ITEM 1. BUSINESS
Except as otherwise indicated or unless the context otherwise requires, the terms “Realogy Corporation,” “Realogy,” “we,” “us,” “our,” “our company” and the “Company” refer to Realogy Corporation and its consolidated subsidiaries. “Cendant Corporation” and “Cendant” refer to Cendant Corporation, which changed its name to Avis Budget Group, Inc. in August 2006, and its consolidated subsidiaries, particularly in the context of its business and operations prior to, and in connection with, our separation from Cendant and “Avis Budget” and “Avis Budget Group, Inc.” refer to the business and operations of Cendant following our separation from Cendant.
OUR COMPANY
We are one of the preeminent and most integrated providers of real estate and relocation services. We are the world’s largest real estate brokerage franchisor, the largest U.S. residential real estate brokerage firm, the largest U.S. provider and a leading global provider of outsourced employee relocation services and a provider of title and settlement services. Through our portfolio of leading brands and the broad range of services we offer, we have established our company as a leader in the residential real estate industry, with operations that are dispersed throughout the U.S. and in various locations worldwide. We derive the vast majority of our revenues from serving the needs of buyers and sellers of existing homes, rather than serving the needs of builders and developers of new homes.
We are substantially owned and controlled by affiliates of Apollo Management, L.P. (“Apollo”) as a result of a merger that was consummated on April 10, 2007. We incurred substantial indebtedness as a result of the merger. Our high leverage, as discussed in “Management’s Discussion and Analysis-Financial Condition, Liquidity and Capital Resources”, imposes various significant burdens and obligations on the Company.
We report our operations in four segments: Real Estate Franchise Services, Company Owned Real Estate Brokerage Services, Relocation Services and Title and Settlement Services.
SEGMENT OVERVIEW
Real Estate Franchise Services: Through our Real Estate Franchise Services segment, or RFG, we are a franchisor of some of the most recognized brands in the real estate industry. As of December 31, 2008, we had approximately 15,600 offices (which included approximately 835 of our company owned and operated brokerage offices) and 285,000 sales associates operating under our franchise brands in the U.S. and 94 other countries and territories around the world (internationally, generally through master franchise agreements). During 2008, we estimate that brokers operating under one of our franchised brands (including those of our company owned brokerage operations) represented the buyer and/or the seller in approximately one out of every four single family domestic homesale transactions that involved a broker, based upon transaction volume. In addition, as of December 31, 2008, we had approximately 4,500 franchisees, none of which individually represented more than 1% of our franchise royalties (other than our subsidiary, NRT, which operates our company owned brokerage operations). We believe this reduces our exposure to any one franchisee. Our franchise revenues in 2008 included $237 million of royalties paid by our company owned brokerage operations, or approximately 37%, of total franchise revenues, which eliminate in consolidation. As of December 31, 2008, our real estate franchise brands were:
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Century 21®-One of the world’s largest residential real estate brokerage franchisors, with approximately 8,500 franchise offices and approximately 130,000 sales associates located in the U.S. and 63 other countries and territories;
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Coldwell Banker®-One of the largest residential real estate brokerage franchisors, with approximately 3,500 franchise and company owned offices and approximately 105,000 sales associates located in the U.S. and 45 other countries and territories;
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ERA®-A residential real estate brokerage franchisor, with approximately 2,800 franchise and company owned offices and approximately 33,000 sales associates located in the U.S. and 49 other countries and territories;
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Sotheby’s International Realty®-A luxury real estate brokerage brand. In February 2004, we acquired from Sotheby’s its company owned offices and the exclusive license for the rights to the Sotheby’s Realty and Sotheby’s International Realty® trademarks. Since that time, we have grown the brand from 15 company owned offices to 525 franchise and company owned offices and approximately 10,750 sales associates located in the U.S. and 38 other countries and territories;
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Better Homes and Gardens® Real Estate-In October 2007, we entered into a long-term agreement to license the Better Homes and Gardens® Real Estate brand from Meredith Corporation (“Meredith”) and in July 2008, we launched the Better Homes and Gardens® Real Estate brand. We are building a new international residential real estate franchise company using the Better Homes and Gardens® Real Estate brand name; and
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Coldwell Banker Commercial®-A leading commercial real estate brokerage franchisor. Our commercial franchise system has approximately 225 franchise offices and approximately 2,300 sales associates worldwide. The number of offices and sales associates in our commercial franchise system does not include our residential franchise and company owned brokerage offices and the sales associates who work out of those brokerage offices that also conduct commercial real estate brokerage business using the Coldwell Banker Commercial® trademarks.
We derive substantially all of our real estate franchising revenues from royalty fees received under long-term franchise agreements with our franchisees (typically ten years in duration for domestic agreements). The royalty fee is based on a percentage of the franchisees’ sales commission earned from real estate transactions, which we refer to as gross commission income. Our franchisees pay us royalty fees for the right to operate under one of our trademarks and to utilize the benefits of the systems and tools provided by our real estate franchise operations. These royalty fees enable us to have recurring revenue streams. In exchange, we provide our franchisees with support that is designed to facilitate our franchisees in growing their business, attracting new sales associates and increasing their revenue and profitability. We support our franchisees with dedicated branding-related national marketing and servicing programs, technology, training and education. We believe that one of our strengths is the strong relationships that we have with our franchisees, as evidenced by our franchisee retention rate of 96% in 2008. Our retention rate represents the annual gross commission income generated by our franchisees that is kept in the franchise system on an annual basis, measured against the annual gross commission income as of December 31 of the previous year.
Company Owned Real Estate Brokerage Services: Through our subsidiary, NRT, we own and operate a full-service real estate brokerage business in more than 35 of the largest metropolitan areas of the U.S. Our company owned real estate brokerage business operates principally under our Coldwell Banker® brand as well as under the ERA® and Sotheby’s International Realty® franchised brands, and proprietary brands that we own, but do not currently franchise to third parties, such as The Corcoran Group®. In addition, under NRT, we operate a large independent real estate owned (“REO”) residential asset manager, which focuses on bank-owned properties. At December 31, 2008, we had approximately 835 company owned brokerage offices, approximately 6,200 employees and approximately 50,800 independent contractor sales associates working with these company owned offices. Acquisitions have been, and will continue to be, part of our strategy and a contributor to the growth of our company owned brokerage business.
Our company owned real estate brokerage business derives revenues primarily from gross commission income received at the closing of real estate transactions. Sales commissions usually range from 5% to 6% of the home’s sale price. In transactions in which we act as a broker for solely the buyer or the seller, the seller’s broker typically instructs the closing agent to pay a portion of the sales commission to the broker for the buyer. In addition, as a full-service real estate brokerage company, in compliance with applicable laws and regulations, including the Real Estate Settlement Procedures Act (“RESPA”), we actively promote the services of our
relocation and title and settlement services businesses, as well as the products offered by PHH Home Loans, LLC (“PHH Home Loans”), our home mortgage venture with PHH Corporation that is the exclusive recommended provider of mortgages for our real estate brokerage and relocation service customers. All mortgage loans originated by PHH Home Loans are sold to PHH Corporation or other third party investors, and PHH Home Loans does not hold any mortgage loans for investment purposes or perform servicing functions for any loans it originates. Accordingly, our home mortgage venture structure insulates us from mortgage servicing risk. We own 49.9% of PHH Home Loans and PHH Corporation owns the remaining 50.1%. As a result, our financial results only reflect our proportionate share of the venture’s results of operations which are recorded using the equity method.
Relocation Services: Through our subsidiary, Cartus Corporation (“Cartus”), we offer a broad range of world-class employee relocation services designed to manage all aspects of an employee’s move to facilitate a smooth transition in what otherwise may be a difficult process for both the employee and the employer. In 2008, we assisted in over 135,000 relocations in over 150 countries for approximately 1,200 active clients, including over half of the Fortune 50, and affinity organizations. Our relocation services business operates through four global service centers on three continents. Our relocation services business is a leading global provider of outsourced employee relocation services with the number one market share in the U.S. In addition to general residential housing trends, key drivers of our relocation services business are corporate spending and employment trends.
Our relocation services business primarily offers its clients employee relocation services such as homesale assistance, home finding and other destination services, expense processing, relocation policy counseling and other consulting services, arranging household moving services, visa and immigration support, intercultural and language training and group move management services. Clients pay a fee for the services performed and we also receive commissions from third-party service providers, such as real estate brokers and household goods moving service providers. The majority of our clients pay interest on home equity advances and nearly all clients reimburse all costs associated with our services, including, where required, repayment of home equity advances and reimbursement of losses on the sale of homes purchased. We believe we provide our relocation clients with exceptional service which leads to client retention. As of December 31, 2008, our top 25 relocation clients had an average tenure of 18 years with us. In addition, our relocation services business generates revenue for our other businesses because the clients of our relocation services business often utilize the services of our franchisees and company owned brokerage offices as well as our title and settlement services.
Title and Settlement Services: In most real estate transactions, a buyer will choose, or will be required, to purchase title insurance that will protect the purchaser and/or the mortgage lender against loss or damage in the event that title is not transferred properly. Our title and settlement services business, which we refer to as Title Resource Group (“TRG”), assists with the closing of a real estate transaction by providing full-service title and settlement (i.e., closing and escrow) services to real estate companies and financial institutions. Our title and settlement services business was formed in 2002 in conjunction with Cendant’s acquisition of 100% of NRT to take advantage of the nationwide geographic presence of our company owned brokerage and relocation services businesses.
Our title and settlement services business earns revenues through fees charged in real estate transactions for rendering title and other settlement and non-settlement related services. We provide many of these services in connection with transactions in which our company owned real estate brokerage and relocation services businesses are participating. During 2008, approximately 40% of the customers of our company owned brokerage offices where we offer title coverage also utilized our title and settlement services. Fees for escrow and closing services are generally separate and distinct from premiums paid for title insurance and other real estate services. In some situations we serve as an underwriter of title insurance policies in connection with residential and commercial real estate transactions. Our title underwriting operation generally earns revenues through the collection of premiums on policies that it issues.
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Our headquarters are located at One Campus Drive, Parsippany, New Jersey 07054 and our general telephone number is (973) 407-2000. We maintain an Internet site at http://www.realogy.com. Our website address is provided as an inactive textual reference. Our website and the information contained on that site, or connected to that site, are not incorporated by reference into this Annual Report.
Industry
Industry Definition
We primarily operate in the U.S. residential real estate industry and derive the majority of our revenues from serving the needs of buyers and sellers of existing homes rather than those of new homes. Residential real estate brokerage companies typically realize revenues in the form of a commission that is based on a percentage of the price of each home sold. As a result, the real estate industry generally benefits from rising home prices (and conversely is harmed by falling prices) and increased volume of home sales. We believe that existing home transactions and the services associated with these transactions, such as mortgages and title services, represent the most attractive segment of the residential real estate industry for the following reasons:
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The existing home segment represents a significantly larger addressable market than new home sales. Of the approximately 5.4 million home sales in the U.S. in 2008, NAR estimates that approximately 4.9 million were existing home sales, representing over 91% of the overall sales as measured in units; and
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Existing home sales afford us the opportunity to represent either the buyer or the seller and in some cases both are represented by a broker owned or associated with us.
We also believe that the traditional broker-assisted business model compares favorably to alternative channels of the residential brokerage industry, such as discount brokers and “for sale by owner” for the following reasons:
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A real estate transaction has certain characteristics that we believe are best-suited for full-service brokerages including large monetary value, low transaction frequency, wide cost differential among choices, high buyers’ subjectivity regarding styles, tastes and preferences, and the consumer’s need for a high level of personalized advice, specific marketing and technology services and support given the complexity of the transaction;
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We believe that the enhanced service, long-standing performance and value proposition offered by a traditional agent or broker is such that using a traditional agent or broker will continue to be the primary method of buying and selling a home in the long term.
Cyclical Nature of Industry
The existing homesale real estate industry is cyclical in nature and has shown strong growth over the past 36 years though it has been in a significant and lengthy downturn since the second half of 2005. According to NAR (which began reporting statistics in 1972), the existing homesale transaction volume (the product of the median homesale price and existing homesale transactions) was approximately $976 billion in 2008 and grew at a compound annual growth rate or CAGR of 8.1% over the 1972-2008 period. In addition, based on NAR:
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With the exception of the price declines in 2007 and 2008, median existing homesale prices did not decline from the prior year over the 1972-2008 period, including during four economic recessions, and during that period prices have increased at a CAGR of 5.7% (not adjusted for inflation);
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Existing homesale units increased at a CAGR of 2.2% over the 1972-2008 period, during which period units increased 22 times on an annual basis, versus 14 annual decreases;
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Rising home ownership rates during that period also had a positive impact on the real estate brokerage industry. According to the U.S. Census Bureau, the national home ownership rate for the fourth quarter of 2008 was approximately 67.5 %, compared to approximately 64% in 1972;
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Prior to 2006, there had only been two instances since 1972 when existing homesale transaction volume declined for a substantial period of time. The first period was from 1980 through 1982, when existing homesale transaction volume declined by more than 13% per year for three years. During that period, 30-year fixed mortgage rates exceeded 13%. The second period was from 1989 through 1990 when existing homesale transaction volume declined by 1.4% in 1989 and 1% in 1990, before resuming increases every year through 2005. Mortgage rates on a 30-year fixed mortgage exceeded 10% during that two-year period; and
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Existing homesale transaction volume (based on median prices) has historically experienced significant growth following prior national corrections. During the 1979-1984 and 1989-1993 through to peak cycles, existing homesale transaction volume increased 52% and 31%, respectively, on a cumulative basis from the trough year to the final year of the post-correction period.
Industry Cycles since 2001, including Current Downturn
The industry, however, is currently in a significant and lengthy downturn that initially began in 2005 after having experienced significant growth in the first half of this decade. Based upon information published by NAR,
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from 2001 to 2005, existing homesale units increased from 5.3 million to 7.1 million, or at a compound annual rate, or CAGR, of 7.3%, compared to a CAGR of 3.0% from 1972 to 2000. Similarly, from 2001 to 2005, the national median price of existing homes increased from $153,100 to $219,600 or a CAGR of 9.4% compared to a CAGR of 6.2% from 1972 to 2000.
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by contrast, from 2006 to 2008, existing homesale units decreased from 6.5 million to 4.9 million, or at a CAGR of negative 13.0% and the national median price of existing homes declined from $221,900 to $198,600 or at a CAGR of negative 5.4%.
Leading up to 2005, home prices and the number of homesale transactions rose rapidly in the first half of the decade due to a combination of factors including (1) increased owner-occupant demand for larger and more expensive homes made possible by unusually favorable financing terms for both prime and sub-prime borrowers, (2) low interest rates, (3) record appreciation in housing prices driven partially by investment speculation, (4) the growth of the mortgage-backed securities market as an alternative source of capital to the mortgage market and (5) high credit ratings for mortgage backed securities despite increasing inclusion of subprime loans made to buyers relying upon continuing home price appreciation rather than more traditional underwriting standards.
As housing prices rose even higher, the number of U.S. homesale transactions first slowed, then began decreasing in 2006. This declining trend has continued from 2006 through the present period. In certain locations, the number of homesale transactions has fallen far more dramatically than for the country as a whole-the hardest hit areas have been those areas that had experienced the greatest speculation and year over year price appreciation. The overall slowdown in transaction activity has caused a buildup of large inventories of housing, an increase in short sale and foreclosure activity, particularly in states such as California and Florida that benefited more than average from the housing growth in the first half of the decade, and a contraction of the market for mortgage financing, all of which have contributed to heightened buyer caution regarding timing and pricing. The result has been downward pressure on home prices from 2007 through the present period.
The slowdown in sales and consequent downward pressure on home prices, together with increasing foreclosure activity and unemployment, have resulted in significant write-downs of asset values by government sponsored entities such as FNMA and Freddie Mac, which dominate the housing lending market, and major commercial and investment banks. These write-downs were initially related to mortgage-backed securities, but have spread to credit default swaps and other derivative securities and have caused many financial institutions to seek additional capital from the Government or other sources, to merge with larger and stronger institutions and, in some cases, to fail. Reflecting concern about the stability of the financial markets generally and the strength of counterparties, many lenders and institutional investors have reduced, and in some cases, ceased to provide funding to borrowers.
Federal legislation was enacted in July 2008 to provide for direct U.S. government guarantees of FNMA and Freddie Mac and direct supervision of these entities by a new agency, the Federal Housing Finance Agency; in September 2008, the U.S. Government brought these two entities under the conservatorship of this new agency and committed $100 billion to each of the entities to backstop any shortfalls in their capital requirements. Similarly, in an attempt to bring stability to the financial markets, in October 2008, the Emergency Economic Stabilization Act was enacted which authorized the establishment of the Troubled Asset Relief Program or TARP. It grants broad authority to the U.S. Secretary of the Treasury to restore liquidity and stability to the United States financial system, including the authority to spend up to $700 billion to make direct equity investments in financial institutions and/or purchase assets. On October 13, 2008, the U.S. Treasury announced it will make direct equity investments in various banks and financial institutions in an effort to bolster the struggling banking system and stimulate lending. In addition, the Federal Reserve has taken various actions aimed at quantitative easing of credit markets. Notwithstanding these actions, the credit markets remain unstable and risk averse.
In February 2009, the American Recovery and Reinvestment Act of 2009 (the “2009 Stimulus Act”) was enacted, which among other things, extends and increases the tax credit for qualified first-time home buyers that had been included in the July 2008 federal legislation, to cover homes purchased on or after January 1, 2009, but prior to December 1, 2009; the tax credit is worth up to 10% of the home’s purchase price or $8,000 (up from the $7,500 in the July 2008 federal legislation), whichever is less. In contrast to the July 2008 federal legislation, the 2009 Stimulus Act also waives the requirement that the tax credit be repaid. The 2009 Stimulus Act also reinstates last year's 2008 higher loan limits for FHA, Freddie Mac, and Fannie Mae loans through December 31, 2009. In February 2009, President Obama also introduced the “Homeowner Affordability and Stability Plan,” which among other things, (1) provides access to low-cost refinancing through FNMA and Freddie Mac to certain homeowners suffering from falling home prices, (2) encourages lenders, through government financial incentives, to modify loan terms with borrowers at risk of foreclosure or already in foreclosure, (3) commits an additional $100 billion to each of FNMA and Freddie Mac to further backstop any shortfalls in their respective capital requirements, and (4) continues the Treasury Department’s existing initiative to purchase FNMA and Freddie Mac mortgage-backed securities to promote liquidity in the marketplace. There can be no assurance that the 2009 Stimulus Act or the Homeowner Affordability and Stability Plan or any other governmental action will stabilize the current housing environment or otherwise meet their stated objectives.
The current downturn in the residential real estate market is also being impacted by consumer sentiment about the overall state of the economy, particularly mounting consumer anxiety about negative economic growth in the U.S. and rising unemployment. The quickly deteriorating conditions in the job market, stock market and consumer confidence in the fourth quarter of 2008 have caused a further decrease in homesale transactions and more downward pressure on homesale prices. According to the Conference Board, a New York based industry research group, consumer confidence decreased from 90.6 percent in December 2007 to 50.4 percent in June 2008 and then fell further to 25.0 percent in February 2009, a new all-time low. Notwithstanding the long term fundamentals described below, we are not certain when pricing of existing homesales will stabilize, credit markets will return to a more normal state or the larger economy will improve. Consequently, we cannot predict when the macroeconomic forces will return the residential real estate market to a growth period.
Favorable Long Term Demographics
We believe that long-term demand for housing and the growth of our industry is primarily driven by affordability, the economic health of the domestic economy, positive demographic trends such as population growth, increased immigration, increases in the number of U.S. households, increasing home ownership rates, interest rates and locally based dynamics such as demand relative to supply. We believe that despite the current ongoing significant real estate market downturn, the housing market will benefit over the long-term from expected positive fundamentals, including:
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Favorable demographic factors: the number of U.S. households grew from 95 million in 1991 to 111 million in 2007, increasing at a rate of 1% per year on a CAGR basis. According to the Joint Center for Housing Studies at Harvard University, that annual growth trend is expected to continue
albeit at a faster pace through 2020. The U.S. housing market is also expected to benefit from continued immigration, which is fueling minority homeownership and is anticipated to account for more than two-thirds of the net U.S. household growth through the next decade, according to the Joint Center for Housing Studies at Harvard University; and
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Increasing housing affordability index as a result of the homesale price declines experienced in 2007 and 2008 and lower mortgage interest rates. An index above 100 signifies that a family earning the median income has more than enough income to qualify for a mortgage loan on a median-priced home, assuming a 20 percent down payment. The housing affordability index was 129 for 2008 compared to 112 for 2007 and 106 for 2006.
Participation in Multiple Aspects of the Residential Real Estate Market
Realogy participates in services associated with many aspects of the residential real estate market. Our four complementary businesses allow us to generate revenue at various points in the transactional process, including listing of homes, assisting buyers in home searches, corporate relocation services, settlement and title services and franchising of our brands. The businesses each benefit from our deep understanding of the industry, strong relationships with real estate brokers, sale associates and other real estate professionals and expertise across the transactional process. Unlike other industry participants who offer only one or two services, we can offer homeowners, our franchisees and our corporate clients ready access to numerous associated services that facilitate and simplify the home purchase and sale process. These services provide further revenue opportunities for the Company’s owned businesses and those of our franchisees. Specifically, our brokerage offices and those of our franchisees participate in purchases and sales of homes involving relocations of corporate transferees using Cartus relocation services and we offer purchasers and sellers of both our owned and franchised brokerage businesses convenient title and settlement services. These services produce incremental revenues for our businesses and franchisees. In addition, we participate in the mortgage process through our 49.9% ownership of PHH Home Loans. In some instances all four of our businesses can derive revenue from the same real estate transaction.
Our Brands
Our brands are among the most well known and established real estate brokerage brands in the real estate industry. As of December 31, 2008, we had approximately 15,600 franchised and company owned offices and 285,000 sales associates operating under our franchise brands in the U.S. and other countries and territories around the world, which includes approximately 835 of our company owned and operated brokerage offices. In the U.S. during 2008, we estimate, based on publicly available information, that brokers operating under one of our franchised brands (including our brokers in our company owned offices) represented the buyer or the seller in approximately one out of every four single family homesale transactions that involved a broker, based upon transaction volume.
Our real estate franchise brands are listed in the following chart, which includes information as of December 31, 2008 for both our franchised and company owned offices:
In the fourth quarter of 2007, we entered into a long-term agreement to license the Better Homes and Gardens® Real Estate brand from Meredith Corporation. In July 2008, we launched the Better Homes and Gardens® Real Estate brand. We seek to build a new international residential real estate franchise company using that brand name. The licensing agreement between us and Meredith became operational on July, 1 2008 and is for a 50-year term, with a renewal term for another 50 years at our option.
Real Estate Franchise Services
Our primary objectives as the largest franchisor of residential real estate brokerages in the world are to sell new franchises, retain existing franchises, create or acquire new brands and, most importantly, provide support to our franchisees in a way that enables them to increase their revenue and profitability.
We have generated significant growth over the years in our real estate franchise business by increasing the penetration of our existing brands in their markets, increasing the number of international master franchise
agreements that we sell and increasing the geographic diversity of our franchised locations to ensure exposure to multiple areas. We believe that exposure to multiple geographic areas throughout the U.S. and internationally also reduces our risk of exposure to local or regional changes in the real estate market. In addition, our large number of franchisees reduces our reliance on the revenues of a few franchisees. During 2008, none of our franchisees (other than our company owned brokerage operations) generated more than one percent of our real estate franchise business revenues.
We derive substantially all of our real estate franchising revenues from royalty fees received under long-term franchise agreements with our franchisees (typically ten years in duration for domestic agreements). The royalty fee is based on a percentage of the franchisees’ gross commission income earned from real estate transactions. In general, we provide our franchisees with a license to use the brands’ service marks, tools and systems in connection with their business, educational materials which contain recommended methods, specifications and procedures for operating the franchise, extensive training programs and assistance and a national marketing program and related services. We operate and maintain an Internet-based reporting system for our franchisees which allows them to electronically transmit listing information, transactions, reporting information and other relevant reporting data. We also own and operate websites for each of our brands. We allow our franchisees the opportunity to sell ancillary services such as title insurance and settlement services as a way to enhance their business and to increase our cross-selling initiative. We believe that one of our strengths is the strong relationships that we have with our franchisees as evidenced by the franchisee retention rate of 96% in 2008. Our retention rate represents the annual gross commission income generated by our franchisees that is kept in the franchise system on an annual basis, measured against the annual gross commission income as of December 31 of the previous year. On average, each franchisee’s tenure with one of our brands is 14 years. Generally, lost gross commission income is due to termination of a franchise for cause including non-payment or non-performance, retirement or a mutual release.
The franchise agreements impose restrictions on the business and operations of the franchisees and require them to comply with the operating and identity standards set forth in each brand’s policy and procedures manuals. A franchisee’s failure to comply with these restrictions and standards could result in a termination of the franchise agreement. The franchisees may, in some cases, mostly in the Century 21® brand, have limited rights to terminate the franchise agreements. Prior versions of the Century 21® franchise agreements, that are still in effect but are no longer offered to new franchisees, permit the franchisee to terminate the agreement if the franchisee retires, becomes disabled or dies. Generally, the franchise agreements have a term of ten years and require the franchisees to pay us an initial franchise fee of up to $35,000 for the franchisee’s principal office, plus, upon the receipt of any commission income, a royalty fee, in most cases, equal to 6% of such income. Each of our franchise systems (other than Coldwell Banker Commercial®) offers a volume incentive program, whereby each franchisee is eligible to receive a portion of the royalties paid upon the satisfaction of certain conditions. The amount of the volume incentive varies depending upon the franchisee’s annual gross revenue subject to royalty payments for the prior calendar year. Under the current form of franchise agreements, the volume incentive varies for each franchise system, and ranges from zero to 3% of gross revenues. We provide a detailed table to each franchisee that describes the gross revenue thresholds required to achieve a volume incentive and the corresponding incentive amounts. We reserve the right to increase or decrease the percentage and/or dollar amounts in the table, subject to certain limitations. Our company owned brokerage offices do not participate in the volume incentive program. Franchisees and company owned offices are also required to make monthly contributions to national advertising funds maintained by each brand for the creation and development of advertising, public relations and other marketing programs.
Under certain circumstances, development advance notes are extended to eligible franchisees for the purpose of covering all or a portion of the out-of-pocket expenses for a franchisee to open or convert into an office operating under one of our franchise brands and or to facilitate the franchisee’s acquisition of an independent brokerage or other growth opportunity. Many franchisees use the advance to change stationery, signage, business cards and marketing materials or to assist in acquiring companies. The loans are not funded until appropriate credit checks and other due diligence matters are completed and the business is opened and
operating under one of our brands. Upon satisfaction of certain performance based thresholds, the loans are forgiven over the term of the franchise agreement.
In addition to offices owned and operated by our franchisees, we own and operate approximately 835 of the Coldwell Banker®, ERA®, Sotheby’s International Realty® and The Corcoran Group® offices through our NRT subsidiary. NRT pays intercompany royalty fees and marketing fees to our real estate franchise business in connection with its operation of these offices. These fees are recognized as income or expense by the applicable segment level and eliminated in the consolidation of our businesses. NRT is not eligible for any volume incentives and it is the largest contributor to the franchise system’s national marketing funds under which it operates.
In the U.S. and generally in Canada, we employ a direct franchising model whereby we contract with and provide services directly to independent owner-operators. In other parts of the world, we employ either a master franchise model, whereby we contract with a qualified, experienced third party to build a franchise enterprise in such third party’s country or region, or a direct franchising model.
We also offer service providers an opportunity to market their products to our brokers, sales associates and their customers through our Preferred Alliance Program. To participate in this program, service providers generally pay us an initial fee, subsequent commissions based upon our franchisees’ or sales associates’ usage of the preferred alliance vendors or both. In connection with the spin-off of PHH Corporation, Cendant’s former mortgage business, PHH Mortgage, the subsidiary of PHH Corporation that conducts mortgage financing, is the only provider of mortgages for customers of our franchisees that we endorse. We receive a marketing fee for promotion in connection with our endorsement.
We own the trademarks “Century 21®,” “Coldwell Banker®,” “Coldwell Banker Commercial®,” “ERA®” and related trademarks and logos, and such trademarks and logos are material to the businesses that are part of our real estate business. Our franchisees and our subsidiaries actively use these trademarks, and all of the material trademarks are registered (or have applications pending) with the United States Patent and Trademark Office as well as with corresponding trademark offices in major countries worldwide where these businesses have significant operations.
We have an exclusive license to own, operate and franchise the Sotheby’s International Realty® brand to qualified residential real estate brokerage offices and individuals operating in eligible markets pursuant to a license agreement with SPTC Delaware LLC, a subsidiary of Sotheby’s (“Sotheby’s”). Such license agreement has a 100-year term, which consists of an initial 50-year term and a 50-year renewal option. In connection with our acquisition of such license, we also acquired the domestic residential real estate brokerage operations of Sotheby’s which are now operated by NRT. We pay a licensing fee to Sotheby’s for the use of the Sotheby’s International Realty® name equal to 9.5% of the royalties earned by our Real Estate Franchise Business attributable to franchisees affiliated with the Sotheby’s International Realty® brand, including brokers in our company owned offices.
In October 2007, we entered into a long-term agreement to license the Better Homes and Gardens® Real Estate brand from Meredith Corporation. Realogy seeks to build a new international residential real estate franchise company using the Better Homes and Gardens® Real Estate brand name. The licensing agreement between Realogy and Meredith became operational on July 1, 2008 and is for a 50-year term, with a renewal option for another 50 years at our option.
Each of our brands has a consumer web site that offers real estate listings, contacts and services. Century21.com, coldwellbanker.com, coldwellbankercommercial.com, sothebysrealty.com, era.com and bhgrealestate.com are the official websites for the Century 21®, Coldwell Banker®, Coldwell Banker Commercial®, Sotheby’s International Realty®, ERA® and Better Homes and Gardens® real estate franchise systems, respectively.
Company Owned Real Estate Brokerage Services
Through our subsidiary, NRT, we own and operate a full-service real estate brokerage business in more than 35 of the largest metropolitan areas in the U.S. Our company owned real estate brokerage business operates under our franchised brands, principally Coldwell Banker®, ERA® and Sotheby’s International Realty®, as well as proprietary brands that we own, but do not currently franchise, such as The Corcoran Group®. In addition, under NRT, we operate a large independent REO residential asset manager, which focuses on bank-owned properties. Our REO operations facilitate the maintenance and sale of foreclosed homes on behalf of lenders and the profitability of this business is countercyclical to the overall state of the housing market. As of December 31, 2008, we had approximately 835 company owned brokerage offices, approximately 6,200 employees and approximately 50,800 independent contractor sales associates working with these company owned offices. From the date of Cendant’s acquisition of 100% of NRT in April 2002 through December 31, 2008, we acquired 126 brokerage companies. These acquisitions have been a substantial contributor to the growth of our company owned brokerage business.
Our real estate brokerage business derives revenue primarily from sales commissions, which are received at the closing of real estate transactions, which we refer to as gross commission income. Sales commissions usually range from 5% to 6% of the home’s sale price. In transactions in which we act as a broker for solely the buyer or the seller, the seller’s broker typically instructs the closing agent to pay the buyer’s broker a portion of the sales commission. In addition, as a full-service real estate brokerage company, we promote the complementary services of our relocation and title and settlement services businesses, in addition to PHH Home Loans. We believe we provide integrated services that enhance the customer experience.
When we assist the seller in a real estate transaction, our sales associates generally provide the seller with a full service marketing program, which may include developing a direct marketing plan for the property, assisting the seller in pricing the property and preparing it for sale, listing it on multiple listing services, advertising the property (including on websites), showing the property to prospective buyers, assisting the seller in sale negotiations, and assisting the seller in preparing for closing the transaction. When we assist the buyer in a real estate transaction, our sales associates generally help the buyer in locating specific properties that meet the buyer’s personal and financial specifications, show properties to the buyer, assist the buyer in negotiating (where permissible) and in preparing for closing the transaction.
At December 31, 2008, we operated approximately 87% of our company owned offices under the Coldwell Banker® brand name, approximately 3% of our offices under the ERA® brand name, approximately 5% of our offices under The Corcoran Group® brand name and approximately 5% of our offices under the Sotheby’s International Realty® brand name. Our offices are geographically diverse with a strong presence in the east and west coast areas, where home prices are generally higher. We operate our Coldwell Banker® offices in numerous regions throughout the U.S., our ERA® offices in New Jersey and Pennsylvania, our Corcoran® Group offices in New York City, the Hamptons (New York), and Palm Beach, Florida and our Sotheby’s International Realty® offices in several regions throughout the U.S. We believe that the markets in which we operate generally function independently from one another.
We intend to grow our business both organically and through strategic acquisitions. To grow organically, we will focus on working with office managers to recruit, retain and develop effective sales associates that can successfully engage and earn fees from new clients. We will continue to shift a portion of our traditional print media marketing to technology media marketing. We also intend to actively monitor expenses to increase efficiencies and perform restructuring activities to streamline operations as deemed necessary.
We have a dedicated group of professionals whose function is to identify, evaluate and complete acquisitions. We are continuously evaluating acquisitions that will allow us to enter into new markets and to expand our market share in existing markets through smaller “tuck-in” acquisitions. Following completion of an acquisition, we consolidate the newly acquired operations with our existing operations. By consolidating operations, we reduce or eliminate duplicative costs, such as advertising, rent and administrative support. By utilizing our existing infrastructure to support a broader network of sales associates and revenue base, we can enhance the profitability of our operations. We also seek to enhance the profitability of newly acquired operations by increasing the productivity of the acquired brokerages’ sales associates. We provide these sales
associates with specialized tools, training and resources that are often unavailable at smaller firms, such as access to sophisticated information technology and ongoing technical support; increased advertising and marketing support; relocation referrals, and a wide offering of brokerage-related services. In 2008, we acquired six real estate brokerage companies.
Our real estate brokerage business has a contract with Cartus under which the brokerage business provides brokerage services to relocating employees of the clients of Cartus. When receiving a referral from Cartus, our brokerage business seeks to assist the buyer in completing a homesale. Upon completion of a homesale, we receive a commission on the purchase or sale of the property and are obligated to pay Cartus a portion of such commission as a referral fee. We believe that these fees are comparable to the fees charged by other relocation companies.
PHH Home Loans, our home mortgage venture with PHH, a publicly traded company, has a 50-year term, subject to earlier termination upon the occurrence of certain events or at our election at any time after January 31, 2015 by providing two years notice to PHH. We own 49.9% of PHH Home Loans and PHH owns the remaining 50.1%. PHH may terminate the venture upon the occurrence of certain events or, at its option, after January 31, 2030. Such earlier termination would result in (i) PHH selling its interest to a buyer designated by us or (ii) requiring PHH to buy our interest. In either case, the purchase price would be the fair market value of the interest sold. All mortgage loans originated by the venture are sold to PHH or other third party investors, and PHH Home Loans does not hold any mortgage loans for investment purposes or perform servicing functions for any loans it originates. Accordingly, we have no mortgage servicing rights asset risk. PHH Home Loans is the exclusive recommended provider of mortgages for our company owned real estate brokerage business.
Relocation Services
Through our subsidiary, Cartus, we offer a broad range of employee relocation services. In 2008, we assisted in over 135,000 relocations in over 150 countries for approximately 1,200 active clients including over half of the Fortune 50, and affinity organizations. Our relocation services business operates through four global service centers on three continents. Our relocation services business is a leading global provider of outsourced employee relocation services.
We primarily offer corporate clients employee relocation services, such as:
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homesale assistance, including the evaluation, inspection, purchasing and selling of a transferee’s home; the issuance of home equity advances to transferees permitting them to purchase a new home before selling their current home (these advances are generally guaranteed by the client); certain home management services; assistance in locating a new home; and closing on the sale of the old home, generally at the instruction of the client;
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expense processing, relocation policy counseling, relocation related accounting, including international compensation administration, and other consulting services;
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arranging household goods moving services, with approximately 71,000 domestic and international shipments in 2008, and providing support for all aspects of moving a transferee’s household goods, including the handling of insurance and claim assistance, invoice auditing and quality control;
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visa and immigration support, intercultural and language training and expatriation/ repatriation counseling and destination services; and
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group move management services providing coordination for moves involving a large number of transferees to or from a specific regional area over a short period of time.
The wide range of our services allows our clients to outsource their entire relocation programs to us.
Under relocation services contracts with our clients, homesale services are classified as two types, “at risk” and “no risk”. Under “no risk” contracts, which at December 31, 2008 accounted for 99% of our clients, the client is responsible for payment of all direct expenses associated with the homesale. Such expenses include, but
are not limited to, appraisal, inspection and real estate brokerage commissions. The client also bears the risk of loss on the re-sale of the transferee’s home. Clients are responsible for payment of all other direct costs associated with the relocation, including, but not limited to, costs to move household goods, mortgage origination points, temporary living and travel expenses. Generally we fund the direct expenses associated with the homesale as well as those associated with the relocation on behalf of the client and the client then reimburses us for these costs plus interest charges on the advanced money. This limits our exposure on “no risk” homesale services to the credit risk of our clients rather than to the potential fluctuations in the real estate market or to the creditworthiness of the individual transferring employee. Historically, due to the credit quality of our clients, we have had minimal losses with respect to “no risk” homesale services.
Under “at risk” contracts, which at December 31, 2008 accounted for only 1% of our clients, we pay for all direct expenses (acquisition, carrying and selling costs) associated with the homesale and bear any loss on the sale of the home. As with the “no-risk” contracts, clients with “at risk” contracts bear the non-homesale related direct costs associated with the relocation though we generally advance these expenses and the client reimburses us plus interest charges on the advanced money. Due to the downturn in the U.S. residential real estate market, the longer period in which “at risk” homes were held by us in inventory and our incurring losses on the sale of these homes due to declining prices, the “at risk” business became unprofitable in 2007. As a result, in 2008, the Company exited most of its “at risk” contracts. At December 31, 2008, only 5% of our total inventory homes (both in number and value) were acquired from “at risk” clients. On January 15, 2009, the Company terminated the related Kenosia securitization program in its entirety, repaying the $20 million principal balance then outstanding under that facility. The Kenosia securitization program had previously been used to finance our purchase of “at risk” homes.
Substantially all of our contracts with our relocation clients are terminable at any time at the option of the client. If a client terminates its contract, we will only be compensated for all services performed up to the time of termination and reimbursed for all expenses incurred to the time of termination.
We earn commissions primarily from real estate brokers and van lines that provide services to the transferee. The commissions earned allow us pricing flexibility for the fees we charge our clients. We have created the Cartus Broker Network, which is a network of real estate brokers consisting of our company owned brokerage operations, some of our franchisees who have been approved to become members and independent real estate brokers. Member brokers of the Cartus Broker Network receive referrals from our relocation services business in exchange for a referral fee. The Cartus Broker Network closed approximately 59,000 properties in 2008 and accounted for approximately 6% of our relocation revenue.
About 5% of our relocation revenue is derived from our affinity services, which provide real estate and relocation services, including home buying and selling assistance, as well as mortgage assistance and moving services, to organizations such as insurance companies, credit unions and airline companies that have established members. Often these organizations offer our affinity services to their members at no cost and, where permitted, provide their members with a financial incentive for using these services. This service helps the organizations attract new members and retain current members.
Title and Settlement Services
Our title and settlement services business, Title Resource Group, provides full-service title and settlement (i.e., closing and escrow) services to real estate companies and financial institutions. We act in the capacity of a title agent and sell title insurance to property buyers and mortgage lenders. We issue title insurance policies on behalf of large national underwriters and through our wholly owned underwriter, Title Resources Guaranty Company, which we acquired in January 2006. We are licensed as a title agent in 37 states and Washington, D.C., have physical locations in 21 states and operate mostly in major metropolitan areas. As of December 31, 2008, we had approximately 385 offices, 298 of which are co-located within one of our company owned brokerage offices.
Virtually all lenders require their borrowers to obtain title insurance policies at the time mortgage loans are made on real property. For policies issued through our agency operations, assuming no negligence on our part, we typically are liable only for the first $5,000 of loss for such policies on a per claim basis, with the title insurer being liable for any remaining loss. Title insurance policies state the terms and conditions upon which a title underwriter will insure title to real property. Such policies are issued on the basis of a preliminary report or commitment. Such reports are prepared after, among others, a search of public records, maps and other relevant documents to ascertain title ownership and the existence of easements, restrictions, rights of way, conditions, encumbrances or other matters affecting the title to, or use of, real property. To facilitate the preparation of preliminary reports, copies of public records, maps and other relevant historical documents are compiled and indexed in a title plant. We subscribe to title information services provided by title plants owned and operated by independent entities to assist us in the preparation of preliminary title reports. In addition, we own, lease or participate with other title insurance companies or agents in the cooperative operation of such plants.
The terms and conditions upon which the real property will be insured are determined in accordance with the standard policies and procedures of the title underwriter. When our title agencies sell title insurance, the title search and examination function is performed by the agent. The title agent and underwriter split the premium. The amount of such premium “split” is determined by agreement between the agency and underwriter, or is promulgated by state law. We have entered into underwriting agreements with various underwriters, which state the conditions under which we may issue a title insurance policy on their behalf.
Our company owned brokerage operations are the principal source of our title and settlement services business. Other sources of our title and settlement services business include our real estate franchise business, Cartus and PHH Corporation’s mortgage company. Over the past several years, we have increased the geographic coverage of our title and settlement services business principally through acquisitions. When we acquire a title and settlement services business, we typically retain the local brand identity of the acquired business. Our acquisition transactions are often conducted in connection with an acquisition of a brokerage company for our company owned brokerage operations. As a result, many of our offices have subleased space from, and are co-located within, our company owned brokerage offices, a strategy that is compliant with RESPA and any analogous state laws. The capture rate of our title and settlement services business from co-located company owned brokerage operations was approximately 40% in 2008.
Certain states in which we operate have “controlled business” statutes which impose limitations on affiliations between providers of title and settlement services, on the one hand, and real estate brokers, mortgage lenders and other real estate service providers, on the other hand. For example, in California, a title insurer/agent cannot rely on more than 50% of its title orders from “controlled business sources,” which is defined as sources controlled by, or which control, directly or indirectly, the title insurer/agent, which would include leads generated by our company owned brokerage business. In those states in which we operate our title and settlement services business that have “controlled business” statutes, we comply with such statutes by ensuring that we generate sufficient business from sources we do not control.
In January 2006, we completed our acquisition of American Title Company of Houston, Texas American Title Company and their related title companies based in Texas, including Dallas-based Title Resources Guaranty Company (“TRGC”), a title insurance underwriting business. TRGC is a title insurance underwriter licensed in Texas and 19 other states. TRGC underwrites a portion of the title insurance policies issued by our agency businesses.
We also manage a national network of escrow and closing agents (some of whom are our employees, while others are attorneys in private practice) to provide full-service title and settlement services to a broad-based group that includes lenders, home buyers and sellers, developers, and real estate sales associates. Our role is generally that of an intermediary managing the completion of all the necessary documentation and services required to complete a real estate transaction.
We derive revenue through fees charged in real estate transactions for rendering the services described above as well as a percentage of the title premium on each title insurance policy sold. We provide many of these services in connection with our residential and commercial real estate brokerage and relocation operations. Fees for escrow and closing services are separate and distinct from premiums paid for title insurance and other real-estate services.
We intend to grow our title and settlement services business through the completion of additional acquisitions by increasing the number of title and settlement services offices that are located in or around our company owned brokerage offices. We also intend to grow by leveraging our existing geographic coverage, scale, capabilities and reputation into new offices not directly connected with our company owned brokerage offices and through continuing to enter into contracts and ventures with our franchisees that will allow them to participate in the title and settlement services business. We also plan to expand our underwriting operations into other states. We intend to continue our expansion of our lender channel by working with national lenders as their provider of settlement services.
Competition
Real Estate Franchise Business. Competition among the national real estate brokerage brand franchisors to grow their franchise systems is intense. Our largest national competitors in this industry include, but are not limited to, The Prudential Real Estate Affiliates, Inc., GMAC Real Estate, LLC, RE/MAX International, Inc. and Keller Williams Realty, Inc. In addition, a real estate broker may choose to affiliate with a regional chain or choose not to affiliate with a franchisor but to remain independent. We believe that competition for the sale of franchises in the real estate brokerage industry is based principally upon the perceived value and quality of the brand and services, the nature of those services offered to franchisees, including the availability of financing, and the fees the franchisees must pay.
The ability of our real estate brokerage franchisees to compete is important to our prospects for growth. The ability of an individual franchisee to compete may be affected by the quality of its sales associates, the location of its office, the services provided to its sales associates, the number of competing offices in the vicinity, its affiliation with a recognized brand name, community reputation and other factors. A franchisee’s success may also be affected by general, regional and local economic conditions. The potential negative effect of these conditions on our results of operations is generally reduced by virtue of the diverse geographical locations of our franchisees. At December 31, 2008, our real estate franchise systems had approximately 15,600 offices worldwide in 95 countries and territories in North and South America, Europe, Asia, Africa and Australia, including approximately 8,200 brokerage offices in the U.S.
Real Estate Brokerage Business. The real estate brokerage industry is highly competitive, particularly in the metropolitan areas in which our owned brokerage businesses operate. In addition, the industry has relatively low barriers to entry for new participants, including participants pursuing non-traditional methods of marketing real estate, such as Internet-based listing services. Companies compete for sales and marketing business primarily on the basis of services offered, reputation, personal contacts, and brokerage commissions. We compete with other national independent real estate organizations, including Home Services of America, franchisees of our brands and of other national real estate franchisors, franchisees of local and regional real estate franchisors; regional independent real estate organizations such as Weichert Realtors and Long & Foster Real Estate; discount brokerages; and smaller niche companies competing in local areas.
Relocation Business. Competition in our relocation business is based on service, quality and price. We compete primarily with global and regional outsourced relocation services providers. The larger outsourced relocation services providers that we compete with include Prudential Real Estate and Relocation Services Inc., GMAC Global Relocation Services LLC and Weichert Relocation Resources, Inc.
Title and Settlement Services Business. The title and settlement services business is highly competitive and fragmented. The number and size of competing companies vary in the different areas in which we conduct business. We compete with other title insurers, title agents and vendor management companies. The title and
settlement services business competes with a large, fragmented group of smaller underwriters and agencies. In addition, we compete with national competitors including Fidelity National Title Insurance Company, First American Title Insurance Company, Stewart Title Guaranty Company and Old Republic Title Company.
Marketing
Franchise Operations
Each of our residential brands operates a National Advertising Fund and our commercial brand operates a Commercial Marketing Fund that is funded by our franchisees and our owned real estate brokerage operations. We are the largest contributor to each of these funds, either through commitments through our contracts with our franchisees or by our agreements with our company owned real estate brokerage operations. The primary focus of each National Advertising Fund is to build and maintain brand awareness. Although primarily accomplished through television, radio and print advertising, our Internet promotion of brand awareness continues to increase. Our Internet presence, for the most part, features our entire listing inventory in our regional and national markets, plus community profiles, home buying and selling advice, relocation tips and mortgage financing information. Each brand manages a comprehensive system of marketing tools, systems and sales information and data that can be accessed through free standing brand intranet sites, to assist sales associates in becoming the best marketer of their listings. In addition to the Sotheby’s International Realty® brand, a leading luxury brand, our franchisees and our company owned brokerages also participate in luxury marketing programs, such as Century 21® Fine Homes & EstatesSM, Coldwell Banker Previews®, and ERA International Collection®.
According to NAR, 87% of homebuyers used the Internet in their search for a new home in 2008. Our marketing and technology strategies focus on capturing this consumer and assisting in their purchase. Internet, print, radio and television advertising are used by the brands to drive consumers to their respective websites. Significant focus is placed on developing each website to create value to the real estate consumer. Each website focuses on streamlined, easy search processes for listing inventory and rich descriptive details and multiple photos to market the listing on the brand website. Additionally, each brand website serves as a national distribution point for sales associates to market themselves to consumers to enhance the customer experience.
Company Owned Brokerage Operations
Our company owned real estate brokerage business markets our real estate services and specific real estate listings primarily through individual property signage, the Internet, and by hosting open houses of our listings for potential buyers to view in person during an appointed time period. In addition, contacts and communication with other real estate sales associates, targeted direct mailings, and local print media, including newspapers and real estate publications, are effective for certain price points and geographical locations. Television (spot cable commercials), radio 10-second spots in select markets, and “out-of-home” (i.e., billboards, train station posters) advertisements may also be included in many of our companies’ marketing strategies.
Our sales associates at times choose to supplement our marketing with specialized programs they fund on their own. We provide our sales associates with promotional templates and materials which may be customized for this opportunity.
In addition to our Sotheby’s International Realty® offices, we also participate in luxury marketing programs established by our franchisors, such as Coldwell Banker Previews® and the ERA International Collection®. The programs provide special services for buyers and sellers of luxury homes, with attached logos to differentiate the properties. Our sales associates are offered the opportunity to receive specific training and certification in their respective luxury properties marketing program. Properties listed in the program are highlighted through specific:
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signage displaying the appropriate logo;
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features in the appropriate section on the company Internet site;
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targeted mailings to prospective purchasers using specific mailing lists; and
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collateral marketing material, magazines and brochures highlighting the property.
The utilization of information technology as a marketing tool has become increasingly effective in our industry, and we believe that trend will continue to increase. Accordingly, we have sought to become a leader among residential real estate brokerage firms in the use and application of technology. The key features of our approach are as follows:
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The integration of our information systems with multiple listing services to:
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provide property information on a substantial number of listings, including those of our competitors when possible to do so;
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integrate with our systems to provide current data for other proprietary technology within NRT, such as contact management technology.
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The placement of our company listings on multiple websites, including:
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our NRT operating companies’ local websites;
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the appropriate company website(s) (coldwellbanker.com, era.com, sothebysrealty.com and corcoran.com);
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Openhouse.com, Realogy’s multi-branded website designed specifically for promoting open houses;
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Realtor.com, the official website of NAR; and
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real estate websites operated by Google, Yahoo, HGTV, Trulia, Zillow and others.
The majority of these websites provide the opportunity for the customer to utilize different features, allowing them to investigate community information, view property information and print feature sheets on those properties, receive on-line updates, obtain mapping and property tours for open houses, qualify for financing, review the qualifications of our sales associates, receive home buying and selling tips, and view information on our local sales offices. The process usually begins with the browsing consumer providing search parameters to narrow their property viewing experience. Wherever possible, we provide at least six photographs of the property and/or a virtual tour in order to make the selection process as complete as possible. To make readily available the robust experience on our websites, we utilize paid web search engine advertising as a source for our Internet consumers.
Most importantly, the browsing customer has the ability to contact us regarding their particular interest and receive a rapid response through our proprietary LeadRouter system. Through this program, Internet queries are converted from text to voice and transferred electronically to our sales associates within a matter of seconds, enabling the consumer to receive the information they desire, including an appointment with our sales associate in a timely manner.
Our sales associates have the ability to access professional support and information through various extranet sites in order to perform their tasks more efficiently. An example of this is the nationwide availability of a current “Do Not Call List” to assist them in the proper telemarketing of their services.
Employees
At December 31, 2008, we had approximately 11,400 employees, including approximately 600 employees outside of the U.S. None of our employees are subject to collective bargaining agreements governing their employment with us. We believe that our employee relations are good.
Sales Associate Recruiting and Training
Each real estate franchise system encourages, and provides some assistance and training with respect to, sales associate recruiting by franchisees. Each system separately develops its own branded recruiting programs that are tailored to the needs of its franchisees.
We provide financial assistance for certain of our franchisees in limited circumstances, upon renewal or where we believe there are significant areas for growth of our franchised brands. Each real estate brand also provides training and marketing-related materials to its franchisees to assist them in the recruiting process. While we never participate in the selection, interviewing, hiring or termination of franchisee sales associates (and do not provide any advice regarding the structure of the employment or contractor relationship), the common goal of each program is to provide the broker with the information and techniques to help the broker grow their business through sales associate recruitment.
Each system’s recruiting program contains different materials and delivery methods. The marketing materials range from a detailed description of the services offered by our franchise system (which will be available to the sales associate) in brochure or poster format to audio tape lectures from industry experts. Live instructors at conventions and orientation seminars deliver some recruiting modules while other modules can be viewed by brokers anywhere in the world through virtual classrooms over the Internet. Most of the programs and materials are then made available in electronic form to franchisees over the respective system’s private intranet site. Many of the materials are customizable to allow franchisees to achieve a personalized look and feel and make modifications to certain content as appropriate for their business and marketplace.
Government Regulation
Franchise Regulation. The sale of franchises is regulated by various state laws, as well as by the FTC. The FTC requires that franchisors make extensive disclosure to prospective franchisees but does not require registration. A number of states require registration or disclosure in connection with franchise offers and sales. In addition, several states have “franchise relationship laws” or “business opportunity laws” that limit the ability of the franchisor to terminate franchise agreements or to withhold consent to the renewal or transfer of these agreements. The states with relationship or other statutes governing the termination of franchises include Arkansas, California, Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, Virginia, Washington, and Wisconsin. Puerto Rico and the Virgin Islands also have statutes governing termination of franchises. Some franchise relationship statutes require a mandated notice period for termination; some require a notice and cure period. In addition, some require that the franchisor demonstrate good cause for termination. These statutes do not have a substantial effect on our operations because our franchise agreements generally comport with the statutory requirements for cause for termination, and they provide notice and cure periods for most defaults. Where the franchisee is granted a statutory period longer than permitted under the franchise agreement, we extend our notice and/or cure periods to match the statutory requirements. In some states, case law requires a franchisor to renew a franchise agreement unless a franchisee has given cause for non-renewal. Failure to comply with these laws could result in civil liability to any affected franchisees. While our franchising operations have not been materially adversely affected by such existing regulation, we cannot predict the effect of any future federal or state legislation or regulation.
Real Estate Regulation. RESPA and state real estate brokerage laws restrict payments which real estate brokers, title agencies, mortgage brokers and other settlement service providers may receive or pay in connection with the sales of residences and referral of settlement services (e.g., mortgages, homeowners insurance and title insurance). Such laws may to some extent restrict preferred alliance and other arrangements involving our real estate franchise, real estate brokerage, settlement services and relocation businesses. Currently, several states prohibit the sharing of referral fees with a principal to a transaction. In addition, with respect to our company owned real estate brokerage, relocation and title and settlement services businesses, RESPA and similar state laws require timely disclosure of certain relationships or financial interests with providers of real estate settlement services.
On November 17, 2008 the Department of Housing and Urban Development (“HUD”) published a new final RESPA rule that seeks to simplify and improve the disclosure requirements for mortgage settlement services. Certain parts of the rule became effective on January 16, 2009, while the majority of the provisions have a mandatory effective date of January 1, 2010 with optional compliance at any time prior to that date. The material sections of the new rule cover areas such as: new Good Faith Estimate (GFE) and HUD-1 forms, permissibility of average cost pricing of third party vendor fees by settlement service providers, implementation of tolerance limits on the variation of fees from the GFE to the HUD-1, new definitions of “required use” by affiliated companies and requiring separate disclosure of the title agent and title underwriter premium splits. To our knowledge, very few companies, if any, have elected to voluntarily comply with the provisions that have a mandatory effective date of January 1, 2010. It is too early to determine the impact, if any, that these new rules may have on our operations. We are currently working towards implementation of these new rules and intend to be in compliance with these rules on or before the mandatory effective date.
Our company owned real estate brokerage business is also subject to numerous federal, state and local laws and regulations that contain general standards for and prohibitions on the conduct of real estate brokers and sales associates, including those relating to licensing of brokers and sales associates, fiduciary and agency duties, administration of trust funds, collection of commissions and advertising and consumer disclosures. Under state law, our real estate brokers have the duty to supervise and are responsible for the conduct of their brokerage businesses.
Regulation of Title Insurance and Settlement Services. Many states license and regulate title agencies/settlement service providers or certain employees and underwriters through their Departments of Insurance or other regulatory body. In many states, title insurance rates are either promulgated by the state or are required to be filed with each state by the agent or underwriter, and some states promulgate the split of title insurance premiums between the agent and underwriter. States sometimes unilaterally lower the insurance rates relative to loss experience and other relevant factors. States also require title agencies and title underwriters to meet certain minimum financial requirements for net worth and working capital. In addition, each of our insurance underwriters is subject to a holding company act in its state of domicile, which regulates, among other matters, investment policies and the ability to pay dividends.
Certain states in which we operate have “controlled business” statutes which impose limitations on affiliations between providers of title and settlement services, on the one hand, and real estate brokers, mortgage lenders and other real estate service providers, on the other hand. We are aware of 23 states (Alaska, Arizona, California, Colorado, Connecticut, Hawaii, Idaho, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Tennessee, Utah, Vermont, West Virginia, Wisconsin and Wyoming) that have enacted some form of “controlled business” statute. “Controlled business” typically is defined as sources controlled by, or which control, directly or indirectly, the title insurer or agent. We are not aware of any pending controlled business legislation. A company’s failure to comply with such statutes could result in the non-renewal of the company’s license to provide title and settlement services. We provide our services not only to our affiliates but also to third-party businesses in the geographic areas in which we operate. Accordingly, we manage our business in a manner to comply with any applicable “controlled business” statutes by ensuring that we generate sufficient business from sources we do not control. We have never been cited for failing to comply with a “controlled business” statute.
Item 1A.
Item 1A. Risk Factors
You should carefully consider each of the following risk factors and all of the other information set forth in this Annual Report. The risk factors generally have been separated into three groups: (1) risks relating to our indebtedness; (2) risks relating to our business; and (3) risks relating to our separation from Cendant. Based on the information currently known to us, we believe that the following information identifies the most significant risk factors affecting our company. However, the risks and uncertainties are not limited to those set forth in the risk factors described below. Additional risks and uncertainties not presently known to us or that we currently believe to be immaterial may also adversely affect our business. In addition, past financial performance may not be a reliable indicator of future performance and historical trends should not be used to anticipate results or trends in future periods.
Risks relating to our indebtedness
Our level of indebtedness could adversely affect our ability to incur additional borrowings under our existing facilities, fund our operations, react to changes in the economy or our industry and prevent us from meeting our obligations under our debt instruments.
We are significantly leveraged. Our leverage makes us more vulnerable to a prolonged downturn in the residential real estate market and an economic slowdown or recession (particularly if we are unable to generate sufficient operating cash flow to service our indebtedness and our ongoing business liquidity needs). As of December 31, 2008, our total debt (including the current portion) was $6,760 million (which does not include $518 million of letters of credit issued under our synthetic letter of credit facility and an additional $127 million of outstanding letters of credit). In addition, as of December 31, 2008, our current liabilities included $703 million of securitization obligations which were collateralized by $845 million of securitization assets that are not available to pay our general obligations. In addition, a substantial portion of our indebtedness bears interest at rates that fluctuate with changes in certain short-term prevailing interest rates.
At December 31, 2008, we had borrowings under our revolving credit facility of $515 million (or $113 million, net of available cash) and $127 million of outstanding letters of credit drawn against the facility, leaving $108 million of available capacity under the revolving credit facility. At January 31, 2009, the borrowings under our revolving credit facility increased to $565 million (or $307 million, net of available cash) and $127 million of outstanding letters of credit drawn against the facility, leaving $58 million of available capacity under the revolving credit facility.
As a result of the increased borrowings that were incurred to consummate the Merger, the Company’s future financing needs were materially impacted. Upon consummation of the Merger in April 2007, both Standard and Poor’s and Moodys downgraded our corporate family debt ratings and rated the newly issued “Unsecured Notes” as non-investment grade. During 2008, due to the continuing significant and prolonged downturn in the residential real estate market, the rating agencies continued to downgrade our debt ratings. In November and December 2008, Standard and Poor's and Moodys further downgraded some of our ratings and at December 31, 2008 the Corporate Family Rating was CC and Caa3, respectively, our Senior Secured Debt rating was CCC- and Caa1, respectively, and our Unsecured Notes rating was C and Ca, respectively. The rating outlook at December 31, 2008 was negative. The most recent downgrades reflect the rating agencies' views that there will be a continuing weakness in the residential homesale market and an increased risk of a default or balance sheet restructuring over the intermediate term. It is possible that the rating agencies may downgrade our ratings further based upon our results of operations and financial condition or as a result of national and/or global economic and political events.
Our substantial degree of leverage could have important consequences, including the following:
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it could cause us to be unable to meet our debt service requirements under our senior secured credit facility or indentures or meet our other financial obligations;
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it may limit our ability to incur additional borrowings under our existing facilities or securitizations, obtain additional debt or equity financing for working capital, capital expenditures, business development, debt service requirements, acquisitions or general corporate or other purposes;
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it may cause a substantial portion of our cash flows from operations to be dedicated to the payment of principal and interest on our indebtedness and is not available for other purposes, including our operations, capital expenditures and future business opportunities;
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it exposes us to the risk of increased interest rates because certain of our borrowings, including borrowings under our senior secured credit facility, are at variable rates of interest;
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it may limit our ability to adjust to changing market conditions and place us at a competitive disadvantage compared to our competitors that have less debt;
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it may cause a further downgrade of our debt and long-term corporate ratings; and
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it may cause us to be more vulnerable to this continuing downturn in general economic conditions or in our business, or may cause us to be unable to carry out capital spending that is important to our growth.
An event of default under our senior secured credit facility may adversely affect our operations.
Our senior secured credit facility contains restrictive covenants, including a requirement that we maintain a specified senior secured leverage ratio, which is defined as the ratio of our first-lien secured debt (net of unrestricted cash and permitted investments) to trailing 12 month Adjusted EBITDA. Specifically measured at the last day of each quarter, our senior secured leverage ratio may not exceed 5.35 to 1. This ratio steps down to 5.0 to 1 at September 30, 2009 and to 4.75 to 1 at March 31, 2011 and thereafter. At December 31, 2008, the Company had a senior secured leverage ratio of 4.95x and was in compliance. A failure to maintain the senior secured leverage ratio, or a breach of any of the other restrictive covenants, would result in a default under our senior secured credit facility.
If we are unable to maintain compliance with the senior secured leverage ratio and we fail to remedy a default through an equity cure from our parent permitted thereunder, there would be an “event of default” under the senior secured credit agreement. Other events of default include, without limitation, nonpayment, material misrepresentations, insolvency, bankruptcy, certain judgments, change of control and cross-events of default on material indebtedness. Upon the occurrence of any event of default under our senior secured credit facility, the lenders:
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will not be required to lend any additional amounts to us;
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could elect to declare all borrowings outstanding, together with accrued and unpaid interest and fees, to be due and payable;
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could require us to apply all of our available cash to repay these borrowings; or
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could prevent us from making payments on the Unsecured Notes;
any of which could result in an event of default under the Unsecured Notes and our securitization facilities.
If we were unable to repay those amounts, the lenders under our senior secured credit facility could proceed against the collateral granted to them to secure that indebtedness. We have pledged a significant portion of our assets as collateral under our senior secured credit facility. If the lenders under our senior secured credit facility accelerate the repayment of borrowings, we may not have sufficient assets to repay our senior secured credit facility and our other indebtedness, including the Unsecured Notes, or borrow sufficient funds to refinance such indebtedness. Even if we are able to obtain new financing, it may not be on commercially reasonable terms, or terms that are acceptable to us.
If an event of default is continuing under our senior secured credit facility, the Unsecured Notes or our other material indebtedness, such event could cause a termination of our ability to obtain future advances and/or amortization of one or more of the securitization facilities.
Restrictive covenants under our indentures and the senior secured credit facility may limit the manner in which we operate.
Our senior secured credit facility and the indentures governing the Unsecured Notes contain, and any future indebtedness we incur may contain, various covenants and conditions that limit our ability to, among other things:
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incur or guarantee additional debt;
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incur debt that is junior to senior indebtedness and senior to the senior subordinated notes;
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pay dividends or make distributions to our stockholders;
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repurchase or redeem capital stock or subordinated indebtedness;
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make loans, capital expenditures or investments or acquisitions;
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incur restrictions on the ability of certain of our subsidiaries to pay dividends or to make other payments to us;
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enter into transactions with affiliates;
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create liens;
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merge or consolidate with other companies or transfer all or substantially all of our assets;
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transfer or sell assets, including capital stock of subsidiaries; and
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prepay, redeem or repurchase debt that is junior in right of payment to the Unsecured Notes.
As a result of these covenants, we are limited in the manner in which we conduct our business and we may be unable to engage in favorable business activities or finance future operations or capital needs.
Variable rate indebtedness subjects us to interest rate risk, which could cause our debt service obligations to increase significantly.
Certain of our borrowings, primarily borrowings under our senior secured credit facility and our securitization obligations under our securitization facilities, are at variable rates of interest and expose us to interest rate risk. If interest rates increase, our debt service obligations on the variable rate indebtedness would increase even though the amount borrowed remained the same, and our net income would decrease. Although we have entered into interest rate swaps, involving the exchange of floating for fixed rate interest payments, to reduce interest rate volatility for a portion of our floating interest rate debt facilities, such interest rate swaps will not eliminate interest rate volatility in its entirety.
Our ability to service our debt and meet our cash requirements depends on many factors, some of which are beyond our control.
Our ability to satisfy our obligations will depend on our future operating performance and financial results, which will be subject, in part, to factors beyond our control, including interest rates and general economic, financial and business conditions. If we are unable to generate sufficient cash flow to service our debt, we may be required to, among other things:
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refinance all or a portion of our debt;
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obtain additional financing;
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restructure our operations;
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sell some of our assets or operations;
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reduce or delay capital expenditures and/or acquisitions; or
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revise or delay our strategic plans.
If we are required to take any of these actions, it could have a material adverse effect on our business, financial condition and results of operations. In addition, we may be unable to take any of these actions, these actions may not enable us to continue to satisfy our capital requirements or may not be permitted under the terms of our various debt instruments, including our senior secured credit facility and the indentures governing the Unsecured Notes. In addition, our senior secured credit facility and the indentures governing the notes will restrict our ability to sell assets and to use the proceeds from the sales. Moreover, borrowings under our senior secured credit facility are secured by substantially all of our assets and those of most of our subsidiaries. We may not be able to sell assets quickly enough or for sufficient amounts to enable us to meet our debt obligations.
We are a holding company and are dependent on dividends and other distributions from our subsidiaries.
Realogy is a holding company with limited direct operations. Our principal assets are the equity interests that we hold in our operating subsidiaries. As a result, we are dependent on dividends and other distributions from our subsidiaries to generate the funds necessary to meet our financial obligations, including the payment of principal and interest on our outstanding debt. Our subsidiaries may not generate sufficient cash from operations to enable us to make principal and interest payments on our indebtedness. In addition, any payment of dividends, distributions, loans or advances to us by our subsidiaries could be subject to restrictions on dividends or repatriation of earnings under applicable local law and monetary transfer restrictions in the jurisdictions in which our subsidiaries operate. In addition, payments to us by our subsidiaries will be contingent upon our subsidiaries’ earnings. Our subsidiaries are permitted under the terms of our indebtedness, including the indentures governing the Unsecured Notes, to incur additional indebtedness that may restrict payments from those subsidiaries to us. We cannot assure you that agreements governing current and future indebtedness of our subsidiaries will permit those subsidiaries to provide us with sufficient cash to fund our debt service payments.
We are substantially owned and controlled by Apollo, a private equity firm, which is able to make important decisions about our business and capital structure; their interests may differ from the interests of the holders of our Unsecured Notes and our lenders under our senior secured credit facility.
Substantially all of the common stock of Holdings is beneficially owned by Apollo, a private equity firm. As a result, Apollo controls us and has the power to elect all of the members of our board of directors, appoint new management and approve any action requiring the approval of the holders of Holdings’ stock, including changes to our capital structure and approving acquisitions or sales of all or substantially all of our assets. The directors elected by Apollo have the ability to control decisions affecting our capital structure, including the issuance of additional capital stock, the implementation of stock repurchase programs and the declaration of dividends. The interests of our equity holders may not in all cases be aligned with the interest of the holders of our Unsecured Notes or any other holder of our debt. If we encounter financial difficulties, or we are unable to pay our debts as they mature, the interests of our equity holders might conflict with those of the holders of the Unsecured Notes or any other holder of our debt. In that situation, for example, the holders of the notes might want us to raise additional equity from our equity holders or other investors to reduce our leverage and pay our debts, while our equity holders might not want to increase their investment in us or have their ownership diluted and instead choose to take other actions, such as selling our assets. Our equity holders may have an interest in pursuing acquisitions, divestitures, financings or other transactions that, in their judgment, could enhance their equity investments, even though such transactions might involve risks to them as holders of the Unsecured Notes or other indebtedness. Additionally, Apollo is in the business of investing in companies and may, from time to time, acquire and hold interests in businesses that compete directly or indirectly with us or that may be our customers or suppliers. Apollo may also pursue acquisition opportunities that may be complementary to our business and, as a result, those acquisition opportunities may not be available to us. For so long as the Company is capital constrained, Apollo may use its own funds to pursue opportunities that the Company is unable to exploit directly. So long as Apollo continues to own a significant amount of the equity of Holdings, even if such amount is less than 50%, Apollo will continue to be able to strongly influence or effectively control our decisions. Because our
equity securities are not registered under the Exchange Act and are not listed on any U.S. securities exchange, we are not subject to any of the corporate governance requirements of any U.S. securities exchanges.
Risks relating to our business
We are negatively impacted by a prolonged downturn in the residential real estate market.
The residential real estate market tends to be cyclical and typically is affected by changes in general economic conditions which are beyond our control. During the first half of this decade, homesales and price rose rapidly to unprecedented levels, culminating in a housing downturn that began in the second half of 2005. The U.S. residential real estate market continues to be in a lengthy and deep downturn due to various factors including unit declines, significant housing price declines, credit constraints inhibiting new buyers and an exceptionally large inventory of unsold homes, including foreclosures. We cannot predict when the market and related economic forces will return the U.S. residential real estate industry to a growth period.
Any of the following could continue to have a material adverse effect on our business by causing a continued decline in the number of homesales and/or prices which, in turn, could continue to adversely affect our revenues and profitability:
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a continuing crisis in our financial institutions and our credit and equity markets;
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a lengthy or prolonged recession or economic slowdown;
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a continuing low level of consumer confidence in the economy and/or the residential real estate market;
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rising interest rates;
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rising unemployment;
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the general availability of mortgage financing, including:
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ongoing contraction in the mortgage markets;
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unattractive “jumbo” loan rates; and
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the effect of more stringent lending standards for home mortgages;
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adverse changes in local or regional economic conditions;
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a decrease in the affordability of homes;
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local, state and federal government regulation that burden residential real estate transactions or ownership;
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shifts in populations away from the markets that we or our franchisees serve;
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tax law changes, including potential limits or elimination of the deductibility of certain mortgage interest expense, the application of the alternative minimum tax, real property taxes and employee relocation expenses;
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decreasing home ownership rates and declining demand for real estate due to inflation or other causes;
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concerns about the Company’s continued viability-this may impact retention of sales associates, franchisees and corporate clients;
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commission pressure from brokers who discount their commissions;
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acts of God, such as hurricanes, earthquakes and other natural disasters that disrupt local or regional real estate markets; and/or
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a significant increase in the cost of homeowners, flood or other insurance important to real estate transactions.
Our success is largely dependent on the efforts and abilities of the independent sales associates retained by company owned brokerage offices and by our franchisees and our franchisees’ ability to retain sales associates is generally subject to numerous factors, including the compensation they receive and their perception of brand value. Given the continued downturn in the real estate market, our high degree of leverage and the negative press we have received relating to our financial condition, neither our company owned brokerage offices or our independent franchisees may be successful in attracting or maintaining independent sales associates. If we or our franchisees fail to attract and retain independent sales associates, our business may be materially adversely affected.
A continuing and prolonged decline in the number of homesales and/or prices would adversely affect our revenues and profitability.
Based upon data published by NAR, from 2006 to 2008, US existing homesale units declined by 24% and median homesale price declined by 11%. The depth and length of the current downturn in the real estate industry, compounded by the contraction of the credit markets, has proved exceedingly difficult to predict. A continuing sustained decline in existing homesales, a sustained decline in home prices or a sustained or accelerated decline in commission rates charged by brokers, would further adversely affect our results of operations by reducing the royalties we receive from our franchisees and company owned brokerages, reducing the commissions our company owned brokerage operations earn, reducing the demand for our title and settlement services and reducing the referral fees earned by our relocation services business. For example, for 2008, a 100 basis point (or 1%) decline in either our homesale sides or the average selling price of closed homesale transactions, with all else being equal, would have decreased EBITDA by $3 million for our Real Estate Franchise Services segment and $11 million for our Company Owned Real Estate Brokerage Services segment, which included $2 million of intercompany royalties paid by our Company Owned Real Estate Brokerage Services segment to our Real Estate Franchise Services segment.
Our company-owned brokerage operations are subject to geographic and high-end real estate market risks, which could continue to adversely affect our revenues and profitability.
Our subsidiary, NRT, owns real estate brokerage offices located in and around large metropolitan areas in the U.S. Local and regional economic conditions in these locations could differ materially from prevailing conditions in other parts of the country. NRT has more offices and realizes more of its revenues in California, Florida and the New York metropolitan area than any other regions of the country. In the year ended December 31, 2008, NRT realized approximately 63% of its revenues from California (27%), the New York metropolitan area (25%) and Florida (11%). A continued downturn in residential real estate demand or economic conditions in these regions could result in a further decline in NRT’s total gross commission income and have a material adverse effect on us. In addition, given the significant geographic overlap of our title and settlement services business with our company owned brokerage offices, such regional declines affecting our company owned brokerage operations could have an adverse effect on our title and settlement services business as well. A continued downturn in residential real estate demand or economic conditions in these states could continue to result in a decline in our overall revenues and have a material adverse effect on us.
NRT has a significant concentration of transactions at the higher end of the U.S. real estate market, particularly in markets on the east and west coasts. A shift in mix of property transactions from the high range to lower and middle range homes due in part to the instability in the financial sector and the local economies of these markets has resulted in declining homesale prices and has reduced the average price of NRT’s closed homesales. The continued instability in the financial sector and the local economies of these markets could continue to adversely affect NRT’s operations.
Loss or attrition among our senior management or other key employees could adversely affect our financial performance.
Our success is largely dependent on the efforts and abilities of our senior management and other key employees. Our ability to retain our employees is generally subject to numerous factors, including the
compensation and benefits we pay, the mix between the fixed and variable compensation we pay our employees and prevailing compensation rates. Given the continued downturn in the real estate market and the cost cutting measures we have implemented, certain of our employees may be receiving less variable compensation in the near term. As such, we may suffer significant attrition among our current key employees. If we were to lose key employees and not promptly fill their positions with comparably qualified individuals, our business may be materially adversely affected.
Tightened underwriting standards could continue to reduce borrowers’ ability to access the credit market on reasonable terms.
During the past year, many lenders have significantly tightened their underwriting standards, and many subprime and other alternative mortgage products are no longer being made available in the marketplace. If these trends continue and mortgage loans continue to be difficult to obtain, including in the jumbo mortgage markets important to our higher value and luxury brands, the ability and willingness of prospective buyers to finance home purchases or to sell their existing homes will be adversely affected, which will adversely affect our operating results. In addition, we believe that the availability of FNMA, Freddie Mac, FHA and VA mortgage financing is an important factor in marketing many of our homes. Most recently, concerns over the adequacy of capital led to the U.S government’s takeover and bailout of FNMA and Freddie Mac, institutions which dominate the financing of U.S. housing. Any limitations, impairment or restrictions on the availability of those types of financing could continue to reduce our sales and could have a material adverse effect on our business, results of operations and financial condition.
Continuing adverse developments in general business, economic and political conditions could have a material adverse effect on our financial condition and our results of operations.
Our business and operations are sensitive to general business and economic conditions in the U.S. and worldwide. These conditions include short-term and long-term interest rates, inflation, fluctuations in debt and equity capital markets, consumer confidence and the general condition of the U.S. and world economy.
At present, there are numerous general business and economic factors contributing to the residential real estate market downturn and adversely affecting our business and impeding a recovery. These conditions include: (1) systemic weakness in the domestic banking and financial sectors; (2) substantial declines in the stock markets in 2008 and continued stock market volatility with a resultant loss in individual savings and asset value; (3) the recession in the U.S. and numerous economies around the globe; (4) high levels of unemployment in various sectors and (5) other factors that are both separate from, and outgrowths of, the above.
Dramatic declines in the housing market during the past several years, with falling home prices and increasing foreclosures and unemployment, have resulted in significant write-downs of asset values by financial institutions, including government-sponsored entities and major commercial and investment banks. These write-downs, which were initially of mortgage-backed securities, have spread to credit default swaps and other derivative securities and have caused many financial institutions to seek additional capital, to merge with larger and stronger institutions and, in some cases, to fail. Reflecting concern about the stability of the financial markets generally and the strength of counterparties, many lenders and institutional investors have reduced, and in some cases, ceased to provide funding to borrowers including other financial institutions. The resulting lack of available credit, lack of confidence in the financial sector, increased volatility in the financial markets and reduced business activity has, and could continue to, materially and adversely affect our business, financial condition and results of operations.
A host of factors beyond our control could cause fluctuations in these conditions, including the political environment and acts or threats of war or terrorism. Continuing adverse developments in these general business and economic conditions, including through recession, ongoing downturn or otherwise, could have a material adverse effect on our financial condition and our results of operations.
There can be no assurance that recently enacted legislation authorizing the U.S. government to purchase large amounts of illiquid mortgages and mortgage-backed securities from financial institutions will help stabilize the U.S. financial system.
On October 3, 2008, President Bush signed into law the Emergency Economic Stabilization Act of 2008 which authorized the establishment of the Troubled Asset Relief Program (the “TARP”). The legislation was the result of a proposal by the Secretary of the Treasury to the U.S. Congress on September 20, 2008 in response to the financial crises affecting the banking system and financial markets and going concern threats to investment banks and other financial institutions. Pursuant to the TARP, the Secretary of the Treasury is authorized to, among other things, purchase up to $700 billion of mortgages, mortgage-backed securities and certain other financial instruments from financial institutions for the purpose of stabilizing and providing liquidity to the U.S. financial markets. We cannot assure you that the TARP will reduce the extreme levels of financial market volatility, improve credit availability or otherwise have a beneficial impact on the financial system and/or housing market. If the TARP fails to restore confidence in the financial institutions, the current housing downturn could be prolonged, and our business’s chance of recovery could be severely impacted.
Current levels of market volatility are unprecedented.
The capital and credit markets have been experiencing unprecedented volatility and disruption for more than 12 months. If capital or credit market disruption and volatility continue or worsen, we may experience a prolonged adverse impact on our business, financial condition and results of operations, including our ability to access capital.
We face intense regulatory uncertainties that are beyond our control.
There has been considerable uncertainty surrounding the capital structure of both FNMA and Freddie Mac. Pursuant to legislation enacted in July 2008, in September, the U.S. government unveiled a plan to place both FNMA and Freddie Mac under the conservatorship of the Federal Housing Finance Agency, a newly created federal agency. In addition to providing direct government oversight of these entities, the plan committed the U.S. government to provide up to $100 billion to each of FNMA and Freddie Mac to backstop any shortfall in their capital requirements. In February 2009, President Obama introduced the “Homeowner Affordability and Stability Plan,” which among other things, commits an additional $100 billion to each of FNMA and Freddie Mac to further backstop any shortfalls in their respective capital requirements. It is difficult to predict either the long-term or short-term impact of these governmental actions. If confidence in these institutions is not restored, the current housing downturn could be prolonged, and our business could continue to be severely impacted.
In February 2009, the American Recovery and Reinvestment Act of 2009 (the “2009 Stimulus Act”) was enacted, which among other things, extends and increases the tax credit for qualified first-time home buyers that had been included in the July 2008 federal legislation and waives the requirement that the tax credit be repaid. The 2009 Stimulus Act also reinstates last year's 2008 higher loan limits for FHA, Freddie Mac, and Fannie Mae loans through December 31, 2009. In addition to providing additional capital to FNMA and Freddie Mac, the recently introduced Homeowner Affordability and Stability Plan also provides access to low-cost refinancing through FNMA and Freddie Mac to certain homeowners suffering from falling home prices, encourages lenders, through government financial incentives, to modify loan terms with borrowers at risk of foreclosure or already in foreclosure, and continues the Treasury Department’s existing initiative to purchase FNMA and Freddie Mac mortgage-backed securities to promote liquidity in the marketplace. There can be no assurance that the 2009 Stimulus Act or the Homeowner Affordability and Stability Plan or any other governmental action will stabilize the current housing environment or otherwise meet their stated objectives.
Our business is significantly affected by the monetary policies of the federal government and its agencies. We are particularly affected by the policies of the Federal Reserve Board, which regulates the supply of money and credit in the U.S. The Federal Reserve Board’s policies affect the real estate market through their effect on interest rates as well as the pricing on our interest-earning assets and the cost of our interest-bearing liabilities.
We are affected by any rising interest rate environment. Changes in the Federal Reserve Board’s policies, the interest rate environment and mortgage market are beyond our control, are difficult to predict and could have a material adverse effect on our business, results of operations and financial condition.
Competition in the residential real estate and relocation business is intense and may adversely affect our financial performance.
Competition in the residential real estate services business is intense. As a real estate brokerage franchisor, our products are our brand names and the support services we provide to our franchisees. Upon the expiration of a franchise agreement, a franchisee may choose to franchise with one of our competitors or operate as an independent broker. Competitors may offer franchisees whose franchise agreements are expiring similar products and services at rates that are lower than we charge. Our largest national competitors in this industry include The Prudential Real Estate Affiliates, Inc., GMAC Real Estate, LLC and Keller Williams Realty, Inc. Some of these companies may have greater financial resources than we do, including greater marketing and technology budgets, and may have less leverage. Regional and local franchisors provide additional competitive pressure in certain areas. To remain competitive in the sale of franchises and to retain our existing franchisees, we may have to reduce the fees we charge our franchisees to be competitive with those charged by competitors, which may accelerate if market conditions further deteriorate. For example, our franchisees’ average homesale commission rate per side was 2.65% in 2002 and this rate declined to 2.52% in 2008.
Our company owned brokerage business, like that of our franchisees, is generally in intense competition. We compete with other national independent real estate organizations, including Home Services of America, franchisees of our brands and of other national real estate franchisors, franchisees of local and regional real estate franchisors; regional independent real estate organizations; discount brokerages; and smaller niche companies competing in local areas. Competition is particularly severe in the densely populated metropolitan areas in which we compete. In addition, the real estate brokerage industry has minimal barriers to entry for new participants, including participants pursuing non-traditional methods of marketing real estate, such as Internet-based brokerage or brokers who discount their commissions below the industry norms. Discount brokers have significantly increased their market share in recent years and they may increase their market share in the future. Real estate brokers compete for sales and marketing business primarily on the basis of services offered, reputation, personal contacts and brokerage commission. As with our real estate franchise business, a decrease in the average brokerage commission rate may adversely affect our revenues. We also compete for the services of qualified licensed sales associates. Such competition could reduce the commission amounts retained by our company after giving effect to the split with sales associates and possibly increase the amounts that we spend on marketing. Our average homesale commission rate per side in our Company Owned Real Estate Services segment has declined from 2.62% in 2002 to 2.48% in 2008.
In our relocation services business, we compete primarily with global and regional outsourced relocation service providers. The larger outsourced relocation service providers that we compete with include Prudential Real Estate and Relocation Services, Inc., GMAC Global Relocation Services LLC and Weichert Relocation Resources, Inc.
The title and settlement services business is highly competitive and fragmented. The number and size of competing companies vary in the different areas in which we conduct business. We compete with other title insurers, title agents and vendor management companies. The title and settlement services business competes with a large, fragmented group of smaller underwriters and agencies as well as national competitors.
Several of our businesses are highly regulated and any failure to comply with such regulations or any changes in such regulations could adversely affect our business.
Several of our businesses are highly regulated. The sale of franchises is regulated by various state laws as well as by the Federal Trade Commission (the “FTC”). The FTC requires that franchisors make extensive disclosure to prospective franchisees but does not require registration. A number of states require registration or disclosure in connection with franchise offers and sales. In addition, several states have “franchise relationship
laws” or “business opportunity laws” that limit the ability of franchisors to terminate franchise agreements or to withhold consent to the renewal or transfer of these agreements. While we believe that our franchising operations are in compliance with such existing regulations, we cannot predict the effect any existing or future legislation or regulation may have on our business operation or financial condition.
Our real estate brokerage business must comply with the requirements governing the licensing and conduct of real estate brokerage and brokerage-related businesses in the jurisdictions in which we do business. These laws and regulations contain general standards for and prohibitions on the conduct of real estate brokers and sales associates, including those relating to licensing of brokers and sales associates, fiduciary and agency duties, administration of trust funds, collection of commissions, advertising and consumer disclosures. Under state law, our real estate brokers have the duty to supervise and are responsible for the conduct of their brokerage business.
Several of the litigation matters described in this report allege claims based upon breaches of fiduciary duties by our licensed brokers and violations of state laws relating to business practices or consumer disclosures (e.g. the Larpenteur and Berger matters). We cannot predict with certainty the cost of defense or the ultimate outcome of these or other litigation matters filed by or against us, including remedies or awards, and adverse results in any such litigation may harm our business and financial condition.
Our company owned real estate brokerage business, our relocation business, our title and settlement service business and the businesses of our franchisees (excluding commercial brokerage transactions) must comply with RESPA. RESPA and comparable state statutes, among other things, restrict payments which real estate brokers, agents and other settlement service providers may receive for the referral of business to other settlement service providers in connection with the closing of real estate transactions. Such laws may to some extent restrict preferred vendor arrangements involving our franchisees and our company owned brokerage business. Additionally, as noted above, our title and settlement services and relocation businesses must comply with RESPA and similar state insurance and other laws. RESPA and similar state laws require timely disclosure of certain relationships or financial interests that a broker has with providers of real estate settlement services.
There is a risk that we could be adversely affected by current laws, regulations or interpretations or that more restrictive laws, regulations or interpretations will be adopted in the future that could make compliance more difficult or expensive. There is also a risk that a change in current laws could adversely affect our business.
In April 2007, the FTC and Justice Department issued a report on competition in the real estate brokerage industry and concluded that while the industry has undergone substantial changes in recent years, particularly with the increasing use of the Internet, competition has been hindered as a result of actions taken by some real estate brokers, acting through multiple listing services and NAR, state legislatures, and real estate commissions, and recommend, among other things, that the agencies should continue to monitor the cooperative conduct of private associations of real estate brokers, and bring enforcement actions in appropriate circumstances.
In addition, regulatory authorities have relatively broad discretion to grant, renew and revoke licenses and approvals and to implement regulations. Accordingly, such regulatory authorities could prevent or temporarily suspend us from carrying on some or all of our activities or otherwise penalize us if our financial condition or our practices were found not to comply with the then current regulatory or licensing requirements or any interpretation of such requirements by the regulatory authority. Our failure to comply with any of these requirements or interpretations could limit our ability to renew current franchisees or sign new franchisees or otherwise have a material adverse effect on our operations.
Our title and settlement services and relocation businesses are also subject to various federal, state and local governmental statutes and regulations, including RESPA. In particular, our title insurance business is subject to regulation by insurance and other regulatory authorities in each state in which we provide title insurance. State regulations may impede or impose burdensome conditions on our ability to take actions that we may want to take to enhance our operating results. In addition, RESPA and comparable state statutes restrict payments which title
and settlement services companies and relocation services companies may receive in connection with their services. We cannot assure you that future legislative or regulatory changes will not adversely affect our business operations.
We are also, to a lesser extent, subject to various other rules and regulations such as:
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the Gramm-Leach-Bliley Act which governs the disclosure and safeguarding of consumer financial information;
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various state and federal privacy laws;
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the USA PATRIOT Act;
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restrictions on transactions with persons on the Specially Designated Nationals and Blocked Persons list promulgated by the Office of Foreign Assets Control of the Department of the Treasury;
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federal and state “Do Not Call,” “Do Not Fax” and “Do Not E-Mail” laws;
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“controlled business” statutes, which impose limitations on affiliations between providers of title and settlement services, on the one hand, and real estate brokers, mortgage lenders and other real estate providers, on the other hand;
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the Affiliated Marketing Rule, which prohibits or restricts the sharing of consumer credit information among affiliated companies without notice and/or consent of the consumer;
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the Fair Housing Act;
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laws and regulations in jurisdictions outside the United States in which we do business; and
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state and federal employment laws and regulations.
Our failure to comply with any of the foregoing laws and regulations may subject us to fines, penalties, injunctions and/or potential criminal violations. Any changes to these laws or regulations or any new laws or regulations may make it more difficult for us to operate our business and may have a material adverse effect on our operations.
Seasonal fluctuations in the residential real estate brokerage and relocation businesses could adversely affect our business.
The residential real estate brokerage business is subject to seasonal fluctuations. Historically, real estate brokerage revenues and relocation revenues have been strongest in the second and third quarters of the calendar year. However, many of our expenses, such as rent and personnel, are fixed and cannot be reduced during a seasonal slowdown. As a result, we may be required to borrow in order to fund operations during seasonal slowdowns or at other times. Since the terms of our indebtedness may restrict our ability to incur additional debt, we cannot assure you that we would be able to borrow sufficient amounts. Our inability to finance our funding needs during a seasonal slowdown or at other times would have a material adverse effect on us.
Changes in accounting standards, subjective assumptions and estimates used by management related to complex accounting matters could have an adverse effect on results of operations.
Generally accepted accounting principles in the United States and related accounting pronouncements, implementation guidance and interpretations with regard to a wide range of matters, such as stock-based compensation, valuation reserves, income taxes and fair value accounting are highly complex and involve many subjective assumptions, estimates and judgments by management. Changes in these rules or their interpretations or changes in underlying assumptions, estimates or judgments by management could significantly change our reported results.
We may not have the ability to complete future acquisitions; we may not be successful in developing the Better Homes and Gardens Real Estate brand.
We have pursued an active acquisition strategy as a means of strengthening our businesses and have sought to integrate acquisitions into our operations to achieve economies of scale. Our company owned brokerage business has completed approximately 350 acquisitions since its formation in 1997 and, in 2004, we acquired the Sotheby’s International Realty® residential brokerage business and entered into an exclusive license agreement for the rights to the Sotheby’s International Realty® trademarks with which we are in the process of building the Sotheby’s International Realty® franchise system. In January 2006, we acquired our title insurance underwriter and certain title agencies. As a result of these and other acquisitions, we have derived a substantial portion of our growth in revenues and net income from acquired businesses. The success of our future acquisition strategy will continue to depend upon our ability to find suitable acquisition candidates on favorable terms and to finance and complete these transactions.
In October 2007, we entered into a long-term agreement to license the Better Homes and Gardens® Real Estate brand from Meredith Corporation (“Meredith”). We seek to build a new international residential real estate franchise company using the Better Homes and Gardens® Real Estate brand name. The licensing agreement between us and Meredith became operational on July 1, 2008 and is for a 50-year term, with a renewal term for another 50 years at our option. We may not be able to successfully develop the brand in a timely manner or at all. Our inability to complete acquisitions or to successfully develop the Better Homes and Gardens® Real Estate brand would have a material adverse effect on our growth strategy.
We may not realize anticipated benefits from future acquisitions.
Integrating acquired companies may involve complex operational and personnel-related challenges. Future acquisitions may present similar challenges and difficulties, including:
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the possible defection of a significant number of employees and sales associates;
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increased amortization of intangibles;
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the disruption of our respective ongoing businesses;
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possible inconsistencies in standards, controls, procedures and policies;
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failure to maintain important business relationships;
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unanticipated costs of terminating or relocating facilities and operations;
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unanticipated expenses related to such integration; and
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the potential unknown liabilities associated with acquired businesses.
We are also in the process of integrating the operations of our acquired businesses and expect to incur costs relating to such integrations. These costs may result from integrating operating systems, relocating employees, closing facilities, reducing duplicative efforts and exiting and consolidating other activities.
A prolonged diversion of management’s attention and any delays or difficulties encountered in connection with the integration of any business that we have acquired or may acquire in the future could prevent us from realizing the anticipated cost savings and revenue growth from our acquisitions.
Our franchisees and sales associates could take actions that could harm our business.
Our franchisees are independent business operators and the sales associates that work with our company owned brokerage operations are independent contractors, and, as such, neither are our employees, and we do not exercise control over their day-to-day operations. Our franchisees may not successfully operate a real estate brokerage business in a manner consistent with our standards, or may not hire and train qualified sales associates
and other employees. If our franchisees and sales associates were to provide diminished quality of service to customers, our image and reputation may suffer materially and adversely affect our results of operations.
Additionally, franchisees and sales associates may engage or be accused of engaging in unlawful or tortious acts such as, for example, violating the anti-discrimination requirements of the Fair Housing Act. Such acts or the accusation of such acts could harm our and our brands’ image, reputation and goodwill.
Franchisees, as independent business operators, may from time to time disagree with us and our strategies regarding the business or our interpretation of our respective rights and obligations under the franchise agreement. This may lead to disputes with our franchisees and we expect such disputes to occur from time to time in the future as we continue to offer franchises. To the extent we have such disputes, the attention of our management and our franchisees will be diverted, which could have a material adverse effect on our business, financial condition, results of operations or cash flows.
Clients of our relocation business may terminate their contracts at any time.
Substantially all of our contracts with our relocation clients are terminable at any time at the option of the client. If a client terminates its contract, we will only be compensated for all services performed up to the time of termination and reimbursed for all expenses incurred up to the time of termination. If a significant number of our relocation clients terminate their contracts with us, our results of operations would be materially adversely affected.
Our marketing arrangement with PHH Home Loans may limit our ability to work with other key lenders to grow our business.
Under our Strategic Relationship Agreement with PHH Home Loans, we are required to recommend PHH Home Loans as originator of mortgage loans to the independent sales associates, customers and employees of our company owned and operated brokerage offices. This provision may limit our ability to enter into beneficial business relationships with other lenders and mortgage brokers.
We may experience significant claims relating to our operations and losses resulting from fraud, defalcation or misconduct.
We issue title insurance policies which provide coverage for real property mortgage lenders and buyers of real property. When acting as a title agent issuing a policy on behalf of an underwriter, our insurance risk is limited to the first $5,000 of claims on any one policy. The title underwriter we acquired in January 2006 generally underwrites title insurance policies on properties up to $1.5 million. For properties valued in excess of this amount, we obtain a reinsurance policy from a national underwriter. We may also be subject to legal claims arising from the handling of escrow transactions and closings. Our subsidiary, NRT, carries errors and omissions insurance for errors made during the real estate settlement process of $15 million in the aggregate, subject to a deductible of $1 million per occurrence. In addition, we carry an additional errors and omissions insurance policy for Realogy Corporation and its subsidiaries for errors made for real estate related services up to $35 million in the aggregate, subject to a deductible of $2.5 million per occurrence. This policy also provides excess coverage to NRT creating an aggregate limit of $50 million, subject to the NRT deductible of $1 million per occurrence. The occurrence of a significant title or escrow claim in any given period could have a material adverse effect on our financial condition and results of operations during the period.
Fraud, defalcation and misconduct by employees are also risks inherent in our business. As a service to our customers, we administer escrow and trust deposits which represent undisbursed amounts received for settlements of real estate transactions. These escrow and trust deposits totaled approximately $240 million at December 31, 2008. We carry insurance covering the loss or theft of funds of up to $30 million annually in the aggregate, subject to a deductible of $1 million per occurrence. To the extent that any loss or theft of funds substantially exceeds our insurance coverage, our business could be materially adversely affected.
We could be subject to severe losses if banks do not honor our escrow deposits.
Our company owned brokerage business and our title and settlement services business act as escrow agents for numerous customers. As an escrow agent, we receive money from customers to hold until certain conditions are satisfied. Upon the satisfaction of those conditions, we release the money to the appropriate party. We deposit this money with various banks, which may hold a significant amount of such deposits in excess of the federal deposit insurance limit. If any of our depository banks were to become unable to honor our deposits, we could be responsible for these deposits. These escrow and trust deposits totaled $240 million at December 31, 2008.
Title insurance regulations limit the ability of our insurance underwriters to pay cash dividends to us.
Our title insurance underwriters are subject to regulations that limit their ability to pay dividends or make loans or advances to us, principally to protect policy holders. Generally, these regulations limit the total amount of dividends and distributions to a certain percentage of the insurance subsidiary’s surplus, or 100% of statutory operating income for the previous calendar year. These restrictions could limit our ability to pay dividends to our stockholders, repay our indebtedness, make acquisitions or otherwise grow our business.
We have fully utilized one of our securitization facilities, and we may be unable to continue to securitize certain of our relocation assets, each of which may adversely impact our liquidity.
At December 31, 2008, $703 million of securitization obligations were outstanding through various bankruptcy remote special purpose entities (“SPEs”) monetizing certain assets of our relocation services business. We have provided a performance guaranty which guarantees the obligations of our subsidiary, Cartus Corporation and its subsidiaries, as originator and servicer under these securitization programs with the SPEs. Our ability to securitize these assets or receivables depends upon the amount of such receivables and other assets that we hold, the performance of these assets, the capacity limits of these facilities, the interest of banks and other financial institutions in financing the securitized assets and other factors. If we are unable to continue to securitize these assets, we may be required to find additional sources of funding which may be on less favorable terms.
Funding requirements of our relocation business are primarily satisfied through the issuance of securitization obligations to finance relocation receivables and advances and relocation properties held for sale. As of December 31, 2008, the U.K. Relocation Funding Limited Securitization program was fully utilized due to the state of the U.K. housing market. As a result, any future additional capital requirements cannot be funded through the issuance of securitization obligations under this facility and instead will need to be, and have been, funded by operating capital or with borrowings under our revolving credit facility. The Company has undertaken steps in the second half of 2008 to reduce the amount outstanding under the program by obtaining the agreement of many clients to self fund their future business and in some cases repay us for their existing homes in inventory under this facility. If we need to continue to rely on borrowings under our revolving credit facility, the risks related to our ability to service our debt and meet our cash requirements will be exacerbated.
The occurrence of any trigger events under our securitization facilities could cause us to lose funding under the facilities and therefore restrict our ability to fund the operation of our relocation business.
Each of the securitization facilities contains terms which if triggered may result in a termination or limitation of new or existing funding under the facility and/or may result in a requirement that all collections on the assets be used to pay down the amounts outstanding under such facility. Some of the trigger events which could affect the availability of funds under the securitization facilities include defaults or losses on the securitized receivables and related assets or advances, increases in default rates on the securitized receivables, increases in noncash reductions of the securitized receivables, losses on sales of relocation properties or increases in the average length of time we hold relocation properties in inventory. Given the current recession and an increasing number of companies having difficulties meeting their financial obligations, there is a heightened risk relating to compliance with the Apple Ridge securitization performance trigger relating to limits on “net credit
losses” (the estimated losses incurred on securitization receivables that have been written off, net of recoveries of such receivables), as net credit losses may not exceed $750,000 in any one month or $1.5 million in any trailing 12 month period. The facilities also have trigger events based on change in control and cross-defaults to material indebtedness. Each of the securitization facilities also contains provisions limiting the availability of funding based on the concentration levels of receivables due from any one client or, in some instances, groups of the largest clients and certain of the securitization facilities have other concentration levels relating to the due dates of the receivables, the period certain receivables are outstanding and the type or location of the relocation properties. The occurrence of any of the above trigger events under the securitization facilities could restrict our ability to access new or existing funding under the facilities and adversely affect the operation of our relocation business.
We are highly dependent on the availability of the asset-backed securities market to finance the operations of our relocation business, disruptions in this market or any adverse change or delay in our ability to access the market could have a material adverse effect on our financial position, liquidity or results of operations.
The asset-backed securities market in the United States and Europe has been experiencing unprecedented disruptions. Current conditions in this market include reduced liquidity, credit risk premiums for certain market participants, volatility in commercial paper rates and reduced investor demand for asset-backed securities, particularly those backed by sub-prime collateral. These conditions may continue or worsen in the future. Continued reduced investor demand for asset-backed securities could result in our having to fund our relocation assets until investor demand improves, but our capacity to fund our relocation assets is not unlimited. If we confront a reduction in the borrowing capacity under our securitization facilities due to a reduced demand for asset-backed securities, it could require us to reduce the amount of relocation assets that we fund and to find alternative sources of funding for our working capital needs. Continued adverse market conditions could also result in increased costs and reduced margins earned in connection with our securitization transactions.
We will continue to rely on borrowings under the securitization facilities, together with operating cash flows and borrowings under our revolving credit facility, in order to fund the future liquidity needs of our relocation business. If we need to increase the funding available under our securitization facilities, such funding may not be available to us or, if available, on terms acceptable to us. In addition, if market conditions do not improve prior to the maturity of our securitization facilities, we may encounter difficulties in refinancing them. If these sources of funding are not available to us for any reason, including the occurrence of any of the trigger events under the terms of the securitization facilities, we could be required to borrow under our revolving credit facility or incur other indebtedness to finance our working capital needs or we could be required to revise the scale of our business, which could have a material adverse effect on our ability to achieve our business and financial objectives.
The cost of compliance or failure to comply with the Sarbanes-Oxley Act of 2002 may adversely affect our business.
As a result of our registration statement registering the Unsecured Notes, which was declared effective on January 9, 2008, we became subject to certain provisions of the Sarbanes-Oxley Act of 2002. This has resulted in higher compliance costs and may adversely affect our financial results and our ability to retain qualified executive officers. The Sarbanes-Oxley Act affects corporate governance, securities disclosure, compliance practices, internal audits, disclosure controls and procedures, and financial reporting and accounting systems. Section 404 of the Sarbanes-Oxley Act, for example, requires companies subject to the reporting requirements of the U.S. federal securities laws to do a comprehensive evaluation of its and its consolidated subsidiaries’ internal controls over financial reporting. We are required to provide management’s Section 404 evaluation with this Annual Report and an auditor’s attestation on the effectiveness of financial controls over financial reporting beginning with the Annual Report for 2009. The failure to comply with Section 404 may result in investors losing confidence in the reliability of our financial statements, prevent us from providing the required financial information in a timely manner, prevent us from otherwise complying with the standards applicable to us as a public company and subject us to adverse regulatory consequences.
Our international operations are subject to risks not generally experienced by our U.S. operations.
Our relocation services business operates worldwide, and to a lesser extent, our real estate franchise services and company owned real estate brokerage businesses have international operations. Revenues from these operations are approximately 2% of total revenues. Our international operations are subject to risks not generally experienced by our U.S. operations. The risks involved in our international operations that could result in losses against which we are not insured and therefore affect our profitability include:
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exposure to local economic conditions;
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economic and/or credit conditions abroad;
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potential adverse changes in the diplomatic relations of foreign countries with the U.S.;
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hostility from local populations;
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restrictions on the withdrawal of foreign investment and earnings;
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government policies against businesses owned by foreigners;
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investment restrictions or requirements;
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diminished ability to legally enforce our contractual rights in foreign countries;
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restrictions on the ability to obtain or retain licenses required for operation;
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foreign exchange restrictions;
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fluctuations in foreign currency exchange rates;
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withholding and other taxes on remittances and other payments by subsidiaries; and
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changes in foreign taxation structures.
We are subject to certain risks related to litigation filed by or against us, and adverse results may harm our business and financial condition.
We cannot predict with certainty the cost of defense, the cost of prosecution or the ultimate outcome of litigation and other proceedings filed by or against us, including remedies or damage awards, and adverse results in such litigation and other proceedings may harm our business and financial condition. Such litigation and other proceedings may include, but are not limited to, actions relating to intellectual property, commercial arrangements, vicarious liability based upon conduct of individuals or entities outside of our control, including franchisees and sales associates, and employment law, including claims challenging the classification of our sales associates as independent contractors. In the case of intellectual property litigation and proceedings, adverse outcomes could include the cancellation, invalidation or other loss of material intellectual property rights used in our business and injunctions prohibiting our use of business processes or technology that is subject to third party patents or other third party intellectual property rights. In addition, we may be required to enter into licensing agreements (if available on acceptable terms or at all) and pay royalties.
We are reliant upon information technology to operate our business and maintain our competitiveness, and any disruption or reduction in our information technology capabilities could harm our business.
Our business depends upon the use of sophisticated information technologies and systems, including technology and systems utilized for communications, procurement, call center operations and administrative systems. The operation of these technologies and systems is dependent upon third party technologies, systems and services, for which there are no assurances of continued or uninterrupted availability and support by the applicable third party vendors on commercially reasonable terms. We also cannot assure you that we will be able to continue to effectively operate and maintain our information technologies and systems. In addition, our information technologies and systems are expected to require refinements and enhancements on an ongoing basis, and we expect that advanced new technologies and systems will continue to be introduced. We may not be
able to obtain such new technologies and systems, or to replace or introduce new technologies and systems as quickly as our competitors or in a cost-effective manner. Also, we may not achieve the benefits anticipated or required from any new technology or system, and we may not be able to devote financial resources to new technologies and systems in the future.
In addition, our information technologies and systems are vulnerable to damage or interruption from various causes, including (1) natural disasters, war and acts of terrorism, (2) power losses, computer systems failure, Internet and telecommunications or data network failures, operator error, losses and corruption of data, and similar events and (3) computer viruses, penetration by individuals seeking to disrupt operations or misappropriate information and other physical or electronic breaches of security. We maintain certain disaster recovery capabilities for critical functions in most of our businesses, including certain disaster recovery services from International Business Machines Corporation. However, these capabilities may not successfully prevent a disruption to or material adverse effect on our businesses or operations in the event of a disaster or other business interruption. Any extended interruption in our technologies or systems could significantly curtail our ability to conduct our business and generate revenue. Additionally, our business interruption insurance may be insufficient to compensate us for losses that may occur.
We do not own two of our brands and must manage cooperative relationships with both owners.
The Sotheby’s International Realty® and Better Homes and Gardens® real estate brands are owned by the companies that founded these brands. We are the exclusive party licensed to run brokerage services in residential real estate under those brands, whether through our franchisees or our company owned operations. Our future operations and performance with respect to these brands requires the continued cooperation from the owners of those brands. In particular, Sotheby’s has the right to approve the master franchisors of, and the material terms of our master franchise agreements governing our relationships with, our Sotheby’s franchisees located outside the U.S., which approval cannot be unreasonably withheld or delayed. If Sotheby’s unreasonably withholds or delays its approval for new franchisees, our relationship with them could be disrupted. Any significant disruption of the relationships with the owners of these brands could impede our franchising of those brands and have a material adverse effect on our operations and performance.
The weakening or unavailability of our intellectual property rights could adversely impact our business.
Our trademarks, domain names, trade dress and other intellectual property rights are fundamental to our brands and our franchising business. The steps we take to obtain, maintain and protect our intellectual property rights may not be adequate and, in particular, we may not own all necessary registrations for our intellectual property. Applications we have filed to register our intellectual property may not be approved by the appropriate regulatory authorities. Our intellectual property rights may not be successfully asserted in the future or may be invalidated, circumvented or challenged. We may be unable to prevent third parties from using our intellectual property rights without our authorization or independently developing technology that is similar to ours. Third parties may own rights in similar trademarks. Our intellectual property rights, including our trademarks, may fail to provide us with significant competitive advantages in the U.S. and in foreign jurisdictions that do not have or do not enforce strong intellectual property rights.
Our license agreement with Sotheby’s for the use of the Sotheby’s International Realty® brand is terminable by Sotheby’s prior to the end of the license term if certain conditions occur, including but not limited to the following: (1) we attempt to assign any of our rights under the license agreement in any manner not permitted under the license agreement, (2) we become bankrupt or insolvent, (3) a court issues a non-appealable, final judgment that we have committed certain breaches of the license agreement and we fail to cure such breaches within 60 days of the issuance of such judgment or (4) we discontinue the use of all of the trademarks licensed under the license agreement for a period of twelve consecutive months.
Our license agreement with Meredith Corporation for the use of the Better Homes and Gardens® real estate brand is terminable by Meredith Corporation prior to the end of the license term if certain conditions occur,
including but not limited to the following: (i) we attempt to assign any of our rights under the license agreement in any manner not permitted under the license agreement, (ii) we become bankrupt or insolvent, or (iii) a trial court issues a final judgment that we are in material breach of the license agreement or any representation or warranty we made was false or materially misleading when made.
Risks relating to our separation from Cendant
We are responsible for certain of Cendant’s contingent and other corporate liabilities.
Under the Separation and Distribution Agreement dated July 27, 2006 (the “Separation and Distribution Agreement”) among Realogy, Cendant, Wyndham Worldwide Corporation (“Wyndham Worldwide”) and Travelport Inc. (“Travelport”), and other agreements, subject to certain exceptions contained in the Tax Sharing Agreement dated as of July 28, 2006 among Realogy, Wyndham Worldwide and Travelport, we and Wyndham Worldwide have each assumed and are responsible for 62.5% and 37.5%, respectively, of certain of Cendant’s contingent and other corporate liabilities including those relating to unresolved tax and legal matters and associated costs and expenses. More specifically, we generally have assumed and are responsible for the payment of our share of: (i) liabilities for certain litigation relating to, arising out of or resulting from certain lawsuits in which Cendant is named as the defendant, including but not limited to the Credentials litigation referred to elsewhere in this Annual Report, in which in September 2007, the court granted summary judgment against Cendant in the amount of approximately $94 million plus attorneys’ fees, (ii) certain contingent tax liabilities and taxes allocated pursuant to the Tax Sharing Agreement for the payment of certain taxes, (iii) Cendant corporate liabilities relating to Cendant’s terminated or divested businesses and liabilities relating to the Travelport sale, if any, (iv) generally any actions with respect to the separation plan or the distributions brought by any third party and (v) payments under certain identified contracts (or portions thereof) that were not allocated to any specific party in connection with our separation from Cendant. In almost all cases, we are not responsible for liabilities that were specifically related to Avis Budget, Wyndham Worldwide and/or Travelport, which were allocated 100% to the applicable company in the separation. In addition, we agreed with Wyndham Worldwide to guarantee each other’s obligations (as well as Avis Budget’s) under our respective deferred compensation plans for amounts deferred in respect of 2005 and earlier years. At our separation from Cendant, we recorded $843 million relating to this assumption and guarantee. The majority of the $843 million of liabilities have been classified as due to former parent in the consolidated balance sheet included elsewhere in this Annual Report as the Company is indemnifying Cendant for these contingent liabilities and therefore any payments are typically made to the third party through the former parent. At December 31, 2008, the due to former parent balance was $554 million.
If any party responsible for such liabilities were to default in its payment, when due, of any such assumed obligations related to any such contingent and other corporate liability, each non-defaulting party (including Cendant) would be required to pay an equal portion of the amounts in default. Accordingly, we may, under certain circumstances, be obligated to pay amounts in excess of our share of the assumed obligations related to such contingent and other corporate liabilities including associated costs and expenses. On April 26, 2007, in accordance with the Separation and Distribution Agreement, we used the new synthetic letter of credit facility to satisfy our obligations to post a letter of credit in respect of our assumed portion of Cendant’s contingent and other corporate liabilities.
An adverse outcome from any of the unresolved Cendant legacy legal proceedings or other liabilities for which we have assumed partial liability under the Separation and Distribution Agreement could be material with respect to our earnings in any given reporting period.
If the distribution, together with certain related transactions, were to fail to qualify as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Internal Revenue Code of 1986, as amended (the “Code”), then our stockholders and/or we and Avis Budget might be required to pay U.S. federal income taxes.
The distribution of Realogy shares in connection with our separation from Cendant was conditioned upon Cendant’s receipt of an opinion of Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden Arps”), substantially to the effect that the distribution, together with certain related transactions, should qualify as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code. The opinion of Skadden Arps was based on, among other things, certain assumptions as well as on the accuracy of certain factual representations and statements that we and Cendant made to Skadden Arps. In rendering its opinion, Skadden Arps also relied on certain covenants that we and Cendant entered into, including the adherence by Cendant and us to certain restrictions on our future actions. If any of the representations or statements that we or Cendant made were, or become, inaccurate or incomplete, or if we or Cendant breach any of our covenants, the distribution and such related transactions might not qualify as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code. You should note that Cendant did not and does not intend to seek a ruling from the Internal Revenue Service (“IRS”), as to the U.S. federal income tax treatment of the distribution and such related transactions. The opinion of Skadden Arps is not binding on the IRS or a court, and there can be no assurance that the IRS will not challenge the validity of the distribution and such related transactions as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code or that any such challenge ultimately will not prevail.
If the distribution of Realogy shares together with the related transactions referred to above, or together with the Merger (the tax consequences of which are discussed below under “The Merger might be characterized as part of a plan.”), were to fail to qualify as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code, then Cendant would recognize gain in an amount equal to the excess of (i) the fair market value of our common stock distributed to the Cendant stockholders over (ii) Cendant’s tax basis in such common stock. Under the terms of the Tax Sharing Agreement, in the event the distribution of the stock of Realogy or Wyndham Worldwide were to fail to qualify as a reorganization and (x) such failure was not the result of actions taken after the distribution by Cendant, us or Wyndham Worldwide, we and Wyndham Worldwide would be responsible for the payment of 62.5% and 37.5%, respectively, of any taxes imposed on Cendant as a result thereof or (y) such failure was the result of actions taken after the distribution by Cendant, us or Wyndham Worldwide, the party responsible for such failure would be responsible for all taxes imposed on Cendant as a result thereof. In addition, in certain circumstances, Cendant stockholders who received Realogy stock in the distribution would be treated as having received a taxable dividend equal to the fair market value of Realogy stock received. If the Merger were to cause the distribution to fail to qualify as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code, the resulting taxes would be significant and would have a clear material adverse effect.
We might not be able to engage in desirable strategic transactions and equity issuances.
Our ability to engage in significant stock transactions could be limited or restricted in order to preserve the tax-free nature of the distribution of our common stock to Cendant stockholders on July 31, 2006. Even if the distribution, together with the related transactions referred to above, or together with the Merger (the tax consequences of which are discussed below under “The Merger might be characterized as part of a plan.”), otherwise qualifies as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code, the distribution would be taxable to Avis Budget (but generally not to Avis Budget stockholders) under Section 355(e) of the Code if the distribution were deemed to be part of a plan (or series of related transactions) pursuant to which one or more persons acquired directly or indirectly stock representing a 50% or greater interest, by vote or value, in the stock of either Avis Budget or Realogy.
Current U.S. federal income tax law creates a presumption that the distribution would be taxable to Avis Budget, but not to its stockholders, if either Realogy or Avis Budget were to engage in, or enter into an
agreement to engage in, a transaction that would result in a 50% or greater change, by vote or value, in Realogy or Avis Budget’s stock ownership during the four-year period that began two years before the date of the distribution, unless it is established that the transaction is not pursuant to a plan or series of transactions related to the distribution. Treasury regulations currently in effect generally provide that whether an acquisition transaction and a distribution are part of a plan is determined based on all of the facts and circumstances, including, but not limited to, specific factors described in the Treasury regulations. In addition, the Treasury regulations provide that a distribution and subsequent acquisition can be part of a plan only if there was an agreement, understanding, arrangement, or substantial negotiations regarding the acquisition or a similar acquisition at some time during the two-year period ending on the date of the distribution, and also provide a series of “safe harbors” for acquisition transactions that are not considered to be part of a plan. These rules may prevent Realogy and Avis Budget from entering into transactions which might be advantageous to their respective stockholders, such as issuing equity securities to satisfy financing needs or acquiring businesses or assets with equity securities.
We believe that neither the share repurchase program that we engaged in during 2006 nor the Merger with affiliates of Apollo will affect the tax-free nature of our separation from Cendant. However, both determinations are based upon a facts and circumstances analysis and facts and circumstances are inherently difficult to assess.
The Merger might be characterized as part of a plan.
Under the Tax Sharing Agreement, Realogy agreed not to take certain actions during the period beginning the day after the distribution date and ending on the two-year anniversary thereof. These actions include Realogy selling or otherwise transferring 50% or more of its gross or net assets of its active trade or business or 50% or more of the consolidated gross or net assets of its business, or entering into a merger agreement or any Proposed Acquisition Transaction, as defined in the Tax Sharing Agreement (generally, a transaction where Realogy would merge or consolidate with any other person or where any person would acquire an amount of stock that comprises thirty-five percent or more of the value or the total combined voting power of all of the outstanding stock of Realogy), without the receipt of a private letter ruling from the IRS, or an opinion of tax counsel in form and substance reasonably satisfactory to at least two of Cendant, Realogy and Wyndham Worldwide that states that such action will not result in Distribution Taxes, as defined in the Tax Sharing Agreement (generally, taxes resulting from the failure of the distribution to qualify under Section 355(a) or (c) of the Code or Section 361(c) of the Code, or the application of Sections 355(d) or (e) of the Code to the distribution).
The Merger was a Proposed Acquisition Transaction as defined in the Tax Sharing Agreement. In connection with the Merger, Skadden Arps issued an opinion (the “Opinion”) to us, Cendant and Wyndham Worldwide, stating that, based on certain facts and information submitted and statements, representations and warranties made by Realogy and Apollo, and subject to the limitations and qualifications set forth in such Opinion, the Merger with affiliates of Apollo will not result in Distribution Taxes. Each of Cendant and Wyndham Worldwide confirmed that the Opinion is reasonably satisfactory. The Opinion is not binding on the IRS or a court. Accordingly, the IRS may assert a position contrary to the Opinion, and a court may agree with the IRS’s position. Additionally, a change in the tax law or the inaccuracy or failure to be complete of any of the facts, information, documents, corporate records, covenants, warranties, statements, representations, or assumptions upon which the Opinion is based could affect its conclusions. Pursuant to the Tax Sharing Agreement, Realogy is required to indemnify Cendant against any and all tax-related liabilities incurred by it relating to the distribution to the extent caused by Realogy’s actions, even if Cendant has permitted us to take such actions. Cendant did not and does not intend to seek a private letter ruling from the IRS.
If the Merger causes the distribution to fail to qualify as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code, the resulting taxes would be significant and would have a clear material adverse effect. Cendant would recognize gain in an amount equal to the excess of (i) the fair market value of our common stock distributed to the Cendant stockholders over (ii) Cendant’s tax basis in such common stock. Under the terms of the Tax Sharing Agreement, in the event the distribution of the stock of Realogy or Wyndham Worldwide were to fail to qualify as a reorganization and (x) such failure was not the result of actions taken after the distribution by Cendant, us or Wyndham Worldwide, we and Wyndham
Worldwide would be responsible for 62.5% and 37.5%, respectively, of any taxes imposed on Cendant as a result thereof or (y) such failure was the result of actions taken after the distribution by Cendant, us or Wyndham Worldwide, the party responsible for such failure would be responsible for all taxes imposed on Cendant as a result thereof. In addition, in certain circumstances, the Cendant stockholders who received Realogy stock in the distribution would be treated as having received a taxable dividend equal to the fair market value of Realogy stock received. If the distribution were to qualify as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code, but acquisitions of Cendant stock or Realogy stock after the distribution were to cause Section 355(e) of the Code to apply, Cendant would recognize taxable gain as described above, but the distribution would be tax free to stockholders (except for cash received in lieu of a fractional share of Realogy common stock).
ITEM 1B.
ITEM 1B. UNRESOLVED STAFF COMMENTS
None.
ITEM 2.
ITEM 2. PROPERTIES
Corporate Headquarters. Our corporate headquarters is located in leased offices at One Campus Drive in Parsippany, New Jersey. The lease expires in 2013 and can be renewed at our option for an additional five or ten years.
Real Estate Franchise Services. Our real estate franchise business conducts its main operations at our leased offices at One Campus Drive in Parsippany, New Jersey.
Company Owned Real Estate Brokerage Services. As of December 31, 2008, our company owned real estate brokerage segment leases over 6 million square feet of domestic office space under 1,160 leases. Its corporate headquarters is located in leased offices at One Campus Drive, Parsippany, New Jersey. As of December 31, 2008, NRT leased approximately 7 facilities serving as regional headquarters; 40 facilities serving as local administration, training facilities or storage, and approximately 835 brokerage sales offices under approximately 1,000 leases. These offices are generally located in shopping centers and small office parks, generally with lease terms of three to five years. In addition, there are 110 leases representing vacant and/or subleased offices, principally relating to brokerage sales office consolidations.
Relocation Services. Our relocation business has its main corporate operations in a leased building in Danbury, Connecticut with a lease term expiring in 2015. There are also two leased regional offices located in Chicago, Illinois and Irving, Texas, which provide operation support services. International offices are leased in Swindon and Hammersmith, United Kingdom; Hong Kong; Singapore and Shanghai, China.
Title and Settlement Services. Our title and settlement services business conducts its main operations at a leased facility in Mount Laurel, New Jersey pursuant to a lease expiring in 2014. This business also has leased regional and branch offices in 21 states and the District of Columbia.
We believe that all of our properties and facilities are well maintained.
ITEM 3.
ITEM 3. LEGAL PROCEEDINGS
Legal-Real Estate Business
The following litigation relates to Cendant’s Real Estate business, and pursuant to the Separation and Distribution Agreement, we have agreed to be responsible for all of the related costs and expenses.
Berger v. Property ID Corp., et al., (CV 05-5373 GHK (CTx) (U.S.D.C., C.D. Cal.)). On August 28, 2008, the Court granted preliminary approval of the settlement of this action as it relates to claims against the Company
and its subsidiaries. The settlement provides for the reimbursement of the amounts paid to purchase a Property I.D. natural hazard disclosure report where the consumer was represented by an agent of a Realogy broker or franchisee in the transaction. Under the terms of the settlement, the Company paid $4 million in September 2008 to fund attorneys’ fees and costs of claims administration. The Company anticipates, based on its current assumptions including the expected redemption rate by class members, that it will have no further payment obligation under the settlement as insurance proceeds are anticipated to fund the balance of obligations under the settlement agreement. Notice was provided to the class in the fourth quarter of 2008. On December 15, 2008, plaintiffs filed their motion for final approval of the settlement agreement along with a motion for reimbursement of attorneys’ fees. A fairness hearing was held on January 26, 2009 at which the court granted final approval of the settlement.
Frank K. Cooper Real Estate #1, Inc. v. Cendant Corp. and Century 21 Real Estate Corporation, (N.J. Super. Ct. L. Div., Morris County, New Jersey). Frank K. Cooper Real Estate #1, Inc. filed a putative class action against Cendant and Cendant’s subsidiary, Century 21 Real Estate Corporation (“Century 21”). Cendant and Century 21 were served with the complaint on March 14, 2002. The complaint alleges breach of certain provisions of the Real Estate Franchise Agreement entered into between Century 21 and the plaintiffs, as well as the implied duty of good faith and fair dealing, and certain express and implied fiduciary duties. The complaint alleges, among other things, that Cendant diverted money and resources from Century 21 franchisees and allotted them to NRT owned brokerages; Cendant used Century 21 marketing dollars to promote Cendant’s Internet website, Move.com; the Century 21 magazine was replaced with a Coldwell Banker magazine; Century 21 ceased using marketing funds for yellow page advertising; Cendant nearly abolished training in the areas of recruiting, referral, sales and management; and Cendant directed most of the relocation business to Coldwell Banker and ERA brokers. On October 29, 2002, the plaintiffs filed a second amended complaint adding a count against Cendant as guarantor of Century 21’s obligations to its franchisees. In response to an order to show cause with preliminary restraints filed by the plaintiffs, the court entered a temporary restraining order limiting Century 21’s ability to seek general releases from its franchisees in franchise renewal agreements. On June 23, 2003, the court determined that the limitations on Century 21 obtaining general releases should continue with respect to renewals only. Consequently, as part of any ordinary course transaction other than a franchise renewal, Century 21 may require the franchisee to execute a general release, forever releasing Century 21 from any claim that the Century 21 franchisee may have against Century 21. The court also ordered a supplemental notice of the progress of the litigation distributed to Century 21 franchisees.
Plaintiffs filed their motion to certify a class on October 1, 2004. After further discovery and briefing by the parties, and an oral argument held on May 26, 2006, plaintiffs’ motion to certify a class was denied on June 30, 2006. The court also denied defendants’ motion to strike the class demand. On August 1, 2006, plaintiffs filed a motion for leave to appeal the denial of class certification. On August 24, 2006, the Appellate Division denied plaintiffs’ motion for leave to appeal. The court held a case management conference on April 3, 2007 and discussed outstanding discovery disputes and plaintiff’s plan to move a second time to certify a class. On April 25, 2007, plaintiffs filed a motion to compel discovery seeking information relating to plaintiffs’ plan to move a second time to certify a class, which defendants’ opposed. The court did not issue a ruling and instead by order dated October 1, 2007 appointed a discovery master to rule on the discovery disputes. On November 21, 2007, the discovery master submitted a recommended order to the Court allowing plaintiffs to obtain information concerning the Century 21 NAF fund account only, and denying plaintiffs’ requests for any further discovery. The recommended order was entered by the Court on November 26, 2007. Defendants complied with all outstanding discovery requests. Mediation was held on January 6, 2009 but was unsuccessful. On January 16, 2009, we filed a motion to strike the class allegations from plaintiffs’ complaint. On February 19, 2009, plaintiffs filed their opposition to our motion to strike and filed a cross motion to certify a class.
In Re Homestore.com Securities Litigation, No. 10-CV-11115 (MJP) (U.S.D.C., C.D. Cal.). On November 15, 2002, Cendant and Richard A. Smith, our Chief Executive Officer, President and Director, were added as defendants in a putative class action. The 26 other defendants in such action include Homestore.com, Inc., certain of its officers and directors and its auditors. Such action was filed on behalf of persons who purchased stock of Homestore.com (an Internet-based provider of residential real estate listings) between January 1, 2000 and December 21, 2001. The complaint in this action alleges violations of Sections 10(b) and
20(a) of the Exchange Act based on purported misconduct in connection with the accounting of certain revenues in financial statements published by Homestore during the class period. On March 7, 2003, the court granted Cendant’s motion to dismiss lead plaintiff’s claim for failure to state a claim upon which relief could be granted and dismissed the complaint, as against Cendant and Mr. Smith, with prejudice. On March 8, 2004, the court entered final judgment, thus allowing for an appeal to be made regarding its decision dismissing the complaint against Cendant, Mr. Smith and others. Oral argument of the appeal took place on February 6, 2006. On June 30, 2006, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of the plaintiff’s complaint. The Court of Appeals also remanded the case back to the district court so that the plaintiff may seek leave in the district court to amend the complaint if that can be done consistent with the Ninth Circuit’s opinion. Cendant and Mr. Smith filed a petition for a writ of certiorari with the United States Supreme Court. On December 19, 2006, the Court entered an order denying plaintiff’s motion for Leave to File a Second Amended Complaint against Cendant and Richard Smith, among other parties. Plaintiffs have appealed this decision to the Ninth Circuit and that appeal has been fully briefed but is still pending. On March 26, 2007, the United States Supreme Court issued a writ of certiorari in a case arising out of the Eighth Circuit that raises the same legal issue raised in the Ninth Circuit case involving Cendant and Mr. Smith, whose petition will be disposed of at the resolution of the Eighth Circuit case by the Supreme Court.
On January 15, 2008, the Supreme Court held in Stoneridge Investment, that secondary actors cannot be held liable under Section 10(b) if their acts are not disclosed to the investing public because Section 10(b) plaintiffs cannot establish the necessary element of reliance with respect to such actors. On January 16, 2008, we made a written request that plaintiff withdraw its appeal in light of the Stoneridge ruling, to which we received no response. On March 26, 2008, the Ninth Circuit dismissed the appeal and remanded the case to the district court for further proceedings consistent with the holding in Stoneridge.
This action was settled in July 2008, subject to notice to class members and Court approval. During this action, Cendant had placed into escrow stock and proceeds it was to receive in connection with the settlement of related litigation subject to resolution of this action. During the course of 2008, the stock was sold in the open market, leaving an aggregate of approximately $15.5 million of cash proceeds in the escrow account. Under the terms of the current settlement, subject to the court’s final approval of the settlement, Cendant will receive approximately $11.5 million of such cash proceeds but waive its right to the $4 million cash escrow balance. Under the terms of the Separation Agreement, Realogy will be entitled to 100% of the proceeds so payable to Cendant. Cendant will waive any right it may have to any settlement proceeds that may be distributed from a future settlement with defendant Stuart Wolf. The Court preliminarily approved the settlement on December 12, 2008. The final approval hearing is set for March 16, 2009.
Larpenteur v. Burnet Realty, Inc., d/b/a Coldwell Banker Burnet, and Burnet Title, Inc., No. 27 CV 0824562 (Hennepin County District Court, Minnesota), This putative class action was filed on September 26, 2008 against the Company’s Minnesota operations for NRT and for TRG alleging that the brokerage’s affiliated business relationship with TRG and the practice of referring business to TRG violates the brokerage’s fiduciary duty as a broker and sales agent to its customers. Plaintiffs allege that there are lower cost comparable alternatives to Burnet Title and that recommending the higher costing Burnet Title is a breach of duty. The complaint further alleges that the brokerage was unjustly enriched as a result of the affiliated business relationship. As to Burnet Title, the complaint alleges that it aided and abetted the breach of fiduciary duty and tortiously interfered with the relationship between the brokerage and its customer. Discovery for this class action has commenced. In December 2008, defendants filed a motion to strike the class action allegation and a motion for judgment on the pleadings.
Proa, Jordan and Schiff v. NRT Mid-Atlantic, Inc. d/b/a Coldwell Banker Residential Brokerage et al. (Case No. 1:05-cv-02157 (AMD), U.S.D.C., District of Maryland, Northern Division). On August 8, 2005, plaintiffs Proa and Jordan filed a lawsuit against NRT Mid-Atlantic, Inc., NRT Incorporated (now known as NRT LLC) and Angela Shearer, Branch Vice President of Coldwell Banker Residential Brokerage’s Chestertown, Maryland
office. On October 27, 2005, plaintiffs filed an amended complaint that includes Schiff as a plaintiff, names Sarah Sinnickson, Executive Vice President and General Sales Manager of Coldwell Banker Residential Brokerage as an individual defendant and asserts eight claims. Plaintiffs’ claims involve alleged conduct arising from the plaintiffs’ affiliation with NRT’s Chestertown, Maryland office as real estate agents on an independent contractor basis. The plaintiffs allege violations of Title VII of the Civil Rights Act and violations of the Civil Rights Act of 1866 claiming discrimination and retaliation on the basis of race, religion, ethnicity, racial heritage and/or ethnic or racial associations. The plaintiffs are also seeking declaratory relief on behalf of themselves and a putative class that they are common law employees as opposed to independent contractors. The plaintiffs are also alleging various breach of contract, wrongful discharge and negligent supervision claims. In addition, plaintiffs are alleging that defendant Shearer made false and defamatory remarks about plaintiffs Proa and Jordan to their co-workers.
The plaintiffs are seeking compensatory and punitive damages in an amount to be determined at trial, as well as attorneys’ fees. On November 14, 2005, the defendants filed an answer to the plaintiffs’ amended complaint. Defendants have filed a motion to dismiss the claim for declaratory judgment based on lack of subject matter jurisdiction as well as a motion for judgment on the pleadings as to Jordan’s Title VII claim based on the statute of limitations. Plaintiffs agreed to voluntarily dismiss the defamation claims without prejudice. A stipulation of voluntary dismissal of the defamation claim against Angela Shearer was entered on January 18, 2006. At the direction of the Court, on September 5, 2006, we re-filed our Motion for Partial Dismissal. On October 5, 2006 we filed our reply brief. On March 13, 2007, the Court granted defendants’ motion to dismiss with prejudice Jordan’s Title VII claim for failing to file suit within the statute of limitations. The court also granted defendants’ motion to dismiss with prejudice plaintiffs’ declaratory judgment claim, which sought to obtain a declaration that real estate agents are not independent contractors. The court dismissed the declaratory claim because there is no actual controversy that requires declaratory relief and because there is no claim that is appropriate for class relief as pled by plaintiffs. The court then ordered discovery to commence immediately. On March 21, 2007, plaintiffs filed a motion for leave to file a third amended complaint attempting to add class-wide FLSA claims for unpaid minimum wages, overtime and benefits that employees receive. Defendants filed their opposition to the motion on April 9, 2007. On May 8, 2007, the court denied the motion. Accordingly, Plaintiffs’ complaint is no longer a putative class action. A court ordered mediation held on March 10, 2008 was unsuccessful. Substantially all discovery has been completed, but no trial date has been set.
David Schott and Constance Schott v. Equity Title Company, (Case No. BC 374014, Superior Court of California, County of Los Angeles). On or about June 1, 2007, plaintiffs filed suit against defendant, a company within our title and settlement services segment, alleging, among other things, breach of contract and fraud relating to an exchange of property under Section 1031 of the Internal Revenue Code of 1986, as amended. Plaintiffs selected a qualified intermediary known as QES, which was acquired by Southwest Exchange shortly before the plaintiffs hired QES. The Company acted as escrow agent for the property exchange and wired the 1031 exchange proceeds to an account designated by QES that was controlled by Southwest Exchange. Several weeks after the proceeds were sent, unknown parties affiliated with Southwest Exchange stole plaintiffs’ money, along with many other parties’ funds. The trial commenced on June 15, 2008. On July 3, 2008, the jury returned a verdict in favor of plaintiffs on their claim for breach of contract and intentional misrepresentation and awarded damages in the amount of approximately $2.9 million. The Judgment on Jury Verdict was entered by the Court on July 25, 2008.
On September 27, 2008, the Court denied our motions for a judgment notwithstanding the jury verdict and for a new trial. The Company is preparing an appeal of this action. On October 24, 2008, we posted an appellate bond in the amount of $4.5 million. On October 27, 2008, the defendant filed its Notice of Appeal. On November 6, 2008, defendant demanded that the plaintiffs release the judgment lien filed in various counties; plaintiffs’ counsel filed the requested releases.
We cannot give any assurance as to the final outcome or resolution of these unresolved proceedings. An adverse outcome from certain unresolved proceedings could be material with respect to earnings in any given
reporting period. However, we do not believe that the impact of such unresolved proceedings should result in a material liability to us in relation to our consolidated financial position or liquidity.
Additionally, from time to time, we are involved in certain other claims and legal actions arising in the ordinary course of our business. While the results of such claims and legal actions cannot be predicted with certainty, we do not believe based on information currently available to us that the final outcome of these proceedings will have a material adverse effect on our consolidated financial position, results of operations or cash flows.
Legal-Cendant Corporate Litigation
Pursuant to the Separation and Distribution Agreement dated as of July 27, 2006 among Cendant, Realogy, Wyndham Worldwide and Travelport, each of Realogy, Wyndham Worldwide and Travelport have assumed under the Separation and Distribution Agreement certain contingent and other corporate liabilities (and related costs and expenses), which are primarily related to each of their respective businesses. In addition, Realogy has assumed 62.5% and Wyndham Worldwide has assumed 37.5% of certain contingent and other corporate liabilities (and related costs and expenses) of Cendant or its subsidiaries, which are not primarily related to any of the respective businesses of Realogy, Wyndham Worldwide, Travelport and/or Cendant’s vehicle rental operations, in each case incurred or allegedly incurred on or prior to the date of the separation of Travelport from Cendant. Such litigation includes the litigation described below.
CSI Investment et. al. vs. Cendant et. al., (Case No. 1:00-CV-01422 (DAB-DFE) (S.D.N.Y.) (“Credentials Litigation”) is an action for breach of contract and fraud arising out of Cendant’s acquisition of the Credentials business in 1998. The Credentials Litigation commenced in February 2000 and was filed against Cendant and its senior management. The Stock Purchase Agreement provided for the sale of Credentials Services International to Cendant for a set price of $125 million plus an additional amount which was contingent on Credentials’ future performance. The closing occurred just prior to Cendant’s April 15, 1998 disclosure of potential accounting irregularities relating to CUC. Plaintiffs seek payment of certain “hold back” monies in the total amount of $5.7 million, as well as a contingent payment based upon future performance that plaintiffs contend should have been approximately $50 million. The case has been delayed or impeded over time as a result of the Cendant securities case and the criminal proceedings against certain former CUC management.
On September 7, 2007, the Court granted summary judgment to dismiss plaintiffs’ fraud claims and to grant plaintiffs’ motion for the hold back monies. In addition, the Court granted summary judgment in favor of the plaintiffs’ motion, ruling that defendants breached the stock purchase agreement. The Court awarded damages together with interest accruing to the date of the summary judgment order of approximately $94 million, and sanctions against Cendant in the amount of $720,000. The Court also determined that Cendant was required to pay plaintiffs’ reasonable attorneys fees.
On May 7, 2008, the Court denied Cendant’s and the plaintiffs’ motions for reconsideration and entered judgment against Cendant and the other defendants on May 15, 2008.
Cendant filed a notice of appeal on May 23, 2008 and appellate bonds were posted in the aggregate amount of approximately $108.6 million (Realogy for the benefit of Cendant posting a bond for 62.5% thereof, or approximately $67.9 million, and Wyndham Worldwide Corporation for the benefit of Cendant posting a bond for 37.5% thereof, or approximately $40.7 million). On June 2, 2008, Plaintiffs filed a notice of cross appeal. Also on June 2, 2008, the Court stayed plaintiffs’ application for attorneys’ fees pending the outcome of the appeal.
On September 12, 2008, Cendant filed its initial appellate brief with the Court and in October 2008, Realogy and Wyndham paid their proportionate share of the $720,000 of sanctions awarded against Cendant. Plaintiffs filed their opposition brief and opening brief on their cross appeal on November 26, 2008. Cendant’s reply brief and response on the cross-appeal was filed on January 23, 2009. Plaintiffs’ reply brief on their cross appeal is due to be filed on February 27, 2009. Oral argument is expected to take place in the spring of 2009.
Regulatory Proceedings
Under the Tax Sharing Agreement, we are responsible for 62.5% of any payments made to the IRS to settle claims with respect to tax periods ending on or prior to December 31, 2006. Our Consolidated Balance Sheet at December 31, 2008 reflects liabilities to our former parent of $366 million relating to tax matters for which we have potential liability under the Tax Sharing Agreement.
In 2007, Cendant and the Internal Revenue Service (“IRS”) settled the IRS examination for Cendant’s taxable years 1998 through 2002, during which the Company was included in Cendant’s tax returns. The settlement includes the favorable resolution of the stockholder litigation issue, which as discussed in “Item 7 - Management’s Discussion and Analysis of Financial Condition and Results of Operations,” is reflected in the reduction in amounts “Due to Former Parent” set forth on our Consolidated Balance Sheet. The Company was adequately reserved for this audit cycle and has reflected the results of that examination in these financial statements. The IRS is continuing its examination of Cendant’s taxable years 2003 through 2006, during which the Company was included in Cendant’s tax returns. Although the Company and Cendant believe there is appropriate support for the positions taken on its tax returns, the Company and Cendant have recorded liabilities representing the best estimates of the probable loss on certain positions.
The Company and Cendant believe that the accruals for tax liabilities are adequate for all open years, based on assessment of many factors including past experience and interpretations of tax law applied to the facts of each matter.
Although the Company believes its recorded assets and liabilities are reasonable, tax regulations are subject to interpretation and tax litigation is inherently uncertain; therefore, the Company’s assessments can involve a series of complex judgments about future events and rely heavily on estimates and assumptions. While the Company believes that the estimates and assumptions supporting its assessments are reasonable, the final determination of tax audits and any related litigation could be materially different than that which is reflected in historical income tax provisions and recorded assets and liabilities. The results of an audit or litigation could have a material effect on our net income and cash flows in the period or periods for which the determination is made.
ITEM 4.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
PART II
ITEM 5.
ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
We are a wholly-owned subsidiary of Intermediate, which is wholly owned by Holdings. There is no established trading market for our common stock. As of February 23, 2009, approximately 98.7% of the common stock of Holdings was held by investment funds affiliated with our principal equity sponsor, Apollo Management, L.P. and an investment fund of co-investors managed by Apollo (collectively, “Apollo”).
Since the Acquisition, we have paid no cash dividends in respect of our common stock. Our senior secured credit facility and the indentures governing our Unsecured Notes contain covenants that limit our ability to pay dividends.
ITEM 6.
ITEM 6. SELECTED FINANCIAL DATA
The following table presents our selected historical consolidated and combined financial data and operating statistics. The consolidated and combined statement of operations data for each of the years in the three-year period ended December 31, 2008 and the consolidated balance sheet data as of December 31, 2008 and 2007 have been derived from our audited consolidated financial statements included elsewhere herein. The combined statement of operations data of the Predecessor for the years ended December 31, 2005 and 2004 and the combined balance sheet data as of December 31, 2006, 2005 and 2004 have been derived from our combined financial statements not included elsewhere herein.
Although Realogy continued as the same legal entity after the Merger, the consolidated financial statements for 2007 are presented for two periods: January 1 through April 9, 2007 (the “Predecessor Period” or “Predecessor,” as context requires) and April 10 through December 31, 2007 (the “Successor Period” or “Successor,” as context requires), which relate to the period preceding the Merger and the period succeeding the Merger, respectively. The results of the Successor are not comparable to the results of the Predecessor due to the difference in the basis of presentation of purchase accounting as compared to historical cost. The consolidated statement of operations data for the period January 1, 2007 to April 9, 2007 are derived from the audited financial statements of the Predecessor included elsewhere in this Annual Report, and the consolidated statement of operations data for the period April 10, 2007 to December 31, 2007 are derived from the audited financial statements of the Successor included elsewhere in this Annual Report. In the opinion of management, the statement of operations data for 2007 include all adjustments (consisting only of normal recurring accruals) necessary for a fair presentation of the results of operations as of the dates and for the periods indicated. The results for periods of less than a full year are not necessarily indicative of the results to be expected for any interim period or for a full year.
The selected historical consolidated and combined financial data and operating statistics presented below should be read in conjunction with our annual consolidated and combined financial statements and accompanying notes and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere herein. Our annual consolidated and combined financial information may not be indicative of our future performance and does not necessarily reflect what our financial position and results of operations would have been prior to August 1, 2006 had we operated as a separate, stand-alone entity during the periods presented, including changes that occurred in our operations and capitalization as a result of the separation and distribution from Cendant.
(a) Represents the portion of relocation receivables and advances, relocation properties held for sale and other related assets that collateralize our securitization obligations. Refer to Note 8 “Long and Short Term Debt” in the consolidated and combined financial statements for further information.
(b) For December 31, 2004 to 2005, this represents Cendant’s net investment (capital contributions and earnings from operations less dividends) in Realogy and accumulated other comprehensive income. In 2006, stockholders’ equity decreased $1,084 million driven by $2,183 million of net distributions payments made to Cendant related to the separation from Cendant and our repurchase of $884 million (approximately 38 million shares) of Realogy common stock offset by $1,454 million of distributions received from Cendant’s sale of Travelport and net income earned during the year ended December 31, 2006. In 2007 and 2008, stockholder’s equity is comprised of the capital contribution of $2,001 million from affiliates of Apollo and co-investors offset by the net loss for the period.
(c) A closed homesale side represents either the “buy” side or the “sell” side of a homesale transaction.
(d) These amounts include only those relating to third-party franchisees and do not include amounts relating to the Company Owned Real Estate Brokerage Services segment.
(e) Represents the average selling price of closed homesale transactions.
(f) Represents the average commission rate earned on either the “buy” side or “sell” side of a homesale transaction.
(g) Represents the average percentage of our franchisees’ commission revenues (excluding NRT) paid to the Real Estate Franchise Services segment as a royalty.
(h) Represents net domestic royalties earned from our franchisees (excluding NRT) divided by the total number of our franchisees’ closed homesale sides.
(i) Our real estate brokerage business has a significant concentration of offices and transactions in geographic regions where home prices are at the higher end of the U.S. real estate market, particularly the east and west coasts. The real estate franchise business has franchised offices that are more widely dispersed across the United States than our real estate brokerage operations. Accordingly, operating results and homesale statistics may differ between our brokerage and franchise businesses based upon geographic presence and the corresponding homesale activity in each geographic region.
(j) Represents gross commission income divided by closed homesale sides.
(k) Represents the total number of transferees served by the relocation services business.
(l) Represents the number of referrals from which we earned revenue from real estate brokers.
(m) Represents the number of title and closing units processed as a result of a home purchases. The amounts presented for the year ended December 31, 2006 include 31,018 purchase units as a result of the acquisition of Texas American Title Company on January 6, 2006.
(n) Represents the number of title and closing units processed as a result of homeowners refinancing their home loans. The amounts presented for the year ended December 31, 2006 include 1,255 refinance units as a result of the acquisition of Texas American Title Company.
(o) Represents the average fee we earn on purchase title and refinancing title units.
In presenting the financial data above in conformity with general accepted accounting principles, we are required to make estimates and assumptions that affect the amounts reported. See “Item 7
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis presents a review of Realogy and its subsidiaries. This discussion should be read in conjunction with our consolidated and combined financial statements and accompanying notes thereto included elsewhere herein. Unless otherwise noted, all dollar amounts are in millions and those relating to our results of operations are presented before taxes. This Management’s Discussion and Analysis of Financial Condition and Results of Operations contains forward-looking statements. See “Special Note Regarding Forward-Looking Statements” and “Item 1A - Risk Factors” for a discussion of the uncertainties, risks and assumptions associated with these statements. Actual results may differ materially from those contained in any forward looking statements.
Overview
We are a global provider of real estate and relocation services and report our operations in the following four segments:
•
Real Estate Franchise Services-(known as Realogy Franchise Group or RFG)-franchises the Century 21®, Coldwell Banker®, ERA®, Sotheby’s International Realty®, Coldwell Banker Commercial® and Better Homes and Gardens® Real Estate brand names. We launched the Better Homes and Gardens® Real Estate brand in July 2008. As of December 31, 2008, we had approximately 15,600 franchised and company owned offices and 285,000 sales associates operating under our brands in the U.S. and 94 other countries and territories around the world, which included approximately 835 of our company owned and operated brokerage offices with approximately 50,800 sales associates.
•
Company Owned Real Estate Brokerage Services (known as NRT)-operates a full-service real estate brokerage business principally under the Coldwell Banker®, ERA®, Corcoran Group® and Sotheby’s International Realty® brand names. In addition, we operate a large independent real estate owned (“REO”) residential asset manager, which focuses on bank-owned properties.
•
Relocation Services (known as Cartus)-primarily offers clients employee relocation services such as home sale assistance, home finding and other destination services, expense processing, relocation policy counseling and other consulting services, arranging household goods moving services, visa and immigration support, intercultural and language training and group move management services.
•
Title and Settlement Services (known as Title Resource Group or TRG)-provides full-service title, settlement and vendor management services to real estate companies, affinity groups, corporations and financial institutions with many of these services provided in connection with the Company’s real estate brokerage and relocation services business.
As discussed under the heading “Industry Trends,” the domestic residential real estate market is in a significant and prolonged downturn. As a result, our results of operations during the past three years have been materially adversely affected. Although cyclical patterns are typical in the housing industry, the depth and length of the current downturn has proved exceedingly difficult to predict. Despite the current downturn, we believe that the housing market will benefit over the long-term from expected positive long-term demographic trends, such as population growth, and increases in the number of U.S. households, as well as economic fundamentals, such as rising gross domestic product, among others.
July 2006 Separation from Cendant
Realogy was incorporated on January 27, 2006 to facilitate a plan by Cendant Corporation to separate into four independent companies-one for each of Cendant’s real estate services, travel distribution services (“Travelport”), hospitality services (including timeshare resorts) (“Wyndham Worldwide”) and vehicle rental businesses (“Avis Budget Group”). Prior to July 31, 2006, the assets of the real estate services businesses of Cendant were transferred to Realogy and on July 31, 2006, Cendant distributed all of the shares of our common
stock held by it to the holders of Cendant common stock issued and outstanding on the record date for the distribution, which was July 21, 2006 (the “Separation”). The Separation was effective on July 31, 2006.
Before our Separation from Cendant, we entered into a Separation and Distribution Agreement, a Tax Sharing Agreement and several other agreements with Cendant and Cendant’s other businesses to effect the separation and distribution and provide a framework for our relationships with Cendant and Cendant’s other businesses after the separation. These agreements govern the relationships among us, Cendant, Wyndham Worldwide and Travelport subsequent to the completion of the separation plan and provide for the allocation among us, Cendant, Wyndham Worldwide and Travelport of Cendant’s assets, liabilities and obligations attributable to periods prior to our separation from Cendant. See Note 14 “Separation Adjustments and Transactions with Former Parent and Subsidiaries” to the consolidated and combined financial statements for further information.
The accompanying consolidated and combined financial statements of the Company and Predecessor reflect the consolidated operations of Realogy Corporation and its subsidiaries as a separate, stand-alone entity subsequent to July 31, 2006, combined with the historical operations of the real estate services businesses which were operated as part of Cendant prior to July 31, 2006. These financial statements include the entities in which Realogy directly or indirectly has a controlling financial interest and various entities in which Realogy has investments recorded under the equity method of accounting.
Our combined results of operations, financial position and cash flows for the period prior to August 1, 2006, may not be indicative of our future performance and do not necessarily reflect what our combined results of operations, financial position and cash flows would have been had the Company operated as a separate, stand-alone entity during the periods presented, including changes in its operations and capitalization as a result of the Separation from Cendant.
April 2007 Merger Agreement with Affiliates of Apollo
On December 15, 2006, we entered into an agreement and plan of merger (the “Merger”) with Domus Holdings Corp. (“Holdings”) and Domus Acquisition Corp. which are affiliates of Apollo Management VI, L.P., an entity affiliated with Apollo Management, L.P. (collectively referred to as “Apollo”). Under the merger agreement, Holdings would acquire the outstanding shares of Realogy pursuant to the merger of Domus Acquisition Corp. with and into Realogy, with Realogy being the surviving entity (the “Merger”). The Merger was consummated on April 10, 2007. All of Realogy’s issued and outstanding common stock is currently owned by a direct wholly owned subsidiary of Holdings, Domus Intermediate Holdings Corp. (“Intermediate”).
The Company incurred substantial indebtedness in connection with the transaction, the aggregate proceeds of which were sufficient to pay the aggregate merger consideration, repay a portion of the Company’s then outstanding indebtedness and pay fees and expenses related to the Merger. Specifically, the Company entered into a senior secured credit facility, issued unsecured notes and refinanced the credit facilities governing the Company’s relocation securitization programs (collectively, the “Transactions”). See “-Liquidity and Capital Resources” for additional information on the Transactions. In addition, investment funds affiliated with Apollo and an investment fund of co-investors managed by Apollo, as well as members of the Company’s management who purchased Holdings common stock with cash or through rollover equity, contributed $2,001 million to the Company to complete the Transactions, which was treated as a contribution to our equity.
Although Realogy continues as the same legal entity after the Merger, the Consolidated Statements of Operations and Cash Flows are presented for two periods: January 1 through April 9, 2007 (the “Predecessor Period” or “Predecessor,” as context requires) and April 10, 2007 through December 31, 2007 (the “Successor Period” or “Successor,” as context requires), which relate to the period preceding the Merger and the period succeeding the Merger, respectively. The combined results for the period ended December 31, 2007 represent the addition of the Predecessor and Successor Periods as well as the pro forma adjustments to reflect the Transactions as if they occurred on January 1, 2007 (“pro forma combined”). This combination does not comply
with U.S. GAAP, but is presented because we believe it provides the most meaningful comparison of our results. The consolidated financial statements for the Successor Period reflect the acquisition of Realogy under the purchase method of accounting in accordance with Statement of Financial Accounting Standard (‘SFAS”) No. 141, “Business Combinations” (“SFAS No. 141”). The results of the Successor are not comparable to the results of the Predecessor due to the difference in the basis of presentation of purchase accounting as compared to historical cost. The pro forma combined results do not reflect the actual results we would have achieved had the Merger been completed as of the beginning of the year and are not indicative of our future results of operations.
The aggregate consideration paid in the Merger has been allocated to state the acquired assets and liabilities at fair value as of the acquisition date. The fair value adjustments (i) increased the carrying value of certain of our assets and liabilities, (ii) established or increased the carrying value of intangible assets for our tradenames, customer relationships, franchise agreements and pendings and listings and (iii) revalued our long-term benefit plan obligations and insurance obligations, among other things. Subsequent to the Merger, interest expense and non-cash depreciation and amortization expense have significantly increased and we are significantly leveraged. As a result, the current downturn in the housing market has adversely impacted our business and results of operations and our significant level of indebtedness makes us more vulnerable to a prolonged downturn in the residential real estate market and an economic slowdown or recession as more fully described under “Item 1A. Risk Factors” in this Annual Report.
Impairment of Goodwill and Intangible Assets
During the fourth quarter of 2007, the Company performed its annual impairment analysis of goodwill and unamortized intangible assets. This analysis resulted in an impairment charge of $667 million ($445 million, net of income tax benefit). The impairment charge reduced intangible assets by $550 million and reduced goodwill by $117 million. The impairment charge impacted the Real Estate Franchise Services segment by $513 million, the Relocation Services segment by $40 million and the Title and Settlement Services segment by $114 million. The impairment was the result of the continued downturn in the residential real estate market in 2007 as well as reduced short term financial projections. The impairment charge is recorded on a separate line in the accompanying consolidated and combined statements of operations and is non-cash in nature.
During the fourth quarter of 2008, the Company performed its annual impairment analysis of goodwill and unamortized intangible assets. This analysis resulted in an impairment charge of $1,739 million ($1,523 million, net of income tax benefit). The impairment charge reduced intangible assets by $384 million and reduced goodwill by $1,355 million. The impairment charge impacted the Real Estate Franchise Services segment by $953 million, the Company Owned Real Estate Brokerage services segment by $162 million, the Relocation Services segment by $335 million and the Title and Settlement Services segment by $289 million. The impairment is the result of the worsening macro-economic factors during 2008, particularly during the fourth quarter of 2008 with the systematic failure of financial institutions and the related tightening of the credit markets and the deepening recession and increasing levels of unemployment. The worsening macro-economic factors have adversely affected the Company’s operations and negatively impacted the Company’s financial projections. The impairment charge is recorded on a separate line in the accompanying consolidated statements of operations and is non-cash in nature.
For 2007 and 2008, the Company has incurred the following impairment charges to goodwill and intangible assets:
In addition, in 2008, the Company recorded impairment charges of $50 million related to investments in unconsolidated entities as a result of lower long term financial forecasts and a higher weighted average cost of capital.
Current Industry Trends
Our businesses compete primarily in the domestic residential real estate market, which currently is in a significant and prolonged downturn that initially began in the second half of 2005. Leading up to 2005, home prices and the number of homesale transactions rose rapidly in the first half of the decade due to a combination of factors including (1) increased owner-occupant demand for larger and more expensive homes made possible by unusually favorable financing terms for both prime and sub-prime borrowers, (2) low interest rates, (3) record appreciation in housing prices driven partially by investment speculation, (4) the growth of the mortgage-backed securities market as an alternative source of capital to the mortgage market and (5) high credit ratings for mortgage backed securities despite increasing inclusion of subprime loans made to buyers relying upon continuing home price appreciation rather than more traditional underwriting standards.
As housing prices rose even higher, the number of U.S. homesale transactions first slowed, then began decreasing in 2006. This declining trend has continued from 2006 through the present period. In certain locations, the number of homesale transactions has fallen far more dramatically than for the country as a whole-the hardest hit areas have been those areas that had experienced the greatest speculation and year over year price appreciation. The overall slowdown in transaction activity has caused a buildup of large inventories of housing, an increase in short sale and foreclosure activity, particularly in states such as California and Florida that benefited more than average from the housing growth in the first half of the decade, and a contraction of the market for mortgage financing, all of which have contributed to heightened buyer caution regarding timing and pricing. The result has been downward pressure on home prices from 2007 through the present period.
The housing market is also being impacted by consumer sentiment about the overall state of the economy, particularly mounting consumer anxiety over negative economic growth and rising unemployment. The quickly deteriorating conditions in the job market, stock market and consumer confidence in the fourth quarter of 2008 have caused a further decrease in homesale transactions and more downward pressure on homesale prices. According to the Conference Board, a New York based industry research group, consumer confidence decreased from 90.6 percent in December 2007 to 50.4 percent in June 2008 and then fell further to 25.0 percent in February 2009, a new all-time low.
A continued decline in homesale transactions or prices due to some or all of the factors discussed above will adversely affect our revenue and profitability. Although cyclical patterns are typical in the housing industry, the depth and length of the current downturn has proven exceedingly difficult to predict.
Our relocation services business is a global provider of outsourced employee relocation services. In addition to general residential housing trends, key drivers of our relocation services business are corporate spending and employment trends which have been negatively impacted by the negative economic growth and rising unemployment.
Homesales
During the first half of this decade, based on information published by NAR, existing homesales volumes have risen to their highest levels in history. That growth rate reversed in 2006 and continued to decline through 2008 as reflected in the table below. Our recent financial results confirm that this negative trend continued into 2008 as evidenced by homesale side declines in our Real Estate Franchise Services and Company Owned Real Estate Brokerage Services businesses which for the year ended December 31, 2008 experienced closed homesale side decreases of (18%) and (16%), respectively, compared to the year ended December 31, 2007.
(a)
Existing homesale data is as of February 2009 for NAR and FNMA.
For 2009 compared to 2008, NAR, as of February 2009, forecasts an increase in existing homesale transactions of 4% and FNMA, as of February 2009, forecasts that existing homesale transactions will be down 4%.
Existing homesale volume was reported by NAR to be approximately 4.9 million homes for 2008 compared to 5.7 million homes for 2007, which was down from 6.5 million homes in 2006 versus the high of 7.1 million homes in 2005. Our recent financial results confirm this trend as evidenced by our homesale side declines in our Real Estate Franchise Services and Company Owned Real Estate Brokerage Services businesses.
Homesale Price
Based upon information published by NAR, the national median price of existing homes increased from 2001 to 2005 at a compound annual growth rate, or CAGR, of 7.3% compared to a CAGR of 3.0% from 1972 to 2000. According to NAR, the rate of increase slowed significantly in 2006 and declined for the first time since 1972 in 2007 and 2008 as reflected in the table below. Our recent financial results confirm that this declining pricing trend continued into 2008 as evidenced by homesale price declines in our Real Estate Franchise Services and Company Owned Real Estate Brokerage Services businesses which for the year ended December 31, 2008 experienced average closed homesale price decreases of (7%) and (10%), respectively, compared to the year ended December 31, 2007. Furthermore, the decrease in average homesale price for the Company Owned Real Estate Brokerage Services segment is also being impacted by a shift in the mix and volume of its overall homesale activity from higher price point areas to lower price point areas as well as an increase in REO activities.
(a) Existing homesale price data is for median price and is as of February 2009 for NAR and FNMA.
For 2009 compared to 2008, NAR and FNMA as of February 2009 forecast a decrease in median homesale price of 3% and 9%, respectively.
***
While NAR and FNMA are two indicators of the direction of the residential housing market, we believe that homesale statistics will continue to vary between us and NAR and FNMA because they use survey data in their historical reports and forecasting models whereas we report based on actual results. In addition to the differences in calculation methodologies, there are geographical differences and concentrations in the markets in which we operate versus the national market. For instance, comparability is impaired due to NAR’s utilization of seasonally adjusted annualized rates whereas we report actual period over period changes and their use of median price for their forecasts compared to our average price. Further, differences in weighting by state may contribute to significant statistical variations.
Home Inventory
According to NAR, the number of existing homes for sale increased from 3.45 million homes at December 2006 to 3.97 million homes at December 2007. This increase in homes represents an increase of 2.4 months of supply from 6.5 months at December 2006 to 8.9 months at December 2007. At December 2008, the number of existing homes for sale was 3.7 million homes, which represents a seasonally adjusted 9.4 months of supply, which represents a decrease in inventory from November 2008 when there was 11.2 months of supply. This historically high level of supply could continue to add downward pressure to the price of existing homesales.
Housing Affordability Index
According to NAR, the housing affordability index had continued to improve as a result of the homesale price declines experienced in 2007 and 2008 and could favorably impact a housing recovery. An index above 100 signifies that a family earning the median income has more than enough income to qualify for a mortgage loan on a median-priced home, assuming a 20 percent down payment. The housing affordability index was 129 for 2008 compared to 112 for 2007 and 106 for 2006.
Other Factors
Interest rates continue to be at historically low levels. According to Freddie Mac, interest rates on commitments for fixed-rate first mortgages have decreased from 6.41% in 2006 to 6.34% in 2007 and further to 6.03% in 2008.
During the current downturn in the residential real estate market, certain of our franchisees have experienced operating difficulties. As a result, we have had to record bad debt expense of $24 million and development advance note reserve expense of $11 million in 2008. In addition, we have had to terminate franchisees more frequently due to their performance and non-payment. We are actively monitoring the collectability of receivables and notes from our franchisees due to the current state of the housing market and this assessment could result in an increase in our bad debts reserve and reserve for development advance notes in the future.
The real estate industry generally benefits from rising home prices and increased volume of homesales and conversely is harmed by falling prices and falling volume of homesales. The business also is affected by interest rate volatility. Also, as noted above, tightened mortgage underwriting criteria limits many customers’ ability to qualify for a mortgage. If mortgage rates fall or remain low, the number of homesale transactions may increase as homeowners choose to move because financing appears affordable or renters decide to purchase a home for the first time. If inflation concerns become more prevalent and interest rates rise, the number of homesale transactions may decrease as potential home sellers choose to stay with their current mortgage and potential home buyers choose to rent rather than pay higher mortgage rates.
We believe that long-term demand for housing and the growth of our industry is primarily driven by affordability, the economic health of the domestic economy, positive demographic trends such as population growth, increasing home ownership rates, interest rate trends and locally based dynamics such as housing demand relative to housing supply. Although we see improvement in affordability and a slight lessening in the overhang of housing inventory, we are not certain when credit markets and the job market will return to a more normal state or the general economy will improve. Consequently, we cannot predict when the market and related economic forces will return the residential real estate industry to a growth period.
Key Drivers of Our Businesses
Within our Real Estate Franchise Services segment and our Company Owned Real Estate Brokerage Services segment, we measure operating performance using the following key operating statistics: (i) closed homesale sides, which represents either the “buy” side or the “sell” side of a homesale transaction, (ii) average homesale price, which represents the average selling price of closed homesale transactions, (iii) average homesale broker commission rate, which represents the average commission rate earned on either the “buy” side or “sell” side of a homesale transaction and (iv) in our Company Owned Real Estate Brokerage Services segment, gross commission per side which represents the average commission we earn before expenses.
Prior to 2006, the average homesale broker commission rate had been declining several basis points per year, the effect of which was, prior to 2006, more than offset by increases in homesale prices. From 2006 through 2008, the average broker commission rate our franchisees charge their customer and we charge our customer has remained stable (within five basis points); however, we expect that, over the long term, the modestly declining trend in average brokerage commission rates will continue.
In addition, in our Real Estate Franchise Services segment, we are also impacted by the net effective royalty rate, which represents the average percentage of our franchisees’ commission revenues paid to our Real Estate Franchise Services segment as a royalty per side. Our Company Owned Real Estate Brokerage Services segment has a significant concentration of real estate brokerage offices and transactions in geographic regions where home prices are at the higher end of the U.S. real estate market, particularly the east and west coasts, while our Real Estate Franchise Services segment has franchised offices that are more widely dispersed across the United States. Accordingly, operating results and homesale statistics may differ between our Company Owned Real Estate Brokerage Services segment and our Real Estate Franchise Services segment based upon geographic presence and the corresponding homesale activity in each geographic region.
Within our Relocation Services segment, we measure operating performance using the following key operating statistics: (i) initiations, which represents the total number of transferees we serve and (ii) referrals, which represents the number of referrals from which we earned revenue from real estate brokers. In our Title and Settlement Services segment, operating performance is evaluated using the following key metrics: (i) purchase title and closing units, which represents the number of title and closing units processed as a result of home purchases, (ii) refinance title and closing units, which represents the number of title and closing units processed as a result of homeowners refinancing their home loans, and (iii) average price per closing unit, which represents the average fee we earn on purchase title and refinancing title sides.
Of these measures, closed homesale sides, average homesale price and average broker commission rate are the most critical to our business and therefore have the greatest impact on our net income (loss) and segment “EBITDA,” which is defined as net income (loss) before depreciation and amortization, interest (income) expense, net (other than Relocation Services interest for securitization assets and securitization obligations) and income taxes, each of which is presented on our Consolidated and Combined Statements of Operations.
The sustained decline in existing homesales and sustained decline in home prices has and could continue to adversely affect our results of operations by reducing the royalties we receive from our franchisees and company owned brokerages, reducing the commissions our company owned brokerage operations earn, reducing the demand for our title and settlement services and reducing the referral fees earned by our relocation services business. Our results could also be negatively affected by a decline in commission rates charged by brokers.
The following table presents our drivers for the years ended December 31, 2008 and 2007. See “Results of Operations” below for a discussion as to how the material drivers affected our business for the periods presented.
(a) Includes all franchisees except for our Company Owned Real Estate Brokerage Services segment.
The following table presents our drivers for the years ended December 31, 2007 and 2006. See “Results of Operations” below for a discussion as to how the drivers affected our business for the periods presented.
(a) Includes all franchisees except for our Company Owned Real Estate Brokerage Services segment.
The following table represents the impact of our revenue drivers on our business operations.
The following table sets forth the impact on segment EBITDA for the year ended December 31, 2008 assuming actual homesale sides and average selling price of closed homesale transactions, with all else being equal, increased or decreased by 1%, 3% and 5%.
(1) Average price represents the average selling price of closed homesale transactions.
(2) Increase/(decrease) relates to impact on non-company owned real estate brokerage operations only.
(3) Increase/(decrease) represents impact on company owned real estate brokerage operations and related intercompany royalties to our real estate franchise services operations.
Results of Operations
Discussed below are our consolidated and combined results of operations and the results of operations for each of our reportable segments. The reportable segments presented below represent our operating segments for which separate financial information is available and which is utilized on a regular basis by our chief operating
decision maker to assess performance and to allocate resources. In identifying our reportable segments, we also consider the nature of services provided by our operating segments. Management evaluates the operating results of each of our reportable segments based upon revenue and EBITDA. Our presentation of EBITDA may not be comparable to similarly-titled measures used by other companies.
Pro Forma Combined Statement of Operations
The following pro forma combined statement of operations data for the year ended December 31, 2007 has been derived from our historical consolidated financial statements included elsewhere herein and has been prepared to give effect to the Transactions, assuming that the Transactions occurred on January 1, 2007.
The unaudited pro forma combined statement of operations for the year ended December 31, 2007 has been adjusted to reflect:
•
the elimination of certain costs relating to the Merger;
•
the elimination of certain revenues and expenses that resulted from changes in the estimated fair value of assets and liabilities (as discussed in more detail below) as a result of purchase accounting;
•
additional indebtedness incurred in connection with the Transactions;
•
transaction fees and debt issuance costs incurred as a result of the Transactions;
•
incremental interest expense resulting from additional indebtedness incurred in connection with the Transactions; and
•
incremental borrowing costs as a result of the relocation securitization refinancings.
The pro forma combined statement of operations for the year ended December 31, 2007 does not give effect to the following non-recurring items that were realized in connection with the Transactions: (i) the amortization of a pendings and listings intangible asset of $337 million that was recognized in the opening balance sheet and is amortized over the estimated closing period of the underlying contract (in most cases approximately 5 months), (ii) merger costs of $104 million which is comprised primarily of $56 million for the accelerated vesting of stock based incentive awards granted by the Company, $25 million of employee retention and supplemental bonus costs incurred in connection with the Transactions and $19 million of professional costs incurred by the Company in connection with the Merger, (iii) the expense of certain executive Separation benefits in the amount of $50 million and (iv) the elimination of $18 million of non-recurring fair value adjustments for purchase accounting.
In addition, the unaudited pro forma combined statement of operations does not give effect to certain of the adjustments reflected in our Adjusted EBITDA, as presented under “EBITDA and Adjusted EBITDA”.
Assumptions underlying the pro forma adjustments are described in the accompanying notes, which should be read in conjunction with this pro forma combined statement of operations.
Management believes that the assumptions used to derive the pro forma combined statement of operations are reasonable given the information available; however, such assumptions are subject to change and the effect of any such change could be material. The pro forma combined statement of operations has been provided for informational purposes only and is not necessarily indicative of the results of future operations or the actual results that would have been achieved had the Transactions occurred on the date indicated.
Realogy Corporation and the Predecessor
Unaudited Pro Forma Combined Statement of Operations
For the Year ended December 31, 2007
See Notes to Unaudited Pro Forma Combined Statement of Operations.
Notes to Unaudited Pro Forma Combined Statement of Operations (in millions)
(a) Reflects the elimination of the negative impact of $18 million of non-recurring fair value adjustments for purchase accounting at the operating business segments primarily related to deferred revenue, referral fees, insurance accruals and fair value adjustments on at-risk homes.
(b) Reflects the incremental borrowing costs for the period from January 1, 2007 to April 9, 2007 of $2 million as a result of the securitization facilities refinancings. The borrowings under the securitization facilities are advanced to customers of the relocation business and the Company generally earns interest income on the advances, which are recorded within other revenue net of the borrowing costs under the securitization arrangement.
(c) Reflects (i) incremental expenses for the period from January 1, 2007 to April 9, 2007 in the amount of $3 million representing the estimated annual management fee to be paid by Realogy to Apollo (as described in “ Item 13 - Certain Relationships and Related Transactions, and Director Independence-Apollo Management Fee Agreement”), and (ii) the elimination of $50 million of separation benefits payable to our former CEO upon retirement, the amount of which was determined as a result of a change in control provision in his employment agreement with the Company.
(d) Reflects the elimination of $104 million of merger costs which are comprised primarily of $56 million for the accelerated vesting of stock based incentive awards granted by the Company, $25 million of employee retention and supplemental bonus payments incurred in connection with the Transactions and $19 million of professional costs incurred by the Company associated with the Merger.
(e) Reflects an increase in amortization expenses for the period from January 1, 2007 to April 9, 2007 resulting from the values allocated on a preliminary basis to our identifiable intangible assets, less the amortization of pendings and listings. Amortization is computed using the straight-line method over the asset’s related useful life.
(f) Reflects incremental interest expense for the period from January 1, 2007 to April 9, 2007 in the amount of $104 million related to the indebtedness incurred in connection with the Merger which includes $6 million of incremental deferred financing costs amortization and $2 million of incremental bond discount amortization relating to the senior notes, senior toggle notes and senior subordinated notes.
For pro forma purposes we have assumed a weighted average interest rate of 8.24% for the variable interest rate debt under the term loan facility and the revolving credit facility, based on the 3-month LIBOR rate as of December 31, 2007. This variable interest rate debt is reduced to reflect the $775 million of floating to fixed interest rate swap agreements. A 100 bps change in the interest rate assumptions would change pro forma interest expense by approximately $24 million. The adjustment assumes straight-line amortization of capitalized financing fees over the respective maturities of the indebtedness.
(g) Reflects the estimated tax effect resulting from the pro forma adjustments at an estimated rate of 38%. We expect our tax payments in future years, however, to vary from this amount.
2007 Pro Forma Combined Revenues and EBITDA by Segment
The reportable segments information below for 2007 is presented on a pro forma combined basis and is utilized in our discussion below of the 2007 annual operating results compared to 2008 and 2006. The pro forma combined financial information is presented for information purposes only and is not intended to represent or be indicative of the consolidated results of operations or financial position that we would have reported had the Transactions been completed as of January 1, 2007 and for the period presented, and should not be taken as representative of our consolidated results of operations or financial condition for future periods.
(a) Transactions between segments are eliminated in consolidation. Revenues for the Real Estate Franchise Services segment include intercompany royalties and marketing fees paid by the Company Owned Real Estate Brokerage Services segment of $316 million for the year ended December 31, 2007. Such amounts are eliminated through the Corporate and Other line. Revenues for the Relocation Services segment include $52 million of intercompany referral and relocation fees paid by the Company Owned Real Estate Brokerage Services segment during the year ended December 31, 2007. Such amounts are recorded as contra-revenues by the Company Owned Real Estate Brokerage Services segment. There are no other material inter-segment transactions.
(b) Includes the elimination of transactions between segments.
(a) Includes $36 million of restructuring costs, $8 million of former parent legacy costs and $6 million of separation costs for the year ended December 31, 2007.
(b) 2007 EBITDA includes an impairment charge of $667 million which reduced intangible assets by $550 million and reduced goodwill by $117 million. The impairment charge impacted the Real Estate Franchise Services segment by $513 million, the Relocation Services segment by $40 million and the Title and Settlement Services segment by $114 million.
Year Ended December 31, 2008 vs. Year Ended December 31, 2007 (Pro Forma Combined)
Our consolidated results comprised the following:
(1) Total expenses for the year ended December 31, 2008 include an impairment charge of $1,789 million which reduced intangible assets by $384 million, reduced goodwill by $1,355 million and reduced investments in unconsolidated entities by $50 million, $58 million of restructuring costs and $2 million of merger cost offset by a benefit of $20 million of former parent legacy costs.
(2) Total expenses for the year ended December 31, 2007 include an impairment charge of $667 million which reduced intangible assets by $550 million and reduced goodwill by $117 million, $36 million of restructuring costs, $8 million of former parent legacy costs and $6 million of separation costs.
Net revenues decreased $1.2 billion (21%) for the year ended December 31, 2008 compared with the year ended December 31, 2007 on a pro forma combined basis principally due to a decrease in revenues for our Real Estate Franchise Services segment and our Company Owned Real Estate Brokerage segment, reflecting decreases in transaction sides volume and the average price of homes sold.
Total expenses increased $92 million (1%) primarily due to the following:
•
an incremental increase in impairment charges of $1,122 million; and
•
increased restructuring expenses of $22 million;
significantly offset by:
•
a decrease of $723 million of commission expenses paid to real estate agents as a result of the reduction in gross commission income revenues and an improvement in the commission split rate; and
•
lower operating, marketing and general and administrative expenses as a result of restructuring activities and other cost saving initiatives implemented in 2008.
Our effective tax benefit for the year ended December 31, 2008 was 17% compared to 34% for the year ended December 31, 2007. The tax benefit realized for 2008 was reduced as a result of the impairment of non-deductible goodwill and the recognition of a valuation allowance. The tax benefit realized for 2007 was reduced by tax expense related to non-deductible transaction costs incurred in connection with our acquisition by Apollo and the impairment of non-deductible goodwill.
Following is a more detailed discussion of the results of each of our reportable segments for the years ended December 31:
(*) not meaningful
(a) Revenues include the elimination of transactions between segments, which consists of intercompany royalties and marketing fees paid by our Company Owned Real Estate Brokerage Services segment of $251 million and $316 million during the year ended December 31, 2008 and 2007, respectively.
(b) 2008 EBITDA includes an impairment charge of $1,789 million, $58 million of restructuring costs and $2 million of merger cost offset by a benefit of $20 million of former parent legacy costs. The impairment charge of $1,789 million reduced intangible assets by $384 million, reduced goodwill by $1,355 million and reduced investments in unconsolidated entities by $50 million. The impairment charge impacted the Real Estate Franchise Services segment by $953 million, the Company Owned Real Estate Brokerage Services segment by $195 million, the Relocation Services segment by $335 million and the Title and Settlement Services segment by $306 million.
(c) 2007 pro forma combined EBITDA includes an impairment charge of $667 million, $36 million of restructuring costs, $6 million of separation costs and $8 million of former parent legacy costs. The impairment charge of $667 million reduced intangible assets by $550 million and reduced goodwill by $117 million. The impairment charge impacted the Real Estate Franchise Services segment by $513 million, the Relocation Services segment by $40 million and the Title and Settlement Services segment by $114 million.
As described in the aforementioned table, EBITDA margin for “Total Company” expressed as a percentage to revenues decreased 30 percentage points for the year ended December 31, 2008 compared to 2007 on a pro forma combined basis due to a decrease in EBITDA at all of the business segments as discussed below primarily related to the impairment of goodwill and intangibles. Excluding the impairment charges, “Total Company” margin would have been 8% in 2008 and 10% in 2007.
On a segment basis, the Real Estate Franchise Services segment margin decreased 94 percentage points to (93%) versus 1% in the comparable prior period on a pro forma combined basis. The year ended December 31, 2008 included a $953 million impairment of goodwill and intangible assets compared to an impairment charge of $513 million for the year ended December 31, 2007. Excluding the impairment charges, Real Estate Franchise Services segment margin would have been 55% in 2008 and 63% in 2007. The year ended December 31, 2008 also reflected a decrease in the number of homesale transactions and a decrease in average homesale price partially offset by an increase in the average homesale broker commission rate and the net effective royalty rate. The Company Owned Real Estate Brokerage Services segment margin decreased 9 percentage points to (8%) from 1% for the year ended December 31, 2007. The year ended December 31, 2008 included a $162 million impairment of intangible assets and a $33 million impairment in an investment in an unconsolidated entity. Excluding the 2008 impairment charge, Company Owned Real Estate Brokerage Services segment margin would have been (1%) in 2008. The segment margin was also impacted by a decrease in the number of homesale transactions and a decrease in the average homesale price partially offset by lower operating expenses primarily as a result of restructuring and cost saving activities. In addition, the Company Owned Real Estate Brokerage Services segment recorded its portion of an impairment charge of $31 million in equity (earnings) losses of unconsolidated entities as a result of an impairment analysis completed by PHH Home Loans. The Relocation Services segment margin decreased 67 percentage points to (57%) from 10% in the comparable prior period primarily driven by a $335 million impairment of intangible assets and goodwill compared to an impairment of $40 million in 2007, and due to lower referral fee revenues compared to the year ended December 31, 2007 offset by the positive impact related to the absence of losses in the at-risk business in 2008 due to the exit of the government portion of the business. Excluding the impairment charges, Relocation Services segment margin would have stayed flat at 17% in 2008 compared to 2007. The Title and Settlement Services segment margin decreased 68 percentage points to (94%) from (26%) in the comparable prior period. The decrease in margin profitability was mainly attributable to a $289 million impairment of intangible assets and goodwill and a $17 million impairment in an investment in an unconsolidated entity compared to an impairment of $114 million in 2007. Excluding the impairment charges, Title and Settlement Services segment margin would have been 1% in 2008 and 5% in 2007. The segment margin was also negatively impacted by reduced homesale and refinancing volume.
The Corporate and Other EBITDA for the year ended December 31, 2008 was a negative $23 million compared to a negative $60 million in the same period in 2007. The EBITDA improvement was primarily the result of former parent legacy matter benefits of $28 million as well as the receipt of $5 million of insurance proceeds.
Real Estate Franchise Services
Revenues decreased $176 million to $642 million and EBITDA decreased $602 million to a loss of $597 million for the year ended December 31, 2008 compared with 2007 on a pro forma combined basis.
We franchise our real estate brokerage franchise systems to real estate brokerage businesses that are independently owned and operated. We provide operational and administrative services, tools and systems to franchisees, which are designed to assist franchisees in achieving increased revenue and profitability. Such services include national and local advertising programs, listing and agent-recruitment tools, training and volume purchasing discounts through our preferred vendor programs. Franchise revenue principally consists of royalty and marketing fees from our franchisees. The royalty received is primarily based on a percentage of the franchisee’s commissions and/or gross commission income. Royalty fees are accrued as the underlying franchisee revenue is earned (upon close of the homesale transaction). Annual volume incentives given to certain franchisees on royalty fees are recorded as a reduction to revenue and are accrued for in relative proportion to the recognition of the underlying gross franchise revenue. Franchise revenue also includes initial franchise fees, which are generally non-refundable and are recognized by us as revenue when all material services or conditions relating to the sale have been substantially performed (generally when a franchised unit opens for business). Royalty increases or decreases are recognized with little or no corresponding increase or decrease in expenses due to the significant operating leverage within the franchise operations. In addition to royalties received from our third-party franchisees, our company owned real estate brokerage services segment continues to pay royalties to the Real Estate Franchise Services segment. However, these intercompany royalties, which approximated $237 million and $299 million during 2008 and 2007, respectively, are eliminated in consolidation through the Corporate and Other segment and therefore have no impact on consolidated and combined revenues and EBITDA, but do affect segment level revenues and EBITDA. See “Company Owned Real Estate Brokerage Services” for a discussion as to the drivers related to this period over period revenue decrease for real estate franchise services.
Apart from the $62 million decrease in intercompany royalties noted above, the decrease in revenue was primarily driven by:
•
a $78 million decrease in third-party franchisees royalty revenue due to an 18% decrease in the number of homesale transactions from our third-party franchisees and a 7% decrease in average homesale price,
•
a decrease in revenue from the sale of foreign master franchisee agreements of $23 million, and
•
an $11 million decrease in marketing revenue and related marketing expenses driven by lower sales for the year ended 2008.
The revenue decreases were partially offset by an increase in revenue from foreign franchisees of $3 million, of which, $2 million is incremental revenue from the acquisition of the Coldwell Banker Canada master franchise rights.
The decrease in EBITDA was due to the reduction in revenues noted above as well as a $953 million impairment of intangible assets in 2008 compared to an impairment of $513 million in 2007, an increase of $5 million related to the operating expenses for the Better Homes and Garden Real Estate brand, which launched in July 2008 and an increase of $7 million in bad debt expense, reserves for development advance notes and promissory notes including an increase in the amortization of development advance notes. This was partially offset by a $9 million reduction in employee related costs and benefits.
Company Owned Real Estate Brokerage Services
Revenues decreased $1,009 million to $3,561 million and EBITDA decreased $293 million to a loss of $269 million for the year ended December 31, 2008 compared with 2007 on a pro forma combined basis.
As an owner-operator of real estate brokerages, we assist home buyers and sellers in listing, marketing, selling and finding homes. We earn commissions for these services, which are recorded upon the closing of a real estate transaction (i.e., purchase or sale of a home), which we refer to as gross commission income. We then pay commissions to real estate agents, which are recognized concurrently with associated revenues. We also operate a large independent residential Real Estate Owned (“REO”) asset manager. These REO operations facilitate the maintenance and sale of foreclosed homes on behalf of lenders. The profitability of this business is countercyclical to the overall state of the housing market and is a meaningful contributor to the 2008 financial results of the Company Owned Real Estate Brokerage segment.
The decrease in revenues was substantially comprised of reduced commission income earned on homesale transactions, excluding REO revenues, of $1,046 million, which was primarily driven by a 16% decline in the number of homesale transactions, and a 10% decrease in the average price of homes sold. We believe the 16% decline in homesale transactions is reflective of industry trends in the markets we serve. The reduction in revenue was partially offset by a $50 million increase in revenues from our REO asset management company. Our REO operations facilitate the maintenance and sale of foreclosed homes on behalf of lenders and the profitability of this business is countercyclical to the overall state of the housing market.
EBITDA decreased for the year ended December 31, 2008 compared to 2007 due to the decrease in revenues discussed above and a $162 million impairment of intangible assets along with a $29 million charge recorded in equity (earnings) losses of unconsolidated entities which includes a $31 million impairment charge which, represents the Company’s portion of an impairment recorded by PHH Home Loans. The Company also performed an impairment analysis of its investment in PHH Home Loans and recognized an incremental impairment loss of $33 million. In addition, EBITDA decreased due to an increase in restructuring expenses of $19 million recognized in 2008 compared to 2007.
These negative impacts on EBITDA are offset by:
•
a decrease of $723 million in commission expenses paid to real estate agents as a result of the reduction in revenue and an improvement in the commission split rate;
•
a decrease of $62 million in royalties paid to our real estate franchise business, principally as a result of the reduction in revenues earned on homesale transactions;
•
a decrease in marketing costs of $49 million due to a shift to technology media marketing and other cost reduction initiatives; and
•
a decrease of $125 million of other operating expenses, net of inflation is primarily the result of restructuring, cost saving activities and reduced employee costs.
To counteract the EBITDA decrease, the Company has implemented significant cost saving measures which have substantially reduced fixed costs associated with operating a full service real estate brokerage business, however, the realization of these cost saving measures have been unable to fully offset the overall decline in revenues less commission expenses for the current period.
Relocation Services
Revenues decreased $80 million to $451 million and EBITDA decreased $309 million to a loss of $257 million for the year ended December 31, 2008 compared with 2007 on a pro forma combined basis.
We provide relocation services to corporate and government clients for the transfer of their employees. Such services include the purchasing and/or selling of a transferee’s home, providing home equity advances to transferees (generally guaranteed by the corporate client), expense processing, arranging household goods
moving services, home-finding and other related services. We earn revenues from fees charged to clients for the performance and/or facilitation of these services and recognize such revenue on a net basis as services are provided. In the majority of relocation transactions, the gain or loss on the sale of a transferee’s home is generally borne by the client. For all homesale transactions, the value paid to the transferee is either the value per the underlying third party buyer contract with the transferee, which results in no gain or loss to us, or the appraised value as determined by independent appraisers. We generally earn interest income on the funds we advance on behalf of the transferring employee, which is typically based on prime rate and recorded within other revenue (as is the corresponding interest expense on the securitization borrowings) in the Consolidated Statement of Operations as earned until the point of repayment by the client. Additionally, we earn revenue from real estate brokers and other third-party service providers. We recognize such fees from real estate brokers at the time the underlying property closes. For services where we pay a third-party provider on behalf of our clients, we generally earn a referral fee or commission, which is recognized at the time of completion of services.
On March 14, 2008, the Company notified the United States General Services Administration (“GSA”) that it had exercised its contractual termination rights with the GSA relating to the relocation of certain U.S. government employees. The termination of this contract significantly reduced the Company’s exposure to the purchase of at-risk homes, which, due to the downturn in the U.S. residential real estate market and the fixed fee nature of the at-risk home sale pricing structure, had become unprofitable in 2007. This termination did not apply to contracts with the FDIC, the U.S. Postal Service or to our government business in the United Kingdom, which operate under a different pricing structure.
The decrease in revenues was primarily driven by:
•
a decrease of $51 million in at-risk revenue mainly due to lower transaction volume in connection with the wind down of the government portion of our at-risk business, which was substantially completed by the end of 2008;
•
a decrease of $36 million in referral fee revenue primarily due to lower domestic transaction volume as well as decreased home values; and
•
a reduction of $2 million of net interest income primarily due to the deterioration of the spread between the rate charged to customers compared to the rate incurred for our securitization borrowings,
partially offset by:
•
$15 million of incremental international revenue due to increased transaction volume.
EBITDA was impacted by the reduction in revenues noted above and a $335 million impairment of intangible assets compared to an impairment of $40 million in 2007. In addition, EBITDA was negatively impacted by $10 million of losses related to foreign currency denominated transactions offset by a $77 million reduction in costs related to the wind down of the government portion of our at-risk business and other cost saving initiatives.
Title and Settlement Services
Revenues decreased $48 million to $322 million while EBITDA decreased $208 million to a loss of $303 million for the year ended December 31, 2008 compared with 2007 on a pro forma combined basis.
We provide title and closing services, which include title search procedures for title insurance policies, homesale escrow and other closing services. Title revenues, which are recorded net of amounts remitted to third party insurance underwriters, and title and closing service fees are recorded at the time a homesale transaction or refinancing closes. We provide many of these services to third party clients in connection with transactions generated by our company owned real estate brokerage and relocation services segments. We also provide title and closing services, including title searches, title insurance, homesale escrow and other closing services.
The decrease in revenues is primarily driven by $51 million of reduced resale volume consistent with the decline in overall homesale transactions noted in our Company Owned Real Estate Brokerage Services segment and $5 million of decreased revenues from our short term investments. These revenue decreases were partially offset by $8 million of revenue related to the consolidation of a venture that was previously accounted for using the equity method.
EBITDA decreased due to the effect of the $51 million reduction in revenues discussed above partially offset by $40 million of lower cost of sales for resales and refinancings, a $289 million impairment of intangible assets and goodwill compared to a $114 million impairment in 2007, a $17 million impairment of our investment in unconsolidated entities, an increase in legal reserves of $2 million, partially offset by $5 million in gains from the exit of existing joint venture arrangements in the third quarter of 2008.
2008 Restructuring Program
During the year ended December 31, 2008, the Company committed to various initiatives targeted principally at reducing costs and enhancing organizational efficiencies while consolidating existing processes and facilities. Total 2008 restructuring charges by segment are as follows:
The table below shows the total 2008 restructuring charges and the corresponding payments and other reductions by category:
Pro Forma Combined Year Ended December 31, 2007 vs. Year Ended December 31, 2006
Our pro forma combined results comprised the following:
(1) Total expenses for the year ended December 31, 2007 include an impairment charge of $667 million which reduced intangible assets by $550 million and reduced goodwill by $117 million, $36 million of restructuring costs, $8 million of former parent legacy costs and $6 million of separation costs. Total expenses for the year ended December 31, 2006 include $66 million of separation costs, $46 million of restructuring costs and $4 million of merger costs offset by a benefit of $38 million of former parent legacy costs.
Net revenues decreased $510 million (8%) for 2007 compared with 2006 principally due to a decrease in revenues for our Company Owned Real Estate Brokerage segment, reflecting decreases in transaction sides volume across the real estate industry, partially offset by growth in the average prices of homes sold.
Total expenses increased $1,008 million (17%) primarily due to the following:
•
an impairment charge of $667 million which reduced intangible assets by $550 million and reduced goodwill by $117 million;
•
incremental depreciation and amortization expense of $79 million primarily from the amortization of the intangible assets established from the merger with Apollo;
•
incremental interest expense of $585 million from the increased level of debt;
•
a decrease in the former parent legacy benefit of $46 million due to the favorable resolution of certain legacy matters in 2006 compared to 2007;
•
an increase of $42 million in general and administrative expense primarily due to incremental stand-alone corporate company expenses for a full year rather than four months in 2006;
offset by:
•
a decrease of $337 million in commission expenses paid to real estate agents;
•
a decrease in separation costs of $60 million in 2007 compared to 2006; and
•
lower restructuring costs of $10 million.
Our effective tax rates for the year ended December 31, 2007 was 34% compared to 39% for the year ended December 31, 2006. The tax benefit realized for 2007 was reduced by tax expense related to non-deductible transaction costs incurred in connection with our acquisition by Apollo and the impairment of non-deductible goodwill.
Following is a more detailed discussion of the results of each of our reportable segments for the years ended December 31:
(*) not meaningful
(a) Revenues include the elimination of transactions between segments, which consists of intercompany royalties and marketing fees paid by our Company Owned Real Estate Brokerage Services segment of $316 million and $327 million during the year ended December 31, 2007 and 2006, respectively. EBITDA includes unallocated corporate overhead. In 2006, the Company incurred four months of stand alone corporate costs compared to the full year for 2007.
(b) 2007 EBITDA includes an impairment charge of $667 million which reduced intangible assets by $550 million and reduced goodwill by $117 million. The impairment charge impacted the Real Estate Franchise Services segment by $513 million, the Relocation Services segment by $40 million and the Title and Settlement Services segment by $114 million.
As described in the aforementioned table, EBITDA margin for “Total Company” expressed as a percentage to revenues decreased thirteen percentage points for 2007 compared with 2006 primarily as a result of the impairment charge of $667 million for intangible assets and goodwill and lower operating results discussed below. EBITDA for 2007 includes $36 million of restructuring costs, $8 million of former parent legacy costs and $6 million of separation costs. EBITDA for 2006 includes $66 million of separation costs, $46 million of restructuring costs and $4 million of merger costs offset by a benefit of $38 million of former parent legacy costs. Certain of these costs were specific to the business segments and therefore contributed to the change in EBITDA for each of the segments discussed below.
On a segment basis, the Real Estate Franchise Services segment margin decreased sixty nine percentage points to 1% from 70% in 2006. The year ended December 31, 2007 included a $513 million impairment of intangible assets (accounted for 62 percentage points of the margin decrease) as well as a decrease in the number of homesale transactions partially offset by an increase in the net effective royalty rate and the average homesale broker commission rate. The Company Owned Real Estate Brokerage Services segment margin increased one percentage point to 1%. The year ended December 31, 2007 reflected a decrease in the number of homesale transactions partially offset by an increase in the average homesale price and reduced restructuring costs and
separation costs compared to 2006. The Relocation Services segment margin decreased ten percentage points to 10% from 20% in the comparable period primarily driven by a $40 million impairment of intangible assets and goodwill (accounted for 7 percentage points of the margin decrease) as well as increased costs related to “at-risk” homesale transactions, partially offset by a reduction in separation costs of $12 million recognized in 2006 and an increase in international revenue. The Title and Settlement Services segment margin decreased thirty seven percentage points to (26%) from 11% in 2006. The decrease in margin profitability was mainly attributable to a $114 million impairment of intangible assets and goodwill (accounted for 31 percentage points of the margin decrease) as well as reduced homesale and refinancing volume.
The Corporate and Other revenue elimination for the year ended December 31, 2007 was ($316) million compared to ($327) million in the same period in 2006. The Corporate and Other EBITDA reduction was due to incremental stand-alone corporate company expenses incurred for the full year in 2007 compared to only four months in 2006, a reduction in the former parent legacy benefit of $46 million and $15 million of management fees payable to Apollo, partially offset by a reduction of $22 million of corporate separation costs recognized in 2006.
Real Estate Franchise Services
Pro forma combined revenues and pro forma combined EBITDA decreased $61 million to $818 million and $608 million to $5 million, respectively, in 2007 compared with 2006.
The decrease in revenue is primarily driven by a $67 million decrease in domestic third-party franchisee royalty revenue which was attributable to a 19% decrease in the number of homesale transactions from our third-party franchisees and 1% decrease in the average price of homes sold. These decreases were partially offset by an increase in the average broker commission rate earned by our franchises to 2.49% in 2007 from 2.47% in 2006. The average brokerage commission rate has remained stable (within four basis points) for 2006 and 2007. Partially offsetting the revenue decline due to lower sides, the overall net effective royalty rate we earn on commission revenue generated by our franchisees increased to 5.03% in 2007 from 4.87% in 2006 as a result of lower annual volume incentives being earned by our franchisees.
The decrease in revenue was also attributable to a $28 million decrease in royalties received from our Company Owned Real Estate Brokerage Services segment which pays royalties to our real estate franchise business. These intercompany royalties, which approximated $299 million and $327 million during 2007 and 2006, respectively, are eliminated in consolidation. See “Company Owned Real Estate Brokerage Services” for a discussion as to the drivers related to this period over period revenue decrease for Real Estate Franchise Services.
Consistent with our international growth strategy, international revenues increased $14 million to $31 million in connection with the licensing of our brand names in certain countries or international regions, and an increase in revenue from foreign franchisees of $7 million, of which $3 million is incremental revenue related to the acquisition of the Coldwell Banker Canada master franchise.
We also earn marketing fees from our franchisees and utilize such fees to fund advertising campaigns on behalf of our franchisees. In arrangements under which we do not serve as an agent in coordinating advertising campaigns, marketing revenues are accrued as the revenue is earned, which occurs as related marketing expenses are incurred. We do not recognize revenues or expenses in connection with marketing fees we collect under arrangements in which we function as an agent on behalf of our franchisees.
The decrease in EBITDA for 2007 compared to 2006 is principally due to a $513 million impairment of intangible assets, the net reduction in revenues noted above as well as an increase in bad debt expense and reserves for development advance notes and promissory notes of $23 million and an increase of $13 million for sales related expenses, personnel related costs and costs for customer service activities. These decreases are partially offset by a $3 million reduction in administrative costs and an $11 million reduction in separation costs.
Company Owned Real Estate Brokerage Services
Pro forma combined revenues decreased $447 million to $4,570 million and pro forma combined EBITDA decreased $1 million to $24 million for 2007 compared with 2006.
A core part of our growth strategy is the acquisition of other real estate brokerage operations. Our acquisitions of larger real estate brokerage operations subsequent to January 1, 2006 contributed incremental revenues and EBITDA of $38 million and $6 million to 2007 operating results (the EBITDA contribution of $6 million is net of $2 million of intercompany royalties paid to the Real Estate Franchise Services segment).
Apart from these acquisitions, revenues decreased $485 million and EBITDA decreased $7 million, respectively, for 2007 compared with the same period in 2006. The decrease in organic revenues was substantially comprised of reduced commission income earned on homesale transactions, which was primarily driven by a 17% decline in the number of homesale transactions, partially offset by an 8% increase in the average price of homes sold. The same store 8% period-over-period increase in average home price is due to the geographic location of our brokerage offices and a change in mix of homesale activity toward higher price point areas. The price increase is expected to moderate and may actually decrease as the price appreciation which has occurred in certain metropolitan regions of the country moderates and is offset by homesales in other regions with lower homesale prices. The average homesale broker commission rate of 2.47% has remained stable for 2006 and 2007. We believe the 17% decline in homesale transactions is reflective of industry trends in the areas we serve.
In addition to the changes discussed in the previous paragraphs, the decrease in EBITDA for the year ended December 31, 2007 compared to the year ended December 31, 2006 was due to:
•
$9 million of additional storefront costs related to acquisitions; and
•
$10 million of management incentive based compensation:
offset by:
•
a decrease of $361 million in commission expenses paid to real estate agents as a result of the reduction in revenue and an improvement in the commission split rate as a result of certain management initiatives;
•
a reduction of $30 million in royalties paid to our real estate franchise business as a result of the reduction in revenues earned on homesale transactions;
•
a decrease in marketing costs of $22 million due to cost reduction initiatives;
•
a decrease of $60 million of operating expenses primarily as a result of the restructuring and cost saving activities initiated in the prior year, net of inflation; and
•
a reduction of $13 million of restructuring and $13 million of separation expenses recognized in 2007 compared to 2006.
Relocation Services
Pro forma combined revenues increased $22 million to $531 million and pro forma combined EBITDA decreased $51 million to $52 million for 2007 compared with 2006.
The increase in revenues was primarily driven by $21 million of incremental international revenue due to increased transaction volume, $5 million from higher referral fee revenue and $11 million from higher “at-risk” homesale service fees primarily due to a larger proportion of homes coming into inventory without a third party buyer, where we earn a higher management fee. This was partially offset by an $8 million negative impact to net interest income primarily due to higher borrowing costs under the new securitization agreements, $3 million due to lower average homesale management fees and lower volume and $2 million less net interest income due to the deterioration of the spread between the prime rate and LIBOR rate which is utilized for asset backed securitization borrowings.
In addition to the revenue changes noted above, the decrease in EBITDA is due to:
•
$49 million of increased costs related to “at-risk” homesale transactions and writedowns of homes in inventory at year end;
•
$40 million impairment of intangible assets and goodwill;
•
$8 million of incremental staffing related costs, in part, to support increased transaction volume; and
•
$7 million of increased costs to support the increase in international transaction volumes;
offset by:
•
a reduction of $16 million of separation and restructuring expenses incurred in 2006;
•
a reduction of $9 million of incentive based compensation due to the 2007 operating results; and
•
a reduction of $6 million of expenses due to the restructuring activities implemented in 2006.
Title and Settlement Services
Pro forma combined revenues decreased $35 million to $370 million and pro forma combined EBITDA decreased $138 million to a negative $95 million for 2007 compared with 2006.
The decrease in revenues is primarily driven by $36 million of reduced resale and refinancing volume consistent with the decline in overall homesale transactions noted in our Company Owned Real Estate Brokerage Services segment, partially offset by an increase of $3 million in underwriting volume as this business is expanded. EBITDA decreased due to a $114 million impairment of intangible assets and goodwill, the reduction in revenues noted above, the absence of a $2 million reduction in legal reserves recognized in 2006 and a $2 million increase in IT infrastructure costs. These decreases were partially offset by $18 million of lower cost of sales for resales and refinancings.
2007 Restructuring Program
During 2007, the Company committed to various initiatives targeted principally at reducing costs, enhancing organizational efficiency and consolidating and rationalizing existing processes and facilities. Total 2007 restructuring charges by segment are as follows:
The table below shows the total 2007 restructuring charges and the corresponding payments and other reductions by category:
FINANCIAL CONDITION, LIQUIDITY AND CAPITAL RESOURCES
FINANCIAL CONDITION
For the year ended December 31, 2008, total assets decreased $2,260 million primarily as a result of a decrease in goodwill and intangible assets of $1,355 million and $384 million, respectively, due to an impairment charge resulting from the Company’s annual impairment analysis of goodwill and unamortized intangible assets. The decrease in total assets is also due to the amortization of intangible assets of $97 million, the decrease of property and equipment, net of $105 million, a reduction in relocation properties held for sale of $161 million due to the winding down of government at-risk homesale transactions, a decrease in relocation receivables of $265 million due to lower transaction volume, and a reduction in equity investments of $92 million, partially offset by an increase in cash of $284 million. Total liabilities decreased $318 million principally due to the generation of approximately $232 million of deferred tax assets related to net operating losses, which are netted against deferred tax liabilities, decreased securitization obligations of $311 million and decreased accrued liabilities of $139 million offset by increased revolver credit facility borrowings of $515 million (in order to have cash on hand at December 31, 2008) and an increase in Senior Toggle Notes of $32 million. Total stockholders’ equity (deficit) decreased $1,942 million primarily due to the net loss for the year ended December 31, 2008.
LIQUIDITY AND CAPITAL RESOURCES
At December 31, 2008, our primary sources of liquidity are cash flows from operations and funds available under the revolving credit facility under our senior secured credit facility and our securitization facilities. Our primary continuing liquidity needs will be to finance our working capital, capital expenditures and debt service.
Cash Flows
Year ended December 31, 2008 vs. year ended December 31, 2007
At December 31, 2008, we had $437 million of cash and cash equivalents, an increase of $284 million compared to the balance of $153 million at December 31, 2007. The following table summarizes our cash flows for the year ended December 31, 2008 and 2007:
During the year ended December 31, 2008, we used $107 million of additional cash in operations as compared to 2007. Such change is principally due to weaker operating results and a decrease in accounts payable, accrued expenses and other current liabilities of $249 million offset by a reduction in relocation receivables and relocation properties held for sale of $395 million and a $90 million change in other assets partially due to the funding of the rabbi trust in 2007 for $50 million of separation benefits payable to our former CEO.
During the year ended December 31, 2008, we used $6,870 million less cash for investing activities as compared to 2007. Such change is mainly due to $6,761 million of cash which was utilized to purchase the Company in 2007 as well as decreased cash outflows for property and equipment additions of $50 million, decreased acquisition activity of $44 million, and the proceeds from the sale of a joint venture of $12 million, partially offset by $22 million related to proceeds from the sale of Affinion preferred stock and warrants in 2007 and $9 million of incremental proceeds related to the sale leaseback in 2007 vs. sale of the corporate aircraft in 2008.
During the year ended December 31, 2008, we received $6,231 million less cash from financing activities as compared to 2007. The 2007 cash flows provided from financing activities is primarily the result of $6,252 of proceeds from the credit facility and issuance of Unsecured Notes as well as the $1,999 million investment by affiliates of Apollo and co-investors offset by the repurchase of the 2006 Senior Notes, net of discount for $1,197 million and by the repayment of the old term loan facility of $600 million. The 2008 cash flows provided from financing activities is primarily the result of increased revolver credit facility borrowings of $515 million (much of which was borrowed in order to have cash on hand at December 31, 2008) partially offset by decreased securitization obligation borrowings of $389 million.
Year ended December 31, 2007 vs. year ended December 31, 2006
At December 31, 2007, we had $153 million of cash and cash equivalents, a decrease of $246 million compared to the balance of $399 million at December 31, 2006. The following table summarizes our cash flows for the years ended December 31, 2007 and 2006:
During the year ended December 31, 2007, we received $29 million less cash from operations as compared to 2006. Such change is principally due to weaker operating results partially offset by:
•
the year over year decrease in cash outflows of $242 million from relocation receivables and advances and properties held for sale was driven by the year over year decrease in our homes in inventory;
•
a net income tax refund of $19 million for the year ended December 31, 2007 compared to a net payment of income taxes of $42 million for the same period in 2006;
•
incremental accrued interest of $125 million;
•
$80 million of proceeds from the settlement agreement with Ernst & Young LLP;
•
$112 million reduction in due to former parent;
During the year ended December 31, 2007 compared to 2006, we used $6,583 million more cash for investing activities. Such change is mainly due to $6,761 million of cash which was utilized to purchase the Company partially offset by $112 million of lower cash outflows for acquisition activity at our Company Owned Real Estate Brokerage Services and Title and Settlement Services segments, $21 million of sale leaseback proceeds received related to the corporate aircraft, $28 million of lower property and equipment additions and $22 million related to proceeds from the sale of Affinion preferred stock and warrants.
During the year ended December 31, 2007 compared to 2006, we received $6,003 million of incremental cash from financing activities. The 2007 cash flows provided from financing activities is the result of $1,999 million of cash contributed by affiliates of Apollo and co-investors and $6,252 million of debt proceeds. In addition to financing the acquisition of Realogy’s outstanding common stock, the proceeds from the Apollo and co-investors cash contribution and the new debt issuances were utilized to:
•
purchase the $1,200 million of 2006 Senior Notes;
•
repay the former term loan facility of $600 million; and
•
pay related debt issuance costs of $157 million.
The 2006 cash flows provided from financing activities is mainly due to $1,436 million of proceeds received from Cendant’s sale of Travelport partially offset by the repurchase of $884 million of common stock.
Financial Obligations
2006 Senior Notes
On October 20, 2006, the Company completed a bond offering pursuant to Rule 144A under the Securities Act of 1933, as amended, for $1,200 million aggregate principal amount of senior notes (“2006 Senior Notes”).
On May 10, 2007, the Company offered to purchase the 2006 Senior Notes at 100% of their principal amount, plus accrued and unpaid interest to the payment date of July 9, 2007. The Company was required to make the offer to purchase due to the change in control that occurred as a result of the Merger and the lowering of the debt ratings applicable to the 2006 Senior Notes to non-investment grade. On July 9, 2007, the Company purchased the $1,003 million principal amount of 2006 Senior Notes that were tendered. The Company utilized the senior secured credit facility to finance the purchases of the 2006 Senior Notes and to pay related interest and fees.
In the third and fourth quarters of 2007, the Company purchased the remaining $197 million principal amount of 2006 Senior Notes in privately negotiated transactions utilizing the Senior Secured Credit Facility to pay related interest and fees. These purchases resulted in a gain on debt extinguishment of $3 million and a write off of deferred financing costs of $7 million. These amounts are recorded in interest expense in the Consolidated and Combined Statements of Operations for the year ended December 31, 2007.
Senior Secured Credit Facility
In connection with the closing of the Merger on April 10, 2007, the Company entered into a senior secured credit facility consisting of (i) a $3,170 million term loan facility (including a $1,220 million delayed draw term loan sub-facility), (ii) a $750 million revolving credit facility and (iii) a $525 million synthetic letter of credit facility. The Company utilized $1,950 million of the term loan facility to finance a portion of the Merger, including the payment of fees and expenses. The $1,220 million delayed draw term loan sub-facility was available solely to finance the refinancing of the 2006 Senior Notes. The Company utilized $1,220 million of the delayed draw facility to fund the purchases, and pay related interest and fees, of the 2006 Senior Notes in the third and fourth quarters of 2007. Interest rates with respect to term loans under the senior secured credit facility are based on, at the Company’s option, (a) adjusted LIBOR plus 3.0% or (b) the higher of the Federal Funds Effective Rate plus 0.5% and JPMorgan Chase Bank, N.A.’s prime rate (“ABR”) plus 2.0%. The term loan facility provides for quarterly amortization payments totaling 1% per annum of the principal amount with the balance due upon the final maturity date. Prior to December 31, 2008, the Company elected to borrow from its revolving credit facility in order to have cash on hand.
The Company’s senior secured credit facility provides for a six-year, $750 million revolving credit facility, which includes a $200 million letter of credit sub-facility and a $50 million swingline loan sub-facility. The Company uses the revolving credit facility for, among other things, working capital and other general corporate purposes, including permitted acquisitions and investments. Interest rates with respect to revolving loans under the senior secured credit facility are based on, at the Company’s option, adjusted LIBOR plus 2.25% or ABR plus 1.25% in each case subject to adjustment based on the attainment of certain leverage ratios.
The Company’s senior secured credit facility provides for a six-and-a-half-year $525 million synthetic letter of credit facility for which the Company pays 300 basis points in interest on amounts utilized. The capacity of the synthetic letter of credit is reduced by 1% each year and as a result the amount available was reduced to $522 million on December 31, 2007 and to $518 million at December 31, 2008. On April 26, 2007, the synthetic letter of credit facility was used to post a $500 million letter of credit to secure the fair value of the Company’s obligations in respect of Cendant’s contingent and other liabilities that were assumed under the Separation and Distribution Agreement and the remaining capacity was utilized for general corporate purposes.
The Company’s senior secured credit facility is secured to the extent legally permissible by substantially all of the assets of the Company’s parent company, the Company and the subsidiary guarantors, including but not limited to (a) a first-priority pledge of the stock of the Company and substantially all capital stock held by the Company or any subsidiary guarantor (which pledge, with respect to obligations in respect of the borrowings secured by a pledge of the stock of any first-tier foreign subsidiary, is limited to 100% of the non-voting stock (if any) and 65% of the voting stock of such foreign subsidiary), and (b) perfected first-priority security interests in substantially all tangible and intangible assets of the Company and each subsidiary guarantor, subject to certain exceptions.
At December 31, 2008, the Company had $3,123 million outstanding under the term loan facility, $515 million under the revolving credit facility, $517 million of letters of credit outstanding under our synthetic letter of credit facility and an additional $127 million of outstanding letters of credit under our revolving credit facility.
Unsecured Notes
On April 10, 2007, the Company issued a private placement of $1,700 million aggregate principal amount of 10.50% Senior Notes due 2014 (the “Fixed Rate Senior Notes”), $550 million aggregate principal amount of 11.00%/11.75% Senior Toggle Notes due 2014 (the “Senior Toggle Notes”) and $875 million aggregate principal amount of 12.375% Senior Subordinated Notes due 2015 (the “Senior Subordinated Notes”), collectively referred to as the “old notes”.
On February 15, 2008, we completed an exchange offer of exchange notes for the old notes. The exchange notes refer to the old notes, registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to a Registration Statement filed on Form S-4 and declared effective by the SEC on January 9, 2008. The term “Unsecured Notes” refers to the old notes and the exchange notes.
The Fixed Rate Senior Notes are unsecured senior obligations of the Company and will mature on April 15, 2014. Each Fixed Rate Senior Note bears interest at a rate per annum of 10.50% payable semiannually to holders of record at the close of business on April 1 and October 1 immediately preceding the interest payment dates of April 15 and October 15 of each year.
The Senior Toggle Notes are unsecured senior obligations of the Company and will mature on April 15, 2014. Interest on the Senior Toggle Notes is payable semiannually to holders of record at the close of business on April 1 or October 1 immediately preceding the interest payment date on April 15 and October 15 of each year. For any interest payment period after the initial interest payment period and through October 15, 2011, the Company may, at its option, elect to pay interest on the Senior Toggle Notes (1) entirely in cash (“Cash Interest”), (2) entirely by increasing the principal amount of the outstanding Senior Toggle Notes or by issuing Senior Toggle Notes (“PIK Interest”) or (3) 50% as Cash Interest and 50% as PIK Interest. After October 15, 2011, the Company will make all interest payments on the Senior Toggle Notes entirely in cash. Cash interest on the Senior Toggle Notes will accrue at a rate of 11.00% per annum. PIK Interest on the Senior Toggle Notes will accrue at the Cash Interest rate per annum plus 0.75%. The Company must elect the form of interest payment with respect to each interest period by delivery of a notice to the trustee prior to the beginning of each interest period. In the absence of an election for any interest period, interest on the Senior Toggle Notes shall be payable according to the method of payment for the previous interest period.
On October 15, 2008, pursuant to the PIK interest election made on April 11, 2008, the Company satisfied the October 2008 interest payment obligation by increasing the principal amount of the Senior Toggle Notes by $32 million. This PIK Interest election is now the default election for future interest periods through October 15, 2011 unless the Company notifies otherwise prior to the commencement date of a future interest period.
The Senior Subordinated Notes are unsecured senior subordinated obligations of the Company and will mature on April 15, 2015. Each Senior Subordinated Note bears interest at a rate per annum of 12.375% payable semiannually to holders of record at the close of business on April 1 or October 1 immediately preceding the interest payment date on April 15 and October 15 of each year.
Securitization Obligations
The Company issues secured obligations through Apple Ridge Funding LLC, U.K. Relocation Receivables Funding Limited and Kenosia Funding LLC. These entities are consolidated, bankruptcy remote special purpose entities that are utilized to securitize relocation receivables and related assets. These assets are generated from advancing funds on behalf of clients of the Company’s relocation business in order to facilitate the relocation of their employees. Assets of these special purpose entities, including properties held for sale, are not available to pay the Company’s general obligations. Provided no termination or amortization event has occurred, any new receivables generated under the designated relocation management agreements are sold into the securitization program, and as new relocation management agreements are entered into, the new agreements may also be designated to a specific program.
Certain of the funds that the Company receives from relocation receivables or relocation properties held for sale and related assets must be utilized to repay securitization obligations. Such securitization obligations are collateralized by $845 million and $1,300 million of underlying relocation receivables, relocation properties held for sale and other related assets at December 31, 2008 and 2007, respectively. Substantially all relocation related assets are realized in less than twelve months from the transaction date. Accordingly, all of the Company’s securitization obligations are classified as current in the accompanying Consolidated Balance Sheets.
Interest incurred in connection with borrowings under these facilities amounted to $46 million for the year ended December 31, 2008, $46 million for the period April 10, 2007 through December 31, 2007, $13 million for the period January 1, 2007 through April 9, 2007 and $42 million for the year ended December 31, 2006. This interest is recorded within net revenues in the accompanying Consolidated Statements of Operations as related borrowings are utilized to fund relocation receivables and advances and properties held for sale within the Company’s relocation business where interest is generally earned on such assets. These securitization obligations represent floating rate debt for which the average weighted interest rate was 4.9%, 6.4% and 5.4% for the year ended December 31, 2008, 2007 and 2006, respectively.
Apple Ridge Funding LLC
The Apple Ridge Funding LLC securitization program is a revolving program with a five year term. This bankruptcy remote vehicle borrows from one or more commercial paper conduits and uses the proceeds to purchase the relocation assets. This asset backed commercial paper program is guaranteed by the sponsoring financial institution. This program is subject to termination at the end of the five year agreement and, if not renewed, would amortize. The program has restrictive covenants and trigger events, including performance triggers linked to the age and quality of the underlying assets, limits on net credit losses incurred, financial reporting requirements, restrictions on mergers and change of control, and cross defaults under our senior secured credit facility, the Unsecured Notes and other material indebtedness. Given the current recession and an increasing number of companies having difficulties meeting their financial obligations, there is a heightened risk relating to compliance with the Apple Ridge securitization performance trigger relating to limits on “net credit losses” (the estimated losses incurred on securitization receivables that have been written off, net of recoveries of such receivables), as net credit losses may not exceed $750,000 in any one month or $1.5 million in any trailing 12 month period. The Company has not incurred any net credit losses in excess of these thresholds. These trigger events could result in an early amortization of this securitization obligation and termination of any further advances under the program.
U.K. Relocation Funding Limited
The U.K. Relocation Funding Limited securitization program is a revolving program with a five year term. This program is subject to termination at the end of the five year agreement and would amortize if not renewed. This program has restrictive covenants, including those relating to financial reporting, mergers and change of control, and events of default. The events of default include non-payment of the indebtedness and cross defaults under our senior secured credit facility, Unsecured Notes and other material indebtedness. Upon an event of default, the lending institution may amortize the indebtedness under the facility and terminate the program.
On May 12, 2008 the Company amended the U.K. Relocation Receivables Funding Limited securitization principally to include the following provisions: 1) to grant the bank a security interest in the relocation and related assets; 2) to allow funding through a commercial paper program guaranteed by the financial institution; and 3) to add servicer defaults and to modify the maximum advance rate levels, in each case tied to the performance of the underlying asset base.
As of December 31, 2008, this securitization program was fully utilized. The Company has undertaken steps in the second half of 2008 to reduce the amount outstanding under the program by obtaining the agreement of many clients to self fund their future business and in some cases repay us for their existing homes in inventory under this facility.
Kenosia Funding LLC-terminated in January
Prior to the amendment discussed below, the Kenosia Funding LLC securitization program was a five year agreement and under this program, the Company obtained financing for the purchase of the at-risk homes and other assets related to those relocations under its fixed fee relocation contracts with certain U.S. Government and corporate clients.
On March 14, 2008, the Company notified the United States General Services Administration (“GSA”) that it had exercised its contractual termination rights with the GSA relating to the relocation of certain U.S. government employees. This termination does not apply to contracts with the FDIC, the U.S. Postal Service or to our government business in the United Kingdom, which operate under a different pricing structure.
In connection with the aforementioned termination, on March 14, 2008, the Company amended certain provisions of the Kenosia securitization program (the “Kenosia Amendment”). Prior to the Kenosia Amendment, termination of an agreement with a client which had more than 30% of the assets secured under the facility would trigger an amortization event of the Kenosia facility. The Kenosia Amendment permits the termination of a client with more than 30% of the assets in Kenosia without triggering an amortization event of this facility.
In conjunction with the Kenosia Amendment, the borrowing capacity under the Kenosia securitization program was reduced to $100 million in July 2008. In November 2008, the Company elected to reduce the capacity to $25 million due to lower than expected utilization. On January 15, 2009, the Company terminated the Kenosia securitization program in its entirety, repaying the $20 million principal balance then outstanding under that facility.
Short-Term Borrowing Facilities
Within the Company’s Title and Settlement Services and Company Owned Real Estate Brokerage operations, the Company acts as an escrow agent for numerous customers. As an escrow agent, the Company receives money from customers to hold on a short-term basis until certain conditions of the homesale transaction are satisfied. The Company does not have access to these escrow funds for its use and these escrow funds are not assets of the Company. However, because we have such funds concentrated in a few financial institutions, we are able to obtain short-term borrowing facilities that as of December 31, 2008 provided for borrowings of up to $190 million. Based upon the significant decrease in investment return rates in late 2008, the Company does not anticipate engaging in these short term borrowings in 2009 until they generate a higher investment return.
Prior to the fall in rates we invested such borrowings in high quality short-term liquid investments. Any outstanding borrowings under these facilities are callable by the lenders at any time and the Company bears the risk of loss on these borrowings. These facilities are renewable annually and are not available for general corporate purposes. Net amounts earned under these arrangements approximated $4 million for the year ended December 31, 2008, compared to $8 million for the period April 10, 2007 through December 31, 2007, and $3 million for the period January 1, 2007 through April 9, 2007. These amounts are recorded within net revenue in the accompanying Consolidated Statements of Operations as they are part of the major ongoing operations of
the business. There were no outstanding borrowings under these facilities at December 31, 2008 or December 31, 2007. The average amount of short term borrowings outstanding during the year ended December 31, 2008 and 2007 was approximately $155 million and $227 million, respectively.
Available Capacity
As of December 31, 2008, the total capacity, outstanding borrowings and available capacity under the Company’s borrowing arrangements is as follows:
(1) At December 31, 2008, the available capacity under the revolving credit facility is reduced by $127 million of outstanding letters of credit. At February 23, 2009, the borrowings under our revolving credit facility increased by $50 million leaving $58 million of availability capacity under the facility.
(2) Total capacity has been reduced by the quarterly principal payments of 0.25% of the loan balance as required under the term loan facility agreement. The interest rate on the term loan facility was 6.10% at December 31, 2008.
(3) Consists of $1,700 million of 10.50% Fixed Rate Senior Notes due 2014, less a discount of $17 million.
(4) Consists of $582 million of 11.00%/11.75% Senior Toggle Notes due 2014, less a discount of $5 million.
(5) Consists of $875 million of 12.375% Senior Subordinated Notes due 2015, less a discount of $13 million.
(6) Available capacity is subject to maintaining sufficient relocation related assets to collateralize these securitization obligations.
(7) On January 15, 2009, the Company terminated the Kenosia securitization program in its entirety, repaying the $20 million principal balance then outstanding under that facility.
Covenants under our Senior Secured Credit Facility and the Unsecured Notes
Our senior secured credit facility and the Unsecured Notes contain various covenants that limit our ability to, among other things:
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incur or guarantee additional debt;
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incur debt that is junior to senior indebtedness and senior to the senior subordinated notes;
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pay dividends or make distributions to our stockholders;
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repurchase or redeem capital stock or subordinated indebtedness;
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make loans, capital expenditures or investments or acquisitions;
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incur restrictions on the ability of certain of our subsidiaries to pay dividends or to make other payments to us;
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enter into transactions with affiliates;
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create liens;
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merge or consolidate with other companies or transfer all or substantially all of our assets;
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transfer or sell assets, including capital stock of subsidiaries; and
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prepay, redeem or repurchase debt that is junior in right of payment to the Unsecured Notes.
As a result of these covenants, we are limited in the manner in which we conduct our business and we may be unable to engage in favorable business activities or finance future operations or capital needs. In addition, on the last day of each fiscal quarter, the financial covenant in our senior secured credit facility requires us to maintain on a quarterly basis a senior secured leverage ratio not to exceed a maximum amount. Specifically our senior secured debt (net of unsecured cash and permitted investments) to trailing 12 month EBITDA (as such terms are defined in the senior secured credit facility), calculated on a “pro forma” basis pursuant to the senior secured credit facility, may not exceed 5.35 to 1 at December 31, 2008. The ratio steps down to 5.0 to 1 at September 30, 2009 and to 4.75 to 1 at March 31, 2011 and thereafter. EBITDA, as defined in the senior secured credit facility includes certain adjustments and also is calculated on a pro forma basis for purposes of the senior secured leverage ratio. In this Annual Report, we refer to the term “Adjusted EBITDA” to mean EBITDA as so defined and calculated for purposes of determining compliance with the senior secured leverage ratio. At December 31, 2008, the Company was in compliance with the senior secured leverage ratio.
The Company’s current financial forecast of Adjusted EBITDA includes additional cost saving and business optimization initiatives. As such initiatives are implemented; management will give pro forma effect to such measures and add back the savings or enhanced revenue from those initiatives as if they had been implemented at the beginning of the trailing twelve month period for calculating compliance with the senior secured leverage ratio.
In order to comply with the senior secured leverage ratio for the 12 month periods ended March 31, June 30, September 30 and December 31, 2009 (or to avoid an event of default thereof) the Company will need to achieve increased levels of Adjusted EBITDA and/or reduced levels of senior secured indebtedness. The factors that will impact the foregoing are: (a) slowing decreases, stabilization or increases in sales volume of existing homesales, (b) continuing to effect cost savings and business productivity enhancement initiatives, (c) increasing new franchise sales, sales associate recruitment and/or brokerage acquisitions, (d) accelerating Contingent Asset collection, (e) obtaining additional equity financing from our parent company, (f) issuing debt or equity financing, or (g) a combination thereof. Factors (b) through (f) may not be sufficient to overcome macroeconomic conditions affecting the Company.
Apollo has advised us that based upon management’s current financial outlook, it will provide financial assistance to the Company, to the extent necessary, in meeting its senior secured leverage ratio and cash flow needs through December 31, 2009. If necessary, Apollo will provide the Company with an equity infusion of up to $150 million although management believes such full amount will not be required during this period. Based upon its current financial forecast, and to the extent necessary, Apollo’s financial assistance, the Company believes that it will continue to be in compliance with, or be able to avoid an event of default under, the senior secured leverage ratio during the next twelve months. The Company has the right to avoid an event of default of the senior secured leverage ratio in three of any of the four consecutive quarters through the issuance of additional Holdings equity for cash, which would be infused as capital into the Company. The effect of such infusion would be to increase Adjusted EBITDA and reduce net senior secured indebtedness.
If we are unable to maintain compliance with the senior secured leverage ratio and we fail to remedy a default through an equity cure from our parent permitted thereunder, there would be an “event of default” under the senior secured credit agreement. Other events of default under the senior secured credit facility include, without limitation, nonpayment, material misrepresentations, insolvency, bankruptcy, certain judgments, change of control and cross-events of default on material indebtedness.
If an event of default occurs under our senior secured credit facility, and we fail to obtain a waiver from our lenders, our financial condition, results of operations and business would be materially adversely affected. Upon the occurrence of an event of default under our senior secured credit facility, the lenders:
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will not be required to lend any additional amounts to us;
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could elect to declare all borrowings outstanding, together with accrued and unpaid interest and fees, to be due and payable;
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could require us to apply all of our available cash to repay these borrowings; or
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could prevent us from making payments on the Unsecured Notes;
any of which could result in an event of default under the Unsecured Notes and our Securitization Facilities.
If we were unable to repay those amounts, the lenders under our senior secured credit facility could proceed against the collateral granted to them to secure that indebtedness. We have pledged the majority of our assets as collateral under our senior secured credit facility. If the lenders under our senior secured credit facility accelerate the repayment of borrowings, we may not have sufficient assets to repay our senior secured credit facility and our other indebtedness, including the Unsecured Notes, or be able to borrow sufficient funds to refinance such indebtedness. Even if we are able to obtain new financing, it may not be on commercially reasonable terms, or terms that are acceptable to us.
EBITDA and Adjusted EBITDA
EBITDA is defined by the Company as net income before depreciation and amortization, interest (income) expense, net (other than relocation services interest for securitization assets and securitization obligations) and income taxes. Adjusted EBITDA is calculated by adjusting EBITDA by the items described below. Adjusted EBITDA corresponds to the definition of “EBITDA,” calculated on a “pro forma basis,” used in the senior secured credit facility to calculate the senior secured leverage ratio and substantially corresponds to the definition of “EBITDA” used in the indentures governing the Unsecured Notes to test the permissibility of certain types of transactions, including debt incurrence. We present EBITDA because we believe EBITDA is a useful supplemental measure in evaluating the performance of our operating businesses and provides greater transparency into our results of operations. The EBITDA measure is used by our management, including our chief operating decision maker, to perform such evaluation, and Adjusted EBITDA is used in measuring compliance with debt covenants relating to certain of our borrowing arrangements. EBITDA and Adjusted EBITDA should not be considered in isolation or as a substitute for net income or other statement of operations data prepared in accordance with GAAP.
We believe EBITDA facilitates company-to-company operating performance comparisons by backing out potential differences caused by variations in capital structures (affecting net interest expense), taxation, the age and book depreciation of facilities (affecting relative depreciation expense) and the amortization of intangibles, which may vary for different companies for reasons unrelated to operating performance. We further believe that EBITDA is frequently used by securities analysts, investors and other interested parties in their evaluation of companies, many of which present an EBITDA measure when reporting their results.
EBITDA has limitations as an analytical tool, and you should not consider EBITDA either in isolation or as a substitute for analyzing our results as reported under GAAP. Some of these limitations are:
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EBITDA does not reflect changes in, or cash requirement for, our working capital needs;
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EBITDA does not reflect our interest expense (except for interest related to our securitization obligations), or the cash requirements necessary to service interest or principal payments, on our debt;
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EBITDA does not reflect our income tax expense or the cash requirements to pay our taxes;
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EBITDA does not reflect historical cash expenditures or future requirements for capital expenditures or contractual commitments;
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although depreciation and amortization are non-cash charges, the assets being depreciated and amortized will often have to be replaced in the future, and these EBITDA measures do not reflect any cash requirements for such replacements; and
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other companies in our industry may calculate these EBITDA measures differently so they may not be comparable.
In addition to the limitations described above with respect to EBITDA, Adjusted EBITDA includes pro forma cost savings and the pro forma full year effect of NRT acquisitions and RFG acquisitions/new franchisees. These adjustments may not reflect the actual cost savings or pro forma effect recognized in future periods.
A reconciliation of net loss to EBITDA and Adjusted EBITDA for the year ended December 31, 2008 is set forth in the following table:
(a) Net loss consists of a loss of $1,912 million for the twelve months ended December 31, 2008.
(b) Consists of $2 million of merger costs, $58 million of restructuring costs offset by a benefit of $20 million of former parent legacy costs.
(c) Represents the non-cash adjustment for the 2008 impairment of goodwill, intangible assets and investments in unconsolidated entities.
(d) Represents actual costs incurred that are not expected to recur in subsequent periods due to restructuring activities initiated during 2008. From this restructuring, we expect to reduce our operating costs by approximately $96 million on a twelve month run-rate basis and estimate that $31 million of such savings were realized from the time they were put in place. The adjustment shown represents the impact the savings
would have had on the period from January 1, 2008 through the time they were put in place, had those actions been effected on January 1, 2008.
(e) Represents the twelve month pro forma effect of business optimization initiatives that have been completed to reduce costs including $4 million related to the exit of the government at-risk homesale business, $4 million related to the elimination of the 401(k) employer match, $7 million related to the renegotiation of NRT contracts, $6 million due to the add back of the retention accrual, $22 million for initiatives to improve the Company Owned Real Estate Brokerage profit margin and Relocation Services fees and $18 million related to other initiatives.
(f) Represents the elimination of non-cash expenses including $22 million for the change in the allowance for doubtful accounts and $17 million related to the reserve for development advance notes and promissory notes from January 1, 2008 through December 31, 2008, $7 million of stock based compensation expense, $14 million related to net losses on foreign currency transactions and foreign currency forward contracts.
(g) Reflects the adjustment for the negative impact of $6 million of fair value adjustments for purchase accounting at the operating business segments primarily related to deferred rent for the twelve months ended December 31, 2008.
(h) Represents the estimated impact of acquisitions made by NRT and RFG acquisitions and new franchisees as if they had been acquired or signed on January 1, 2008. We have made a number of assumptions in calculating such estimate and there can be no assurance that we would have generated the projected levels of EBITDA had we owned the acquired entities or entered into the franchise contracts as of January 1, 2008.
(i) Represents the elimination of annual management fees payable to Apollo for the twelve months ended December 31, 2008.
(j) Wright Express Corporation (“WEX”) was divested by Cendant in February 2005 through an initial public offering (“IPO”). As a result of such IPO, the tax basis of WEX’s tangible and intangible assets increased to their fair market value which may reduce federal income tax that WEX might otherwise be obligated to pay in future periods. WEX is required to pay Cendant 85% of any tax savings related to the increase in fair value utilized for a period of time that we expect will be beyond the maturity of the notes. Cendant is required to pay 62.5% of these tax savings payments received from WEX to us.
(k) Incremental borrowing costs incurred as a result of the securitization facilities refinancing for the twelve months ended December 31, 2008.
(l) Represents the expenses incurred in connection with the Company’s unsuccessful debt modification activities.
(m) Represents total borrowings under the senior secured credit facility, including the revolving credit facility, of $3,638 million plus $14 million of capital lease obligations less $402 million of readily available cash as of December 31, 2008.
Liquidity Risk
Our liquidity position may be negatively affected by continued unfavorable conditions in the real estate or relocation market, including adverse changes in interest rates, access to our relocation securitization programs and access to the capital markets, which may be limited if we were to fail to renew any of the facilities on their renewal dates or if we were to fail to meet certain covenants.
At present, there are numerous general business and economic factors contributing to the residential real estate market downturn and impeding a recovery. These conditions include: (1) systemic weakness in the domestic banking and financial sectors; (2) substantial declines in the stock markets in 2008 and continued stock market volatility; (3) the recession in the U.S. and numerous economies around the globe; (4) high levels of unemployment in various sectors; and (5) other factors that are both separate from, and outgrowths of, the above. If one or more of these conditions continue or worsen, we may experience a further adverse effect on our business, financial condition and results of operations, including our ability to access capital.
Senior Secured Credit Facility Covenant Compliance
In order to comply with the senior secured leverage ratio for the 12 month periods ended March 31, June 30, September 30 and December 31, 2009 (or to avoid an event of default thereof) the Company
will need to achieve increased levels of Adjusted EBITDA and/or reduced levels of senior secured indebtedness. The factors that will impact the foregoing are: (a) slowing decreases, stabilization or increases in sales volume of existing homesales, (b) continuing to effect cost savings and business productivity enhancement initiatives, (c) increasing new franchise sales, sales associate recruitment and/or brokerage acquisitions, (d) accelerating Contingent Asset collection, (e) obtaining additional equity financing from our parent company, (f) issuing debt or equity financing, or (g) a combination thereof.
If we fail to maintain the senior secured leverage ratio or otherwise default under our senior secured credit facility and we fail to obtain a waiver from our lenders, our financial condition, results of operations and business would be materially adversely affected.
Debt Ratings
As a result of the increased borrowings that were incurred to consummate the Merger, the Company’s future financing needs were materially impacted. Upon consummation of the Merger in April 2007, both Standard and Poor’s and Moody’s downgraded our corporate family debt ratings and rated the newly issued Unsecured Notes as non-investment grade. During 2008 due to the continuing significant and lengthy downturn in the residential real estate market, the rating agencies continued to downgrade our debt ratings. In November and December 2008, Standard and Poor’s and Moody’s further downgraded some of our ratings and at December 31, 2008, the Corporate Family Rating was CC and Caa3, respectively, our Senior Secured Debt rating was CCC- and Caa1, respectively, and the Senior Unsecured Notes rating was C and Ca, respectively. The rating outlook at December 31, 2008 was negative. The most recent downgrades reflect the rating agencies’ views that there will be a continuing weakness in the residential homesale market and an increased risk of a default or balance sheet restructuring over the intermediate term. It is possible that the rating agencies may downgrade our ratings further based upon our results of operations and financial condition or as a result of national and/or global economic and political events.
Interest Rate Risk
Certain of our borrowings, primarily borrowings under our senior secured credit facility, and our securitization obligations are at variable rates of interest and expose us to interest rate risk. If interest rates increase, our debt service obligations on the variable rate indebtedness would increase even though the amount borrowed remained the same, and our net loss would increase further. We have entered into interest rate swaps, involving the exchange of floating for fixed rate interest payments, to reduce interest rate volatility for a portion of our floating interest rate debt facilities. We believe our interest rate risk on our securitization borrowings is generally mitigated as the rate we incur and the rate we earn on our relocation receivables and advances are based on similar variable indices.
Securitization Programs
Funding requirements of our relocation business are primarily satisfied through the issuance of securitization obligations to finance relocation receivables and advances and relocation properties held for sale. The securitization facilities under which the securitization obligations are issued have restrictive covenants and trigger events, including performance triggers linked to the age and quality of the underlying assets, limits on net credit losses incurred, financial reporting requirements, restrictions on mergers and change of control, and cross defaults under our senior secured credit facility, Unsecured Notes and other material indebtedness.
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We may need to incur additional debt or issue equity. We cannot assure that financing will be available to us on acceptable terms or that financing will be available at all. Our ability to make payments to fund working capital, capital expenditures, debt service, strategic acquisitions, joint ventures and investments will depend on
our ability to generate cash in the future, which is subject to general economic, financial, competitive, regulatory and other factors that are beyond our control. Future indebtedness may impose various restrictions and covenants on us which could limit our ability to respond to market conditions, to provide for unanticipated capital investments or to take advantage of business opportunities.
Seasonality
Our businesses are subject to seasonal fluctuations. Historically, operating statistics and revenues for all of our businesses have been strongest in the second and third quarters of the calendar year. A significant portion of the expenses we incur in our real estate brokerage operations are related to marketing activities and commissions and are, therefore, variable. However, many of our other expenses, such as facilities costs and certain personnel-related costs, are fixed and cannot be reduced during a seasonal slowdown.
Contractual Obligations
The following table summarizes our future contractual obligations as of December 31, 2008.
(a) The Company’s senior secured credit facility provides for a $750 million revolving credit facility due in April 2013. The Company uses the revolving credit facility for, among other things, working capital and other general corporate purposes. The obligation is classified as current due to the revolving nature of the facility.
(b) The Company’s senior secured credit facility provides for a $3,170 million term loan facility due in October 2013. Prior to December 31, 2008, the Company has made $47 million of scheduled principle payments. We have $3,123 million of variable rate debt outstanding under the term loan facility. The Company has entered into derivative instruments to fix the interest rate for $575 million of the variable rate debt, which will result in interest payments of $45 million annually. The interest rate for the remaining portion of the variable rate debt of $2,548 million will ultimately be determined by the interest rates in effect during each period.
(c) The Company utilized the PIK Interest option to satisfy the October 2008 interest payment obligation for the Senior Toggle Notes which increased the principal amount of the Senior Toggle Notes by $32 million in October 2008. Since the PIK Interest election is now the default election for the Senior Toggle Notes for future interest periods through October 15, 2011, interest on the Senior Toggle Notes will compound semi-annually at 11.75% which will increase the principal amount accordingly. Starting April 2012, the annual interest payment on the Senior Toggle Notes will be approximately $90 million. The fixed interest to be paid on the Senior Notes and Senior Subordinated Notes will be approximately $287 million on an annual basis.
(d) The Company would be subject to certain interest deduction limitations if the Senior Toggle Notes were treated as “applicable high yield discount obligations” (“AHYDO”) within the meaning of Section 163(i)(1) of the Internal Revenue Code. In order to avoid such treatment the Company is required to redeem for cash a portion of each Senior Toggle Note then outstanding. The portion of a Senior Toggle Note required to be redeemed is an amount equal to the excess of the accrued original issue discount as of the end of such
accrual period, less the amount of interest paid in cash on or before such date, less the first-year yield (the issue price of the debt instrument multiplied by its yield to maturity). The redemption price for the portion of each Senior Toggle Note so redeemed would be 100% of the principal amount of such portion plus any accrued interest on the date of redemption. Assuming that the Company continues to utilize the PIK Interest option election through October 2011, the amount that the Company would be required to repay in April 2012 would be approximately $204 million.
(e) Excludes future cash payments related to interest expense as the underlying debt instruments are variable rate and the interest payments will ultimately be determined by the interest rates in effect during each period. These agreements are expiring in 2012, (See Note 8 “Short and Long Term Debt”), however, the obligations are classified as current due to the current classification of the underlying assets that collateralize the obligations.
(f) The operating lease amounts included in the above table do not include variable costs such as maintenance, insurance and real estate taxes.
(g) Purchase commitments include a minimum licensing fee that the Company is required to pay to Sotheby’s beginning in 2009 through 2054. The Company expects the annual minimum licensing fee to be approximately $2 million although based on past performance, payments have exceeded this minimum. The purchase commitments also include the minimum licensing fee to be paid to Meredith Corporation beginning in 2009 through 2057. The annual minimum fee begins at $500 thousand in 2009 and increases to $4 million by 2015 and generally remains the same thereafter.
(h) On April 26, 2007, the Company utilized $500 million of the $525 million synthetic letter of credit facility to establish a standby irrevocable letter of credit for the benefit of Avis Budget Group in accordance with the Separation and Distribution Agreement and a letter agreement among the Company, Wyndham Worldwide and Avis Budget Group relating thereto. The standby irrevocable letter of credit back-stops the Company’s payment obligations with respect to its share of Cendant contingent and other corporate liabilities under the Separation and Distribution Agreement for which we pay interest of 300 basis points. This letter of credit is not included in the contractual obligations table above.
(i) The contractual obligations table does not include the annual Apollo management fee which is equal to the greater of $15 million or 2% of Adjusted EBITDA and does not include other non-current liabilities such as pension liabilities of $40 million and unrecognized tax benefits of $25 million as the Company is not able to estimate the year in which these liabilities will be paid.
Potential Debt Repurchases
Our affiliates have purchased a portion of our indebtedness and we or our affiliates from time to time may purchase additional portions of our indebtedness. Any such future purchases may be made through open market or privately negotiated transactions with third parties or pursuant to one or more tender or exchange offers or otherwise, upon such terms and at such prices as we or any such affiliates may determine.
Critical Accounting Policies
In presenting our financial statements in conformity with generally accepted accounting principles, we are required to make estimates and assumptions that affect the amounts reported therein. Several of the estimates and assumptions we are required to make relate to matters that are inherently uncertain as they pertain to future events. However, events that are outside of our control cannot be predicted and, as such, they cannot be contemplated in evaluating such estimates and assumptions. If there is a significant unfavorable change to current conditions, it could result in a material adverse impact to our combined results of operations, financial position and liquidity. We believe that the estimates and assumptions we used when preparing our financial statements were the most appropriate at that time. Presented below are those accounting policies that we believe require subjective and complex judgments that could potentially affect reported results. However, the majority of our businesses operate in environments where we are paid a fee for a service performed, and therefore the results of the majority of our recurring operations are recorded in our financial statements using accounting policies that are not particularly subjective, nor complex.
Allowance for doubtful accounts
We estimate the allowance necessary to provide for uncollectible accounts receivable. The estimate is based on historical experience, combined with a review of current developments and includes specific accounts for which payment has become unlikely. The process by which we calculate the allowance begins in the individual business units where specific problem accounts are identified and reserved and an additional reserve is recorded driven by the age profile of the receivables. Our allowance for doubtful accounts was $46 million and $16 million at December 31, 2008 and 2007, respectively.
Impairment of goodwill and other indefinite-lived intangible assets
With regard to the goodwill and other indefinite-lived intangible assets recorded in connection with business combinations, we annually or, more frequently if circumstances indicate impairment may have occurred, review their carrying values as required by SFAS No. 142, “Goodwill and Other Intangible Assets.” In performing this analysis, we are required to make an assessment of fair value for our goodwill and other indefinite-lived intangible assets. We estimate the fair value of our reporting units using widely accepted valuation techniques. These techniques use a variety of assumptions to include projected market conditions, discount rates and future cash flows. Although we believe our assumptions are reasonable, actual results may vary significantly. A change in these underlying assumptions could cause a change in the results of the tests and, as such, could cause the fair value to be less than the respective carrying amount. In such an event, we would be required to record a charge, which would impact earnings.
The aggregate carrying value of our goodwill and other indefinite-lived intangible assets was $2,572 million and $1,887 million, respectively, at December 31, 2008. Our goodwill and other indefinite-lived intangible assets are allocated to our four reporting units. Accordingly, it is difficult to quantify the impact of an adverse change in financial results and related cash flows, as such change may be isolated to one of our reporting units or spread across our entire organization. Our businesses are concentrated in one industry and, as a result, an adverse change to the real estate industry will impact our combined results and may result in an impairment of our goodwill or other indefinite-lived intangible assets.
Income taxes
We recognize deferred tax assets and liabilities based on the differences between the financial statement carrying amounts and the tax bases of assets and liabilities. We regularly review our deferred tax assets to assess their potential realization and establish a valuation allowance for portions of such assets that we believe will not be ultimately realized. In performing this review, we make estimates and assumptions regarding projected future taxable income, the expected timing of the reversals of existing temporary differences and the implementation of tax planning strategies. A change in these assumptions could cause an increase or decrease to our valuation allowance resulting in an increase or decrease in our effective tax rate, which could materially impact our results of operations.
In June 2006, the FASB issued FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes -an Interpretation of FASB Statement No. 109” (“FIN 48”), which is an interpretation of SFAS No. 109, “Accounting for Income Taxes.” FIN 48 prescribes a recognition threshold and a measurement attribute for the financial statement recognition and measurement of tax positions taken or expected to be taken in a tax return. For those benefits to be recognized, a tax position must be more-likely-than-not to be sustained upon examination by taxing authorities. The amount recognized is measured as the largest amount of benefit that is greater than 50 percent likely of being realized upon ultimate settlement. The Company adopted the provisions of FIN 48 on January 1, 2007, as required, and recognized a $13 million increase in the liability for unrecognized tax benefits including associated accrued interest and penalties and a corresponding decrease in retained earnings.
Recently Issued Accounting Pronouncements
In December 2007, the FASB issued SFAS No. 141(R) “Business Combinations” (“SFAS No. 141(R)”) and SFAS No. 160 “Noncontrolling Interests in Consolidated Financial Statements, an amendment of ARB No. 51” (“SFAS No. 160”). SFAS No. 141(R) and SFAS No. 160 introduced significant changes in the accounting for and reporting of business acquisitions and noncontrolling interests in a subsidiary. These pronouncements are effective for business acquisitions consummated after the fiscal year beginning on or after December 15, 2008. In addition, SFAS No. 160 requires retrospective application to the presentation and disclosure for all periods presented in the financial statements. The Company intends to adopt these pronouncements on January 1, 2009 and will apply these pronouncements to future acquisitions.
In March 2008, the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments and Hedging Activities” (“SFAS No. 161”). The new standard is intended to improve financial reporting of derivative instruments and hedging activities by requiring enhanced disclosures enabling investors to better understand their effects on an entity’s financial condition, financial performance, and cash flows. It is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008. SFAS No. 161 will impact disclosures only and will not have an impact on the Company’s consolidated financial condition, results of operations or cash flows.
In April 2008, the FASB issued Staff Position No. FAS 142-3, “Determination of the Useful Life of Intangible Assets” (“FSP 142-3”). This FSP allows an entity to use its own assumption or historical experience about renewal or extension of an arrangement for a recognized intangible asset when determining the useful life of the asset, even when there is likely to be substantial cost or material modifications to the arrangement. FSP 142-3 is effective for financial statements issued for fiscal years and interim periods beginning after December 15, 2008. The Company intends to adopt the guidance on January 1, 2009 and is currently evaluating the impact on the consolidated financial statements.
In October 2008, the FASB issued Staff Position No. FAS 157-3, “Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active” (“FSP 157-3”). The FSP does not change the definition of fair value and principles of measurement. It clarifies the application of SFAS No. 157 to financial asset valuation when the market for the asset is not active. In such market, an entity can use its internal assumptions about future cash flows and risk-adjusted discount rates. However, regardless of the valuation technique, an entity must include appropriate risk adjustments that market participants would make for non-performance and liquidity risks. FSP 157-3 is effective upon issuance. The Company adopted FSP 157-3 in the current period and the adoption did not have a significant impact on its consolidated financial position and results of operations.
In November 2008, the FASB issued Emerging Issues Task Force (“EITF”) Issue No. 08-6 “Equity Method Investment Accounting Considerations” (“EITF 08-6”) and Issue No. 08-7 “Accounting for Defensive Intangible Assets” (“EITF 08-7”). EITF 08-6 clarifies the accounting for certain transactions and impairment considerations involving equity method investments. It is effective prospectively in fiscal years and interim periods beginning on or after December 15, 2008. EITF 08-7 specifies the definition and accounting for defensive intangible assets after the initial measurement. EITF 08-7 is effective for intangible assets acquired on or after the beginning of the annual reporting period beginning on or after December 15, 2008. The Company intends to adopt both EITF Issues in January 2009 and is currently assessing the impact on the consolidated financial statements.
In December 2008, the FASB issued Staff Position No. FAS 132(R)-1 “Employers’ Disclosures about Postretirement Benefit Plan Assets” (“FSP 132R-1”). This FSP enhances the annual disclosure about plan assets by requiring the nature and amount of concentrations of risk, fair value measurement similar to SFAS 157 requirements, significant investment strategies, and increased asset categories. The FSP is effective prospectively for fiscal years ending after December 15, 2009. The Company will adopt the disclosure requirements under this FSP for the year ending December 31, 2009. The FSP amends disclosure requirements and will not have an impact on the Company’s consolidated financial statements.
ITEM 7A.
ITEM 7A. QUALITATIVE AND QUANTITATIVE DISCLOSURES ABOUT MARKET RISK
Our principal market exposure is interest rate risk. At December 31, 2008, our primary interest rate exposure was to interest rate fluctuations in the United States, specifically LIBOR, due to its impact on our variable rate borrowings. Due to our senior secured credit facility which is benchmarked to U.S. LIBOR, this rate will be the primary market risk exposure for the foreseeable future. We do not have significant exposure to foreign currency risk nor do we expect to have significant exposure to foreign currency risk in the foreseeable future.
We assess our market risk based on changes in interest rates utilizing a sensitivity analysis. The sensitivity analysis measures the potential impact in earnings, fair values and cash flows based on a hypothetical 10% change (increase and decrease) in interest rates. In performing the sensitivity analysis, we are required to make assumptions regarding the fair values of relocation receivables and advances and securitization borrowings, which approximate their carrying values due to the short-term nature of these items. We believe our interest rate risk is further mitigated as the rate we incur on our securitization borrowings and the rate we earn on relocation receivables and advances are based on similar variable indices.
Our total market risk is influenced by factors including the volatility present within the markets and the liquidity of the markets. There are certain limitations inherent in the sensitivity analyses presented. While probably the most meaningful analysis, these analyses are constrained by several factors, including the necessity to conduct the analysis based on a single point in time and the inability to include the complex market reactions that normally would arise from the market shifts modeled.
At December 31, 2008, we had total long term debt of $6,760 million excluding $703 million of securitization obligations. Of the $6,760 million of long term debt, the Company has $3,638 million of variable interest rate debt primarily based on 3-month LIBOR. We have entered into floating to fixed interest rate swap agreements with varying expiration dates with an aggregate notional value of $575 million and, effectively fixed our interest rate on that portion of variable interest rate debt. The variable interest rate debt is subject to market rate risk, as our interest payments will fluctuate as underlying interest rates change as a result of market changes. We have determined that the impact of a 100bps (1% change in the rate) change in LIBOR on our term loan facility variable rate borrowings would affect our interest expense by approximately $31 million. While these results may be used as benchmarks, they should not be viewed as forecasts.
At December 31, 2008, the fair value of our long term debt approximated $2,970 million, which was determined based on quoted market prices. Since considerable judgment is required in interpreting market information, the fair value of the long-term debt is not necessarily indicative of the amount that could be realized in a current market exchange. A 10% decrease in market rates would have a $29 million impact on the fair value of our long-term debt.
ITEM 8.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See “Index to Financial Statements” on page.
ITEM 9.
ITEM 9. CHANGES TO AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
ITEM 9A(T).
ITEM 9A(T). CONTROLS AND PROCEDURES
(a) We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our filings under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the periods specified in the rules and forms of the Securities and Exchange Commission. Such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. Our management, including the Chief Executive Officer and the Chief Financial Officer, recognizes that any set of controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives.
(b) As of the end of the period covered by this Annual Report on Form 10-K, we have carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures. Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures are effective at the “reasonable assurance” level.
(c) There has not been any change in our internal control over financial reporting during the period covered by this Annual Report on Form 10-K that has materially affected, or is reasonable likely to materially affect, our internal control over financial reporting.
Management’s Report on Internal Control Over Financial Reporting
Realogy’s management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rules 13a-15(f) and 15d-15(f) under the Securities Exchange Act of 1934. Realogy’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Realogy’s internal control over financial reporting includes those policies and procedures that:
(i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of Realogy’s assets;
(ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of Realogy’s management and directors; and
(iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use of disposition of Realogy’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Management assessed the effectiveness of Realogy’s internal control over financial reporting as of December 31, 2008. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in its Internal Control-Integrated Framework.
Based on this assessment, management determined that Realogy maintained effective internal control over financial reporting as of December 31, 2008.
This Annual Report does not include an attestation report of the Company’s registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by the Company’s registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit the Company to provide only management’s report in this Annual Report.
ITEM 9B.
ITEM 9B. OTHER INFORMATION
On February 23, 2009, the Holdings Compensation Committee modified the 2008-2009 Cash Retention Plan to enhance the benefits payable thereunder to the eligible named executive officers. As described in Item 11, Richard A. Smith, the Company’s CEO and President, is not eligible to participate in the 2008-2009 Cash Retention Plan. At the same time, the Holdings Compensation Committee also modified the annual compensation payable to our independent director in 2009, to pay the annual retainer entirely in cash. See “Item II-Executive Compensation-Compensation Discussion and Analysis” and “-Director Compensation.”
PART III
ITEM 10.
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Executive Officers and Directors
The following table sets forth information regarding individuals who currently serve as our executive officers and directors. The age of each individual in the table below is as of December 31, 2008.
Name
Age
Position(s)
Henry R. Silverman
Non-Executive Chairman of the Board
Richard A. Smith
President and Chief Executive Officer
Anthony E. Hull
Executive Vice President, Chief Financial Officer and Treasurer
Marilyn J. Wasser
Executive Vice President, General Counsel and Corporate Secretary
David J. Weaving
Executive Vice President and Chief Administrative Officer
Kevin J. Kelleher
President and Chief Executive Officer, Cartus Corporation
Alexander E. Perriello, III
President and Chief Executive Officer, Realogy Franchise Group
Bruce Zipf
President and Chief Executive Officer, NRT LLC
Donald J. Casey
President and Chief Executive Officer, Title Resource Group
Dea Benson
Senior Vice President, Chief Accounting Officer and Controller
Marc E. Becker
Director
V. Ann Hailey
Director
Scott M. Kleinman
Director
M. Ali Rashid
Director
Henry R. Silverman serves as our Non-Executive Chairman of the Board and since February 2009, as Chief Operating Officer of Apollo Global Management, LLC. From November 2007 until February 2009, Mr. Silverman served as a consultant to Apollo. He served as our Chairman of the Board, Chief Executive Officer and a director since our separation from Cendant in July 2006 until November 13, 2007. Mr. Silverman was Chief Executive Officer and a director of Cendant from December 1997 until the completion of Cendant’s separation plan in August 2006, as well as Chairman of the Board of Directors and the Executive Committee from July 1998 until August 2006. Mr. Silverman was President of Cendant from December 1997 until October 2004. Mr. Silverman was Chairman of the Board, Chairman of the Executive Committee and Chief Executive Officer of HFS Incorporated from May 1990 until December 1997.
Richard A. Smith has served as our President and Chief Executive Officer since November 13, 2007, and continues to serve as a director. Prior to that date, he served as our Vice Chairman of the Board, President and a director since our separation from Cendant in July 2006. Mr. Smith was Senior Executive Vice President of Cendant from September 1998 until our separation from Cendant in July 2006 and Chairman and Chief Executive Officer of Cendant’s Real Estate Services Division from December 1997 until our separation from Cendant in July 2006. Mr. Smith was President of the Real Estate Division of HFS from October 1996 to December 1997 and Executive Vice President of Operations for HFS from February 1992 to October 1996.
Anthony E. Hull has served as our Executive Vice President, Chief Financial Officer and Treasurer since our separation from Cendant in July 2006. From December 14, 2007 to February 3, 2008, Mr. Hull performed the functions of our Chief Accounting Officer. Mr. Hull was Executive Vice President, Finance of Cendant from October 2003 until our separation from Cendant in July 2006. From January 1996 to September 2003, Mr. Hull served as Chief Financial Officer for DreamWorks, a diversified entertainment company. From 1990 to 1994, Mr. Hull worked in various capacities for Paramount Communications, a diversified entertainment and publishing company. From 1984 to 1990 Mr. Hull worked in investment banking at Morgan Stanley.
Marilyn J. Wasser has served as our Executive Vice President, General Counsel and Corporate Secretary since May 10, 2007. From May 2005 until May 2007, Ms. Wasser was Vice President, General Counsel and Corporate Secretary for Telcordia Technologies, a provider of telecommunications software and services. From
1983 until 2005, Ms. Wasser served in several positions of increasing responsibility with AT&T Corporation and AT&T Wireless Services. Most recently, from September 2002 to February 2005, Ms. Wasser served as Executive Vice President, Associate General Counsel and Corporate Secretary for AT&T Wireless Services. She supported M&A activities, wireless opportunities and internet investments and from 1995 until 2002, Ms. Wasser also served as Secretary to the AT&T Board of Directors and Chief Compliance Officer.
David J. Weaving has served as our Executive Vice President and Chief Administrative Officer since our separation from Cendant in July 2006. Mr. Weaving was Senior Vice President and Chief Financial Officer of Cendant’s Real Estate Division from September 2001 until our separation from Cendant in July 2006. From May 2001 through September 2001 he served as Vice President and Divisional Controller for Cendant’s Real Estate Division. Mr. Weaving joined Cendant in 1999 as a Vice President of Finance. From 1995 to 1999, Mr. Weaving worked in increasing roles of responsibility for Cambrex Corporation, a diversified chemical manufacturer. From 1988 to 1995 Mr. Weaving worked as an auditor for Coopers & Lybrand LLP.
Kevin J. Kelleher has served as our President and Chief Executive Officer, Cartus Corporation. Mr. Kelleher was President and Chief Executive Officer of Cendant Mobility Services Corporation from 1997 until our separation from Cendant in July 2006. From 1993 to 1997 he served as Senior Vice President and General Manager of Cendant Mobility’s destination services unit. Mr. Kelleher has also held senior leadership positions in sales, client relations, network management and strategic planning.
Alexander E. Perriello, III has served as our President and Chief Executive Officer, Realogy Franchise Group, since our separation from Cendant in July 2006. Mr. Perriello was President and Chief Executive Officer of the Cendant Real Estate Franchise Group from April 2004 until our separation from Cendant in July 2006. From 1997 through 2004 he served as President and Chief Executive Officer of Coldwell Banker Real Estate Corporation.
Bruce Zipf has served as President and Chief Executive Officer of NRT LLC since March 2005 and as President and Chief Operating Officer from February 2004 to March 2005. From January 2003 to February 2004, Mr. Zipf served as Executive Vice President and Chief Administrative Officer for NRT responsible for the financial and administrative sectors that included acquisitions and mergers, financial planning, human resources and facilities, and from 1998 through December 2002, he served as NRT’s Senior Vice President for most of NRT’s Eastern Operations. From 1996 to 1998, Mr. Zipf served as President and Chief Operating Officer for Coldwell Banker Residential Brokerage-New York. Prior to entering the real estate industry, Mr. Zipf was a senior audit manager for Ernst and Young.
Donald J. Casey has served as our President and Chief Executive Officer, Title Resource Group, since our separation from Cendant in July 2006. Mr. Casey was President and Chief Executive Officer, Cendant Settlement Services Group from April 2002 until our separation from Cendant in July 2006. From 1995 until April 2002, he served as Senior Vice President, Brands of PHH Mortgage. From 1993 to 1995, Mr. Casey served as Vice President, Government Operations of Cendant Mortgage. From 1989 to 1993, Mr. Casey served as a secondary marketing analyst for PHH Mortgage Services (prior to its acquisition by Cendant).
Dea Benson has served as our Senior Vice President, Chief Accounting Officer and Controller since February 2008. Prior to being named Chief Accounting Officer of the Company, Ms. Benson served from September 2007 to January 2008 as Chief Accounting Officer of Genius Products, Inc., the managing member and minority owner of Genius Products, LLC, an independent home entertainment distributor. For more than 11 years prior thereto, Ms. Benson held various financial and accounting positions with DreamWorks SKG/Paramount Pictures, most recently from November 2002 to January 2006 as Controller of DreamWorks SKG and from February 2006 to December 2006 as divisional CFO of the Worldwide Home Entertainment division of Paramount Pictures, subsequent to Paramount’s acquisition of DreamWorks SKG. Ms. Benson is a certified public accountant.
Marc E. Becker became a director as of the closing of the Transactions. Mr. Becker is a partner of Apollo. He has been employed with Apollo since 1996. Prior to that time, Mr. Becker was employed by Smith Barney Inc. within its Investment Banking division. Mr. Becker also serves on the boards of directors of Affinion Group, Inc., Countrywide plc, Quality Distribution, Inc., Vantium Capital and SOURCECORP.
V. Ann Hailey became a director in February 2008. Since January 2009, Ms. Hailey has been Chief Financial Officer of Gilt Groupe, Inc., an internet discount retailer of luxury goods. Ms. Hailey had served as Executive Vice President of Limited Brands, Inc. from August 1997 to September 2007, first having served as EVP, Chief Financial Officer from August 1997 until April 2006 and then serving as EVP, Corporate Development until September 2007. She also served as a member of the Limited Brands, Inc. Board of Directors from 2001 to 2006. Prior to joining Limited Brands, Inc. in 1997, Ms. Hailey was Senior Vice President and Chief Financial Officer of Pillsbury Company. Ms. Hailey is a Director of W.W. Grainger, Inc. and serves as a member of its Audit Committee and Board Affairs and Nominating Committee. Ms. Hailey also serves as a Director of Avon, Inc., and serves as a member of its Audit Committee.
Scott M. Kleinman became a director as of the closing of the Transactions. Mr. Kleinman is a partner of Apollo. He has been employed with Apollo since 1996. Prior to that time, Mr. Kleinman was employed by Smith Barney Inc. in its Investment Banking division. Mr. Kleinman also serves on the boards of directors of Hexion Specialty Chemicals, Momentive Performance Materials, Norando Aluminum and Verso Paper.
M. Ali Rashid became a director as of the closing of the Transactions. Mr. Rashid is a principal of Apollo. He has been employed with Apollo since 2000. From 1998 to 2000, Mr. Rashid was employed by the Goldman Sachs Group, Inc. in the Financial Institutions Group of its Investment Banking Division. He is also a director of Countrywide plc, Metals USA, Noranda Aluminum and Quality Distribution, Inc.
The composition of the Board of Directors and the identity of the executive officers of Holdings and Intermediate are identical to those of Realogy. See “Item 13 - Certain Relationships and Related Transactions, and Director Independence” for a summary of the Securityholders Agreement, the Co-Investment Agreement and Management Investor Rights Agreement, under which Apollo has the right to designate members to the Board of Directors of Holdings.
Committees of the Board
The Company has an Audit Committee and Holdings has a Compensation Committee that has authority with respect to compensation matters of the Company.
Holdings Compensation Committee. In February 2008, the Holdings Board established a Compensation Committee, whose members consist of Marc Becker (Chair) and M. Ali Rashid. The purpose of the Holdings Compensation Committee is to:
•
oversee management compensation policies and practices of Holdings and its subsidiaries, including Realogy, including, without limitation, (i) determining and approving the compensation of the Chief Executive Officer and the other executive officers of Domus and its subsidiaries, including Realogy, (ii) reviewing and approving management incentive policies and programs and exercising any applicable rule making authority or discretion in the administration of such programs, and (iii) reviewing and approving equity compensation programs for employees, and exercising any applicable rule making authority or discretion in the administration of such programs;
•
to set and review the compensation of and reimbursement policies for members of the Board of Directors of Holdings, Intermediate and Realogy;
•
to provide oversight concerning selection of officers, management succession planning, expense accounts and severance plans and policies of Domus, Intermediate and Realogy; and
•
to prepare an annual compensation committee report, provide regular reports to the Holdings and Realogy Boards, and take such other actions as are necessary and consistent with the governing law and the organizational documents of Holdings.
Audit Committee. In February 2008, the Realogy Board of Directors established an Audit Committee, whose members consist of V. Ann Hailey (Chair) and Messrs. Becker and Rashid. The Company is not required to comply with the independence criteria set forth in Rule 10A-3(b)(1) under the Exchange Act as it is not a “listed company” with a class of securities registered under Section 12 of the Exchange Act. Nevertheless, Ms. Hailey, our Audit Committee Chair, satisfies the requirements of independence under that Rule and would also be deemed independent under Section 303A.01 and 303A.06 of the New York Stock Exchange Listing Manual. In addition, the Realogy Board has determined that Ms. Hailey is an “audit committee financial expert” as that term is defined under the Rules of the SEC.
The purpose of the Audit Committee is to assist the Board in fulfilling its responsibility to oversee management regarding:
•
Realogy’s systems of internal control over financial reporting and disclosure controls and procedures;
•
the integrity of Realogy’s financial statements;
•
the qualifications, engagement, compensation, independence and performance of Realogy’s independent auditors, their conduct of the annual audit of the Company’s financial statements and their engagement to provide any other services;
•
Realogy’s compliance with legal and regulatory requirements;
•
review of material related party transactions; and
•
compliance with, adequacy of, and any requests for written waivers sought with respect to, any executive officer or director under, Realogy’s code(s) of conduct and ethics.
Code of Ethics
The Board has adopted a code of ethics (the “Code of Conduct”) that applies to all officers and employees, including the Company’s principal executive officer, principal financial officer and principal accounting officer. The Code of Conduct is available in the Ethics For Employees section of the Company’s website at www.realogy.com. The purpose of the Code of Conduct is to promote honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; to promote full, fair, accurate, timely and understandable disclosure in periodic reports required to be filed by the Company; and to promote compliance with all applicable rules and regulations that apply to the Company and its officers.
ITEM 11.
ITEM 11. EXECUTIVE COMPENSATION
Compensation Discussion and Analysis (all amounts in this section are in actual dollars unless otherwise noted)
Company Background. Realogy became an independent, publicly traded company on the New York Stock Exchange on August 1, 2006, following its separation from Cendant pursuant to its plan of separation. In December 2006, Realogy entered into a merger agreement with affiliates of Apollo and that transaction (the “Merger”) was consummated on April 10, 2007. Shortly prior to the consummation of the Merger, Apollo, principally through the Holdings Board of Directors (the “Holdings Board”), whose members then consisted of Apollo’s representatives, Messrs. Marc Becker and M. Ali Rashid, negotiated employment agreements and other arrangements with our named executive officers. (Mr. Silverman, our Chief Executive Officer at the effective time of the Merger, did not enter into an employment agreement.)
The named executive officers who entered into these employment agreements were Richard A. Smith, our President, and, effective November 13, 2007, our Chief Executive Officer; Anthony E. Hull, our Executive Vice President, Chief Financial Officer and Treasurer; Kevin J. Kelleher, President and Chief Executive Officer of Cartus Corporation; Alexander E. Perriello, III, President and Chief Executive Officer of Realogy Franchise Group; and Bruce Zipf, President and Chief Executive Officer of NRT LLC. The Realogy Board has determined that these officers are named executive officers based upon their duties and responsibilities insofar as they are our CEO, our CFO, and our three most highly compensated executive officers other than our CEO and CFO. This
Compensation Disclosure and Analysis describes, among other things, the compensation objectives and the elements of our executive compensation program as embodied by the employment agreements, which remain the core of our executive compensation program.
In February 2008, the Holdings Board established a compensation committee, whose members consist of Messrs. Becker and Rashid (the “Holdings Compensation Committee”). The Holdings Compensation Committee has the power and authority to oversee the compensation policies and programs of Holdings and Realogy and makes all compensation related decisions relating to our named executive officers based upon recommendations from our Chief Executive Officer.
During 2008, the basic elements of compensation for our Chief Executive Officer and our other named executive officers remained essentially unchanged, but in some circumstances were curtailed in light of our efforts to optimize operations in light of a continuing downturn in the residential real estate market and the recession in the U.S. economy.
Compensation Philosophy and Objectives. Our primary objective with respect to executive compensation is to design and implement compensation policies and programs that efficiently and effectively provide incentives to, and motivate, officers and key employees to increase their efforts towards creating and maximizing stockholder value. In connection with the Merger, the Holdings Board developed an executive compensation program designed to reward the achievement of specific annual and long-term Company goals, and which aligns the executives’ interests with those of our stockholders by rewarding performance above established goals, with the ultimate objective of improving stockholder value. The Holdings Board evaluated, and following its establishment in February 2008, the Holdings Compensation Committee evaluates, both performance and compensation to ensure that we maintain our ability to attract and retain superior employees in key positions and that compensation to key employees remains competitive relative to the compensation paid by similar sized companies. We do not rely on peer compensation information in the residential real estate services industry as most of these companies are privately-held and therefore it is difficult for us to obtain this information. We do, however, rely on executive compensation survey data on market comparables. The Holdings Board believed, and the Holdings Compensation Committee believes, executive compensation packages provided by us to our executives, including our named executive officers, should include both cash and stock-based compensation that reward performance as measured against established goals.
In negotiating the initial employment agreements and arrangements with our named executive officers, Apollo (acting through the Holdings Board) placed significant emphasis on aligning management’s interests with those of Apollo. Our named executive officers made significant equity investments in Holdings common stock upon consummation of the Merger and received equity awards that included performance vesting options that would vest upon Apollo and its co-investors receiving reasonable rates of return on its invested capital in Holdings. Other elements of compensation, such as base salary, cash-based incentive compensation, perquisites and benefits remained substantially unchanged post-Merger from the arrangements that had been put in place prior to consummation of the Merger.
Role of Executive Officers in Compensation Decisions. Mr. Richard Smith, our President and Chief Executive Officer, annually reviews the performance of each of our named executive officers (other than his own performance), which is reviewed annually by the Holdings Compensation Committee. The conclusions reached and recommendations based upon these reviews, including with respect to salary adjustment and annual incentive award target and actual payout amounts, are presented to the Holdings Compensation Committee, which has the discretion to modify any recommended adjustments or awards to our executives. The Holdings Compensation Committee has final approval over all compensation decisions for our named executive officers, including approval of recommendations regarding cash and equity awards to all of our officers.
Setting Executive Compensation. Based on the foregoing objectives, the Holdings Board structured our annual and long-term incentive cash and stock-based executive compensation programs to motivate our executives to achieve the business goals set by us and to reward our executives for achieving these goals.
During 2008, the Holdings Compensation Committee structured the executive compensation payable to our named executive officers in a manner consistent with our efforts to optimize operations in light of a continuing downturn in the residential real estate market and the recession in the U.S. economy, as highlighted below:
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It made no changes in base salaries of our named executive officers;
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It established a multi-tier Bonus Plan, with higher performance levels required for payments to named executive officers and other senior executives.
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In June 2008, the Holdings Compensation Committee realized that achievement of even the minimum performance objective under the 2008 Bonus Plan would be difficult to achieve and accordingly approved a 2008-2009 Cash Retention Program; under that program, the named executive officers would be entitled to a minimum payment on or about July 1, 2009 if then employed by us equal to 25% of their target bonus, subject to dollar for dollar reduction for any bonus payment made under the 2008 Bonus Plan. Based upon Mr. Smith’s recommendation, the Holdings Compensation Committee did not include Mr. Smith as an eligible participant in the 2008-2009 Cash Retention Plan; and
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It took note that the equity value of the Holdings common stock declined significantly during 2008, but determined that it was not appropriate in the current environment to address changes in our stock-based compensation program.
Executive Compensation Elements. The principal components of compensation for our named executive officers are: base salary; bonus; management equity investments; management stock option awards; management restricted stock awards; retention; other benefits and perquisites.
Base Salary. We provide our named executive officers and other employees with base salary to compensate them for services rendered during the fiscal year. Base salary ranges for our named executive officers are determined for each executive based on his or her position, scope of responsibility and contribution to our earnings. The initial base salary for our named executive officers was established in their employment agreements entered into upon consummation of the Merger and generally equaled the base salary that the named executive officers had been paid at the time of Realogy’s separation from Cendant in 2006.
Salary levels are reviewed annually as part of our performance review process as well as upon a promotion or other material change in job responsibility. Merit based increases to salaries of the executives, including our named executive officers, are based on the Holdings Compensation Committee’s assessment of individual performance taking into account recommendations from Mr. Smith. In reviewing base salaries for executives, the Holdings Compensation Committee considers primarily an internal review of the executive’s compensation, individually and relative to other officers, and the individual performance of the executive, but does not assign a weight to each criterion when setting base salaries. The Holdings Compensation Committee also considers outside survey data and analysis on market comparables. The Holdings Compensation Committee considers the extent to which the proposed overall operating budget for the upcoming year (which is approved by the Board) contemplates salary increases. Any base salary adjustment is generally made by the Holdings Compensation Committee subjectively based upon the foregoing.
In light of the continuing downturn in the residential real estate market, the Holdings Compensation Committee elected to keep the salaries of the named executive officers constant in 2008, and does not currently expect any increases to the base salaries of our named executive officers in 2009.
Bonus. Our named executive officers participate in an annual incentive compensation program (“Bonus Program”) with performance objectives established by the Holdings Compensation Committee and communicated to our named executive officers generally within 90 days following the beginning of the calendar year. Under their respective employment agreements, the target annual bonuses payable to our named executive officers is 100% of annual base salary, or, in Mr. Smith’s case, given his overall greater responsibilities for the performance of the Company, 200% of annual base salary.
On March 13, 2008, the Holdings Compensation Committee approved the bonus structure for the 2008 fiscal year under Realogy’s 2008 Annual Bonus Plan (the “2008 Bonus Plan”) applicable to executive officers. The 2008 Bonus Plan permitted the payment of cash bonuses based upon pre-established performance criteria for 2008.
The performance criteria under the 2008 Bonus Plan were based upon consolidated and business unit EBITDA-or earnings before interest, taxes, depreciation and amortization. Consolidated and business unit EBITDA was defined to exclude certain expenses not viewed as an accurate indicator of our on-going operating performance, including Cendant legacy charges, the Apollo management fee, non-cash charges for equity awards, purchase accounting adjustments and restructuring charges and to include the benefit of the annualized impact of cost savings enacted during the year as if they occurred at the beginning of the year.
Realogy’s consolidated EBITDA threshold had to be achieved before any named executive officer could qualify for a bonus. If the Realogy consolidated EBTIDA threshold were achieved, Messrs. Smith and Hull’s bonus opportunity would have been based upon Realogy’s consolidated EBITDA results (weighted 50%) and the weighted average of the Business Units’ EBITDA results (weighted 50%) and the bonus opportunity for Messrs. Perriello, Kelleher, and Zipf would have been based upon Realogy’s consolidated EBITDA results (weighted 50%) and their respective Business Unit EBITDA results (weighted 50%).
Under the 2008 Bonus Plan, achievement of a threshold of $615 million consolidated EBITDA would have produced bonus payouts at 15% of target annual bonus amounts. If higher planned target consolidated EBITDA levels were achieved, our named executive officers would have received 75% of their target annual bonus (or in the case of Mr. Smith, 150% of target annual bonus). If the Company’s performance exceeded plan expectations, our named executive officers were provided with the opportunity to receive up to 133% of their target annual bonuses. The Holdings Compensation Committee structured the 2008 Bonus Plan in this manner in an effort to reduce expenses for 2008 while providing our named executive officers with an upside performance opportunity.
Realogy did not meet the minimum consolidated EBITDA threshold of $615 million and accordingly no bonus was payable under the 2008 Bonus Plan.
Pursuant to his employment agreement, Mr. Smith was paid a bonus in the amount of $97,000 during 2008 that he was required to use to purchase the annual premium on an existing life insurance policy. Such bonus payment is an annual obligation of the Company. This benefit is provided to Mr. Smith as the replacement of a benefit previously provided to him by Cendant. Mr. Smith waived his contractual right to receive this bonus with respect to the bonus payable in January 2009 in order to reduce Company expenses.
Retention Plan. In June 2008, the Holdings Compensation Committee approved the 2008-2009 Cash Retention Plan, under which the named executive officers are entitled to an amount equal to 25% of their target bonus amount under their employment agreements if they remain employed with the Company on July 1, 2009. Any bonus under the 2008 Bonus Plan paid to an executive would have reduced dollar for dollar the amount payable to such executive under the retention plan. Following further deterioration of the residential real estate market in the fall of 2008 and Compensation Committee recognition that equity incentives for named executive officers had declined significantly, on February 23, 2009, the Compensation Committee modified the Retention Plan to provide for a second payment equal to the first payment due on November 1, 2009 assuming continued employment. Based upon Mr. Smith’s recommendation, Mr. Smith has elected to not be a participant in the 2008-2009 Cash Retention Plan.
Management Equity Investments. Pursuant to individual subscription agreements dated April 20, 2007, the named executive officers and certain other members of management made equity investments in Holdings through the purchase of Holdings common stock. Our named executive officers purchased an aggregate of 1,550,000 shares at $10 per share for an aggregate investment of $15,500,000.
Management Stock Option and Restricted Stock Awards. The Holdings Board approved our equity incentive program, including its design and the value of awards granted to our officers and key employees. Equity awards were made to our named executive officers on April 10, 2007, upon consummation of the Merger. Our named executive officers were awarded options to purchase an aggregate of 5,812,500 shares of Holdings common stock at an exercise price of $10 per share and received restricted stock awards for an aggregate of 375,000 shares of Holdings common stock.
The equity investments, stock option and restricted stock awards were structured to incentivize management to generate substantial equity value and to participate with our investors in the increase in our value.
During 2008, the Holdings Compensation Committee took note that the equity value of the Holdings common stock declined significantly during 2008, but determined that it was not appropriate in the current environment, including the continuing prolonged and deep downturn in the residential housing market, to address changes in our stock-based compensation program.
Neither the Holdings Board nor the Holdings Compensation Committee has adopted any formal policy regarding the timing of any future equity awards.
Other Benefits and Perquisite Programs. Immediately following our separation from Cendant, executive officers and a number of our key employees, including our named executive officers, participated in programs that provide certain perquisites, including items such as access to Company automobiles for personal use, financial and tax planning, executive medical benefits and physical exams, first-class air travel and in the case of Mr. Smith, access to our aircraft for personal use. These programs were developed by Cendant and were adopted by us upon our separation from Cendant.
Since our separation, we have substantially curtailed these programs in order to reduce operating costs. Specifically, we terminated financial planning perquisites. Further, the Realogy Compensation Committee adopted a policy in December 2006 that limited use of the previous corporate-owned aircraft or our current fractional aircraft ownership (only Mr. Smith has access, subject to availability, for personal use and business use is limited to executive officers and subject to further limitations) and management adopted a policy that limits first-class air travel for our employees.
Our executive officers, including our named executive officers, may participate in either our 401(k) plan or non-qualified deferred compensation plan. Prior to 2008, these plans provided for a Company matching contribution of 100% of amounts contributed by the officer, subject to a maximum of 6% of eligible compensation-a level that had been established by Cendant and carried over when we separated from Cendant in 2006. In early 2008, in an effort to reduce costs, we temporarily suspended the Company match under our 401(k) plan and temporarily froze the ability of new participants to obtain a Company match under our officer deferred compensation plan (or for existing participants to change elections). If and when we decide to re-introduce the Company match, we would expect the level of the match to be lower than the previous 6% level. Mr. Kelleher is our only executive officer that participates in a defined benefit pension plan (future accruals of benefits were frozen on October 31, 1999, though he still accrued service after such date for the purpose of eligibility for early retirement), and this participation relates to his former service with PHH Corporation.
In November 2008, as part of management’s efforts to streamline costs, we decided to terminate the program by which executives were provided access to Company-leased automobiles for personal use. In connection with such termination, the Company purchased the existing vehicles and provided each of the named executive officers with the option to take title to the existing vehicle, either in 2008 or 2009, with the fair market value of the automobile so transferred being imputed income to the executive at the date of transfer, or to terminate their access to the Company leased automobile by the end of 2008. Mr. Smith elected to not take ownership of his Company-leased automobile, while Messrs. Hull, Perriello, Zipf and Kelleher elected to take title to their respective automobiles in 2009.
Severance Pay and Benefits upon Termination of Employment under Certain Circumstances. The employment agreements entered into with our named executive officers at the effective time of the Merger provide for severance pay and benefits under certain circumstances. The level of the severance pay and benefits is substantially consistent with the level of severance pay and benefits that those named executive officers were entitled to under the agreements they had with Realogy following its separation from Cendant but prior to the consummation of the Merger.
Severance pay-a multiple of the sum of annual base salary and target bonus-and welfare benefits are payable upon a termination without cause by the Company or a termination for good reason by the executive. The multiple for Mr. Smith, as our Chief Executive Officer, is 300%, for Mr. Hull, as our Chief Financial Officer, 200% and for the balance of the named executive officers, 100% (though in the case of such a termination of employment within 12 months following a Sale of the Company or within 12 months of the Merger, their multiple is 200%). The higher multiples of base salary and target bonus payable to Mr. Smith and Hull are based upon Mr. Smith’s overall greater responsibilities for our performance and Mr. Hull’s significant responsibilities as our Chief Financial Officer. Mr. Smith is our only officer who has tax reimbursement protection for “golden parachute excise taxes,” subject to a cutback of up to 10%-a benefit he had under his employment agreement that he entered into at the time of our separation from Cendant.
The agreements also provide for severance pay-100% of annual base salary-and welfare benefits to each named executive officer in the event his employment is terminated by reason of death or disability. For more information, see “Potential Payments upon Termination or Change in Control.”
The Holdings Board believed, and the Holdings Compensation Committee believes, the severance pay and benefits payable to our named executive officers under the foregoing circumstances aid in the attraction and retention of these executives as a competitive practice and is balanced by the inclusion of restrictive covenants (such as non-compete provisions) to protect the value of Realogy and Holdings following a termination of an executive’s employment without cause or by the employee for good reason. In addition, we believe the provision of these contractual benefits will keep the executives focused on the operation and management of the business. As set forth above, the enhanced severance pay and benefits payable to Messrs. Kelleher, Perriello and Zipf in the event of a termination of employment under certain circumstances within 12 months of a Sale of the Company are substantially consistent with the contractual rights they had prior to the Merger.
Forfeiture of Awards in the event of Financial Restatement. The Company has not adopted a policy with respect to the forfeiture of equity incentive awards or bonuses in the event of a restatement of financial results, though each of the employment agreements with the named executive officers includes within the definition of termination for “cause”, an executive purposefully or negligently making (or being found to have made) a false certification to the Company pertaining to its financial statements.
Compensation Committee Report
The Holdings Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis required by Item 402(b) of Regulation S-K with management and, based on such review and discussions, the Holdings Compensation Committee recommended to the Realogy Board (and Holdings Board) that the Compensation Discussion and Analysis be included in this Annual Report.
DOMUS HOLDINGS CORP.
COMPENSATION COMMITTEE
Marc E. Becker, Chairman
M. Ali Rashid
Summary Compensation Table
The following table sets forth the compensation we provided in 2006, 2007 and 2008 to our named executive officers:
(1) Mr. Smith received a bonus of $97,000 with respect to 2008, the proceeds of which he was required to use to purchase the annual premium on an existing life insurance policy. This benefit is provided to Mr. Smith as the replacement of a benefit previously provided to him by Cendant.
(2) Each named executive officer received a grant of Holdings restricted stock in connection with the consummation of the Merger in 2007. The amounts set forth in this column with respect to 2008 reflect our expenses accrued during 2008 in connection with the 2007 equity grant of Holdings restricted stock. The assumptions we used in determining the value of these amounts under FAS 123(R) are described in Note 12 “Stock-Based Compensation” to our consolidated and combined financial statements included elsewhere in this Annual Report.
(3) Each named executive officer received a grant of Holdings non-qualified stock options in connection with the consummation of the Merger in 2007. The amounts set forth in this column with respect to 2008 reflect our expense accrued during 2008 in connection with the 2007 equity grant of Holdings non-qualified stock options. The assumptions we used in determining the value of these amounts under FAS 123(R) are described in Note 12 “Stock-Based Compensation” to our consolidated and combined financial statements included elsewhere in this Annual Report.
(4) None of our named executive officers (other than Mr. Kelleher) is a participant in any defined benefit pension arrangement. The amounts in this column with respect to 2008 reflect the aggregate change in the actuarial present value of the accumulated benefit under the Realogy Pension Plan from December 31, 2007 to December 31, 2008. See “-Realogy Pension Benefits” for additional information regarding the benefits accrued for Mr. Kelleher and Note 9 “Employee Benefit Plans-Defined Benefit Pension Plan in the Notes to Consolidated and Combined Financial Statements included elsewhere in this Annual Report for more information regarding the calculation of our pension costs.
(5) Set forth in the table below is information regarding all other compensation paid or provided in 2008 to our named executive officers.
All Other Compensation
(a) Set forth in the table below is information regarding perquisites and other personal benefits paid or provided to our named executive officers.
(b) Amount reflects tax-assistance cash payments to cover tax amounts imputed on automobile and miscellaneous items.
(c) Reflects Company matching contributions in 2008 under our qualified 401(k) plan and/or our non- qualified officer deferred compensation plan. We eliminated the matching contributions to the 401(k) plan in February 2008.
Perquisites and Other Personal Benefits
Grants of Plan-Based Awards Table for Fiscal Year 2008
None of the named executive officers were granted restricted stock awards or stock options or other stock-based compensation during 2008.
Although our named executive officers were eligible to receive awards under the 2008 Bonus Plan, as described in the Compensation Discussion & Analysis, no payouts were made as the threshold performance objective was not achieved. If the EBITDA threshold, target or maximum amounts had been achieved, our named executive officers would have received the payout amounts noted in the following table:
Grants of Plan-Based Awards in Fiscal Year 2008
Stock Incentive Plan
In connection with the completion of the Merger, Holdings adopted the Stock Incentive Plan and subsequently amended the Stock Incentive Plan in November 2007 to increase the number of shares reserved thereunder from 15 to 20 million. The Stock Incentive Plan is administered by the board of directors of Holdings (both prior to and subsequent to the Merger) and the Holdings Compensation Committee. Awards granted under the Stock Incentive Plan may be nonqualified stock options, rights to purchase shares of Holdings Common Stock, restricted stock, restricted stock units and other awards settleable in, or based upon, Holdings Common Stock. Awards may be granted under the Stock Incentive Plan only to persons who are employees, consultants or directors of Holdings or any of its subsidiaries on the date of the grant.
All of the shares of Holdings common stock purchased by management as well as the restricted stock awards and stock options granted to management (including board members) in 2007 are subject to the Stock Incentive Plan. See “Item 12
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
Security Ownership of Certain Beneficial Holders and Management
All of our issued and outstanding common stock is owned by our parent, Domus Intermediate Holdings Corp. (“Intermediate”), and all of the issued and outstanding common stock of Intermediate is owned by its parent, Holdings. Our common stock owned by Intermediate constitutes all of our issued and outstanding capital stock. The following table sets forth information regarding the beneficial ownership of Holdings’ common stock as of February 23, 2009 by (i) each person known to beneficially own more than 5% of the common stock of Holdings, (ii) each of our named executive officers, (iii) each member of our Board of Directors and (iv) all of our executive officers and members of our Board of Directors as a group. At February 23, 2009, there were 200,469,675 shares of common stock of Holdings outstanding.
The amounts and percentages of common stock beneficially owned are reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities. Under the rules of the SEC, a person is deemed to be a “beneficial owner” of a security if that person has or shares “voting power,” which includes the power to vote or to direct the voting of such security, or “investment power,” which includes the power to dispose of or to direct the disposition of such security. A person is also deemed to be a beneficial owner of any securities of which that person has a right to acquire beneficial ownership within 60 days. Under these rules, more than one person may be deemed a beneficial owner of the same securities and a person may be deemed a beneficial owner of securities as to which he has no economic interest.
Except as indicated by footnote, the persons named in the table below have sole voting and investment power with respect to all shares of common stock shown as beneficially owned by them.
* Less than one percent.
(1) Reflects the outstanding shares of capital stock of Domus Holdings Corp. are held of record by Apollo Investment Fund VI, L.P. (“AIF VI LP”), Domus Investment Holdings, LLC (“Domus LLC”), Domus Co-Investment Holdings LLC (“Domus Co-Invest LLC”) and various members of management of Holdings and Realogy. The general partner of AIF VI LP is Apollo Advisors VI, L.P. (“Advisors VI”) and the manager of AIF VI LP is Apollo Management VI, L.P. (“Management VI”). Management VI also serves as the manager or managing member of each of Domus LLC and Domus Co-Invest LLC. As such, Management VI has voting and investment power over the shares of Domus held by AIF VI LP, Domus LLC and Domus Co-Invest LLC. Leon Black, Joshua Harris and Marc Rowan, each of whom disclaims beneficial ownership of the shares of Realogy held by Domus Intermediate except to the extent of any pecuniary interest therein, are the members of the board of managers of Apollo Management Holdings GP, LLC, the general partner of Apollo Management Holdings, LP, the sole member-manager of Apollo Management GP, LLC, which is the general partner of Apollo Management, L.P., which is the sole member
and manager of AIF VI Management, LLC, which serves as the general partner of Management VI (collectively, the “Apollo Management Entities”). Messrs. Black, Rowan and Harris are the members of the board of managers of Apollo Principal Holdings I GP, LLC, which is the general partner of Apollo Principal Holdings I, L.P., which is the sole member of Apollo Capital Management VI, LLC, which serves as the general partner of Advisors VI (collectively, the “Apollo Advisors Entities”). The address of AIF VI LP, Domus LLC, Domus Co- Invest LLC and the Apollo Advisors Entities is c/o Apollo Management, L.P., One Manhattanville Road, Suite 201, Purchase, New York 10577. The address for the Apollo Management Entities is c/o Apollo Management VI, L.P., 9 West 57th Street, 43rd Floor, New York, NY 10019. Does not include 3,290,975 shares of common stock and 234,000 shares of unvested restricted stock beneficially owned by our directors and executive officers and other members of our management, for which AIF VI, LP and Domus LLC have voting power pursuant to the Management Investor Rights Agreement but not investment power.
(2) Includes 500,000 shares of common stock issuable upon currently exercisable options but does not include 4,500,000 shares of common stock that are issuable upon exercise of options that remain subject to vesting.
(3) Includes 50,000 shares of restricted stock granted under the Plan and 622,500 shares of common stock issuable upon exercise of currently exercisable options or options that become exercisable on April 10, 2009. Does not include an additional 2,490,000 shares of common stock that are issuable upon exercise of options that remain subject to vesting.
(4) Includes 50,000 shares of restricted stock granted under the Plan and 150,000 shares of common stock issuable upon exercise of currently exercisable options or options that become exercisable on April 10, 2009. Does not include an additional 600,000 shares of common stock that are issuable upon exercise of options that remain subject to vesting.
(5) Includes 12,500 shares of restricted stock granted under the Plan and 120,000 shares of common stock issuable upon exercise of currently exercisable options or options that become exercisable on April 10, 2009. Does not include an additional 480,000 shares of common stock that are issuable upon exercise of options that remain subject to vesting.
(6) Includes 25,000 shares of restricted stock granted under the Plan and 150,000 shares of common stock issuable upon exercise of currently exercisable options or options that become exercisable on April 10, 2009. Does not include an additional 600,000 shares of common stock that are issuable upon exercise of options that remain subject to vesting.
(7) Includes 50,000 shares of restricted stock granted under the Plan and 120,000 shares of common stock issuable upon exercise of currently exercisable options or options that become exercisable on April 10, 2009. Does not include an additional 480,000 shares of common stock that are issuable upon exercise of options that remain subject to vesting.
(8) Messrs. Becker, Kleinman and Rashid are each principals and officers of certain affiliates of Apollo. Although each of Messrs. Becker, Kleinman and Rashid may be deemed the beneficial owner of shares beneficially owned by Apollo, each of them disclaims beneficial ownership of any such shares.
(9) Includes 9,000 shares of restricted stock granted under the Plan and 12,500 shares of common stock issuable upon exercise of currently exercisable options. Does not include an additional 37,500 shares of common stock that are issuable upon exercise of options that remain subject to vesting.
(10) Includes 234,000 shares of restricted stock granted under the Plan and options to purchase 1,872,500 shares of common stock issuable upon exercise of currently exercisable options or options that become exercisable within 60 days following February 23, 2009. Does not include an additional 10,200,000 shares of common stock that are issuable upon exercise of options that remain subject to vesting.
Equity-Based Compensation Plans
Securities Authorized for Issuance Under Equity Compensation Plan
In connection with the closing of the Transaction on April 10, 2007, the Holdings Board adopted the 2007 Stock Incentive Plan (the “Stock Incentive Plan”). The Stock Incentive Plan authorizes the Holdings Board, or a committee thereof, to grant unqualified stock options, rights to purchase shares of common stock, restricted stock, restricted stock units and other awards settleable in, or based upon, Holdings Common Stock, to directors
and employees of, and consultants to, Holdings and its subsidiaries, including Realogy. On November 13, 2007, the Holdings Board amended and restated the Stock Incentive Plan to increase the number of shares of Holdings common stock authorized for issuance thereunder from 15 million to 20 million. For additional discussion of our equity compensation including the Plan, see Note 12 “Stock Based Compensation” of our consolidated and combined financial statements included elsewhere in this Annual Report. The table below summarizes the equity issuances under the Stock Incentive Plan as of December 31, 2008:
(1) Does not include 234,000 restricted shares outstanding at December 31, 2008.
(2) In addition, of the Holdings shares of common stock issued and outstanding at December 31, 2008, there were 2,271,000 shares of common stock that had been purchased or had vested under the Stock Incentive Plan pursuant to individual subscription agreements and restricted stock awards.
(3) Also gives effect to shares issued under the Stock Incentive Plan as described in footnote (2).
ITEM 13.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
Apollo Management Fee Agreement
In connection with the Transactions, Apollo also entered into a management fee agreement with us which will allow Apollo and its affiliates to provide certain management consulting services to us through the end of 2016 (subject to possible extension). The agreement may be terminated at any time upon written notice to us from Apollo. We will pay Apollo an annual management fee for this service up to the sum of (1) the greater of $15 million and 2.0% of our annual Adjusted EBITDA for the immediately preceding year, plus out of pocket costs and expenses in connection therewith plus (2) any deferred fees (to the extent such fees were within such amount in clause (1) above originally. The 2007 management fee was capped at $10.5 million. If Apollo elects to terminate the management fee agreement, as consideration for the termination of Apollo’s services under the agreement and any additional compensation to be received, we will agree to pay to Apollo the net present value of the sum of the remaining payments due to Apollo and any payments deferred by Apollo.
In addition, in the absence of an express agreement to the contrary, at the closing of any merger, acquisition, financing and similar transaction with a related transaction or enterprise value equal to or greater than $200 million, Apollo will receive a fee equal to 1% of the aggregate transaction or enterprise value paid to or provided by such entity or its stockholders (including the aggregate value of (x) equity securities, warrants, rights and options acquired or retained, (y) indebtedness acquired, assumed or refinanced and (z) any other consideration or compensation paid in connection with such transaction). We agreed to indemnify Apollo and its affiliates and their directors, officers and representatives for potential losses relating to the services to be provided under the management fee agreement.
During 2008, Realogy paid Apollo $10.5 million for the services rendered under this agreement during 2007. Realogy has recognized (but has not paid) $15 million of expense related to the management fee for services rendered during 2008.
Securityholders Agreement
Upon consummation of the Transactions, Holdings and each of its equity owners, other than management holders, entered into a securityholders agreement. The securityholders agreement generally sets forth the rights and obligations of the co-investment entity which has been formed for the sole purpose of owning shares of Holdings common stock on behalf of certain co-investors. The securityholders agreement provides for limited preemptive rights to the co-investors with respect to issuances of equity securities by Holdings or its subsidiaries (exercisable indirectly through the co-investment entity), certain rights and obligations with respect to the sale of shares of Holdings common stock, and certain informational rights. The securityholders agreement also provides for restrictions on the ability of the co-investment entity to transfer its shares in Holdings, other than in connection with sales initiated by Apollo. The securityholders agreement also provides the co-investment entity and Apollo Investment Fund VI, L.P. each with the right to appoint one director to the board of directors of Holdings and provides Apollo with the right to designate three directors to the board of directors of Holdings, in each case, for so long as such entity continues to own any shares of Holdings common stock.
Co-Investor Agreement
In addition to the securityholders agreement, the co-investors entered into a co-investor agreement that governs the co-investment entity as well as sets forth the rights and obligations of the co-investors. The co-investor agreement provides an additional framework for the exercise of limited preemptive rights provided for in the securityholders agreement, generally prohibits transfers of interests in the co-investment entity and provides that the co-investors will receive their pro rata portion of any proceeds received by the co-investment entity in respect of the shares of Holdings common stock owned by the co-investment entity. The co-investor agreement provides that Apollo Management VI, L.P. will be the managing member and in such capacity will exercise all powers of the co-investment entity, including the right to select the co-investment entity’s designee to the Holdings board of directors and the voting of the shares of Holdings owned by the co-investment entity.
Management Investor Rights Agreement
Upon consummation of the Transactions, Holdings entered into a management investor rights agreement with Apollo Investment Fund VI, L.P. (“Apollo Investment”), Domus Investment Holdings, LLC (together with Apollo Investment, “Apollo Group”) and certain management holders. The agreement, among other things:
•
allows securityholders to participate, and grants Apollo Group the right to require securityholders to participate, in certain sales or transfers of shares of Holdings’ common stock;
•
restricts the ability of securityholders to transfer, assign, sell, gift, pledge, hypothecate, encumber, or otherwise dispose of Holdings’ common stock;
•
allows securityholders, subject to mutual indemnification and contribution rights, to include certain securities in a registration statement filed by Holdings with respect to an offering of its common stock (i) in connection with the exercise of any demand rights by Apollo Group or any other securityholder possessing such rights, or (ii) in connection with which Apollo Group exercises “piggyback” registration rights;
•
allows Holdings and Apollo Group to repurchase Holdings’ common stock held by management holders upon termination of employment or their bankruptcy or insolvency; and
•
obligates the management holders to abide by certain nonsolicitation, noncompetition, confidentiality and proprietary rights provisions.
The agreement will terminate upon the earliest to occur of the dissolution of Holdings, the occurrence of any event that reduces the number of parties to the agreement to one, and the consummation of a control disposition.
Other
On June 30, 2008, Affinion Group, Inc., a company controlled by Apollo, entered into an Assignment and Assumption Agreement (“AAA”) with Avis Budget Group, Wyndham Worldwide and Realogy. Prior to this transaction, Avis Budget Group, Wyndham Worldwide and Realogy had provided certain loyalty program-related benefits and services to credit card holders of a major financial institution and received a fee from this financial institution based on spending by the credit card holders. One-half of the loyalty program was deemed a contingent asset and contingent liability under the terms of the Separation Agreement, with Realogy being responsible for 62.5% of such half or 31.25% of the assets and liabilities under the entire program. Under the AAA, Affinion Group, Inc. assumed all of the liabilities and obligations of Avis Budget Group, Wyndham Worldwide and Realogy relating to the loyalty program, including the fulfillment of the then-outstanding loyalty program points obligations. In connection with the transaction, on the June 30, 2008 closing date, as consideration for Affinion Group, Inc.’s assignment and assumption of Realogy’s proportionate share (31.25%) of the fulfillment obligation relating to the loyalty program points outstanding as of the closing date, Realogy agreed to pay approximately $8 million in the aggregate, of which $2,343,750 was paid on July 1, 2008 and $2,109,375, $2,031,250 and $1,484,375 will be payable on the first, second and third anniversaries, respectively, of the closing date).
The Company has entered into certain transactions in the normal course of business with entities that are owned by affiliates of Apollo. During 2008, the Company recognized revenue related to these transactions of approximately $1 million in the aggregate.
Policies and Procedures for Review of Related Party Transactions
Pursuant to its written charter, our audit committee must review and approve all material related-party transactions, which include any related party transactions that we would be required to disclose pursuant to Item 404 of Regulation S-K promulgated by the SEC. In determining whether to approve a related party transaction, our audit committee will consider a number of factors including whether the related party transaction is on terms and conditions no less favorable to us than may reasonably be expected in arm’s-length transactions with unrelated parties. In December 2008, the audit committee approved a written policy with respect to the approval of related party transactions. Under that policy, the Audit Committee delegated to the General Counsel or Chief Financial Officer the authority to approve certain related party transactions that do not require disclosure under Item 404 of Regulation S-K as well as related party transactions with other Apollo portfolio companies, provided the consideration to be paid or received by the other Apollo portfolio companies does not exceed $2.5 million and the transaction is in the ordinary course of business.
Director Independence
We are not a listed issuer whose securities are listed on a national securities exchange or in an inter-dealer quotation system which has requirements that a majority of the board of directors be independent. However, if we were a listed issuer whose securities were traded on the New York Stock Exchange and subject to such requirements, we would be entitled to rely on the controlled company exception contained in the NYSE Listing Manual, Section 303A.00 for the exception from the independence requirements related to the majority of our Board of Directors and for the independence requirements related to our Compensation Committee. Pursuant to NYSE Listing Manual, Section 3.03A.00, a company of which more than 50% of the voting power is held by an individual, a group or another company is exempt from the requirements that its board of directors consist of a majority of independent directors and that the compensation committee (and, if applicable, the nominating committee) of such company be comprised solely of independent directors. At February 23, 2009, Apollo Management VI, L.P. beneficially owned 98.7% of the voting power of the Company which would qualify the Company as a controlled company eligible for exemption under the rule.
For a discussion of the independence of members of our Audit Committee, see “Item 10. Directors, Executive Officers and Corporate Governance-Audit Committee.”
ITEM 14.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
Deloitte & Touche LLP served as the auditors for the Company’s financial statements for 2008 and 2007 and is serving in such capacity for the current fiscal year.
Principal Accounting Firm Fees. Fees billed to the Company by Deloitte & Touche LLP, the member firms of Deloitte Touche Tohmatsu, and their respective affiliates (collectively, the “Deloitte Entities”) for the years ended December 31, 2008 and 2007 were as follows:
Audit Fees. The aggregate fees billed for the audit of the Company’s annual financial statements for the fiscal years ended December 31, 2008 and 2007 and for the reviews of the financial statements included in the Company’s Quarterly Reports on Form 10-Q (or quarterly reports to bondholders and indenture trustees) and for other attest services primarily related to financial accounting consultations, comfort letters and consents related to SEC registration statements, the April 2007 bond offering memorandum, the Company’s 2007 Registration Statement on Form S-4 and UFOC filings in various states, regulatory and statutory audits and agreed-upon procedures were $4.8 million and $4.8 million, respectively.
Audit-Related Fees. The aggregate fees billed for audit-related services for the fiscal years ended December 31, 2008 and 2007 were $0.2 million and $0.4 million, respectively. These fees relate primarily to statutory audits not required by state or regulations and accounting consultation for contemplated transactions for the fiscal years ended December 31, 2008 and 2007.
Tax Fees. The aggregate fees billed for tax services for the fiscal years ended December 31, 2008 and 2007 were $0.8 million and $1.5 million, respectively. These fees relate to tax compliance, tax advice and tax planning for the fiscal years ended December 31, 2008 and 2007.
All Other Fees. There were no other fees for the fiscal years ended December 31, 2008 or 2007.
During 2008 and 2007, Avis Budget Group engaged Deloitte and Touche LLP for tax and other services related to items arising under the Separation Agreement. Realogy reimburses Avis Budget Group for 62.5% of the fees so incurred. The amount of tax and other fees reimbursed by the Company were approximately $1.4 million and $0.2 million, respectively, for 2008 and approximately $6.3 million and $1.1 million for 2007, respectively. These amounts are not included in the amounts set forth elsewhere in Item 14.
Prior to the Merger, Realogy had an Audit Committee, comprised solely of independent directors. Upon consummation of the Merger, the Audit Committee was disbanded, and our Board took oversight responsibilities with respect to our independent auditor relationship, until February 26, 2008, when we reconstituted the Audit Committee. (Following its formation, the reconstituted Audit Committee reestablished the pre-approval of auditor services policy and the policy on non-hiring of auditor personnel).
From the consummation of the Merger until we filed our Registration Statement on Form S-4 on December 18, 2007, we were not subject to the obligations under the Sarbanes-Oxley Act of 2002 relating to auditor independence. During this period, our auditors remained subject to the AICPA rules and as such our Board monitored Deloitte Entities’ compliance with those rules.
The Company’s Audit Committee (our Board during the period from April 10, 2007 until February 26, 2008), is responsible for appointing the Company’s independent auditor and approving the terms of the independent auditor’s services. The Audit Committee (our Board during the period from April 10, 2007 until February 26, 2008), considered the non-audit services to be provided by the Deloitte Entities and determined that the provision of such services was compatible with maintaining the Deloitte Entities’ independence.
The Pre-Merger Audit Committee established a policy for the pre-approval of all audit and permissible non-audit services to be provided by the independent auditor, as described below. The Pre-Merger Audit Committee also adopted a policy prohibiting the Company from hiring the Deloitte Entities’ personnel, if such person participated in the current annual audit, or immediately preceding annual audit of the Company’s financial
statements, and is being hired in a “financial reporting oversight role” as defined by the PCAOB. During the period from April 10, 2007 until February 26, 2008, when the Board had direct oversight of the independent auditor relationship, it did not formally continue the foregoing polices, but nevertheless monitored the Deloitte Entities’ compliance with the AICPA independence and pre-approval policies. (Following its formation, the reconstituted Audit Committee reestablished the pre-approval of services and non-hiring of auditor personnel policies in substantially the same form as the Pre-Merger Audit Committee had in place.)
Fees billed by the Deloitte Entities related to Realogy’s separation from Cendant and all fees relating to services provided prior to the 2006 third quarter were approved by the Cendant Audit Committee prior to the Separation. All other services performed by the independent auditor in 2006 were pre-approved in accordance with the pre-approval policy and procedures adopted by the Audit Committee. This policy describes the permitted audit, audit-related, tax and other services (collectively, the “Disclosure Categories”) that the independent auditor may perform. The policy requires that prior to the beginning of each fiscal year, a description of the services (the “Service List”) anticipated to be performed by the independent auditor in each of the Disclosure Categories in the ensuing fiscal year be presented to the Audit Committee for approval.
Except as discussed below, any requests for audit, audit-related, tax and other services not contemplated by the Service List must be submitted to the Audit Committee for specific pre-approval, irrespective of the amount, and cannot commence until such approval has been granted. Normally, pre-approval is provided at regularly scheduled meetings of the Audit Committee. However, the authority to grant specific pre-approval between meetings, as necessary, has been delegated to the Chairman of the Audit Committee. The Chairman will update the full Audit Committee at the next regularly scheduled meeting for any interim approvals granted.
On a quarterly basis, the Audit Committee reviews the status of services and fees incurred year-to-date as compared to the Service List.
The policy contains a de minimis provision that operates to provide retroactive approval for permissible non-audit services under certain circumstances. No services were provided by the Deloitte Entities during 2008 and 2007 under such provision.
PART IV
ITEM 15.
ITEM 15. EXHIBITS, FINANCIAL STATEMENTS AND SCHEDULES
(A)(1) and (2) Financial Statements
The consolidated and combined financial statements of the registrant listed in the “Index to Financial Statements” on page together with the report of Deloitte & Touche LLP, independent auditors, are filed as part of this Annual Report.
(A)(3) Exhibits
See Index to Exhibits.
(A)(4) Consolidated Financial Statement Schedules
Schedule II-Valuation and Qualifying Accounts
SIGNATURES
Pursuant to the requirements of Section 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized, on the 25th of February 2009.
REALOGY CORPORATION
(Registrant)
BY:
/S/ RICHARD A. SMITH
Name:
Richard A. Smith
Title:
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Richard A. Smith, Anthony E. Hull and Marilyn J. Wasser, and each of them severally, his or her true and lawful attorney-in-fact with power of substitution and resubstitution to sign in his or her name, place and stead, in any and all capacities, to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the Securities Exchange Act of 1934 and any rules, regulations and requirements of the U.S. Securities and Exchange Commission in connection with this Annual Report on Form 10-K and any and all amendments hereto, as fully and for all intents and purposes as he or she might do or could do in person, and hereby ratifies and confirms all said attorneys-in-fact and agents, each acting alone, and his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this Annual Report has been signed below by the following persons in the capacities and on the dates indicated below.
SUPPLEMENTAL INFORMATION TO BE FURNISHED WITH REPORTS FILED PURSUANT TO SECTION 15(D) OF THE ACT BY REGISTRANTS WHICH HAVE NOT REGISTERED SECURITIES PURSUANT TO SECTION 12 OF THE ACT
The registrant has not sent, and following the filing of this Annual Report on Form 10-K with the Securities and Exchange Commission does not intend to send, to its security holders an annual report to security holders or proxy material for the year ended December 31, 2008 or with respect to any annual or other meeting of security holders.
INDEX TO FINANCIAL STATEMENTS
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholder of Realogy Corporation
Parsippany, New Jersey
We have audited the accompanying consolidated balance sheets of Realogy Corporation and subsidiaries (the “Company”), as of December 31, 2008 and 2007 (successor), and the related consolidated and combined statements of operations, stockholder’s equity (deficit) and cash flows for the year ended December 31, 2008 (successor), the period from April 10, 2007 to December 31, 2007 (successor), the period from January 1, 2007 to April 9, 2007 (predecessor) and the year ended December 31, 2006 (predecessor). Our audits also included the financial statement schedule listed in the Index at Item 15. These consolidated and combined financial statements and financial statement schedule are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated and combined financial statements and financial statement schedule based on our audits.
We conducted our audits 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 consolidated and combined 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 financial position of the Company as of December 31, 2008 and 2007 (successor), and the results of its operations and its cash flows for the year ended December 31, 2008 (successor), the period from April 10, 2007 to December 31, 2007 (successor), the period from January 1, 2007 to April 9, 2007 (predecessor) and the year ended December 31, 2006 (predecessor), in conformity with accounting principles generally accepted in the United States of America. Also, in our opinion, such financial statement schedule, when considered in relation to the basic consolidated and combined financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein.
As discussed in Note 2 to the consolidated and combined financial statements, the Company adopted FASB Interpretation 48, Accounting for Uncertainty in Income Taxes-an interpretation of FASB Statement 109 as of January 1, 2007.
As discussed in Note 1 to the consolidated and combined financial statements, effective April 10, 2007, the Company was acquired through a merger in a business combination accounted for as a purchase.
Also as discussed in Note 1 to the consolidated and combined financial statements, prior to its separation from Cendant Corporation (“Cendant”), the Company was comprised of the assets and liabilities used in managing and operating the real estate services businesses of Cendant. Included in Notes 13 and 14 of the consolidated and combined financial statements is a summary of transactions with related parties. Further as discussed in Note 14 to the consolidated and combined financial statements, in connection with its separation from Cendant, the Company entered into certain guarantee commitments with Cendant and has recorded the fair value of these guarantees as of July 31, 2006.
/s/ Deloitte and Touche LLP
Parsippany, New Jersey
February 25, 2009
REALOGY CORPORATION AND THE PREDECESSOR
CONSOLIDATED AND COMBINED STATEMENTS OF OPERATIONS
(In millions)
See Notes to Consolidated and Combined Financial Statements.
REALOGY CORPORATION
CONSOLIDATED BALANCE SHEETS
(In millions)
See Notes to Consolidated and Combined Financial Statements.
REALOGY CORPORATION AND THE PREDECESSOR
CONSOLIDATED AND COMBINED STATEMENTS OF CASH FLOWS
(In millions)
REALOGY CORPORATION AND THE PREDECESSOR
CONSOLIDATED AND COMBINED STATEMENTS OF CASH FLOWS (CONT’D)
(In millions)
See Notes to Consolidated and Combined Financial Statements.
REALOGY CORPORATION AND THE PREDECESSOR
CONSOLIDATED AND COMBINED STATEMENTS OF
STOCKHOLDER’S EQUITY (DEFICIT)
(In millions)
REALOGY CORPORATION AND THE PREDECESSOR
CONSOLIDATED AND COMBINED STATEMENTS OF
STOCKHOLDER’S EQUITY (DEFICIT) (CONT’D)
(In millions)
See Notes to Consolidated and Combined Financial Statements.
REALOGY CORPORATION AND THE PREDECESSOR
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS
(Unless otherwise noted, all amounts are in millions, except per share amounts)
1. BASIS OF PRESENTATION
Realogy Corporation (“Realogy” or “the Company”), a Delaware corporation, was incorporated on January 27, 2006 to facilitate a plan by Cendant Corporation (“Cendant”) to separate Cendant into four independent companies-one for each of Cendant’s real estate services, travel distribution services (“Travelport”), hospitality services (including timeshare resorts) (“Wyndham Worldwide”), and vehicle rental businesses (“Avis Budget Group”). Prior to July 31, 2006, the assets of the real estate services businesses of Cendant were transferred to Realogy and on July 31, 2006, Cendant distributed all of the shares of the Company’s common stock held by it to the holders of Cendant common stock issued and outstanding on the record date for the distribution, which was July 21, 2006 (the “Separation”). The Separation was effective on July 31, 2006. The Separation and Distribution Agreement dated July 27, 2006 (the “Separation and Distribution Agreement”) among Realogy, Cendant, Wyndham Worldwide and Travelport and the Tax Sharing Agreement dated as of July 28, 2006, as amended (the “Tax Sharing Agreement”), set forth the transactions regarding the Separation and the other agreements that govern certain aspects of our relationship with Cendant, Wyndham Worldwide and Travelport.
On December 15, 2006, the Company entered into an agreement and plan of merger (the “Merger”) with Domus Holdings Corp. (“Holdings”) and Domus Acquisition Corp. which are affiliates of Apollo Management VI, L.P., an entity affiliated with Apollo Management, L.P. (collectively referred to as “Apollo”). The merger called for Holdings to acquire the outstanding shares of Realogy pursuant to the merger of Domus Acquisition Corp. with Realogy being the surviving entity (the “Merger”). The Merger was consummated on April 10, 2007. All of Realogy’s issued and outstanding common stock is currently owned by a direct wholly owned subsidiary of Holdings, Domus Intermediate Holdings Corp. (“Intermediate”).
The Company incurred indebtedness in connection with the Merger, the aggregate proceeds of which were sufficient to pay the aggregate Merger consideration, repay a portion of the Company’s then outstanding indebtedness and pay fees and expenses related to the Merger. The Merger was financed by borrowings under our senior secured credit facility, issuance of unsecured notes, an equity contribution and cash on hand. See Note 8 “Short and Long Term Debt” for additional information on the indebtedness incurred related to the Merger and for additional information related to the Company’s senior secured leverage ratio that it is required to maintain. The equity contribution to the Company of $2,001 million was comprised of investment funds affiliated with Apollo and an investment fund of co-investors managed by Apollo, as well as members of the Company’s management who purchased Holdings common stock with cash or through rollover equity. We also refinanced the credit facilities covering our relocation securitization facilities (“the Securitization Facilities Refinancing”). The term “Transactions” refers to, collectively, (1) the Merger, (2) the offering of the unsecured notes, (3) the initial borrowings under our senior secured credit facility, including our synthetic letter of credit facility, (4) the equity investment, and (5) the Securitization Facilities Refinancings.
The aggregate consideration paid in the Merger has been allocated to recognize the acquired assets and liabilities at fair value as of the acquisition date. The fair value adjustments (i) increased the carrying value of certain of our assets and liabilities, (ii) established or increased the carrying value of intangible assets for our tradenames, customer relationships, franchise agreements and pendings and listings and (iii) revalued our long-term benefit plan obligations and insurance obligations, among other things. Subsequent to the Merger, interest expense and depreciation and amortization expense have significantly increased and the Company is significantly leveraged.
Although Realogy continues as the same legal entity after the Merger, the consolidated financial statements for 2007 are presented for two periods: January 1, 2007 through April 9, 2007 (the “Predecessor Period” or “Predecessor,” as context requires) and April 10, 2007 through December 31, 2007 (the “Successor Period” or “Successor,” as context requires), which relate to the period preceding the Merger and the period succeeding the
Merger, respectively. The results of the Successor are not comparable to the results of the Predecessor due to the difference in the basis of presentation of purchase accounting as compared to historical cost.
The accompanying combined financial statements for periods prior to July 31, 2006 reflect the historical operations of the real estate services businesses which were operated as part of Cendant prior to July 31, 2006. These financial statements include the entities in which Realogy directly or indirectly has a controlling financial interest and various entities in which Realogy has investments recorded under the equity method of accounting.
The accompanying consolidated and combined financial statements of the Company and its Predecessor have been prepared in accordance with accounting principles generally accepted in the United States of America. All intercompany balances and transactions have been eliminated.
The Company’s combined results of operations, financial position and cash flows for periods prior to July 31, 2006, may not be indicative of its future performance and do not necessarily reflect what its combined results of operations, financial position and cash flows would have been had the Company operated as a separate, stand-alone entity during the periods presented, including changes in its operations and capitalization as a result of the separation from Cendant.
Certain corporate and general and administrative expenses, including those related to executive management, information technology, tax, insurance, accounting, legal and treasury services and certain employee benefits have been allocated for periods prior to the date of Separation by Cendant to the Company based on forecasted revenues or usage. Management believes such allocations are reasonable. However, the associated expenses recorded by the Company in the accompanying Consolidated and Combined Statements of Operations of the Company and Predecessor may not be indicative of the actual expenses that would have been incurred had the Company been operating as a separate, stand-alone public company for all periods presented.
Business Description
The Company reports its operations in the following business segments:
•
Real Estate Franchise Services-(known as Realogy Franchise Group or RFG)-franchises the Century 21®, Coldwell Banker®, ERA®, Sotheby’s International Realty®, Coldwell Banker Commercial® and Better Homes and Gardens® Real Estate brand names. We launched the Better Homes and Gardens® Real Estate brand in July 2008. As of December 31, 2008, we had approximately 15,600 franchised and company owned offices and 285,000 sales associates operating under our brands in the U.S. and 94 other countries and territories around the world, which included approximately 835 of our company owned and operated brokerage offices with approximately 50,800 sales associates.
•
Company Owned Real Estate Brokerage Services (known as NRT)-operates a full-service real estate brokerage business principally under the Coldwell Banker®, ERA®, Corcoran Group® and Sotheby’s International Realty® brand names. In addition, we operate a large independent real estate owned (“REO”) residential asset manager, which focuses on bank-owned properties.
•
Relocation Services (known as Cartus)-primarily offers clients employee relocation services such as home sale assistance, home finding and other destination services, expense processing, relocation policy counseling and other consulting services, arranging household goods moving services, visa and immigration support, intercultural and language training and group move management services.
•
Title and Settlement Services (known as Title Resource Group or TRG)-provides full-service title, settlement and vendor management services to real estate companies, affinity groups, corporations and financial institutions with many of these services provided in connection with the Company’s real estate brokerage and relocation services business.
Compliance with Financial Covenant
The Company’s senior secured credit facility contains a financial covenant which requires the Company to maintain on the last day of each quarter a senior secured leverage ratio not to exceed a maximum amount.
In order to comply with the senior secured leverage ratio for the 12 month periods ended March 31, June 30, September 30 and December 31, 2009 (or to avoid an event of default thereof) the Company will need to achieve increased levels of Adjusted EBITDA and/or reduced levels of senior secured indebtedness. The factors that will impact the foregoing are: (a) slowing decreases, stabilization or increases in sales volume of existing homesales, (b) continuing to effect cost savings and business productivity enhancement initiatives, (c) increasing new franchise sales, sales associate recruitment and/or brokerage acquisitions, (d) accelerating Contingent Asset collection, (e) obtaining additional equity financing from our parent company, (f) issuing debt or equity financing, or (g) a combination thereof. Factors (b) through (f) may not be sufficient to overcome macroeconomic conditions affecting the Company.
Apollo has advised the Company that based upon management’s current financial outlook, it will provide financial assistance to the Company, to the extent necessary, in meeting its senior secured leverage ratio and cash flow needs through December 31, 2009. If necessary, Apollo will provide the Company with an equity infusion of up to $150 million although management believes such full amount will not be required during this period. Based upon its current financial forecast, and to the extent necessary, Apollo’s financial assistance, the Company believes that it will continue to be in compliance with, or be able to avoid an event of default under, the senior secured leverage ratio during the next twelve months. The Company has the right to avoid an event of default of the senior secured leverage ratio in three of any of the four consecutive quarters through the issuance of additional Holdings equity for cash, which would be infused as capital into the Company. The effect of such infusion would be to increase Adjusted EBITDA and reduce net senior secured indebtedness.
If the Company was unable to maintain compliance with the senior secured leverage ratio and the Company fails to remedy a default through an equity cure from our parent permitted thereunder, there would be an “event of default” under the senior secured credit agreement. See Note 8, “Short and Long Term Debt” for a description of the consequences of an event of default.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
CONSOLIDATION POLICY
In accordance with Financial Accounting Standards Board (“FASB”) Interpretation No. 46 (Revised 2003), “Consolidation of Variable Interest Entities” (“FIN 46R”), when evaluating an entity for consolidation, the Company first determines whether an entity is within the scope of FIN 46R and if it is deemed to be a variable interest entity (“VIE”). If the entity is considered to be a VIE, the Company determines whether it would be considered the entity’s primary beneficiary. The Company consolidates those VIEs for which it has determined that it is the primary beneficiary. Generally, the Company will consolidate an entity not deemed a VIE upon a determination that its ownership, direct or indirect, exceeds fifty percent of the outstanding voting shares of an entity and/or that it has the ability to control the financial or operating policies through its voting rights, board representation or other similar rights. For entities where the Company does not have a controlling interest (financial or operating), the investments in such entities are accounted for using the equity or cost method, as appropriate. The Company applies the equity method of accounting when it has the ability to exercise significant influence over operating and financial policies of an investee in accordance with Accounting Principles Board (“APB”) Opinion No. 18, “The Equity Method of Accounting for Investments in Common Stock.”
USE OF ESTIMATES
In presenting the consolidated and combined financial statements, management makes estimates and assumptions that affect the amounts reported and related disclosures. Estimates, by their nature, are based on judgment and available information. Accordingly, actual results could differ materially from those estimates.
REVENUE RECOGNITION
Real Estate Franchise Services
The Company franchises its real estate brokerage franchise systems to real estate brokerage businesses that are independently owned and operated. The Company provides operational and administrative services, tools and systems to franchisees, which are designed to assist franchisees in achieving increased revenue and profitability. Such services include national and local advertising programs, listing and agent-recruitment tools, training and volume purchasing discounts through the Company’s preferred vendor program. Franchise revenue principally consists of royalty and marketing fees from the Company’s franchisees. The royalty received is primarily based on a percentage of the franchisee’s commissions and/or gross commission income. Royalty fees are accrued as the underlying franchisee revenue is earned (upon close of the homesale transaction). Annual volume incentives given to certain franchisees on royalty fees are recorded as a reduction to revenue and are accrued for in relative proportion to the recognition of the underlying gross franchise revenue. Franchise revenue also includes initial franchise fees, which are generally non-refundable and recognized by the Company as revenue when all material services or conditions relating to the sale have been substantially performed (generally when a franchised unit opens for business). The Company also earns marketing fees from its franchisees and utilizes such fees to fund advertising campaigns on behalf of its franchisees. In arrangements under which the Company does not serve as an agent in coordinating advertising campaigns, marketing revenues are accrued as the revenue is earned, which occurs as related marketing expenses are incurred. The Company does not recognize revenues or expenses in connection with marketing fees it collects under arrangements in which it functions as an agent on behalf of its franchisees.
Company Owned Real Estate Brokerage Services
As an owner-operator of real estate brokerages, the Company assists home buyers and sellers in listing, marketing, selling and finding homes. Real estate commissions earned by the Company’s real estate brokerage business are recorded as revenue on a gross basis upon the closing of a real estate transaction (i.e., purchase or sale of a home), which are referred to as gross commission income. The commissions the Company pays to real estate agents are recognized concurrently with associated revenues and presented as commission and other agent-related costs line item on the accompanying Consolidated and Combined Statements of Operations.
Relocation Services
The Company provides relocation services to corporate and government clients for the transfer of their employees. Such services include the purchasing and/or selling of a transferee’s home, providing home equity advances to transferees (generally guaranteed by the corporate client), expense processing, arranging household goods moving services, home-finding and other related services. The Company earns revenues from fees charged to clients for the performance and/or facilitation of these services and recognizes such revenue on a net basis as services are provided, except for instances in which the Company assumes the risk of loss on the sale of a transferring employee’s home. In such cases, revenues are recorded on a gross basis as earned with associated costs recorded within operating expenses. In the majority of relocation transactions, the gain or loss on the sale of a transferee’s home is generally borne by the client. However, there are limited instances in which the Company assumes the risk of loss. When the risk of loss is assumed, the Company records the value of the home on its Consolidated Balance Sheets within the relocation properties held for sale line item at the lower of cost or net realizable value less estimated direct costs to sell. The difference between the actual purchase price and proceeds received on the sale of the home is recorded within operating expenses on the Company’s Consolidated and Combined Statements of Operations and was not material for any period presented. The aggregate selling price of such homes was $571 million for the year ended December 31, 2008, $532 million for the period April 10, 2007 through December 31, 2007, $250 million for the period January 1, 2007 through April 9, 2007 and $610 million for the year ended December 31, 2006.
Additionally, the Company generally earns interest income on the funds it advances on behalf of the transferring employee, which is recorded within other revenue (as is the corresponding interest expense on the
securitization obligations) in the accompanying Consolidated and Combined Statements of Operations. The Company also earns revenue from real estate brokers, which is recognized at the time the underlying property closes, and revenues from other third-party service providers where the Company earns a referral fee or commission, which is recognized at the time of completion of services.
Title and Settlement Services
The Company provides title and closing services, which include title search procedures for title insurance policies, homesale escrow and other closing services. Title revenues, which are recorded net of amounts remitted to third party insurance underwriters, and title and closing service fees are recorded at the time a homesale transaction or refinancing closes. On January 6, 2006, the Company completed the acquisition of multiple title companies in Texas which provide title and closing services, including title searches, title insurance, home sale escrow and other closing services and adds a wholly-owned underwriter of title insurance to the title and settlement services portfolio. For independent title agents, our underwriter recognizes policy premium revenue on a gross basis (before deduction of agent commission) upon notice of policy issuance from the agent. For affiliated title agents, our underwriter recognizes the incremental policy premium revenue upon the effective date of the title policy as the agent commission revenue is already recognized by the affiliated title agent.
ALLOWANCE FOR DOUBTFUL ACCOUNTS
We estimate the allowance necessary to provide for uncollectible accounts receivable. The estimate is based on historical experience, combined with a review of current developments and includes specific accounts for which payment has become unlikely. The process by which we calculate the allowance begins in the individual business units where specific problem accounts are identified and reserved and an additional reserve is recorded driven by the age profile of the receivables.
EQUITY IN (EARNINGS) LOSSES OF UNCONSOLIDATED ENTITIES
Equity in (earnings) losses of unconsolidated entities was previously presented within Other Revenues in the consolidated statement of operations. The Company has changed the presentation of these amounts to reflect them on a separate line below income taxes in the Consolidated Statement of Operations for all periods presented.
ADVERTISING EXPENSES
Advertising costs are generally expensed in the period incurred. Advertising expenses, recorded within the marketing expense line item on the Company’s Consolidated Statements of Operations, were approximately $191 million for the year ended December 31, 2008, $172 million for the period April 10, 2007 through December 31, 2007, $69 million for the period January 1, 2007 through April 9, 2007 and $241 million for the year ended December 31, 2006.
INCOME TAXES
The Company’s operations have been included in the consolidated federal tax return of Cendant up to the date of Separation. In addition, the Company has filed consolidated and unitary state income tax returns with Cendant in jurisdictions where required or permitted and continued to file with Cendant up to the date of Separation. The income taxes associated with the Company’s inclusion in Cendant’s consolidated federal and state income tax returns are included in the due to Cendant, net line item on the accompanying Consolidated Balance Sheets. The Company’s provision for income taxes is determined using the asset and liability method, under which deferred tax assets and liabilities are calculated based upon the temporary differences between the financial statement and income tax bases of assets and liabilities using currently enacted tax rates. These differences are based upon estimated differences between the book and tax basis of the assets and liabilities for the Company. Certain tax assets and liabilities of the Company may be adjusted in connection with the finalization of Cendant’s prior years’ income tax returns or as a result of changes related to the Separation.
The Company’s deferred tax assets are recorded net of a valuation allowance when, based on the weight of available evidence, it is more likely than not that some portion or all of the recorded deferred tax assets will not be realized in future periods. Decreases to the valuation allowance are recorded as reductions to the Company’s provision for income taxes and increases to the valuation allowance result in additional provision for income taxes. However, if the valuation allowance is adjusted in connection with an acquisition, such adjustment has historically been recorded through goodwill rather than the provision for income taxes. Upon the adoption of SFAS No. 141(R) these adjustments will be included in the income tax provision. The realization of the Company’s deferred tax assets, net of the valuation allowance, is primarily dependant on estimated future taxable income and the completion of certain tax strategies. A change in the Company’s estimate of future taxable income may require an addition or reduction to the valuation allowance.
In June 2006, the FASB issued FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes-an Interpretation of FASB Statement No. 109” (“FIN 48”), which prescribes a recognition threshold and a measurement attribute for the financial statement recognition and measurement of tax positions taken or expected to be taken in a tax return. For those benefits to be recognized, a tax position must be more-likely-than-not to be sustained upon examination by taxing authorities. The amount recognized is measured as the largest amount of benefit that is greater than 50 percent likely of being realized upon ultimate settlement. The Company adopted the provisions of FIN 48 on January 1, 2007, as required, and recognized a $13 million increase in the liability for unrecognized tax benefits including associated accrued interest and penalties and a corresponding decrease in retained earnings. See Note 10 “Income Taxes” for additional information.
CASH AND CASH EQUIVALENTS
The Company considers highly-liquid investments with remaining maturities not exceeding three months at the date of purchase to be cash equivalents.
RESTRICTED CASH
Restricted cash primarily relates to amounts specifically designated as collateralization for the repayment of outstanding borrowings under the Company’s securitization facilities. Such amounts approximated $11 million and $21 million at December 31, 2008 and 2007, respectively and are primarily included within other current assets on the Company’s Consolidated Balance Sheets.
DERIVATIVE INSTRUMENTS
The Company accounts for derivatives and hedging activities in accordance with SFAS No. 133, “Accounting for Derivative Investments and Hedging Activities,” as amended (“SFAS No.133”), which requires that all derivative instruments be recorded on the balance sheet at their respective fair values. The accounting for changes in the fair value (i.e., gains or losses) of a derivative instrument is dependent upon whether the derivative has been designated and qualifies as part of a hedging relationship and further, on the type of hedging relationship.
The Company uses foreign currency forward contracts largely to manage its exposure to changes in foreign currency exchange rates associated with its foreign currency denominated receivables and payables. The Company primarily manages its foreign currency exposure to the British Pound, Euro, Swiss Franc and Canadian Dollar. The Company has chosen not to elect hedge accounting for these forward contracts; therefore, any change in fair value is recorded in the Consolidated Statements of Operations. The fluctuations in the value of these forward contracts do, however, generally offset the impact of changes in the value of the underlying risk that they are intended to economically hedge.
On May 1, 2007, the Company entered into several floating to fixed interest rate swaps with varying expiration dates with an aggregate notional value of $775 million to hedge the variability in cash flows resulting from the term loan facility entered into on April 10, 2007. In January 2009, one of the interest rate swaps with a
notional value of $200 million expired. The Company is utilizing pay-fixed interest rate (and receives 3-month LIBOR) swaps to perform this hedging strategy. The derivatives are being accounted for as cash flow hedges in accordance with SFAS No. 133 and the unfavorable fair market value of the swaps of $23 million, net of income taxes, is recorded in Accumulated Other Comprehensive Loss at December 31, 2008.
INVESTMENTS
At December 31, 2008 and 2007, the Company had various equity method investments aggregating $30 million and $122 million, respectively, which are primarily recorded within other non-current assets on the accompanying Consolidated Balance Sheets. Included in such investments is a 49.9% interest in PHH Home Loans, LLC (“PHH Home Loans”), a mortgage origination venture formed in 2005 in connection with Cendant’s spin-off of PHH Corporation (“PHH”) in January 2005. This venture enables the Company to participate in the earnings generated from mortgages originated by customers of its real estate brokerage and relocation businesses. The Company’s maximum exposure to loss with respect to its investment in PHH Home Loans is limited to its equity investment of $25 million at December 31, 2008. See Note 14 “Separation Adjustments and Transactions with Former Parent and Subsidiaries” for a more detailed description of the Company’s relationship with PHH Home Loans.
In 2008, the Company recorded impairment charges of $50 million related to its equity method investments as a result of lower long term financial forecasts and a higher weighted average cost of capital.
PROPERTY AND EQUIPMENT
Property and equipment (including leasehold improvements) are initially recorded at cost, net of accumulated depreciation and amortization. Depreciation, recorded as a component of depreciation and amortization on the Consolidated and Combined Statements of Operations, is computed utilizing the straight-line method over the estimated useful lives of the related assets. Amortization of leasehold improvements, also recorded as a component of depreciation and amortization, is computed utilizing the straight-line method over the estimated benefit period of the related assets or the lease term, if shorter. Useful lives are 30 years for buildings, up to 20 years for leasehold improvements and from 3 to 7 years for furniture, fixtures and equipment.
The Company capitalizes the costs of software developed for internal use in accordance with Statement of Position No. 98-1, “Accounting for the Costs of Computer Software Developed or Obtained for Internal Use.” Capitalization of software developed for internal use commences during the development phase of the project. The Company amortizes software developed or obtained for internal use on a straight-line basis, from 3 to 8 years, when such software is substantially ready for use. The net carrying value of software developed or obtained for internal use was $108 million and $117 million at December 31, 2008 and 2007, respectively.
IMPAIRMENT OF GOODWILL, INTANGIBLE ASSETS AND OTHER LONG-LIVED ASSETS
In connection with Statement of Financial Accounting Standards (“SFAS”) No. 142, “Goodwill and Other Intangible Assets,” the Company is required to assess goodwill and other indefinite-lived intangible assets for impairment annually, or more frequently if circumstances indicate impairment may have occurred. The Company performs its required annual impairment testing in the fourth quarter of each year subsequent to completing its annual forecasting process. Each of the Company’s operating segments represents a reporting unit.
The Company assesses goodwill for such impairment by first comparing the carrying value of each reporting unit to its fair value using the present value of expected future cash flows. If the first test required under SFAS No. 142 indicates a potential impairment, we would perform a second test for that reporting unit to determine the amount of impairment loss, if any. The Company determines the fair value of its reporting units utilizing discounted cash flows and incorporates assumptions that it believes marketplace participants would utilize including discount rates, cost of capital, future cash flows and other assumptions. When available and as appropriate, the Company uses comparative market multiples and other factors to corroborate the discounted cash flow results. Other indefinite-lived intangible assets are tested for impairment and written down to fair value, as required by SFAS No. 142.
During the fourth quarter of 2008, the Company performed its annual impairment analysis of goodwill and unamortized intangible assets. This analysis resulted in an impairment charge of $1,739 million ($1,523 million net of income tax benefit). The impairment charge reduced intangible assets by $384 million and reduced goodwill by $1,355 million. The impairment charge impacted the Real Estate Franchise Services segment by $953 million, the Company Owned Real Estate Brokerage services segment by $162 million, the Relocation Services segment by $335 million and the Title and Settlement Services segment by $289 million. The impairment is the result of the worsening macro-economic factors during 2008, particularly during the fourth quarter of 2008 with the systematic failure of financial institutions and the related tightening of the credit markets and the deepening recession and increasing levels of unemployment. The worsening macro-economic factors have adversely affected the Company’s operations and negatively impacted the Company’s financial projections. The impairment charge is recorded on a separate line in the accompanying consolidated statements of operations and is non-cash in nature. In addition in 2008, the Company recorded impairment charges of $50 million related to investments in unconsolidated entities as a result of lower long term financial forecasts and a higher weighted average cost of capital.
During the fourth quarter of 2007, the Company performed its annual impairment analysis of goodwill and unamortized intangible assets. This analysis resulted in an impairment charge of $667 million ($445 million net of income tax benefit). The impairment charge reduced intangible assets by $550 million and reduced goodwill by $117 million. The impairment charge impacted the Real Estate Franchise Services segment by $513 million, the Relocation Services segment by $40 million and the Title and Settlement Services segment by $114 million. The impairment was the result of the continued downturn in the residential real estate market in 2007 as well as reduced short term financial projections. The impairment charge is recorded on a separate line in the accompanying consolidated and combined statements of operations and is non-cash in nature.
The Company evaluates the recoverability of its other long-lived assets, including amortizable intangible assets, if circumstances indicate an impairment may have occurred pursuant to SFAS No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets.” This analysis is performed by comparing the respective carrying values of the assets to the current and expected future cash flows, on an undiscounted basis, to be generated from such assets. Property and equipment is evaluated separately within each business. If such analysis indicates that the carrying value of these assets is not recoverable, the carrying value of such assets is reduced to fair value through a charge to the Company’s Consolidated and Combined Statements of Operations. There were no impairments relating to other long-lived assets, including amortizable intangible assets pursuant to SFAS No. 144 during 2007, 2006 or 2005.
SUPPLEMENTAL CASH FLOW INFORMATION
Significant non-cash transactions in 2008 included the sale of the corporate aircraft, which resulted in the termination of a capital lease for $26 million. Also in 2008, the Company accrued PIK interest, which resulted in a non-cash transfer of $32 million between accrued interest and long term debt.
Significant non-cash transactions in 2007 included a sale leaseback arrangement related to the corporate aircraft. The transaction is classified as a capital lease and, therefore, the present value of the minimum lease payments of $28 million is recorded as an asset and liability in the Consolidated Balance Sheets.
ACCUMULATED OTHER COMPREHENSIVE INCOME (LOSS)
Accumulated other comprehensive income (loss) consists of accumulated foreign currency translation adjustments, changes in the additional minimum pension liability and unrealized gains or losses on cash flow hedges. The Company does not provide for income taxes for foreign currency translation adjustments related to investments in foreign subsidiaries where the Company intends to reinvest the undistributed earnings indefinitely in those foreign operations.
STOCK-BASED COMPENSATION
The Company uses the modified prospective application method under the provisions of SFAS 123(R). The Company uses the Black-Scholes option pricing model to estimate the fair value of time vested stock appreciation rights (“SARs”) and options and a lattice based valuation model to estimate the fair value of performance based awards, on the date of grant which requires certain estimates by management including the expected volatility and expected term of the SAR or option. Management also makes decisions regarding the risk free interest rate used in the models and makes estimates regarding forfeiture rates. Fluctuations in the market that affect these estimates could have an impact on the resulting compensation cost. For non-performance based employee stock awards, the fair value of the compensation cost is recognized on a straight-line basis over the requisite service period of the award. Compensation cost for restricted stock (non-vested stock) is recorded based on its market value on the date of grant and is expensed in the Company’s Consolidated and Combined Statements of Operations ratably over the vesting period. The Company expects to issue new shares to satisfy share option exercises.
FINANCIAL INSTRUMENTS
Effective January 1, 2008, the Company adopted SFAS No. 157, “Fair Value Measurements” (“SFAS No. 157”). SFAS No. 157 clarifies the definition of fair value, prescribes methods for measuring fair value, establishes a fair value hierarchy based on the inputs used to measure fair value and expands disclosures about the use of fair value measurements. In accordance with FASB Staff Position No. FAS 157-2, “Effective Date of FASB Statement No. 157,” the Company deferred the adoption of SFAS No. 157 for the Company’s nonfinancial assets and nonfinancial liabilities, except those items recognized or disclosed at fair value on an annual or more frequently recurring basis, until January 1, 2009. The adoption of SFAS No. 157 did not have a material impact on the Company’s fair value measurements.
In October 2008, the FASB issued Staff Position No. FAS 157-3, “Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active” (“FSP 157-3”). The FSP does not change the definition of fair value and principles of measurement. It clarifies the application of SFAS No. 157 to financial asset valuation when the market for the asset is not active. In such market, an entity can use its internal assumptions about future cash flows and risk-adjusted discount rates. However, regardless of the valuation technique, an entity must include appropriate risk adjustments that market participants would make for non-performance and liquidity risks. FSP 157-3 is effective upon issuance. The Company adopted FSP 157-3 in the current period and the adoption did not have a significant impact on its consolidated financial position and results of operations.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In December 2007, the FASB issued SFAS No. 141(R) “Business Combinations” (“SFAS No. 141(R)”) and SFAS No. 160 “Noncontrolling Interests in Consolidated Financial Statements, an amendment of ARB No. 51” (“SFAS No. 160”). SFAS No. 141(R) and SFAS No. 160 introduced significant changes in the accounting for and reporting of business acquisitions and noncontrolling interests in a subsidiary. These pronouncements are effective for business acquisitions consummated after the fiscal year beginning on or after December 15, 2008. In addition, SFAS No. 160 requires retrospective application to the presentation and disclosure for all periods presented in the financial statements. The Company intends to adopt these pronouncements on January 1, 2009 and will apply these pronouncements to future acquisitions.
In March 2008, the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments and Hedging Activities” (“SFAS No. 161”). The new standard is intended to improve financial reporting of derivative instruments and hedging activities by requiring enhanced disclosures enabling investors to better understand their effects on an entity’s financial condition, financial performance, and cash flows. It is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008. SFAS No. 161 will impact disclosures only and will not have an impact on the Company’s consolidated financial condition, results of operations or cash flows.
In April 2008, The FASB issued Staff Position No. FAS 142-3, “Determination of the Useful Life of Intangible Assets” (“FSP 142-3”). This FSP allows an entity to use its own assumption or historical experience about renewal or extension of an arrangement for a recognized intangible asset when determining the useful life of the asset, even when there is likely to be substantial cost or material modifications to the arrangement. FSP 142-3 is effective for financial statements issued for fiscal years and interim periods beginning after December 15, 2008. The Company intends to adopt the guidance on January 1, 2009 and is currently evaluating the impact on the consolidated financial statements.
In November 2008, the FASB issued Emerging Issues Task Force (“EITF”) Issue No. 08-6 “Equity Method Investment Accounting Considerations” (“EITF 08-6”) and Issue No. 08-7 “Accounting for Defensive Intangible Assets” (“EITF 08-7”). EITF 08-6 clarifies the accounting for certain transactions and impairment considerations involving equity method investments. It is effective prospectively in fiscal years and interim periods beginning on or after December 15, 2008. EITF 08-7 specifies the definition and accounting for defensive intangible assets after the initial measurement. EITF 08-7 is effective for intangible assets acquired on or after the beginning of the annual reporting period beginning on or after December 15, 2008. The Company intends to adopt both EITF Issues in January 2009 and is currently assessing the impact on the consolidated financial statements.
In December 2008, the FASB issued Staff Position No. FAS 132(R)-1 “Employers’ Disclosures about Postretirement Benefit Plan Assets” (“FSP 132R-1”). This FSP enhances the annual disclosure about plan assets by requiring the nature and amount of concentrations of risk, fair value measurement similar to SFAS 157 requirements, significant investment strategies, and increased asset categories. The FSP is effective prospectively for fiscal years ending after December 15, 2009. The Company will adopt the disclosure requirements under this FSP for the year ending December 31, 2009. The FSP amends disclosure requirements and will not have an impact on the Company’s consolidated financial statements.
3. ACQUISITIONS
Assets acquired and liabilities assumed in business combinations were recorded in the Company’s Consolidated Balance Sheets as of the respective acquisition dates based upon their estimated fair values at such dates. The results of operations of businesses acquired by the Company have been included in the Company’s Consolidated and Combined Statements of Operations since their respective dates of acquisition.
In connection with the Company’s acquisition of real estate brokerage operations, the Company obtains contractual pendings and listings intangible assets, which represent the estimated fair values of homesale transactions that are pending closing or homes listed for sale by the acquired brokerage operations. Pendings and listings intangible assets are amortized over the estimated closing period of the underlying contracts and homes listed for sale, which in most cases, is approximately 5 months.
For the year ended December 31, 2008, the periods April 10, 2007 through December 31, 2007 and January 1, 2007 through April 9, 2007 and for the year ended December 31, 2006, the Company made earnout payments of $8 million, $12 million, $18 million, and $18 million, respectively, in connection with previously acquired businesses.
2008 ACQUISITIONS
During the year ended December 31, 2008, the Company acquired six real estate brokerage operations through its wholly-owned subsidiary, NRT, for approximately $3 million of cash, in the aggregate, which resulted in goodwill (based on the preliminary allocation of the purchase price) of $2 million that was assigned to the Company Owned Real Estate Brokerage Services segment.
None of the 2008 acquisitions were significant to the Company’s results of operations, financial position or cash flows individually or in the aggregate. The Company continues to gather information concerning the valuation of identified intangible assets and their associated lives in connection with the acquisitions.
2007 ACQUISITIONS
During the period January 1, 2007 to April 9, 2007, the Company acquired three real estate brokerage operations through its wholly-owned subsidiary, NRT, for $1 million of cash, in the aggregate, which resulted in goodwill of less than $1 million that was assigned to the Company Owned Real Estate Brokerage Services segment. During the period April 10, 2007 to December 31, 2007, the Company acquired six real estate brokerage operations through its wholly-owned subsidiary, NRT, for $4 million of cash, in the aggregate, which resulted in goodwill of $4 million that was assigned to the Company Owned Real Estate Brokerage Services segment. The acquisition of real estate brokerages by NRT is a core part of its growth strategy.
In May 2007, the Company also acquired a Canadian real estate franchise operation through its Real Estate Franchise Services segment for $13 million in cash which resulted in goodwill of $4 million.
In October 2007, the Company entered into a long-term agreement to license the Better Homes and Gardens® Real Estate brand from Meredith Corporation (“Meredith”). The Company is building a new international residential real estate franchise company using the Better Homes and Gardens® Real Estate brand name. The licensing agreement between us and Meredith became operational on July 1, 2008 and is for a 50-year term, with a renewal term for another 50 years at our option. The agreement has an initial fee of $3 million and ongoing licensing fees, subject to minimum payment requirements, based upon the royalties that Realogy earns from franchising the Better Homes and Gardens Real Estate brand. The minimum annual licensing fees will begin in 2009 with $500 thousand and increase to $4 million by 2015 and generally remains the same thereafter throughout the end of the agreement.
None of the 2007 acquisitions were significant to the Company’s results of operations, financial position or cash flows individually or in the aggregate.
4. INTANGIBLE ASSETS
Intangible assets consisted of:
(a) Generally amortized over a period of 30 years.
(b) Relates to the Sotheby’s International Realty and Better Homes and Gardens Real Estate agreements which will be amortized over 50 years (the contractual term of the license agreement).
(c) Amortized over the estimated closing period of the underlying contracts (in most cases approximately 5 months).
(d) Relates to the customer relationships at Title and Settlement Services segment and the Relocation Services segment. These relationships will be amortized over a period of 10 to 20 years.
(e) Generally amortized over periods ranging from 5 to 10 years.
(f) Relates to the Real Estate Franchise Services franchise agreement with NRT, which is expected to generate future cash flows for an indefinite period of time.
(g) Relates to the Century 21, Coldwell Banker, ERA, The Corcoran Group, Coldwell Banker Commercial, Sotheby’s International Realty, and Cartus tradenames, which are expected to generate future cash flows for an indefinite period of time.
(h) Primarily relates to the Texas American Title Company title plant shares. Ownership in a title plant is required to transact title insurance in certain states. We expect to generate future cash flows for an indefinite period of time.
During the fourth quarter of 2008, the Company performed its annual impairment analysis of goodwill and unamortized intangible assets. This analysis resulted in an impairment charge of $1,739 million ($1,523 million net of income tax benefit). The impairment charge reduced intangible assets by $384 million and reduced goodwill by $1,355 million. The impairment charge impacted the Real Estate Franchise Services segment by $953 million, the Company Owned Real Estate Brokerage Services segment by $162 million, the Relocation Services segment by $335 million and the Title and Settlement Services segment by $289 million. The impairment is the result of the worsening macro-economic climate which have adversely affected the Company’s operations and negatively impacted the Company’s financial projections. The impairment charge is recorded on a separate line in the accompanying consolidated statements of operations and is non-cash in nature.
During the fourth quarter of 2007, the Company performed its annual impairment analysis of goodwill and unamortized intangible assets. This analysis resulted in an impairment charge of $667 million ($445 million net of income tax benefit). The impairment charge reduced intangible assets by $550 million and reduced goodwill by $117 million. The impairment was the result of the continued downturn in the residential real estate market in 2007 as well as reduced short term financial projections. The impairment charge is recorded on a separate line in the accompanying consolidated and combined statements of operations and is non-cash in nature.
The changes in the carrying amount of intangible assets are as follows:
(a) The intangible asset impairment charge impacted the Real Estate Franchise Services segment by $244 million, the Company Owned Real Estate Brokerage Services segment by $4 million, the Relocation Services segment by $88 million and the Title and Settlement Services segment by $48 million.
(a) The $337 million pendings and listings intangible asset which was established in purchase accounting has been fully amortized by December 31, 2007.
(b) The intangible asset impairment charge impacted the Real Estate Franchise Services segment by $513 million, the Relocation Services segment by $6 million and the Title and Settlement Services segment by $31 million.
The changes in the carrying amount of goodwill are as follows:
(a) $(13) million relates to purchase accounting fair value adjustments related to the Merger offset by less than $2 million for acquisitions of real estate brokerages by NRT.
(a) Relates to the acquisition of real estate operations in Canada by the Real Estate Franchise Services segment in 2007. See Note 3 “Acquisitions.”
(b) Relates to the acquisitions of real estate brokerages by NRT for $4 million. See Note 3 “Acquisitions”.
Intangible asset amortization expense is as follows:
Based on the Company’s amortizable intangible assets as of December 31, 2008, the Company expects related amortization expense for the five succeeding fiscal years and thereafter to be approximately $94 million, $94 million, $94 million, $94 million, $94 million and $1,898 million in 2009, 2010, 2011, 2012, 2013 and thereafter, respectively.
5. FRANCHISING AND MARKETING ACTIVITIES
Franchise fee revenue is $323 million, $318 million, $106 million and $472 million in the accompanying Consolidated and Combined Statements of Operations for the year ended December 31, 2008, the period April 10, 2007 through December 31, 2007, the period January 1, 2007 through April 9, 2007 and the year ended December 31, 2006, respectively. These amounts include initial franchise fees of $3 million, $4 million, $2 million and $8 million for the year ended December 31, 2008, the period April 10, 2007 through December 31, 2007, the period January 1, 2007 through April 9, 2007 and the year ended December 31, 2006, respectively, and are net of annual volume incentives of $34 million, $39 million, $13 million and $81 million, respectively, provided to real estate franchisees. The Company’s real estate franchisees may receive volume incentives on their royalty payments. Such annual incentives are based upon the amount of commission income earned and paid during a calendar year. Each brand has several different annual incentive schedules currently in effect.
The Company’s wholly-owned real estate brokerage services segment, NRT, continues to pay royalties to the Company’s franchise business; however, such amounts are eliminated in consolidation and, therefore, not reflected above. NRT paid royalties to the Real Estate Franchise Services segment of $237 million for the year ended December 31, 2008, $225 million during the period April 10, 2007 through December 31, 2007, $74 million for the period January 1, 2007 through April 9, 2007 and $327 million for the year ended December 31, 2006.
Marketing fees are paid by the Company’s real estate franchisees and are calculated based on a specified percentage of gross closed commissions earned on the sale of real estate, subject to certain minimum and maximum payments. Such fees approximated $54 million, $38 million, $27 million, and $52 million for the year ended December 31, 2008, the period April 10, 2007 through December 31, 2007, the period January 1, 2007 through April 9, 2007 and the year ended December 31, 2006, respectively, and are recorded within Other revenues on the accompanying Consolidated and Combined Statements of Operations. As provided for in the franchise agreements and generally at the Company’s discretion, all of these fees are to be expended for marketing purposes.
The number of franchised and company owned outlets in operation are as follows:
The number of franchised and company owned outlets (in the aggregate) changed as follows:
As of December 31, 2008, there were an insignificant amount of applications awaiting approval for execution of new franchise agreements. Additionally, as of December 31, 2008, there were an insignificant number of franchise agreements pending termination.
In connection with ongoing fees the Company receives from its franchisees pursuant to the franchise agreements, the Company is required to provide certain services, such as training and marketing. In order to assist franchisees in converting to one of the Company’s brands or in franchise expansion, the Company may also, at its discretion, provide development advances to franchisees who are either new or who are expanding their operations. Provided the franchisee meets certain minimum annual revenue thresholds during the term of the development advance, and is in compliance with the terms of the franchise agreement, the amount of the
development advance is forgiven annually in equal ratable amounts (typically nine years). Otherwise, related principal is due and payable to the Company. In certain instances, the Company may earn interest on unpaid franchisee development advances, which was not significant during 2008, 2007 or 2006. The amount of such franchisee development advances was $79 million, net of $24 million of reserves, and $92 million, net of $13 million of reserves at December 31, 2008 and 2007, respectively. These amounts are principally classified within other non-current assets in the Company’s Consolidated Balance Sheets. During the year ended December 31, 2008, the period April 10, 2007 through December 31, 2007, the period January 1, 2007 through April 9, 2007 and the year ended December 31, 2006, the Company recorded $16 million, $11 million, less than $1 million, and $10 million, respectively, of expense related to the forgiveness of these advances. Such amounts are recorded within operating expenses in the Company’s Consolidated and Combined Statements of Operations.
6. PROPERTY AND EQUIPMENT, NET
Property and equipment, net, as of December 31, consisted of:
The Company recorded depreciation and amortization expense of $122 million, $87 million, $31 million and $105 million for the year ended December 31, 2008, the period April 10, 2007 through December 31, 2007, the period January 1, 2007 through April 9, 2007 and the year ended December 31, 2006, respectively, related to property and equipment.
7. ACCRUED EXPENSES AND OTHER CURRENT LIABILITIES
Accrued expenses and other current liabilities, as of December 31, consisted of:
8. SHORT AND LONG TERM DEBT
As of December 31, total debt is as follows:
(1) Consists of $1,700 million of 10.50% Senior Notes due 2014, less a discount of $17 million.
(2) Consists of $582 million of 11.00%/11.75% Senior Toggle Notes due 2014, less a discount of $5 million.
(3) Consists of $875 million of 12.375% Senior Subordinated Notes due 2015, less a discount of $13 million.
2006 SENIOR NOTES
On October 20, 2006, the Company completed a bond offering pursuant to Rule 144A under the Securities Act of 1933, as amended for $1,200 million aggregate principal amount of senior notes (“2006 Senior Notes”).
On May 10, 2007, the Company offered to purchase the 2006 Senior Notes at 100% of their principal amount, plus accrued and unpaid interest to the payment date of July 9, 2007. The Company was required to make the offer to purchase due to the change in control that occurred as a result of the Merger and the lowering of the debt ratings applicable to the 2006 Senior Notes to non-investment grade. On July 9, 2007, the Company purchased the $1,003 million principal amount of 2006 Senior Notes that were tendered. The Company utilized the Senior Secured Credit Facility to finance the purchases of the 2006 Senior Notes and to pay related interest and fees.
In the third and fourth quarters of 2007, the Company purchased the remaining $197 million principal amount of 2006 Senior Notes in privately negotiated transactions utilizing the Senior Secured Credit Facility to pay related interest and fees. These purchases resulted in a gain on debt extinguishment of $3 million and a write off of deferred financing costs of $7 million. These amounts are recorded in interest expense in the Consolidated and Combined Statements of Operations for the period ended December 31, 2007.
SENIOR SECURED CREDIT FACILITY
In connection with the closing of the Merger on April 10, 2007, the Company entered into a senior secured credit facility consisting of (i) a $3,170 million term loan facility (including a $1,220 million delayed draw term loan sub-facility), (ii) a $750 million revolving credit facility and (iii) a $525 million synthetic letter of credit facility. The Company utilized $1,950 million of the term loan facility to finance a portion of the Merger, including the payment of fees and expenses. The $1,220 million delayed draw term loan sub-facility was available solely to finance the refinancing of the 2006 Senior Notes. The Company utilized $1,220 million of the delayed draw facility to fund the purchases and pay related interest and fees of the 2006 Senior Notes in the third and fourth quarters of 2007. Interest rates with respect to term loans under the senior secured credit facility are based on, at the Company’s option, (a) adjusted LIBOR plus 3.0% or (b) the higher of the Federal Funds Effective Rate plus 0.5% and JPMorgan Chase Bank, N.A.’s prime rate (“ABR”) plus 2.0%. The term loan
facility provides for quarterly amortization payments totaling 1% per annum of the principal amount with the balance due upon the final maturity date. Prior to December 31, 2008, the Company elected to borrow from its revolving credit facility in order to have cash on hand.
The Company’s senior secured credit facility provides for a six-year, $750 million revolving credit facility, which includes a $200 million letter of credit sub-facility and a $50 million swingline loan sub-facility. The Company uses the revolving credit facility for, among other things, working capital and other general corporate purposes, including permitted acquisitions and investments. Interest rates with respect to revolving loans under the senior secured credit facility are based on, at the Company’s option, adjusted LIBOR plus 2.25% or ABR plus 1.25% in each case subject to adjustment based on the attainment of certain leverage ratios.
The Company’s senior secured credit facility provides for a six-and-a-half-year $525 million synthetic letter of credit facility for which the Company pays 300 basis points in interest on amounts utilized. The capacity of the synthetic letter of credit is reduced by 1% each year and as a result the amount available was reduced to $522 million on December 31, 2007 and to $518 million at December 31, 2008. On April 26, 2007 the synthetic letter of credit facility was used to post a $500 million letter of credit to secure the fair value of the Company’s obligations in respect of Cendant’s contingent and other liabilities that were assumed under the Separation and Distribution Agreement and the remaining capacity was utilized for general corporate purposes. (See Note 15 “Commitments and Contingencies”). The stated amount of the standby irrevocable letter of credit is subject to periodic adjustment to reflect the then current estimate of Cendant contingent and other liabilities and will be terminated if (i) the Company’s senior unsecured credit rating is raised to BB by Standard and Poor’s or Ba2 by Moody’s or (ii) the aggregate value of the former parent contingent liabilities falls below $30 million.
The Company’s senior secured credit facility is secured to the extent legally permissible by substantially all of the assets of the Company’s parent company, the Company and the subsidiary guarantors, including but not limited to (a) a first-priority pledge of substantially all capital stock held by the Company or any subsidiary guarantor (which pledge, with respect to obligations in respect of the borrowings secured by a pledge of the stock of any first-tier foreign subsidiary, is limited to 100% of the non-voting stock (if any) and 65% of the voting stock of such foreign subsidiary), and (b) perfected first-priority security interests in substantially all tangible and intangible assets of the Company and each subsidiary guarantor, subject to certain exceptions.
The Company’s senior secured credit facility contains financial, affirmative and negative covenants and requires the Company to maintain on the last day of each quarter a senior secured leverage ratio not to exceed a maximum amount. Specifically our senior secured debt (net of unsecured cash and permitted investments) to trailing 12 month EBITDA (as such terms are defined in the senior secured credit facility), calculated on a “pro forma” basis pursuant to the senior secured credit facility, may not exceed 5.35 to 1 at December 31, 2008. The ratio steps down to 5.0 to 1 at September 30, 2009 and to 4.75 to 1 at March 31, 2011 and thereafter. EBITDA, as defined in the senior secured credit facility includes certain adjustments and also is calculated on a pro forma basis for purposes of the senior secured leverage ratio. In this Annual Report, we refer to the term “Adjusted EBITDA” to mean EBITDA as so defined and calculated for purposes of determining compliance with the senior secured leverage ratio. At December 31, 2008, the Company was in compliance with the senior secured leverage ratio.
The Company’s current financial forecast of Adjusted EBITDA includes additional cost saving and business optimization initiatives. As such initiatives are implemented; management will give pro forma effect to such measures and add back the savings or enhanced revenue from those initiatives as if they had been implemented at the beginning of the trailing twelve month period for calculating compliance with the senior secured leverage ratio.
In order to comply with the senior secured leverage ratio for the 12 month periods ended March 31, June 30, September 30 and December 31, 2009 (or to avoid an event of default thereof) the Company will need to achieve increased levels of Adjusted EBITDA and/or reduced levels of senior secured indebtedness. The factors that will impact the foregoing are: (a) slowing decreases, stabilization or increases in sales volume of existing homesales, (b) continuing to effect cost savings and business productivity enhancement initiatives, (c) increasing new
franchise sales, sales associate recruitment and/or brokerage acquisitions, (d) accelerating Contingent Asset collection, (e) obtaining additional equity financing from our parent company, (f) issuing debt or equity financing, or (g) a combination thereof. Factors (b) through (f) may not be sufficient to overcome macroeconomic conditions affecting the Company.
Apollo has advised the Company that based upon management’s current financial outlook, it will provide financial assistance to the Company, to the extent necessary, in meeting its senior secured leverage ratio and cash flow needs through December 31, 2009. If necessary, Apollo will provide the Company with an equity infusion of up to $150 million although management believes such full amount will not be required during this period. Based upon its current financial forecast, and to the extent necessary, Apollo’s financial assistance, the Company believes that it will continue to be in compliance with, or be able to avoid an event of default under, the senior secured leverage ratio during the next twelve months. The Company has the right to avoid an event of default of the senior secured leverage ratio in three of any of the four consecutive quarters through the issuance of additional Holdings equity for cash, which would be infused as capital into the Company. The effect of such infusion would be to increase Adjusted EBITDA and reduce net senior secured indebtedness.
If the Company was unable to maintain compliance with the senior secured leverage ratio and the Company fails to remedy a default through an equity cure from our parent permitted thereunder, there would be an “event of default” under the senior secured credit agreement. Other events of default under the senior secured credit facility include, without limitation, nonpayment, material misrepresentations, insolvency, bankruptcy, certain judgments, change of control and cross-events of default on material indebtedness.
If an event of default occurs under the senior secured credit facility, and the Company fails to obtain a waiver from our lenders, our financial condition, results of operations and business would be materially adversely affected. Upon the occurrence of an event of default under our senior secured credit facility, the lenders:
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will not be required to lend any additional amounts to the Company;
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could elect to declare all borrowings outstanding, together with accrued and unpaid interest and fees, to be due and payable;
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could require us to apply all of our available cash to repay these borrowings; or
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could prevent the Company from making payments on the Unsecured Notes;
any of which could result in an event of default under the Unsecured Notes and our Securitization Facilities.
If the Company were unable to repay those amounts, the lenders under our senior secured credit facility could proceed against the collateral granted to them to secure that indebtedness. We have pledged the majority of our assets as collateral under our senior secured credit facility. If the lenders under the senior secured credit facility accelerate the repayment of borrowings, the Company may not have sufficient assets to repay our senior secured credit facility and our other indebtedness, including the Unsecured Notes, or be able to borrow sufficient funds to refinance such indebtedness. Even if the Company is able to obtain new financing, it may not be on commercially reasonable terms, or terms that are acceptable to us.
FIXED RATE SENIOR NOTES DUE 2014, SENIOR TOGGLE NOTES DUE 2014 AND SENIOR SUBORDINATED NOTES DUE 2015
On April 10, 2007, the Company issued in a private placement $1,700 million aggregate principal amount of 10.50% Senior Notes due 2014 (the “Fixed Rate Senior Notes”), $550 million aggregate principal amount of 11.00%/11.75% Senior Toggle Notes due 2014 (the “Senior Toggle Notes”) and $875 million aggregate principal amount of 12.375% Senior Subordinated Notes due 2015 (the “Senior Subordinated Notes”), collectively referred to as the “old notes”).
On February 15, 2008, we completed an exchange offer of exchange notes for the old notes. The exchange notes refer to the old notes, registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to a Registration Statement filed on Form S-4 and declared effective by the SEC on January 9, 2008. The term “Unsecured Notes” refers to the old notes and the exchange notes.
The Fixed Rate Senior Notes are unsecured senior obligations of the Company and will mature on April 15, 2014. Each Fixed Rate Senior Note bears interest at a rate per annum of 10.50% payable semiannually to holders of record at the close of business on April 1 and October 1 immediately preceding the interest payment dates of April 15 and October 15 of each year.
The Senior Toggle Notes are unsecured senior obligations of the Company and will mature on April 15, 2014. Interest on the Senior Toggle Notes is payable semiannually to holders of record at the close of business on April 1 or October 1 immediately preceding the interest payment date on April 15 and October 15 of each year.
For any interest payment period after the initial interest payment period and through October 15, 2011, the Company may, at its option, elect to pay interest on the Senior Toggle Notes (1) entirely in cash (“Cash Interest”), (2) entirely by increasing the principal amount of the outstanding Senior Toggle Notes or by issuing Senior Toggle Notes (“PIK Interest”) or (3) 50% as Cash Interest and 50% as PIK Interest. After October 15, 2011, the Company will make all interest payments on the Senior Toggle Notes entirely in cash. Cash interest on the Senior Toggle Notes will accrue at a rate of 11.00% per annum. PIK Interest on the Senior Toggle Notes will accrue at the Cash Interest rate per annum plus 0.75%. The Company must elect the form of interest payment with respect to each interest period by delivery of a notice to the trustee prior to the beginning of each interest period. In the absence of an election for any interest period, interest on the Senior Toggle Notes shall be payable according to the method of payment for the previous interest period.
On October 15, 2008, pursuant to the PIK interest election it made on April 11, 2008, the Company satisfied the October 2008 interest payment obligation by increasing the principal amount of the Senior Toggle Notes by $32 million. This PIK Interest election is now the default election for future interest periods through October 15, 2011 unless the Company notifies otherwise prior to the commencement date of a future interest period.
The Company would be subject to certain interest deduction limitations if the Senior Toggle Notes were treated as “applicable high yield discount obligations” (“AHYDO”) within the meaning of Section 163(i)(1) of the Internal Revenue Code. In order to avoid such treatment the Company is required to redeem for cash a portion of each Senior Toggle Note then outstanding. The portion of a Senior Toggle Note required to be redeemed is an amount equal to the excess of the accrued original issue discount as of the end of such accrual period, less the amount of interest paid in cash on or before such date, less the first-year yield (the issue price of the debt instrument multiplied by its yield to maturity). The redemption price for the portion of each Senior Toggle Note so redeemed would be 100% of the principal amount of such portion plus any accrued interest on the date of redemption. Assuming that the Company continues to utilize the PIK Interest option election through October 2011, the amount that the Company would be required to repay in April 2012 would be approximately $204 million.
The Senior Subordinated Notes are unsecured senior subordinated obligations of the Company and will mature on April 15, 2015. Each Senior Subordinated Note bears interest at a rate per annum of 12.375% payable semiannually to holders of record at the close of business on April 1 or October 1 immediately preceding the interest payment date on April 15 and October 15 of each year.
The Company’s Unsecured Notes contain various covenants that limit the Company’s ability to, among other things:
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incur or guarantee additional debt;
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incur debt that is junior to senior indebtedness and senior to the senior subordinated notes;
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pay dividends or make distributions to our stockholders;
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repurchase or redeem capital stock or subordinated indebtedness;
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make loans, capital expenditures or investments or acquisitions;
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incur restrictions on the ability of certain of the Company’s subsidiaries to pay dividends or to make other payments to the Company;
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enter into transactions with affiliates;
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create liens;
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merge or consolidate with other companies or transfer all or substantially all of the Company’s assets;
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transfer or sell assets, including capital stock of subsidiaries; and
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prepay, redeem or repurchase debt that is junior in right of payment to the Unsecured Notes.
The Fixed Rate Senior Notes and Senior Toggle Notes are guaranteed on an unsecured senior basis, and the Senior Subordinated Notes are guaranteed on an unsecured senior subordinated basis, in each case, by each of the Company’s existing and future U.S. subsidiaries that is a guarantor under the senior secured credit facility or that guarantees certain other indebtedness in the future, subject to certain exceptions.
SECURITIZATION OBLIGATIONS
Securitization obligations consisted of:
The Company issues secured obligations through Apple Ridge Funding LLC, U.K. Relocation Receivables Funding Limited and Kenosia Funding LLC. These entities are consolidated, bankruptcy remote special purpose entities that are utilized to securitize relocation receivables and related assets. These assets are generated from advancing funds on behalf of clients of the Company’s relocation business in order to facilitate the relocation of their employees. Assets of these special purpose entities, including properties held for sale, are not available to pay the Company’s general obligations. Provided no termination or amortization event has occurred, any new receivables generated under the designated relocation management agreements are sold into the securitization program, and as new relocation management agreements are entered into, the new agreements may also be designated to a specific program.
Certain of the funds that the Company receives from relocation receivables or relocation properties held for sale and related assets must be utilized to repay securitization obligations. Such securitization obligations are collateralized by $845 million and $1,300 million of underlying relocation receivables, relocation properties held for sale and other related assets at December 31, 2008 and 2007, respectively. Substantially all relocation related assets are realized in less than twelve months from the transaction date. Accordingly, all of the Company’s securitization obligations are classified as current in the accompanying Consolidated Balance Sheets.
Interest incurred in connection with borrowings under these facilities amounted to $46 million for the year ended December 31, 2008, $46 million for the period April 10, 2007 through December 31, 2007, $13 million for the period January 1, 2007 through April 9, 2007 and $42 million for the year ended December 31, 2006. This interest is recorded within net revenues in the accompanying Consolidated Statements of Operations as related
borrowings are utilized to fund relocation receivables and advances and properties held for sale within the Company’s relocation business where interest is generally earned on such assets. These securitization obligations represent floating rate debt for which the average weighted interest rate was 4.9%, 6.4% and 5.4% for the year ended December 31, 2008, 2007 and 2006, respectively.
Apple Ridge Funding LLC
The Apple Ridge Funding LLC securitization program is a revolving program with a five year term. This bankruptcy remote vehicle borrows from one or more commercial paper conduits and uses the proceeds to purchase the relocation assets. This asset backed commercial paper program is guaranteed by the sponsoring financial institution. This program is subject to termination at the end of the five year agreement and, if not renewed, would amortize. The program has restrictive covenants and trigger events, including performance triggers linked to the age and quality of the underlying assets, limits on net credit losses incurred, financial reporting requirements, restrictions on mergers and change of control, and cross defaults under the senior secured credit facility, Unsecured Notes and other material indebtedness. Given the current recession and an increasing number of companies having difficulties meeting their financial obligations, there is a heightened risk relating to compliance with the Apple Ridge securitization performance trigger relating to limits on “net credit losses” (the estimated losses incurred on securitization receivables that have been written off, net of recoveries of such receivables), as net credit losses may not exceed $750,000 in any one month or $1.5 million in any trailing 12 month period. The Company has not incurred any net credit losses in excess of these thresholds. These trigger events could result in an early amortization of this securitization obligation and termination of any further advances under the program.
U.K. Relocation Funding Limited
The U.K. Relocation Funding Limited securitization program is a revolving program with a five year term. This program is subject to termination at the end of the five year agreement and would amortize if not renewed. This program has restrictive covenants, including those relating to financial reporting, mergers and change of control, and events of default. The events of default include non-payment of the indebtedness and cross defaults under the senior secured credit facility, Unsecured Notes and other material indebtedness. Upon an event of default, the lending institution may amortize the indebtedness under the facility and terminate the program.
On May 12, 2008 the Company amended the U.K. Relocation Receivables Funding Limited securitization principally to include the following provisions: 1) to grant the bank a security interest in the relocation and related assets; 2) to allow funding through a commercial paper program guaranteed by the financial institution; and 3) to add servicer defaults and to modify the maximum advance rate levels, in each case tied to the performance of the underlying asset base.
As of December 31, 2008, this securitization program was fully utilized. The Company has undertaken steps in the second half of 2008 to reduce the amount outstanding under the program by obtaining the agreement of many clients to self fund their future business and in some cases repay the Company for their existing homes in inventory under this facility.
Kenosia Funding LLC
Prior to the amendment discussed below, the Kenosia Funding LLC securitization program was a five year agreement and under this program, the Company obtained financing for the purchase of the at-risk homes and other assets related to those relocations under its fixed fee relocation contracts with certain U.S. Government and corporate clients.
On March 14, 2008, the Company notified the United States General Services Administration (“GSA”) that it had exercised its contractual termination rights with the GSA relating to the relocation of certain U.S. government employees. This termination does not apply to contracts with the FDIC, the U.S. Postal Service or to our government business in the United Kingdom, which operate under a different pricing structure.
In connection with the aforementioned termination, on March 14, 2008, the Company amended certain provisions of the Kenosia securitization program (the “Kenosia Amendment”). Prior to the Kenosia Amendment, termination of an agreement with a client which had more than 30% of the assets secured under the facility would trigger an amortization event of the Kenosia facility. The Kenosia Amendment permits the termination of a client with more than 30% of the assets in Kenosia without triggering an amortization event of this facility.
In conjunction with the Kenosia Amendment, the borrowing capacity under the Kenosia securitization program was reduced to $100 million in July 2008. In November 2008, the Company elected to reduce the capacity to $25 million due to lower than expected utilization. On January 15, 2009, the Company terminated the Kenosia securitization program in its entirety, repaying the $20 million principal balance then outstanding under that facility.
SHORT-TERM BORROWING FACILITIES
Within the Company’s Title and Settlement Services and Company Owned Real Estate Brokerage operations, the Company acts as an escrow agent for numerous customers. As an escrow agent, the Company receives money from customers to hold on a short-term basis until certain conditions of the homesale transaction are satisfied. The Company does not have access to these escrow funds for its use and these escrow funds are not assets of the Company. However, because we have such funds concentrated in a few financial institutions, we are able to obtain short-term borrowing facilities that as of December 31, 2008 provided for borrowings of up to $190 million. We invest such borrowings in high quality short-term liquid investments. Any outstanding borrowings under these facilities are callable by the lenders at any time and the Company bears the risk of loss on these borrowings. These facilities are renewable annually and are not available for general corporate purposes. Net amounts earned under these arrangements approximated $4 million for the year ended December 31, 2008, $8 million for the period April 10, 2007 through December 31, 2007, $3 million for the period January 1, 2007 through April 9, 2007 and $11 million for the year ended December 31, 2006. These amounts are recorded within net revenue in the accompanying Consolidated and Combined Statements of Operations as they are part of the major ongoing operations of the business. There were no outstanding borrowings under these facilities at December 31, 2008 or 2007. The average amount of short term borrowings outstanding during 2008 and 2007 was approximately $155 million and $227 million, respectively.
ISSUANCE OF INTEREST RATE SWAPS
On May 1, 2007, the Company entered into several floating to fixed interest rate swaps with varying expiration dates and notional amounts to hedge the variability in cash flows resulting from the term loan facility entered into on April 10, 2007 for an aggregate notional amount of $775 million. The Company is utilizing pay-fixed interest rate (and receive 3-month LIBOR) swaps to perform this hedging strategy. The key terms of the swaps are as follows: (i) $225 million notional amount of 5-year at 4.93%, (ii) $350 million notional amount of 3-year at 4.835% and (iii) $200 million notional amount of 1.5-year at 4.91%. The derivatives are being accounted for as cash flow hedges in accordance with SFAS No. 133 and, therefore, the unfavorable fair market value of the swaps of $23 million and $12 million, net of income taxes, is recorded in accumulated other comprehensive loss at December 31, 2008 and 2007, respectively. The Company currently expects $16 million of accumulated other comprehensive loss to be reclassified into earnings in the next 12 months.
AVAILABLE CAPACITY
As of December 31, 2008, the total capacity, outstanding borrowings and available capacity under the Company’s borrowing arrangements is as follows:
(1) The available capacity under the revolving credit facility is reduced by $127 million of outstanding letters of credit at December 31, 2008.
(2) Total capacity has been reduced by the quarterly principal payments of 0.25% of the loan balance as required under the term loan facility agreement. The interest rate on the term loan facility was 6.10% at December 31, 2008.
(3) Consists of $1,700 million of 10.50% Fixed Rate Senior Notes due 2014, less a discount of $17 million.
(4) Consists of $582 million of 11.00%/11.75% Senior Toggle Notes due 2014, less a discount of $5 million.
(5) Consists of $875 million of 12.375% Senior Subordinated Notes due 2015, less a discount of $13 million.
(6) Available capacity is subject to maintaining sufficient relocation related assets to collateralize these securitization obligations.
(7) On January 15, 2009, the Company terminated the Kenosia securitization program in its entirety, repaying the $20 million principal balance then outstanding under that facility.
DEBT MATURITIES
Aggregate maturities of debt, excluding $703 million of securitization obligations, are as follows:
9. EMPLOYEE BENEFIT PLANS
DEFINED BENEFIT PENSION PLAN
To facilitate the separation from Cendant, a new defined benefit pension plan was created which assumed the assets and liabilities of employees of the real estate services businesses of Cendant. At December 31, 2008 and 2007, the accumulated benefit obligation of this plan was $116 million and $114 million, respectively, and the fair value of the plan assets were $80 million and $107 million, respectively, resulting in an unfunded accumulated benefit obligation of $36 million and $7 million, respectively, which is recorded in non-current liabilities in the Consolidated Balance Sheets. The projected benefit obligation of this plan is equal to the accumulated benefit obligation as the majority of the employees participating in this plan are no longer accruing benefits.
The following tables show the changes in benefit obligation and plan assets for the defined benefit pension plan during the years ended:
The weighted average assumptions that were used to determine the Company’s benefit obligation and net periodic benefit cost for the following years ended December 31 are:
The net periodic pension benefit for 2008 was approximately $1 million and is comprised of a benefit of $8 million for the expected return on assets offset by interest cost of approximately $7 million. The net periodic pension benefit for 2007 was approximately $1 million and is comprised of a benefit of $6 million for the expected return on assets offset by interest cost of approximately $5 million. The estimated actuarial loss of approximately $2 million will be amortized from the accumulated other comprehensive income into net periodic pension cost in 2009.
Future benefit payments as of December 31, 2008 are as follows:
The minimum funding required during the 2009 fiscal year is estimated to be $2 million. Based upon the decrease in asset values in 2008, the plan may be deemed to be “at-risk” in 2010 in accordance with the Pension Protection Act if additional funding in excess of the $2 million already required is not completed prior to September 15, 2009. Under current rules, “at risk” status could, among other things, increase minimum funding requirements beginning no earlier than 2010.
The Company recognized a loss of $30 million and a gain of less than $4 million in other comprehensive income for the years ended December 31, 2008 and 2007, respectively. The total amount recognized in net periodic pension cost (benefit) and other comprehensive income was $29 million and $(5) million for the years ended December 31, 2008 and 2007, respectively.
The amount in accumulated other comprehensive income not yet recognized as components of the periodic pension cost (benefit) is comprised of an actuarial loss of $27 million and an actuarial gain of less than $4 million as of December 31, 2008 and 2007, respectively.
It is the objective of the plan sponsor to maintain an adequate level of diversification to balance market risk, prudently invest to preserve capital and to provide sufficient liquidity under the plan. The assumption used for the expected long-term rate of return on plan assets is based on the long-term expected returns for the investment mix of assets currently in the portfolio. Historic real return trends for the various asset classes in the class portfolio are combined with anticipated future market conditions to estimate the real rate of return for each class. These rates are then adjusted for anticipated future inflation to determine estimated nominal rates of return for each class. The following table presents the weighted average actual asset allocation as of December 31, 2008 and 2007:
OTHER EMPLOYEE BENEFIT PLANS
The Company also maintains post-retirement heath and welfare plans for certain subsidiaries and a non-qualified pension plan for certain individuals. At December 31, 2008 and 2007, the related projected benefit obligation for these plans accrued on the Company’s Consolidated Balance Sheets (primarily within other non-current liabilities) was $10 million and $10 million, respectively. The expense recorded by the Company in 2008 and 2007 was less than $1 million.
DEFINED CONTRIBUTION SAVINGS PLAN
The Company sponsors a defined contribution savings plan that provides certain eligible employees of the Company an opportunity to accumulate funds for retirement. In prior years and through mid February 2008, the Company matched a portion of the contributions of participating employees on the basis specified by the plan.
The Company’s cost for contributions to this plan was $5 million, $19 million, $8 million, and $26 million for the year ended December 31, 2008, the period April 10, 2007 through December 31, 2007, the period January 1, 2007 through April 9, 2007 and the year ended December 31, 2006, respectively.
10. INCOME TAXES
The income tax provision consists of the following:
Pre-tax income (loss) for domestic and foreign operations consisted of the following:
Current and non-current deferred income tax assets and liabilities, as of December 31, are comprised of the following:
(a) The deferred tax asset arose as a result of temporary differences related to future contractual payments to be received from a former Cendant subsidiary. The Company expects to utilize this asset as future payments are made under the agreement which is expected to occur over a 15 year period subject to certain conditions
For federal and state income tax purposes the Merger was treated as a stock transaction and in purchase accounting a deferred tax liability or asset is established for the difference between the book values assigned to assets and liabilities and the carry over tax basis of the assets and liabilities.
As of December 31, 2008, the Company had gross federal and state net operating loss carryforwards of approximately $925 million of which the federal carryforward expires between 2025 and 2028 and the state carryforward expires between 2011 and 2028. The Company has recorded a valuation allowance where
management has determined that, based on all available evidence, it is more likely than not that certain deferred tax assets will not be utilized. The valuation allowance of $61 million and $10 million at December 31, 2008 and 2007, respectively, primarily relates to federal and state net operating loss carryforwards and foreign tax credit carryforwards.
No provision has been made for U.S. federal deferred income taxes on $2 million and $2 million of accumulated and undistributed earnings of foreign subsidiaries at December 31, 2008 and 2007, respectively, since it is the present intention of management to reinvest the undistributed earnings indefinitely in those foreign operations. The determination of the amount of unrecognized U.S. federal deferred income tax liability for unremitted earnings is not practicable.
The Company’s effective income tax rate differs from the U.S. federal statutory rate as follows:
The Company is subject to income taxes in the United States and several foreign jurisdictions. Significant judgment is required in determining the worldwide provision for income taxes and recording related assets and liabilities. In the ordinary course of business, there are many transactions and calculations where the ultimate tax determination is uncertain. The Company is regularly under audit by tax authorities whereby the outcome of the audits is uncertain.
Under the Tax Sharing Agreement, as amended in July 2008, the Company is responsible for 62.5% of any payments made to the Internal Revenue Service (“IRS”) to settle claims with respect to tax periods ending on or prior to December 31, 2006. Our Consolidated Balance Sheet at December 31, 2008 and 2007 reflects liabilities to our former parent of $366 million and $353 million, respectively, relating to tax matters for which the Company is potential liable under the Tax Sharing Agreement.
Cendant and the IRS have settled the IRS examination for Cendant’s taxable years 1998 through 2002 during which the Company was included in Cendant’s tax returns. The Company was adequately reserved for this audit cycle and has reflected the results of that examination in these financial statements. The IRS has opened an examination for Cendant’s taxable years 2003 through 2006 during which the Company was included in Cendant’s tax returns. Although the Company and Cendant believe there is appropriate support for the positions taken on its tax returns, the Company and Cendant have recorded liabilities representing the best estimates of the probable loss on certain positions. The Company and Cendant Corporation (currently known as Avis Budget Group, Inc.) believe that the accruals for tax liabilities are adequate for all open years, based on assessment of many factors including past experience and interpretations of tax law applied to the facts of each matter.
Adoption of FIN 48
In June 2006, the FASB issued FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes-an Interpretation of FASB Statement No. 109” (“FIN 48”), which is an interpretation of SFAS No. 109, “Accounting for Income Taxes.” FIN 48 prescribes a recognition threshold and a measurement attribute for the financial statement recognition and measurement of tax positions taken or expected to be taken in a tax return. For those benefits to be recognized, a tax position must be more-likely-than-not to be sustained upon examination by taxing authorities. The amount recognized is measured as the largest amount of benefit that is greater than 50 percent likely of being realized upon ultimate settlement. The Company adopted the provisions of FIN 48 on January 1, 2007, as required, and recognized a $13 million increase in the liability for unrecognized tax benefits including associated accrued interest and penalties and a corresponding decrease in retained earnings.
As of January 1, 2007, the total gross amount of unrecognized tax benefits was $17 million, of which $11 million would affect the Company’s effective tax rate, if recognized. Subsequent to January 1, 2007, the Company reflects changes in its liability for unrecognized tax benefits as income tax expense in the Consolidated and Combined Statements of Operations. As of December 31, 2007, the Company’s gross liability for unrecognized tax benefits increased by $20 million. The increase relates to the current period effect of historical tax positions taken. As of December 31, 2008, the amount of unrecognized tax positions that, if recognized, would affect the Company’s effective tax rate is $19 million. We do not expect that our unrecognized tax benefits will significantly change over the next 12 months.
The Company recognizes accrued interest and penalties related to unrecognized tax benefits in interest expense and operating expenses, respectively. At January 1, 2007, the Company had approximately $3 million of interest accrued on unrecognized tax benefits. The Company recognized $2 million, $1 million and $1 million, respectively, of accrued interest for the year ended December 31, 2008 and for the periods January 1, 2007 through April 9, 2007 and April 10, 2007 through December 31, 2007, respectively. These amounts are included in interest expense in the Company’s Consolidated and Combined Statements of Operations.
The rollforward of unrecognized tax benefits are summarized in the table below:
11. SEPARATION AND RESTRUCTURING COSTS
Separation Costs
The Company incurred separation costs of $4 million, $2 million and $66 million for the period April 10, 2007 through December 31, 2007, the period January 1, 2007 through April 9, 2007 and the year ended December 31, 2006, respectively. These costs were incurred in connection with the separation from Cendant and relate to the acceleration of certain Cendant employee costs and legal, accounting and other advisory fees. The majority of the separation costs incurred related to a non-cash charge of $40 million for the accelerated vesting of certain Cendant equity awards and a non-cash charge of $11 million for the conversion of Cendant equity awards into Realogy equity awards.
2008 Restructuring Program
During the year ended December 31, 2008, the Company committed to various initiatives targeted principally at reducing costs and enhancing organizational efficiencies while consolidating existing processes and facilities. Total 2008 restructuring charges by segment are as follows:
The table below shows the total 2008 restructuring charges and the corresponding payments and other reductions by category:
2007 Restructuring Program
During 2007, the Company committed to various initiatives targeted principally at reducing costs, enhancing organizational efficiency and consolidating and rationalizing existing processes and facilities. Total 2007 restructuring charges by segment are as follows:
The table below shows the total 2007 restructuring charges and the corresponding payments and other reductions by category:
12. STOCK-BASED COMPENSATION
Incentive Equity Awards Granted by the Company
On May 2, 2006, Cendant’s Compensation Committee approved the grant of incentive awards of approximately $70 million to the key employees and senior officers of the Company which until the separation were cash-based awards. As per the grant terms, such awards converted to Company restricted stock units (“RSUs”) and SARs on August 1, 2006. The awards vest ratably over a period of four years. However, in accordance with the equity plan the awards vested immediately upon the Merger. The number of RSUs and SARs granted were 2.4 million and 0.8 million, respectively.
On May 2, 2006, Cendant’s Compensation Committee also approved the grant of performance-based incentive awards of approximately $8 million to certain executive officers of Realogy in the form of RSUs and SARs, the terms relating to vesting parameters were approved by the Company’s Compensation Committee on July 26, 2006 and were converted into equity awards relating to Realogy’s common stock on August 1, 2006. The awards vest at the end of a three-year performance period, subject to the attainment of specific performance goals related to the growth of Realogy’s adjusted earnings per share over a period of three years. However, in accordance with the equity plan the awards vested immediately upon the Merger. The number of RSUs and SARs granted were 0.2 million and 0.3 million, respectively.
Acceleration of Vesting of Incentive Awards Granted by the Company
In accordance with the Company’s stock compensation plan, all outstanding RSUs and SARs immediately vest upon a change in control. Therefore, as a result of the Merger and related transactions which were consummated on April 10, 2007, the awards were cancelled and converted into the right to receive a cash payment. For RSUs, the cash payment was equal to the number of RSUs multiplied by $30.00 (the merger consideration paid for each equity share held by Realogy stockholders on the record date). For SARs, the cash payment was equal to the number of outstanding shares of our common stock underlying the SARs multiplied by the amount by which $30.00 exceeded the SARs exercise price of $26.10 (which was the closing market price on the grant date of August 1, 2006), i.e. the intrinsic value on the settlement date. The Company recorded compensation expense of $56 million ($34 million after tax) in the Predecessor Period prior to the Merger due to the acceleration of vesting. This expense is classified as merger costs in the Consolidated and Combined Statement of Operations.
Incentive Equity Awards Granted by Holdings
In connection with the closing of the Transactions on April 10, 2007, Holdings adopted the Domus Holdings Corp. 2007 Stock Incentive Plan (the “Plan”) under which non-qualified stock options, rights to purchase shares of Common Stock, RSUs and other awards settleable in, or based upon, Common Stock may be issued to employees, consultants or directors of the Company or any of its subsidiaries. On November 13, 2007, the Holdings Board authorized an increase in the number of shares of Holdings common stock reserved for issuance
under the Plan from 15 million shares to 20 million shares. In conjunction with the closing of the Transactions on April 10, 2007, Holdings granted approximately 11.2 million of stock options in three separate tranches to officers and key employees and approximately 0.4 million of RSUs to senior officers. On November 13, 2007, in connection with the appointment of Henry R. Silverman to non-executive Chairman of the Company, the Holdings Board granted Mr. Silverman an option to purchase 5 million shares of Holdings common stock at $10 per share with a per share fair value of $8.09 which is based upon the fair value of the Company on the date of grant. In general, one half of the grant (the tranche A options) is subject to ratable vesting over five years, one quarter of the grant (tranche B options) is “cliff” vested upon the achievement of a 20% internal rate of return (“IRR”) target and the remaining 25% of the options (the tranche C options) are “cliff” vested upon the achievement of a 25% IRR target. The realized IRR targets are measured based upon distributions made to the stockholder of Realogy. In addition, at April 10, 2007, 2.3 million shares were purchased under the Plan at fair value by senior management of the Company. During 2008, the Holdings Board granted 291,000 stock options and 9,000 RSUs to a director of the Company and senior management employees. The director stock options vest ratably over a four-year period. The other employee options have similar vesting provisions as the April 2007 grant. As of December 31, 2008, the total number of shares available for future grant is approximately 1.4 million shares.
Stock Options Granted by Holdings
Tranche A options for the employees are subject to ratable vesting over five years and tranche B and C options are “cliff” vested upon the satisfaction of specified distributed IRR targets. The realized IRR targets will be measured based upon distributions made to stockholders. Since the IRR targets are based on an overall return to Apollo Investment Fund VI, L.P. and co-investors, the specified IRR is considered a market condition and the market condition is incorporated into the grant-date fair value of the award. Achievement of the distributions is a performance condition and it is not incorporated into the grant-date fair value measure. Such IRR targets are effectively dependent upon a capital transaction on a large scale (e.g. Initial Public Offering (“IPO”)). Instead, the performance condition is included in the attribution of the award. Until the IPO becomes probable of occurring, no compensation cost is recognized. Therefore, when it becomes probable, compensation cost would be recognized based on the grant-date fair value measure (which incorporates the market condition) whether or not the realized IRR is achieved upon the occurrence of the IPO.
Three tranches of options (“A”, “B” and “C”) were granted to employees and the non-executive Chairman at the estimated fair value at the date of issuance, with the following terms:
(1) Tranche B and C vesting is based upon affiliates of Apollo and co-investors achieving specific IRR targets on their investment in the Company.
The fair value of the tranche A options is estimated on the date of grant using the Black-Scholes option-pricing model. Expected volatility is based on historical volatilities of comparable companies. The expected term of the options granted represents the period of time that options are expected to be outstanding, which is estimated using the simplified method described in the SEC Staff Accounting Bulletin No. 107. The risk free interest rate is based on the U.S. Treasury yield curve in effect at the time of the grant, which corresponds to the expected term of the options.
The fair value of tranches B and C options is estimated on the date of grant using a lattice based option valuation model. Expected volatility is based on historical volatilities of the same comparable companies. The
expected term is estimated based on when certain IRR targets are projected to be met and when the options are expected to be exercised. The risk free interest rate is based on the U.S. Treasury yield curve in effect at the time of the grant, which corresponds to the expected term of the options.
The weighted average assumptions utilized to determine the value of the stock options are as follows:
Restricted Stock Units Granted by Holdings
One-half of the RSUs granted to employees “cliff” vested in October 2008 and the remaining RSUs “cliff” vest in April 2010. One-half of the director RSUs “cliff” vest in August 2009 and the remaining RSUs “cliff” vest in February 2011. Shares were granted at the fair market price of $10 which is the same price paid by affiliates of Apollo and co-investors in connection with the purchase of Domus shares on the date the merger was consummated.
A summary of option and restricted share activity is presented below (number of shares in millions):
As of December 31, 2008, there was $23 million of unrecognized compensation cost related to the remaining vesting period of tranche A options and RSUs under the Plan, and $22 million of unrecognized compensation cost related to tranche B and C options. Unrecognized cost for tranche A and the RSUs will be recorded in future periods as compensation expense over a weighted average period of approximately 3.4 years, and the unrecognized cost for tranche B and C options will be recorded as compensation expense when an IPO or significant capital transaction is probable of occurring.
Stock-Based Compensation Expense
The Company recorded the following stock-based compensation expense related to the incentive equity awards granted by the Company and Holdings.
13. RELATED PARTY TRANSACTIONS WITH CENDANT PRIOR TO SEPARATION
Corporate Related Functions
Through the date of separation, the Company was allocated general corporate overhead expenses from Cendant for corporate-related functions based on either a percentage of the Company’s forecasted revenues or, in the case of the Company Owned Real Estate Brokerage Services segment, based on a percentage of revenues after agent commission expense. General corporate overhead expense allocations included executive management, tax, accounting, legal and treasury services, certain employee benefits and real estate usage for common space. During 2006 the Company was allocated $24 million of general corporate expenses from Cendant, respectively, which are included within the general and administrative expenses line item in the accompanying Consolidated and Combined Statements of Operations.
Cendant also incurred certain expenses on behalf of the Company. These expenses, which directly benefited the Company, were allocated to the Company based upon the Company’s actual utilization of the services. Direct allocations included costs associated with insurance, information technology, revenue franchise audit, telecommunications and real estate usage for Company-specific space. During 2006 the Company was allocated $31 million of expenses directly benefiting the Company, respectively, which are included within the general and administrative expenses line item in the accompanying Consolidated and Combined Statements of Operations.
The Company believes the assumptions and methodologies underlying the allocations of general corporate overhead and direct expenses from Cendant are reasonable. However, such expenses are not indicative of, nor is it practical or meaningful for the Company to estimate for all historical periods presented, the actual level of expenses that would have been incurred had the Company been operating as a separate independent company.
14. SEPARATION ADJUSTMENTS AND TRANSACTIONS WITH FORMER PARENT AND SUBSIDIARIES
Transfer of Cendant Corporate Liabilities and Issuance of Guarantees to Cendant and Affiliates
Pursuant to the Separation and Distribution Agreement, upon the distribution of the Company’s common stock to Cendant stockholders, the Company entered into certain guarantee commitments with Cendant (pursuant to the assumption of certain liabilities and the obligation to indemnify Cendant, Wyndham Worldwide and Travelport for such liabilities) and guarantee commitments related to deferred compensation arrangements with Cendant and Wyndham Worldwide. These guarantee arrangements primarily relate to certain contingent litigation liabilities, contingent tax liabilities, and other corporate liabilities, of which the Company assumed and
is responsible for 62.5%. At Separation, the amount of liabilities which were assumed by the Company approximated $843 million. This amount was comprised of certain Cendant Corporate liabilities which were recorded on the historical books of Cendant as well as additional liabilities which were established for guarantees issued at the date of Separation related to certain unresolved contingent matters and certain others that could arise during the guarantee period. Regarding the guarantees, if any of the companies responsible for all or a portion of such liabilities were to default in its payment of costs or expenses related to any such liability, the Company would be responsible for a portion of the defaulting party or parties’ obligation. To the extent such recorded liabilities are in excess or are not adequate to cover the ultimate payment amounts, such deficiency or excess will be reflected in the results of operations in future periods.
The majority of the $843 million of liabilities allocated in 2006 have been classified as due to former parent in the Consolidated Balance Sheet as the Company is indemnifying Cendant for these contingent liabilities and therefore any payments are typically made to the third party through the former parent. At December 31, 2007, the due to former parent balance was $550 million and the balance was $554 at December 31, 2008.
Rollforwards of the contingent litigation settlement liabilities and contingent tax liabilities are noted below.
(a) On July 9, 2008, an amendment to the Tax Sharing Agreement was signed, to clarify the intent of the parties upon signing the Tax Sharing Agreement in 2006. This amendment resulted in certain balance sheet reclassifications between amounts due to/from former parent and tax accounts in the third quarter of 2008. There was no impact to the Statement of Operations as a result of this tax amendment and the balance sheet reclassification did not increase the Company’s net exposure for contingent tax liabilities.
Settlement Agreement Between Ernst & Young LLP and Cendant Corporation
On December 21, 2007, Cendant and other parties entered into a settlement agreement with Ernst & Young LLP (“Ernst & Young”) to settle all claims between the parties arising out of In Re Cendant Corporation Litigation, Master File No. 98-1664 (WHW) (D.N.J.) (the “Securities Action”). Under the settlement agreement, Ernst & Young has paid an aggregate of $298.5 million to settle all claims between the parties.
After satisfying obligations to various parties, including the plaintiff class members in the Securities Action and in the PRIDES securities class action and certain officers and directors of HFS Incorporated (including $6 million to Mr. Silverman, the former CEO and Chairman of the Board of HFS Incorporated and the Company’s
non-executive chairman), Cendant received approximately $128 million of net proceeds under the settlement agreement. Cendant is required to distribute all of those net proceeds to Realogy and Wyndham Worldwide in the following respective amounts: approximately $80 million (or 62.5% of such net amount) and approximately $48 million (or 37.5% of such net amount), in accordance with the terms of the Separation and Distribution Agreement dated as of July 27, 2006, among Cendant, Realogy, Wyndham Worldwide and Travelport (the “Separation Agreement”). Pursuant to the Separation Agreement, Realogy and Wyndham Worldwide approved the terms of, and authorized Cendant to execute, the settlement agreement. Realogy received its proceeds of $80 million from the settlement in December 2007.
Transactions with Avis Budget Group and Wyndham Worldwide
Prior to our Separation from Cendant, we entered into a Transition Services Agreement with Cendant, Wyndham Worldwide and Travelport to provide for an orderly transition to being an independent company. Under the Transition Services Agreement, Cendant agreed to provide us with various services, including services relating to human resources and employee benefits, payroll, financial systems management, treasury and cash management, accounts payable services, telecommunications services and information technology services. In certain cases, services provided by Cendant under the Transition Services Agreement may be provided by one of the separated companies following the date of such company’s separation from Cendant. The Company recorded expenses of $5 million, $2 million and $6 million during the period April 10, 2007 through December 31, 2007, January 1, 2007 through April 9, 2007 and from the date of Separation to December 31, 2006, respectively, and $1 million, $1 million and $1 million of other income during the period April 10, 2007 through December 31, 2007, January 1, 2007 through April 9, 2007 and from the date of Separation to December 31, 2006 in the Consolidated and Combined Statements of Operations related to these agreements.
Transactions with PHH Corporation
In January 2005, Cendant completed the spin-off of its former mortgage, fleet leasing and appraisal businesses in a tax-free distribution of 100% of the common stock of PHH to its stockholders. In connection with the spin-off, the Company entered a venture, PHH Home Loans with PHH for the purpose of originating and selling mortgage loans primarily sourced through the Company’s real estate brokerage and relocation businesses. The Company owns 49.9% of the venture. The Company entered into an agreement with PHH and PHH Home Loans regarding the operation of the venture. The Company also entered into a marketing agreement with PHH whereby PHH is the recommended provider of mortgage products and services promoted by the Company to its independently owned and operated franchisees and a license agreement with PHH whereby PHH Home Loans was granted a license to use certain of the Company’s real estate brand names. The Company also maintains a relocation agreement with PHH whereby PHH outsourced its employee relocation function to the Company and the Company subleases office space to PHH Home Loans.
In connection with these agreements, the Company recorded net revenues of $6 million, $5 million, $2 million and $7 million for the year ended December 31, 2008, the period from April 10, 2007 through December 31, 2007, the period from January 1, 2007 to April 9, 2007 and the year ended December 31, 2006, respectively. The Company recorded equity losses of $28 million for the year ended December 31, 2008, earnings of less than $1 million for the period April 10, 2007 through December 31, 2007 and January 1, 2007 though April 9, 2007, and earnings of $5 million for the year ended December 31, 2006. In the third quarter of 2008, an impairment analysis was completed by PHH Home Loans. As a result of lower long term financial forecasts and higher weighted average cost of capital, PHH Home Loans recorded an impairment charge for which the Company recorded its portion of the charge in equity (earnings) losses of unconsolidated entities of $31 million. In the fourth quarter of 2007, the Company received a $4 million dividend distribution from PHH Home Loans as well as invested an additional $2 million of cash in PHH Home Loans.
The Company invested an additional $1 million of cash in PHH Home Loans during the quarter ended March 31, 2008 and recorded a $1 million reduction in retained earnings and investment in PHH Home Loans related to the venture’s adoption of Statement of Financial Accounting Standards No. 157, “Fair Value Adjustments” on January 1, 2008.
Transactions with Affinion Group Holdings, Inc. (an Affiliate of Apollo)
In connection with Cendant’s sale of its former Marketing Services division in October 2005 to Affinion Group Holdings, Inc. (“Affinion”), an affiliate of Apollo, Cendant received preferred stock with a fair value of $83 million (face value of $125 million) and warrants with a fair value of $3 million in Affinion as part of the purchase price consideration. At Separation, the Company received the right to 62.5% of the proceeds from Cendant’s investment in Affinion and the value recorded by the Company on August 1, 2006 was $58 million. In January 2007, the Company received from the former parent $66 million, or 62.5%, of cash proceeds related to the former parent’s redemption of a portion of preferred stock investment with a book value of $46 million resulting in a gain of approximately $20 million which is included in former parent legacy costs (benefit), net in the Consolidated and Combined Statements of Operations. In March 2007, the Company’s former parent transferred 62.5% of the remaining investment in Affinion preferred stock and warrants to the Company, which simultaneously sold such preferred stock and warrants to two stockholders of Affinion who are affiliates of Apollo for $22 million with a book value of $17 million resulting in a gain of $5 million which is included in former parent legacy costs (benefit), net in the Consolidated and Combined Statements of Operations.
On June 30, 2008, Affinion Group, Inc., a wholly owned subsidiary of Affinion, entered into an Assignment and Assumption Agreement (“AAA”) with Avis Budget Group, Wyndham Worldwide and Realogy. Prior to this transaction, Avis Budget Group, Wyndham Worldwide and Realogy had provided certain loyalty program-related benefits and services to credit card holders of a major financial institution and received a fee from this financial institution based on spending by the credit card holders. One-half of the loyalty program was deemed a contingent asset and contingent liability under the terms of the Separation Agreement, with Realogy being responsible for 62.5% of such half or 31.25% of the assets and liabilities under the entire program. Under the AAA, Affinion Group, Inc. assumed all of the liabilities and obligations of Avis Budget Group, Wyndham Worldwide and Realogy relating to the loyalty program, including the fulfillment of the then-outstanding loyalty program points obligations. In connection with the transaction, on the June 30, 2008 closing date, Realogy agreed to pay approximately $8 million in the aggregate (a portion payable at closing and the balance over a three year period), as consideration for Affinion Group, Inc.’s assignment and assumption of Realogy’s proportionate share (31.25%) of the fulfillment obligation relating to the loyalty program points outstanding as of the closing date.
Transactions with Related Parties
The Company has entered into certain transactions in the normal course of business with entities that are owned by affiliates of Apollo. For the year ended December 31, 2008 and the period April 10, 2007 through December 31, 2007, the Company has recognized revenue and expenses related to these transactions of approximately $1 million in the aggregate in each period.
15. COMMITMENTS AND CONTINGENCIES
Litigation
In addition to the former parent contingent liability matters disclosed in Note 9 “Separation Adjustments and Transactions with Former Parent and Subsidiaries”, the Company is involved in claims, legal proceedings and governmental inquiries related to alleged contract disputes, business practices, intellectual property and other commercial, employment and tax matters. Examples of such matters include but are not limited to allegations: (i) concerning a dilution in the value of the Century 21® name and goodwill based upon purported changes made to the Century 21® system after the Company acquired it in 1995; (ii) contending that the affiliated business relationship between NRT and Title Resource Group is an inherent breach of an agent’s fiduciary duty to the customer; (iii) contending that residential real estate agents engaged by NRT are potentially common law employees instead of independent contractors, and therefore may bring claims against NRT for breach of contract, wrongful discharge and negligent supervision and obtain benefits available to employees under various state statutes; (iv) contending that NRT’s legal assistance program constitutes the illegal sale of insurance; and (v) concerning claims generally against the company owned brokerage operations for negligence or breach of fiduciary duty in connection with the performance of real estate brokerage or other professional services.
On September 7, 2007, the Court granted summary judgment on the breach of contract claims asserted by plaintiffs in the legacy Cendant Litigation, CSI Investment et. al. vs. Cendant et. al. (“Credentials Litigation”). The Credentials Litigation commenced in February 2000 and is a contingent liability of Cendant that was assigned to Realogy and Wyndham Worldwide Corporation under the Separation Agreement. The summary judgment award plus interest through December 31, 2008 for Cendant is approximately $103 million and provides for the award of attorneys’ fees to the plaintiff and sanctions of $0.7 million. Under the terms of the Separation Agreement, the Company’s portion of any actual liability would be 62.5% of the aggregate liability amount including any related fees and costs. Following the Court’s denial of Cendant’s motion for reconsideration Cendant appealed the summary judgment decision in May 2008 and appellate bonds were posted shortly thereafter in the aggregate amount of approximately $109 million (Realogy for the benefit of Cendant posting a bond for 62.5% thereof, or approximately $68 million, and Wyndham Worldwide Corporation for the benefit of Cendant posting a bond for 37.5% thereof, or approximately $41 million). On June 2, 2008, Plaintiffs filed a notice of cross appeal. On September 12, 2008, Cendant filed its appellate brief. In October 2008, Realogy and Wyndham paid their proportionate share of the $0.7 million of sanctions awarded against Cendant plus post-judgment interest thereon. Based upon the summary judgment decision, and after giving effect to accrued interest and an estimate of plaintiffs’ reasonable attorneys’ fees as well as the payment of sanctions, the Company has reserved $64 million for this matter.
The Company believes that it has adequately accrued for such matters as appropriate or, for matters not requiring accrual, believes that they will not have a material adverse effect on its results of operations, financial position or cash flows based on information currently available. However, litigation is inherently unpredictable and, although the Company believes that its accruals are adequate and/or that it has valid defenses in these matters, unfavorable resolutions could occur. As such, an adverse outcome from such unresolved proceedings for which claims are awarded in excess of the amounts accrued for could be material to the Company with respect to earnings or cash flows in any given reporting period. However, the Company does not believe that the impact of such unresolved litigation should result in a material liability to the Company in relation to its consolidated financial position or liquidity.
Tax Matters
The Company is subject to income taxes in the United States and several foreign jurisdictions. Significant judgment is required in determining the worldwide provision for income taxes and recording related assets and liabilities. In the ordinary course of business, there are many transactions and calculations where the ultimate tax determination is uncertain. The Company is regularly under audit by tax authorities whereby the outcome of the audits is uncertain. Accruals for tax contingencies are provided for in accordance with the requirements of FIN 48 and are currently maintained on the Company’s Balance Sheet.
Under the Tax Sharing Agreement, the Company is responsible for 62.5% of any payments made to the Internal Revenue Service (“IRS”) to settle claims with respect to tax periods ending on or prior to December 31, 2006. On July 9, 2008, an amendment to the Tax Sharing Agreement was signed, to clarify the intent of the parties upon signing the Tax Sharing Agreement in 2006. The amendment reflects the parties original intentions that (1) income tax payments would be treated as made and deductible (pursuant to the income tax regulations) by the reimbursing separate companies, (2) certain additional Cendant entities are deemed “shared” and thus entitling these entities to reimbursement for pre-separation tax liabilities or requiring them to distribute pre-separation refunds received; and (iii) the respective separate companies are required to surrender, without compensation, any recaptured tax credit carryovers (distributed at the separation date) pursuant to a tax audit. This amendment resulted in certain balance sheet reclassifications between amounts due to/from former parent and tax accounts in 2008.
During the fourth quarter of 2006, Cendant and the IRS have settled the IRS examination for Cendant’s taxable years 1998 through 2002 during which the Company was included in Cendant’s tax returns. The settlement includes the favorable resolution regarding the deductibility of expenses associated with the stockholder class action litigation resulting from the merger with CUC International, Inc. The IRS has opened an
examination for Cendant’s taxable years 2003 through 2006 during which the Company was included in Cendant’s tax returns. Although the Company and Cendant believe there is appropriate support for the positions taken on its tax returns, the Company and Cendant have recorded liabilities representing the best estimates of the probable loss on certain positions. The Company and Cendant believe that the accruals for tax liabilities are adequate for all open years, based on assessment of many factors including past experience and interpretations of tax law applied to the facts of each matter. The tax indemnification accruals for Cendant’s tax matters of $366 million are provided for in accordance with SFAS No. 5, “Accounting for Contingencies.”
$500 Million Letter of Credit
On April 26, 2007, the Company established a $500 million standby irrevocable letter of credit for the benefit of Avis Budget Group in accordance with the Separation and Distribution Agreement and a letter agreement among the Company, Wyndham Worldwide and Avis Budget Group relating thereto. The Company utilized its synthetic letter of credit to satisfy the obligations to post the standby irrevocable letter of credit. The standby irrevocable letter of credit back-stops the Company’s payment obligations with respect to its share of Cendant contingent and other corporate liabilities under the Separation and Distribution Agreement. The stated amount of the standby irrevocable letter of credit is subject to periodic adjustment to increase or decrease to reflect the then current estimate of Cendant contingent and other liabilities and will be terminated if (i) the Company’s senior unsecured credit rating is raised to BB by Standard and Poor’s or Ba2 by Moody’s or (ii) the aggregate value of the former parent contingent liabilities falls below $30 million.
Apollo Management Fee Agreement
In connection with the Transactions, Apollo entered into a management fee agreement with the Company which allows Apollo and its affiliates to provide certain management consulting services to us through the end of 2016 (subject to possible extension). The agreement may be terminated at any time upon written notice to the Company from Apollo. The Company will pay Apollo an annual management fee for this service up to the sum of (1) the greater of $15 million or 2.0% of the Company’s annual Adjusted EBITDA for the immediately preceding year, plus out of pocket costs and expenses in connection therewith. If Apollo elects to terminate the management fee agreement, as consideration for the termination of Apollo’s services under the agreement and any additional compensation to be received, the Company will agree to pay to Apollo the net present value of the sum of the remaining payments due to Apollo and any payments deferred by Apollo.
In addition, in the absence of an express agreement to the contrary, at the closing of any merger, acquisition, financing and similar transaction with a related transaction or enterprise value equal to or greater than $200 million, Apollo will receive a fee equal to 1% of the aggregate transaction or enterprise value paid to or provided by such entity or its stockholders (including the aggregate value of (x) equity securities, warrants, rights and options acquired or retained, (y) indebtedness acquired, assumed or refinanced and (z) any other consideration or compensation paid in connection with such transaction). The Company will agree to indemnify Apollo and its affiliates and their directors, officers and representatives for potential losses relating to the services to be provided under the management fee agreement.
Escrow and Trust Deposits
As a service to our customers, we administer escrow and trust deposits which represent undisbursed amounts received for settlements of real estate transactions. These escrow and trust deposits totaled approximately $240 million and $442 million at December 31, 2008 and December 31, 2007, respectively. These escrow and trust deposits are not assets of the Company and, therefore, are excluded from the accompanying Consolidated Balance Sheets. However, we remain contingently liable for the disposition of these deposits.
On October 3, 2008 President Bush signed into law the Emergency Economic Stabilization Act which includes a provision that increases the FDIC insurance coverage for depositors in banks and credit unions from $100,000 to $250,000. Also, on October 14, 2008, the FDIC issued a press release announcing that it will provide
full deposit insurance coverage for non-interest bearing deposit transaction accounts, regardless of dollar amount, until the end of 2009. This insurance coverage is applicable for escrow and trusts deposits held in non-interest bearing transaction/checking accounts.
Leases
The Company is committed to making rental payments under noncancelable operating leases covering various facilities and equipment. Future minimum lease payments required under noncancelable operating leases as of December 31, 2008 are as follows:
Commitments under capital leases amounted to $14 million and $64 million at December 31, 2008 and 2007, respectively. The decrease from 2007 was partially related to the Company’s termination of a sale leaseback arrangement in 2008 related to the corporate aircraft. The carrying amount of the aircraft capital lease payments was $28 million at December 31, 2007.
The Company incurred rent expense as follows:
Purchase Commitments and Minimum Licensing Fees
In the normal course of business, the Company makes various commitments to purchase goods or services from specific suppliers, including those related to capital expenditures. The purchase commitments made by the Company as of December 31, 2008 are approximately $69 million.
The Company is required to pay a minimum licensing fee to Sotheby’s beginning in 2009 through 2054. The Company expects the annual minimum licensing fee to approximate $2 million a year. The Company is required to pay minimum licensing fees to Meredith Corporation for the licensing of the Better Homes and Gardens Real Estate brand. Annual minimum licensing fees will begin in 2009 at $500 thousand and increase to $4 million by 2015 and generally remains the same thereafter.
Future minimum payments as of December 31, 2008 are as follows:
Standard Guarantees/Indemnifications
In the ordinary course of business, the Company enters into numerous agreements that contain standard guarantees and indemnities whereby the Company indemnifies another party for breaches of representations and warranties. In addition, many of these parties are also indemnified against any third party claim resulting from the transaction that is contemplated in the underlying agreement. Such guarantees or indemnifications are granted under various agreements, including those governing (i) purchases, sales or outsourcing of assets or businesses, (ii) leases of real estate, (iii) licensing of trademarks, (iv) use of derivatives and (v) issuances of debt securities. The guarantees or indemnifications issued are for the benefit of the (i) buyers in sale agreements and sellers in purchase agreements, (ii) landlords in lease contracts, (iii) franchisees in licensing agreements, (iv) financial institutions in derivative contracts and (v) underwriters in debt security issuances. While some of these guarantees extend only for the duration of the underlying agreement, many survive the expiration of the term of the agreement or extend into perpetuity (unless subject to a legal statute of limitations). There are no specific limitations on the maximum potential amount of future payments that the Company could be required to make under these guarantees, nor is the Company able to develop an estimate of the maximum potential amount of future payments to be made under these guarantees as the triggering events are not subject to predictability. With respect to certain of the aforementioned guarantees, such as indemnifications of landlords against third party claims for the use of real estate property leased by the Company, the Company maintains insurance coverage that mitigates any potential payments to be made.
Other Guarantees/Indemnifications
In the normal course of business, the Company coordinates numerous events for its franchisees and thus reserves a number of venues with certain minimum guarantees, such as room rentals at hotels local to the conference center. However, such room rentals are paid by each individual franchisee. If the franchisees do not meet the minimum guarantees, the Company is obligated to fulfill the minimum guaranteed fees. Such guarantees in effect at December 31, 2008 extend into 2010 and the maximum potential amount of future payments that the Company may be required to make under such guarantees is approximately $6 million. The Company would only be required to pay this maximum amount if none of the franchisees conducted their planned events at the reserved venues. Historically, the Company has not been required to make material payments under these guarantees. As of December 31, 2008, the liability recorded by the Company in connection with these guarantees was not significant.
Insurance and Self-Insurance
At December 31, 2008 and 2007, the Consolidated Balance Sheets include approximately $54 million and $57 million, respectively, of liabilities relating to (i) self-insured risks for errors and omissions and other legal matters incurred in the ordinary course of business within the Company Owned Real Estate Brokerage Services segment, (ii) for vacant dwellings and household goods in transit within the Relocation Services segment and (iii) premium and claim reserves for our title underwriting business. The Company may also be subject to legal
claims arising from the handling of escrow transactions and closings. Our subsidiary, NRT, carries errors and omissions insurance for errors made during the real estate settlement process of $15 million in the aggregate, subject to a deductible of $1 million per occurrence. In addition, we carry additional errors and omissions insurance policy for Realogy Corporation and its subsidiaries for errors made for real estate related services up to $35 million in the aggregate, subject to a deductible of $2.5 million per occurrence. This policy also provides excess coverage to NRT creating an aggregate limit of $50 million, subject to the NRT deductible of $1 million per occurrence.
The Company issues title insurance policies which provide coverage for real property mortgage lenders and buyers of real property. When acting as a title agent issuing a policy on behalf of an underwriter, the Company’s insurance risk is limited to the first $5,000 of claims on any one policy. The title underwriter the Company acquired in January 2006 generally underwrites title insurance policies on properties up to $1.5 million. For properties valued in excess of this amount, the Company obtains a reinsurance policy from a national underwriter.
Fraud, defalcation and misconduct by employees are also risks inherent in the business. At any point in time, the Company is the custodians of approximately $450 million of cash deposited by customers with specific instructions as to its disbursement from escrow, trust and account servicing files. The Company maintains Fidelity insurance covering the loss or theft of funds of up to $30 million annually in the aggregate, subject to a deductible of $1 million per occurrence.
The Company also maintains self-insurance arrangements relating to health and welfare, workers’ compensation, auto and general liability in addition to other benefits provided to the Company’s employees. The accruals for these self-insurance arrangements totaled approximately $17 million and $27 million at December 31, 2008 and 2007, respectively.
16. STOCKHOLDER’S EQUITY
On April 10, 2007, the Company completed the Merger and related transactions with Apollo. The Merger was financed with borrowings under the Company’s senior secured credit facility, the issuance of the Senior Notes, Senior Toggle Notes and Senior Subordinated Notes, and the equity investment from the sale of Holdings common stock to investment funds affiliated with Apollo and an investment fund of co-investors managed by Apollo, as well as members of the Company’s management who purchased Holdings common stock with cash or through rollover equity. All of the Company’s issued and outstanding common stock is currently owned by the Company’s parent, Intermediate, and all of the issued and outstanding common stock of Intermediate is owned by its parent, Holdings. Apollo and co-investors currently beneficially own all of the common stock of Holdings.
As a result of the Merger and related transactions, the Company has 100 shares of common stock authorized and outstanding with a par value of $0.01 per share. In addition, the Company has 100 shares of preferred stock authorized with no shares outstanding.
Accumulated Other Comprehensive Income (Loss)
The after-tax components of accumulated other comprehensive income (loss) are as follows:
(*) Assets and liabilities of foreign subsidiaries having non-U.S.-dollar functional currencies are translated at exchange rates at the balance sheet dates. Revenues and expenses are translated at average exchange rates during the periods presented. The gains or losses resulting from translating foreign currency financial statements into U.S. dollars are included in accumulated other comprehensive income (loss). Gains or losses resulting from foreign currency transactions are included in the statements of operations.
17. RISK MANAGEMENT AND FAIR VALUE OF FINANCIAL INSTRUMENTS
RISK MANAGEMENT
Following is a description of the Company’s risk management policies.
Foreign Currency Risk
The Company uses foreign currency forward contracts largely to manage its exposure to changes in foreign currency exchange rates associated with its foreign currency denominated receivables and payables. The Company primarily manages its foreign currency exposure to the British Pound, Euro, Swiss Franc and Canadian Dollar. In accordance with SFAS No. 133, the Company has chosen not to elect hedge accounting for these forward contracts; therefore, any change in fair value is recorded in the Consolidated Statements of Operations. The fluctuations in the value of these forward contracts do, however, generally offset the impact of changes in the value of the underlying risk that they are intended to economically hedge. The impact of these forward contracts was not material to the Company’s results of operations, cash flows or financial position during 2008, 2007 and 2006. The Company recognized $11 million of net losses in 2008 related to foreign currency denominated transactions net of hedges using foreign currency derivative contracts.
Interest Rate Risk
In May 2007, the Company entered into several floating to fixed interest rate swaps with varying expiration dates and notional amounts to hedge the variability in cash flows resulting from the term loan facility entered into on April 10, 2007. The Company is utilizing pay-fixed interest rate (and receive 3-month LIBOR) swaps to perform this hedging strategy. The key terms of the swaps are as follows: (i) $225 million notional amount of 5-year at 4.93%, (ii) $350 million notional amount of 3-year at 4.835% and (iii) $200 million notional amount of 1.5-year at 4.91%. The derivatives are being accounted for as cash flow hedges in accordance with SFAS 133 and, therefore, the unfavorable fair market value of the swaps of $23 million, net of income taxes, is recorded in Accumulated other comprehensive loss at December 31, 2008.
At December 31, 2008 we had total long term debt of $6,760 million excluding $703 of short term securitization obligations. Of the $6,760 million of long term debt, the Company has $3,638 million of variable interest rate debt primarily based on 3-month LIBOR. We have entered into floating to fixed interest rate swap agreements with varying expiration dates with an aggregate notional value of $775 million and, effectively fixed our interest rate on that portion of variable interest rate debt. The variable interest rate debt is subject to market rate risk, as our interest payments will fluctuate as underlying interest rates change as a result of market changes. In January 2009, one of the swap agreements with a notional value of $200 million expired.
At December 31, 2008, the fair value of our long term debt, excluding securitization obligations, approximated $2,970 million, which was determined based on quoted market prices. Since considerable judgment is required in interpreting market information, the fair value of the long-term debt is not necessarily indicative of the amount that could be realized in a current market exchange.
In the normal course of business, the Company borrows funds under its securitization facilities and utilizes such funds to generate assets on which it generally earns interest income. The Company does not believe it is exposed to significant interest rate risk in connection with these activities as the rate it incurs on such borrowings and the rate it earns on such assets are based on similar variable indices, thereby providing a natural hedge.
Credit Risk and Exposure
The Company is exposed to counterparty credit risk in the event of nonperformance by counterparties to various agreements and sales transactions. The Company manages such risk by evaluating the financial position and creditworthiness of such counterparties and by requiring collateral in instances in which financing is provided. The Company mitigates counterparty credit risk associated with its derivative contracts by monitoring the amounts at risk with each counterparty to such contracts, periodically evaluating counterparty creditworthiness and financial position, and where possible, dispersing its risk among multiple counterparties.
As of December 31, 2008, there were no significant concentrations of credit risk with any individual counterparty or groups of counterparties. The Company actively monitors the credit risk associated with our receivables.
Market Risk Exposure
Our company owned real estate brokerage services, NRT, owns real estate brokerage offices located in and around large metropolitan areas in the U.S. NRT has more offices and realizes more of its revenues in California, Florida and the New York metropolitan area than any other regions of the country. In the year ended December 31, 2008, NRT generated approximately 27% of its revenues from California, 25% from the New York metropolitan area and 11% from Florida. In 2007, NRT generated approximately 27% of its revenues from California, 25% from the New York metropolitan area and 9% from Florida.
FAIR VALUE
Effective January 1, 2008, the Company adopted SFAS No. 157, “Fair Value Measurements” (“SFAS No. 157”). SFAS No. 157 clarifies the definition of fair value, prescribes methods for measuring fair value, establishes a fair value hierarchy based on the inputs used to measure fair value and expands disclosures about the use of fair value measurements. The following tables present the Company’s assets and liabilities that are measured at fair value on a recurring basis and are categorized using the fair value hierarchy. The fair value hierarchy has three levels based on the reliability of the inputs used to determine fair value.
The availability of observable inputs can vary from asset to asset and is affected by a wide variety of factors, including, for example, the type of asset, whether the asset is new and not yet established in the marketplace, and other characteristics particular to the transaction. To the extent that valuation is based on models or inputs that are less observable or unobservable in the market, the determination of fair value requires more judgment. Accordingly, the degree of judgment exercised by the Company in determining fair value is greatest for instruments categorized in Level 3. In certain cases, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. In such cases, for disclosure purposes the level in the fair value hierarchy within which the fair value measurement in its entirety falls is determined based on the lowest level input that is significant to the fair value measurement in its entirety.
The fair value of financial instruments is generally determined by reference to quoted market values. In cases where quoted market prices are not available, fair value is based on estimates using present value or other valuation techniques, as appropriate. The fair value of interest rate swaps is determined based upon a discounted cash flow approach that incorporates counterparty and performance risk.
The following table summarizes fair value measurements by level at December 31, 2008 for assets/liabilities measured at fair value on a recurring basis:
The following table presents changes in Level III financial assets measured at fair value on a recurring basis:
The following table summarizes the carrying amount of the Company’s indebtedness compared to the estimated fair value at December 31, 2008:
18. SEGMENT INFORMATION
The reportable segments presented below represent the Company’s operating segments for which separate financial information is available and which is utilized on a regular basis by its chief operating decision maker to assess performance and to allocate resources. As discussed in Note 2, equity in earnings of unconsolidated entities is presented on a separate line below income taxes in the Consolidated Statement of Operations for all periods presented. In identifying its reportable segments, the Company also considers the nature of services provided by its operating segments. Management evaluates the operating results of each of its reportable segments based upon revenue and EBITDA, which is defined as net income before depreciation and amortization, interest (income) expense, net (other than Relocation Services interest for secured assets and obligations), income taxes and minority interest, each of which is presented in the Company’s Consolidated and Combined Statements of Operations. The Company’s presentation of EBITDA may not be comparable to similar measures used by other companies.
(a) Transactions between segments are eliminated in consolidation. Revenues for the Real Estate Franchise Services segment include intercompany royalties and marketing fees paid by the Company Owned Real Estate Brokerage Services segment of $251 million for the year ended December 31, 2008, $242 million for the period April 10, 2007 through December 31, 2007, $74 million for the period January 1, 2007 through April 9, 2007 and $327 million for the year ended December 31, 2006. Such amounts are eliminated through the Corporate and Other line. Revenues for the Relocation Services segment include intercompany referral and relocation fees paid by the Company Owned Real Estate Brokerage Services segment of $42 million for the year ended December 31, 2008, $38 million for the period April 10, 2007 through December 31, 2007, $14 million for the period January 1, 2007 through April 9, 2007 and $55 million for the year ended December 31, 2006. Such amounts are recorded as contra-revenues by the Company Owned Real Estate Brokerage Services segment. There are no other material inter-segment transactions.
(b) Includes the elimination of transactions between segments.
(a) Includes $58 million of restructuring costs and $2 million of merger cost offset by a benefit of $20 million of former parent legacy costs for the year ended December 31, 2008, compared to $24 million, $35 million, $27 million, $5 million and $4 million of merger costs, restructuring costs, former parent legacy costs, separation benefits and separation costs, respectively, for the period April 10, 2007 through December 31, 2007, $80 million, $45 million, $2 million and $1 million of merger costs, separation benefits, separation costs and restructuring costs offset by a benefit of $19 million of former parent legacy costs, respectively, for the period January 1, 2007 through April 9, 2007, and $66 million, $46 million and $4 million of separation costs, restructuring costs and merger costs, respectively, partially offset by a benefit of $38 million of former parent legacy costs, for the year ended December 31, 2006.
(b) 2008 EBITDA includes an impairment charge of $1,789. The impairment charge impacted the Real Estate Franchise Services segment by $953 million, the Company Owned Real Estate Brokerage Services segment by $195 million, the Relocation Services segment by $335 million and the Title and Settlement Services segment by $306 million
(c) 2007 EBITDA includes an impairment charge of $667 million. The impairment charge impacted the Real Estate Franchise Services segment by $513 million, the Relocation Services segment by $40 million and the Title and Settlement Services segment by $114 million.
(d) Includes the elimination of transactions between segments.
Provided below is a reconciliation of EBITDA to net income (loss).
Depreciation and Amortization
Segment Assets
Capital Expenditures
The geographic segment information provided below is classified based on the geographic location of the Company’s subsidiaries.
19. SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
Provided below is selected unaudited quarterly financial data for 2008 and 2007.
(a) Equity in (earnings) losses of unconsolidated entities was previously presented within Other revenues in the consolidated statement of operations. The Company has changed the presentation of these amounts to reflect them on a separate line below income taxes in the Consolidated Statement of Operations for all periods presented.
(b) Represents the elimination of transactions primarily between the Real Estate Franchise Services segment and the Company Owned Real Estate Brokerage Services segment.
(c) Loss before income taxes and minority interest for the fourth quarter of 2008 includes an impairment charge of $1,789 million. The impairment charge impacted the Real Estate Franchise Services segment by $953 million, the Company Owned Real Estate Brokerage Services segment by $195 million, the Relocation Services segment by $335 million and the Title and Settlement Services segment by $306 million.
(d) The quarterly results include the following:
•
Former parent legacy cost (benefit) of $6 million, $(7) million and $(19) million in the first, second and fourth quarters, respectively;
•
Restructuring charges of $9 million, $14 million, $15 million and $20 million in the first, second, third and fourth quarters, respectively; and
•
Merger costs of $1 million in both the first and fourth quarter.
(a) Equity in (earnings) losses of unconsolidated entities was previously presented within Other revenues in the Consolidated Statement of Operations. The Company has changed the presentation of these amounts to reflect them on a separate line below income taxes in the Consolidated Statement of Operations for all periods presented.
(b) Represents the elimination of transactions primarily between the Real Estate Franchise Services segment and the Company Owned Real Estate Brokerage Services segment.
(c) Income (loss) before income taxes and minority interest for the fourth quarter of 2007 includes an impairment charge of $667 million. The impairment charge impacted the Real Estate Franchise Services segment by $513 million, the Relocation Services segment by $40 million and the Title and Settlement Services segment by $114 million.
(d) The quarterly results include the following:
•
Separation costs of $2 million, $1 million, $1 million and $2 million in the first quarter, period from April 10 to June 30, third and fourth quarters, respectively;
•
Former parent legacy costs (benefits) of $(20) million, $1 million, $2 million and $25 million in the first quarter, period from April 1 to April 9, third and fourth quarters, respectively;
•
Restructuring charges of $1 million, $3 million, $3 million and $29 million in the period from April 1 through April 9, period from April 10 to June 30, third and fourth quarters, respectively; and
•
Merger costs of $9 million, $71 million, $16 million, $6 million and $2 million in the first quarter, period from April 1 through April 9, period from April 10 to June 30, third and fourth quarters, respectively.
•
Separation benefits of $45 million and $5 million in the period from April 1 to April 9 and the fourth quarter, respectively.
20. GUARANTOR/NON-GUARANTOR SUPPLEMENTAL FINANCIAL INFORMATION
The following consolidating financial information presents the Consolidating Balance Sheets and Consolidating Statements of Operations and Cash Flows for: (i) Realogy Corporation (the “Parent”); (ii) the guarantor subsidiaries; (iii) the non-guarantor subsidiaries; (iv) elimination entries necessary to consolidate the Parent with the guarantor and non-guarantor subsidiaries; and (v) the Company on a consolidated basis. As discussed in Note 2, equity in (earnings) losses of unconsolidated entities is presented on a separate line below income taxes in the Consolidated and Combined Statement of Operations for all periods presented. The guarantor subsidiaries are comprised of 100% owned entities, and guarantee on an unsecured senior subordinated basis the Senior Subordinated Notes and on an unsecured senior basis the Fixed Rate Senior Notes and Senior Toggle Notes. Guarantor and non-guarantor subsidiaries are 100% owned by the Parent, either directly or indirectly. All guarantees are full and unconditional and joint and several. Non-Guarantor entities are comprised of securitization entities, foreign subsidiaries, unconsolidated entities, insurance underwriter subsidiaries and qualified foreign holding corporations. The guarantor and non-guarantor financial information is prepared using the same basis of accounting as the consolidated financial statements.
Consolidating Statement of Operations
Year Ended December 31, 2008
(in millions)
Consolidating Statement of Operations
April 10 through December 31, 2007
(in millions)
Consolidating Statement of Operations
January 1 through April 9, 2007
(in millions)
Consolidating Statement of Operations
Year Ended December 31, 2006
(in millions)
Consolidating Balance Sheet
As of December 31, 2008
(in millions)
Consolidating Balance Sheet
As of December 31, 2007
(in millions)
Consolidating Statement of Cash Flows
For the Year Ended December 31, 2008
(in millions)
Consolidating Statement of Cash Flows
April 10 through December 31, 2007
(in millions)
Consolidating Statements of Cash Flows
January 1 through April 9, 2007
(in millions)
Consolidating Statements of Cash Flows
For the Year Ended December 31, 2006
(in millions)
Exhibit Index
G-1
G-2
G-3
G-4
G-5
G-6
G-7
G-8
* Filed herewith.
** Compensatory plan or arrangement.
G-9
REALOGY CORPORATION
SCHEDULE II-VALUATION AND QUALIFYING ACCOUNTS
THE YEAR ENDED DECEMBER 31, 2008, THE PERIOD FROM JANUARY 1 THROUGH
APRIL 9, 2007, THE PERIOD FROM APRIL 10 THROUGH DECEMBER 31, 2007
AND THE YEAR ENDED DECEMBER 31, 2006
(in millions)
(a) The deduction column represents uncollectible accounts written off, net of recoveries from Trade receivables in the Consolidated Balance Sheets.
(b)
Short term development advance notes are included in Trade receivables in the Consolidated Balance Sheets.