iv) the U.S. Dollar Equivalent of the aggregate amount of all participations purchased by that Lender in any outstanding Swing Line Loans, plus (v) in the case of the Swing Line Lender, the U.S. Dollar Equivalent of the sum of the aggregate outstanding principal amount of all Swing Line Loans (in each case net of any participations therein purchased by other Lenders).

Revolving Loan Lender ” means a Lender with a Commitment.

Revolving Loans ” means the Loans made by the Revolving Loan Lenders to any Borrower pursuant to Section 2.1A(i) or 2.1A(iii), if applicable.

Revolving Loan Yield ” means, at the time of the establishment of any additional Commitments pursuant to Section 2.1A(iii), the sum of (i) the Applicable Margin (as increased by the Facility Fee Rate applicable on such date) then in effect for Fixed Rate Revolving Loans under the Commitments (other than such additional Commitments), (ii) the amount that any “LIBOR floor” applicable to such Fixed Rate Revolving Loans on such date exceeds the Reserve Adjusted Eurodollar Rate for a one-month Interest Period on such date and (iii) one fourth of the Up-Front Fees paid in respect of the Commitments (other than such additional Commitments). If immediately prior to the establishment of any additional Commitments pursuant to Section 2.1A(iii) there shall exist more than one Class of Commitments hereunder, the Revolving Loan Yield shall be determined separately for each such Class.

Revolving Notes ” means (a) the promissory notes of a Borrower issued pursuant to Section 2.1D(i) and (b) any promissory notes issued by a Borrower in connection with assignments of the Commitment and Revolving Loans of any Revolving Loan Lender, in each case substantially in the form of Exhibit IV-A annexed hereto, as they may be amended, restated, supplemented or otherwise modified from time to time.

S&P ” means Standard & Poor’s Ratings Service, a division of the McGraw-Hill Companies, Inc.

 

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Sale Leaseback ” means any transaction or series of related transactions pursuant to which U.S. FinCo, a Co-Borrower or any of the Restricted Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed of.

SEC ” means the U.S. Securities and Exchange Commission or any successor thereto.

Section 6.1 Financials ” means the financial statements delivered, or required to be delivered, pursuant to Section 6.1(i) or (ii) together with the accompanying officer’s certificate delivered, or required to be delivered, pursuant to Section 6.1(iii).

Secured Hedge Agreement ” means any Hedge Agreement that is entered into by and between any Loan Party or any Restricted Subsidiary and any Hedge Bank.

Secured Parties ” means, collectively, (a) the Lenders, (b) each Issuing Bank, (c) the Swing Line Lender, (d) the Administrative Agent, (e) the Collateral Agent, (f) each Hedge Bank, (g) each Cash Management Bank, (h) the beneficiaries of each indemnification obligation undertaken by any Loan Party under the Loan Documents and (i) any successors, indorsees, transferees and assigns of any of the foregoing.

Securities ” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

Securities Act ” means the Securities Act of 1933, as amended from time to time, the rules and regulations promulgated thereunder, and any successor statute.

Security Agreement ” means the Security Agreement dated as of the Effective Date, as amended and restated as of the Restatement Effective Date, and entered into by and among U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the U.S. Borrower, the Subsidiary Guarantors and the Collateral Agent, substantially in the form of Exhibit VI annexed hereto, as such Security Agreement may thereafter be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

Senior Unsecured Notes ” shall mean $550,000,000 aggregate principal amount of 7.75% senior notes due 2020 issued under the Indenture, dated as of April 13, 2012, among the U.S. Borrower, Canada Holdings and the trustee named therein from time to time.

Solvent ” means, with respect to any Person, that as of the date of determination both (a) (i) the then fair saleable value of the property of such Person, sold as a going concern, is (A) greater than the total amount of liabilities (including contingent liabilities but excluding amounts payable under intercompany promissory notes) of such Person and (B) not less than the amount that will be required to pay the probable liabilities on such Person’s then existing debts as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to

 

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such Person, (ii) such Person’s capital is not unreasonably small in relation to its business or any contemplated or undertaken transaction and (iii) such Person does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due; (b) such Person is “solvent” within the meaning given that term and similar terms under Applicable Laws relating to fraudulent transfers and conveyances; or (c) in the case of any Person existing under the laws of Canada or any of its Provinces or territories, such Person is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada). For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

SPE ” means (i) an entity formed for the purposes of holding, acquiring, constructing, developing or improving assets whose acquisition, construction, development or improvement will be financed by Non-Recourse Indebtedness or equity Investments in such entity or (ii) an entity acquired by U.S. FinCo, a Co-Borrower or any of their respective Restricted Subsidiaries whose outstanding Indebtedness is all Non-Recourse Indebtedness.

Specified Subsidiary ” means, at any date of determination, (a) any Subsidiary whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal period for which Section 6.1 Financials have been delivered were equal to or greater than 10% of the Consolidated Total Assets of Holdings and its Subsidiaries at such date, (b) any Subsidiary whose gross revenues for such Test Period were equal to or greater than 10% of the consolidated gross revenues of Holdings and its Subsidiaries for such period, in each case determined in accordance with GAAP or (c) each other Subsidiary that, when such Subsidiary’s total assets and gross revenues are aggregated with each other Subsidiary that is the subject of an Event of Default described in Section 8.5 would, constitute a “Specified Subsidiary” under clause (a) or (b) above.

Sponsors ” means JH Investments Inc., Oaktree Capital Management, L.P. and TPG Capital, L.P. and their respective Affiliates and all investment funds managed by any of the foregoing (excluding, for the avoidance of doubt, their respective portfolio companies or other operating companies affiliated with JH Investments, Inc., Oaktree Capital Management, L.P. or TPG Capital, L.P.).

Stated Amount ” means, with respect to any Letter of Credit, the maximum amount from time to time available to be drawn thereunder, determined without regard to whether any conditions to drawing could then be met.

Stock Purchase Agreement ” means the Stock Purchase Agreement dated as of March 30, 2011, among Holdings, US Acquisitionco, 2279154 Ontario, Inc., Taylor Wimpey plc, Wimpey Overseas Holdings Limited and Taylor Wimpey 2007 Limited.

Subordination Arrangement ” has the meaning assigned to that term in Section 7.2.

Subordination Notice ” has the meaning assigned to that term in Section 7.2.

Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors,

 

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managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof.

Subsidiary Guarantor ” means each wholly-owned Domestic Subsidiary of U.S. FinCo or the U.S. Borrower (other than an Unrestricted Subsidiary or an Excluded Subsidiary) on the Restatement Effective Date, and each wholly-owned Domestic Subsidiary of U.S. FinCo or the U.S. Borrower (other than an Unrestricted Subsidiary or an Excluded Subsidiary) that becomes a party to the Guaranty at any time after the Restatement Effective Date pursuant to Section 6.7.

Successor Borrower ” has the meaning assigned to that term in Section 7.6A(i).

Supplemental Collateral Agent ” and “ Supplemental Collateral Agents ” shall have the meaning assigned to these terms in Section 9.1B.

Swing Line Lender ” means Credit Suisse AG, acting through such of its Affiliates or branches as it may designate, or any Person serving as a successor Administrative Agent hereunder, in its capacity as Swing Line Lender hereunder.

Swing Line Loan Commitment ” means the commitment of the Swing Line Lender to make Swing Line Loans to the Borrowers pursuant to Section 2.1A(ii). The aggregate principal amount of the Swing Line Commitment on the Effective Date is $5,000,000.

Swing Line Loans ” means the Loans made by the Swing Line Lender pursuant to Section 2.1A(ii).

Swing Line Note ” means (a) the promissory note of a Borrower issued pursuant to Section 2.1D(ii) and (b) any promissory note issued by a Borrower to any successor Swing Line Lender pursuant to the last sentence of Section 9.6B, in each case substantially in the form of Exhibit IV-B annexed hereto, as it may be amended, restated, supplemented or otherwise modified from time to time in accordance with this Agreement.

Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges (including Canada Pension Plan and provincial pension plan contributions, employment insurance and workers’ compensation premiums) imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto and whether disputed or not.

Test Period ” means, for any determination under this Agreement, the four consecutive fiscal quarters of Holdings then last ended.

Total Utilization of Commitments ” means, as at any date of determination, the sum of (a) the U.S. Revolving Exposure plus (b) the Canadian Revolving Exposure.

Trademark Security Agreement ” means the Trademark Security Agreement dated as of the Effective Date by the U.S. Borrower and its Subsidiaries party thereto in favor of the Collateral Agent, annexed as Exhibit VIII hereto, as such Trademark Security Agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

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Transaction Costs ” means the fees, costs and expenses payable by Holdings and its Subsidiaries in connection with the Transactions, including amounts payable to the Agents and the Lenders.

Transactions ” means (a) the execution, delivery and performance by each Loan Party of the Loan Documents (as defined in the Existing Credit Agreement) to which it is a party, (b) the Acquisition and the other transactions contemplated by the Stock Purchase Agreement, (c) the payment of the Transaction Costs and (d) the execution, delivery and performance by each Loan Party of the Unsecured Facility Loan Documents to which it was a party, the issuance of the Indebtedness contemplated thereunder and the use of the proceeds thereof.

Treasury Regulations ” means the United States Treasury regulations promulgated under the Code, as amended to the Effective Date and from time to time thereafter and any successor regulations.

Type ” means, with respect to a Loan, its character as a Base Rate Loan, a Canadian Prime Rate Loan, a Eurodollar Rate Loan or a CDOR Rate Loan.

UCC ” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.

Unfunded Current Liability ” of any Plan or Foreign Plan means the amount, if any, by which the present value of the accrued benefits under the plan as of the close of its most recent plan year, determined in accordance with FASB Accounting Standards Codification 715 as in effect on the Restatement Effective Date, based upon the actuarial assumptions that would be used by the plan’s actuary in a termination of the plan, exceeds the Fair Market Value of the assets allocable thereto.

Unpaid Drawings ” means, as of any date of determination, the sum of, without duplication, (a) the amount set forth in clause (b) of the definition of Canadian LC Exposure and (b) the amount set forth in clause (b) of the definition of U.S. LC Exposure.

Unrestricted Subsidiary ” means any Subsidiary of U.S. FinCo or a Co-Borrower that is designated as an Unrestricted Subsidiary by a Co-Borrower or U.S. FinCo, as applicable, pursuant to Section 6.13 subsequent to the Effective Date.

Unsecured Facility Credit Agreement ” means the Loan Agreement, dated as of the Effective Date, among Holdings, U.S. Holdings, Canada Holdings, as a co-borrower, Canada Intermediate Holdings, US Acquisitionco, as a co-borrower, TPG Partners VI, L.P. and Oaktree Capital Management, L.P. and certain of Oaktree Capital Management, L.P.’s Affiliates, as lenders, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the provisions therein and in accordance with the provisions of Section 7.9B hereof.

Unsecured Facility Loan Documents ” means the Unsecured Facility Credit Agreement and the other documents, instruments and agreements entered into or delivered by any Loan Party in connection therewith.

 

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Unused Availability ” means, as of any date of determination, (a) the lesser of (i) the aggregate Commitments at such time and (ii) the Availability Amount at such time minus (b) the Total Utilization of Commitments at such time.

Unused Revolving Commitment ” means, as of any date of determination, the amount by which the aggregate Commitments exceed the Total Utilization of Commitments.

Up-Front Fees ” means the amount of any fees or discounts received by Lenders in connection with the making of loans or extensions of credit, expressed as a percentage of such loan or extension of credit.

US Acquisitionco ” means Aylesbury Acquisition, Inc., a Delaware corporation that was merged with and into the U.S. Borrower upon the consummation of the Acquisition.

U.S. Holdings ” has the meaning assigned to that term in the preamble to this Agreement.

USA PATRIOT Act ” means the USA PATRIOT Improvement and Reauthorization Act, Title III of Pub. L. 109-177 (signed into law March 9, 2006, as amended from time to time).

U.S. Borrower ” has the meaning assigned to that term in the preamble to this Agreement.

U.S. Dollar Equivalent ” means, on any date of determination, (a) with respect to any amount in U.S. Dollars, such amount and (b) with respect to any amount in Canadian Dollars, the equivalent in U.S. Dollars of such amount, determined by the Administrative Agent pursuant to Section 1.3 using the Exchange Rate then in effect.

U.S. Dollar Letter of Credit ” means any Letter of Credit denominated in U.S. Dollars.

U.S. Dollars ”, “ Dollars ”, “ dollars ” or “ $ ” refers to lawful money of the United States of America.

U.S. FinCo ” has the meaning assigned to that term in the preamble to this Agreement.

U.S. LC Disbursement ” means a payment made by an Issuing Bank pursuant to a U.S. Dollar Letter of Credit.

U.S. LC Exposure ” means, at any time, the sum of (a) the Stated Amount of all U.S. Dollar Letters of Credit that remains available for drawing at such time and (b) the aggregate amount of all U.S. LC Disbursements that have not yet been reimbursed at such time. The U.S. LC Exposure of any Lender at any time shall be its Pro Rata Share of the total U.S. LC Exposure at such time.

U.S. Loan ” means any Loan denominated in U.S. Dollars.

U.S. Person ” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

U.S. Revolving Exposure ” means, with respect to the Lenders, at any time, the sum of (a) the aggregate principal amount of the Lenders’ U.S. Revolving Loans at such time, (b) the Lenders’ U.S. LC Exposure at such time and (c) the Lenders’ U.S. Swing Line Exposure at such time. The U.S. Revolving Exposure of any Lender at any time shall be such Lender’s Pro Rata Share of the aggregate U.S. Revolving Exposure at such time.

 

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U.S. Swing Line Exposure ” means, at any time, the aggregate principal amount of all U.S. Swing Line Loans outstanding at such time. The U.S. Swing Line Exposure of any Revolving Lender at any time shall be its Pro Rata Share of the total U.S. Swing Line Exposure at such time.

Voting Stock ” means, with respect to any Person, shares of such Person’s Capital Stock having the right to vote for the election of directors of such Person under ordinary circumstances.

Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

Withholding Agent ” means the Co-Borrowers and the Administrative Agent.

Yield Differential ” has the meaning assigned to that term in Section 2.1A(iii).

 

1.2 Defined Terms; Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement.

A. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections, Exhibits and Schedules shall be construed to refer to Sections of, and Exhibits and Schedules to, this Agreement (unless expressly referring to another agreement) and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all Documents, General Intangibles, Goods, Insurance, Intellectual Property, Investment Related Property, Letter of Credit Rights, Money and Deposit Accounts, Receivables, Receivable Records, Commercial Tort Claims, choses in action and all other personal property of any kind and all Collateral Records, Collateral Support and Supporting Obligations relating to the foregoing, and Proceeds therefrom (for purposes of this Section, as each such term is defined in the Security Agreement).

B. Except as otherwise expressly provided in this Agreement, (a) all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP and (b) financial statements and other information required to be delivered by Holdings to the Lenders pursuant to clauses (i), (ii), (iv) and (vii) of Section 6.1 shall be prepared in accordance with GAAP

 

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(except, with respect to interim financial statements, for the absence of normal year-end audit adjustments and explanatory footnotes) as in effect at the time of such preparation. Calculations in connection with the definitions, covenants and other provisions of this Agreement shall utilize accounting principles and policies in conformity with those used to prepare the Historical Financial Statements; provided that, should such accounting principles and policies change and either Holdings or the Requisite Lenders shall so request, the Administrative Agent and Holdings shall negotiate in good faith to amend such provision to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Requisite Lenders); provided , further, that, until so amended, such provision shall continue to be interpreted in accordance with GAAP prior to such change therein regardless of whether any such request is given before or after such change in GAAP or in the application thereof.

 

1.3 Exchange Rates.

On each Reset Date, the Administrative Agent shall (i) determine the relevant Exchange Rate as of such Reset Date and (ii) give notice thereof to the Lenders and the U.S. Borrower. The Exchange Rate so determined shall become effective on the relevant Reset Date, shall remain effective until the next succeeding Reset Date, and shall for all purposes of this Agreement (other than Sections 3.1B(iii), 3.1C, 3.2, 3.3B, 3.3C and 10.24 or any other provision hereof expressly requiring the use of an Exchange Rate as of a specified date) be the Exchange Rate employed in converting amounts between U.S. Dollars and Canadian Dollars.

SECTION 2.

AMOUNTS AND TERMS OF COMMITMENTS AND LOANS

 

2.1 Commitments; Loans.

A. (i) Each Revolving Loan Lender severally agrees, subject to the limitations set forth below with respect to the maximum amount of Revolving Loans permitted to be outstanding from time to time, to lend to the Borrowers from time to time in U.S. Dollars and/or Canadian Dollars during the period on and from the Effective Date to but excluding the Commitment Termination Date an aggregate amount not exceeding its Pro Rata Share of the aggregate amount of the Commitments, to be used for the purposes identified in Section 2.5B. The aggregate original amount of the Commitments is $75,000,000. Subject to Section 2.9, each Revolving Loan Lender’s Commitment (other than Other Credit Extensions or any Commitments amended by Permitted Amendments pursuant to a Loan Modification Offer) shall expire on the Commitment Termination Date and all Revolving Loans (other than Other Credit Extensions or any Loans amended by Permitted Amendments pursuant to a Loan Modification Offer) and all other amounts owed hereunder with respect to the Revolving Loans and the Commitments (other than Other Credit Extensions or any Commitments or Loans amended by Permitted Amendments pursuant to a Loan Modification Offer) shall be paid in full no later than that date. Amounts borrowed under this Section 2.1A(i) may be repaid and reborrowed, subject to the limitations and conditions set forth herein, up to but excluding the Commitment Termination Date.

Notwithstanding anything contained herein to the contrary, in no event shall (i) the Total Utilization of Commitments at any time exceed the lesser of (a) the Commitments then in effect and (b) the Availability Amount then in effect or (ii) the aggregate Canadian Revolving Exposure at any time exceed 105% of the Canadian Sublimit then in effect.

 

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(ii) Swing Line Loans. Subject to the terms and conditions hereof, the Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum aggregate amount of all Swing Line Loans outstanding from time to time, to make a portion of the Commitments available to the Borrowers from time to time during the period after the Effective Date to but excluding the Commitment Termination Date by making Base Rate Loans or Canadian Prime Rate Loans as Swing Line Loans in U.S. Dollars and/or Canadian Dollars, respectively, to the Borrowers in an aggregate amount not to exceed the amount of the Swing Line Loan Commitment, to be used for the purposes identified in Section 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with the sum of the Swing Line Lender’s outstanding Revolving Loans and the Swing Line Lender’s Pro Rata Share of the Letter of Credit Usage then in effect, may exceed the Swing Line Lender’s Commitment. The original amount of the Swing Line Loan Commitment is $5,000,000; provided that the amount of the Swing Line Loan Commitment is subject to reduction as provided in clause (c) of the next paragraph. The Swing Line Loan Commitment shall expire on the Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date. Amounts borrowed under this Section 2.1A(ii) may be repaid and reborrowed, subject to the limitations and conditions set forth herein, to but excluding the Commitment Termination Date.

Notwithstanding anything contained herein to the contrary, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the following limitations:

(a) in no event shall the Total Utilization of Commitments at any time exceed the lesser of (x) the Commitments then in effect and (y) the Availability Amount then in effect;

(b) in no event shall the aggregate Canadian Revolving Exposure at any time exceed 105% of the Canadian Sublimit then in effect;

(c) any reduction of the Commitments made pursuant to Section 2.4A which reduces the aggregate Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment such that the amount thereof equals the amount of the Commitments, as so reduced, without any further action on the part of any Borrower, the Administrative Agent or the Swing Line Lender; and

(d) the Swing Line Lender shall have no obligation to make any Swing Line Loans during any period when a Lender Default exists, unless the Swing Line Lender has entered into arrangements reasonably satisfactory to it and the Borrowers to eliminate the Swing Line Lender’s risk with respect to any Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Revolving Loans that may be required to be made to refund the applicable Swing Line Loan as contemplated by the immediately following paragraph.

With respect to any Swing Line Loans which have not been voluntarily prepaid by the Borrowers pursuant to Section 2.4A(i), the Swing Line Lender may, at any time in its sole and absolute discretion, deliver to the Administrative Agent (with a copy to the Borrowers),

 

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no later than 1:00 p.m. (New York time) at least one Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrowers) requesting the Revolving Loan Lenders to make Revolving Loans in U.S. Dollars and/or Canadian Dollars, as applicable, that are Base Rate Loans and/or Canadian Prime Rate Loans, respectively, to the Borrowers on such Funding Date in an amount equal to the amount of such Swing Line Loans (the “ Refunded Swing Line Loans ”) outstanding on the date such notice is given which the Swing Line Lender requests the Revolving Loan Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by the Revolving Loan Lenders other than the Swing Line Lender shall be immediately delivered by the Administrative Agent to the Swing Line Lender (and not to the Borrowers) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, the Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by the Swing Line Lender to the Borrowers, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due as Swing Line Loans but shall instead constitute part of the Swing Line Lender’s outstanding Revolving Loans to the Borrowers. The Borrowers hereby authorize the Administrative Agent and the Swing Line Lender to charge their accounts with the Administrative Agent and the Swing Line Lender (up to the amount available in each such account) in order to immediately pay the Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by such Lenders, including the Revolving Loan deemed to be made by the Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. If any portion of any such amount paid (or deemed to be paid) to the Swing Line Lender should be recovered by or on behalf of a Borrower from the Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Revolving Loan Lenders in the manner contemplated by Section 10.4.

If for any reason Revolving Loans are not made pursuant to this Section 2.1A(ii) in an amount sufficient to repay any amounts owed to the Swing Line Lender in respect of any outstanding Swing Line Loans on or before the third Business Day after demand for payment thereof by the Swing Line Lender, each Revolving Loan Lender shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share of the applicable unpaid amount together with accrued interest thereon. Upon one Business Day’s notice from the Swing Line Lender, each such Revolving Loan Lender shall deliver to the Swing Line Lender an amount in the applicable currency and equal to its participation in the applicable unpaid amount in same day funds at the office of the Swing Line Lender located at the Funding and Payment Office. In order to evidence such participation each such Lender agrees to enter into a participation agreement at the request of the Swing Line Lender in form and substance satisfactory to the Swing Line Lender; provided , however , that the failure of the Swing Line Lender to make such a request shall not affect the rights or obligations of the Swing Line Lender or any other Lender hereunder. In the event any such Lender fails to make available to the Swing Line Lender the amount of such Lender’s participation as provided in this paragraph, the Swing Line Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon at the rate customarily used by the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the Base Rate or the Canadian Prime Rate, as applicable.

 

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Notwithstanding anything contained herein to the contrary, (i) each such Revolving Loan Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each such Revolving Loan Lender’s obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, any Borrower or any other Person for any reason whatsoever, (b) the occurrence or continuation of a Default or Event of Default, (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Holdings, any Borrower or any of their Subsidiaries, (d) any breach of this Agreement or any other Loan Document by any party thereto or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

(iii) Additional Commitments. The Co-Borrowers may from time to time after the Effective Date, by notice to the Administrative Agent, request that, on the terms and subject to the conditions contained in this Agreement, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that (i) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such additional Commitments, (ii) the loans under such additional Commitments shall rank pari passu with the Revolving Loans to be made pursuant to Section 2.1A(i), (iii) the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Revolving Loans to be made thereunder, to the extent not consistent with the Commitments and the Revolving Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent and (vi) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(iii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(iii) exceeds the Revolving Loan Yield at such time being referred to herein as the “ Yield Differential ”), then the “LIBOR floor” and/or the Applicable Margin applicable to the Revolving Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to the additional Commitments, the “LIBOR floor” applicable to the Revolving Loans shall be increased (or, in the event there is no “LIBOR floor” applicable to the Revolving Loans at such time, a “LIBOR floor” shall be added) to an amount not to exceed the “LIBOR floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Revolving Loans. Nothing contained in this Section 2.1A(iii) or otherwise in this Agreement is intended to commit any Lender or any Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Revolving Loans

 

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and/or participations incurred in connection with Letters of Credit and Swing Line Loans so as to cause the amount of such Revolving Loans and/or participations in connection with Letters of Credit and Swing Line Loans held by each Revolving Loan Lender to conform to the respective percentages of the applicable Commitments of the Revolving Loan Lenders as so adjusted and (b) the Co-Borrowers shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request.

If any new Commitments incurred pursuant to this Section 2.1A(iii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “ Other Credit Extensions ”), all such terms shall be as set forth in a separate assumption agreement among Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Borrowers, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrowers incur new Commitments under this Section 2.1A(iii), regardless of whether such Commitments are Other Credit Extensions, the Borrowers shall, after such time, (x) incur and repay Revolving Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrowers may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(iii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Rate Loans, Canadian Prime Rate Loans, CDOR Rate Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(iii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit and Swing Line Loans between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence).

B. Borrowing Mechanics. Revolving Loans (including any such Loans made as Eurodollar Rate Loans or CDOR Rate Loans with a particular Interest Period) made on any Funding Date (other than Revolving Loans made pursuant to a request by the Swing Line Lender pursuant to Section 2.1A(ii) for the purpose of repaying any Refunded Swing Line Loans and Revolving Loans made pursuant to Section 3.3B for the purpose of reimbursing the applicable Issuing Bank for the amount of a drawing or payment under a Letter of Credit issued by it) shall be in an aggregate minimum amount of the Borrowing Minimum and integral multiples of the Borrowing Multiple in excess of that amount. Swing Line Loans made on any Funding Date shall be in minimum multiples of $100,000 or C$100,000, as the case may be. The Borrowers shall deliver to the Administrative Agent a Notice of Borrowing no later than 12:00 p.m. (New York time), at least one Business Day in advance of the proposed Funding Date; provided that, in the case of any such Loan requested as a Fixed Rate Loan, the Borrowers shall deliver such Notice of Borrowing no later than 12:00 p.m. (New York time), at least three Business Days in advance of the proposed Funding Date. Whenever the Borrowers desire that the Swing Line Lender make a Swing Line Loan, they shall deliver to the

 

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Administrative Agent a Notice of Borrowing no later than 12:00 p.m. (New York time) on the proposed Funding Date. The Notice of Borrowing shall specify (i) the proposed Funding Date (which shall be a Business Day), (ii) whether such Loans are to be U.S. Loans or Canadian Loans, (iii) the amount and Type of Loans requested, (iv) in the case of Swing Line Loans, that such Loans shall be Base Rate Loans or Canadian Prime Rate Loans, as the case may be, (v) in the case of any Revolving Loans, other than Swing Line Loans, whether such Revolving Loans shall be Base Rate Loans, Eurodollar Rate Loans, CDOR Rate Loans or Canadian Prime Rate Loans, (vi) in the case of any Loans requested to be made as Eurodollar Rate Loans or CDOR Rate Loans, the initial Interest Period requested, and (vii) remittance instructions applicable for the Loans requested. Revolving Loans may be continued as or converted into Base Rate Loans, Eurodollar Rate Loans, CDOR Rate Loans or Canadian Prime Rate Loans in the manner provided in Section 2.2D.

In lieu of delivering the above-described Notices of Borrowing, the Borrowers may give the Administrative Agent telephonic notice by the required time of any proposed borrowing under this Section 2.1B; provided that such notice shall be promptly confirmed in writing by delivery of a Notice of Borrowing to the Administrative Agent on or before the applicable Funding Date. Neither the Administrative Agent nor any Lender shall incur any liability to any Borrower in acting upon any telephonic notice referred to above that the Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized to borrow on behalf of the Borrowers or for otherwise acting in good faith under this Section 2.1B, and upon funding of Loans by the Lenders in accordance with this Agreement pursuant to any such telephonic notice, the Borrowers shall have effected Loans hereunder.

The Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying upon, any Notice of Borrowing, Notice of Conversion/Continuation or similar notice believed by the Administrative Agent to be genuine. The Administrative Agent may assume that each Person executing and delivering such a notice was duly authorized, unless the responsible individual acting thereon for the Administrative Agent has actual knowledge to the contrary.

The Borrowers shall notify the Administrative Agent prior to the funding of any Revolving Loans in the event that any of the matters to which the Borrowers are required to certify in the applicable Notice of Borrowing are no longer true and correct as of the applicable Funding Date, and the acceptance by the Borrowers of the proceeds of any Revolving Loans shall constitute a re-certification by the Borrowers, as of the applicable Funding Date, as to the matters to which the Borrowers are required to certify in the applicable Notice of Borrowing.

Except as otherwise provided in Sections 2.6B, 2.6C, 2.6D and 2.6G, a Notice of Borrowing for any Loan (or telephonic notice in lieu thereof) shall be irrevocable and the Borrowers shall be bound to make a borrowing in accordance therewith.

C. Disbursement of Funds. All Revolving Loans and all participations purchased under this Agreement shall be made by the Revolving Loan Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender to make the particular type of Loan requested be increased or decreased as a result of a default by any other Lender in that other Lender’s obligation to make a Loan requested hereunder.

 

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Promptly after receipt by the Administrative Agent of a Notice of Borrowing with respect to a Revolving Loan pursuant to Section 2.1B (or telephonic notice in lieu thereof), the Administrative Agent shall notify each Lender or the Swing Line Lender, as the case may be, of the proposed borrowing and of the amount of such Lender’s Pro Rata Share of the applicable Revolving Loans. Each Lender shall make the amount of its Revolving Loan available to the Administrative Agent in the applicable currency not later than 12:00 p.m. (New York time) on the applicable Funding Date in same-day funds at the Funding and Payment Office. The Swing Line Lender shall make the amount of its Swing Line Loan available to the Borrowers in the applicable currency not later than 3:00 p.m. (New York time) on the applicable Funding Date in same-day funds, at the applicable Funding and Payment Office, except as provided in Section 2.1A(ii) or Section 3.3B with respect to Revolving Loans used to repay Refunded Swing Line Loans or to reimburse the applicable Issuing Bank for the amount of an Unpaid Drawing. Upon satisfaction or waiver of the conditions precedent specified in Section 4.2, the Administrative Agent shall make the proceeds of such Loans in the applicable currency available to the Borrowers on the applicable Funding Date by causing an amount of same-day funds equal to the proceeds of all such Loans received by the Administrative Agent from the Lenders, to be credited to the account of the Borrowers at the Funding and Payment Office.

Unless the Administrative Agent shall have received notice from a Lender prior to the Funding Date for any Loans that such Lender will not make available to the Administrative Agent the amount of such Lender’s Loan requested on such Funding Date, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.1A and may, in reliance upon such assumption and in the Administrative Agent’s sole discretion, make available to the Borrowers a corresponding amount on such Funding Date. In such event, if a Lender has not in fact made its share of the applicable Loan available to the Administrative Agent on the Funding Date, then the applicable Lender and the Borrowers severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrowers to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, for the first three (3) days, at a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and, thereafter, the greater of (x) in the case of U.S. Loans, the Base Rate, and in the case of Canadian Loans, the Canadian Prime Rate, and (y) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by a Borrower, the interest rate applicable to Base Rate Loans or Canadian Prime Rate Loans, as the case may be, of the applicable Class. If a Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrowers the amount of such interest paid by the Borrowers for such period. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such borrowing. Nothing in this paragraph shall relieve any Lender of its obligation to fulfill its commitments hereunder and Borrowers shall be without prejudice to any claim any Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

Subject to Section 3.3B, unless the Administrative Agent shall have received notice from the Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders and the applicable Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or such Issuing Bank, as the case may be, the amount due. In such event, if the Borrowers have not in

 

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fact made such payment, then each of the Lenders or such Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, for the first three days, at a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and, thereafter, at the greater of (i) in the case of U.S. Loans, the Base Rate, and in the case of Canadian Loans, the Canadian Prime Rate, and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

D. Notes. Each of the Co-Borrowers shall execute and deliver on the Effective Date to each Lender requesting the same (or to the Administrative Agent for such Lender) (i) a Revolving Note substantially in the form of Exhibit IV-A annexed hereto to evidence that Lender’s Revolving Loans, in the principal amount of that Lender’s Commitment and (ii) a Swing Line Note in the form of Exhibit IV-B annexed hereto to evidence the Swing Line Lender’s Swing Line Loans, in the principal amount of the Swing Line Loan Commitment. Any Lender not receiving a Note may request at any time that the Borrowers issue it such Note on the terms set forth herein, and each of the Borrowers agree to issue such Note promptly upon the request of a Lender. The Notes and the Obligations evidenced thereby shall be governed by, subject to and benefit from all of the terms and conditions of this Agreement and the other Loan Documents and shall be secured by the Collateral.

 

2.2 Interest on the Loans.

A. Rate of Interest. Subject to the provisions of Sections 2.2E, 2.6 and 2.7, each Loan shall bear interest on the unpaid principal amount thereof from the date made to maturity (whether by acceleration or otherwise) at a rate determined by reference to the Base Rate, the Canadian Prime Rate, the CDOR Rate or the Reserve Adjusted Eurodollar Rate, as the case may be. Subject to the provisions of Sections 2.2E and 2.7, each Swing Line Loan shall bear interest on the unpaid principal amount thereof from the date made to maturity (whether by acceleration or otherwise) at a rate determined by reference to (i) in the case of Swing Line Loans denominated in U.S. Dollars, the Base Rate, and (ii) in the case of Swing Line Loans denominated in Canadian Dollars, the Canadian Prime Rate. The applicable basis for determining the rate of interest with respect to any Loan shall be selected by the Borrowers initially at the time a Notice of Borrowing is given with respect to such Loan pursuant to Section 2.1B. The basis for determining the interest rate with respect to any Loan may be changed from time to time pursuant to Section 2.2D. If on any day any Loan is outstanding with respect to which notice has not been delivered to the Administrative Agent in accordance with the terms of this Agreement specifying the applicable basis for determining the rate of interest, then for that day that Loan shall bear interest determined by reference to the Base Rate in the case of U.S. Loans and by reference to the Canadian Prime Rate in the case of Canadian Loans. Subject to the provisions of Sections 2.2E, 2.6 and 2.7, the Loans shall bear interest through maturity as follows:

(a) if a Base Rate Loan, then at the sum of the Base Rate plus the Applicable Margin;

(b) if a Canadian Prime Rate Loan, then at the sum of the Canadian Prime Rate plus the Applicable Margin;

(c) if a Eurodollar Rate Loan, then at the sum of the Reserve Adjusted Eurodollar Rate for the relevant Interest Period plus the Applicable Margin; or

(d) if a CDOR Rate Loan, then at the sum of the CDOR Rate plus the Applicable Margin.

 

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B. Interest Periods. In connection with each Fixed Rate Loan, the Borrowers may, pursuant to the applicable Notice of Borrowing or Notice of Conversion/Continuation, as the case may be, select an interest period (each an “ Interest Period ”) to be applicable to such Loan, which Interest Period shall (except as provided in Section 2.1B) be, at the Borrowers’ option, (i) in the case of U.S. Loans, one-, two-, three- or six-month, or, if agreed to by all of the Lenders, nine- or twelve-month or shorter than one-month, period and (ii) in the case of Canadian Loans, 30 days, 60 days, 90 days or 180 days; provided that:

(i) in the case of Eurodollar Rate Loans,

(A) the initial Interest Period for any Eurodollar Rate Loan shall commence on the Funding Date in respect of such Loan, in the case of a Loan initially made as a Eurodollar Rate Loan, or on the date specified in the applicable Notice of Conversion/Continuation, in the case of a Loan converted to a Eurodollar Rate Loan;

(B) in the case of immediately successive Interest Periods applicable to a Eurodollar Rate Loan continued as such pursuant to a Notice of Conversion/Continuation, each successive Interest Period shall commence on the day on which the next preceding Interest Period expires;

(C) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided that, if any Interest Period would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day;

(D) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (i)(E) of this Section 2.2B, end on the last Business Day of a calendar month;

(E) no Interest Period with respect to any portion of the Loans of any Class shall extend beyond the Commitment Termination Date or other final maturity date (in the case of Other Credit Extensions), as applicable, of such Class;

(F) there shall be no more than five Interest Periods in respect of Eurodollar Rate Loans outstanding at any time; and

(G) in the event the Borrower fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable Notice of Borrowing or Conversion/Continuation, such Borrower shall be deemed to have selected an Interest Period of one month; and

 

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(ii) in the case of CDOR Rate Loans:

(A) the initial Interest Period for any CDOR Rate Loan shall commence on the Funding Date in respect of such Loan, in the case of a Loan initially made as a CDOR Rate Loan, or on the date specified in the applicable Notice of Conversion/Continuation, in the case of a Loan converted to a CDOR Rate Loan;

(B) in the case of immediately successive Interest Periods applicable to a CDOR Rate Loan continued as such pursuant to a Notice of Conversion/Continuation, each successive Interest Period shall commence on the day on which the next preceding Interest Period expires;

(C) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall be extended or reduced as may be reasonably determined by the Administrative Agent to ensure that each Interest Period shall expire on a Business Day;

(D) no Interest Period with respect to any portion of the Loans of any Class shall extend beyond the Commitment Termination Date or other final maturity date (in the case of Other Credit Extensions), as applicable, of such Class;

(E) there shall be no more than five Interest Periods in respect of CDOR Rate Loans outstanding at any time; and

(F) in the event the Borrowers fail to specify an Interest Period for any CDOR Rate Loan in the applicable Notice of Borrowing or Conversion/Continuation, the Borrowers shall be deemed to have selected an Interest Period of 30 days.

C. Interest Payments. Subject to the provisions of Section 2.2E below, interest on each Loan shall be payable in arrears on each Interest Payment Date applicable to that Loan, upon any prepayment of that Loan (to the extent accrued on the amount being prepaid) and at maturity (including final maturity, by acceleration or otherwise); provided that in the event that any Daily Rate Loans are prepaid pursuant to Section 2.4A(i), interest accrued on such Loans through the date of such prepayment shall be payable on the next succeeding Interest Payment Date applicable to Base Rate Loans or Canadian Prime Rate Loans, as the case may be (or, if earlier, at final maturity).

D. Conversion or Continuation. Subject to the provisions of Section 2.6, the Borrowers shall have the option (i) to convert at any time all or any part of their outstanding Loans equal to the Borrowing Minimum and integral multiples of the Borrowing Multiple in excess of that amount from Daily Rate Loans to Fixed Rate Loans in the same currency (or vice versa) or (ii) upon the expiration of any Interest Period applicable to a Fixed Rate Loan, to continue all or any portion of such Loan equal to the Borrowing Minimum and integral multiples of the Borrowing Multiple in excess of that amount as a Fixed Rate Loan in the same currency for another permissible Interest Period.

The Borrowers shall deliver a Notice of Conversion/Continuation to the Administrative Agent no later than 12:00 p.m. (New York time) at least one Business Day in advance of the proposed conversion date (in the case of a conversion to a Daily Rate Loan), and at least three Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a Fixed Rate Loan). A Notice of Conversion/Continuation shall specify (i) the proposed conversion/continuation date (which shall be a Business Day), (ii) the amount, Type and Class of the Loan to be converted/continued, (iii) the nature of the proposed

 

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conversion/continuation, (iv) in the case of a conversion to, or a continuation of, a Fixed Rate Loan, the requested Interest Period and (v) in the case of a conversion to, or a continuation of, a Fixed Rate Loan, that no Event of Default has occurred and is continuing. In lieu of delivering the above-described Notice of Conversion/Continuation, the Borrowers may give the Administrative Agent telephonic notice by the required time of any proposed conversion/continuation under this Section 2.2D; provided that such notice shall be promptly confirmed in writing by delivery of a Notice of Conversion/Continuation to the Administrative Agent on or before the proposed conversion/continuation date. Each conversion or continuance shall be made ratably among the Lenders holding the Loans comprising the affected Borrowing. For purposes of this Section 2.2D, “ Borrowing ” means Loans of the same Class, Type and currency, made, converted or continued on the same date and, in the case of Fixed Rate Loans, as to which a single Interest Period is in effect. If the Borrowers shall not have given notice in accordance with this Section 2.2D to continue any Borrowing into a subsequent Interest Period (and shall not otherwise have given notice in accordance with this Section 2.2D to convert such Borrowing), such Borrowing shall, at the end of the Interest Period applicable thereto (unless repaid pursuant to the terms hereof), automatically be continued into a Base Rate Loan or Canadian Prime Rate Loan, as the case may be.

If the Borrowers fail to specify the Type of Loan the applicable Borrowing is to be converted into or continued as, then the applicable Borrowing shall be deemed to have been requested to be converted into or continued as a Base Rate Loan or a Canadian Prime Rate Loan, as the case may be.

Neither the Administrative Agent nor any Lender shall incur any liability to any Borrower in acting upon any telephonic notice referred to above that the Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized to act on behalf of the Borrowers or for otherwise acting in good faith under this Section 2.2D, and upon conversion or continuation of the applicable basis for determining the interest rate with respect to any Loans in accordance with this Agreement pursuant to any such telephonic notice, the Borrowers shall have effected a conversion or continuation, as the case may be, hereunder.

Except as otherwise provided in Sections 2.6B, 2.6C and 2.6G, a Notice of Conversion/Continuation for conversion to, or continuation of, any Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable, and the Borrowers shall be bound to effect a conversion or continuation in accordance therewith.

E. Post-Default Interest. At any time that an Event of Default shall have occurred and be continuing, if all or a portion of the principal amount of any Loan or interest thereon or fees or other amounts due hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code, or other applicable bankruptcy or insolvency laws) payable upon demand (a) in the case of principal, at the rate otherwise applicable to such Loan plus 2% per annum and (b) in all other cases, at a rate which is 2% per annum in excess of the interest rate otherwise payable under this Agreement for Revolving Loans bearing interest at a rate determined by reference to the Base Rate for Revolving Loans denominated in U.S. Dollars (computed on the basis of the actual number of days elapsed over a year of 360 days), in each case to the extent permitted by Applicable Laws. Payment or acceptance of the increased rates of interest provided for in this Section 2.2E is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative Agent or any Lender.

 

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F. Computation of Interest. Interest on Loans shall be computed on the basis of a 360-day year (a 365-or 366-day year, as applicable, in the case of Base Rate Loans based on the Prime Rate and Canadian Prime Rate Loans) and for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Daily Rate Loan being converted from a Fixed Rate Loan, the date of conversion of such Fixed Rate Loan to such Daily Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Daily Rate Loan being converted to a Fixed Rate Loan, the date of conversion of such Daily Rate Loan to such Fixed Rate Loan, as the case may be, shall be excluded; provided that if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan. For the purposes of the Interest Act (Canada) disclosure thereunder, whenever any interest or any fee to be paid hereunder or in connection herewith is to be calculated on the basis of a 360-day or 365-day year, the yearly rate of interest to which the rate used in such calculation is equivalent is the rate so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 360 or 365, as applicable. The rates of interest under this Agreement are nominal rates, and not effective rates or yields. The principle of deemed reinvestment of interest does not apply to any interest calculation under this Agreement.

 

2.3 Fees.

A. Facility Fees. The Borrowers agree, jointly and severally, to pay to the Administrative Agent, for distribution to each Revolving Loan Lender in proportion to that Lender’s Pro Rata Share of the Commitments, facility fees (the “ Facility Fees ”) for the period from and including the Effective Date to and excluding the Commitment Termination Date equal to (i) the actual daily amount of the aggregate Commitments (whether used or unused) multiplied by (ii) a rate per annum equal to the Facility Fee Rate at such time. Notwithstanding the foregoing, if any Revolving Loan Exposure remains outstanding following the Commitment Termination Date, the Facility Fees shall continue to accrue on such Revolving Loan Exposure for so long as such Revolving Loan Exposure remains outstanding and shall be payable on demand. In addition, the Facility Fees accrued with respect to the Commitment of a Defaulting Lender (except to the extent allocable to the Revolving Credit Loans, LC Disbursements and participations in Swing Line Loans actually funded by such Defaulting Lender) during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrowers so long as such Lender shall be a Defaulting Lender except to the extent that the Facility Fees shall otherwise have been due and payable by the Borrowers prior to such time; provided , that no Facility Fees shall accrue on the Commitment of a Defaulting Lender (except to the extent allocable to the Revolving Credit Loans, LC Disbursements and participations in Swing Line Loans actually funded by such Defaulting Lender) so long as such Lender shall be a Defaulting Lender. The Facility Fees shall be payable in arrears on the last Business Day in each of March, June, September and December of each year, commencing on September 30, 2011, and ending on the Commitment Termination Date (unless Revolving Loan Exposure shall be outstanding following the Commitment Termination Date, as provided above).

B. Annual Administrative Fee. Holdings agrees to pay to the Administrative Agent, for the account of it and its Affiliates, an annual administrative fee in such amounts as may have been or hereafter may be agreed between them from time to time.

C. Other Agent Fees. Holdings and each Borrower agree to pay such other fees to Agents as may hereafter be agreed upon from time to time.

 

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2.4 Repayments and Prepayments; General Provisions Regarding Payments.

A. Prepayments and Reductions in Commitments.

(i) Voluntary Prepayments. The Borrowers may, upon written notice to the Administrative Agent on or prior to 12:00 p.m. (New York time) on the date of prepayment, at any time and from time to time voluntarily prepay, without premium or penalty (except as otherwise provided below), any Swing Line Loan on any Business Day in whole or in part in integrals of $100,000 or C$100,000, as applicable. In addition, the Borrowers may, upon not less than (i) three Business Days’ prior written or telephonic notice, in the case of Fixed Rate Loans, or (ii) one Business Day’s prior written or telephonic notice, in the case of Daily Rate Loans, promptly confirmed in writing to the Administrative Agent (which notice the Administrative Agent will promptly transmit to each Lender), at any time and from time to time prepay, without premium or penalty, the Loans (other than Swing Line Loans) on any Business Day in whole or in part in an aggregate minimum amount of the Borrowing Minimum and integral multiples of the Borrowing Multiple in excess of that amount or in each case such lesser amount as is then outstanding; provided , however , that in the event the Borrowers shall prepay a Fixed Rate Loan other than on the expiration of the Interest Period applicable thereto, the Borrowers shall, at the time of such prepayment, also pay any amounts payable under Section 2.6D hereof. Notice of prepayment having been given as aforesaid, the Loans shall become due and payable on the prepayment date specified in such notice and in the aggregate principal amount specified therein.

(ii) Voluntary Reductions of Commitments. The Borrowers may, upon not less than three Business Days’ prior written or telephonic notice, promptly confirmed in writing to the Administrative Agent (which notice the Administrative Agent will promptly transmit to each Lender), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Commitments in an amount up to the Unused Revolving Commitment at the time of such proposed termination or reduction; provided that any such partial reduction of the Commitments shall be in an aggregate minimum amount of the Borrowing Minimum and integral multiples of the Borrowing Multiple in excess of that amount, or such lesser amount as is then outstanding. The Borrowers’ notice to the Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Commitments shall be effective on the date specified in such notice and shall reduce the Commitment of each Lender proportionately to its Pro Rata Share.

(iii) Mandatory Prepayments. The Loans shall be prepaid in the manner provided in Section 2.4B upon the occurrence of the following circumstances:

(a) Prepayments Due to Reductions or Restrictions of Commitments. The Borrowers shall prepay the Swing Line Loans and/or Revolving Loans from time to time to the extent necessary so that (i) the Total Utilization of Commitments shall not at any time exceed the Commitments then in effect and (ii) the U.S. Dollar Equivalent of the aggregate principal amount of all outstanding Swing Line Loans shall not at any time exceed the Swing Line Loan Commitment then in effect. All

 

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Swing Line Loans shall be prepaid in full prior to the prepayment of any Revolving Loans pursuant to this Section 2.4A(iii)(a). If at any time that there are no Revolving Loans or Swing Line Loans outstanding (whether after giving effect to any prepayment thereof pursuant to this subclause (a) or otherwise) the Total Utilization of Commitments exceeds the Commitments, the Borrowers shall deposit as cash collateral with the Collateral Agent such amounts as are necessary so that, after giving effect thereto, the amount on deposit in the form of cash collateral with the Collateral Agent pursuant to this subclause (a) is at least equal to such excess. If, on the tenth Business Day prior to the Commitment Termination Date, the conditions precedent to borrowing set forth in Section 4.2B would not be satisfied, then the Borrowers shall, on such date, cash collateralize such amount of Letter of Credit Usage that is attributable to the Commitments. Any failure to make such deposit within two Business Days after notice by the Administrative Agent shall constitute an Event of Default.

(b) Prepayments Due to Availability Amount. If at any time the Total Utilization of Commitments exceeds the Availability Amount then in effect, the Borrowers shall, within five Business Days of such occurrence, (x) prepay the Swing Line Loans and/or Revolving Loans from time to time to the extent necessary so that the Total Utilization of Commitments shall not at any time exceed the Availability Amount then in effect or (y) deliver additional Mortgages to the Collateral Agent pursuant to Section 6.8B such that, immediately after giving effect to the delivery of such additional Mortgages, the Total Utilization of Commitments shall not at any time exceed the Availability Amount; provided that the delivery of such additional Mortgages shall be accompanied by a certificate executed by a Responsible Officer of the U.S. Borrower certifying in good faith that, immediately after giving effect to the delivery of such additional Mortgages, the Total Utilization of Commitments shall not at such time exceed the Availability Amount. If at any time that there are no Revolving Loans or Swing Line Loans outstanding (whether after giving effect to any prepayment thereof pursuant to this subclause (b) or otherwise) the Total Utilization of Commitments exceeds the Availability Amount then in effect, the Borrowers shall, within five Business Days of such occurrence, (x) deposit as cash collateral with the Collateral Agent such amounts as are necessary so that, after giving effect thereto, the amount on deposit in the form of cash collateral with the Collateral Agent pursuant to this subclause (b) is at least equal to such excess or (y) deliver additional Mortgages to the Collateral Agent pursuant to Section 6.8B such that, immediately after giving effect to the delivery of such additional Mortgages, the Total Utilization of Commitments shall not at any time exceed the Availability Amount; provided that the delivery of such Mortgages shall be accompanied by a certificate executed by a Responsible Officer of the U.S. Borrower certifying in good faith that, immediately after giving effect to the delivery of such additional Mortgages, the Total Utilization of Commitments shall not at such time exceed the Availability Amount.

(c) Other Prepayments. If for any reason the Canadian Revolving Exposure exceeds 105% of the Canadian Sublimit, the Borrowers shall promptly prepay Canadian Loans to the extent necessary so that the Canadian Revolving Exposure shall not exceed the Canadian Sublimit then in effect. All Swing Line

 

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Loans denominated in Canadian Dollars shall be prepaid in full prior to the prepayment of any Revolving Loans denominated in Canadian Dollars pursuant to this Section 2.4A(iii)(c). If at any time that there are no Canadian Loans (whether after giving effect to any prepayment thereof pursuant to this subclause (c) or otherwise), the Canadian Revolving Exposure exceeds 105% of the Canadian Sublimit, the Borrowers shall deposit as cash collateral for Canadian Letters of Credit with the Collateral Agent such amounts as are necessary so that, after giving effect thereto, the amount on deposit in the form of cash collateral with the Collateral Agent pursuant to this subclause (c) is at least equal to the amount by which the Canadian Revolving Exposure exceeds the Canadian Sublimit then in effect.

(iv) Application of Prepayments. Application of Prepayments by Type of Loans. Any voluntary prepayments pursuant to Section 2.4A shall be subject to the requirements of Section 2.6C; provided that , in connection with any voluntary prepayments by a Borrower pursuant to Section 2.4A and considering each Class of Revolving Loans being prepaid separately, any voluntary prepayment thereof shall be applied first to Daily Rate Loans to the full extent thereof before application to Fixed Rate Loans, in each case in a manner that minimizes the amount of any payments required to be made by the Borrowers pursuant to Section 2.6C.

B. Application of Proceeds of Collateral and Payments Under the Guaranty and Certain Other Amounts.

(i) Application of Proceeds of Collateral . All proceeds received by the Administrative Agent or the Collateral Agent, as the case may be, in respect of any sale of, collection from, or other realization upon all or any part of the Collateral under any Collateral Document in connection with the Administrative Agent or Collateral Agent exercising its/their rights and remedies following the occurrence and during the continuance of any Event of Default shall be held by the Collateral Agent as Collateral for, and/or (then or at any time thereafter) applied in full or in part by the Administrative Agent against the Obligations in the following order of priority:

(a) to the payment of (i) all costs and expenses of such sale, collection or other realization, including all reasonable expenses, liabilities and advances made or incurred by the Agents in connection with the exercise of any right or remedy under such Collateral Document, all in accordance with the terms of this Agreement and such Collateral Document, and all amounts for which such Agents are entitled to indemnification under such Collateral Document and all advances made by the Collateral Agent thereunder for the account of the applicable Loan Party (excluding principal and interest in respect to any Loans of such Loan Party); (ii) any outstanding Swing Line Loans and (iii) any amounts owed to any Issuing Bank in respect of any Unpaid Drawings not reimbursed pursuant to Section 3.3B or 3.3C;

(b) thereafter, to the extent of any excess proceeds, to the payment of all other Obligations for the ratable benefit of the holders thereof (including providing cash collateral in an amount equal to 102% of the aggregate Stated Amount of all Letters of Credit outstanding at such time);

(c) thereafter, to the extent of any excess proceeds, to the payment to or upon the order of such Loan Party or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

 

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(ii) Application of Payments Under the Guaranty . All payments received by the Administrative Agent under the Guaranty shall be applied promptly from time to time by the Administrative Agent in the following order of priority:

(a) to the payment of the reasonable costs and expenses of any collection or other realization under such Guaranty, including reasonable compensation to the Administrative Agent and its agents and counsel, and all expenses, liabilities and advances made or incurred by the Administrative Agent in connection therewith, all in accordance with the terms of this Agreement and such Guaranty;

(b) thereafter, to the extent of any excess such payments, to the payment of all other Obligations for the ratable benefit of the holders thereof;

(c) thereafter, to the extent of any excess such payments, to the payment to the applicable Guarantor or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

C. General Provisions Regarding Payments.

(i) Manner, Time and Currency of Payment. All payments by the Borrowers of principal, interest, fees and other Obligations hereunder and under the Notes shall be made in same day funds and without defense, setoff or counterclaim, free of any restriction or condition, and delivered to the Administrative Agent not later than 12:00 Noon (New York time) on the date due at the Funding and Payment Office for the account of the Lenders; funds received by the Administrative Agent after that time on such due date shall, at the Administrative Agent’s sole discretion, be deemed to have been paid by the Borrowers on the next succeeding Business Day. For purposes of computing interest or fees, any payments under this Agreement that are made later than 2:00 p.m. (New York time) shall be deemed to have been made on the next succeeding Business Day, in the Administrative Agent’s sole discretion. The Borrowers hereby authorize the Administrative Agent to charge their accounts with the Administrative Agent in order to cause timely payment to be made to the Administrative Agent of all principal, interest, fees and expenses due hereunder (subject to sufficient funds being available in their accounts for that purpose). Each payment to be made by the Borrowers hereunder (other than in respect of Canadian Loans and Canadian LC Disbursements, which each shall be made in Canadian Dollars) shall be made in U.S. Dollars.

(ii) Application of Payments to Principal, Interest and Prepayment Fees. Except as provided in Section 2.2C, all payments and prepayments in respect of the principal amount of any Loan shall include payment of accrued interest and prepayment fees, if any, on the principal amount being repaid or prepaid, and all such payments (and in any event any payments made in respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be applied to the payment of interest and prepayment fees, if any, before application to principal.

 

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(iii) Apportionment of Payments. The aggregate principal, prepayment fees and interest payments shall be apportioned among all outstanding Loans to which such payments relate, in each case proportionately to the Lenders’ respective Pro Rata Shares. The Administrative Agent shall promptly distribute to each applicable Lender, at its applicable Lender Office, its Pro Rata Share of all such payments received by the Administrative Agent and the Facility Fees of such Lender when received by the Administrative Agent pursuant to Section 2.3. Notwithstanding the foregoing provisions of this Section 2.4C(iii) if, pursuant to the provisions of Section 2.6C, any Notice of Conversion/Continuation is withdrawn as to any Affected Lender or if any Affected Lender makes Daily Rate Loans in lieu of its Pro Rata Share of any Fixed Rate Loans, the Administrative Agent shall give effect thereto in apportioning payments received thereafter.

(iv) Payments on Business Days. Except if expressly provided otherwise, whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next preceding Business Day.

(v) Notation of Payment. Each Lender agrees that before disposing of any Note held by it, or any part thereof (other than by granting participations therein), that Lender will make a notation thereon of all Loans evidenced by that Note and all principal payments previously made thereon and of the date to which interest thereon has been paid; provided that the failure to make (or any error in the making of) a notation of any Loan made under such Note shall not limit or otherwise affect such disposition or the obligations of the Borrowers hereunder or under such Note with respect to any Loan or any payments of principal or interest on such Note.

 

2.5 Use of Proceeds.

A. Loans. The proceeds of any Loans shall be applied for working capital and general corporate purposes (including Permitted Acquisitions and Investments permitted under this Agreement) of the Co-Borrowers and their Subsidiaries.

B. Letters of Credit. Letters of Credit shall be used for general corporate purposes of the Co-Borrowers and their Subsidiaries, including backstopping or replacing letters of credit (or other comparable arrangements) of the Borrowers outstanding on the Effective Date.

 

2.6 Special Provisions Governing Eurodollar Rate Loans.

Notwithstanding any other provision of this Agreement to the contrary, the following provisions shall govern with respect to Fixed Rate Loans as to the matters covered:

A. Determination of Applicable Interest Rate. As soon as practicable after 11:00 a.m. (New York time) on each Interest Rate Determination Date, the Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to Fixed Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to the Borrowers and each Lender.

B. Inability to Determine Applicable Interest Rate. In the event that the Administrative Agent shall have reasonably determined (which determination shall be final and conclusive and

 

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binding upon all parties hereto), on any Interest Rate Determination Date with respect to any Fixed Rate Loans, that by reason of circumstances arising after the Effective Date affecting the London or Toronto interbank market, adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of Reserve Adjusted Eurodollar Rate or CDOR Rate, as the case may be, such Administrative Agent shall on such date give notice (by telecopy or by telephone confirmed in writing) to the Borrowers and each Lender of such determination, whereupon (i) no Loans may be made or continued as, or converted to, Fixed Rate Loans in the applicable currency, until such time as the Administrative Agent notifies the Borrowers and the Lenders that the circumstances giving rise to such notice no longer exist (such notification not to be unreasonably withheld or delayed) and (ii) any Notice of Borrowing or Notice of Conversion/Continuation given by a Borrower with respect to the Loans in respect of which such determination was made shall be deemed to be rescinded by the Borrowers; provided , however , that, at the option of the Borrowers, any such Notice of Borrowing may be re-submitted to the Administrative Agent indicating that the Borrowers are electing a Daily Rate Loan, which Loan shall be funded no later than one Business Day after the date of such Daily Rate Loan Notice of Borrowing in accordance with Section 2.1B.

C. Illegality or Impracticability of Fixed Rate Loans. In the event that on any date any Lender shall have reasonably determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with the Borrowers and the Administrative Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans and/or CDOR Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful) or (ii) has become impracticable as a result of contingencies occurring after the Effective Date which materially and adversely affect the London interbank market and/or the Toronto interbank market, as the case may be, then, and in any such event, such Lender shall be an “ Affected Lender ” and it shall on that day give notice (by telecopy or by telephone confirmed in writing) to the Borrowers and the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each other Lender). Thereafter (a) the obligation of the Affected Lender to make Loans as, or to convert Loans to, Fixed Rate Loans in the applicable currency shall be suspended until such notice shall be withdrawn by the Affected Lender, (b) to the extent such determination by the Affected Lender relates to a Fixed Rate Loan then being requested pursuant to the Notice of Borrowing or a Notice of Conversion/Continuation, the Affected Lender shall make such Loan as (or convert such Loan to, as the case may be) a Daily Rate Loan in such currency, (c) the Affected Lender’s obligation to maintain its outstanding Fixed Rate Loans in the applicable currency (the “ Affected Loans ”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (d) the Affected Loans shall automatically convert into Daily Rate Loans in the applicable currency on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a Fixed Rate Loan then being requested pursuant to a Notice of Conversion/Continuation, the Borrowers shall have the option, subject to the provisions of Section 2.6D, to rescind such Notice of Borrowing or Notice of Conversion/Continuation as to all Lenders by giving notice (by telecopy or by telephone confirmed in writing) to the Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission the Administrative Agent shall promptly transmit to each other Lender). Except as provided in the immediately preceding sentence, nothing in this Section 2.6C shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, Fixed Rate Loans in accordance with the terms of this Agreement.

 

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D. Compensation For Breakage or Non-Commencement of Interest Periods. The Borrowers shall compensate the Administrative Agent, upon written request by any Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including any interest paid by such Lender to the lenders of funds borrowed by it to make or carry its Fixed Rate Loans and any actual loss, expense or liability sustained by such Lender in connection with the liquidation or re-employment of such funds, but excluding any loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any Fixed Rate Loan does not occur on a date specified therefor in a Notice of Borrowing or a telephonic request for borrowing, or a conversion to or continuation of any Fixed Rate Loan does not occur on a date specified therefor in a Notice of Conversion/Continuation or a telephonic request for conversion or continuation, (ii) if any payment (including any prepayment pursuant to Section 2.4A(iv) or assignment pursuant to Section 2.8 or Section 10.5B) or conversion of any of its Fixed Rate Loans occurs on a date that is not the last day of an Interest Period applicable to that Loan, (iii) if any prepayment of any of its Fixed Rate Loans is not made on any date specified in a notice of prepayment given by the Borrowers, or (iv) as a consequence of any other default by the Borrowers in the repayment of their Fixed Rate Loans when required by the terms of this Agreement.

E. Booking of Loans. Any Lender may make, carry or transfer Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of that Lender.

F. Assumptions Concerning Funding of Fixed Rate Loans. Calculation of all amounts payable to a Lender under this Section 2.6 and under Section 2.7A shall be made as though that Lender had actually funded each of its relevant Fixed Rate Loans through the purchase of a Eurodollar deposit or bankers acceptance, as the case may be, bearing interest at the rate obtained pursuant to the definition of Reserve Adjusted Eurodollar Rate or CDOR Rate, as applicable, in an amount equal to the amount of such Fixed Rate Loan and having a maturity comparable to the relevant Interest Period and, in the case of a Eurodollar Rate Loan, through the transfer of such Eurodollar deposit from an offshore office of that Lender to a domestic office of that Lender in the United States of America; provided , however , that each Lender may fund each of its Fixed Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.6 and under Section 2.7A.

G. Fixed Rate Loans After Default. After the occurrence of and during the continuation of a Default or Event of Default, (i) the Borrowers may not elect to have a Loan be made or maintained as, or converted to, a Fixed Rate Loan after the expiration of any Interest Period then in effect for that Loan and (ii) subject to the provisions of Section 2.6D, any Notice of Borrowing or Notice of Conversion/Continuation given by a Borrower with respect to a requested borrowing or conversion/continuation that has not yet occurred shall be deemed to be rescinded by such Borrower.

 

2.7 Increased Costs; Taxes.

A. Increased Costs Generally. If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any reserve requirement reflected in the Reserve Adjusted Eurodollar Rate) or any Issuing Bank; (ii)

 

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subject any Lender or any Issuing Bank to any Taxes (other than (A) Excluded Taxes, (B) Indemnified Taxes, (C) Other Taxes and (D) Other Connection Taxes on gross or net income, profits or receipts (including value-added or similar Taxes)) with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit, any Fixed Rate Loans made by it, or its deposits, reserves, other liabilities or capital attributable thereto; or (iii) impose on any Lender or any Issuing Bank or the London interbank market or the Toronto bankers acceptance market any other condition, cost or expense affecting this Agreement or Fixed Rate Loans hereunder made by such Lender or any Letter of Credit or participation therein; and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Fixed Rate Loan (or of maintaining its obligations to make any such Loan) or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or any other amount), then upon request of such Lender the Borrowers will pay to such Lender or such Issuing Bank such additional amount or amounts as will compensate such Lender or such Issuing Bank for such additional costs incurred or reduction suffered.

B. Capital Requirements. If any Lender or any Issuing Bank determines that any Change in Law affecting such Lender or such Issuing Bank or the applicable Lender Office of such Lender or the Letter of Credit Issuing Office or such Lender’s or such Issuing Bank’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender, or the Letters of Credit issued by such Issuing Bank to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy), then from time to time the Borrowers will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.

C. Certificates for Reimbursement. A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as specified in Section 2.7A or 2.7B and delivered to the Borrowers shall be conclusive absent manifest error. The Borrowers shall pay such Lender or such Issuing Bank, as the case maybe, the amount shown as due on any such certificate within ten days after receipt thereof.

D. Delay in Requests. Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that the Borrowers shall not be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

 

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E. Taxes.

(i) Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrowers hereunder or any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes; provided that if any Withholding Agent shall be required by Applicable Laws to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable by the applicable Borrower shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.7E) the Agent, Lender or Issuing Bank, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Withholding Agent (which shall be the Administrative Agent if the Borrower is a U.S. person) shall make such deductions and (iii) the Withholding Agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with Applicable Law.

(ii) Payment of Other Taxes by the Borrowers. Without limiting the provisions of paragraph (i) above, the Borrowers shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Laws.

(iii) Indemnification by the Borrowers. The Loan Parties shall indemnify the Agents, each Lender and each Issuing Bank within 20 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.7E) paid by such Agent, Lender or Issuing Bank, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate stating the amount of such payment or liability and setting forth in reasonable detail the calculation thereof delivered to the Co-Borrowers by an Agent, a Lender or an Issuing Bank (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an Issuing Bank shall be conclusive absent manifest error.

(iv) Indemnification by the Lenders and Issuing Banks. Each Lender and each Issuing Bank shall severally indemnify the Administrative Agent and the Borrowers for the full amount of any Excluded Taxes attributable to such Lender that are paid or payable by the Administrative Agent and the Borrowers in connection with any Loan Document and any reasonable expenses arising therefrom or with respect thereto, whether or not such Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The indemnity under this paragraph (iv) shall be paid within 20 days after the applicable Borrower or the Administrative Agent delivers to the applicable Lender a certificate stating the amount of Excluded Taxes so payable by such Borrower or the Administrative Agent. Such certificate shall be conclusive of the amount so payable absent manifest error.

(v) Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Borrower to a Governmental Authority, the Borrowers shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

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(vi) Status of Lenders and Issuing Banks.

(a) The Administrative Agent, any Lender or any Issuing Bank, if requested by a Borrower or the Administrative Agent, shall deliver documentation prescribed by Applicable Laws or the published administrative practice of a relevant Governmental Authority when reasonably requested by such Borrower or the Administrative Agent as will enable such Borrower or the Administrative Agent to determine whether or not the Administrative Agent, such Lender or such Issuing Bank is subject to withholding, backup withholding or information reporting requirements.

(b) Without limiting the generality of the foregoing, for so long as the applicable Borrower is a U.S. Person,

(i) each Lender and Issuing Bank that is a U.S. Person shall deliver to the applicable Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Lender or Issuing Bank becomes a Lender or Issuing Bank, as applicable, under this Agreement (and from time to time thereafter upon the request of the applicable Borrower or the Administrative Agent) a properly completed and duly executed Internal Revenue Service Form W-9;

(ii) each Foreign Lender shall deliver to the applicable Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the applicable Borrower or the Administrative Agent), whichever of the following is applicable: (i) duly completed copies of Internal Revenue Service Form W-8BEN, claiming eligibility for benefits of an income tax treaty to which the United States of America is a party, (ii) duly completed copies of Internal Revenue Service Form W-8ECI, (iii) duly completed copies of Internal Revenue Service Form W-8IMY, (iv) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the applicable Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN or (v) any other form prescribed by Applicable Laws as a basis for claiming exemption from or a reduction in United States Federal withholding Tax and reasonably requested by the applicable Borrower or the Administrative Agent duly completed together with such supplementary documentation as may be prescribed by Applicable Laws and reasonably requested by the applicable Borrower or the Administrative Agent to permit the applicable Borrower to determine the withholding or deduction required to be made. A Lender shall not be required to deliver any form or statement pursuant to this Section 2.7E(vi) that such Foreign Lender is not legally able to deliver;

 

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(iii) if a payment made to a Lender or Issuing Bank under this Agreement would be subject to U.S. Federal withholding Tax imposed by FATCA, such Lender or Issuing Bank, as applicable, shall deliver to the applicable Borrower or the Administrative Agent, at the time or times prescribed by Applicable Law and at such time or times reasonably requested by the applicable Borrower or the Administrative Agent, such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the applicable Borrower or the Administrative Agent as may be necessary for the applicable Borrower or the Administrative Agent to comply with its obligations under FATCA, to determine that such Lender or Issuing Bank, as applicable, has complied with its obligations under FATCA or to determine the amount to deduct and withhold from such payment; and

(iv) the Administrative Agent shall deliver to the applicable Borrower (in such number of copies as shall be requested by the applicable Borrower) on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter (i) promptly upon the obsolescence, expiration or invalidity of any form previously delivered by the Administrative Agent and (ii) upon the request of the applicable Borrower) a properly completed and duly executed Internal Revenue Service Form W-9 or W-8IMY (or any other form prescribed by Applicable Laws as the basis for claiming complete exemption from United States federal withholding Tax and reasonably requested by the applicable Borrower) certifying the Administrative Agent’s entitlement as of such date to a complete exemption from United States federal withholding Tax with respect to payments to be made under this Agreement and the other Loan Documents.

(v) if the Administrative Agent is a U.S. branch described in Section 1.441-1(b)(2)(iv)(A) of the Treasury Regulations and delivers to the applicable Borrower a properly completed and duly executed Internal Revenue Service Form W-8IMY pursuant to Section 2.7E(vi)(b)(iv) certifying that the Administrative Agent is a U.S. branch and intends to be treated as a U.S. person for purposes of withholding under Chapter 3 of the Code, then the applicable Borrower and the Administrative Agent shall treat the Administrative Agent as a U.S. person for purposes of withholding under Chapter 3 of the Code, pursuant to Section 1.441-1(b)(2)(iv) of the Treasury Regulations.

(vii) Treatment of Certain Refunds. If any party determines, in its reasonable discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified pursuant to this Section 2.7E (including additional amounts paid pursuant to Section 2.7E(i)), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, under this Section 2.7E with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such

 

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refund); provided that such indemnifying party, upon the request of such indemnified party, agrees to repay to such indemnified party the amount paid over to such indemnified party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such indemnified party is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require any indemnified party to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the indemnifying party or any other Person.

 

2.8 Mitigation Obligations; Replacement of Lenders.

A. Designation of a Different Lender Office. If any Lender or any Issuing Bank requests compensation under Section 2.7A or 2.7B, or requires the Borrowers to pay any additional amount to any Lender, any Issuing Bank or any Governmental Authority for the account of any Lender or any Issuing Bank pursuant to Section 2.7E, then such Lender or such Issuing Bank shall (at the request of the Borrowers) use reasonable efforts to designate a different Lender Office or Letter of Credit Issuing Office, as applicable, for making, issuing of or for funding or maintaining its Commitments, Loans or Letters of Credit hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or such Issuing Bank, as the case may be, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.7, in the future, and (ii) would not subject such Lender or such Issuing Bank to any unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender or such Issuing Bank. The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender or any Issuing Bank in connection with any such designation or assignment.

B. Replacement of Lenders. If any Lender requests compensation under Section 2.7A or 2.7B, or if a Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.7E, or if any Lender is a Defaulting Lender, or if any Lender has determined that it is unable to make, maintain or continue its Fixed Rate Loans in accordance with Section 2.6C hereof, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.1), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrowers shall have paid to the Administrative Agent the assignment fee specified in Section 10.1B(i)(e), (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.6D) from such Eligible Assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts), (iii) such Eligible Assignee is able to make, maintain or continue, as applicable, Fixed Rate Loans, (iv) in the case of any such assignment resulting from a claim for compensation under Section 2.7A or 2.7B or payments required to be made pursuant to Section 2.7E, such assignment will result in a reduction in such compensation or payments thereafter, and (v) such assignment does not conflict with Applicable Laws. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.

 

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2.9 Loan Modification Offers.

A. The Borrowers may, by written notice to the Administrative Agent from time to time, make one or more offers (each, a “ Loan Modification Offer ”) to all the Lenders of one or more Classes (each Class subject to such a Loan Modification Offer, an “ Affected Revolving Credit Class ”) to make one or more Permitted Amendments pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers. Such notice shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii) the date on which such Permitted Amendment is requested to become effective (which shall not be less than 10 Business Days nor more than 30 Business Days after the date of such notice, unless otherwise agreed to by the Administrative Agent). Permitted Amendments shall become effective only with respect to the Loans and Commitments of the Lenders of the Affected Revolving Credit Class that accept the applicable Loan Modification Offer (such Lenders, the “ Accepting Lenders ”) and, in the case of any Accepting Lender, only with respect to such Lender’s Loans and Commitments of such Affected Revolving Credit Class as to which such Lender’s acceptance has been made.

B. A Permitted Amendment shall be effected pursuant to a Loan Modification Agreement executed and delivered by Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, each Borrower, each applicable Accepting Lender and the Administrative Agents; provided that no Permitted Amendment shall become effective unless Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and each Borrower shall have delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other similar documents as shall be reasonably be requested by the Administrative Agent in connection therewith. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each Loan Modification Agreement may, without the consent of any Lender other than the applicable Accepting Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.9, including any amendments necessary to treat the applicable Loans and/or Commitments of the Accepting Lenders as a new Class of Loans and/or Commitments hereunder; provided that, except as otherwise agreed to by each Issuing Bank and the Swing Line Lender, the allocation of the participation exposure with respect to any then-existing or subsequently issued or made Letter of Credit or Swing Line Loan as between the commitments of such new Class and the remaining Commitments shall be made on a ratable basis as between the commitments of such new Class and the remaining Commitments.

C. If a new Class of Loans and Commitment are created under this Section 2.9, the Borrowers shall, after such time, (x) incur and repay Revolving Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to the effectiveness of such Loan Modification Offer and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to the effectiveness of such Loan Modification Offer; provided that on the date of effectiveness of any Loan Modification Offer, the Borrowers may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any Loan Modification Offer effected pursuant to this Section 2.9 and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (i) implement the requirements in the preceding two sentences, (ii) ensure pro rata allocations of Eurodollar Rate Loans, Canadian Prime Rate Loans,

 

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CDOR Rate Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.9 and Loans outstanding immediately prior to any such Loan Modification Offer and (iii) implement ratable participation in Letters of Credit and Swing Line Loans between the new Commitments and the Commitments outstanding immediately prior to the effectiveness of any such Loan Modification Offer).

SECTION 3.

LETTERS OF CREDIT

 

3.1 Issuance of Letters of Credit and Lenders’ Purchase of Participations Therein.

A. Letters of Credit. In addition to requesting that the Revolving Loan Lenders make Revolving Loans pursuant to Section 2.1A(i) and that the Swing Line Lender make Swing Line Loans pursuant to Section 2.1A(ii), the Borrowers may request, in accordance with the provisions of this Section 3.1, from time to time during the period after the Effective Date to but excluding the date which is thirty (30) days before the Commitment Termination Date, that an Issuing Bank issue Letters of Credit for the account of the Borrowers or any Subsidiary Guarantor (provided that any Letter of Credit may be for the benefit of any Subsidiary of a Co-Borrower) for general corporate purposes up to the amount of the Unused Availability at such time. Subject to and upon the terms and conditions of this Agreement and in reliance upon the representations and warranties of the Loan Parties herein set forth, such Issuing Bank agrees to issue such Letters of Credit in accordance with the provisions of this Section 3.1; provided that the Borrowers shall not request that such Issuing Bank issue (and such Issuing Bank shall not issue):

(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Commitments would exceed the lesser of (x) Commitments then in effect and (y) the Availability Amount then in effect;

(ii) any Canadian Letter of Credit if, after giving effect to such issuance, the aggregate Canadian Revolving Exposure would exceed the aggregate Canadian Sublimit then in effect by 5% or more;

(iii) any Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Commitment Termination Date and (b) the date which is 12 months from the date of issuance of such Letter of Credit; provided that the immediately preceding clause (b) shall not prevent such Issuing Bank from agreeing that a Letter of Credit will automatically be extended for one or more successive periods absent a Default or Event of Default, subject to the immediately preceding clause (a), not to exceed 12 months each unless such Issuing Bank elects not to extend for any such additional period; provided further , that unless the Requisite Lenders otherwise consent, such Issuing Bank shall give notice that it will not extend such Letter of Credit if it has knowledge that a Default or Event of Default has occurred and is continuing on the last day on which such Issuing Bank may give notice to the beneficiary that it will not extend such Letter of Credit;

(iv) any Letter of Credit during any period when a Lender Default exists, unless such Issuing Bank has entered into arrangements satisfactory to it and the Borrowers to eliminate such Issuing Bank’s risk with respect to the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage (after giving effect to the issuance of the proposed Letter of Credit);

 

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(v) any commercial Letter of Credit, unless such Issuing Bank has agreed in writing to issue commercial Letters of Credit pursuant to this Section 3.1; or

(vi) any standby Letter of Credit, unless such Issuing Bank has agreed in writing to issue standby Letters of Credit pursuant to this Section 3.1; it being understood that Credit Suisse AG has agreed to issue standby Letters of Credit requested by the Borrowers hereunder.

B. Mechanics of Issuance.

(i) Notice of Issuance. Whenever the Borrowers desire the issuance of a Letter of Credit, they shall deliver to the applicable Issuing Bank, at the applicable Letter of Credit Issuing Office, and the Administrative Agent, at the applicable Funding and Payment Office, a Notice of Issuance of Letter of Credit no later than 11:00 a.m. (New York time) at least five (5) Business Days, or such shorter period as may be agreed to by such Issuing Bank in any particular instance, in advance of the proposed date of issuance. The Notice of Issuance of Letter of Credit shall specify (a) the proposed date of issuance (which shall be a Business Day), (b) the face amount of or maximum aggregate liability under, as applicable, the Letter of Credit, (c) the expiration date of the Letter of Credit, (d) the name and address of the beneficiary, (e) the currency in which such Letter of Credit is to be denominated (which shall be U.S. Dollars or Canadian Dollars) and (f) the verbatim text of the proposed Letter of Credit or the proposed terms and conditions thereof, including a precise description of any documents and the verbatim text of any certificates to be presented by the beneficiary which, if presented by the beneficiary prior to the expiration date of the Letter of Credit, would require such Issuing Bank to make payment thereunder; provided that such Issuing Bank, in its reasonable discretion, may require changes in the text of the proposed Letter of Credit or any such documents or certificates; provided further that no Letter of Credit shall require payment against a conforming draft or other request for payment to be made thereunder on the same business day (under the laws of the jurisdiction in which the office of such Issuing Bank to which such draft or other request for payment is required to be presented is located) that such draft or other request for payment is presented if such presentation is made after 10:00 a.m. (in the time zone of such office of such Issuing Bank) on such Business Day. At the request of the Issuing Bank, the Borrowers shall also complete and submit such Issuing Bank’s standard letter of credit application form.

The Borrowers shall notify such Issuing Bank and the Administrative Agent prior to the issuance of any Letter of Credit in the event that any of the matters to which the Borrowers are required to certify in the applicable Notice of Issuance of Letter of Credit is no longer true and correct as of the proposed date of issuance of such Letter of Credit, and upon the issuance of any Letter of Credit, the Borrowers shall be deemed to have re-certified, as of the date of such issuance, as to the matters to which the Borrowers are required to certify in the applicable Notice of Issuance of Letter of Credit.

(ii) Issuance of Letter of Credit. Upon satisfaction or waiver (in accordance with Section 10.5) of the conditions set forth in Section 4.3, and upon prior confirmation from the Administrative Agent that the issuance of the requested Letter of Credit would not result in the violation of Section 3.1A(i) or 3.1A(ii), such Issuing Bank shall issue the requested Letter of Credit in accordance with such Issuing Bank’s standard procedures, and upon its issuance of such Letter of Credit such Issuing Bank shall promptly notify the Administrative Agent of such issuance, which notice shall be accompanied by a copy of such Letter of Credit.

 

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(iii) Reports to Lenders. (a) On the first Business Day of every calendar week, so long as any Letter of Credit shall have been outstanding during such week, such Issuing Bank shall deliver to the Administrative Agent a report setting forth for such week the daily maximum amount available to be drawn under the Letters of Credit that were outstanding during such calendar week (using, in the case of any Canadian Dollar Letters of Credit, the U.S. Dollar Equivalent thereof calculated as of such date); and (b) on the last Business Day of every calendar month, the Administrative Agent shall deliver to each Revolving Loan Lender a report setting forth for such calendar month the daily maximum amount available to be drawn under the Letters of Credit that were outstanding during such calendar month (using, in the case of any Canadian Dollar Letters of Credit, the U.S. Dollar Equivalent thereof calculated as of such date).

C. Lenders’ Purchase of Participations in Letters of Credit. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Revolving Loan Lenders, the applicable Issuing Bank hereby grants to each Revolving Loan Lender, and each Revolving Loan Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Loan Lender’s Pro Rata Share of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Loan Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Revolving Loan Lender’s Pro Rata Share of any drawings honored or payments made by the Issuing Bank in respect of such Letter of Credit (each, an “ LC Disbursement ”) and not reimbursed by the Borrowers on the date due as provided in Section 3.3B, or of any reimbursement payment required to be refunded to the Borrowers for any reason, in the same currency as such LC Disbursement. Each Revolving Loan Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

 

3.2 Letter of Credit Fees .

The Borrowers agree, jointly and severally, to pay the following amounts to the Administrative Agent with respect to Letters of Credit issued by an Issuing Bank for the account of the Borrowers:

(i) with respect to each Letter of Credit, (a) a fronting fee equal to 0.125% per annum (but in no event less than $500 or C$500, as the case may be, per annum for each Letter of Credit outstanding) of the daily aggregate Stated Amount of such Letter of Credit, (b) a Letter of Credit fee payable to the Revolving Loan Lenders equal to the product of (x) the then Applicable Margin for Revolving Loans that are Eurodollar Rate Loans and (y) the average daily Stated Amount under such Letter of Credit, in each case, payable in arrears on and to the last Business Day in each of March, June, September and December of each year, commencing June 30, 2011, and on the Commitment Termination Date and computed on the basis of a 360-day year for the actual number of days elapsed;

 

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(ii) with respect to the issuance, amendment or transfer of each Letter of Credit and each drawing made thereunder (without duplication of the fees payable under clause (i) above), issuance documentary, administration and processing charges in accordance with such Issuing Bank’s standard schedule for such charges in effect at the time of such issuance, amendment, transfer or drawing, as the case may be.

Promptly upon receipt by the Administrative Agent of any amount described in clause (i)(b) of this Section 3.2, the Administrative Agent shall distribute to the applicable Issuing Bank and each other Revolving Loan Lender its Pro Rata Share of such amount. The fees described in clause (i) of this Section 3.2 shall be paid in U.S. Dollars, if in respect of U.S. Dollar Letters of Credit, or Canadian Dollars, if in respect of Canadian Dollar Letters of Credit.

 

3.3 Drawings and Payments and Reimbursement of Amounts Drawn or Paid Under Letters of Credit .

A. Responsibility of Issuing Bank With Respect to Requests for Drawings and Payments. In determining whether to honor any drawing or request for payment under any Letter of Credit by the beneficiary thereof, the applicable Issuing Bank shall be responsible only to determine that the documents and certificates required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit.

B. Reimbursement by the Borrowers of Amounts Drawn or Paid Under Letters of Credit. If any Issuing Bank shall make an LC Disbursement, the Borrowers shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 3:00 p.m., New York City time, on the date that such LC Disbursement is made, if the Borrowers shall have received notice of such LC Disbursement prior to 12:00 noon, New York City time, on such date, or, if such notice has not been received by the Borrowers prior to such time on such date, then not later than (i) 3:00 p.m., New York City time, on the Business Day that the Borrowers receive such notice, if such notice is received prior to 12:00 noon, New York City time, on the day of receipt, or (ii) 2:00 p.m., New York City time, on the Business Day immediately following the day on which the Borrowers receive such notice, if such notice is not received prior to 12:00 noon, New York City time, on the day of receipt; provided that the Borrowers may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.1A(i) or 2.1A(ii) that such payment be financed with a Revolving Loan that is a Daily Rate Loan or Swing Line Loan in an equivalent amount to the LC Disbursement, and, to the extent so financed, the Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting Revolving Loan or Swing Line Loan.

C. Payment by Lenders of Unpaid Drawings or Payments Under Letters of Credit.

(i) Payment by Lenders. In the event that the Borrowers shall fail for any reason to reimburse any Issuing Bank for an LC Disbursement as provided in Section 3.3B when due, the Administrative Agent shall notify each Revolving Loan Lender of the applicable LC Disbursement, the payment then due from the Borrowers in respect thereof and such Lender’s Pro Rata Share thereof. Promptly following receipt of such notice, each Revolving Loan Lender shall pay to the Administrative Agent its Pro Rata Share of the payment then due from the Borrowers, in the same manner as provided in Section 2.1C with respect to Revolving Loans made by such Lender (and Section 2.1C shall apply, mutatis mutandis , to the payment obligations of the Revolving Loan Lenders), and the Administrative Agent shall

 

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promptly pay to the applicable Issuing Bank the amounts so received by it from the Revolving Loan Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrowers pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Loan Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the applicable Issuing Bank as their interests may appear. Any payment made by a Revolving Loan Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of Daily Rate Loans or a Swing Line Loan as contemplated above) shall not constitute a Loan and shall not relieve the Borrowers of their obligation to reimburse such LC Disbursement.

(ii) Distribution to Lenders of Reimbursements. In the event any Issuing Bank shall have been reimbursed by other Revolving Loan Lenders pursuant to Section 3.3C(i) for all or any portion of any honored drawing or payment made by such Issuing Bank under a Letter of Credit issued by it, such Issuing Bank shall distribute to each other Revolving Loan Lender which has paid all amounts payable by it under Section 3.3C(i) with respect to such honored drawing or payment such other Revolving Loan Lender’s Pro Rata Share of all payments subsequently received by such Issuing Bank from the Borrowers in reimbursement of such Unpaid Drawings when such payments are received. Any such distribution shall be made to a Revolving Loan Lender at its primary address identified to the Administrative Agent or at such other address as such Revolving Loan Lender may request.

D. Interest on Unpaid Drawings Under Letters of Credit.

(i) Payment of Interest. The Borrowers agree, jointly and severally, to pay to each Issuing Bank, with respect to any Unpaid Drawings, interest on such amount of Unpaid Drawings from the date such drawing is honored or payment is made to but excluding the date such amount is reimbursed by the Borrowers (including any such reimbursement out of the proceeds of Revolving Loans pursuant to Section 3.3B) at a rate equal to (a) for the period from the date such drawing is honored or payment is made to and including the applicable reimbursement date (i) in the case of U.S. Dollar Letters of Credit, the Base Rate plus the Applicable Margin applicable to Revolving Loans that are Base Rate Loans and (ii) in the case of Canadian Dollar Letters of Credit, the Canadian Prime Rate plus the Applicable Margin applicable to Revolving Loans that are Canadian Prime Rate Loans, and (b) thereafter, a rate which is 2.00% per annum in excess of the rate of interest described in the foregoing clause (a). Interest payable pursuant to this Section 3.3D(i) shall be computed on the basis of a 360-day year for the actual number of days elapsed in the period during which it accrues and shall be payable on demand or, if no demand is made, on the date on which the related LC Disbursement is reimbursed in full.

(ii) Distribution of Interest Payments by Issuing Bank. Promptly upon receipt by any Issuing Bank of any payment of interest pursuant to Section 3.3D(i), (a) such Issuing Bank shall distribute to each other Revolving Loan Lender, out of the interest received by such Issuing Bank in respect of the period from the date of the applicable LC Disbursement to but excluding the date on which such Issuing Bank is reimbursed for the amount of such drawing or payment (including any such reimbursement out of the proceeds of Revolving Loans pursuant to Section 3.3B), the amount that such other Revolving Loan Lender would have been entitled to receive in respect of the Letter of Credit fee that would have been payable in respect of such Letter of Credit for such period pursuant to Section 3.2 if an LC

 

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Disbursement had been made, and (b) in the event such Issuing Bank shall have been reimbursed by other Revolving Loan Lenders pursuant to Section 3.3C(i) for all or any portion of such LC Disbursement, such Issuing Bank shall distribute to each other Revolving Loan Lender which has paid all amounts payable by it under Section 3.3C(i) with respect to such LC Disbursement such other Revolving Loan Lender’s Pro Rata Share of any interest received by such Issuing Bank in respect of that portion of such LC Disbursement so reimbursed by other Revolving Loan Lenders for the period from the date on which such Issuing Bank was so reimbursed by other Revolving Loan Lenders to and including the date on which such portion of such LC Disbursement is reimbursed by the Borrowers.

 

3.4 Obligations Absolute .

The obligation of the Borrowers to reimburse each Issuing Bank for an LC Disbursement in respect of a Letter of Credit issued by it (which reimbursement, for the avoidance of doubt, may be made from the proceeds of Revolving Loans pursuant to Section 3.3B) and to repay any Revolving Loans made by the Revolving Loan Lenders pursuant to Section 3.3B and the obligations of the Revolving Loan Lenders under Section 3.3C(i) shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following circumstances:

(i) any lack of validity or enforceability of any Letter of Credit;

(ii) the existence of any claim, set-off, defense or other right which any Borrower or any Revolving Loan Lender may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), any Issuing Bank or other Revolving Loan Lender or any other Person or, in the case of a Revolving Loan Lender, against any Borrower whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or one of their respective Subsidiaries and the beneficiary for which any Letter of Credit was procured);

(iii) any draft, demand, certificate or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

(iv) payment by the applicable Issuing Bank under any Letter of Credit against presentation of a demand, draft or certificate or other document which appears to substantially comply with the terms of such Letter of Credit;

(v) any adverse change in the business, assets, operations, properties, condition (financial or otherwise) or prospects of Holdings or any of its Subsidiaries;

(vi) any breach of this Agreement or any other Loan Document by any party thereto;

(vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing; or

(viii) the fact that a Default or Event of Default shall have occurred and be continuing;

 

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provided , in each case, that payment by the applicable Issuing Bank under the applicable Letter of Credit shall not have constituted gross negligence or willful misconduct of such Issuing Bank under the circumstances in question (as determined by a final judgment of a court of competent jurisdiction). In the event any Issuing Bank suffers any monetary loss as a result of a movement in Exchange Rates between the dates of any drawings, payments, reimbursements or other distributions contemplated by this Section 3, the Borrowers shall promptly reimburse the Issuing Bank for any such Exchange Rate related loss upon presentation by the Issuing Bank of a statement describing such loss in reasonable detail.

 

3.5 Nature of Issuing Bank’s Duties .

As between any Borrower and any Issuing Bank, each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit issued by such Issuing Bank by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, such Issuing Bank shall not be responsible for: (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person in connection with the application for and issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged, (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason, (iii) failure of the beneficiary of any such Letter of Credit to comply fully with any conditions required in order to draw upon such Letter of Credit, (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, facsimile or otherwise, whether or not they be in cipher, (v) errors in interpretation of technical terms, (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof, (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing or payment under such Letter of Credit or (viii) any consequences arising from causes beyond the control of such Issuing Bank, including any acts of any Governmental Authorities, and none of the above shall affect or impair, or prevent the vesting of, any of such Issuing Bank’s rights or powers hereunder.

In furtherance and extension and not in limitation of the specific provisions set forth in the first paragraph of this Section 3.5, any action taken or omitted by any Issuing Bank under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put such Issuing Bank under any resulting liability to the Borrowers.

Notwithstanding anything to the contrary contained in this Section 3.5, the Borrowers shall retain any and all rights they may have against any Issuing Bank for any liability arising solely out of the gross negligence or willful misconduct of such Issuing Bank, as determined by a final judgment of a court of competent jurisdiction.

 

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SECTION 4.

CONDITIONS

 

4.1 [Reserved].

 

4.2 Conditions to All Loans.

The effectiveness of this Agreement and obligations of the Lenders to make Loans to any Borrower on each Funding Date are subject to the following further conditions precedent:

A. The Administrative Agent shall have received before that Funding Date, in accordance with the provisions of Section 2.1B, an executed Notice of Borrowing, in each case signed by a Responsible Officer on behalf of each Borrower in a writing delivered to the Administrative Agent.

B. As of that Funding Date, the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) on and as of that Funding Date to the same extent as though made on and as of that date (and provided that with respect to the representations and warranties contained in Sections 1.01(a) and 1.01(c) of each Mortgage, such representations and warranties shall be deemed to be true and correct in all material respects as of each Funding Date so long as the representations and warranties contained in Sections 5.2A and 5.5A of this Agreement shall be true and correct in all respects as of such Funding Date), except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) on and as of such earlier date.

C. As of that Funding Date and after giving effect to the borrowing of any Loans thereon, (i) the Total Utilization of Commitments would not exceed the lesser of (a) the Commitments then in effect or (b) the Availability Amount then in effect and (ii) the aggregate Canadian Revolving Exposure would not exceed 105% of the Canadian Sublimit then in effect.

D. No event shall have occurred and be continuing or would result from the consummation of the borrowing contemplated by such Notice of Borrowing that would constitute a Default or Event of Default.

 

4.3 Conditions to Letters of Credit.

The issuance of any Letter of Credit hereunder (whether or not the applicable Issuing Bank is obligated to issue such Letter of Credit) is subject to the satisfaction of the following additional conditions precedent:

A. On or before the date of issuance of such Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received, in accordance with the provisions of Section 3.1B(i), an executed Notice of Issuance of Letter of Credit, signed by a Responsible Officer on behalf of the Borrowers in a writing delivered to the Administrative Agent, together with all other information specified in Section 3.1B(i) and such other documents or information as the applicable Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit.

B. On the date of issuance of such Letter of Credit, all conditions precedent described in Sections 4.2B and 4.2C shall be satisfied or waived to the same extent as if the issuance of such Letter of Credit were the making of a Loan and the date of issuance of such Letter of Credit were a Funding Date.

 

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SECTION 5.

REPRESENTATIONS AND WARRANTIES

In order to induce the Lenders to enter into this Agreement and to make the Loans, to induce the Issuing Banks to issue Letters of Credit and to induce the other Lenders to purchase participations therein, each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings and the Co-Borrowers jointly and severally represents and warrants to each Agent, each Lender and each Issuing Bank, on the Effective Date, and, jointly and severally with U.S. FinCo, on the Restatement Effective Date, and on each Funding Date, and on the date of issuance of each Letter of Credit, that:

 

5.1 Corporate Status; Corporate Power and Authority; Enforceability; Subsidiaries.

A. Corporate Status. Each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and each Restricted Subsidiary (a) is a duly organized and validly existing corporation or other entity in good standing under the laws of the jurisdiction of its organization and has the corporate or other organizational power and authority to own its property and assets and to transact the business in which it is engaged and (b) has duly qualified and is authorized to do business and is in good standing in all jurisdictions where it is required to be so qualified, except where the failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect.

B. Corporate Power and Authority; Enforceability. Each Loan Party has the corporate or other organizational power and authority to execute, deliver and carry out the terms and provisions of the Loan Documents to which it is a party and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party. Each Loan Party has duly executed and delivered each Loan Document to which it is a party and each such Loan Document constitutes the legal, valid and binding obligation of such Loan Party enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law). Each Loan Party and each of the Restricted Subsidiaries (a) is in compliance with all Applicable Laws and (b) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted except, in each case to the extent that failure to be in compliance therewith could not reasonably be expected to have a Material Adverse Effect.

C. Subsidiaries. On the Effective Date, Holdings does not have any Subsidiaries other than the Subsidiaries listed on Schedule 5.1C. Schedule 5.1C describes the direct and indirect ownership interest of Holdings in each Subsidiary as of the Restatement Effective Date.

 

5.2 No Violation; Governmental Approvals; Collateral Documents.

A. No Violation. None of (a) the execution, delivery and performance by any Loan Party of the Loan Documents to which it is a party and compliance with the terms and provisions thereof or (b) the consummation of the transactions contemplated hereby on the relevant dates therefor, will (i)

 

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contravene any applicable provision of any material Applicable Law of any Governmental Authority, (ii) result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of any of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of the Restricted Subsidiaries (other than Liens created under the Loan Documents) pursuant to, (x) the terms of any material indenture, loan agreement, lease agreement, mortgage or deed of trust or (y) any other material Contractual Obligation, in the case of either clause (x) and (y) to which Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of the Restricted Subsidiaries is a party or by which they or any of their property or assets is bound or (iii) violate any provision of the Organizational Documents of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of the Restricted Subsidiaries, except with respect to any conflict, breach of contravention or default (but not creation of Liens) referred to in clause (ii)(y), to the extent that such conflict, breach, contravention or default could not reasonably be expected to have a Material Adverse Effect.

B. Governmental Approvals . No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, any Governmental Authority is required to authorize or is required in connection with (a) the execution, delivery and performance of any Loan Document or (b) the legality, validity, binding effect or enforceability of any Loan Document, except (i) filings necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties and recordation or registration of the Mortgages, (ii) consents, approvals, exemptions, authorizations, actions, notices and filings that have been duly obtained, taken, given or made and are in full force and effect and (iii) those approvals, consents, exemptions, authorizations, actions, notices or filings described in the Security Agreement, unless, in the case of either clause (a) or clause (b), the failure to obtain or make any of the foregoing could not reasonably be expected to have a Material Adverse Effect.

C. Collateral Documents. The security interests created in favor of the Collateral Agent under the Collateral Documents constitute, as security for the obligations purported to be secured thereby, a legal, valid and enforceable security interest in and perfected First Priority Lien on all of the Collateral (except Deposit Accounts with respect to perfection and priority) referred to therein in favor of the Collateral Agent for the benefit of the Secured Parties. Each Loan Party has good title (whether in fee, as a leasehold or through a license) to its Collateral (subject to liens permitted pursuant to Section 7.2A). No consents, filings or recordings are required in order to perfect (or maintain the perfection or priority of) the security interests purported to be created by any of the Collateral Documents, other than the filing of UCC financing statements by the Collateral Agent, the periodic filing of UCC continuation statements in respect of UCC financing statements filed by or on behalf of the Collateral Agent, the recording of the Mortgages by or on behalf of the Collateral Agent and the filing of the Trademark Security Agreement with the PTO (and any periodic updates thereto required hereunder, in each case to the extent perfection can be achieved by such filings). Notwithstanding the foregoing, it is understood that none of the Co-Borrowers, U.S. FinCo or any Subsidiary Guarantors shall be required to enter into account control agreements to perfect the security interest in favor of the Collateral Agent in any Deposit Account or any “securities accounts” (as defined in the UCC).

D. Margin Regulations. Neither the making of any Loan hereunder nor the use of the proceeds thereof will violate the provisions of Regulation U or X of the Board.

 

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5.3 Financial Statements.

The Historical Financial Statements present fairly in all material respects the financial position and results of operations of Holdings and its consolidated Subsidiaries at the respective dates of such information and for the respective periods covered thereby, subject, in the case of the unaudited financial information, to changes resulting from audit, normal year end audit adjustments and the absence of footnotes. Such financial statements have been prepared in accordance with GAAP consistently applied except to the extent provided in the notes thereto. As of the Effective Date, none of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, the Co-Borrowers or any Restricted Subsidiary has any Indebtedness or other material obligations or liabilities, direct or contingent (other than (i) the liabilities reflected on Schedule 7.1A, (ii) obligations arising under this Agreement and the other Loan Documents, (iii) liabilities incurred in the ordinary course of business and (iv) liabilities under the Unsecured Facility Loan Documents) that, either individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect.

 

5.4 No Material Adverse Change.

Since the Effective Date, no event or change has occurred that has caused or evidences or could reasonably be expected to cause, either individually on in the aggregate, a Material Adverse Effect.

 

5.5 Title to Properties; Liens; Real Property; Intellectual Property.

A. Title to Properties; Liens. As of the Effective Date, and as of each Funding Date thereafter, each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, the Co-Borrowers and their respective Restricted Subsidiaries, and as of each Funding Date, U.S. FinCo and its Restricted Subsidiaries, have good and marketable title to, a valid leasehold interest in, or easements, licenses or other limited property interests in, all properties (including all Mortgaged Properties but other than Intellectual Property, which is dealt with solely in Section 5.5C) that are necessary for the operation of their respective businesses as currently conducted and as proposed to be conducted, free and clear of all Liens (other than Liens permitted by this Agreement) and except where the failure to have such good title could not reasonably be expected to have a Material Adverse Effect.

B. Real Property. Set forth on Schedule 5.5B hereto is a complete and accurate list of all real property located in the United States owned by the U.S. Borrower or any Subsidiary Guarantor as of the Effective Date, and the name of the Person that owns said property as of such date. As of the Effective Date, neither Holdings nor the U.S. Borrower has received any notice of, nor has any knowledge of, any pending or contemplated condemnation proceeding affecting the Mortgaged Properties or any sale or disposition thereof in lieu of condemnation.

C. Intellectual Property. Each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and each of the Restricted Subsidiaries have good and marketable title to, or a valid license or right to use, all patents, trademarks, servicemarks, trade names, copyrights and all applications therefor, and all other intellectual property rights

 

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(collectively, “ Intellectual Property ”), free and clear of all Liens (other than Liens permitted by Section 7.2A), that are necessary for the operation of their respective businesses as currently conducted and as proposed to be conducted, except where the failure to have any such rights could not reasonably be expected to have a Material Adverse Effect.

 

5.6 Litigation; Compliance with Laws.

There are no actions, suits or proceedings (including Environmental Claims) pending or, to the knowledge of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings U.S. FinCo or the Co-Borrowers, threatened with respect to Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or the Restricted Subsidiaries that could reasonably be expected to result in a Material Adverse Effect. None of Holdings, U.S. FinCo, the Co-Borrowers or any of the Restricted Subsidiaries or any of their respective material properties or assets is in violation of, nor will the continued operation of their material properties and assets as currently conducted violate, any law, rule or regulation (including the USA PATRIOT Act and any zoning and building law, ordinance, code or approval, or permits, any Environmental Law) or any restrictions of record or agreements affecting the Collateral, or is in default with respect to any judgment, writ, injunction, decree or order of any Governmental Authority, where such violation or default could reasonably be expected to result in a Material Adverse Effect.

 

5.7 Payment of Taxes.

Holdings and each of its Subsidiaries have filed on a timely basis all federal Canadian and U.S. income Tax returns (as applicable) and all other material Tax returns, domestic and foreign, required to be filed by them and have paid all material Taxes and assessments payable by them that have become due, other than those not overdue by more than 30 days or being contested in good faith (and for which adequate reserves have been established). Each of Holdings and its Subsidiaries (as applicable) have paid, or have provided adequate reserves (in the good faith judgment of the management of Holdings) in accordance with GAAP for the payment of, all material federal Canadian and U.S., state, provincial and foreign income taxes applicable for all prior Fiscal Years and for the current Fiscal Year to the Effective Date.

 

5.8 Governmental Regulation.

None of the Loan Parties is required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

5.9 Compliance with ERISA and Similar Applicable Law.

A. Each Plan is in compliance with ERISA, the Code and any Applicable Law; no Reportable Event has occurred (or is reasonably likely to occur) with respect to any Plan; no Multiemployer Plan is insolvent or in reorganization (or is reasonably likely to be insolvent or in reorganization), and no written notice of any such insolvency or reorganization has been given to any of Holdings, the Co-Borrowers or any of their respective Subsidiaries or any ERISA Affiliate; no Plan is in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA); no Multiemployer Plan has received notice concerning the imposition of any withdrawal liability; no Plan has failed to satisfy the minimum funding standard (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived, or has an accumulated or waived funding deficiency (or is reasonably likely to have such a deficiency); no Plan has filed,

 

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pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, an application for a waiver of the minimum funding standard with respect to any Plan; none of Holdings, the Co-Borrowers, any of their respective Subsidiaries or any ERISA Affiliate has incurred (or is reasonably likely expected to incur) any liability to or on account of a Plan pursuant to Section 307, 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code or has been notified in writing that it will incur any liability under any of the foregoing Sections with respect to any Plan; no Plan is, or is expected to be, in “at risk” status (as defined in Section 430(i)(4) of the Code or Section 303(i)(4) of ERISA; no proceedings have been instituted (or are reasonably likely to be instituted) to terminate or to reorganize any Plan to appoint a trustee to administer any Plan, and no written notice of any such proceedings has been given to any of Holdings, the Co-Borrowers or any of their respective Subsidiaries or any ERISA Affiliate; and the conditions for imposition of a lien that could be imposed under the Code or ERISA on the assets of any of Holdings, the Co-Borrowers or any of their respective Subsidiaries or any ERISA Affiliate do not exist (or are not reasonably likely to exist) nor has Holdings, the Co-Borrowers or any of their respective Subsidiaries or any ERISA Affiliate been notified in writing that such a lien will be imposed on the assets of any of Holdings, any of its Subsidiaries or any ERISA Affiliate on account of any Plan, except to the extent that a breach of any of the representations, warranties or agreements in this Section 5.9 would not result, individually or in the aggregate, in an amount of liability that would be reasonably likely to have a Material Adverse Effect. No Plan has an Unfunded Current Liability that would, individually or when taken together with any other liabilities referenced in this Section 5.9, be reasonably likely to have a Material Adverse Effect. With respect to Multiemployer Plans, the representations and warranties in this Section 5.9, other than any made with respect to (a) liability under Section 4201 or 4204 of ERISA or (b) liability for termination or reorganization of such Plans under ERISA, are made to the best knowledge of Holdings or the Co-Borrowers.

B. Each Foreign Plan is in compliance with Applicable Law and the respective requirements of the governing documents for such plan; with respect to each Foreign Plan, none of Holdings, the Co-Borrowers, any of their respective Subsidiaries, any ERISA Affiliate or any of their respective directors, officers, employees or agents has engaged in a transaction that could subject Holdings, the Co-Borrowers or any of their respective Subsidiaries or any ERISA Affiliate, directly or indirectly, to a tax or civil penalty; reserves have been established in the financial statements furnished to Lenders in respect of any unfunded liabilities in accordance with Applicable Law or, where required, in accordance with ordinary accounting practices in the jurisdiction in which such Foreign Plan is maintained; and no Foreign Benefit Event has occurred, except to the extent that a breach of any of the foregoing representations, warranties or agreements in this Section 5.9 would not result, individually or in the aggregate, in an amount of liability that would be reasonably likely to have a Material Adverse Effect. No Foreign Plan has an Unfunded Current Liability that would, individually or when taken together with any other liabilities referenced in this Section 5.9, be reasonably likely to have a Material Adverse Effect.

 

5.10 Environmental Matters.

A. Except as could not reasonably be expected to have a Material Adverse Effect, (i) Holdings and each of its Subsidiaries is in compliance with all Environmental Laws in all jurisdictions in which Holdings or such Subsidiary, as the case may be, is currently doing business (including having obtained all permits required under Environmental Laws) and (ii) none of Holdings or any of its Subsidiaries has become subject to any pending or, to the knowledge of Holdings or the Co-Borrowers, threatened Environmental Claim or any other Environmental Liability, or knows of any basis therefor or has received any notice thereof.

B. None of Holdings or any of its Subsidiaries has treated, stored, transported or Released Hazardous Materials at or from any currently or formerly owned Real Estate or facility relating to its business in a manner that could reasonably be expected to have a Material Adverse Effect.

 

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5.11 Employee Matters.

There is no strike or work stoppage in existence or threatened involving Holdings, the Co-Borrowers or any of their respective Subsidiaries that could reasonably be expected to have a Material Adverse Effect.

 

5.12 Solvency.

On the Restatement Effective Date, the Loan Parties, on a consolidated basis, are Solvent.

 

5.13 [Reserved].

 

5.14 True and Complete Disclosure.

A. Factual Information and Data. None of the factual information and data (taken as a whole) heretofore or contemporaneously furnished by Holdings, any of its Subsidiaries or any of its or their respective authorized representatives in writing to any Agent or any Lender on or before the Effective Date (including all information contained in the Loan Documents) for purposes of or in connection with this Agreement or any transaction contemplated herein contained any untrue statement of material fact or omitted to state any material fact necessary to make such information and data (taken as a whole) not materially misleading at such time (after giving effect to all supplements so furnished prior to such time) in light of the circumstances under which such information or data was furnished, it being understood and agreed that for purposes of this Section 5.14A, such factual information and data shall not include projections, pro forma financial information or information of a general economic or general industry nature.

B. Projections and Pro Forma Financial Information. The projections and pro forma financial information contained in the information and data referred to in paragraph A of this Section 5.14 were prepared in good faith based upon assumptions believed by Holdings and the Co-Borrowers to be reasonable at the time made, it being recognized by the Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results and such differences may be material.

 

5.15 Sanctioned Persons.

None of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any Co-Borrower or any of their respective Subsidiaries nor, to the Knowledge of Holdings or the Co-Borrowers, any director, officer, agent, employee or Affiliate of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of their respective Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“ OFAC ”); and the Borrowers will not directly or indirectly use the proceeds of the Loans or the Letters of Credit or otherwise make available such proceeds to any person, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

 

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5.16 Insurance. Schedule 5.16 sets forth a true, complete and correct description of all material insurance policies maintained by or on behalf of U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries as of the Effective Date. As of such date, such insurance is in full force and effect and all premiums have been duly paid. U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries have insurance in such amounts and covering such risks and liabilities as are in accordance with normal industry practice.

SECTION 6.

AFFIRMATIVE COVENANTS

Each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers covenants and agrees that, so long as any of the Commitments hereunder shall remain in effect and until payment in full of all of the Loans and other Obligations (other than contingent indemnification obligations, Hedge Obligations under Secured Hedge Agreements or Cash Management Obligations, in each case, not then due and payable) and the cancellation or expiration of all Letters of Credit (or the making of other arrangements with respect to such Letters of Credit reasonably satisfactory to the Administrative Agent and each relevant Issuing Bank), unless the Requisite Lenders shall otherwise give prior written consent, each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers shall perform, and shall cause each of their respective Subsidiaries (to the extent applicable) to perform, all covenants in this Section 6.

 

6.1 Financial Statements and Other Reports.

Holdings will furnish to the Administrative Agent for prompt further distribution to each Lender:

(i)  Quarterly Financials. As soon as available and in any event on or before the date on which such financial statements are required to be filed with the SEC with respect to each of the first three quarterly accounting periods in each Fiscal Year of Holdings (or, if such financial statements are not required to be filed with the SEC, on or before the date that is 45 days after the end of each such quarterly accounting period), the consolidated balance sheet of Holdings and its consolidated Subsidiaries as at the end of such quarterly period and the related consolidated statement of operations for such quarterly accounting period and for the elapsed portion of the Fiscal Year ended with the last day of such quarterly period, and the related consolidated statement of cash flows for the elapsed portion of the Fiscal Year ended with the last day of such quarterly period, and setting forth comparative consolidated figures for the related periods in the prior Fiscal Year or, in the case of such consolidated balance sheet, for the last day of the prior Fiscal Year, together with (a) a statement setting forth the aggregate book value of the Mortgaged Property as of the end of such quarterly period (which aggregate book value shall be determined in substantially the same manner as used to determine the aggregate book value of the Original Mortgaged Property) and the location of each Mortgaged Property and (b) a certificate substantially in the form of Exhibit XVII hereto, all of which shall be certified by a Responsible Officer of Holdings, subject to changes resulting from audit, normal year-end audit adjustments and the absence of footnotes. Notwithstanding the foregoing, the obligations in this clause (i) (excluding those obligations related to the Mortgaged Property) may be satisfied with respect to financial information of Holdings and its consolidated Subsidiaries by furnishing (A) the applicable financial statements of any direct or indirect parent of Holdings or (B) Holdings’ (or any

 

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direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to each of clauses (A) and (B), to the extent such information relates to a parent of Holdings, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to a parent of Holdings, on the one hand, and the information relating to Holdings and its consolidated Subsidiaries on a stand-alone basis, on the other hand.

(ii) Year-End Financials. As soon as available and in any event on or before the date on which such financial statements are required to be filed with the SEC (or, if such financial statements are not required to be filed with the SEC, on or before the date that is 90 days after the end of each such Fiscal Year), (a) the consolidated balance sheet of Holdings and its consolidated Subsidiaries as at the end of such Fiscal Year, and the related consolidated statement of operations and cash flows for such Fiscal Year, setting forth comparative consolidated figures for the preceding Fiscal Year, and certified by independent registered public accountants of recognized national standing whose opinion shall not be qualified as to the scope of audit or as to the status of Holdings and its consolidated Subsidiaries as a going concern, together in any event with a certificate of the accounting firm providing the audit opinion required by this Section 6.1(ii) stating that in the course of its regular audit of the business of Holdings and its consolidated Subsidiaries, which audit was conducted in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge of any Event of Default relating to Section 7.5 that has occurred and is continuing or, if in the opinion of such accounting firm such an Event of Default has occurred and is continuing, a statement as to the nature thereof and (b) a statement setting forth (1) the aggregate book value of the Mortgaged Property as of the end of such Fiscal Year (which aggregate book value shall be determined in substantially the same manner as used to determine the aggregate book value of the Original Mortgaged Property), (2) the location of each Mortgaged Property and (3) recording information for the Mortgage encumbering each Mortgaged Property, together with a certificate substantially in the form of Exhibit XVII hereto. Notwithstanding the foregoing, the obligations in this Section 6.1(ii) (excluding those obligations related to the Mortgaged Property) may be satisfied with respect to financial information of Holdings and its consolidated Subsidiaries by furnishing (A) the applicable financial statements of any direct or indirect parent of Holdings or (B) Holdings’ (or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to each of clauses (A) and (B), (x) to the extent such information relates to a parent of Holdings, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to a parent of Holdings, on the one hand, and the information relating to Holdings and its consolidated Subsidiaries on a stand-alone basis, on the other hand, and (y) to the extent such information is in lieu of information required to be provided under this Section 6.1(ii), such materials are accompanied by an opinion of an independent registered public accounting firm of recognized national standing, which opinion shall not be qualified as to the scope of audit or as to the status of the direct or indirect parent of Holdings, as applicable) and its consolidated Subsidiaries as a going concern.

(iii) Officer’s Certificates. At the time of the delivery of the Section 6.1 Financial Statements, an Officer’s Certificate of Holdings in the form annexed hereto as Exhibit IX-A to the effect that no Event of Default exists or, if any Event of Default does exist, specifying the nature and extent thereof, which certificate shall set forth (A) the calculations required to establish whether Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings,

 

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U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries were in compliance with the provisions of Section 7.5 as at the end of such Fiscal Year or period, as the case may be, (B) a specification of any change in the identity of the Restricted Subsidiaries and Unrestricted Subsidiaries as at the end of such Fiscal Year or period, as the case may be, from the Restricted Subsidiaries and Unrestricted Subsidiaries, respectively, provided to the Lenders on the Effective Date or the most recent Fiscal Year or period, as the case may be and (C) the Capitalization Ratio as of the most recent Calculation Date. If such Officer’s Certificate demonstrates an Event of Default resulting from a violation of Section 7.5, any of the Sponsors may deliver, together with such Officer’s Certificate, notice of their intent to cure (a “ Notice of Intent to Cure ”) such Event of Default pursuant to Section 8.12. At the time of the delivery of the financial statements provided for in Section 6.1(ii), an Officer’s Certificate of the Co-Borrowers in the form annexed hereto as Exhibit IX-B setting forth the information required to be included on Schedules I and II of the Security Agreement or confirming that there has been no change in such information since the Effective Date or the date of the most recent certificate delivered pursuant to this Section 6.1(iii), as the case may be.

(iv) Additional Real Estate Reports . (a) At the option of the Co-Borrowers, a statement setting forth the aggregate book value of the Mortgaged Property as of a date selected by the Co-Borrowers subsequent to the most recent statement with respect to the Mortgaged Property delivered pursuant to Section 6.1(i), Section 6.1(ii) or this Section 6.1(iv) (which aggregate book value shall be determined in substantially the same manner as used to determine the aggregate book value of the Original Mortgaged Property) and the location of each Mortgaged Property, together with a certificate substantially in the form of Exhibit XVII hereto.

(b) If at any time the U.S. Borrower has, subsequent to the date of the most recently delivered report calculating the Aggregate Mortgaged Property Amount pursuant to Section 6.1(i), Section 6.1(ii) or this Section 6.1(iv), as applicable, sold, disposed of or otherwise requested the Collateral Agent (or its agent) to release the Lien it holds for the benefit of the Secured Parties on, Mortgaged Property with an aggregate book value exceeding 25.0% of the Aggregate Mortgaged Property Amount as of the date of such report (the date on which such amount is exceeded, the “ Recalculation Date ”), within five Business Days of such Recalculation Date a statement setting forth the aggregate book value of the Mortgaged Property as of the most recent Recalculation Date (which aggregate book value shall be determined in substantially the same manner as used to determine the aggregate book value of the Original Mortgaged Property and such aggregate book value shall not include the book value of any Mortgaged Property in respect of which the U.S. Borrower has sold, disposed of or otherwise requested the release of the Lien on such Mortgaged Property) and the location of each Mortgaged Property, together with a certificate substantially in the form of Exhibit XVII hereto.

(v) Events of Default, Litigation. Promptly after a Responsible Officer of Holdings, the Co-Borrowers or any of the Restricted Subsidiaries obtains actual knowledge thereof, notice of (i) the occurrence of any event that constitutes a Default or an Event of Default, which notice shall specify the nature thereof, the period of existence thereof and what action Holdings or the Co-Borrowers propose to take with respect thereto and (ii) any litigation or governmental proceeding pending against Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of the Restricted Subsidiaries that could reasonably be expected to result in a Material Adverse Effect.

 

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(vi) ERISA and Similar Applicable Law. Promptly after Holdings, the Co-Borrowers or any of their respective Subsidiaries knows or reasonably should have known of the occurrence of any of the following events that, individually or in the aggregate (including in the aggregate such events previously disclosed or exempt from disclosure hereunder, to the extent the liability therefor remains outstanding), would be reasonably likely to have a Material Adverse Effect, an Officer’s Certificate of Holdings or the Co-Borrowers setting forth details as to such occurrence and the action, if any, that Holdings, the Co-Borrowers, such Subsidiary or any applicable ERISA Affiliate is required or proposes to take, together with any notices (required, proposed or otherwise) given to or filed with or by Holdings, the Co-Borrowers, such Subsidiary, such ERISA Affiliate, the PBGC (or other applicable Governmental Authority (in the case of a Foreign Plan)), a Plan or Foreign Plan participant (other than notices relating to an individual participant’s benefits) or the Plan or Foreign Plan administrator with respect thereto:

(a) with respect to any Plan: that a Reportable Event has occurred; that a Plan has failed to satisfy the minimum funding standard (or has incurred an accumulated funding deficiency) or an application is to be made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including any required installment payments) or an extension of any amortization period under Section 412 of the Code with respect to a Plan; that a Plan having an Unfunded Current Liability has been or is to be terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA (including the giving of written notice thereof); that a Plan has an Unfunded Current Liability that has or will result in a Lien under ERISA or the Code; that proceedings will be or have been instituted to terminate a Plan having an Unfunded Current Liability (including the giving of written notice thereof); that a proceeding has been instituted against Holdings, any Co-Borrower or any of their respective Subsidiaries or an ERISA Affiliate pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan; that the PBGC has notified Holdings, any Subsidiary thereof or any ERISA Affiliate of its intention to appoint a trustee to administer any Plan; that Holdings, any Co-Borrower or any of their respective Subsidiaries or any ERISA Affiliate has failed to make a required installment or other payment pursuant to Section 412 of the Code with respect to a Plan; or that Holdings, any Co-Borrower or any of their respective Subsidiaries or any ERISA Affiliate has incurred or will incur (or has been notified in writing that it will incur) any liability (including any contingent or secondary liability) to or on account of a Plan pursuant to Section 307, 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code and promptly following any request therefor, on and after the effectiveness of Title V of the Pension Act, copies of (i) any documents described in Section 101(k)(1) of ERISA that Holdings, any Co-Borrower or any of their respective Subsidiaries or any ERISA Affiliates may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that Holdings, any Co-Borrower or any of their respective Subsidiaries or any ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if Holdings, any Co-Borrower or any of their respective Subsidiaries or any ERISA Affiliates has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, Holdings, any Co-Borrower or any of their respective Subsidiaries or any ERISA Affiliates shall promptly after the request of any Lender make a request for such documents or notices from the such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and

(b) with respect to any Foreign Plan: that a Foreign Benefit Event has occurred.

 

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(vii) Financial Plans. Within 90 days after the commencement of each Fiscal Year of Holdings, a budget of Holdings and its Subsidiaries in reasonable detail for the Fiscal Year as customarily prepared by management of Holdings for its internal use consistent in scope with the financial statements provided pursuant to Section 6.1(ii), setting forth the principal assumptions upon which such budget is based.

(viii) Environmental Matters. Promptly after obtaining knowledge of any one or more of the following environmental matters, unless such environmental matters would not, individually or when aggregated with all other such matters, be reasonably expected to result in a Material Adverse Effect, notice of:

(a) any pending or threatened Environmental Claim against Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of their Subsidiaries or any Real Estate;

(b) any condition or occurrence on any Real Estate that (x) results in noncompliance by Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of their Subsidiaries with any Environmental Law or (y) could reasonably be anticipated to form the basis of an Environmental Claim against Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of their Subsidiaries or any Real Estate;

(c) any condition or occurrence on any Real Estate that could reasonably be anticipated to cause any restrictions on the ownership, occupancy, use or transferability of such Real Estate under any Environmental Law; and

(d) the taking of any removal or remedial action in response to the actual or alleged presence or Release of any Hazardous Material on any Real Estate.

All such notices shall describe in reasonable detail the nature of the Environmental Claim, condition, occurrence or removal, remedial action and the response thereto. The term “ Real Estate ” means land, buildings and improvements at any time owned or leased by Holdings, the Co-Borrowers or any of their Subsidiaries, but excluding all operating fixtures and equipment, whether or not incorporated into improvements.

(ix) Other Information. Promptly upon filing thereof, copies of any filings (including on Form 10-K, 10-Q or 8-K) or registration statements with, and reports to, the SEC or any analogous Governmental Authority in any relevant jurisdiction by Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of the Restricted Subsidiaries (other than amendments to any registration statement (to the extent such registration statement, in the form it becomes effective, is delivered to the Administrative Agent for further delivery to the Lenders), exhibits to any registration

 

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statement and, if applicable, any registration statements on Form S-8) and copies of all financial statements, proxy statements, notices and reports that Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of the Restricted Subsidiaries shall send to the holders of any publicly issued debt of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and/or any of the Restricted Subsidiaries in their capacity as such holders (in each case to the extent not theretofore delivered to the Administrative Agent for further delivery to the Lenders pursuant to this Agreement) and, with reasonable promptness, such other information (financial or otherwise) as the Administrative Agent on their own behalf or on behalf of any Lender may reasonably request in writing from time to time.

Documents required to be delivered pursuant to Sections 6.1(i), (ii), (vii) and (ix) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 10.7B; provided that: (x) upon written request by the Administrative Agent, Holdings or the Co-Borrowers shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (y) Holdings or the Co-Borrowers shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions ( i.e. , soft copies) of such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents.

 

6.2 Consolidated Corporate Franchises.

Holdings, U.S. Holdings, Canada Intermediate Holdings, Canada Holdings, U.S. FinCo and each Co-Borrower will do, and will cause each Restricted Subsidiary to do, or cause to be done, all things necessary to preserve and keep in full force and effect its existence, corporate rights and authority, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect; provided , however , that Holdings, U.S. Holdings, Canada Intermediate Holdings, Canada Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries may consummate any transaction permitted under Section 7.3 or 7.6.

 

6.3 Payment of Taxes.

Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and each Co-Borrower will pay and discharge, and will cause each of their respective Subsidiaries to pay and discharge, all material Taxes, assessments and governmental charges or levies imposed upon Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, a Co-Borrower or any such Subsidiary or upon its income or profits, or upon any properties belonging to it, prior to the date on which such payments become due, and all lawful material claims that, if unpaid, could reasonably be expected to become a material Lien upon any properties of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, a Co-Borrower or any of the Restricted Subsidiaries; provided that none of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any Co-Borrower or any of their respective Subsidiaries shall be required to pay any such Tax, assessment, charge, levy or claim that is being contested in good faith and by proper proceedings if it has maintained adequate reserves (in the good faith judgment of the management of Holdings) with respect thereto in accordance with GAAP.

 

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6.4 Maintenance of Properties; Insurance.

A. Each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers will, and will cause the Restricted Subsidiaries to, ensure that its properties and equipment necessary to its business in whomsoever’s possession they may be to the extent that it is within the control of such party to cause the same, are kept in good repair, working order and condition, normal wear and tear excepted, and that from time to time there are made in such properties and equipment all appropriate repairs, renewals, replacements, extensions, additions, betterments and improvements thereto, in each case to the extent and in the manner customary for companies in the industry in which the Co-Borrowers, U.S. FinCo and the Restricted Subsidiaries conduct business and consistent with third-party leases, except in each case to the extent the failure to do so could not be reasonably expected to have a Material Adverse Effect.

B. Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers will, and will cause each of the Restricted Subsidiaries to, at all times maintain in full force and effect, with insurance companies that Holdings and the Co-Borrowers believe (in the good-faith judgment of the management of Holdings) are financially sound and responsible at the time the relevant coverage is placed or renewed, insurance in at least such amounts and against at least such risks (and with such risk retentions) as are usually insured against by companies engaged in businesses and owning similar properties in the same general area similar to those engaged in by Holdings and the Co-Borrowers; and will furnish to the Administrative Agent for further delivery to the Lenders, upon written request from the Administrative Agent, information presented in reasonable detail as to the insurance so carried.

C. If at any time the area in which the Premises (as defined in the Mortgages) are located is designated (i) a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo or the Co-Borrowers, as applicable, will, or will cause the owner of the Mortgaged Property to obtain flood insurance in such total amount as the Administrative Agent, the Collateral Agent or the Requisite Lenders may from time to time reasonably require, and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as it may be amended from time to time, or (ii) a “Zone 1” area, obtain earthquake insurance in such total amount as the Administrative Agent, the Collateral Agent or the Requisite Lenders may from time to time reasonably require.

D. With respect to any Mortgaged Property, Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo or the Co-Borrowers, as applicable, will, or will cause the owner of the Mortgaged Property to carry and maintain comprehensive general liability insurance including the “broad form CGL endorsement” and coverage on an occurrence basis against claims made for personal injury (including bodily injury, death and property damage) and umbrella liability insurance against any and all claims, in no event for a combined single limit of less than that which is customary for companies in the same or similar businesses operating in the same or similar locations, naming the Collateral Agent as an additional insured, on forms reasonably satisfactory to the Collateral Agent.

 

6.5 Inspection; Books and Records.

Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers will, and will cause the Restricted Subsidiaries to, maintain proper books of record

 

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and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied shall be made of all material financial transactions and matters involving the assets and business of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or such Restricted Subsidiary, as the case may be. Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers will, and will cause the Restricted Subsidiaries to, permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the reasonable expense of the Co-Borrowers and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the U.S. Borrower; provided that, excluding any such visits and inspections during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of the Administrative Agent and the Lenders under this Section 6.5 and the Administrative Agent shall not exercise such rights more often than two (2) times during any calendar year absent the existence of an Event of Default and only one (1) such time shall be at the Co-Borrowers’ expense; and provided further , that when an Event of Default exists, the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Co-Borrowers at any time during normal business hours and upon reasonable advance notice. The Administrative Agent and the Lenders shall give Holdings and the Co-Borrowers the opportunity to participate in any discussions with Holdings’ independent public accountants.

 

6.6 Compliance with Statutes.

Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers will, and will cause each of their respective Subsidiaries to, comply with all Applicable Laws (including Environmental Laws and permits required thereunder), except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

6.7 Execution of Guaranty and Collateral Documents by Future Subsidiaries.

A. Subject to any applicable limitations set forth in the Guaranty or the Security Agreement, as applicable, Holdings, U.S. FinCo and the U.S. Borrower will cause (i) any direct or indirect wholly owned Domestic Subsidiary of U.S. FinCo or the U.S. Borrower (other than any Unrestricted Subsidiary or any Excluded Subsidiary) formed or otherwise purchased or acquired after the Effective Date (including pursuant to a Permitted Acquisition), (ii) any Domestic Subsidiary of U.S. FinCo or the U.S. Borrower (other than any Unrestricted Subsidiary or any Excluded Subsidiary) that is not a wholly owned Subsidiary on the Effective Date hereof but subsequently becomes a wholly owned Subsidiary (other than any Unrestricted Subsidiary or any Excluded Subsidiary) and (iii) any Subsidiary of Holdings that acquires Capital Stock of U.S. FinCo or any Co-Borrower after the Effective Date, in each case to execute a supplement to each of the Guaranty, the Security Agreement and any Intercreditor Agreement that may at such time be in effect (to the extent the Loan Parties are required to be parties to such Intercreditor Agreement), substantially in the form of Annex B, Annex 1 or the applicable annex of such Intercreditor Agreement, if any, as applicable, to the respective agreement in order to become a Guarantor under the Guaranty, a Grantor under the Security Agreement and a Loan Party (or term of similar import) under any such Intercreditor Agreement (to the extent the Loan Parties are required to be parties to such Intercreditor Agreement).

 

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Subject to any applicable limitations set forth in the Security Agreement, Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the U.S. Borrower will pledge, and, if applicable, will cause each other Guarantor (or Person required to become a Guarantor pursuant to Section 6.7A) to pledge, to the Collateral Agent for the benefit of the Secured Parties, (i) 100% of the Capital Stock of U.S. FinCo, the U.S. Borrower, the Canadian Borrower and each Domestic Subsidiary of U.S. FinCo or the U.S. Borrower (other than any Disqualified Domestic Subsidiary or any Domestic Subsidiary that is owned, either directly or indirectly, by a Foreign Subsidiary), (ii) 65% of the issued and outstanding Voting Stock and 100% of the issued and outstanding Capital Stock that is not Voting Stock of each first-tier Foreign Subsidiary (and each Disqualified Domestic Subsidiary) of U.S. FinCo or the U.S. Borrower or of any Guarantor (or Person required to become a Guarantor pursuant to this Section 6.7A), in each case, formed or otherwise purchased or acquired after the Effective Date, in each case pursuant to a supplement to the Security Agreement substantially in the form of Annex A thereto, (iii) all evidences of Indebtedness in excess of $7,500,000 received by Holdings, any Borrower or any other Guarantor (or Person required to become a Guarantor pursuant to Section 6.7A), in each case pursuant to a supplement to the Security Agreement substantially in the form of Annex A thereto, and (iv) any global promissory notes executed after the Effective Date evidencing Indebtedness of Holdings, any Borrower and each of their Subsidiaries that is owing to Holdings, any Borrower or any other Guarantor (or Person required to become a Guarantor pursuant to Section 6.7A), in each case pursuant to a supplement to the Security Agreement in the form of Annex A thereto.

B. Each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers agrees that all Indebtedness in excess of $7,500,000 of Holdings and each of its Subsidiaries that is owing to any Grantor shall be evidenced by one or more global promissory notes in substantially the form of Exhibit XV or Exhibit XVI attached hereto, as the case may be, or in such other form as may be approved by the Administrative Agent.

 

6.8 Further Assurances.

A. Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and each Borrower will, and will cause each other Loan Party to, execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents), which may be required under any Applicable Law, or which the Administrative Agent, the Collateral Agent or the Requisite Lenders may reasonably request, in order to grant, preserve, protect and perfect the validity and priority of the security interests created or intended to be created by the Security Agreement or any Mortgage, all at the expense of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries.

B. At its election, the U.S. Borrower and U.S. FinCo may cause Real Estate located in the United States to be subjected to a Lien securing the applicable Obligations. Upon any such election, the U.S. Borrower or U.S. FinCo, as applicable, will take, and cause the relevant Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens consistent with the applicable requirements of the Collateral Documents, including actions described in paragraph (A) of this Section 6.8, all at the expense of such Loan Parties. Any Mortgage delivered to the Collateral Agent in accordance with the preceding sentence shall be accompanied by (x) a policy or policies of title insurance or a marked up pro forma for such insurance (with the title insurance policy to follow) in an amount reasonably acceptable to the

 

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Collateral Agent with respect to such Mortgaged Property and issued by a nationally recognized title insurance company insuring the Lien of such Mortgage as a valid Lien (with the priority described therein) on the Mortgaged Property described therein, free of any other Liens except as expressly permitted under this Agreement and which may contain an exception for survey matters to the extent a current survey is not provided, together with such endorsements and reinsurance as the Administrative Agent or the Collateral Agent may reasonably request and which are available at commercially reasonable rates in the jurisdiction where the applicable Mortgaged Property is located, (y) to the extent in the possession of the U.S. Borrower or any Subsidiary Guarantor, a survey for such Mortgaged Property and (z) a local opinion of counsel to the U.S. Borrower (or in the event a Subsidiary Guarantor is the mortgagor, to such Subsidiary Guarantor) with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Collateral Agent.

C. Notwithstanding anything herein to the contrary, (I) if the Collateral Agent determines in its reasonable discretion that the cost of creating or perfecting any Lien on any property is excessive in relation to the benefits afforded to the Lenders thereby, then such property may be excluded from the Collateral for all purposes of the Loan Documents, (II) in the event that the Collateral Agent forecloses upon any Mortgaged Property in accordance with the terms of this Agreement, the Collateral Documents and the applicable Mortgage, the Collateral Agent shall honor any contracts of sale with any bona fide third party purchaser then existing for the purchase of such Mortgaged Property, so long as such sale would be permitted under this Agreement if it were made by Holdings or any of its Subsidiaries, or (III) if any Subsidiary Guarantor hereunder (1) is Disposed of in a transaction permitted by this Agreement to a Person other than a Co-Borrower or a Guarantor (or a Person that would be required to become a Guarantor), (2) ceases, at any time, to qualify as a Subsidiary of Holdings (other than an Excluded Subsidiary) or (3) is designated as an Excluded Subsidiary in accordance with the terms of this Agreement, then, upon the request of the U.S. Borrower or U.S. FinCo, as applicable, the Administrative Agent shall, so long as no Default or Event of Default exists or would result therefrom, release such Subsidiary from its Guarantee pursuant to a release in form and substance reasonably acceptable to the Administrative Agent and the Co-Borrowers.

 

6.9 Transactions with Affiliates.

Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and each Borrower will, and will cause the Restricted Subsidiaries to, enter into all transactions with any Affiliate of Holdings or any Borrower on terms substantially as favorable to Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, a Co-Borrower or such Restricted Subsidiary as would be obtainable by Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, a Co-Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate, other than (a) transactions among Loan Parties or any Restricted Subsidiary or any entity that becomes a Restricted Subsidiary as a result of such transaction, (b) the payment of Transaction Costs, (c) loans, guarantees and other transactions by Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries permitted under Section 7.8, in the case of Holdings, or Section 7.1, in the case of U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries, (d) the payment of management, consulting, financial advisory, monitoring, oversight and similar fees to the Sponsors as set forth in the Management Agreements as in effect on the Effective Date (unless an Event of Default specified in Section 8.1 or 8.5 has occurred), plus reasonable expenses and indemnities actually incurred by the Sponsors and their respective Affiliates

 

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in connection with services provided to any Loan Party under the Management Agreements, (e) equity issuances, repurchases, retirements or other acquisitions or retirements of Capital Stock by U.S. FinCo or the Co-Borrowers permitted under Section 7.4, (f) employment, compensation and severance arrangements and health and benefit plans between Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrower and the Restricted Subsidiaries and their respective officers and employees in the ordinary course of business, (g) the payment of customary fees, compensation and reasonable out-of-pocket costs to, and indemnities provided on behalf of, directors, managers, consultants, officers and employees of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any Co-Borrower and the Restricted Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of, or provision of services to Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries, (h) transactions pursuant to permitted agreements in existence on the Effective Date and set forth on Schedule 6.9 or any amendment thereto to the extent such an amendment is not adverse, taken as a whole, to the Lenders in any material respect, (i) Dividends, redemptions and repurchases permitted under Section 7.4, (j) customary payments (including reimbursement of fees and expenses) by Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any Co-Borrower and any Restricted Subsidiaries to the Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities (including in connection with acquisitions or divestitures, whether or not consummated), which payments are approved by the majority of the members of the Board of Directors or a majority of the disinterested members of the Board of Directors of the General Partner or any Co-Borrower, in good faith, (k) any transaction or series of related transactions having consideration in an aggregate amount less than $1,000,000, (l) transactions pursuant to the terms of the Unsecured Facility Loan Documents, including any payments and prepayments of any amounts thereunder and (m) equity issuances to directors, managers, consultants, officers and employees of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries in connection with the Transactions.

 

6.10 End of Fiscal Years; Fiscal Quarters.

Each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and each Co-Borrower will, for financial reporting purposes, cause (a) each of its, and each Restricted Subsidiary’s, Fiscal Years to end on December 31 of each year and (b) each of its, and each Restricted Subsidiary’s, fiscal quarters to end on dates consistent with such Fiscal Year-end and Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers’ past practice; provided , however , that Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers may, upon written notice to the Administrative Agent, change the financial reporting convention specified above to any other financial reporting convention reasonably acceptable to the Administrative Agent, in which case Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary in order to reflect such change in financial reporting.

 

6.11 Use of Proceeds.

The Borrowers will use the Letters of Credit and the proceeds of all Loans for the purposes set forth in Section 2.5.

 

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6.12 Changes in Business.

Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, each Borrower and each Restricted Subsidiary, taken as a whole, will not fundamentally and substantively alter the character of their business, taken as a whole, from the business conducted by Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, each Borrower and each Restricted Subsidiary, taken as a whole, on the Restatement Effective Date and except for other business activities complementary, incidental, ancillary or related to any of the foregoing or reasonable developments or extensions thereof. None of the following will constitute a violation of this covenant: (a) the engaging by a Subsidiary of Holdings in, or the withdrawal from any business related to, a Real Estate Business, (b) a change in the geographic regions of the United States or Canada in which the Subsidiaries of Holdings operate and (c) the reorganization of the business of the Subsidiaries of Holdings among the Subsidiaries.

 

6.13 Designation of Subsidiaries.

The Board of Directors of Holdings, U.S. FinCo or a Co-Borrower may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (ii) immediately after giving effect to such designation, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis, with the Financial Performance Covenants as of the last day of the most recent Test Period for which Section 6.1 Financials have been delivered and regardless of whether such Test Period included a Measurement Quarter (and, as a condition precedent to the effectiveness of any such designation, the Co-Borrowers shall deliver to the Administrative Agent a certificate setting forth in reasonable detail the calculations demonstrating such compliance), (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if such Subsidiary is U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo or a Borrower and (iv) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purposes of any Unsecured Facility Loan Document or any Refinanced Unsecured Facility Indebtedness. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by U.S. FinCo or the Co-Borrowers therein at the date of designation in an amount equal to the net book value of U.S. FinCo’s or the Co-Borrowers’ (as applicable) investment therein as reflected in the most recently delivered Section 6.1 Financials. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time.

 

6.14 Ratings.

Holdings and the Co-Borrowers will exercise commercially reasonable efforts to maintain at all times a public corporate rating from S&P and a public corporate family rating from Moody’s.

 

6.15 ANTI-MONEY LAUNDERING LEGISLATION.

Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and each Co-Borrower will, and will cause each Subsidiary of Holdings to, promptly after the request by any Lender, provide all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada).

 

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SECTION 7.

NEGATIVE COVENANTS

Each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers covenants and agrees that, so long as any of the Commitments hereunder shall remain in effect and until payment in full of all of the Loans and other Obligations (other than contingent indemnification obligations, Hedge Obligations under Secured Hedge Agreements or Cash Management Obligations, in each case, not then due and payable) and the cancellation or expiration of all Letters of Credit (or the making of other arrangements with respect to such Letters of Credit reasonably satisfactory to the Administrative Agent and each relevant Issuing Bank), unless the Requisite Lenders shall otherwise give prior written consent, U.S. FinCo and the Co-Borrowers shall perform, and shall cause each of their respective Subsidiaries (as applicable) to perform, all covenants in this Section 7 and Holdings, U.S. Holdings, Canada Holdings and Canada Intermediate Holdings shall perform all covenants in Section 7.8.

 

7.1 Indebtedness.

U.S. FinCo and the Co-Borrowers will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, permit to exist, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness or Disqualified Stock, except:

(i) Indebtedness arising under the Loan Documents;

(ii) Indebtedness of (a) U.S. FinCo, a Co-Borrower or any Restricted Subsidiary that is a Guarantor owing to Holdings, U.S. FinCo, a Co-Borrower or any of their respective Subsidiaries; provided that any Indebtedness owing to any Subsidiary that is not a Guarantor by Holdings, a Co-Borrower, U.S. FinCo or any Guarantor shall be subject to subordination terms as set forth in the Affiliate Subordination Agreement or on terms that are reasonably satisfactory to the Administrative Agent, in each case to the extent permitted by Applicable Laws and regulatory requirements in the case of any Insurance Subsidiary, (b) any Subsidiary that is not a Guarantor owing to any other Subsidiary that is not a Guarantor and (c) subject to Section 7.3 (but excluding clause (xxi) thereof), any Subsidiary that is not a Guarantor owing to Holdings, U.S. FinCo, a Co-Borrower or any Restricted Subsidiary that is a Guarantor.

(iii) Indebtedness in respect of any bankers’ acceptance, bank guarantee, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims) but, in any event, not in respect of Hedge Agreements;

(iv) except for Guarantee Obligations in respect of Indebtedness incurred under clauses (vii), (x), (xi) or (xxvi) of this Section 7.1, Guarantee Obligations incurred by (a) any

 

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Restricted Subsidiary in respect of Indebtedness of U.S. FinCo or a Co-Borrower or any other Restricted Subsidiary that is permitted to be incurred under this Agreement, (b) the U.S. Borrower in respect of Indebtedness of U.S. FinCo, the Canadian Borrower or any Restricted Subsidiary that is permitted to be incurred under this Agreement, (c) the Canadian Borrower in respect of (x) Indebtedness of any Restricted Subsidiary of U.S. FinCo or the U.S. Borrower that is permitted to be incurred under this Agreement or (y) Indebtedness of any Restricted Subsidiary of the Canadian Borrower that is permitted to be incurred under this Agreement and (d) U.S. FinCo in respect of Indebtedness of a Co-Borrower or any Restricted Subsidiary that is permitted to be incurred under this Agreement; provided , that Guarantee Obligations of a Loan Party in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than Guarantee Obligations described in subclause (c)(y) of this clause (iv)) shall be subject to Section 7.3 (but excluding clause (xxii) thereof);

(v) Guarantee Obligations incurred in the ordinary course of a Real Estate Business in respect of obligations to suppliers, customers, franchisees, lessors and licensees of U.S. FinCo, a Co-Borrower or any Restricted Subsidiary;

(vi) (a) Attributable Indebtedness and other Indebtedness arising under Capital Leases entered into in connection with Sale Leasebacks permitted under Section 7.7, (b) Indebtedness arising under Capital Leases, other than Capital Leases in effect on the Effective Date (and set forth on Schedule 7.1A), and Capital Leases entered into pursuant to subclause (a) above and (c) any refinancing of any Indebtedness specified in subclause (a) or (b) above; provided that the aggregate amount of Indebtedness incurred pursuant to clause (b) above and any refinancing thereof shall not exceed $25,000,000 in the aggregate at any time outstanding; provided further that, except to the extent otherwise expressly permitted hereunder, the principal amount of any Refinancing Indebtedness incurred pursuant to clause (c) above does not exceed the principal amount of the Indebtedness so refinanced outstanding immediately prior to such refinancing except by an amount equal to the unpaid accrued interest and premium thereon, plus other reasonable amounts paid and fees and expenses incurred in connection with such refinancing plus an amount equal to any existing unutilized commitment and letters of credit undrawn thereunder;

(vii) (a) Existing Indebtedness (other than Indebtedness permitted under Section 7.1(ix)) and (b) any refinancing thereof; provided that, except to the extent otherwise expressly permitted hereunder, (A) the principal amount of any Refinancing Indebtedness incurred pursuant to this clause (b) does not exceed the principal amount of the Indebtedness so refinanced outstanding immediately prior to such refinancing, except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such refinancing plus an amount equal to any existing unutilized commitment and letters of credit undrawn thereunder and (B) the direct and contingent obligors with respect to such Refinancing Indebtedness are the only direct or contingent obligors of the Indebtedness being refinanced;

(viii) Indebtedness in respect of Hedge Agreements incurred in the ordinary course of business and not for speculative purposes;

(ix) (a) Indebtedness under the Unsecured Facility Loan Documents in an aggregate principal amount not to exceed $625,000,000 at any time outstanding and (b) any Indebtedness incurred to refinance all or any portion of the Indebtedness incurred pursuant to

 

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this Section 7.1(ix) (it being understood that the Senior Unsecured Notes shall constitute Indebtedness incurred under this clause (b)); provided that, except to the extent otherwise expressly permitted hereunder, (A) the principal amount of any Refinancing Indebtedness incurred pursuant to this clause (b) does not exceed the greater of (x) $625,000,000 and (y) the principal amount of the Indebtedness so refinanced outstanding immediately prior to such refinancing plus, in the case of this subclause (y), an amount equal to the unpaid accrued interest and premium thereon (including any prepayment penalties), plus other reasonable amounts paid and fees and expenses (including any underwriting discount or Original Issue Discount) incurred in connection with such refinancing, (B) the direct obligor(s) with respect to such Refinancing Indebtedness are Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and/or one or both Co-Borrowers and each contingent obligor with respect to such Indebtedness is a Guarantor, (C) such Refinancing Indebtedness shall have a final maturity date that is at least 120 days after the latest Commitment Termination Date at the time of refinancing, (D) such Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of the Indebtedness under the Unsecured Facility Loan Documents; provided that, if a majority in aggregate principal amount of such Refinancing Indebtedness is not held by any Affiliate of Holdings, then such Refinancing Indebtedness may be subject to scheduled amortization not in excess of 1% per annum of the original principal amount of such Refinancing Indebtedness, (E) the terms and conditions (excluding as to interest rate, fees, funding discount and prepayment or redemption premium) of any such Refinancing Indebtedness, taken as a whole, are not materially less favorable to Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and their Subsidiaries than the terms and conditions of the Indebtedness under this Agreement; provided that Holdings shall deliver to the Administrative Agent concurrently with the incurrence of such Indebtedness, an Officer’s Certificate stating that Holdings has determined in good faith that such Indebtedness satisfies the requirements of this Section 7.1(ix)(b)(E), (F) such Refinancing Indebtedness shall not require the maintenance or achievement of any financial performance standards other than (I) as a condition to the taking of specified actions and (II) financial performance standards that are substantially the same as the Financial Performance Covenants (including with respect to any associated definitions of terms to the extent that such terms apply to the calculation thereof); provided that the levels of any such financial performance standards shall be no more restrictive to Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers than the corresponding levels set forth in this Agreement as of the date hereof and (G) such Refinancing Indebtedness, if secured, shall comply with the requirements of Section 7.2A(viii) (such Indebtedness, “ Refinanced Unsecured Facility Indebtedness ”); provided that the Senior Unsecured Notes shall be deemed to satisfy the criteria set forth in Sections 7.1(ix)(b)(A) through 7.1(ix)(b)(G); provided , further that Indebtedness under the Unsecured Facility Credit Agreement shall be deemed, solely for purposes of this clause (xi), to not constitute Indebtedness to the extent that each lender of such Indebtedness under the Unsecured Facility Credit Agreement, by assignment or otherwise, is a Loan Party;

(x) (a) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that are acquired by U.S. FinCo or a Co-Borrower or any Restricted Subsidiary, in each case after the Effective Date as the result of a Permitted Acquisition; provided that (w) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (x) such

 

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Indebtedness is not guaranteed in any respect (other than any Non-Recourse Indemnity Guaranty) by Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, a Co-Borrower or any Restricted Subsidiary (other than any such person that so becomes a Restricted Subsidiary), (y) (I) the Capital Stock of such Person is pledged to the Collateral Agent to the extent required under Section 6.7 and (II) such Person executes a supplement to each of the Guaranty, the Security Agreement and any Intercreditor Agreement that may at such time be in effect to the extent required pursuant to Section 6.7A (or alternative guarantee and security arrangements in relation to the Obligations) to the extent required under Section 6.7 or 6.8B, as applicable and (z) the Fixed Charge Coverage Ratio for the most recent Test Period for which Section 6.1 Financials have been delivered, calculated on a Pro Forma Basis after giving effect to such acquisition and the incurrence of such Indebtedness as if each had occurred on the first day of such Test Period, would (i) be equal to or greater than 2.00 to 1.00 or (ii) if less than 2.00 to 1.00, not be less than (x) 1.75 to 1.00 and (y) the Fixed Charge Coverage Ratio for such Test Period were it not so calculated on a Pro Forma Basis, and (b) any refinancing of any Indebtedness specified in subclause (a) above; provided that, except to the extent otherwise expressly permitted hereunder, (1) the principal amount of any Refinancing Indebtedness incurred pursuant to this clause (b) does not exceed the principal amount of the Indebtedness so refinanced outstanding immediately prior to such refinancing except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such refinancing plus an amount equal to any existing unutilized commitment and letters of credit undrawn thereunder, (2) the direct and contingent obligors with respect to such Refinancing Indebtedness are the only direct or contingent obligors of the Indebtedness being refinanced and (3) such Indebtedness shall have a final maturity date equal to or later than the final maturity date of, and have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of, the Indebtedness being refinanced;

(xi) (a) Indebtedness of U.S. FinCo, a Co-Borrower or any Restricted Subsidiary incurred to finance a Permitted Acquisition; provided that (1) (A) Holdings is in compliance, on a Pro Forma Basis after giving effect to such Permitted Acquisition and the incurrence of such Indebtedness as of the last day of the most recent Test Period for which Section 6.1 Financials have been delivered, with the Financial Performance Covenants and regardless of whether such Test Period included a Measurement Quarter, (B) the Fixed Charge Coverage Ratio for the most recent Test Period for which Section 6.1 Financials have been delivered, calculated on a Pro Forma Basis after giving effect to such Permitted Acquisition and the incurrence of such Indebtedness as if each had occurred on the first day of such Test Period, (I) would be equal to or greater than 2.00 to 1.00 or (II) if less than 2.00 to 1.00 would not be less than (x) 1.75 to 1.00 and (y) the Fixed Charge Coverage Ratio for such Test Period were it not so calculated on a Pro Forma Basis, and (C) Holdings has delivered to the Administrative Agent an Officer’s Certificate of the U.S. Borrower to the effect set forth in subclauses (A) and (B) above setting forth reasonably detailed calculations demonstrating compliance with subclauses (A) and (B) above, (2) if such Indebtedness is incurred by a Loan Party, such Indebtedness, if secured, does not require any scheduled payment of principal (including pursuant to a sinking fund obligation) or mandatory redemption or redemption at the option of the holders thereof (except for redemptions in respect of asset sales and changes in control on terms not less favorable to Holdings, U.S. FinCo, the Co-Borrowers or the Restricted Subsidiaries than the terms of this Agreement) prior to the date that is 91 days after the latest Commitment Termination Date hereunder at the time of incurrence and (3) if

 

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such Indebtedness is incurred by a Restricted Subsidiary that is not a Guarantor, such Indebtedness is not guaranteed in any respect by Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, a Co-Borrower or any other Guarantor except as permitted under Section 7.3 (excluding clause (xxi) thereof), and (b) any refinancing of any Indebtedness specified in subclause (a) above; provided that, except to the extent otherwise expressly permitted hereunder, (1) the principal amount of any Refinancing Indebtedness incurred pursuant to this clause (b) does not exceed the principal amount of the Indebtedness so refinanced outstanding immediately prior to such refinancing except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such refinancing plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder, (2) the direct and contingent obligors with respect to such Refinancing Indebtedness are direct or contingent obligors of the Indebtedness being refinanced and (3) such Indebtedness shall have a final maturity date equal to or later than the final maturity date of, and have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of, the Indebtedness being refinanced;

(xii) (a) unsecured Indebtedness in respect of obligations of U.S. FinCo, a Co-Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligation) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements and (b) unsecured Indebtedness in respect of intercompany obligations of U.S. FinCo, a Co-Borrower or any Restricted Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection with the borrowing of money;

(xiii) Indebtedness arising from agreements of U.S. FinCo, a Co-Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case entered into in connection with Permitted Acquisitions, other Investments and the disposition of any business, assets or Capital Stock permitted hereunder, other than Guarantee Obligations incurred by any Person acquiring all or any portion of such business, assets or Capital Stock for the purpose of financing such acquisition;

(xiv) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations incurred in the ordinary course of a Real Estate Business and not in connection with the borrowing of money or Hedge Agreements;

(xv) Indebtedness of U.S. FinCo, a Co-Borrower or any Restricted Subsidiary consisting of (a) obligations to pay insurance premiums or (b) take or pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedge Agreements;

(xvi) Indebtedness representing deferred compensation to employees of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the

 

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Co-Borrowers and the Restricted Subsidiaries incurred in the ordinary course of business, including but not limited to the issuance of Capital Stock to such employees under equity plans;

(xvii) Indebtedness consisting of promissory notes issued by U.S. FinCo, a Co-Borrower or any Restricted Subsidiary that is a Guarantor to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Capital Stock of Holdings (or any direct or indirect parent thereof) permitted by Section 7.4(iii);

(xviii) Indebtedness consisting of obligations of U.S. FinCo, a Co-Borrower or the Restricted Subsidiaries under deferred compensation to their employees or other similar arrangements incurred by such Person in connection with the Transactions and Permitted Acquisitions or any other Investment expressly permitted hereunder;

(xix) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business;

(xx) additional Indebtedness and any refinancing thereof; provided that the aggregate principal amount of Indebtedness incurred pursuant to this clause (xx) shall not exceed the greater of (i) 2.0% of Consolidated Adjusted Tangible Assets and (ii) $30,000,000 at the time of incurrence;

(xxi) Guarantee Obligations incurred by (a) U.S. FinCo or the U.S. Borrower in respect of Non-Recourse Indebtedness of any Restricted Subsidiary of U.S. FinCo or the U.S. Borrower, as applicable, that is permitted to be incurred under this Agreement and (b) the Canadian Borrower in respect of Non-Recourse Indebtedness of any Restricted Subsidiary of the Canadian Borrower that is permitted to be incurred under this Agreement (all such Guarantee Obligations referred to in the foregoing clauses (a) and (b), “ Non-Recourse Payment Guaranties ”); provided that (x) the aggregate principal amount of all such Non-Recourse Payment Guaranties incurred pursuant to clause (a) above, when aggregated with, and without duplication of, (1) the aggregate principal amount of all Indebtedness incurred pursuant to Section 7.1(xxii)(a) and (2) the aggregate amount of all Investments made pursuant to Section 7.3(xxii)(a), shall not exceed the greater of (i) 7.5% of Consolidated Adjusted Tangible Assets of all Restricted Subsidiaries of U.S. FinCo or the U.S. Borrower that are not Guarantors at the time of incurrence of such Guarantee Obligations and (ii) $75,000,000, and (y) at the time of and after giving effect to the incurrence of all such Non-Recourse Payment Guaranties incurred pursuant to clause (b) above, no Event of Default shall have occurred and be continuing;

(xxii) (a) other Indebtedness of Restricted Subsidiaries of U.S. FinCo or the U.S. Borrower that are not Guarantors and any refinancing thereof in an aggregate principal amount not to exceed, when aggregated with, and without duplication of, (1) the aggregate principal amount of all Guarantee Obligations incurred pursuant to Section 7.1(xxi)(a) and (2) the aggregate amount of all Investments made pursuant to Section 7.3(xxii)(a), the greater of (i) 7.5% of Consolidated Adjusted Tangible Assets of all such Restricted Subsidiaries of U.S. FinCo or the U.S. Borrower that are not Guarantors at the time of incurrence of such

 

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Indebtedness and (ii) $75,000,000 and (b) other Indebtedness of Restricted Subsidiaries of the Canadian Borrower that are not Guarantors and any refinancing thereof so long as, at the time of incurrence of such Indebtedness and after giving effect thereto, no Event of Default shall have occurred and be continuing;

(xxiii) unsecured Indebtedness incurred by any Loan Party; provided that (A) the terms of such Indebtedness do not provide for (i) any financial maintenance covenants or (ii) any scheduled amortization, payments of principal, mandatory redemption, sinking fund obligations or similar scheduled payments (other than regularly scheduled payments of interest and scheduled amortization not in excess of 1% per annum of the original principal amount of such Indebtedness) prior to the Commitment Termination Date hereunder in effect at the time of the issuance or incurrence of such Indebtedness (other than (w) customary offers to repurchase upon a change of control, asset sale or event of loss, (x) mandatory prepayments with the proceeds of asset sales, events of loss, Refinancing Indebtedness and equity contributions or issuances, (y) exchanges for Refinancing Indebtedness and (z) customary acceleration rights after an event of default) and (B) at the time of such incurrence and after giving effect thereto and to the proposed use of the proceeds thereof, (x) Holdings would be in compliance with the Financial Performance Covenants, calculated on a Pro Forma Basis as of the last day of the most recent Test Period for which Section 6.1 Financials have been delivered and regardless of whether such Test Period included a Measurement Quarter, (y) the ratio of (i) Consolidated Adjusted EBITDA to (ii) Consolidated Cash Interest Expense, calculated on a Pro Forma basis for the twelve-month period ending on the last day of the most recent Test Period for which Section 6.1 Financials have been delivered, would not be less than 2.00 to 1.00; and (z) no Default or Event of Default shall have occurred and be continuing;

(xxiv) Indebtedness incurred by any Loan Party, the obligations in respect of which are secured by Liens on the Collateral which are intended to rank pari passu or junior to the Liens securing the Obligations (“ Additional Secured Indebtedness ”); provided that (A) the terms of such Indebtedness do not provide for any scheduled amortization, payments of principal, mandatory redemption, sinking fund obligations or similar scheduled payments (other than regularly scheduled payments of interest) prior to the latest Commitment Termination Date hereunder in effect at the time of the issuance or incurrence of such Indebtedness (other than (w) customary offers to repurchase upon a change of control, asset sale or event of loss, (x) mandatory prepayments with the proceeds of asset sales, events of loss, Refinancing Indebtedness and equity contributions or issuances, (y) exchanges for Refinancing Indebtedness and (z) customary acceleration rights after an event of default), (B) the obligations in respect thereof shall not be secured by any Lien on any asset of any Loan Party or any Subsidiary or Affiliate of Holdings other than any asset constituting Collateral and no Subsidiary other than a Loan Party shall be an obligor thereon, (C) at the time of such incurrence and after giving effect thereto and to the proposed use of the proceeds thereof, (w) Holdings would be in compliance with the Financial Performance Covenants, calculated on a Pro Forma Basis as of the last day of the most recent Test Period for which Section 6.1 Financials have been delivered and regardless of whether such Test Period included a Measurement Quarter, (x) no Default or Event of Default shall have occurred and be continuing, (y) the ratio of (i) Consolidated Adjusted EBITDA to (ii) Consolidated Cash Interest Expense, calculated on a Pro Forma basis for the twelve-month period ending on the last day of the most recent Test Period for which Section 6.1 Financials have been delivered, would not be less than 2.00 to 1.00 and (z) the sum of, without duplication, (1) the Unused

 

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Revolving Commitments at such time, (2) the Letter of Credit Usage at such time, (3) Consolidated Total Secured Debt outstanding at such time and (4) Indebtedness incurred pursuant to Section 7.1(ix) outstanding at such time (whether such Indebtedness is secured or unsecured) shall not exceed 50% of Consolidated Adjusted Tangible Assets, and (D) the secured parties with respect thereto (or a trustee or other authorized representative thereof) shall have entered into an Intercreditor Agreement with the Administrative Agent and the Collateral Agent for the benefit of the Secured Parties, in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent (which Intercreditor Agreement, in the case of Additional Secured Indebtedness secured by Liens that are intended to rank pari passu to the Liens securing the Obligations, shall be on terms at least as favorable to the Collateral Agent and the Administrative Agent, on behalf of the Lenders hereunder, as the summary of terms attached as Exhibit XI hereto) and which shall include, whether the Liens in respect of such Indebtedness are intended to rank pari passu or junior with the Liens securing the Obligations, the First-Out Provisions;

(xxv) Obligations (including obligations to pay assessments) for, pledges of assets in respect of, and Guaranties of, bond financings or payments due to political subdivisions or enterprises thereof or with respect to homeowners association obligations, in each case, arising in the ordinary course of a Real Estate Business;

(xxvi) Indebtedness that is Non-Recourse Indebtedness (and any refinancings thereof that constitutes Non-Recourse Indebtedness) and Non-Recourse Indemnity Guaranties;

(xxvii) Indebtedness in respect of a PAPA;

(xxviii) Indebtedness deemed to exist pursuant to the terms of a joint venture agreement as a result of the failure of any Co-Borrower, U.S. FinCo or any Restricted Subsidiary to make a required capital contribution therein; provided, however, that the only recourse on such Indebtedness is limited to such Co-Borrower, U.S. FinCo or Restricted Subsidiary’s equity interests in the related joint venture;

(xxix) Indebtedness incurred by Mortgage Subsidiaries in their ordinary course of business;

(xxx) Guarantee Obligations incurred by the Canadian Borrower or any of its Restricted Subsidiaries in respect of any Indebtedness incurred by joint ventures or similar entities that do not constitute Restricted Subsidiaries so long as, at the time of the incurrence thereof and after giving effect thereto, no Event of Default shall have occurred and be continuing; and

(xxxi) all customary premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in each of the clauses (i) through (xxx) above.

Any Indebtedness arising in connection with any transfer of funds in connection with U.S. FinCo’s or the Co-Borrowers’ cash management system in the ordinary course of business shall be disregarded for purposes of this Section 7.1. To the extent that the creation, incurrence or assumption of any Indebtedness could be attributable to more than one subsection of this Section 7.1, U.S. FinCo

 

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and/or the Co-Borrowers may at the time of incurrence thereof allocate such Indebtedness to any one or more of such subsections and in no event shall the same portion of Indebtedness be deemed utilized or be attributable to more than one subsection of this Section 7.1.

 

7.2 Limitation on Liens, etc.

A. Liens.

U.S. FinCo and the Co-Borrowers will not, nor will they permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or permit to exist any Lien upon any property or assets of any kind (real or personal, tangible or intangible) of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any Restricted Subsidiary, whether now owned or hereafter acquired, except:

(i) Liens created pursuant to the Loan Documents to secure the Obligations;

(ii) Permitted Encumbrances;

(iii) Liens securing Indebtedness permitted pursuant to Section 7.1(vi); provided that (a) such Liens do not at any time encumber any property, except for accessions to such property, other than the property financed by such Indebtedness and the proceeds and products thereof and (b) with respect to Capital Leases, such Liens do not at any time extend to or cover any assets (except for accessions to such assets) other than the assets subject to such Capital Leases; provided , that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;

(iv) each Lien existing on the Effective Date and listed on Schedule 7.2; provided that (a) such Lien does not extend to any other property or asset of U.S. FinCo, the Co-Borrowers or any Restricted Subsidiary other than after acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted by Section 7.1 and proceeds and products thereof and (b) such Lien shall secure only those obligations that it secures on the Effective Date and any refinancings of such obligations permitted by Section 7.1;

(v) the modification, replacement, extension or renewal of any Lien permitted by (iii), (iv), (vi), (vii), (viii) and (xix) of this Section 7.2A upon or in the same assets theretofore subject to such Lien (other than after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.1 and proceeds and products thereof) or the refinancing of the Indebtedness or other obligations secured thereby as and to the extent permitted by Section 7.1;

(vi) Liens existing on the assets of any Person that becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 6.13), or existing on assets acquired, pursuant to a Permitted Acquisition or any other Investment permitted under Section 7.3 to the extent the Liens on such assets secure Indebtedness permitted by Section 7.1(x) or other obligations permitted by this Agreement; provided that such Liens attach at all times only to the same assets that such Liens (other than after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.1 and proceeds and products thereof)

 

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attached to, and secure only the same Indebtedness or obligations (or any refinancing of such Indebtedness permitted by Section 7.1) that such Liens secured, immediately prior to such Permitted Acquisition or such other Investment, as applicable;

(vii) (a) Liens placed upon the Capital Stock of any Restricted Subsidiary acquired pursuant to a Permitted Acquisition to secure Indebtedness incurred pursuant to Section 7.1(xi) in connection with such Permitted Acquisition and (b) Liens placed upon the assets of such Restricted Subsidiary to secure a guarantee by such Restricted Subsidiary of any such Indebtedness of U.S. FinCo or any Co-Borrower or any other Restricted Subsidiary, in either case incurred pursuant to Section 7.1(xi) in connection with such Permitted Acquisition;

(viii) Liens on the Collateral securing obligations under any Unsecured Facility Loan Document, Refinanced Unsecured Facility Indebtedness or any Indebtedness incurred pursuant to Section 7.1(xxiv) (and, in each case, all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest in respect of such Indebtedness); provided that such Liens are pari passu or junior to the Liens securing the Obligations in accordance with, and otherwise subject to, an Intercreditor Agreement with the Administrative Agent and the Collateral Agent for the benefit of the Secured Parties, in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent (which Intercreditor Agreement, in the case of Indebtedness secured by Liens that are intended to rank pari passu to the Liens securing the Obligations, shall be on terms at least as favorable to the Collateral Agent and the Administrative Agent, on behalf of the Lenders hereunder, as the summary of terms attached as Exhibit XI hereto or as otherwise reasonably satisfactory to the Administrative Agent) and which shall include, whether the Liens in respect of such Indebtedness are intended to rank pari passu or junior with the Liens securing the Obligations, the First-Out Provisions;

(ix) Liens securing Indebtedness or other obligations of any Subsidiary that is not a Guarantor in favor of any other Subsidiary;

(x) Liens (a) of a collection bank arising under Section 4-210 of the UCC on items in the course of collection and (b) in favor of a banking institution arising as a matter of law encumbering deposits (including the right to set off) and which are within the general parameters customary in the banking industry;

(xi) Liens (a) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.3 to be applied against the purchase price for such Investment, and (b) consisting of an agreement to sell, transfer, lease or otherwise dispose of any property in a transaction permitted under Section 7.6B or in any transaction excluded from the definition of “Asset Sale”, in each case, solely to the extent such Investment or sale, disposition, transfer or lease, as the case may be, would have been permitted on the date of the creation of such Lien;

(xii) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by U.S. FinCo, the Co-Borrowers or any of the Restricted Subsidiaries in the ordinary course of a Real Estate Business permitted by this Agreement;

 

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(xiii) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 7.3;

(xiv) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

(xv) Liens that are contractual rights of set-off (a) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (b) relating to pooled deposit, automatic clearing house or sweep accounts of U.S. FinCo, any Co-Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries or (c) relating to purchase orders and other agreements entered into with customers of U.S. FinCo, a Co-Borrower or any Restricted Subsidiary in the ordinary course of business;

(xvi) Liens solely on any cash earnest money deposits made by U.S. FinCo, a Co-Borrower or any of the Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;

(xvii) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

(xviii) Liens with respect to property or assets of any Subsidiary of Holdings that is not a Loan Party securing Indebtedness of a Subsidiary of Holdings that is not a Loan Party permitted under Section 7.1(xxii);

(xix) Liens not otherwise permitted by this Section 7.2A so long as the aggregate outstanding amount of Indebtedness and other obligations secured thereby at any time outstanding does not exceed the greater of (i) 2.0% of Consolidated Adjusted Tangible Assets at the time of incurrence and (ii) $30,000,000;

(xx) pledges and deposits in the ordinary course of business securing liability for reimbursement and indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to U.S. FinCo, the Co-Borrowers or any Restricted Subsidiary;

(xxi) Liens arising in the ordinary course of business to secure accounts payable or similar trade obligations of U.S. FinCo, the Co-Borrowers or any Restricted Subsidiary not constituting Indebtedness;

(xxii) Liens deemed to exist by reason of (x) any encumbrance or restriction (including put and call arrangements) with respect to the Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement or (y) any encumbrance or restriction imposed under any contract for the sale by U.S. FinCo, a Co-Borrower or any Subsidiary of U.S. FinCo or a Co-Borrower of the Capital Stock of any Subsidiary of U.S. FinCo or a Co-Borrower, or any business unit or division of a Co-Borrower or any Subsidiary of U.S. FinCo or a Co-Borrower permitted under this Agreement; provided that in each case such Liens shall extend only to the relevant Capital Stock;

 

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(xxiii) Liens securing Non-Recourse Indebtedness of U.S. FinCo, the Co-Borrowers or a Restricted Subsidiary thereof; provided that such Liens do not at any time encumber any property, except for accessions to such property, other than the property financed by such Indebtedness and the proceeds and products thereof;

(xxiv) Liens securing obligations of any Loan Party to any third party in connection with PAPAs, any option, repurchase right or right of first refusal to purchase real property granted to the master developer or the seller of real property that arises as a result of the non-use or non-development of such real property by a Loan Party and joint development agreements with third parties to perform and/or pay for or reimburse the costs of construction and/or development related to or benefiting any Loan Party’s property and property belonging to such third parties, in each case entered into in the ordinary course of the Loan Party’s business; provided that such Liens do not at any time encumber any property, except for accessions to such property, other than the property financed by such Indebtedness and the proceeds and products thereof;

(xxv) Liens on assets owned by any Excluded Subsidiary;

(xxvi) Liens on assets of the Canadian Borrower or any of its Subsidiaries granted pursuant to the terms and conditions of the Amended Canadian Surviving Debt Documents;

(xxvii) Liens on assets of the Canadian Borrower or any of its Subsidiaries securing Guarantee Obligations incurred pursuant to Section 7.1(xxx); and

(xxviii) Liens on assets of the Canadian Borrower or any of its Subsidiaries securing Guarantee Obligations incurred pursuant to subclause (c)(y) of Section 7.1(iv) so long as, at the time of the incurrence thereof and after giving effect thereto, no Event of Default shall have occurred and be continuing.

Each of the Lenders and the Collateral Agent hereby agree that, as and when any of the Co-Borrowers or any Subsidiary of the Co-Borrowers, from time to time, notifies the Collateral Agent of a grant or creation of a Lien, covenant, condition, restriction, reservation, Development Agreement, right of way or other similar encumbrance on, or any platting or replatting of or the recordation or filing of any condominium declaration for, any Mortgaged Property or any portion thereof (or any amendment of any of the foregoing) which Lien, covenant, condition, restriction, reservation, Development Agreement, platting, replatting, condominium declaration or right of way or other similar encumbrance (or amendment thereto, if applicable) was or is being incurred (x) in respect of (I) any Indebtedness incurred, recorded, filed or created prior to the Effective Date to acquire such Mortgaged Property or any portion thereof or (II) any Indebtedness incurred, recorded, filed or created after the Effective Date to acquire such Mortgaged Property or any portion thereof and which Mortgaged Property was made subject to the Lien securing the Obligations pursuant to Section 6.8B hereof (or to refinance any such Indebtedness described in clauses (I) and (II) above) or (y) in connection with the development or marketing of any such Mortgaged Property and not in respect of Indebtedness, in each case as permitted under this Agreement after the Effective Date hereof (each, a “ Permitted Subordination Event ”), and requests in writing (the “ Subordination Notice ”) that the Collateral Agent subordinate the Lien it holds for the benefit of the Secured Parties on such

 

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Mortgaged Property or any portion thereof (including any related personal property) and/or acknowledge that the Lien it holds for the benefit of the Secured Parties on such Mortgaged Property or any portion thereof (including any related personal property) is subordinate to such Liens, covenants, conditions, restrictions, reservations, Development Agreements, plattings, replattings, condominium declarations and rights of way or other similar encumbrances (or amendments thereto, if applicable), then the Collateral Agent shall deliver to the applicable Co-Borrower or Subsidiary with respect to such Permitted Subordination Event a subordination or any other instrument reasonably necessary or appropriate to consummate the actions contemplated above (and in recordable form, if so requested) as soon as reasonably practicable after receipt of the Subordination Notice; provided that any such request shall be accompanied by a certificate executed by a Responsible Officer of the applicable Subsidiary or a Co-Borrower certifying that (i) no Default or Event of Default shall have occurred and be continuing, (ii) such Permitted Subordination Event is in respect of a Lien or transaction permitted under the Loan Documents and (iii) such Permitted Subordination Event was or is (x) in respect of any Indebtedness incurred, recorded, filed or created (I) prior to the Effective Date to acquire such Mortgaged Property or any portion thereof or (II) after the Effective Date to acquire such Mortgaged Property or any portion thereof or which Mortgaged Property was made subject to the Liens securing the Obligations pursuant to Section 6.8B hereof (or to refinance any such Indebtedness described in clauses (I) and (II) above) or (y) in connection with the development or marketing of any such Mortgaged Property and not in respect of Indebtedness. Each of the Lenders hereby consents to the subordination of Collateral as set forth above without the necessity of any further action or consent on its part. Subject to the immediately preceding two sentences, nothing herein or in any other Loan Document is intended to subordinate or postpone, and shall not be interpreted as subordinating or postponing, or as any agreement to subordinate or postpone, any Lien created by any of the Loan Documents to any Lien permitted by this Section 7.2A. The Collateral Agent shall not unreasonably refuse to execute any non-disturbance agreements reasonably requested by any material tenants under any leases, subleases, licenses or sublicenses in respect of real property on which properties owned or leased by a Co-Borrower or any Subsidiary of a Co-Borrower are located, provided that such leases, subleases, licenses or sublicenses are otherwise permitted under this Agreement. Subject to the last sentence of this paragraph, each of the parties hereto further acknowledges and agrees that the Collateral Agent and the U.S. Borrower shall promptly, and in any event prior to the first delivery of a Mortgage under this Agreement, enter into arrangements (which may include the granting of powers of attorney) reasonably acceptable to the Collateral Agent and the U.S. Borrower (and thereafter maintain) with a title agent or other third party reasonably acceptable to the Collateral Agent and the U.S. Borrower which authorize such title agent or other third party to take the actions on behalf of the Collateral Agent required to be taken by the Collateral Agent in connection with any Permitted Subordination Event and the entry into and maintenance of such arrangements shall be deemed to satisfy the obligations of the Collateral Agent with respect to such Permitted Subordination Events required pursuant to this paragraph and in connection with any consent or authorization required to be given pursuant to the immediately succeeding paragraph. Notwithstanding anything in this Section 7.2(A) to the contrary, if (x) no reasonably qualified title agent or third party shall be willing to enter into or maintain the arrangement described in this paragraph (the “ Subordination Arrangement ”) or (y) the Collateral Agent shall reasonably believe that any title agent or third party is taking actions on behalf of the Collateral Agent pursuant to any Subordination Arrangement which the Collateral Agent is not required to take under the Subordination Arrangement, then the Collateral Agent shall have no obligation to enter into or maintain the Subordination Agreement (with respect to the occurrence of clause (x) above) or to maintain the Subordination Arrangement (with respect to the occurrence of clause (y) above).

 

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Further, each of the Lenders and the Collateral Agent hereby agrees that, as and when the U.S. Borrower or any Subsidiary of the U.S. Borrower, from time to time, notifies the Collateral Agent of its intention, in connection with the development or marketing of any Mortgaged Property, to form or enter into any homeowner, condominium or similar association with respect to any Mortgaged Property, file any modification to any plat that has been filed in respect of any Mortgaged Property or take any other action in the ordinary course of a Real Estate Business in connection with the development of any Mortgaged Property, and the consent or acknowledgment of the Collateral Agent, as the holder of a Mortgage or as beneficiary of a deed of trust encumbering such Mortgaged Property, is required under Applicable Law or under any condominium declaration, declaration of covenants, conditions and restrictions or other Liens permitted under the Loan Documents in connection therewith (in each case, other than a request for subordination which is the subject of the immediately prior paragraph), then the Collateral Agent shall deliver its written consent or acknowledgment thereto or any other instrument reasonably necessary or appropriate to consummate the actions contemplated above (and in recordable form, if so requested) as soon as reasonably practicable after receipt of the notice from the U.S. Borrower or any of its Subsidiaries. Each of the Lenders hereby consents to the execution and delivery of such consent as set forth above without the necessity of further action or consent on its part.

B. No Further Negative Pledges; Restrictive Agreements. U.S. FinCo and the Co-Borrowers will not, nor will they permit any Restricted Subsidiary to, enter into or permit to exist any Contractual Obligation (other than this Agreement or any other Loan Document) that limits the ability of (A) the Co-Borrowers or any Guarantor to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Secured Parties with respect to the Obligations or under the Loan Documents or (B) any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Capital Stock or to make or repay loans or advances to U.S. FinCo, any Co-Borrower or any Restricted Subsidiary or to guarantee Indebtedness of U.S. FinCo, a Co-Borrower or any Restricted Subsidiary; provided that the foregoing shall not apply to Contractual Obligations that (i)(x) exist on the Effective Date and (to the extent not otherwise permitted by this Section 7.2B) are listed on Schedule 7.2 hereto and (y) to the extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness or other obligations, are set forth in any agreement evidencing any permitted refinancing of such Indebtedness or obligation so long as such refinancing does not expand the scope of such Contractual Obligation, (ii) are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of a Co-Borrower or U.S. FinCo, as applicable, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of a Co-Borrower or U.S. FinCo, as applicable, (iii) represent Indebtedness of a Restricted Subsidiary of a Co-Borrower or U.S. FinCo, as applicable, that is not a Guarantor to the extent such Indebtedness is permitted by Section 7.1, (iv) arise pursuant to agreements entered into with respect to any sale, transfer, lease or other disposition permitted by Section 7.6B, (v) are customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted by Section 7.3 and applicable solely to such joint venture entered into in the ordinary course of business, (vi) with respect to clause (A) above, are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.1, but solely to the extent any negative pledge relates to the property financed by or the subject of such Indebtedness, (vii) with respect to clause (A) above, are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto or proceeds thereof, (viii) comprise restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 7.1 to the extent that such restrictions apply only to the property or assets securing such Indebtedness, (ix) with respect to clause (A) above, are customary provisions restricting subletting or assignment of any

 

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lease governing a leasehold interest of U.S. FinCo, a Co-Borrower or any Restricted Subsidiary, (x) with respect to clause (A) above, are customary provisions restricting assignment of any agreement entered into in the ordinary course of a Real Estate Business, (xi) are restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business, (xii) are imposed by Applicable Law, (xiii) exist under the Unsecured Facility Loan Documents and any documentation governing Refinanced Unsecured Facility Indebtedness (including, for the avoidance of doubt, the Senior Unsecured Notes) and (xiv) contractual obligations that require “lockbox” or similar obligations with respect to Non-Recourse Indebtedness.

 

7.3 Investments; Joint Ventures.

U.S. FinCo and the Co-Borrowers will not, nor will they permit any Restricted Subsidiary to, make or permit to exist any Investment, except:

(i) extensions of trade credit and credit in connection with the sale of Lots and Housing Units, asset purchases (including purchases of inventory, supplies and materials) and the licensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business;

(ii) Investments in assets that were Cash Equivalents at the time made;

(iii) any loan or advance to an officer, director, partner or employee of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any Co-Borrower or any Restricted Subsidiary made in the ordinary course of business or in accordance with past practice; provided , however , that any such loan or advance exceeding $1,000,000 shall have been approved by the Governing Body of Holdings;

(iv) Investments (a) existing or contemplated on the Effective Date and listed on Schedule 7.3 and any modifications, replacements, extensions, renewals or reinvestments thereof and (b) Investments existing on the Effective Date of a Co-Borrower or any Restricted Subsidiary in a Co-Borrower or any other Restricted Subsidiary and any modification, replacement, renewal, extension or reinvestment thereof, so long as the aggregate amount of all Investments pursuant to this clause (iv) is not increased at any time above the amount of such Investments existing on the Effective Date;

(v) Investments in Hedge Agreements permitted by Section 7.1(viii);

(vi) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;

(vii) Investments to the extent that payment for such Investments is made solely with Capital Stock of Holdings (or any direct or indirect parent thereof);

(viii) Investments constituting non-cash proceeds of sales, transfers and other dispositions of assets to the extent permitted by Section 7.6B;

 

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(ix) Investments in U.S. FinCo, a Co-Borrower or any Restricted Subsidiary that is a Guarantor and Investments by any Subsidiary that is not a Guarantor in any other Subsidiary;

(x) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;

(xi) loans to Holdings by U.S. FinCo or a Co-Borrower that could otherwise be made as a Dividend permitted under Section 7.4;

(xii) Investments in the ordinary course of business consisting of Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;

(xiii) advances of payroll payments to employees in the ordinary course of business;

(xiv) Guaranties by U.S. FinCo, a Co-Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;

(xv) Investments constituting Permitted Acquisitions; provided that the aggregate amount of any such Investment, as valued at the Fair Market Value of such Investment at the time such Investment is made, made by U.S. FinCo, a Co-Borrower or any Restricted Subsidiary in any Subsidiary that shall not be, or after giving effect to such Investment, shall not become a Guarantor, shall not cause the aggregate amount of all such Investments made pursuant to this clause (xv) (as so valued) to exceed, when combined with, and without duplication of, the aggregate amount of Investments made pursuant to the first proviso to Section 7.3(xix), an amount equal to the sum of (1) $25,000,000 and (2) an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount shall not exceed the amount of such Investment valued at the Fair Market Value of such Investment at the time such Investment was made); provided , further , however , that the limitations set forth in the immediately preceding proviso shall not apply to any Permitted Acquisition if at the time of such Permitted Acquisition the Fixed Charge Coverage Ratio for the most recent Test Period for which Section 6.1 Financials have been delivered, calculated on a Pro Forma Basis after giving effect to the consummation of such Permitted Acquisition and the incurrence of any Indebtedness in connection therewith as if such consummation and incurrence had occurred on the first day of such Test Period, (I) would be equal to or greater than 2.00 to 1.00 or (II) if less than 2.00 to 1.00, would not be less than (x) 1.75 to 1.00 and (y) the Fixed Charge Coverage Ratio for such Test Period were it not so calculated on a Pro Forma Basis;

(xvi) Investments made to repurchase or retire Capital Stock of Holdings (or any direct or indirect parent thereof) owned by any employee stock ownership plan or key employee stock ownership plan of Holdings (or any direct or indirect parent thereof);

 

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(xvii) any additional Investments (including Investments in Minority Investments and Unrestricted Subsidiaries and in joint ventures or similar entities that do not constitute Restricted Subsidiaries) as valued at the Fair Market Value of such Investment at the time each such Investment is made; provided that the aggregate amount of such Investments (as so valued) shall not cause the aggregate amount of all such Investments made pursuant to this clause (xvii) (as so valued) to exceed the sum of (1) $25,000,000 and (2) an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in respect of any such Investment (which amount shall not exceed the amount of such Investment valued at the Fair Market Value of such Investment at the time such Investment was made); provided , further , however , that the limitations set forth in the immediately preceding proviso shall not apply to any Investment if at the time of such Investment the Fixed Charge Coverage Ratio for the most recent Test Period for which Section 6.1 Financials have been delivered, calculated on a Pro Forma Basis after giving effect to such Investment and the incurrence of any Indebtedness in connection therewith as if such consummation and incurrence had occurred on the first day of such Test Period, (I) would be equal to or greater than 2.00 to 1.00 or (II) if less than 2.00 to 1.00, would not be less than (x) 1.75 to 1.00 and (y) the Fixed Charge Coverage Ratio for such Test Period were it not so calculated on a Pro Forma Basis;

(xviii) the Acquisition;

(xix) Investments in Restricted Subsidiaries that are not Guarantors; provided that the aggregate amount of any such Investment, as valued at the Fair Market Value of such Investment at the time each such Investment is made, shall not cause the aggregate amount of all such Investments made pursuant to this clause (xix) (as so valued) to exceed, when combined with, and without duplication of, the aggregate amount of Investments made pursuant to the first proviso to Section 7.3(xv), an amount equal to the sum of (1) $25,000,000 and (2) an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount shall not exceed the amount of such Investment valued at the Fair Market Value of such Investment at the time such Investment was made);

(xx) Investments of a Restricted Subsidiary acquired after the Effective Date or of any Person merged into U.S. FinCo or a Co-Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary in accordance with Section 7.6A after the Effective Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;

(xxi) Investments consisting of Indebtedness, fundamental changes, Dispositions and Dividends permitted under Sections 7.1, 7.4, 7.6A and 7.6B;

(xxii) intercompany Investments in the form of loans, advances or extensions of credit by U.S. FinCo or a Co-Borrower or any Restricted Subsidiary that is a Guarantor to (a) any Restricted Subsidiary of U.S. FinCo or the U.S. Borrower that is not a Guarantor or (b) any Restricted Subsidiary of the Canadian Borrower that is not a Guarantor, in each case in the ordinary course of business for working capital purposes; provided that (x) such loans, advances or extensions of credit made by U.S. FinCo, the U.S. Borrower or any Subsidiary Guarantor shall be evidenced by one global promissory note that shall be pledged to the

 

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Collateral Agent for the benefit of the Secured Parties and which shall be executed by each Restricted Subsidiary that is not a Guarantor that shall receive such loan, advance or extension of credit, (y) the amount of all Investments made pursuant to clause (a) of this Section 7.3(xxii), when aggregated with, and without duplication of, (1) the aggregate principal amount of all Guarantee Obligations incurred pursuant to Section 7.1(xxi)(a) and (2) the aggregate principal amount of all Indebtedness incurred pursuant to Section 7.1(xxii)(a), shall not exceed the greater of (i) 7.5% of Consolidated Adjusted Tangible Assets of all such Restricted Subsidiaries of U.S. FinCo or the U.S. Borrower that are not Guarantors at the time of the making of such Investment and (ii) $75,000,000 and (z) at the time of any Investment made pursuant to clause (b) of this Section 7.3(xxii) and after giving effect thereto, no Event of Default shall have occurred and be continuing;

(xxiii) capital contributions or other Investments in Beneva Indemnity Company or any other Insurance Subsidiary by any direct or indirect parent company of Beneva Indemnity Company or any other Insurance Subsidiary to the extent required to comply with Applicable Laws (including solvency laws) or to satisfy other regulatory requirements applicable to Beneva Indemnity Company or such other Insurance Subsidiary; and

(xxiv) any Designated Asset Investment, the Fair Market Value (as determined at the time of such Investment) of which at the time of such Investment, when aggregated with and without duplication of the Designated Asset Investments Aggregate Amount, the Designated Asset Dividends Aggregate Amount and the Designated Asset Sales Aggregate Amount, shall not exceed $150,000,000 in the aggregate.

Any Investment arising in connection with any transfer of funds in connection with U.S. FinCo’s or the Co-Borrowers’ cash management system in the ordinary course of business shall be disregarded for purposes of this Section 7.3. To the extent that the making of any Investment could be deemed a use of more than one subsection of this Section 7.3, U.S. FinCo and/or the Co-Borrowers may at the time of the making thereof select the subsection(s) to which such Investment or a portion thereof will be deemed a use and in no event shall the same Investment or same portion of such Investment be deemed a use of or be attributable to more than one subsection of this Section 7.3.

 

7.4 Restricted Payments.

U.S. FinCo and each Co-Borrower will not declare or pay any dividends (other than dividends payable solely in the Capital Stock of U.S. FinCo or a Co-Borrower) or return any capital to its stockholders or make any other distribution, payment or delivery of property or cash to its stockholders as such, in each case in respect of any Capital Stock held by such stockholder, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock of any direct or indirect parent now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit U.S. FinCo, any Co-Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 7.3 (other than clause (xxi) thereof)) any shares of any class of the Capital Stock of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings or the Capital Stock of U.S. FinCo or a Co-Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of the Capital Stock of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings or the Capital Stock of U.S. FinCo or a Co-Borrower) (all of the foregoing “ Dividends ”); provided that:

(i) U.S. FinCo and each Co-Borrower may redeem in whole or in part any of its Capital Stock for another class of Capital Stock or rights to acquire its Capital Stock or with proceeds from substantially concurrent equity contributions or issuances of new shares of its Capital Stock; provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders as those contained in the Capital Stock redeemed thereby;

 

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(ii) U.S. FinCo and each Co-Borrower may make Investments permitted by Section 7.3 (other than clause (xxi) thereof);

(iii) U.S. FinCo and each Co-Borrower may declare and pay Dividends to Holdings, U.S. Holdings, Canada Holdings or Canada Intermediate Holdings, the proceeds of which are used to redeem, acquire, retire or repurchase shares of Holdings’ Capital Stock (or any options or warrants or stock appreciation rights issued with respect to any of such Capital Stock) (or to allow any of Holdings’ direct or indirect parent companies to so redeem, retire, acquire or repurchase its Capital Stock) held by current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of Holdings and its Subsidiaries, upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or option plan, stock subscription plan, employment termination agreement or any employment agreements or stockholders’ agreement; provided that except with respect to non-discretionary repurchases, acquisitions, retirement, or redemptions pursuant to the terms of any stock option or stock appreciation rights plan, any management, director or employee stock ownership or option plan, stock subscription plan, employment termination agreement or any employment or shareholder agreement, the aggregate amount of all cash paid in respect of all such shares of Capital Stock so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (A) $10,000,000 plus (ii) all amounts obtained by Holdings and contributed to any Co-Borrower during such calendar year from the sale of such Capital Stock to other present or former officers, consultants, employees and directors in connection with any permitted compensation and incentive arrangements plus (iii) all amounts obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this clause (iii) may be carried forward to succeeding Fiscal Years and utilized to make payments pursuant to this clause (iii);

(iv) [Reserved];

(v) to the extent constituting Dividends, U.S. FinCo and each Co-Borrower may enter into and consummate transactions expressly permitted by any provision of Section 7.6A;

(vi) in addition to the foregoing Dividends and so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, U.S. FinCo and the Co-Borrowers and their respective Restricted Subsidiaries may make additional Dividends so long as after giving pro forma effect to any such Dividends and any Indebtedness incurred in

 

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connection therewith, (x) Holdings would be in compliance with the Financial Performance Covenants calculated on a Pro Forma Basis as of the last day of the most recent Test Period for which Section 6.1 Financials have been delivered regardless of whether such Test Period included a Measurement Quarter, (y) except in respect of any Designated Asset Dividend, the Capitalization Ratio as of the last day of the most recent Test Period for which Section 6.1 Financials have been delivered, calculated on a Pro Forma Basis and regardless of whether such Test Period included a Measurement Quarter, would not be greater than 0.45 to 1.00 and (z) the sum of the Unused Availability and the aggregate amount of unrestricted Cash and Cash Equivalents of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries (in each case free and clear of all Liens, other than Liens granted under the Collateral Documents and nonconsensual liens permitted by Section 7.2) would be no less than $75,000,000;

(vii) U.S. FinCo and each Co-Borrower may make and pay Dividends to Holdings to repurchase Capital Stock of Holdings (or any of Holdings’ direct or indirect parent companies) deemed to occur upon cashless exercise of stock options or warrants held by individuals who are or were officers, managers, consultants, directors and/or employees of Holdings or any of its Subsidiaries (or their respective spouses, former spouses, executors, administrators, heirs or legatees) if such Capital Stock represents a portion of the exercise price, or withholding taxes payable in connection with the exercise, of such options or warrants;

(viii) U.S. FinCo and each Co-Borrower may make and pay Dividends to Holdings (or, at the election of Holdings and to the extent that such payment would otherwise be permitted as a Dividend to Holdings, may make payments to such other Persons as Holdings may specify for the account of Holdings):

(a) the proceeds of which will be used to pay (or to make Dividends to allow any direct or indirect parent of Holdings to pay) the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or such parent), but only to the extent of taxes that U.S. FinCo and/or the Co-Borrowers would have to pay if they filed tax returns on a standalone basis for each of themselves and their respective Subsidiaries;

(b) the proceeds of which shall be used by Holdings to pay (or to make Dividends to allow any direct or indirect parent of Holdings to pay) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $2,500,000 in any Fiscal Year plus any actual, reasonable and customary indemnification claims made by directors or officers of Holdings (or any parent thereof);

(c) the proceeds of which shall be used by Holdings to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence; and

(d) the proceeds of which shall be used by Holdings to pay (or to make dividends to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;

 

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(ix) U.S. FinCo and each Co-Borrower may make payments described in Sections 6.9(b), 6.9(d), 6.9(f), 6.9(g) and 6.9(h);

(x) the Canadian Borrower may declare and pay Dividends to Canada Intermediate Holdings in an amount not exceeding the net proceeds of any Refinanced Unsecured Facility Indebtedness incurred in accordance with this Agreement; provided that (i) such proceeds that are so paid as a Dividend to Canada Intermediate Holdings are subsequently paid as a Dividend to Canada Holdings and (ii) such proceeds are applied by Canada Holdings to repay in full all outstanding amounts owed by Canada Holdings in respect of the Unsecured Facility Loan Documents, in each case within five Business Days of receipt; and

(xi) U.S. FinCo and each Co-Borrower may declare and pay Dividends to Holdings in order for Holdings to declare and pay Dividends on its common stock following a Qualified Public Offering of up to 6% per annum of the net proceeds received by or contributed to Holdings in or from any such Qualified Public Offering and subsequently contributed to U.S. FinCo or a Co-Borrower.

7.5 Financial Covenants . For each Fiscal Quarter of Holdings (i) during which any Loan or Loans are outstanding on the last day of such Fiscal Quarter or on more than five separate days during such Fiscal Quarter or (ii) there are any Unpaid Drawings in respect of Letters of Credit outstanding on the last day of such Fiscal Quarter or for more than five consecutive days during such Fiscal Quarter (each such Fiscal Quarter, a “ Measurement Quarter ”), Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers shall ensure that:

A. Capitalization Ratio . The ratio of (i) Consolidated Total Debt as of the last day of any Measurement Quarter (any such day being a “ Calculation Date ”) to (ii) Consolidated Total Capitalization as of such Calculation Date (such ratio, the “ Capitalization Ratio ”) shall not exceed the correlative ratio indicated:

 

Calculation Period

   Maximum
Capitalization Ratio
 

Effective Date - December 31, 2012

     0.60:1.00   

January 1, 2013 - and thereafter

     0.575:1.00   

Ratio B. Interest Coverage . The ratio of (i) Consolidated Adjusted EBITDA to (ii) Consolidated Cash Interest Expense for any Test Period ending on the last day of a Measurement Quarter during any of the periods set forth below shall not be less than the correlative ratio indicated:

 

Calculation Period

   Minimum
Interest Coverage Ratio
 

Effective Date - December 31, 2012

     1.75:1.00   

January 1, 2013 - and thereafter

     2.00:1.00   

 

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7.6 Restriction on Fundamental Changes; Asset Sales.

A. Fundamental Changes. Except as expressly permitted by Section 7.3 (other than clause (xxi) thereof) or Section 7.6B, U.S. FinCo and the Co-Borrowers will not, nor will they permit any Restricted Subsidiary to, enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of all or substantially all its business units, assets or other properties, except that:

(i) (x) any Subsidiary of a Co-Borrower or any other Person may be merged, amalgamated or consolidated with or into a Co-Borrower; provided that (a) the applicable Co-Borrower shall be the continuing or surviving corporation or, in the case of a merger, amalgamation or consolidation with or into a Co-Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the applicable Co-Borrower) shall be (i) in the case of any such merger, amalgamation or consolidation involving the U.S. Borrower, an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof and (ii) in the case of any such merger, amalgamation or consolidation involving the Canadian Borrower, an entity organized or existing under the laws of Canada or any province or territory thereof (the applicable Co-Borrower or such Person, as the case may be, being herein referred to as the “ Successor Borrower ”), (b) the Successor Borrower shall expressly assume all the obligations of the applicable Co-Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (c) no Default or Event of Default would result from the consummation of such merger, amalgamation or consolidation, (d) if such merger, amalgamation or consolidation involves a Co-Borrower, Holdings shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period and regardless of whether such Test Period included a Measurement Quarter, (e) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is a Co-Borrower, shall have by a supplement to the Guaranty confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under this Agreement, (f) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is a Co-Borrower, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (g) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is a Co-Borrower, shall have by an amendment to or restatement of the applicable Mortgage

 

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confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (h) the Co-Borrowers shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to this Agreement or any Collateral Document preserve the enforceability of the Guaranty and the perfection and priority of the Liens under the Collateral Documents and (i) if reasonably requested by the Administrative Agent, an opinion of counsel to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Loan Document; provided further , that if the foregoing are satisfied, the Successor Borrower (if other than a Co-Borrower) will succeed to, and be substituted for, the applicable Co-Borrower under this Agreement and (y) U.S. FinCo may merge with and into any Subsidiary Guarantor;

(ii) any Subsidiary of U.S. FinCo or a Co-Borrower or any other Person (other than U.S. FinCo or a Co-Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of U.S. FinCo or such Co-Borrower; provided that (a) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (1) a Restricted Subsidiary shall be the continuing or surviving corporation or (2) U.S. FinCo or the applicable Co-Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (b) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving corporation or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guaranty, the Security Agreement and any applicable Mortgage in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties, (c) no Default or Event of Default would result from the consummation of such merger, amalgamation or consolidation, (d) Holdings shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period and regardless of whether such Test Period included a Measurement Quarter, and (e) Holdings shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Collateral Document preserve the enforceability of the Guaranty and the perfection and priority of the Liens under the Security Agreement;

(iii) Canada Intermediate Holdings may be merged, amalgamated or consolidated with or into the Canadian Borrower; provided that (a) the Canadian Borrower shall be the continuing or surviving corporation or in the case of a merger, amalgamation or consolidation with or into the Canadian Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Canadian Borrower) shall be an entity organized or existing under the laws of Canada or any province or territory thereof (the Canadian Borrower or such Person, as the case may be, being herein referred to as the “ Successor Borrower ”), (b) the Successor Borrower shall expressly assume all the obligations of the Canadian Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent , (c) no Default or Event of Default would result from the consummation of such merger, amalgamation or consolidation, (d) Holdings shall be in

 

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compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period and regardless of whether such Test Period included a Measurement Quarter and (e) the Co-Borrowers shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to this Agreement or any Collateral Document preserve the enforceability of the Guaranty and the perfection and priority of the Liens under the Collateral Documents;

(iv) Canada Intermediate Holdings may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of Canada Holdings that is a direct or indirect parent of the Canadian Borrower; provided that (a) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving corporation or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guaranty and the Security Agreement in order for the surviving Person to become a Guarantor and pledgor and grantor of Collateral for the benefit of the Secured Parties, (b) no Default or Event of Default would result from the consummation of such merger, amalgamation or consolidation, (c) Holdings shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period and regardless of whether such Test Period included a Measurement Quarter, and (d) Holdings shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Collateral Document preserve the enforceability of the Guaranty and the perfection and priority of the Liens under the Security Agreement;

(v) any Restricted Subsidiary that is not a Guarantor may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to U.S. FinCo, a Co-Borrower, a Guarantor or any other Restricted Subsidiary of U.S. FinCo or a Co-Borrower;

(vi) any Subsidiary Guarantor may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to U.S. FinCo, the U.S. Borrower or any other Subsidiary Guarantor; and

(vii) any Restricted Subsidiary may liquidate or dissolve if (A) U.S. FinCo or the Co-Borrowers determine in good faith that such liquidation or dissolution is in the best interests of the Co-Borrowers and is not materially disadvantageous to the Lenders and (B) to the extent such Restricted Subsidiary is a Guarantor, any assets or business not otherwise disposed of or transferred in accordance with Section 7.3 or 7.6A, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, another Guarantor after giving effect to such liquidation or dissolution.

B. Asset Sales. U.S. FinCo and each Co-Borrower will not, nor will it permit any Restricted Subsidiary to, directly or indirectly, make any Asset Sale, except that:

(i) U.S. FinCo and each Co-Borrower and each Restricted Subsidiary may make Sale Leasebacks permitted by Section 7.7;

 

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(ii) U.S. FinCo and each Co-Borrower and the Restricted Subsidiaries may sell, lease, assign, convey, transfer or otherwise voluntarily dispose of other assets (other than accounts receivable) (each a “ Disposition ”) for fair value; provided that (a) with respect to any Disposition pursuant to this clause (ii) for a purchase price in excess of $5,000,000, U.S. FinCo, a Co-Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of Cash or Cash Equivalents; provided that, for purposes of determining what constitutes cash under this clause (a), (I) any liabilities (as shown on U.S. FinCo’s, a Co-Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of U.S. FinCo, a Co-Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Co-Borrowers and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (II) any securities received by U.S. FinCo, a Co-Borrower or such Restricted Subsidiary from such transferee that are converted by U.S. FinCo, a Co-Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable Disposition and (III) any Designated Non-Cash Consideration received by U.S. FinCo, a Co-Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 7.6B(ii) that is at that time outstanding but excluding the Fair Market Value of any Property or other asset (including Capital Stock of any Person that will be a Restricted Subsidiary following receipt thereof) received that are used or useful in a Real Estate Business ( provided that to the extent that the assets disposed of in such Asset Sale were Collateral, such property or assets are pledged as Collateral under the Collateral Documents substantially contemporaneously with such Asset Sale, to the extent required pursuant to such Collateral Documents), not in excess of 1.5% of Consolidated Total Assets at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash, (b) any non-cash proceeds received in the form of Indebtedness or Capital Stock are pledged to the Collateral Agent to the extent required under Section 6.7B, (c) the aggregate Fair Market Value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (ii) during any Fiscal Year shall not exceed 4.0% of Consolidated Total Assets as of the last day of the preceding Fiscal Year of Holdings; provided that, to the extent net cash proceeds of any such sale, transfer or disposition have been reinvested in the business of the Loan Parties during such Fiscal Year, the fair value of the assets from which such proceeds were derived shall not be subject to the foregoing limitation in this clause (c), (d) after giving effect to any such Disposition, no Default or Event of Default shall have occurred and be continuing and (e) with respect to any Disposition pursuant to this clause (iv) for a purchase price in excess of $5,000,000, U.S. FinCo and the Co-Borrowers shall be in compliance, on a Pro Forma Basis after giving effect to such Disposition (including the prepayment of Indebtedness with the proceeds of such Disposition), with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such Disposition had occurred on the first day of such Test Period and regardless of whether such Test Period included a Measurement Quarter;

 

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(iii) (i) U.S. FinCo and each Co-Borrower and each Restricted Subsidiary may sell, transfer or otherwise dispose of property or assets to U.S. FinCo, a Co-Borrower or to a Restricted Subsidiary (other than any Liquidating Subsidiary or any Closed-Out Subsidiary); provided that if the transferor of such property is a Guarantor or a Co-Borrower (a) the transferee thereof must either be a Co-Borrower or a Guarantor or (b) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.3 (other than clause (xxi) thereof);

(iv) U.S. FinCo and each Co-Borrower and the Restricted Subsidiaries may sell, transfer and otherwise dispose of property to the extent that (a) such property is exchanged for credit against the purchase price of similar replacement property or (b) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;

(v) U.S. FinCo and each Co-Borrower and the Restricted Subsidiaries may sell, transfer and otherwise dispose of Investments in Excluded Subsidiaries or in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

(vi) U.S. FinCo and each Co-Borrower and the Restricted Subsidiaries may effect any transaction permitted by Section 7.3 (other than clause (xxi) thereof), 7.4 or 7.6A; and

(vii) the Canadian Borrower and its Restricted Subsidiaries may effect any sale or other transfer of assets pursuant to a Designated Asset Sale or that constitute non-cash Excess Designated Proceeds, the Fair Market Value (as determined at the time of such Disposition) of assets so sold or transferred at the time of such Disposition in reliance upon this clause (vii), when aggregated with and without duplication of the Designated Asset Sales Aggregate Amount, the Designated Asset Dividends Aggregate Amount and the Designated Asset Investments Aggregate Amount, shall not exceed $150,000,000 in the aggregate, and (B) within 450 days after the receipt of any net cash proceeds from any Designated Asset Sale, the Canadian Borrower or the applicable Restricted Subsidiary thereof, as the case may be, shall apply such net cash proceeds to (x) make a Dividend pursuant to Section 7.4(vi) or (y) reinvest in the business of the Loan Parties or any of their Restricted Subsidiaries (including by way of any Permitted Acquisition in accordance with Section 7.3(xv)) during such 450-day period, it being understood that (1) to the extent any net cash proceeds remain after such 450-day period, the Co-Borrowers and/or Canada Holdings, as applicable, may, within ten Business Days thereafter, make an offer to repay, redeem, purchase or otherwise retire any outstanding Senior Unsecured Notes with such net cash proceeds or, if no such offer is made within such 10 Business Day period, the Co-Borrowers shall immediately apply such net cash proceeds to repay any Loans to the extent outstanding and (2) to the extent any net cash proceeds remain after the repayment, redemption, purchase or other retirement of Senior Unsecured Notes described in the foregoing sub-clause (1), the Co-Borrowers shall apply all such remaining proceeds to repay any Loans to the extent outstanding (it being understood that, to the extent any proceeds remain after such repayment, the Co-Borrowers and their respective Restricted Subsidiaries may use all such proceeds for general corporate purposes).

Each of the Lenders and the Collateral Agent hereby agree that, as and when the U.S. Borrower or any Subsidiary of the U.S. Borrower, from time to time, notifies the Collateral Agent of the Disposition of any Mortgaged Property or any portion thereof as permitted by this Agreement or the Collateral Agent determines, in its sole discretion, that the cost of maintaining such Mortgage

 

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outweighs the benefit to the Secured Parties of having such Mortgage or in the event that any Subsidiary Guarantor is designated as an Excluded Subsidiary in accordance with the terms of this Agreement (each, a “ Permitted Release Event ”) and requests in writing (the “ Release Notice ”) that the Collateral Agent release the Lien it holds for the benefit of the Secured Parties on such Mortgaged Property or any portion thereof (including any related personal property), then the Collateral Agent shall deliver (to be filed and/or recorded, as applicable, pursuant to the instruction in clause (y) below) to the U.S. Borrower or the applicable Subsidiary of the U.S. Borrower with respect to such Permitted Release Event (x) a release or any other similar instrument reasonably necessary or appropriate to consummate the actions contemplated above in recordable form as soon as reasonably practicable after the receipt of a Release Notice and (y) instruction to the U.S. Borrower or the applicable Subsidiary of the U.S. Borrower that such instrument may be delivered, filed and/or recorded, as applicable, upon the completion of such Permitted Release Event. Subject to the last sentence of this paragraph, each of the parties hereto further acknowledges and agrees that the Collateral Agent and the U.S. Borrower have entered into arrangements (which arrangements include powers of attorney) reasonably acceptable to the Collateral Agent and the U.S. Borrower (and will maintain) with a title agent or other third party which authorize such title agent or other third party to take the actions on behalf of the Collateral Agent required to be taken by the Collateral Agent in connection with any Permitted Release Event and the entry into such arrangements shall be deemed to satisfy the obligations of the Collateral Agent required pursuant to this paragraph. Each of the Lenders hereby consents to the release of Liens on Mortgaged Property or any portion thereof (including any related personal property) as set forth above without the necessity of any further action or consent on its part. Notwithstanding anything in this Section 7.6(B) to the contrary, if (x) no reasonably qualified title agent or third party shall be willing to enter into or maintain the arrangement described in this paragraph (the “ Release Arrangement ”) or (y) the Collateral Agent shall reasonably believe that the Mortgaged Properties are being released in violation of the Loan Documents under the Release Arrangement, then the Collateral Agent shall have no obligation to enter into or maintain the Release Arrangement (with respect to the occurrence of clause (x) above) or to maintain the Release Arrangement (with respect to the occurrence of clause (y) above).

 

7.7 Sale Leasebacks.

U.S. FinCo and each Co-Borrower will not, and will not permit any of the Restricted Subsidiaries to, enter into or effect any Sale Leasebacks, except: (a) in connection with any property acquired in connection with a Permitted Acquisition to the extent that the lease thereof occurs within six (6) months of such Permitted Acquisition, (b) in connection with Model Home Units, (c) for any Sale Leaseback that constitutes a Designated Asset Sale pursuant to Section 7.6(B)(vii) and (d) in connection with any property, plant or equipment in an aggregate amount for all such property, plant and equipment subject to a sale and lease-back pursuant to this clause (d) from and after the Effective Date not in excess of $10,000,000 unless the Co-Borrowers contemporaneously permanently reduce the Commitments pursuant to Section 2.4A(ii) by an amount at least equal to the aggregate net proceeds in excess of $10,000,000 received from all such Sale Leasebacks; provided , further , that the sale or transfer of any such property, plant or equipment was at least for Fair Market Value.

 

7.8 Passive Holding Entities.

Each of Holdings, U.S. Holdings, Canada Holdings and Canada Intermediate Holdings shall not conduct, transact or otherwise engage in any business or operations, or own or acquire any assets or incur any liabilities other than (i) (w) in the case of Holdings, the ownership of the Capital Stock of U.S. Holdings and Canada Holdings, (x) in the case of Canada Holdings, the ownership of the

 

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Capital Stock of Canada Intermediate Holdings (or, in the event of a merger, amalgamation or consolidation permitted by Section 7.6A(iii), the Canadian Borrower) or a Subsidiary formed after the Effective Date (provided that such Subsidiary shall (a) execute a supplement to the Guaranty and the Security Agreement in order for such Subsidiary to become a Guarantor and pledgor and grantor of Collateral for the benefit of the Secured Parties and (b) shall be subject to the limitations set forth in this Section 7.8 to the same extent as Holdings, U.S. Holdings, Canada Holdings and Canada Intermediate Holdings), (y) in the case of Canada Intermediate Holdings, the ownership of the Capital Stock of the Canadian Borrower and (z) in the case of U.S. Holdings, the ownership of the Capital Stock of the U.S Borrower and U.S. FinCo, (ii) the maintenance of their legal existence, including the ability to incur fees, costs and expenses relating to such maintenance (except as otherwise permitted in Section 7.6A), (iii) participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings, U.S. Holdings, Canada Intermediate Holdings, Canada Holdings, U.S. FinCo and the Co-Borrowers, (iv) the performance of the Loan Documents, the Unsecured Facility Loan Documents, the documents governing any Refinanced Unsecured Facility Indebtedness, the Stock Purchase Agreement and the other agreements contemplated by the Stock Purchase Agreement and the guarantee of Indebtedness of the Co-Borrowers and their Subsidiaries permitted by Section 7.1, (v) any public offering of partnership interests of Holdings or any other issuance or registration of Holdings’ partnership interests for sale or resale or any issuance of equity awards under any plan for the benefit of employees of Holdings, the Co-Borrowers or any of their Subsidiaries, payment of dividends, making contributions to the capital of their Subsidiaries and guaranteeing the obligations of the Co-Borrowers, U.S. FinCo and the Restricted Subsidiaries (it being understood that any such guarantees may be secured only by Liens junior in priority to the Liens securing the Obligations) including the costs, fees and expenses related thereto, (vi) holding any cash received in connection with Dividends made by U.S. FinCo or a Co-Borrower in accordance with Section 7.4 pending application thereof by Holdings, U.S. Holdings, Canada Holdings or Canada Intermediate Holdings in the manner contemplated by Section 7.4 (if so specified), (vii) incurring fees, costs and expenses relating to overhead and general operating including professional fees for legal, tax and accounting issues, (viii) providing indemnification to officers and directors, (ix) incurring any liabilities under the Loan Documents, the Unsecured Facility Loan Documents, the documents governing any Refinanced Unsecured Facility Indebtedness, liabilities under any guarantee of Indebtedness of U.S. FinCo or a Co-Borrower and their respective Subsidiaries permitted by Section 7.1, and other liabilities expressly permitted to be incurred by it by the terms hereof and liabilities imposed by Applicable Laws, including tax liabilities, and other liabilities incidental to its existence and business and activities permitted by this Agreement, (x) in the case of Canada Holdings, forming one or more Subsidiaries in connection with a merger, amalgamation or consolidation permitted by Section 7.6(iv), (xi) the assignment of the Unsecured Facility Credit Agreement from Holdings to U.S. Holdings and from U.S. Holdings to U.S. FinCo on the Restatement Effective Date and (xii) activities incidental to the businesses or activities described in clauses (i) through (xi) of this Section 7.8.

 

7.9 Limitation on Debt Payments and Amendments.

A. U.S. FinCo and each Co-Borrower will not, and will not allow any Restricted Subsidiary to, prepay, repurchase or redeem or otherwise defease any Indebtedness incurred pursuant to Section 7.1(ix), 7.1(xxiii) or 7.1(xxiv) (to the extent the Indebtedness incurred thereunder is secured by Liens intended to rank junior to the Liens securing the Obligations) (it being understood that payments of regularly scheduled interest and principal (to the extent such Indebtedness contains scheduled amortization in accordance with Section 7.1) shall be permitted); provided , however , that so long as no Default or Event of Default shall have occurred and be continuing or would result

 

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therefrom, the Co-Borrowers or any Restricted Subsidiary (or, for the avoidance of doubt, Holdings, U.S. Holdings, Canada Holdings or Canada Intermediate Holdings, as the case may be) may prepay, repurchase, redeem or defease (i) any Indebtedness incurred pursuant to Section 7.1(ix) so long as each lender with respect to such Indebtedness is a Loan Party, (ii) any Indebtedness incurred pursuant to Section 7.1(ix) with the proceeds of any Refinanced Unsecured Facility Indebtedness or any Designated Asset Sale, (iii) any Indebtedness incurred pursuant to Sections 7.1 (xxiii) or 7.1(xxiv) with the proceeds of any Refinancing Indebtedness, (iv) any Indebtedness incurred pursuant to Sections 7.1(ix), 7.1(xxiii) or 7.1(xxiv) with the net cash proceeds to U.S. FinCo or the Co-Borrowers of any capital contribution to Holdings from its shareholders in exchange for Permitted Refinancing Securities, with the net cash proceeds to Holdings of any issuance of Permitted Refinancing Securities and (v) in addition to the foregoing subclauses (i) through (iii), so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, U.S. FinCo and the Co-Borrowers may prepay, repurchase or redeem or otherwise defease Indebtedness incurred pursuant to Sections 7.1(ix), 7.1(xxiii) or 7.1(xxiv) so long as after giving effect to such prepayment, repurchase, redemption or defeasance and the incurrence of any Indebtedness in connection therewith, (x) Holdings would be in compliance with the Financial Performance Covenants calculated on a Pro Forma Basis as of the last day of the most recent Test Period for which Section 6.1 Financials have been delivered and regardless of whether such Test Period included a Measurement Quarter, (y) the Capitalization Ratio as of the last day of the most recent Test Period for which Section 6.1 Financials have been delivered, calculated on a Pro Forma Basis and regardless of whether such Test Period included a Measurement Quarter, would not be greater than 0.45 to 1.00 and (z) the sum of the Unused Availability and the aggregate amount of unrestricted Cash and Cash Equivalents of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries (in each case free and clear of all Liens, other than Liens granted under the Collateral Documents and nonconsensual liens permitted by Section 7.2) would be no less than $75,000,000;

B. Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers will not waive, amend or modify the Unsecured Facility Loan Documents or the documentation governing any Refinanced Unsecured Facility Indebtedness in a manner materially adverse to the Lenders (it being understood and agreed that an amendment or modification of the Unsecured Facility Loan Documents to grant any security interest in the Collateral to the lenders thereunder shall not be deemed to be materially adverse to the Lenders hereunder provided that such amended or modified Unsecured Facility Loan Documents comply with the requirements of 7.2A(viii)).

7.10 Equity Interests of Restricted Subsidiaries. U.S. FinCo and each Co-Borrower will not permit any Restricted Subsidiary of Holdings that is a Subsidiary Guarantor to become a non-wholly owned Subsidiary, except (i) as a result of or in connection with a dissolution, merger, amalgamation, consolidation or disposition of a Restricted Subsidiary permitted by Section 7.6A or 7.6B or an Investment in any Person permitted under Section 7.3 or (ii) so long as such Restricted Subsidiary continues to be a Subsidiary Guarantor. U.S. FinCo and each Co-Borrower will not permit any Subsidiary of U.S. FinCo or the U.S. Borrower that is a Domestic Subsidiary and not a Disqualified Domestic Subsidiary to become a Foreign Subsidiary or a Disqualified Domestic Subsidiary.

 

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SECTION 8.

EVENTS OF DEFAULT

IF any of the following conditions or events (“ Events of Default ”) shall occur:

 

8.1 Failure to Make Payments When Due.

(i) Failure by any Borrower to pay any installment of principal of any Loan when due (including such payments due in accordance with Section 2.4A(iii) hereof), whether at stated maturity, by acceleration, by notice of prepayment or otherwise, or (ii) failure by any Borrower to pay any interest on any Loan or any fee or any Unpaid Drawing or any other amount (other than an amount referred to in clause (i) above) due under this Agreement or any other Loan Document within five days after the date due therefor; or

 

8.2 Default in Other Agreements.

(a) Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any of the Restricted Subsidiaries shall (i) default in any payment with respect to any Indebtedness (other than any Indebtedness described in Section 8.1) in excess of $25,000,000 in the aggregate for Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and such Restricted Subsidiaries, beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created or (ii) default in the observance or performance of any agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist (other than, with respect to Indebtedness consisting of any Hedge Agreements, termination events or equivalent events pursuant to the terms of such Hedge Agreements), the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, any such Indebtedness to become due prior to its stated maturity unless such holder or holders shall have (or through its or their trustee or agent on its or their behalf) waived such default in a writing to the U.S. Borrower; or (b) without limiting the provisions of clause (a) above, any such Indebtedness shall be declared to be due and payable, or required to be prepaid other than by a regularly scheduled required prepayment or as a mandatory prepayment (and, with respect to Indebtedness consisting of any Hedge Agreements, other than due to a termination event or equivalent event pursuant to the terms of such Hedge Agreements), prior to the stated maturity thereof; or

 

8.3 Breach of Certain Covenants.

Any Loan Party shall (a) default in the due performance or observance by it of any term, covenant or agreement contained in Section 6.1(v) or Section 7 or (b) default in the due performance or observance by it of any term, covenant or agreement (other than those referred to in Section 8.1 or 8.4 or clause (a) of this Section 8.3) contained in this Agreement or any other Loan Document and such default shall continue unremedied for a period of at least 30 days after receipt of written notice by the Borrowers from the Administrative Agent or the Requisite Lenders; or

 

8.4 Breach of Warranty.

Any representation, warranty or statement made or deemed made by any Loan Party herein or in any other Loan Document or any certificate, statement, report or other document delivered or required to be delivered pursuant hereto or thereto shall prove to be untrue in any material respect on the date as of which made or deemed made; provided , however , that notwithstanding anything to the contrary contained in any of the Loan Documents, a breach of any of the representations and warranties contained in Section 1.01(a) or 1.01(c) of any Mortgage shall not constitute a Default or Event of Default unless such breach also constitutes a breach of the representations and warranties contained in Section 5.2A or 5.5A of this Agreement; or

 

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8.5 Bankruptcy, etc.

Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any Specified Subsidiary shall commence a voluntary case, proceeding or action concerning itself under the Bankruptcy Code; or an involuntary case, proceeding or action is commenced against Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any Specified Subsidiary and the petition is not controverted within 10 days after commencement of the case, proceeding or action; or an involuntary case, proceeding or action is commenced against Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any Specified Subsidiary and the petition is not dismissed within 60 days after commencement of the case, proceeding or action; or a custodian (as defined in the Bankruptcy Code), receiver, receiver manager, trustee or similar person is appointed for, or takes charge of, all or substantially all of the property of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any Specified Subsidiary; or Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any Specified Subsidiary commences any other proceeding or action under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction (including any applicable corporate legislation) whether now or hereafter in effect relating to Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any Specified Subsidiary; or there is commenced against Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any Specified Subsidiary any such proceeding or action that remains undismissed for a period of 60 days; or Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any Specified Subsidiary is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding or action is entered; or Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any Specified Subsidiary suffers any appointment of any custodian, receiver, receiver manager, trustee or the like for it or any substantial part of its property to continue undischarged or unstayed for a period of 60 days; or Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any Specified Subsidiary makes a general assignment for the benefit of creditors; or any corporate action is taken by Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any Specified Subsidiary for the purpose of effecting any of the foregoing; or

 

8.6 Subordination and Intercreditor Matters.

Prior to the Commitment Termination Date and the discharge in full of the Obligations (other than contingent indemnification obligations, Hedge Obligations under Secured Hedge Agreements or Cash Management Obligations, in each case, not then due and payable), the Intercreditor Agreement (or any other intercreditor agreement to which any Loan Party and any Agent are parties) shall, in whole or in part, cease (or any Loan Party or an Affiliate of a Loan Party shall so assert) to be effective or cease (or any Loan Party or an Affiliate of a Loan Party shall so assert) to be legally valid and binding, or otherwise not be effective to create the rights and obligations purported to be created thereunder (including in respect of any provisions in such agreements that provide in the event of an enforcement action or any insolvency or liquidation proceedings, subject to certain

 

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exceptions with respect to enforcement costs and other costs and expenses of the parties thereto, the proceeds of any Collateral or any distribution in any insolvency or liquidation proceeding with respect to the Collateral (or based on claims being secured thereby) shall first be used to pay in full the Obligations prior to the payment of any other Indebtedness (the “ First-Out Provisions ”)); or

 

8.7 Judgments and Attachments.

One or more judgments or decrees shall be entered against Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any of their Restricted Subsidiaries involving a liability of $25,000,000 or more in the aggregate for all such judgments and decrees for Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the Restricted Subsidiaries (to the extent not paid or fully covered by insurance provided by a carrier not disputing coverage) and any such judgments or decrees shall not have been satisfied, vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or

 

8.8 Employee Benefit Plans.

(a) (i) A Plan shall fail to satisfy the minimum funding standard required for any plan year or part thereof or a waiver of such standard or extension of any amortization period is sought or granted under Section 412 of the Code; any Plan is or shall have been terminated or is the subject of termination proceedings under ERISA (including the giving of written notice thereof); an event shall have occurred or a condition shall exist in either case entitling the PBGC to terminate any Plan or to appoint a trustee to administer any Plan (including the giving of written notice thereof); any Plan shall have an accumulated funding deficiency (whether or not waived); or any of Holdings, the Co-Borrowers, any of their respective Subsidiaries or any ERISA Affiliate has incurred or is likely to incur a liability to or on account of a Plan under Section 307, 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code (including the giving of written notice thereof) or (ii) a Foreign Benefit Event shall have occurred or a Foreign Plan that is a Canadian Pension Plan has been or is in the process of being terminated in whole or in part; (b) there could result from any event or events set forth in clause (a) of this Section 8.8 the imposition of a Lien, the granting of a security interest, or a liability, or the reasonable likelihood of incurring a Lien, security interest or liability; and (c) such Lien, security interest or liability will or would be reasonably likely to have a Material Adverse Effect; or

 

8.9 Change in Control.

(a) (i) at any time prior to the first Qualified Public Offering to occur after the Effective Date, the Sponsors and the Management Investors shall at any time not directly or indirectly, beneficially own, in the aggregate, more than 50% of the outstanding Voting Stock of Holdings (other than as the result of one or more widely distributed offerings of common stock of Holdings, whether by Holdings or the Sponsors or the Management Investors) or (ii) at any time on or after the first Qualified Public Offering to occur after the Effective Date, (A) any Person, or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) (but excluding any employee benefit plan of such Person or “group” and its Subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than the Sponsors and the Management Investors, shall at any time have acquired direct or indirect beneficial ownership (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act) of a percentage of the outstanding Voting Stock of Holdings that exceeds the percentage of such Voting Stock then beneficially owned, in the aggregate,

 

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by the Sponsors and the Management Investors and (B) such person, entity or “group” shall at any time directly or indirectly beneficially own at least 35% of the outstanding Voting Stock of Holdings, unless, in the case of either clause (i) or (ii) above, the Sponsors and the Management Investors have, at such time, the right or the ability by voting power, contract or otherwise to elect or designate for election at least a majority of the Board of Directors of the General Partner; and/or (b) at any time a majority of the Board of Directors of the General Partner shall not be Continuing Directors; and/or (c) a change of control, as contemplated by the definitive documentation governing any Refinanced Unsecured Facility Indebtedness in excess of $25,000,000 (including, for the avoidance of doubt, the Senior Unsecured Notes), shall have occurred; and/or (d) (i) Holdings shall cease to have direct or indirect ownership of all the Voting Stock of any Co-Borrower or U.S. FinCo, (ii) U.S. Holdings shall cease to have direct or indirect ownership of all the Voting Stock of the U.S. Borrower, (iii) U.S. Holdings shall cease to have direct or indirect ownership of all of the Voting Stock of U.S. FinCo, (iv) Canada Holdings shall cease to have direct or indirect ownership of all the Voting Stock of the Canadian Borrower and/or (v) the General Partner shall cease to be the general partner of Holdings; or

 

8.10 Invalidity of the Guaranty.

The Guaranty or any material provision thereof shall cease to be in full force or effect or any Guarantor thereunder or any Loan Party shall deny or disaffirm in writing any Guarantor’s obligations under the Guaranty; or

 

8.11 Failure of Security.

Any Collateral Document or any material provision thereof shall cease to be in full force or effect (other than pursuant to the terms hereof or thereof or as a result of acts or omissions of the Administrative Agent, the Collateral Agent or any Lender) or any grantor, pledgor or mortgagor thereunder or any Loan Party shall deny or disaffirm in writing any grantor’s, pledgor’s or mortgagor’s obligations under such Collateral Document;

THEN and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent shall, upon the written request of the Requisite Lenders, by written notice to the U.S. Borrower, take any or all of the following actions, without prejudice to the rights of the Administrative Agent or any Lender to enforce its claims against the Borrowers, except as otherwise specifically provided for in this Agreement ( provided that, if an Event of Default specified in Section 8.5 shall occur with respect to Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, any of the Co-Borrowers or any Specified Subsidiary, the result that would occur upon the giving of written notice by the Administrative Agent as specified in clauses (i), (ii), (iii) and (iv) below shall occur automatically without the giving of any such notice): (i) declare all Commitments or all Swing Line Loan Commitments terminated and whereupon any such Commitment, if any, of each Lender or the Swing Line Lender, as the case may be, shall forthwith terminate immediately and any fees theretofore accrued shall forthwith become due and payable without any other notice of any kind, (ii) declare the principal of and any accrued interest and fees in respect of all Loans and all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; (iii) terminate any Letter of Credit that may be terminated in accordance with its terms; and/or (iv) direct the Borrowers to pay (and the Borrowers agree that upon receipt of such notice, or upon the occurrence of an Event of Default specified in Section 8.5 with respect to Holdings, U.S. Holdings, Canada Holdings,

 

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Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any Specified Subsidiary, it will pay) to the Administrative Agent at the Funding and Payment Office such additional amounts of cash, to be held as security for the Borrowers’ reimbursement obligations for LC Disbursements that may subsequently occur thereunder, equal to the aggregate Stated Amount of all Letters of Credit issued and then outstanding; provided that the foregoing shall not affect in any way the obligations of the Revolving Loan Lenders under Section 3.3C(i).

 

8.12 Borrowers’ Right to Cure.

 

  A. Financial Performance Covenants. Notwithstanding anything to the contrary contained in this Section 8, in the event that the Co-Borrowers fail to comply with the requirements of any Financial Performance Covenant, until the expiration of the 10th day subsequent to the date the certificate calculating the Financial Performance Covenants is required to be delivered for such Fiscal Quarter pursuant to Section 6.1(iii) (the “ Cure Right Expiration Date ”), Holdings (or any direct or indirect parent thereof) shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to (or in the case of any direct or indirect parent of Holdings, receive equity interests in Holdings for its cash contributions to) the capital of Holdings (collectively, the “ Cure Right ”), and upon contribution by Holdings of such cash to the Co-Borrowers (the “ Cure Amount ”) pursuant to the exercise by the Co-Borrowers of such Cure Right, such Financial Performance Covenants shall be recalculated giving effect to the following pro forma adjustments:

(i) Consolidated Total Capitalization and Consolidated Adjusted EBITDA shall each be increased, solely for the purpose of measuring such Financial Performance Covenants and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and

(ii) if, after giving effect to the foregoing recalculations, the Co-Borrowers shall then be in compliance with the requirements of such Financial Performance Covenants, the Co-Borrowers shall be deemed to have satisfied the requirements of such Financial Performance Covenants as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of such Financial Performance Covenants that had occurred shall be deemed cured for purposes of this Agreement.

B. Limitation on Exercise of Cure Right. Notwithstanding anything herein to the contrary, (i) in each four fiscal-quarter period there shall be at least two fiscal quarters during which the Cure Right is not exercised, (ii) the Cure Right shall not be exercised more than five times during the term of this Agreement, (iii) the Cure Amount shall be no greater than the amount required for purposes of complying with the applicable Financial Performance Covenants, (iv) the Cure Amount shall be disregarded for any purpose other than the measurement of such Financial Performance Covenants (and, for the avoidance of doubt, the Cure Amount shall not constitute “Cash and Cash Equivalents” for purposes of the proviso to the definition of “Consolidated Total Debt”) and (v) solely for purposes of calculating Consolidated Total Capitalization and Consolidated Adjusted EBITDA in the Financial Performance Covenants, the Cure Amount shall not be deemed to reduce any Indebtedness or other obligations of the Loan Parties that would otherwise be included in the definitions of “Consolidated Total Debt” or “Consolidated Cash Interest Expense” (including if such Cure Amount is used to repay, repurchase, redeem or defease such Indebtedness or other obligations).

 

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C. Notice of Intent to Cure. Upon receipt of a Notice of Intent to Cure prior to the expiration of the Cure Right Expiration Date, the Lenders shall not be permitted to terminate the Commitments or accelerate Loans held by them or to exercise remedies against the Collateral solely on the basis of a failure to comply with the requirements of the Financial Performance Covenants in respect of the Fiscal Quarter for which the Notice of Intent to Cure has been delivered unless such failure is not cured pursuant to a Cure Right on or prior to the Cure Right Expiration Date (it being understood that any Default or Event of Default that shall have occurred as a result of the failure to comply with such covenants shall exist for all other purposes of the Credit Agreement and the other Loan Documents until such Cure Right is exercised).

SECTION 9.

AGENTS

 

9.1 Appointment.

A. Appointment Authority. Each of the Lenders and the Issuing Banks hereby irrevocably appoints Credit Suisse AG as the Administrative Agent and the Collateral Agent hereunder and under the other Loan Documents and authorizes Credit Suisse AG, in such capacities, to take such actions on its behalf and to exercise such powers as are delegated to Credit Suisse AG, in such capacities, by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Each Agent agrees to act upon the express conditions contained in this Agreement and the other Loan Documents, as applicable. In performing its functions and duties under this Agreement, each Agent shall act solely as an agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of their Subsidiaries. The provisions of this Section 9 are solely for the benefit of the Agents, the Lenders and the Issuing Banks, and Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and their Subsidiaries shall not have rights as a third party beneficiary of any of such provisions.

B. Appointment of Supplemental Collateral Agents. It is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction. It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative Agent or the Collateral Agent deems that by reason of any present or future law of any jurisdiction the Administrative Agent or the Collateral Agent may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, it may be necessary that the Administrative Agent or the Collateral Agent appoint an additional individual or institution as a separate trustee, co-trustee, collateral agent or collateral co-agent (any such additional individual or institution being referred to herein individually as a “ Supplemental Collateral Agent ” and collectively as “ Supplemental Collateral Agents ”).

In the event that the Administrative Agent or the Collateral Agent appoints a Supplemental Collateral Agent with respect to any Collateral, (i) each and every right, power, privilege or duty

 

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expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Administrative Agent or the Collateral Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Collateral Agent to the extent, and only to the extent, necessary to enable such Supplemental Collateral Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by such Supplemental Collateral Agent shall run to and be enforceable by either the Administrative Agent or the Collateral Agent or such Supplemental Collateral Agent, and (ii) the provisions of this Section 9 and of Section 10.2 that refer to the Administrative Agent or the Collateral Agent shall inure to the benefit of such Supplemental Collateral Agent and all references therein to the Administrative Agent or the Collateral Agent shall be deemed to be references to the Administrative Agent or the Collateral Agent and/or such Supplemental Collateral Agent, as the context may require.

Should any instrument in writing from Holdings, any of the Borrowers or any other Loan Party be required by any Supplemental Collateral Agent so appointed by the Administrative Agent or the Collateral Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, Holdings and the Borrowers shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent or the Collateral Agent. In case any Supplemental Collateral Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Collateral Agent, to the extent permitted by law, shall vest in and be exercised by the Administrative Agent or the Collateral Agent until the appointment of a new Supplemental Collateral Agent.

 

9.2 Rights as a Lender.

Each Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Persons serving as the Agents hereunder in their individual capacity. Such Persons and their Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of their Subsidiaries, or any of their respective Affiliates as if such Persons were not Agents hereunder and without any duty to account therefor to the Lenders.

 

9.3 Exculpatory Provisions.

The Agents shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Agents (i) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Agents are required to exercise as directed in writing by the Requisite Lenders (or such other number or percentage of the Lenders as shall be necessary or believed by the Agents in good faith to be necessary under the circumstances as provided in Section 10.5); provided that no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any

 

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Loan Document or Applicable Laws, and (iii) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, any of the Borrowers or any of their respective Affiliates that is communicated to or obtained by the Person serving as an Agent or any of its Affiliates in any capacity. No Agent shall be liable to the Lenders for any action taken or not taken by it with the consent or at the request of the Requisite Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.5) or in the absence of its own gross negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to such Agent by a Borrower, a Lender or an Issuing Bank. The Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agents.

 

9.4 Reliance by the Agents.

The Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, posting or other distribution) believed by it in good faith to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Agents also may rely upon any statement made to it orally or by telephone and believed by it in good faith to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of any Loan or issuance of any Letter of Credit that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Agents may presume that such condition is satisfactory to such Lender unless the Agents shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or issuance of such Letter of Credit. The Agents may consult with legal counsel (who may be counsel for Holdings, any Borrower or their respective Affiliates), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

 

9.5 Delegation of Duties.

Each Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agent. The Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of Section 9.3 shall apply to any such sub-agent and to the Related Parties of such Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as such Agent.

 

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9.6 Resignation of Administrative Agent and/or Collateral Agent; Successor Swing Line Lender.

A. Resignation of the Administrative Agent. The Administrative Agent and/or Collateral Agent may at any time give notice of its resignation to the Lenders, the Issuing Banks, Holdings and the Borrowers. Additionally, if the Lender then acting as Administrative Agent is a Defaulting Lender, then the Administrative Agent may be removed by the Requisite Lenders or the Co-Borrowers. Upon receipt of any such notice of resignation, the Requisite Lenders shall have the right, with the written consent of Holdings and the Co-Borrowers if no Default or Event of Default shall have occurred and be continuing (such consent not to be unreasonably withheld or delayed), to appoint a successor Administrative Agent and/or Collateral Agent, as applicable, which shall be a bank with an office in New York or an Affiliate of any such bank with an office in New York. If no such successor shall have been so appointed by the Requisite Lenders and shall have accepted such appointment within 10 days after the retiring Administrative Agent and/or Collateral Agent, as the case may be, gives notice of its resignation, then the retiring Administrative Agent may, with the written consent of Holdings and the Co-Borrowers if no Event of Default under Section 8.1 or 8.5 shall have occurred and be continuing (such consent not to be unreasonably withheld or delayed) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent and/or Collateral Agent, as applicable, meeting the qualifications set forth above; provided that if the Administrative Agent and/or Collateral Agent, as applicable, shall notify Holdings, the Co-Borrowers and the Lenders that no such successor is willing to accept such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent and/or Collateral Agent, as applicable, shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent and/or Collateral Agent, as applicable, shall instead be made by or to each Lender or each Issuing Bank directly, until such time as the Requisite Lenders appoint a successor Administrative Agent and/or Collateral Agent, as applicable, as provided for above in this paragraph. Upon the acceptance of a successor’s appointment as Administrative Agent and/or Collateral Agent, as applicable, hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent and/or Collateral Agent, as applicable, and the retiring Administrative Agent and/or Collateral Agent, as applicable, shall be discharged from all of its duties and obligations hereunder and under the Loan Documents. The fees payable by Holdings and the Borrowers to a successor Administrative Agent and/or Collateral Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between Holdings, the Borrowers and such successor. After the retiring applicable Administrative Agent’s and/or Collateral Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Section 9 and Section 10.2 shall continue in effect for the benefit of such retiring Administrative Agent and/or Collateral Agent, as applicable, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken, by any of them while the retiring Administrative Agent and/or Collateral Agent, as applicable, was acting in such capacity.

B. Successor Swing Line Lender. Any resignation of the Administrative Agent pursuant to Section 9.6A shall also constitute the resignation of Credit Suisse AG or its successor as the Swing Line Lender, and any successor Administrative Agent appointed pursuant to Section 9.6A shall, upon its acceptance of such appointment, become the successor Swing Line Lender for all purposes hereunder. In such event (i) the Borrowers shall prepay any outstanding Swing Line Loans made by the retiring Administrative Agent in its capacity as Swing Line Lender, (ii) upon such prepayment, the retiring Administrative Agent and Swing Line Lender shall surrender the Swing Line Note held

 

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by it to the Borrowers for cancellation, and (iii) the Borrowers shall issue a new Swing Line Note to the successor Administrative Agent and Swing Line Lender in the principal amount of the Swing Line Loan Commitment then in effect and with other appropriate insertions.

 

9.7 Collateral Documents; Successor Collateral Agent.

Each Lender and Issuing Bank hereby further authorizes the Collateral Agent to enter into each Collateral Document as secured party on behalf of and for the benefit of the Lenders, each Issuing Bank and the other beneficiaries named therein and agrees to be bound by the terms of each Collateral Document; provided that the Collateral Agent shall not enter into or consent to any amendment, modification, termination or waiver of any provision contained in any Collateral Document without the prior consent of the Requisite Lenders (or, if required pursuant to Section 10.5, all the Lenders); provided that , notwithstanding anything to the contrary contained herein or in any other Loan Document, the Administrative Agent is hereby irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender except as expressly required by Section 10.5) to execute any documents or instruments, and to take any other action requested by the Co-Borrowers having the effect of releasing any asset constituting Collateral from the Lien of the applicable Collateral Document or releasing any Guaranty of any Subsidiary Guarantor, in each case to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document or that has been consented to in accordance with Section 10.5. Anything contained in any of the Loan Documents to the contrary notwithstanding, each Lender agrees that no Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document, it being understood and agreed that all rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders and the other beneficiaries named therein in accordance with the terms thereof. In the event the Co-Borrowers or any Restricted Subsidiary incurs Refinanced Unsecured Facility Indebtedness that is secured by a Lien otherwise permitted by Section 7.2A(viii), (i) each Lender and Issuing Bank hereby authorizes the Collateral Agent to enter into an Intercreditor Agreement on its behalf and agrees to be bound by the provisions of such Intercreditor Agreement as though a party thereto, and (ii) the Collateral Agent agrees to promptly enter into any such Intercreditor Agreement that complies with the proviso in Section 7.2A(viii).

 

9.8 Non-Reliance on Agents and Other Lenders.

Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon any Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon any Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

 

9.9 Duties of Other Named Entities.

To the extent that any Lender is identified in this Agreement as a Joint Lead Arranger or Joint Bookrunner, such Lender shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender.

 

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SECTION 10.

MISCELLANEOUS

 

10.1 Assignments and Participations in Loans.

A. Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that none of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo or any Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and the Administrative Agent and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of Section 10.1B, (ii) by way of participation in accordance with the provisions of Section 10.1D or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.1F (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 10.1D and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

B. Assignments by Lenders.

(i) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans and participations in the Letters of Credit at the time owing to it); provided that

(a) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment, Loans and participations in the Letters of Credit at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment, Loans or Letters of Credit subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $2,500,000 or an integral multiple of $1,000,000 in excess thereof; provided , that two or more related Approved Funds will be treated as one assignee for purposes of determining compliance with the minimum assignment amount;

(b) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Commitments, Loans or participations in Letters of Credit assigned;

(c) any assignment of a Commitment must be consented to by the Co-Borrowers, the Administrative Agent, the Swing Line Lender and each Issuing

 

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Bank (in each case, not to be unreasonably withheld, delayed or conditioned); provided , that the consent of the Co-Borrowers shall not be required (i) if such assignment is made to another Revolving Loan Lender or an Affiliate of a Revolving Loan Lender or (ii) during the continuance of an Event of Default; provided , further , that such consent of the Co-Borrowers shall be deemed to have been given if the Co-Borrowers have not responded within ten Business Days of their receipt of a request for such consent;

(d) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement and shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent); provided , that only one such fee shall be payable in the case of concurrent assignments to Persons that, after giving effect to such assignments, will be Approved Funds or concurrent assignments by Approved Funds to one assignee; and

(e) the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and if required, applicable tax forms.

(ii) Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.1C, from and after the effective date specified in each Assignment Agreement, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment Agreement, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.7 and 10.2 with respect to facts and circumstances occurring prior to the effective date of such assignment. An Eligible Assignee shall not be entitled to receive any greater payment under Section 2.7 than the assigning Lender would have been entitled to receive with respect to the Loan or portion of the Loan assigned to such Eligible Assignee, unless the grant to such Eligible Assignee is made with the Co-Borrowers’ prior written consent. Except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.1D.

C. Acceptance by Administrative Agent; Recordation in the Register. Upon its receipt of an Assignment Agreement executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with the processing and recordation fee referred to in Section 10.1B(i)(d) and any forms, certificates or other evidence with respect to United States federal income tax withholding matters that such assignee may be required to deliver to the Administrative Agent pursuant to Section 2.7E(vi), the Administrative Agent shall, if the Administrative Agent and Co-Borrowers have consented to the assignment evidenced thereby (in each case to the extent such consent is required pursuant to Section 10.1B(i)), (a) accept such Assignment Agreement by executing a counterpart thereof as provided therein (which acceptance shall evidence any required

 

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consent of the Administrative Agent to such assignment) and (b) record the information contained therein in a register maintained by the Administrative Agent, solely for this purpose as agent of the Co-Borrowers, for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The Administrative Agent shall maintain a copy of each Assignment Agreement delivered to and accepted by it as provided in this Section 10.1C. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this Section 10.1C. The entries in the Register shall be conclusive absent manifest error, and the Co-Borrowers, each Administrative Agent, the Issuing Banks and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.

D. Participations. Any Lender may at any time, without the consent of, or notice to, any Borrower or any Administrative Agent, sell participations to any Person (other than a natural person or Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of their Subsidiaries, or any of their respective Affiliates) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that

(i) such Lender’s obligations under this Agreement shall remain unchanged,

(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and

(iii) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver with respect to any action (i) effecting the extension of the final maturity, the scheduled amortization or the date fixed for the payment of interest or fees with respect to the Loan allocated to such participation, (ii) effecting a reduction of the principal amount of or affecting the rate of interest payable on any Loan or any fee allocated to such participation, (iii) releasing all or substantially all of the Collateral, or (iv) releasing all or substantially all the value of the Guaranty. Subject to Section 10.1E, each Borrower agrees that each Participant shall be entitled to the benefits of Section 2.7 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.1B; provided that such Participant agrees to be subject to Section 2.8 as though it were a Lender. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.3 as though it were a Lender; provided such Participant agrees to be subject to Section 10.4 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “ Participant Register ”); provided , however , that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of

 

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credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in “registered form” under Section 5f.103-1(c) of the Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.

E. Limitations Upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 2.7 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrowers’ prior written consent. Without limiting the generality of the foregoing, a Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.7E with respect to U.S. withholding tax unless the Borrowers are notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section 2.7E(vi) as though it were a Lender.

F. Certain Pledges. Any Lender may, without the consent of the Administrative Agent or any Borrower, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. Notwithstanding anything to the contrary contained herein, any Lender that is a Fund, without the consent of the Administrative Agent or any Borrower, may create a security interest in all or any portion of the Loans owing to it and the Notes, if any, held by it to the trustee or other representative for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee or other representative actually becomes a Lender in compliance with the other provisions of this Section 10.1, (i) no such pledge shall release the pledging Lender from any of its obligations under this Agreement and (ii) such trustee or other representative shall not be entitled to exercise any of the rights of a Lender under this Agreement and the Notes even though such trustee or other representative may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.

G. Affiliated Lenders . None of Holdings or any of its Subsidiaries or Affiliates (including the Sponsors) may acquire by assignment, participation or otherwise any right or interest in any of the Commitments hereunder (and any such attempted acquisition shall be null and void).

H. Defaulting Lenders, etc . In the event that any Revolving Loan Lender shall become a Defaulting Lender or S&P, Moody’s or Thompson’s BankWatch (or InsuranceWatch Ratings Service, in the case of Lenders that are insurance companies (or Best’s Insurance Reports, if such insurance company is not rated by Insurance Watch Ratings Service)) shall, after the date that any Lender becomes a Revolving Loan Lender, downgrade the long-term certificate deposit ratings of such Lender, and the resulting ratings shall be below BBB-, Baa3 and C (or BB, in the case of a Lender that is an insurance company (or B, in the case of an insurance company not rated by InsuranceWatch Ratings Service)) (or, with respect to any Revolving Loan Lender that is not rated by any such ratings service or provider, an Issuing Bank or the Swing Line Lender shall have reasonably determined that there has occurred a material adverse change in the financial condition of any such Lender, or a material impairment of the ability of any such Lender to perform its obligations hereunder, as compared to such condition or ability as of the date that any such Lender became a Revolving Loan Lender) then each of the Issuing Banks and the Swing Line Lender shall

 

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have the right, but not the obligation, at its own expense, upon notice to such Lender and the Administrative Agent, to replace such Lender with an assignee (in accordance with and subject to the restrictions contained in paragraph B above), and such Lender hereby agrees to transfer and assign without recourse (in accordance with and subject to the restrictions contained in paragraph B above) all its interests, rights and obligations in respect of its Commitment to such assignee; provided , however , that (i) no such assignment shall conflict with any Applicable Law and (ii) the Issuing Banks, the Swing Line Lender or such assignee, as the case may be, shall pay to such Lender in immediately available funds on the date of such assignment the principal of and interest accrued to the date of payment on the Loans made by such Lender hereunder and all other amounts accrued for such Lender’s account or owed to it hereunder.

I. Certain Taxes . Any Other Taxes imposed in respect of an assignment or participation (other than an assignment pursuant to Section 2.8B) shall be the responsibility of either the assigning Lender or the assignee in the case of an assignment or the Lender or the Participant in the case of a participation but, for the avoidance of doubt, shall not be the responsibility of the Co-Borrowers.

 

10.2 Expenses; Indemnity; Damage Waiver.

A. Costs and Expenses. Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and each Borrower shall, jointly and severally, pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, including their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for such Persons, in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated); (ii) all reasonable out-of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder; and (iii) all out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank, including the fees, charges and disbursements of any counsel for the Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank, in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents, including its rights under this Section 10.2A, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.

B. Indemnification. Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and each Borrower shall, jointly and severally, indemnify the Arrangers, each Agent (and any sub-Agent thereof), each Issuing Bank, the Swing Line Lender, each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel for any Indemnitee (but limited, in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel for all Indemnitees taken as a whole in each relevant jurisdiction, and solely in the case of a conflict of interest, one additional counsel in each jurisdiction relevant to each group of affected Indemnitees similarly situated, taken as a whole) incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement

 

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or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the Transactions, (ii) any Loan, Letter of Credit or use of the proceeds therefrom by any Loan Party or any of its Subsidiaries, (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by Holdings or any of its Subsidiaries, or any Environmental Claim or Environmental Liability related in any way to Holdings or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto or whether such claim, litigation, investigation or proceeding is brought by a third party or by Holdings or any Borrower or any of their Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of any Indemnitee or its Related Parties, (B) are determined by a court of competent jurisdiction by final and nonappealable judgment to have arisen from a material breach of the obligations of such Indemnitee or its Related Parties under the Loan Documents, (C) arise from disputes solely among the Indemnitees other than claims against an Indemnitee in its capacity or in fulfilling its role as an Administrative Agent, Arranger or other similar role under this Agreement and other than claims arising out of any act or omission of the Co-Borrowers or any of their affiliates or (D) are solely indirect, special, punitive or consequential damages.

C. Reimbursement by the Lenders. To the extent that Holdings or any Borrower fails to pay any amount required under Section 10.2A or 10.2B to be paid by it to any Agent (or any sub-Agent thereof), any Issuing Bank or any Related Party of any of the foregoing (and without limiting their obligation to do so), each Lender severally agrees to pay to the Agent (or any such sub-Agent), any Issuing Bank or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent (or any such sub-Agent) or such Issuing Bank in its capacity as such, or against any Related Party of any of the foregoing acting for such Agent (or any such sub-Agent) or such Issuing Bank in connection with such capacity; provided further that to the extent any Issuing Bank is entitled to indemnification under Section 10.2A or 10.2B, the indemnification provided for in this Section 10.2C will be the obligation solely of the Revolving Loan Lenders. The obligations of the Lenders under this Section 10.2C are subject to the provisions of Section 10.12.

D. Waiver of Consequential Damages, Etc. To the fullest extent permitted by Applicable Law, no party hereto shall assert, and they each hereby waive, any claim against all other parties hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof; provided that nothing contained in this Section 10.2D shall limit the indemnity and reimbursements obligations set forth in Section 10.2B hereof. No Indemnitee referred to in Section 10.2B above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, unless such damages are directly caused by the bad faith, gross negligence or willful misconduct of such Indemnitee as determined by a court of competent jurisdiction by final and nonappealable judgment.

E. Payments. All amounts due under this Section 10.2 shall be payable promptly after demand therefor.

 

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10.3 Right of Set-Off.

Without limitation of any other rights of the Agents, the Lenders or the Issuing Banks, if an Event of Default shall have occurred and be continuing, each Agent, each Lender, each Issuing Bank and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, upon any Obligation becoming due and payable hereunder to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Agent, Lender, Issuing Bank or any such Affiliate to or for the credit or the account of any Loan Party against any and all of such Obligations, irrespective of whether or not such Agent, Lender or Issuing Bank shall have made any demand under this Agreement or any other Loan Document and although such Obligations are owed to a branch or office of such Agent, Lender or Issuing Bank different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Agent, Lender, Issuing Bank and their respective Affiliates under this Section 10.3 are in addition to other rights and remedies (including other rights of setoff) which such Agent, Lender, Issuing Bank or their respective Affiliates may have. Each Agent, Lender and Issuing Bank agrees promptly to notify the Borrowers and the Administrative Agent after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.

 

10.4 Sharing of Payments by Lenders.

If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its Pro Rata Share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify each Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, to the end that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to (x) any payment made by Holdings or any Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or Participant, other than to Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any of their respective Subsidiaries (as to which the provisions of this paragraph shall apply). Each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Borrowers consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each of Holdings and the

 

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Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of Holdings or any Borrower, as the case may be, in the amount of such participation.

 

10.5 Amendments and Waivers.

A. Amendment and Waivers. No amendment, modification, termination or waiver of any provision of this Agreement or of the Notes, or consent to any departure by any Co-Borrower or any other Loan Party therefrom, shall in any event be effective without the written concurrence of the Requisite Lenders; provided that any such amendment, modification, termination, waiver or consent which: (a) reduces or forgives the principal amount of any of the Loans; (b) reduces the percentage specified in the definition of the “Requisite Lenders” or “Requisite Class Lender” (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit pursuant to this Agreement may be included in the definition of the “Requisite Lenders” on substantially the same basis as the Commitments are included on the Effective Date); (c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders; (d) postpones the scheduled final maturity date of any of the Loans; (e) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Loans or of any scheduled reduction or termination of the Commitments; (f) postpones the date on which any interest or any fees are payable; (g) decreases the interest rate borne by any of the Loans (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to Section 2.2E) or the amount of any fees payable hereunder; it being understood that any amendment to the definition of “Capitalization Ratio” will not constitute a reduction in the Facility Fee for purpose of this clause (g); (h) increases the maximum duration of Interest Periods permitted hereunder; (i) releases all or substantially all of the Collateral; (j) releases of all or substantially all the value of the Guaranty; (k) amends the definition of “Pro Rata Shares”; or (l) changes in any manner the provisions contained in Sections 2.4B, 2.4C(iii), 8.1 or 10.4, or this Section 10.5 shall be effective only if evidenced by a writing signed by or on behalf of all the Lenders to whom Obligations are owed or who have Commitments outstanding being directly affected by such amendment, modification, termination, waiver or consent (the consent of the Requisite Lenders not being required for any such change); provided further that any amendment, modification, termination, waiver or consent which amends or modifies the definition of “Approved Fund,” “Eligible Assignee,” or “Fund,” or Section 10.1 to the extent further restricting assignments, shall be effective only if evidenced by a written consent of the Requisite Lenders and the Administrative Agent. In addition, (i) [reserved], (ii) no amendment, modification, termination or waiver of any provision of any Note shall be effective without the written concurrence of the Lender which is the holder of that Note, (iii) no increase in the Commitments of any Lender over the amount thereof then in effect shall be effective without the written concurrence of that Lender, it being understood and agreed that in no event shall waivers or modifications of conditions precedent, covenants, Defaults, Events of Default or of a mandatory prepayment or a reduction of any or all of the Commitments be deemed to constitute an increase of the Commitment of any Lender and that an increase in the available portion of any Commitment of any Lender shall not be deemed to constitute an increase in the Commitment of such Lender, (iv) no amendment, modification, termination or waiver of any provision of Section 2.1A(ii) or any other provision of this Agreement relating to the Swing Line Loan Commitment or the Swing Line Loans shall be effective without the written consent of the Swing Line Lender, (v) no amendment, modification, termination or waiver of any provision of Section 3 or any other provision of this Agreement relating to the rights or obligations of an Issuing Bank shall be effective without the written concurrence of such Issuing Bank, (vi) no amendment, modification, termination or waiver of any provision of Section 9 or of any other provision of this

 

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Agreement which, by its terms, expressly requires the approval or concurrence of the Administrative Agent shall be effective without the written concurrence of the Administrative Agent and (vii) no amendment or modification of the First-Out Provisions shall be effective without the consent of all Lenders. The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of that Lender and no amendment, modification, termination or waiver which has the effect of changing any payment, voluntary or mandatory prepayments or Commitment reductions applicable to any Class (the “ Affected Class ”) in a manner that disproportionately disadvantages such Class relative to the other Class shall be effective without the written concurrence of the Requisite Class Lenders of the Affected Class (it being understood and agreed that any amendment, modification, termination or waiver of any such provision which only postpones or reduces any voluntary or mandatory prepayment or Commitment reduction from those set forth in Section 2.4 with respect to one Class but not the other Classes shall be deemed to disproportionately disadvantage such one Class but not to disproportionately disadvantage such other Classes for purposes of this clause). Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on the Borrowers in any case shall entitle the Borrowers to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.5 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by the Borrowers, on the Borrowers and Holdings.

Notwithstanding anything in this Section 10.5A to the contrary, this Agreement and the other Loan Documents may be amended (or amended and restated) (i) with the written approval of the Administrative Agent, Holdings and the lenders of the additional Commitments incurred pursuant to Section 2.1A(iii) to implement the additional Commitments incurred pursuant to and in accordance with Section 2.1A(iii) or (ii) with the written approval of the Administrative Agent, Holdings and the Accepting Lenders to implement any Loan Modification Offer that becomes effective pursuant to and in accordance with Section 2.9.

B. Non-Consenting Lenders. Each Lender grants (x) to the Administrative Agent the right to purchase all (but not less than all) of such Lender’s Commitments and Loans owing to it and the Notes held by it and all of its rights and obligations hereunder and under the other Loan Documents, and (y) to the Borrowers the right to cause an assignment of all (but not less than all) of such Lender’s Commitments and Loans owing to it, its participations in the Notes held by it and all of its rights and obligations hereunder and under the other Loan Documents to Eligible Assignees, which right may be exercised by the Administrative Agent or the Borrowers, as the case may be, if such Lender (a “ Non-Consenting Lender ”) refuses to execute any amendment, waiver or consent which requires the written consent of Lenders other than Requisite Lenders (including such Non-Consenting Lender) and to which Requisite Lenders, the Administrative Agent and the Borrowers have otherwise agreed; provided that (i) the Administrative Agent shall waive, or the Borrowers or the Eligible Assignee shall pay, as the case may be, any required assignment fee, and such Non-Consenting Lender shall receive, in connection with such assignments, payment equal to the aggregate amount of outstanding Loans owed to such Lender (together with all accrued and unpaid interest, fees and other amounts (other than contingent indemnity obligations not then due and payable), including amounts owed under Section 2.6D, owed to such Lender); and (ii) no such assignment shall conflict with any Applicable Law. Each Lender agrees that if the Administrative Agent or the Borrowers, as the case may be, exercise their option hereunder, they shall promptly execute and deliver all agreements and documentation necessary to effectuate such assignment as set forth in Section 10.1. The Administrative Agent shall be entitled (but not obligated) to execute and

 

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deliver such agreement and documentation on behalf of such Non-Consenting Lender and any such agreement and/or documentation so executed by the Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section 10.1.

 

10.6 Independence of Covenants.

All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another such covenant shall not avoid the occurrence of a Default or Event of Default if such action is taken or condition exists.

 

10.7 Notices.

A. Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 10.7B below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows: (i) if to any Borrower, Holdings or any Subsidiary of Holdings, to the U.S. Borrower at 4900 N. Scottsdale Road, Suite 2000, Scottsdale, AZ 85251, attention: Darrell C. Sherman (Facsimile No. 1-866-390-2612; Telephone No. (480) 840-8113); (ii) if to the Administrative Agent, the Collateral Agent, or to Credit Suisse AG at Credit Suisse AG, Eleven Madison Avenue, New York, NY 10010, attention of Agency Group (Facsimile No. (212) 322-2291; Telephone No. (919) 994-6369); and (iii) if to a Lender, to it at its address (or facsimile number) set forth in its Administrative Questionnaire. Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications, to the extent provided in Section 10.7B below, shall be effective as provided in said Section 10.7B.

B. Electronic Communications. Notices and other communications to the Lenders and the applicable Issuing Bank hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or any Issuing Bank pursuant to Section 2.1 and Section 3, as the case may be, if such Lender or such Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Section by electronic communication. The Administrative Agent or each Borrower may, in their discretion, agree to accept notices and other communications to them hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment); provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

 

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C. Change of Address, Etc. Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto.

 

10.8 Survival of Representations, Warranties and Agreements.

A. All representations, warranties and agreements made herein shall survive the execution and delivery of this Agreement and the making of the Loans and the issuance of the Letters of Credit hereunder.

B. Notwithstanding anything in this Agreement or implied by law to the contrary, the agreements of Holdings and each Borrower set forth in Sections 2.6D, 2.7, 10.2, 10.3 and 10.18 and the agreements of the Lenders set forth in Sections 9.2, 9.3, 9.4, 10.2C, 10.3, 10.4 and 10.19 shall survive the payment of the Loans, the cancellation or expiration of the Letters of Credit and the reimbursement of any amounts drawn or paid thereunder, and the termination of this Agreement.

 

10.9 Failure or Indulgence Not Waiver; Remedies Cumulative.

No failure or delay on the part of any Agent or any Lender in the exercise of any power, right or privilege hereunder or under any other Loan Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. All rights and remedies existing under this Agreement and the other Loan Documents are cumulative to, and not exclusive of, any rights or remedies otherwise available.

 

10.10 Marshalling; Payments Set Aside.

Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of the Borrowers, any other Loan Party or any other party or against or in payment of any or all of the Obligations. To the extent that any Borrower or any other Loan Party makes a payment or payments to the Administrative Agent or the Lenders (or to the Administrative Agent or Collateral Agent for the benefit of the Lenders), or any Agent or the Lenders enforce any security interests or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state, provincial or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.

 

10.11 Severability.

In case any provision in or obligation under this Agreement or the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

 

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10.12 Obligations Several; Independent Nature of the Lenders’ Rights.

The obligations of the Lenders and the Issuing Banks hereunder are several and no Lender or Issuing Bank shall be responsible for the obligations or Commitments of any other Lender or Issuing Bank hereunder. Nothing contained herein or in any other Loan Document, and no action taken by the Lenders and the Issuing Banks pursuant hereto or thereto, shall be deemed to constitute the Lenders and the Issuing Banks as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender and each Issuing Bank shall be a separate and independent debt, and each Lender and each Issuing Bank shall be entitled to protect and enforce its rights arising out of this Agreement and it shall not be necessary for any other Lender or other Issuing Bank to be joined as an additional party in any proceeding for such purpose.

 

10.13 Maximum Amount.

A. It is the intention of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo the Borrowers, each Issuing Bank and the Lenders to conform strictly to the usury and similar laws relating to interest from time to time in force (including the relevant provisions of the Criminal Code (Canada)), and all agreements between the Loan Parties and their respective Subsidiaries and the Lenders and Issuing Bank, whether now existing or hereafter arising and whether oral or written, are hereby expressly limited so that in no contingency or event whatsoever, whether by acceleration of maturity hereof or otherwise, shall the amount paid or agreed to be paid in the aggregate to the Lenders as interest (whether or not designated as interest, and including any amount otherwise designated but deemed to constitute interest by a court of competent jurisdiction) hereunder or under the other Loan Documents or in any other agreement given to secure the Indebtedness or obligations of the Borrowers to the Lenders, or in any other document evidencing, securing or pertaining to the Indebtedness evidenced hereby, exceed the maximum amount permissible under applicable usury or such other laws (the “ Maximum Amount ”). If under any circumstances whatsoever fulfillment of any provision hereof, or any of the other Loan Documents, at the time performance of such provision shall be due, shall involve exceeding the Maximum Amount, then, ipso facto, the obligation to be fulfilled shall be reduced to the Maximum Amount (in the case of any such reduction for the purpose of complying with the Criminal Code (Canada), first by reducing the amount or rate of interest and second by reducing any fees, commissions, costs, expenses, premiums and other amounts which would constitute “interest” for purposes of section 347 thereof). For the purposes of calculating the actual amount of interest paid and/or payable hereunder in respect of laws pertaining to usury or such other laws, all sums paid or agreed to be paid to the holder hereof for the use, forbearance or detention of the Indebtedness of the Borrowers evidenced hereby, outstanding from time to time shall, to the extent permitted by Applicable Law, be amortized, pro-rated, allocated and spread from the date of disbursement of the proceeds of the Notes until payment in full of all of such Indebtedness, so that the actual rate of interest on account of such Indebtedness is uniform through the term hereof. The terms and provisions of this Section shall control and supersede every other provision of all agreements between the Borrowers or any endorser of the Notes and the Lenders and Issuing Bank.

B. If under any circumstances any Lender or Issuing Bank shall ever receive an amount which would exceed the Maximum Amount, such amount shall be treated as a voluntary prepayment under Section 2.4A(i) and shall be so applied in accordance with Section 2.4, hereof or if such excessive interest exceeds the unpaid balance of the Loans and any other Indebtedness of any Borrower in favor of such Lender or Issuing Bank, the excess shall be deemed to have been a payment made by mistake and shall be refunded to the Borrowers.

 

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10.14 Headings.

Section and Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect.

 

10.15 Applicable Law.

THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

10.16 Successors and Assigns.

This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of the Lenders (it being understood that the Lenders’ rights of assignment are subject to Section 10.1). None of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo or any Borrower’s rights or obligations hereunder or any interest therein may be assigned or delegated by Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo or any Borrower without the prior written consent of all Lenders.

 

10.17 Consent to Jurisdiction and Service of Process.

A. SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT SITTING IN THE BOROUGH OF MANHATTAN, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ONLY IN SUCH FEDERAL COURT (EXCEPT THAT, (X) IN THE CASE OF ANY MORTGAGE OR OTHER SECURITY DOCUMENT, PROCEEDINGS MAY ALSO BE BROUGHT BY THE ADMINISTRATIVE AGENT OR COLLATERAL AGENT IN THE STATE IN WHICH THE RESPECTIVE MORTGAGED PROPERTY OR COLLATERAL IS LOCATED OR ANY OTHER RELEVANT JURISDICTION AND (Y) IN THE CASE OF ANY BANKRUPTCY, INSOLVENCY OR SIMILAR PROCEEDINGS WITH RESPECT TO ANY CREDIT PARTY, ACTIONS OR PROCEEDINGS RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN SUCH COURT HOLDING SUCH BANKRUPTCY, INSOLVENCY OR SIMILAR PROCEEDINGS). EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN

 

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DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY AGENT, ANY LENDER OR ANY ISSUING BANK MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST HOLDINGS, CANADA HOLDINGS, U.S. HOLDINGS, CANADA INTERMEDIATE HOLDINGS, U.S. FINCO, A CO-BORROWER OR THEIR RESPECTIVE PROPERTIES IN THE COURTS OF ANY JURISDICTION. IT IS UNDERSTOOD BY THE PARTIES THAT THE FOREGOING SHALL NOT APPLY TO ANY BANKRUPTCY, INSOLVENCY OR SIMILAR LAW OR ANY PROCEEDING THEREUNDER.

B. WAIVER OF VENUE. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN SECTION 10.17A. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

C. Service of Process. Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 10.7. Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by Applicable Law.

 

10.18 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON PARTY HERETO HAS REPRESENTED TO SUCH PARTY, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

10.19 Confidentiality.

Each of the Agents, the Lenders and the Issuing Bank agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to it, its Affiliates’ and their respective partners, directors, officers, employees, advisors, representatives and numbering, administration and settlement service providers (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential as provided herein), (b) to the extent requested by any regulatory authority (including any self-regulatory authority, such as the National Association of

 

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Insurance Commissioners), (c) to the extent required by Applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section 10.19, to (i) any assignee or pledgee of or Participant in, or any prospective assignee or pledgee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and their respective obligations, (g) with the consent of the Co-Borrowers (such consent not to be unreasonably withheld or delayed) or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a source other than a Loan Party or its Affiliates; provided that to the extent any Agent or Lender discloses Information pursuant to any provision of this Section 10.19, it shall (v) use good faith efforts to do so in such a manner as would be reasonably likely to maintain the confidentiality thereof, and (w) in the case of disclosures outside the ordinary course pursuant to clauses (b) or (c) above, to the extent practicable (following the exercise of commercially reasonable efforts) and not prohibited by Applicable Law, notify the Co-Borrowers of such proposed disclosure as far in advance of such disclosure as practicable and, at the request of the Co-Borrowers and the expense of such Agent or Lender, use commercially reasonable efforts to ensure that any Information so disclosed is accorded confidential treatment.

For purposes of this Section 10.19, “ Information ” means all written information received from Holdings or any of its Subsidiaries or any of their respective Affiliates relating to Holdings or any of its Subsidiaries or any of their respective businesses, which to the extent received on or after the Effective Date, is identified as confidential by the Co-Borrowers or Holdings. Any Person required to maintain the confidentiality of Information as provided in this Section 10.19 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Each Lender acknowledges that Information furnished to it pursuant to this Agreement may include material non-public information concerning the Loan Parties and their respective Related Parties or their respective securities, and confirms that it has developed compliance procedures regarding the use of material non-public information and that it will handle such material non-public information in accordance with those procedures and Applicable Law, including Federal and state securities laws.

All Information, including requests for waivers and amendments, furnished by Holdings, the Co-Borrowers or the Administrative Agent pursuant to, or in the course of administering, this Agreement will be syndicate-level Information, which may contain material non-public information about the Loan Parties and their respective Related Parties or their respective securities. Accordingly, each Lender represents to Holdings, the Borrowers and the Administrative Agent that it has identified in its Administrative Questionnaire a credit contact who may receive Information that may contain material non-public information in accordance with its compliance procedures and Applicable Law.

 

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10.20 Integration; Effectiveness; Electronic Execution.

A. Integration; Effectiveness. This Agreement and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement shall become effective as provided in the Amendment Agreement.

B. Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

10.21 USA Patriot Act Notification.

The following notification is provided to the Loan Parties pursuant to Section 326 of the USA PATRIOT Act:

IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT.

To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person or entity that opens an account, including any deposit account, treasury management account, loan, other extension of credit, or other financial services product.

What this means for any Loan Party: When a Loan Party opens an account, if the Loan Party is an individual, the Administrative Agent, the Issuing Banks and the Lenders will ask for the Loan Party’s name, residential address, tax identification number, date of birth, and other information that will allow the Administrative Agent, the Issuing Banks and the Lenders to identify the Loan Party, and, if the Loan Party is not an individual, the Administrative Agent, the Issuing Banks and the Lenders will ask for the Loan Party’s name, tax identification number, business address, and other information that will allow the Administrative Agent, the Issuing Banks and the Lenders to identify the Loan Party. The Administrative Agent, the Issuing Banks and the Lenders may also ask, if the Loan Party is an individual, to see the Loan Party’s driver’s license or other identifying documents, and, if the Loan Party is not an individual, to see the Loan Party’s legal organizational documents or other identifying documents.

The Administrative Agent, the Issuing Banks and the Lenders may also be required to obtain, verify and record similar information under other applicable anti-money laundering laws, rules and regulations, including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada).

 

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10.22 Agency of the U.S. Borrower for each other Loan Party.

Each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, the Canadian Borrower, U.S. FinCo and the other Loan Parties appoints the U.S. Borrower as its agent for all purposes relevant to this Agreement and the other Loan Documents, including the giving and receipt of notices and the execution and delivery of all documents, instruments and certificates contemplated herein and therein and all modifications hereto and thereto.

 

10.23 No Fiduciary Duties.

In connection with all aspects of each transaction contemplated hereby, Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and each of the Borrowers acknowledge and agree that: (a) the extensions of credit provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the other Loan Parties and their respective Affiliates, on the one hand, and the Agents, the Arrangers and the Lenders, on the other hand, and Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the other Loan Parties are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (b) in connection with the process leading to such transaction, each Agent, each Arranger and each Lender is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for any of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers, any other Loan Party or any of their respective Affiliates, stockholders, creditors or employees or any other person; (c) none of the Agents, any Arranger or any Lender has assumed or will assume an advisory, agency or fiduciary responsibility in favor of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any other Loan Party with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether any Agent, any Arranger or any Lender has advised or is currently advising Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers or any other Loan Party or their respective Affiliates on other matters) and none of the Agents, any Arranger or any Lender has any obligation to any of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers, the other Loan Parties or their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (d) the Agents, the Arrangers, the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the other Loan Parties and their respective Affiliates, and none of the Agents, any Arranger or any Lender has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (e) the Agents, the Arrangers and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers and the other Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate. Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo, the Co-Borrowers,

 

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the other Loan Parties and their respective Affiliates each hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against the Agents, the Arrangers and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty.

 

10.24 Judgment Currency.

The obligations of the Borrowers and the other Loan Parties hereunder and under the other Loan Documents to make payments in Dollars or in Canadian Dollars, as the case may be (each, an “ Obligation Currency ”) shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any currency other than the applicable Obligation Currency, except to the extent that such tender or recovery results in the effective receipt by the Administrative Agent or an Issuing Bank of the full amount of the Obligation Currency expressed to be payable to the Administrative Agent or such Issuing Bank under this Agreement or the other Loan Documents. If, for the purpose of obtaining or enforcing judgment against any Borrower or any other Loan Party or in any court or in any jurisdiction, it becomes necessary to convert into or from any currency other than the applicable Obligation Currency (such currency being hereinafter referred to as the “ Judgment Currency ”) an amount due in the applicable Obligation Currency, the conversion shall be made, as the case may be, at the Canadian Dollar Equivalent or U.S. Dollar Equivalent determined, in each case, as of the Business Day immediately preceding the day on which the judgment is given (such Business Day being hereinafter referred to as the “ Judgment Currency Conversion Rate ”).

If there is a change in the rate of exchange prevailing between the Judgment Currency Conversion Date and the date of actual payment of the amount due, the Borrowers covenant and agree to pay, or cause to be paid, as a separate obligation and notwithstanding any judgment, such additional amounts, if any (but in any event not a lesser amount), as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of the applicable Obligation Currency which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial award at the rate of exchange prevailing on the Judgment Currency Conversion Date.

For purposes of determining the Canadian Dollar Equivalent or U.S. Dollar Equivalent or rate of exchange for this Section 10.24, such amounts shall include any premium and costs payable in connection with the purchase of the applicable Obligation Currency.

 

10.25 Additional Borrowing Subsidiaries.

A. Each Co-Borrower may designate any of its wholly-owned Restricted Subsidiaries organized under the laws of the United States, Canada or any state or province thereof as a Borrower under the Commitments; provided that the Administrative Agent shall have received, at least five Business Days prior to the date on which such Person is proposed to become a Borrower hereunder, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including to the extent applicable, the USA PATRIOT Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada). Upon the receipt by the Administrative Agent of a Borrowing Subsidiary Agreement in substantially the form of Exhibit XII annexed hereto executed by such Subsidiary of a Co-Borrower such Subsidiary shall become a Borrower and a party to this Agreement. A Person shall cease to be a Borrower hereunder at such time as no Loans, fees or any other amounts due in connection therewith pursuant to the terms hereof shall be outstanding by such Person, no Letters of Credit issued for the

 

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account of such Person shall be outstanding and such Person and its parent Borrower shall have executed and delivered to the Administrative Agent a Borrowing Subsidiary Termination in substantially the form of Exhibit XIII annexed hereto.

B. Notwithstanding the foregoing, no Person shall be added as a Borrower hereunder pursuant to this Section 10.25 unless (i) on the effective date of such addition, the conditions set forth in Section 4 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the applicable potential Borrower or Borrowers and (ii) except as otherwise specified in the applicable Borrowing Subsidiary Agreement, the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Effective Date.

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Exhibit 10.1(b)

EXECUTION COPY

ADDITIONAL FACILITIES ASSUMPTION AGREEMENT AND AMENDMENT NO. 1 dated as of August 15, 2012 (this “ Agreement ”), relating to the CREDIT AGREEMENT dated as of July 13, 2011 (as amended and restated as of April 13, 2012, the “ Credit Agreement ”), among TAYLOR MORRISON COMMUNITIES, INC., a Delaware corporation (the “ U.S. Borrower ”), as co-borrower, MONARCH CORPORATION, an Ontario corporation (the “ Canadian Borrower ” and, together with the U.S. Borrower, the “ Co-Borrowers ”), TMM HOLDINGS LIMITED PARTNERSHIP, a British Columbia limited partnership (“ Holdings ”), MONARCH COMMUNITIES INC., a company continued under the laws of the province of British Columbia (“ Canada Holdings ”), MONARCH PARENT INC., a company incorporated under the laws of the province of British Columbia (“ Canada Intermediate Holdings ”), TAYLOR MORRISON HOLDINGS, INC., a Delaware corporation (“ U.S. Holdings ”), TAYLOR MORRISON FINANCE, INC., a Delaware corporation (“ U.S. FinCo ”), each lender from time to time party thereto (each individually referred to therein as a “ Lender ” and collectively as “ Lenders ”) and CREDIT SUISSE AG, as administrative agent for the Lenders (in such capacity, the “ Administrative Agent ”), as collateral agent (in such capacity, the “ Collateral Agent ”), as swing line lender (in such capacity, the “ Swing Line Lender ”) and as issuing bank (in such capacity, the “ Issuing Bank ”).

A. The U.S. Borrower and Canada Holdings intend to issue an additional $100,000,000 aggregate principal amount of Senior Unsecured Notes (the “ Notes Offering ”) on or around August 21, 2012.

B. In connection therewith, the Co-Borrowers have requested (i) that the Persons set forth on Schedule 1 hereto (the “ Additional Lenders ”) provide additional Commitments (the “ Additional Commitments ”) to the Co-Borrowers in an aggregate amount of $50,000,000 and (ii) that the Credit Agreement be amended as set forth herein.

C. The Additional Lenders are willing to provide the Additional Commitments to the Co-Borrowers, and the Requisite Lenders are willing so to amend the Credit Agreement, in each case on the terms and subject to the conditions set forth herein and in the Credit Agreement.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Defined Terms. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Credit Agreement. The rules of interpretation set forth in Section 1.2A of the Credit Agreement are hereby incorporated by reference herein, mutatis mutandis.


SECTION 2. Additional Commitments. (a) Schedule 1 hereto sets forth the Additional Commitment of each Additional Lender as of the Assumption Effective Date (as defined below). The Additional Commitment of each Additional Lender shall be several and not joint.

(b) The Additional Commitments and the Revolving Loans and other extensions of credit made thereunder shall have the same terms as those applicable to the Commitments and the Revolving Loans and other extensions of credit made thereunder, respectively. With effect from the Assumption Effective Date, the Additional Lenders shall constitute “Qualified Additional Lenders”, “Revolving Loan Lenders” and “Lenders”, the Additional Commitments shall constitute “Commitments” and the loans made thereunder shall constitute “Revolving Loans” (and not Other Credit Extensions), in each case for all purposes of the Credit Agreement and the other Loan Documents.

(c) (i) Upon the effectiveness of the Additional Commitments, each Revolving Loan Lender immediately prior to such effectiveness will automatically and without further act be deemed to have assigned to each Additional Lender, and each such Additional Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Loan Lender’s participations under the Credit Agreement in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations under the Credit Agreement in Letters of Credit and (y) participations under the Credit Agreement in Swing Line Loans held by each Revolving Loan Lender (including each such Additional Lender) will equal such Lender’s Pro Rata Share and (ii) if, on the Assumption Effective Date, there are any Revolving Loans outstanding, such Revolving Loans shall, upon the effectiveness of the Additional Commitments, be prepaid from the proceeds of new Revolving Loans made under the Credit Agreement, which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Loan Lender in accordance with Section 2.4 of the Credit Agreement.

(d) Holdings and the Co-Borrowers hereby appoint Deutsche Bank AG New York Branch (“ Deutsche Bank ”) as an Issuing Bank with respect to any Letter of Credit that may be issued by such Person after the Assumption Effective Date, and Deutsche Bank hereby accepts such appointment. Notwithstanding the foregoing or anything to the contrary contained herein or in the Credit Agreement, neither Credit Suisse AG nor Deutsche Bank shall be obligated to issue or modify any Letter of Credit if, immediately after giving effect thereto, the outstanding Letter of Credit Usage of all Letters of Credit issued by such Person and its Affiliates would exceed (i) $45,000,000, in the case of Credit Suisse AG or (ii) $40,000,000, in the case of Deutsche Bank (the “ Issuing Bank Sublimits ”). Without limiting the foregoing and

 

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without affecting the limitations in the Credit Agreement on aggregate Letter of Credit Usage, it is understood and agreed that a Co-Borrower may from time to time request that an Issuing Bank exceed its individual Issuing Bank Sublimit, and each Issuing Bank agrees to consider any such request in good faith. Any Letter of Credit so issued by an Issuing Bank in excess of its individual Issuing Bank Sublimit shall nonetheless constitute a Letter of Credit for all purposes of the Credit Agreement, and shall not affect the Issuing Bank Sublimit of the other Issuing Bank (subject to the limitations in the Credit Agreement on aggregate Letter of Credit Usage).

(e) The Co-Borrowers hereby agree to pay to each Additional Lender, through the Administrative Agent, in immediately available funds, an upfront fee (the “ Upfront Fee ”) equal to 1.0% of each Additional Lender’s Additional Commitment, as set forth in Schedule 1 hereto, on the Assumption Effective Date. Once paid, the Upfront Fee shall not be refundable under any circumstances.

SECTION 3. Amendments. Effective as of the Assumption Effective Date, the Credit Agreement is hereby amended as follows:

(a) By inserting in Section 1.1 in the appropriate alphabetical order therein the following defined term:

Fronting Exposure means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Usage with respect to Letters of Credit issued by such Issuing Bank other than Letter of Credit Usage as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof, and (b) with respect to any Swing Line Lender, such Defaulting Lender’s Pro Rata Share of outstanding Swing Line Loans made by such Swing Line Lender other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.

(b) By inserting at the end of the definition of the term Lender Default in Section 1.1 the words:

“, so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender”.

(c) By inserting immediately after the words “except as otherwise agreed to by each Issuing Bank and the Swing Line Lender,” in Section 2.9B the clause designated “(x)” and by adding at the end of Section 2.9B the following:

“, (y) the Swing Line Loan Commitment may not be extended without the consent of the Swing Line Lender and (z) no Letter of Credit may extend beyond the Commitment Termination Date (as in effect prior to any Permitted Amendment which effectuates an extension of the then-existing Commitment Termination Date) without the consent of the Issuing Bank that issued such Letter of Credit”.

 

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(d) By inserting therein the following new Section 3.6:

 

  3.6 Defaulting Lenders.

Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

A. Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 8 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to any right of setoff shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swing Line Lender hereunder; third, to cash collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender; fourth, as the Co-Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Co-Borrowers, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the Issuing Banks’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 3.6C; sixth, to the payment of any amounts owing to the Lenders, any Issuing Bank or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to a Co-Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Co-Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued (as applicable) at a time when the conditions set forth in Sections 4.2 and 4.3 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all Lenders other than Defaulting Lenders on a pro

 

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rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans are held by the Lenders pro rata in accordance with their Commitments without giving effect to Section 3.6B. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 3.6A shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

B. Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in Letter of Credit Usage and Swing Line Loans shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set forth in Section 4.2 are satisfied at the time of such reallocation (and, unless the Co-Borrowers shall have otherwise notified the Administrative Agent at such time, the Co-Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Loan Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.

C. Cash Collateral, Repayment of Swing Line Loans. If the reallocation described in Section 3.6B above cannot, or can only partially, be effected, the Co-Borrowers shall, without prejudice to any right or remedy available to them hereunder or under law, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lender’s Fronting Exposure and (y) second, cash collateralize the Issuing Banks’ Fronting Exposure in accordance with the procedures set forth in Section 8.

D. Defaulting Lender Cure. If the Co-Borrowers, the Administrative Agent, the Swing Line Lender and each Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held pro rata by the Lenders in accordance with the Commitments (without giving effect to Section 3.6B), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made

 

5


retroactively with respect to fees accrued or payments made by or on behalf of the Co-Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(e) By amending and restating Section 4.3B thereof in its entirety as follows:

“On the date of issuance of such Letter of Credit, all conditions precedent described in Sections 4.2B, 4.2C and 4.2D shall be satisfied or waived to the same extent as if the issuance of such Letter of Credit were the making of a Loan and the date of issuance of such Letter of Credit were a Funding Date.”

SECTION 4. Representations and Warranties. To induce the other parties hereto to enter into this Agreement, each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers, jointly and severally, hereby represents and warrants to the Administrative Agent and each of the other parties hereto that, as of the date hereof and the Assumption Effective Date:

(a) Each Loan Party (i) has the corporate or other organizational power and authority to execute, deliver and carry out the terms and provisions of this Agreement and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Agreement, and (ii) has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid and binding obligation of such Loan Party enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law).

(b) (i) The representations and warranties set forth in Section 5 of the Credit Agreement and in the other Loan Documents are true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) on and as of the date hereof and the Assumption Effective Date to the same extent as though made on and as of each such date (and provided that with respect to the representations and warranties contained in Sections 1.01(a) and 1.01(c) of each Mortgage, such representations and warranties shall be deemed to be true and correct in all material respects as of the date hereof and the Assumption Effective Date so long as the representations and warranties contained in Sections 5.2A and 5.5A of the Credit Agreement shall be true and correct in all respects (or, in the case of those portions of Section 5.2A which are not qualified as to materiality or Material Adverse Effect, in all material respects) as of the date hereof and the Assumption Effective Date), except (x) to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (unless qualified as to materiality or Material Adverse

 

6


Effect, in which case such representations and warranties were true and correct in all respects) on and as of such earlier date, and (y) the reference to the Restatement Effective Date in Section 5.12 of the Credit Agreement shall, for purposes of this Section 4(b), be deemed to refer to the Assumption Effective Date, and (ii) no Default or Event of Default has occurred and is continuing.

SECTION 5. Conditions to Effectiveness. The effectiveness of this Agreement and the obligations of the Additional Lenders to provide the Additional Commitments are subject to the satisfaction or waiver, on or prior to August 21, 2012, of the following conditions precedent (the date on which all such conditions are satisfied or waived, the “ Assumption Effective Date ”):

(a) The Administrative Agent (or its counsel) shall have received (i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.

(b) The Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Effective Date.

(c) The Administrative Agent shall have received (on behalf of itself and each Additional Lender) all fees and reimbursement of all costs and expenses required to be paid by the Co-Borrowers in connection with the transactions contemplated hereby (in the case of reimbursement of costs and expenses, to the extent a written invoice therefor is delivered to the Co-Borrowers no later than two Business Days prior to the Assumption Effective Date).

(d) The representations and warranties set forth in Section 4 shall be true and correct, and the Administrative Agent shall have received a certificate to that effect dated as of the Assumption Effective Date and executed by a Responsible Officer of each Loan Party.

(e) The Notes Offering shall have been consummated.

The Administrative Agent shall notify the Co-Borrowers and the Lenders of the Assumption Effective Date, and such notice shall be conclusive and binding.

SECTION 6. Consent and Reaffirmation; Mortgage Modifications. (a) Each of the Co-Borrowers and each other Loan Party hereby (i) consents to this Agreement and the transactions contemplated hereby, (ii) agrees that, notwithstanding the effectiveness of this Agreement, the Guaranty and the Security Agreement and each of the other Collateral Documents continue to be in full force and effect, (iii) affirms and confirms its guarantee (in the case of a Guarantor) of the Obligations and the pledge of and/or grant of a security interest in its assets as Collateral pursuant to the Collateral Documents to secure such Obligations, all as provided in the Loan Documents, and (iv) acknowledges and agrees that such guarantee, pledge and/or grant continues in full force and effect in

 

7


respect of, and to secure, the Obligations under the Credit Agreement and the other Loan Documents, including the Additional Commitments and the extensions of credit thereunder.

(b) If at any time the Total Utilization of Commitments exceeds $75,000,000, the U.S. Borrower shall, and shall cause the relevant Loan Parties to, within 60 days of such occurrence (unless the Collateral Agent in its sole discretion agrees to a later date), (i) enter into and record such modifications to the Mortgages in connection therewith as the Collateral Agent shall reasonably request and (ii) in connection therewith, deliver such legal opinions, title policies and endorsements to the relevant title insurance policies as the Collateral Agent may reasonably request, in each case at the expense of the Loan Parties, and otherwise comply with such other requirements relating to the Mortgages as may be required by the Credit Agreement and the other Loan Documents or as the Collateral Agent may reasonably request (including, without limitation, updated flood hazard searches, insurance certificates or additional Mortgages, as and to the extent applicable).

SECTION 7. Loan Documents. This Agreement shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.

SECTION 8. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission shall be as effective as delivery of an original executed counterpart of this Agreement.

SECTION 9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

SECTION 10. Headings. Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

[ Remainder of this page intentionally left blank ]

 

8


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers or representatives as of the day and year first above written.

 

TAYLOR MORRISON COMMUNITIES, INC.,

as U.S. Borrower,

By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Vice President/Secretary

MONARCH CORPORATION,

as Canadian Borrower,

By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Senior Vice President

TMM HOLDINGS LIMITED PARTNERSHIP,

as Holdings,

By:   TMM Holdings (G.P.) Inc., its General Partner
By:  

/s/ Rajath Shourie

Name:   Rajath Shourie
Title:   Director

MONARCH COMMUNITIES INC.,

as Canada Holdings,

By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Vice President/Secretary

MONARCH PARENT INC.,

as Canada Intermediate Holdings,

By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Vice President/Secretary


TAYLOR MORRISON HOLDINGS, INC.,
as U.S. Holdings,
By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Vice President/Secretary
TAYLOR MORRISON FINANCE, INC.,
as U.S. FinCo,
By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Vice President/Secretary
EACH SUBSIDIARY GUARANTOR SET
FORTH ON SCHEDULE 2 HERETO
By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Authorized Signatory


CREDIT SUISSE AG, CAYMAN

ISLANDS BRANCH, as a Lender and as an

Additional Lender, and

as Administrative Agent, Swing Line Lender

and Issuing Bank

By:  

/s/ Bill O’Daly

Name:   Bill O’Daly
Title:   Director
By:  

/s/ Sanja Gazahi

Name:   Sanja Gazahi
Title:   Associate


DEUTSCHE BANK AG NEW YORK BRANCH,
as a Lender and as an Additional Lender, and an Issuing Bank
By:  

/s/ Omayra Laucella

Name:   Omayra Laucella
Title:   Director
By:  

/s/ Courtney E. Meehan

Name:   Courtney E. Meehan
Title:   Vice President


HSBC REALTY CREDIT CORPORATION (USA),
as a Lender and as an Additional Lender
By:  

/s/ Michael C. Leung

Name:   Michael C. Leung
Title:   Senior Vice President


SCHEDULE 1

Additional Commitments

 

Additional Lenders

   Additional Commitments  

Credit Suisse AG, Cayman Islands Branch

   $ 20,000,000   

Deutsche Bank AG New York Branch

   $ 15,000,000   

HSBC Realty Credit Corporation (USA)

   $ 15,000,000   
  

 

 

 

TOTAL

   $ 50,000,000   
  

 

 

 


SCHEDULE 2

Subsidiary Guarantors

ATPD, LLC

TAYLOR MORRISON, INC.

TAYLOR MORRISON AT CRYSTAL FALLS, LLC

TAYLOR MORRISON HOLDINGS OF ARIZONA, INC.

TAYLOR MORRISON OF CALIFORNIA, LLC

TAYLOR MORRISON OF COLORADO, INC.

TAYLOR MORRISON OF FLORIDA, INC.

TAYLOR MORRISON OF TEXAS, INC.

TAYLOR MORRISON SERVICES, INC.

TAYLOR MORRISON/ARIZONA, INC.

TAYLOR WOODROW COMMUNITIES – LEAGUE CITY, LTD.

TAYLOR WOODROW COMMUNITIES AT MIRASOL, LTD.

TAYLOR WOODROW COMMUNITIES AT PORTICO, L.L.C.

TAYLOR WOODROW COMMUNITIES AT ST. JOHNS FOREST, L.L.C.

TAYLOR WOODROW HOMES – CENTRAL FLORIDA DIVISION, L.L.C.

TAYLOR WOODROW HOMES – SOUTHWEST FLORIDA DIVISION, L.L.C.

TM HOMES OF ARIZONA, INC.

TW ACQUISITIONS, INC.

TWC/FALCONHEAD WEST, L.L.C.

TWC/MIRASOL, INC.

TWC/STEINER RANCH, LLC

Exhibit 10.1(c)

EXECUTION COPY

ADDITIONAL FACILITIES ASSUMPTION AGREEMENT AND AMENDMENT NO. 2 dated as of December 27, 2012 (this “ Agreement ”), relating to the CREDIT AGREEMENT dated as of July 13, 2011 (as amended and restated as of April 13, 2012 and as thereafter amended as of August 15, 2012, the “ Credit Agreement ”), among TAYLOR MORRISON COMMUNITIES, INC., a Delaware corporation (the “ U.S. Borrower ”), as co-borrower, MONARCH CORPORATION, an Ontario corporation (the “ Canadian Borrower ” and, together with the U.S. Borrower, the “ Co-Borrowers ”), TMM HOLDINGS LIMITED PARTNERSHIP, a British Columbia limited partnership (“ Holdings ”), MONARCH COMMUNITIES INC., a company continued under the laws of the province of British Columbia (“ Canada Holdings ”), MONARCH PARENT INC., a company incorporated under the laws of the province of British Columbia (“ Canada Intermediate Holdings ”), TAYLOR MORRISON HOLDINGS, INC., a Delaware corporation (“ U.S. Holdings ”), TAYLOR MORRISON FINANCE, INC., a Delaware corporation (“ U.S. FinCo ”), each lender from time to time party thereto (each individually referred to therein as a “ Lender ” and collectively as “ Lenders ”) and CREDIT SUISSE AG, as administrative agent for the Lenders (in such capacity, the “ Administrative Agent ”), as collateral agent (in such capacity, the “ Collateral Agent ”), as swing line lender (in such capacity, the “ Swing Line Lender ”) and as issuing bank (in such capacity, the “ Issuing Bank ”).

A. The Co-Borrowers have requested (i) that the Persons set forth on Schedule 1 hereto (the “ Additional Lenders ”) provide additional Commitments (the “ Additional Commitments ”) to the Co-Borrowers in an aggregate amount of $100,000,000 and (ii) that the Credit Agreement be amended as set forth herein.

B. The Additional Lenders are willing to provide the Additional Commitments to the Co-Borrowers, and the Requisite Lenders are willing so to amend the Credit Agreement, in each case on the terms and subject to the conditions set forth herein and in the Credit Agreement.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Defined Terms. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Credit Agreement. The rules of interpretation set forth in Section 1.2A of the Credit Agreement are hereby incorporated by reference herein, mutatis mutandis.


SECTION 2. Additional Commitments. (a) Schedule 1 hereto sets forth the Additional Commitment of each Additional Lender as of the Assumption Effective Date (as defined below). The Additional Commitment of each Additional Lender shall be several and not joint.

(b) The Additional Commitments and the Revolving Loans and other extensions of credit made thereunder shall have the same terms as those applicable to the Commitments and the Revolving Loans and other extensions of credit made thereunder, respectively. With effect from the Assumption Effective Date, the Additional Lenders shall constitute “Qualified Additional Lenders”, “Revolving Loan Lenders” and “Lenders”, the Additional Commitments shall constitute “Commitments” and the loans made thereunder shall constitute “Revolving Loans” (and not Other Credit Extensions), in each case for all purposes of the Credit Agreement and the other Loan Documents.

(c) (i) Upon the effectiveness of the Additional Commitments, each Revolving Loan Lender immediately prior to such effectiveness will automatically and without further act be deemed to have assigned to each Additional Lender, and each such Additional Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Loan Lender’s participations under the Credit Agreement in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations under the Credit Agreement in Letters of Credit and (y) participations under the Credit Agreement in Swing Line Loans held by each Revolving Loan Lender (including each such Additional Lender) will equal such Lender’s Pro Rata Share and (ii) if, on the Assumption Effective Date, there are any Revolving Loans outstanding, such Revolving Loans shall, upon the effectiveness of the Additional Commitments, be prepaid from the proceeds of new Revolving Loans made under the Credit Agreement, which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Loan Lender in accordance with Section 2.4 of the Credit Agreement.

(d) The Co-Borrowers hereby agree to pay to each Additional Lender, through the Administrative Agent, in immediately available funds, an upfront fee (the “Upfront Fee”) equal to 1.0% of each Additional Lender’s Additional Commitment, as set forth in Schedule 1 hereto, on the Assumption Effective Date. Once paid, the Upfront Fee shall not be refundable under any circumstances.

(e) No later than 60 days following the Assumption Effective Date, Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo or the Co-Borrowers, as applicable (the “ Delivering Parties ”), shall provide to the Administrative Agent such documentation, if any, regarding the flood hazard status of the improved Mortgaged Properties as is required to be delivered to the Lenders under applicable Federal Emergency Management Agency (or any successor agency) regulations as agreed by the parties; provided that, if the Delivering Parties commence compiling such documentation within such 60-day period, such period shall be extended by such additional period of time as is reasonably necessary in order to compile, prepare and deliver such documentation using reasonable diligence.

 

2


SECTION 3. Amendments. Effective as of the Assumption Effective Date, the Credit Agreement is hereby amended as follows:

(a) By reducing the Swing Line Loan Commitment of Credit Suisse AG to zero.

(b) By amending and restating the third sentence of Section 2.1B thereof in its entirety as follows:

“The Borrowers shall deliver to the Administrative Agent a Notice of Borrowing no later than 12:00 p.m. (New York time) on the proposed Funding Date; provided that, in the case of any such Loan requested as a Fixed Rate Loan, the Borrowers shall deliver such Notice of Borrowing no later than 12:00 p.m. (New York time), at least three Business Days in advance of the proposed Funding Date.”

(c) By amending and restating the defintion of “Availability Amount” in Section 1.1 thereof as follows:

Availability Amount means (a) at any time prior to April 15, 2013, an amount equal to 33.0% multiplied by the Adjusted Aggregate Mortgaged Property Amount at such time and (b) at any time on or after April 15, 2013, an amount equal to the greater of (x) 22.2% multiplied by the Aggregate Mortgaged Property Amount at such time and (y) 25.0% multiplied by the Adjusted Aggregate Mortgaged Property Amount at such time.

SECTION 4. Representations and Warranties. To induce the other parties hereto to enter into this Agreement, each of Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. FinCo and the Co-Borrowers, jointly and severally, hereby represents and warrants to the Administrative Agent and each of the other parties hereto that, as of the date hereof and the Assumption Effective Date:

(a) Each Loan Party (i) has the corporate or other organizational power and authority to execute, deliver and carry out the terms and provisions of this Agreement and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Agreement, and (ii) has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid and binding obligation of such Loan Party enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law).

(b) (i) The representations and warranties set forth in Section 5 of the Credit Agreement and in the other Loan Documents are true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case

 

3


such representations and warranties shall be true and correct in all respects) on and as of the date hereof and the Assumption Effective Date to the same extent as though made on and as of each such date (and provided that with respect to the representations and warranties contained in Sections 1.01(a) and 1.01(c) of each Mortgage, such representations and warranties shall be deemed to be true and correct in all material respects as of the date hereof and the Assumption Effective Date so long as the representations and warranties contained in Sections 5.2A and 5.5A of the Credit Agreement shall be true and correct in all respects (or, in the case of those portions of Section 5.2A which are not qualified as to materiality or Material Adverse Effect, in all material respects) as of the date hereof and the Assumption Effective Date), except (x) to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties were true and correct in all respects) on and as of such earlier date, and (y) the reference to the Restatement Effective Date in Section 5.12 of the Credit Agreement shall, for purposes of this Section 4(b), be deemed to refer to the Assumption Effective Date, and (ii) no Default or Event of Default has occurred and is continuing.

SECTION 5. Conditions to Effectiveness. The effectiveness of this Agreement and the obligations of the Additional Lenders to provide the Additional Commitments are subject to the satisfaction or waiver, on or prior to December 31, 2012, of the following conditions precedent (the date on which all such conditions are satisfied or waived, the “ Assumption Effective Date ”):

(a) The Administrative Agent (or its counsel) shall have received (i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.

(b) The Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Effective Date.

(c) The Administrative Agent shall have received (on behalf of itself and each Additional Lender) all fees and reimbursement of all costs and expenses required to be paid by the Co-Borrowers in connection with the transactions contemplated hereby (in the case of reimbursement of costs and expenses, to the extent a written invoice therefor is delivered to the Co-Borrowers no later than two Business Days prior to the Assumption Effective Date).

(d) The representations and warranties set forth in Section 4 shall be true and correct, and the Administrative Agent shall have received a certificate to that effect dated as of the Assumption Effective Date and executed by a Responsible Officer of each Loan Party.

 

4


The Administrative Agent shall notify the Co-Borrowers and the Lenders of the Assumption Effective Date, and such notice shall be conclusive and binding.

SECTION 6. Consent and Reaffirmation. Each of the Co-Borrowers and each other Loan Party hereby (i) consents to this Agreement and the transactions contemplated hereby, (ii) agrees that, notwithstanding the effectiveness of this Agreement, the Guaranty and the Security Agreement and each of the other Collateral Documents continue to be in full force and effect, (iii) affirms and confirms its guarantee (in the case of a Guarantor) of the Obligations and the pledge of and/or grant of a security interest in its assets as Collateral pursuant to the Collateral Documents to secure such Obligations, all as provided in the Loan Documents, and (iv) acknowledges and agrees that such guarantee, pledge and/or grant continues in full force and effect in respect of, and to secure, the Obligations under the Credit Agreement and the other Loan Documents, including the Additional Commitments and the extensions of credit thereunder.

SECTION 7. Loan Documents. This Agreement shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.

SECTION 8. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission shall be as effective as delivery of an original executed counterpart of this Agreement.

SECTION 9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

SECTION 10. Headings. Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

[ Remainder of this page intentionally left blank ]

 

5


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers or representatives as of the day and year first above written.

 

TAYLOR MORRISON COMMUNITIES, INC.,
as U.S. Borrower,
By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Vice President
MONARCH CORPORATION,
as Canadian Borrower,
By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Senior Vice President
TMM HOLDINGS LIMITED PARTNERSHIP,
as Holdings,
By: TMM Holdings (G.P.) Inc., its General Partner
By:  

/s/ Rajath Shourie

Name:   Rajath Shourie
Title:   Director

MONARCH COMMUNITIES INC.,

as Canada Holdings,

By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Vice President

MONARCH PARENT INC.,

as Canada Intermediate Holdings,

By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Vice President

[Signature Page to Additional Facilities Assumption Agreement and Amendment No. 2]


TAYLOR MORRISON HOLDINGS, INC.,

as U.S. Holdings,

By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Vice President

TAYLOR MORRISON FINANCE, INC.,

as U.S. FinCo,

By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Vice President
EACH SUBSIDIARY GUARANTOR SET FORTH ON SCHEDULE 2 HERETO
By:  

/s/ Darrell C. Sherman

Name:   Darrell C. Sherman
Title:   Vice President

[Signature Page to Additional Facilities Assumption Agreement and Amendment No. 2]


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender and as an Additional Lender and as Administrative Agent, Swing Line Lender and Issuing Bank
By:  

/s/ Bill O’Daly

Name:   Bill O’Daly
Title:   Director
By:  

/s/ Sanja Gazahi

Name:   Sanja Gazahi
Title:   Associate

[Signature Page to Additional Facilities Assumption Agreement and Amendment No. 2]


DEUTSCHE BANK AG NEW YORK BRANCH,
as a Lender and an Issuing Bank
By:  

/s/ Omayra Laucella

Name:   Omayra Laucella
Title:   Director
 

/s/ Evelyn Thierry

 

Evelyn Thierry

Director

[Signature Page to Additional Facilities Assumption Agreement and Amendment No. 2]


HSBC REALTY CREDIT CORPORATION (USA),
as a Lender
By:  

/s/ Patrick J. McNicholas

Name:   Patrick J. McNicholas
Title:   Senior Vice President

[Signature Page to Additional Facilities Assumption Agreement and Amendment No. 2]


GOLDMAN SACHS BANK USA,

as an Additional Lender

By:  

LOGO

Name:  
Title:  

[Signature Page to Additional Facilities Assumption Agreement and Amendment No. 2]


CITIBANK, N.A., CANADIAN BRANCH

as an Additional Lender

By:  

/s/ J. Hastings

Name:   J. Hastings
Title:   Principal Officer

[Signature Page to Additional Facilities Assumption Agreement and Amendment No. 2]


JPMORGAN CHASE BANK, N.A.,

as an Additional Lender

By:  

/s/ Kimberly Tumer

Name:   Kimberly Tumer
Title:   Executive Director

[Signature Page to Additional Facilities Assumption Agreement and Amendment No. 2]


SCHEDULE 1

Additional Commitments

 

Additional Lenders

   Additional Commitments  

Credit Suisse AG, Cayman Islands Branch

   $ 7,500,000   

Citibank, N.A., Canadian Branch

   $ 52,500,000   

JPMorgan Chase Bank, N.A.

   $ 20,000,000   

Goldman Sachs Bank USA

   $ 20,000,000   
  

 

 

 

TOTAL

   $ 100,000,000   
  

 

 

 


SCHEDULE 2

Subsidiary Guarantors

ATPD, LLC

DARLING HOMES OF TEXAS, LLC

DFP TEXAS (GP), LLC

TAYLOR MORRISON, INC.

TAYLOR MORRISON AT CRYSTAL FALLS, LLC

TAYLOR MORRISON HOLDINGS OF ARIZONA, INC.

TAYLOR MORRISON OF CALIFORNIA, LLC

TAYLOR MORRISON OF COLORADO, INC.

TAYLOR MORRISON OF FLORIDA, INC.

TAYLOR MORRISON OF TEXAS, INC.

TAYLOR MORRISON SERVICES, INC.

TAYLOR MORRISON/ARIZONA, INC.

TAYLOR WOODROW COMMUNITIES – LEAGUE CITY, LTD.

TAYLOR WOODROW COMMUNITIES AT MIRASOL, LTD.

TAYLOR WOODROW COMMUNITIES AT PORTICO, L.L.C.

TAYLOR WOODROW COMMUNITIES AT ST. JOHNS FOREST, L.L.C.

TAYLOR WOODROW HOMES – CENTRAL FLORIDA DIVISION, L.L.C.

TAYLOR WOODROW HOMES – SOUTHWEST FLORIDA DIVISION, L.L.C.

TM HOMES OF ARIZONA, INC.

TW ACQUISITIONS, INC.

TWC/FALCONHEAD WEST, L.L.C.

TWC/MIRASOL, INC.

TWC/STEINER RANCH, LLC

Exhibit 21.1

Subsidiaries of Taylor Morrison Home Corporation*

 

Name

   Jurisdiction of Organization

TMM Holdings Limited Partnership

   British Columbia

Monarch Communities Inc.

   British Columbia

Monarch Parent Inc.

   British Columbia

Monarch Corporation

   Ontario

Taylor Morrison Holdings, Inc.

   Delaware

Taylor Morrison, Inc.

   Delaware

Taylor Morrison Communities, Inc.

   Delaware

Taylor Morrison Finance, Inc.

   Delaware

Taylor Morrison Services, Inc.

   Delaware

Taylor Morrison Holdings of Arizona, Inc.

   Arizona

ATPD, LLC

   Arizona

Taylor Morrison/Arizona, Inc.

   Arizona

TM Homes of Arizona, Inc.

   Arizona

Taylor Morrison of California, L.L.C.

   California

Taylor Morrison of Colorado, Inc.

   Colorado

Taylor Morrison of Florida, Inc.

   Florida

Taylor Woodrow Communities at Mirasol, Ltd.

   Florida

Taylor Woodrow Communities At Portico, L.L.C.

   Florida

Taylor Woodrow Communities At St. Johns Forest, L.L.C.

   Florida

Taylor Woodrow Homes – Central Florida Division, L.L.C.

   Florida

Taylor Woodrow Homes – Southwest Florida Division, L.L.C.

   Florida

TW Acquisitions, Inc.

   Florida

TWC/Mirasol, Inc.

   Florida

Taylor Morrison of Texas, Inc.

   Texas

Taylor Morrison at Crystal Falls, L.L.C.

   Texas

Taylor Woodrow Communities – League City, Ltd.

   Texas

TWC/Falconhead West, L.L.C.

   Texas

TWC/Steiner Ranch, L.L.C.

   Texas

Darling Homes of Texas, LLC

   Texas

DFP Texas (GP), LLC

   Texas

 

* After giving effect to the Reorganization Transactions described under “Organizational Structure” in the accompanying prospectus.

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the use in this Amendment No. 1 to Registration Statement No. 333-185269 of our report dated December 4, 2012 relating to the financial statements of TMM Holdings Limited Partnership, which includes an explanatory paragraph indicating that the financial information of the predecessor and successor periods is not comparable, and our report dated December 4, 2012 relating to the balance sheet of Taylor Morrison Home Corporation appearing in the Prospectus, which is a part of such Registration Statement, and to the reference to us under the heading “Experts” in such Prospectus.

/s/ DELOITTE & TOUCHE LLP

Phoenix, Arizona

January 15, 2013