Table of Contents

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 


FORM 10-Q

 


 

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

For the quarterly period ended September 30, 2007

OR

 

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

For the transition period from              to             

Commission File Number 001-31255

 


WCI COMMUNITIES, INC.

(Exact name of registrant as specified in its charter)

 


 

DELAWARE   59-2857021

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

24301 Walden Center Drive

Bonita Springs, Florida 34134

(Address of principal executive offices) (Zip Code)

(239) 947-2600

(Registrant's telephone number, including area code)

Not applicable

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

 


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

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer (as defined in Rule 12b-2 of the Exchange Act).

Large accelerated filer   þ     Accelerated filer   ¨     Non-accelerated filer   ¨

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

The number of shares outstanding of the issuer’s common stock, as of November 5, 2007, was 42,108,838.

 



Table of Contents

WCI COMM UNITIES, INC.

Form 10-Q

For the Quarter Ended September 30, 2007

INDEX

 

     Page No.
Part I.   Financial Information   
Item 1.   Financial Statements   
  Condensed Consolidated Balance Sheets September 30, 2007 (Unaudited) and December 31, 2006    1
  Condensed Consolidated Statements of Income (Unaudited) For the Three and Nine Months Ended September 30, 2007 and 2006    2
  Condensed Consolidated Statements of Changes in Shareholders’ Equity (Unaudited) For the Nine Months Ended September 30, 2007 and 2006    3
  Condensed Consolidated Statements of Cash Flows (Unaudited) For the Nine Months Ended September 30, 2007 and 2006    4
  Notes to Condensed Consolidated Financial Statements (Unaudited)    5
Item 2.   Management’s Discussion and Analysis of Financial Condition and Results of Operations    22
Item 3.   Quantitative and Qualitative Disclosures about Market Risk    35
Item 4.   Controls and Procedures    36
Part II.   Other Information   
Item 1.   Legal Proceedings    37
Item 1A.   Risk Factors    37
Item 3.   Defaults Upon Senior Securities    40
Item 4.   Submission of Matters to a Vote of Shareholders    41
Item 6.   Exhibits    42
SIGNATURE   
Certifications   

 

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PART I. FINANCIAL INFORMATION

 

ITEM 1. FINANCIAL STATEMENTS

WCI COMMUNITIES, INC.

Condensed Consolidated Balance Sheets

(In thousands, except per share data)

 

     September 30,
2007
    December 31,
2006
 
     (Unaudited)        

Assets

    

Cash and cash equivalents

   $ 7,174     $ 41,876  

Restricted cash

     25,263       42,035  

Contracts receivable, net

     787,208       1,269,549  

Mortgage notes and accounts receivable

     19,144       28,518  

Real estate inventories

     1,995,953       1,955,793  

Property and equipment, net

     244,080       274,720  

Other assets

     229,942       142,174  

Goodwill

     69,168       69,098  

Other intangible assets

     1,284       8,096  
                

Total assets

   $ 3,379,216     $ 3,831,859  
                

Liabilities and Shareholders’ Equity

    

Accounts payable and other liabilities

   $ 255,891     $ 348,684  

Customer deposits

     222,451       362,009  

Community development district obligations

     90,602       115,031  

Senior revolving credit facility

     448,700       503,846  

Senior term note

     262,500       300,000  

Mortgages and notes payable

     376,602       363,261  

Senior subordinated notes

     525,000       525,000  

Junior subordinated notes

     165,000       165,000  

Contingent convertible senior subordinated notes

     125,000       125,000  
                
     2,471,746       2,807,831  
                

Minority interests

     32,536       36,629  

Commitments and contingencies

     —         —    

Shareholders’ equity:

    

Common stock, $.01 par value; 100,000 shares authorized, 46,771 and 46,583 shares issued, respectively

     468       466  

Additional paid-in capital

     293,189       285,986  

Retained earnings

     689,732       808,482  

Treasury stock, at cost, 4,693 shares, respectively

     (108,047 )     (108,047 )

Accumulated other comprehensive (loss) gain

     (408 )     512  
                

Total shareholders’ equity

     874,934       987,399  
                

Total liabilities and shareholders’ equity

   $ 3,379,216     $ 3,831,859  
                

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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WCI COMMUNITIES, INC.

Condensed Consolidated Statements of Income

(In thousands, except per share data)

(unaudited)

 

     For the three months ended
September 30,
    For the nine months ended
September 30,
 
     2007     2006     2007     2006  

Revenues

        

Homebuilding

   $ 120,229     $ 384,221     $ 589,494     $ 1,363,164  

Real estate services

     20,808       23,412       73,808       87,083  

Other

     24,942       17,925       83,169       71,948  
                                

Total revenues

     165,979       425,558       746,471       1,522,195  
                                

Cost of Sales

        

Homebuilding

     164,362       305,256       611,735       1,066,219  

Real estate services

     20,614       23,298       69,040       81,157  

Other

     21,646       34,437       73,313       85,102  
                                

Total cost of sales

     206,622       362,991       754,088       1,232,478  
                                

Gross margin

     (40,643 )     62,567       (7,617 )     289,717  

Other Income and Expenses

        

Equity in losses (earnings) from joint ventures

     52       865       (443 )     814  

Other income

     (1,668 )     (3,090 )     (2,520 )     (5,248 )

Hurricane recoveries

     —         (6,437 )     (5,393 )     (6,435 )

Selling, general and administrative

     40,008       41,131       125,231       137,460  

Interest expense, net

     22,365       8,693       57,000       19,103  

Real estate taxes, net

     6,453       3,701       17,970       11,251  

Depreciation and amortization

     5,392       6,122       16,624       18,710  

Expenses related to debt amendments and early repayment of debt

     3,583       —         3,583       455  
                                

(Loss) income from continuing operations before minority interests and income taxes

     (116,828 )     11,582       (219,669 )     113,607  

Minority interests

     1,666       1,525       2,488       259  
                                

(Loss) income from continuing operations before income taxes

     (115,162 )     13,107       (217,181 )     113,866  

Income tax (benefit) expense from continuing operations

     (45,440 )     3,119       (84,212 )     42,194  
                                

(Loss) income from continuing operations

     (69,722 )     9,988       (132,969 )     71,672  

Income from discontinued operations, net of tax

     —         671       866       1,904  

Gain on sale of discontinued operations, net of tax

     —         —         13,353       —    
                                

Net (loss) income

   $ (69,722 )   $ 10,659     $ (118,750 )   $ 73,576  
                                

(Loss) earnings per share:

        

Basic:

        

From continuing operations

   $ (1.66 )   $ .24     $ (3.17 )   $ 1.67  

From discontinued operations

     —         .02       .34       .04  
                                
   $ (1.66 )   $ .26     $ (2.83 )   $ 1.71  
                                

Diluted:

        

From continuing operations

   $ (1.66 )   $ .24     $ (3.17 )   $ 1.64  

From discontinued operations

     —         .01       .34       .04  
                                
   $ (1.66 )   $ .25     $ (2.83 )   $ 1.68  
                                

Weighted average number of shares:

        

Basic

     42,030       41,730       41,980       42,919  

Diluted

     42,030       42,335       41,980       43,795  

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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WCI COMMUNITIES, INC.

Condensed Consolidated Statements of Changes in Shareholders’ Equity

(In thousands)

(unaudited)

 

    

 

 

Common Stock

   Additional
Paid-in
Capital
    Retained
Earnings
    Accumulated
Other
Comprehensive
Gain (Loss)
    Treasury
Stock
    Total  
     Shares     Amount           

Balance at December 31, 2006

   41,890     $ 466    $ 285,986     $ 808,482     $ 512     $ (108,047 )   $ 987,399  

Exercise of stock options

   144       1      1,805       —         —         —         1,806  

Stock-based compensation

   44       1      5,398       —         —         —         5,399  

Purchase of treasury stock

   —         —        —         —         —         —         —    

Comprehensive loss:

               

Net loss

   —         —        —         (118,750 )     —         —         (118,750 )

Change in fair value of derivative, net

   —         —        —         —         (920 )     —         (920 )
                     

Total comprehensive loss

                  (119,670 )
                                                     

Balance at September 30, 2007

   42,078     $ 468    $ 293,189     $ 689,732     $ (408 )   $ (108,047 )   $ 874,934  
                                                     
    

 

 

Common Stock

   Additional
Paid-in
Capital
    Retained
Earnings
    Accumulated
Other
Comprehensive
Gain (Loss)
    Treasury
Stock
    Total  
     Shares     Amount           

Balance at December 31, 2005

   44,362     $ 460    $ 298,786     $ 799,468     $ (1,105 )   $ (38,987 )   $ 1,058,622  

Exercise of stock options

   455       5      4,873       —         —         —         4,878  

Tax benefit from stock option exercises

   —         —        1,513       —         —         —         1,513  

Stock-based compensation

   13       —        6,697       —         —         —         6,697  

Purchase of treasury stock

   (3,000 )     —        —         —         —         (69,060 )     (69,060 )

Purchase of call options associated with stock repurchase program

   —         —        (5,369 )     —         —         —         (5,369 )

Comprehensive income:

               

Net income

   —         —        —         73,576       —         —         73,576  

Change in fair value of derivative, net

   —         —        —         —         1,474       —         1,474  
                     

Total comprehensive income

                  75,050  
                                                     

Balance at September 30, 2006

   41,830     $ 465    $ 306,500     $ 873,044     $ 369     $ (108,047 )   $ 1,072,331  
                                                     

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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WCI COMMUNITIES, INC.

Condensed Consolidated Statements of Cash Flows

(In thousands)

(unaudited)

 

     For the nine months ended
September 30,
 
     2007     2006  

Cash flows from operating activities:

    

Net (loss) income

   $ (118,750 )   $ 73,576  

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

    

Tax benefit relating to stock options

     —         1,513  

Deferred income taxes

     (60,284 )     (7,043 )

Depreciation and amortization

     20,943       22,716  

Write-off of debt issuance costs

     3,583       —    

Change in mark-to-market of derivatives

     1,974       —    

Gain on sale of property and equipment

     (20,069 )     —    

Gain on sale of interest in joint venture

     —         (2,622 )

(Earnings) losses from investments in joint ventures

     (443 )     814  

Minority interests

     (2,488 )     (259 )

Asset impairment losses and land acquisition termination costs

     73,004       13,293  

Stock-based compensation expense

     5,399       6,697  

Changes in assets and liabilities:

    

Restricted cash

     16,772       72,518  

Contracts receivable

     482,341       (319,594 )

Mortgage notes and accounts receivable

     9,374       25,718  

Real estate inventories

     (109,289 )     (383,158 )

Distributions of earnings from joint ventures

     904       —    

Cash from consolidation of joint ventures

     —         1,186  

Other assets

     (26,496 )     9,040  

Accounts payable and other liabilities

     (103,607 )     (67,024 )

Customer deposits

     (139,558 )     (52,365 )
                

Net cash provided by (used in) operating activities

     33,310       (604,994 )
                

Cash flows from investing activities:

    

Additions to property and equipment, net

     (21,296 )     (35,036 )

Proceeds from sale of property and equipment

     47,105       —    

Sale of interest in joint venture

     —         3,625  

Distributions of capital from (capital contributions to) investments in joint ventures, net

     398       (13,677 )
                

Net cash provided by (used in) investing activities

     26,207       (45,088 )
                

Cash flows from financing activities:

    

Net (repayments) borrowings on senior revolving credit facility

     (55,146 )     477,506  

Repayment of senior term note

     (37,500 )     —    

Proceeds from borrowings on mortgages and notes payable

     367,770       302,113  

Repayment of mortgages and notes payable

     (355,351 )     (140,687 )

Redemption of senior subordinated notes

     —         (5,430 )

Proceeds from issuance of junior subordinated notes

     —         65,000  

Debt amendment and/or issue costs

     (8,785 )     (4,325 )

Net (payments) advances on community development district obligations

     (5,408 )     151  

Distributions to minority interests

     (1,605 )     (5,825 )

Proceeds from exercise of stock options

     1,806       4,878  

Purchase of treasury stock

     —         (69,060 )

Purchase of call options associated with common stock repurchase program

     —         (5,369 )
                

Net cash (used in) provided by financing activities

     (94,219 )     618,952  
                

Net decrease in cash and cash equivalents

     (34,702 )     (31,130 )

Cash and cash equivalents at beginning of period

     41,876       52,584  
                

Cash and cash equivalents at end of period

   $ 7,174     $ 21,454  
                

Non-cash activity:

    

Land purchase obligations in connection with land under option

   $ —       $ 70,900  

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands, except per share data)

 

1. Basis of Presentation

The condensed consolidated financial statements include the accounts of WCI Communities, Inc. (the Company, WCI or we), our wholly owned subsidiaries and certain joint ventures which are not variable interest entities (VIEs) but with respect to which we have the ability to exercise control. The equity method of accounting is applied in the accompanying condensed consolidated financial statements with respect to those investments in joint ventures which are not VIEs and we have less than a controlling interest, have substantive participating rights, or are not the primary beneficiary as defined in FIN 46-R, Consolidation of Variable Interest Entities . All material intercompany balances and transactions are eliminated in consolidation.

The condensed consolidated financial statements and notes of the Company as of September 30, 2007 and for the three and nine months ended September 30, 2007 and 2006 have been prepared by management without audit, pursuant to rules and regulations of the Securities and Exchange Commission and should be read in conjunction with the December 31, 2006 audited financial statements contained in the Company's Annual Report on Form 10-K for the year then ended. In the opinion of management, all normal, recurring adjustments necessary for the fair presentation of such financial information have been included. The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Certain information and footnote disclosures normally included in annual financial statements prepared in accordance with accounting principles generally accepted in the United States of America have been condensed or omitted.

Historically, the traditional homebuilding segment delivers 30% to 40% of its revenue and gross margin in the fourth quarter. The Company historically has experienced and expects to continue to experience variability in quarterly results. The condensed consolidated statement of operations for the three and nine months ended September 30, 2007 is not necessarily indicative of the results to be expected for the full year.

Debt Covenant Compliance

For the quarter ended September 30, 2007, we were not able to comply with the modified Fixed Charge Coverage covenant under the Revolving Credit Facility and Term Loan Agreement. As a result, on November 7, 2007, we obtained a limited waiver of performance under this covenant which is effective through December 7, 2007. Following the filing of this quarterly report, we expect to finalize our discussions with the lead lenders under these facilities and submit a longer-term amendment that would provide financial flexibility, including suspension of the Fixed Charge Coverage covenant, for approval by the lenders that are now participants in these facilities and the Tower Facility. As of September 30, 2007, the balance on the Revolving Credit Facility was $448,700, the balance on the Term Loan Agreement was $262,500 and the balance on the Tower Facility was $358,538.

At this time, it is not certain that we will reach agreement or obtain approval of the anticipated longer-term amendments. This amendment will be expensive and there can be no assurance that we will be able to comply with the amended covenants and other requirements. If WCI is unable to obtain the amendment or comply with its terms, the lenders would have the right to exercise remedies specified in the loan agreements, including foreclosing on certain collateral and accelerating the maturity of the loans, which could result in the acceleration of substantially all of our other outstanding indebtedness. In such a situation, there can be no assurance that we would be able to obtain alternative financing. In addition, if the Company is determined to be in default of these loan agreements, it may be prohibited from drawing additional funds under the Revolving Credit Facility and the Tower Loan Agreement, which could impair our ability to maintain sufficient working capital. Either situation could have a material adverse effect on the solvency of the Company and our ability to continue as a going concern for a reasonable period of time.

 

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WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands, except per share data)

 

2. Segment Information

We operate in three principal business segments: Tower Homebuilding, Traditional Homebuilding, which includes sales of lots; and Real Estate Services, which includes real estate brokerage and title operations. The reportable segments are each managed separately because they provide distinct products or services with different production processes. Land Sales and Amenity Membership and Operations and Other have been disclosed for purposes of additional analysis.

The amount of previously capitalized interest included in cost of sales of each segment, thereby reducing segment gross margin, is also presented for purposes of additional analysis. Asset information by business segment is not presented, since we do not prepare such information.

 

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WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands, except per share data)

Three months ended September 30, 2007

 

     Tower
Homes
   

 

Traditional

   Real
Estate
Services
   Amenity
Membership
and Operations
and Other
    Land
Sales
   Segment
Totals
 
     Homes    Lots           

Revenues

   $ (36,788 )   $ 151,484    $ 5,533    $ 20,808    $ 19,605     $ 5,337    $ 165,979  

Gross margin

     (56,646 )     10,436      2,077      194      (1,365 )     4,661      (40,643 )

Previously capitalized interest included in costs of sales

     61       5,589      374      —        —         272      6,296  
Three months ended September 30, 2006              
     Tower
Homes
   

 

Traditional

   Real
Estate
Services
   Amenity
Membership
and Operations
and Other
    Land
Sales
   Segment
Totals
 
     Homes    Lots           

Revenues

   $ 172,324     $ 203,477    $ 8,420    $ 23,412    $ 16,524     $ 1,401    $ 425,558  

Gross margin

     31,077       46,184      1,704      114      (17,790 )     1,278      62,567  

Previously capitalized interest included in costs of sales

     10,745       5,483      846      —        —         25      17,099  
Nine months ended September 30, 2007              
     Tower
Homes
   

 

Traditional

   Real
Estate
Services
   Amenity
Membership
and Operations
and Other
    Land
Sales
   Segment
Totals
 
     Homes    Lots           

Revenues

   $ 39,326     $ 536,840    $ 13,328    $ 73,808    $ 65,235     $ 17,934    $ 746,471  

Gross margin

     (72,533 )     45,749      4,543      4,768      (672 )     10,528      (7,617 )

Previously capitalized interest included in costs of sales

     8,139       18,861      940      —        11       679      28,630  
Nine months ended September 30, 2006              
     Tower
Homes
   

 

Traditional

   Real
Estate
Services
   Amenity
Membership
and Operations
and Other
    Land
Sales
   Segment
Totals
 
     Homes    Lots           

Revenues

   $ 606,153     $ 737,538    $ 19,473    $ 87,083    $ 64,431     $ 7,517    $ 1,522,195  

Gross margin

     130,105       161,708      5,132      5,926      (17,882 )     4,728      289,717  

Previously capitalized interest included in costs of sales

     29,932       18,739      1,764      —        4       25      50,464  

 

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WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands, except per share data)

 

3. Real Estate Inventories

Real estate inventories are summarized as follows:

 

     September 30,
2007
   December 31,
2006

Land and land improvements

   $ 961,364    $ 947,669

Investments in amenities

     101,526      86,905

Work in progress:

     

Towers

     261,486      278,703

Homes

     288,992      375,652

Completed inventories:

     

Towers

     186,571      47,045

Homes

     196,014      219,819
             

Total real estate inventories

   $ 1,995,953    $ 1,955,793
             

Work in progress includes tower units and homes that are finished, sold and ready for delivery. Work in progress also includes unsold tower units and homes in various stages of construction and tower land in the initial stages of site planning and tower design. Completed inventories consist of model homes used to facilitate sales and tower units and homes that are not subject to a sales contract. Including model homes, we had approximately 384 and 403 completed single- and multi-family homes at September 30, 2007 and December 31, 2006, respectively. We had 362 and 71 completed tower residences at September 30, 2007 and December 31, 2006, respectively.

In accordance with Statement of Position 81-1, Accounting for Performance of Construction-Type and Certain Production-Type Contracts , changes in estimates of tower revenue and development costs are accounted for on a cumulative basis in the period that the change occurs. Our estimates of tower revenue and development costs are revised on a quarterly basis until a tower building is completed and delivered to unit owners. For the three months ended September 30, 2007 and 2006, tower gross margin was reduced by approximately $12,900 and $11,100, respectively, as a result of tower construction costs increases, an increase in interest costs associated with increased tower construction cycle times, and an increase in insurance and other costs. The impact to net (loss) income and diluted (loss) earnings per share for the three months ended September 30, 2007 and 2006 was approximately $7,900 or $.19 per share and $8,400 or $.20 per share, respectively. For the nine months ended September 30, 2007 and 2006, tower gross margin was reduced by approximately $27,900 and $26,200, respectively, as a result of tower construction costs increases, an increase in interest costs associated with increased tower construction cycle times, and an increase in insurance and other costs. The impact to net (loss) income and diluted (loss) earnings per share for the nine months ended September 30, 2007 and 2006 was approximately $16,900 or $.40 per share and $17,700 or $.40 per share, respectively. (See Note 10 for discussion on change in tower contracts receivable default reserve)

In accordance with SFAS 144, Accounting for the Impairment or Disposal of Long-Lived Assets , real estate inventories considered held for sale, including completed tower residences and homes, are carried at the lower of cost or fair value less cost to sell. Whenever events or circumstances indicate that the carrying value of real estate inventories considered held and used, including land and land improvements, investments in amenities and tower residences and homes under development, may not be recoverable, the expected cash to be realized from sale and operation of these assets is compared to the related carrying amount. If the carrying amount or basis is not expected to be recovered, impairment losses are recorded and the related assets are adjusted to their estimated fair value. For the three and nine months ended September 30, 2007, we

 

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WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands, except per share data)

 

recorded impairment losses of $35,927 and $72,550, respectively, related to certain completed or under construction single and multi-family homes and tower residences. For the three and nine months ended September 30, 2006, we recorded impairment losses of approximately $2,260 and $6,850, respectively, related to certain completed single and multi-family homes and lots.

 

4. Warranty

We generally provide our single- and multi-family home buyers with a one to three year limited warranty, respectively, for all material and labor and a ten year warranty for certain structural defects. We provide our tower home buyers a three year warranty for the unit and common elements of the tower. Warranty reserves have been established by charging cost of sales and crediting a warranty liability. The amounts charged are estimated by management to be adequate to cover expected warranty-related costs under all unexpired warranty obligations. Our warranty cost accruals are based upon historical warranty cost experience and are adjusted as appropriate to reflect qualitative risks associated with the types of towers and homes built.

The following table presents the activity in our warranty liability account:

 

     For the three months ended
September 30,
    For the nine months ended
September 30,
 
     2007     2006     2007     2006  

Warranty liability at beginning of period

   $ 20,853     $ 19,775     $ 20,110     $ 18,578  

Warranty costs accrued and incurred

     3,730       1,891       9,204       7,495  

Warranty costs paid

     (2,524 )     (1,925 )     (7,255 )     (6,332 )
                                

Warranty liability at end of period

   $ 22,059     $ 19,741     $ 22,059     $ 19,741  
                                

 

5. Interest Expense, net

The following table is a summary of interest expense, net:

 

     For the three months ended
September 30,
    For the nine months ended
September 30,
 
     2007     2006     2007     2006  

Total interest incurred

   $ 37,608     $ 34,594     $ 107,541     $ 90,343  

Debt issue cost amortization

     599       842       3,141       2,512  

Interest capitalized

     (15,842 )     (26,743 )     (53,682 )     (73,752 )
                                

Interest expense, net

   $ 22,365     $ 8,693     $ 57,000     $ 19,103  
                                

Previously capitalized interest included in costs of sales

   $ 6,296     $ 17,099     $ 28,630     $ 50,464  
                                

 

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WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands, except per share data)

 

6. Land and Lot Purchase Arrangements

In the normal course of business, we enter into contractual arrangements to acquire developed and undeveloped land parcels and lots. The land and lot purchase arrangements are typically subject to a number of conditions including, but not limited to, the ability to obtain necessary governmental approvals. If all governmental approvals are not obtained prior to a pre-determined contractual deadline, we may extend the deadline or cancel the contract and the initial deposit will be returned. In addition, we typically have the right to cancel any agreement subject to forfeiture of the deposit. In such instances, we generally are not able to recover any pre-development costs we may have incurred.

Under the non-special-purpose entity provisions of the Financial Accounting Standards Board Interpretation 46-R (FIN 46-R), Consolidation of Variable Interest Entities , an interpretation of ARB 51, we have concluded that whenever we enter into an arrangement to acquire land or lots from an entity and pay a non-refundable deposit or enter into a partnership arrangement, a VIE may be created. If we are deemed to be the primary beneficiary of these arrangements, we would be required to consolidate the VIE. Our exposure to loss as a result of our involvement with the VIE is limited to our deposit and pre-development costs, not the VIE’s total assets or liabilities that may be consolidated on the balance sheet. As of September 30, 2007, our evaluation of our contractual arrangements to acquire land and lots did not indicate any material VIEs, where we are the primary beneficiary.

As of September 30, 2007, we had land and lot option contracts aggregating $343,776, net of deposits, to acquire approximately thirteen hundred acres of land. Our contractual obligation with respect to the land and lot option contracts is limited to the forfeiture of the related non-refundable deposits, any other payments which may be due to the landowner and other pre-development costs, which totaled approximately $35,287 at September 30, 2007. We recognized $454 of land acquisition termination costs during the nine months ended September 30, 2007, compared to approximately $14,000 during the nine months ended September 30, 2006

 

7. Shareholders’ Equity

In addition to our common stock, we have 100,000 shares authorized of series common stock, $.01 par value per share, and 100,000 shares authorized of preferred stock, $.01 par value per share. No shares of series common stock or preferred stock are issued and outstanding.

Basic earnings (loss) per share is calculated by dividing net income (loss) available to common shareholders by the weighted average number of common shares outstanding for the period. Diluted earnings (loss) per share is calculated by dividing net income (loss) available to common shareholders by the weighted average number of shares outstanding including the dilutive effect of stock-based grants and contingent convertible notes. For the nine months ended September 30, 2007, 3,131 stock options and grants were excluded from the computation of diluted loss per share due to their anti-dilutive effect. For the nine months ended September 30, 2006, 1,842 stock options and grants were excluded from the computation of diluted earnings per share due to their anti-dilutive effect. Approximately 4,534 shares related to the contingent convertible notes were excluded from the calculation of diluted weighted average shares outstanding for the nine months ended September 30, 2007 and 2006 due to their anti-dilutive effect.

 

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WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands, except per share data)

 

Information pertaining to the calculation of earnings per share is as follows:

 

     For the three months ended
September 30,
   For the nine months ended
September 30,
     2007    2006    2007    2006

Basic weighted average shares outstanding

   42,030    41,730    41,980    42,919

Dilutive common share equivalents:

           

Employee stock options, restricted stock and performance stock grants

   —      605    —      876

Contingent convertible senior subordinated notes

   —      —      —      —  
                   

Diluted weighted average shares outstanding

   42,030    42,335    41,980    43,795
                   

 

8. Income Taxes

In July 2006, the Financial Accounting Standards Board (FASB) issued Interpretation 48 (FIN 48), Accounting for Uncertainty in Income Taxes—An Interpretation of FASB Statement No. 109. FIN 48 clarifies the accounting for uncertainty in income taxes recognized in an enterprise’s financial statements in accordance with SFAS 109. FIN 48 also prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. The new FASB standard also provides guidance on derecognition, classification, interest and penalties.

Effective January 1, 2007, we adopted the provisions of FIN 48. The implementation of FIN 48 had no material impact on our recorded liability for unrecognized tax benefits which was approximately $3,400 at September 30, 2007 and $2,400 at January 1, 2007. The total amount of unrecognized tax benefits that, if recognized, would affect the effective tax rate is approximately $229 which includes interest and penalties of approximately $35 at September 30, 2007. We recognize interest and penalties accrued related to unrecognized tax benefits in tax expense. We had approximately $3,200 and $2,200 accrued for the payment of interest and penalties at September 30, 2007 and January 1, 2007, respectively. We do not currently anticipate that the total amount of unrecognized tax benefits will significantly increase or decrease by the end of 2007.

 

9. Debt

In April 2007, we amended our senior revolving credit agreement (the Revolving Credit Facility) and our senior term loan agreement (the Term Loan Agreement) with effective dates of March 31, 2007.

On August 17, 2007 we amended the Revolving Credit Facility, the Term Loan Agreement and the $390,000 revolving construction loan (Tower Loan Agreement) each with effective dates as of August 17, 2007, with the exception of the modifications to the EBITDA to Fixed Charges and the Debt to Tangible Net Worth covenants, which were effective June 30, 2007. The borrowing capacity under the Revolving Credit Facility was reduced from $850,000 to $700,000, with subsequent reductions to $600,000 on July 1, 2008, and to $550,000 on July 1, 2009. The interest rate for loans thereunder will be LIBOR plus 300 basis points. The revised Term Loan Agreement required an immediate reduction in the committed and outstanding amount from $300,000 to $262,500, with a subsequent reduction to $225,000 on July 1, 2008. The interest rate for loans thereunder is LIBOR plus 350 basis points. The Tower Loan Agreement modifications provide for the

 

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WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands, except per share data)

 

acceleration of repayment of this facility upon delivery of tower units and prohibit any extension or addition of tower loan commitments to the facility. The Tower Loan Agreement also contains a cross default to the other two facilities discussed in this paragraph. The interest rate on loans under the Tower Loan Agreement is the applicable Eurodollar Rate plus 300 basis points or the lender’s prime rate plus 100 basis points.

At September 30, 2007, $40,400 and $408,300 of our outstanding balance on the amended Revolving Credit Facility was accruing interest at 8.75% and 8.24%, respectively.

The revised Revolving Credit Facility and revised Term Loan Agreement contain modifications to certain financial and operational covenants, which limit our ability, among other items, to repurchase subordinated debt and common stock, and to finance tower construction under the Credit Facility. We also agreed to provide these lenders with mortgages and other security documents covering substantially all of our unsecured assets as security and to obtain appraisals and other property-specific reports. In addition, sales of assets in excess of $100,000 and not in the ordinary course of business will require approval by a majority of the lenders under each of these facilities. The principal financial covenant modifications include the following, as defined: (1) EBITDA (earnings before interest, taxes, depreciation, amortization and other non-cash income and expenses) to Fixed Charges cannot be less than 0.50x at the end of any fiscal quarter through December 31, 2008, 1.0x at March 31, 2009, 1.25x at June 30, 2009, 1.50x at September 30, 2009, 1.75x at December 31, 2009, and 2.0x thereafter, (2) the number of Unsold Units is limited to 50% of trailing twelve months closed homebuilding units through December 31, 2008, and 35% thereafter (3) Debt to Tangible Net Worth cannot exceed 2.15x at the end of any fiscal quarter through the end of December 31, 2007, and cannot exceed 1.75x at the end of any fiscal quarter thereafter.

In addition, the lenders under the Revolving Credit Facility, the Term Loan Agreement and the Tower Loan Agreement agreed to waive existing prohibitions on a defined Change of Control to accommodate the change in the membership of our Board of Directors as a result of the settlement by the Company with Icahn Partners LP, Icahn Partners Master Fund LP, and High River Limited Partnership of their proxy contest.

Refer to Note 1 for information concerning our covenant compliance.

 

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WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands, except per share data)

 

10. Contracts Receivable

Amounts due under tower sales contracts, to the extent recognized as revenue under the percentage-of-completion method are recorded as contracts receivable. On a quarterly basis, we prepare an analysis for each specific tower and analyze each unit with respect to information we have that leads us to believe specific units are at risk of defaulting. Based on this analysis, actual defaults experienced at each tower location, and the current market environment, we estimate the number of defaults that may occur for future unit closings. This analysis requires us to make significant estimates and assumptions that affect the reported amounts in our financial statements. These estimates are subject to revision as additional information becomes available and actual defaults could differ materially from our estimates. Tower unit defaults in certain of our buildings that began delivering units in 2007 have been higher than our average default rate experienced prior to 2007. Due to the larger number of units in certain buildings, the weakness in the general real estate market, the current challenges that exist in the mortgage market and other individual circumstances, it has recently taken us significantly longer than expected to close sold units in our buildings.

The following table presents the activity in our contracts receivable reserve account.

 

     For the three months ended
September 30,
    For the nine months ended
September 30,
 
     2007     2006     2007     2006  

Contracts receivable reserve at beginning of period

   $ 17,900     $ 4,988     $ 18,297     $ 5,658  

Increase to reserve

     23,713       2,677       41,527       2,677  

Defaults charged against reserve

     (19,813 )     (665 )     (38,024 )     (1,335 )
                                

Contracts receivable reserve at end of period

   $ 21,800     $ 7,000     $ 21,800     $ 7,000  
                                

At September 30, 2007 and December 31, 2006, respectively, our contracts receivable balance of $787,208 and $1,269,549 is net of an allowance of $21,800 and $18,297 for estimated losses due to potential customer defaults. For the nine months ended September 30, 2007, a total of 176 units defaulted on the contractual obligation to close. Our contracts receivable balance at September 30, 2007 includes approximately $57,300 related to 44 tower units sold but that have not closed although the tower buildings have been completed. As of November 5, 2007, the number of unclosed units has been reduced to 31, totaling approximately $41,200 in contracts receivable. Although we have reserved for an estimated 16 defaults associated with the 31 unclosed units, we have granted these tower buyers extensions to close and expect many of these closings to occur in the fourth quarter of 2007. Our actual contract defaults may be higher or lower than our current estimates.

 

11. Commitments and Contingencies

Standby letters of credit and performance bonds, issued by third party entities, are used to guarantee our performance under various contracts, principally in connection with the development of our projects and land purchase obligations. At September 30, 2007, we had approximately $49,630 in letters of credit outstanding which expire through 2009. Performance bonds do not have stated expiration dates; rather, we are released from the bonds as the contractual performance is completed. These bonds, which approximated $176,954 at September 30, 2007, are typically outstanding over a period of approximately one to five years.

 

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WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands, except per share data)

 

12. Discontinued Operations

In April 2007, we sold a non-golf recreational facility for $47,500 (excluding closing costs) and recorded a pre-tax gain of approximately $20,100. In accordance with SFAS 144, Accounting for the Impairment or Disposal of Long-Lived Assets, the sale of the recreational facility qualifies as discontinued operations, and accordingly, we have reported the results of operations in discontinued operations in the accompanying condensed consolidated statements of income for all periods presented.

The results from discontinued operations were as follows:

 

     For the three months ended
September 30,
   For the nine months ended
September 30,
     2007    2006    2007    2006

Revenue

   $ —      $ 1,683    $ 2,523    $ 5,229
                           

Gross margin

     —        1,086      1,400      3,080

Gain on sale

     —        —        20,069      —  

Income tax expense

     —        415      7,250      1,176
                           

Net income from discontinued operations

   $ —      $ 671    $ 14,219    $ 1,904
                           

 

13. New Accounting Pronouncements

In February 2007, the FASB issued Statement of Financial Accounting Standards (SFAS) 159, The Fair Value Option for Financial Assets and Financial Liabilities including an amendment of FASB Statement No. 115. SFAS 159 allows entities to choose to measure eligible items at fair value at specified election dates and expands disclosure about fair value measurements. Early adoption is permitted provided the provisions of SFAS 157 are also applied. This statement is effective for financial statements issued for fiscal years beginning after November 15, 2007, and interim periods within those years. The impact on our financial statements for that period has not yet been determined.

In September 2006, the FASB issued SFAS 157, Fair Value Measurement (SFAS 157). SFAS 157 defines fair value, establishes a framework for measuring fair value in generally accepted accounting principles and expands disclosures about fair value measurements. The statement requires prospective application except for certain financial instruments which will require a limited form of retrospective application. SFAS 157 is effective for financial statements issued for fiscal years beginning after November 7, 2007, and interim periods within those fiscal years. The impact on our financial statements for that period has not yet been determined.

In November 2006, the FASB ratified EITF Issue No. 06-8, Applicability of a Buyer’s Continuing Investment under FASB Statement No. 66 for Sales of Condominiums (EITF 06-8). EITF 06-8 provides guidance in assessing the collectibility of the sales price which is required in order to recognize profit under the percentage-of-completion method pursuant to SFAS 66. EITF 06-8 states that an entity should evaluate the adequacy of the buyer’s initial and continuing investment in reaching its conclusion that the sales price is collectible. The continuing investment criterion in paragraph 12 of SFAS 66 would be met by requiring the buyer to either (a) make additional payments during the construction term at least equal to the level annual payments that would be required to fund principal and interest payments on a hypothetical mortgage for the remaining purchase price of the property or (b) increase the initial investment by an equivalent aggregate

 

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Table of Contents

WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands, except per share data)

 

amount. If the test for initial and continuing investment is not met, the deposit method should be applied and profit recognized only once the aggregate deposit meets the required investment tests for the duration of the construction period. EITF 06-8 will be effective for the first reporting period in fiscal years beginning after March 15, 2007 and early adoption is permitted. Adoption of EITF 06-8 will require a cumulative-effect adjustment to retained earnings in the period of adoption. Although we have not yet assessed the impact on our financial position, results of operations and cash flows, we believe that we would be required, in most cases, to collect additional deposits from the buyer in order to recognize revenue under the percentage-of-completion method of accounting at the point of construction commencement. If we are unable to meet the requirements of EITF 06-8, we will be required to delay revenue recognition until the aggregate investment tests described in SFAS 66 and EITF 06-8 have been met.

 

14. Supplemental Guarantor Information

Obligations to pay principal and interest on our senior subordinated notes are guaranteed fully and unconditionally by substantially all of our wholly owned subsidiaries. Separate financial statements of the guarantors are not provided, as subsidiary guarantors are 100% owned by the Company and guarantees are full, unconditional, and joint and several. Supplemental condensed consolidating financial information of the Company's guarantors and non-guarantor subsidiaries is presented below.

 

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Table of Contents

WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands)

Condensed Consolidating Balance Sheets

(In thousands, except per share data)

 

     September 30, 2007
     WCI
Communities,
Inc.
   Guarantor
Subsidiaries
   Non-guarantor
Subsidiaries
   Eliminating
Entries
    Consolidated
WCI
Communities,
Inc.

Assets

             

Cash and cash equivalents

   $ 2,911    $ 3,932    $ 331    $ —       $ 7,174

Restricted cash

     7,384      7,487      10,392      —         25,263

Contracts receivable, net

     630,001      4,275      152,932      —         787,208

Mortgage notes and accounts receivable

     6,761      12,559      1,506      (1,682 )     19,144

Real estate inventories

     1,332,182      283,197      380,574      —         1,995,953

Property and equipment, net

     75,207      101,570      67,303      —         244,080

Investment in subsidiaries

     872,035      23,813      —        (895,848 )     —  

Other assets

     526,669      437,171      58,843      (722,289 )     300,394
                                   

Total assets

   $ 3,453,150    $ 874,004    $ 671,881    $ (1,619,819 )   $ 3,379,216
                                   

Liabilities and Shareholders’ Equity

             

Accounts payable and other liabilities

   $ 687,189    $ 164,662    $ 441,064    $ (723,971 )   $ 568,944

Senior secured debt

     711,200      —        —        —         711,200

Mortgages and notes payable

     364,827      —        11,775      —         376,602

Subordinated notes

     815,000      —        —        —         815,000
                                   
     2,578,216      164,662      452,839      (723,971 )     2,471,746
                                   

Minority interests

     —        —        32,536      —         32,536

Shareholders’ equity

     874,934      709,342      186,506      (895,848 )     874,934
                                   

Total liabilities and shareholders’ equity

   $ 3,453,150    $ 874,004    $ 671,881    $ (1,619,819 )   $ 3,379,216
                                   

 

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Table of Contents

WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands)

Condensed Consolidating Balance Sheets

(continued)

 

     December 31, 2006
     WCI
Communities,
Inc.
   Guarantor
Subsidiaries
   Non-guarantor
Subsidiaries
   Eliminating
Entries
    Consolidated
WCI
Communities,
Inc.
Assets              

Cash and cash equivalents

   $ 30,155    $ 1,945    $ 9,776    $ —       $ 41,876

Restricted cash

     12,102      14,405      15,528      —         42,035

Contracts receivable, net

     920,667      242,556      106,326      —         1,269,549

Mortgage notes and accounts receivable

     11,476      14,207      2,835      —         28,518

Real estate inventories

     1,232,076      304,596      419,121      —         1,955,793

Property and equipment

     93,348      113,364      68,008      —         274,720

Investment in subsidiaries

     889,839      25,086      —        (914,925 )     —  

Other assets

     571,520      513,846      47,454      (913,452 )     219,368
                                   

Total assets

   $ 3,761,183    $ 1,230,005    $ 669,048    $ (1,828,377 )   $ 3,831,859
                                   
Liabilities and Shareholders’ Equity              

Accounts payable and other liabilities

   $ 802,872    $ 508,683    $ 427,621    $ (913,452 )   $ 825,724

Senior unsecured debt

     803,846      —        —        —         803,846

Mortgages and notes payable

     352,066      —        11,195      —         363,261

Subordinated notes

     815,000      —        —        —         815,000
                                   
     2,773,784      508,683      438,816      (913,452 )     2,807,831
                                   

Minority interests

     —        —        36,629      —         36,629

Shareholders’ equity

     987,399      721,322      193,603      (914,925 )     987,399
                                   

Total liabilities and shareholders’ equity

   $ 3,761,183    $ 1,230,005    $ 669,048    $ (1,828,377 )   $ 3,831,859
                                   

 

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Table of Contents

WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands)

Condensed Consolidating Statements of Operations

 

     For the three months ended September 30, 2007  
    

WCI
Communities,

Inc.

    Guarantor
Subsidiaries
    Non-guarantor
Subsidiaries
    Eliminating
Entries
   

Consolidated

WCI
Communities,

Inc.

 

Total revenues

   $ 45,880     $ 60,673     $ 59,485     $ (59 )   $ 165,979  

Total cost of sales

     79,761       71,478       55,442       (59 )     206,622  
                                        

Gross margin

     (33,881 )     (10,805 )     4,043       —         (40,643 )

Total other income and expenses, net

     43,172       25,089       7,924       —         76,185  
                                        

(Loss) income from continuing operations before minority interests, income taxes and equity in (loss) income of subsidiaries

     (77,053 )     (35,894 )     (3,881 )     —         (116,828 )

Intercompany management fees expense (income)

     2,211       (9,920 )     7,709       —         —    

Minority interests

     —         —         1,666       —         1,666  

Income tax expense (benefit)

     2,071       (42,338 )     (5,173 )     —         (45,440 )

Equity in income (loss) of subsidiaries, net of tax

     11,613       (503 )     —         (11,110 )     —    
                                        

Net (loss) income

   $ (69,722 )   $ 15,861     $ (4,751 )   $ (11,110 )   $ (69,722 )
                                        
     For the nine months ended September 30, 2007  
    

WCI
Communities,

Inc.

    Guarantor
Subsidiaries
    Non-guarantor
Subsidiaries
    Eliminating
Entries
    Consolidated
WCI
Communities,
Inc.
 

Total revenues

   $ 337,806     $ 175,348     $ 233,684     $ (367 )   $ 746,471  

Total cost of sales

     343,454       206,880       204,121       (367 )     754,088  
                                        

Gross margin

     (5,648 )     (31,532 )     29,563       —         (7,617 )

Total other income and expenses, net

     111,348       80,096       20,608       —         212,052  
                                        

(Loss) income from continuing operations before minority interests, income taxes and equity in (loss) income of subsidiaries

     (116,996 )     (111,628 )     8,955       —         (219,669 )

Intercompany management fees expense (income)

     3,912       (24,651 )     20,739       —         —    

Minority interests

     —         —         2,488       —         2,488  

Income tax benefit

     (2,504 )     (75,729 )     (5,979 )     —         (84,212 )

Equity in (loss) income of subsidiaries, net of tax

     (14,565 )     1,060       —         13,505       —    

Income from discontinued operations, net of tax

     14,219       —         —         —         14,219  
                                        

Net (loss) income

   $ (118,750 )   $ (10,188 )   $ (3,317 )   $ 13,505     $ (118,750 )
                                        

 

18


Table of Contents

WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands)

Condensed Consolidating Statements of Operations

(continued)

 

     For the three months ended September 30, 2006  
    

WCI
Communities,

Inc.

    Guarantor
Subsidiaries
    Non-guarantor
Subsidiaries
    Eliminating
Entries
   

Consolidated

WCI
Communities,

Inc.

 

Total revenues

   $ 256,036     $ 101,588     $ 67,994     $ (60 )   $ 425,558  

Total cost of sales

     221,227       86,445       55,379       (60 )     362,991  
                                        

Gross margin

     34,809       15,143       12,615       —         62,567  

Total other income and expenses, net

     34,818       6,725       9,442       —         50,985  
                                        

Income from continuing operations before minority interests, income taxes and equity in income of subsidiaries

     (9 )     8,418       3,173       —         11,582  

Minority interests

     —         —         (1,525 )     —         (1,525 )

Income tax expense

     (2,434 )     3,161       2,392       —         3,119  

Equity in income of subsidiaries, net of tax

     7,563       (683 )     —         (6,880 )     —    

Income from discontinued operations, net of tax

     671       —         —         —         671  
                                        

Net income

   $ 10,659     $ 4,574     $ 2,306     $ (6,880 )   $ 10,659  
                                        
     For the nine months ended September 30, 2006  
     WCI
Communities,
Inc.
    Guarantor
Subsidiaries
    Non-guarantor
Subsidiaries
    Eliminating
Entries
    Consolidated
WCI
Communities,
Inc.
 

Total revenues

   $ 898,359     $ 420,171     $ 204,046     $ (381 )   $ 1,522,195  

Total cost of sales

     728,840       336,685       167,334       (381 )     1,232,478  
                                        

Gross margin

     169,519       83,486       36,712       —         289,717  

Total other income and expenses, net

     126,536       23,488       26,086       —         176,110  
                                        

Income from continuing operations before minority interests, income taxes and equity in income of subsidiaries

     42,983       59,998       10,626       —         113,607  

Minority interests

     —         —         (259 )     —         (259 )

Income tax expense

     13,918       24,952       3,324       —         42,194  

Equity in income of subsidiaries, net of tax

     42,607       441       —         (43,048 )     —    

Income from discontinued operations, net of tax

     1,904       —         —         —         1,904  
                                        

Net income

   $ 73,576     $ 35,487     $ 7,561     $ (43,048 )   $ 73,576  
                                        

 

19


Table of Contents

WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands)

Condensed Consolidating Statements of Cash Flows

 

     For the nine months ended September 30, 2007  
     WCI
Communities,
Inc.
    Guarantor
Subsidiaries
    Non-guarantor
Subsidiaries
    Eliminating
Entries
    Consolidated
WCI
Communities,
Inc.
 

Cash flows from operating activities:

          

Net loss

   $ (118,750 )   $ (10,188 )   $ (3,317 )   $ 13,505     $ (118,750 )

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

     141,776       26,728       (2,939 )     (13,505 )     152,060  
                                        

Net cash provided by (used in) operating activities

     23,026       16,540       (6,256 )     —         33,310  
                                        

Net cash provided by (used in) investing activities

     22,829       4,962       (1,584 )     —         26,207  
                                        

Cash flows from financing activities:

          

Net repayments on senior secured debt

     (92,646 )     —         —           (92,646 )

Net borrowings on mortgages and notes payable

     12,419       —         —         —         12,419  

Other

     7,128       (19,515 )     (1,605 )     —         (13,992 )
                                        

Net cash used in financing activities

     (73,099 )     (19,515 )     (1,605 )     —         (94,219 )
                                        

Net (decrease) increase in cash and cash equivalents

     (27,244 )     1,987       (9,445 )     —         (34,702 )

Cash and cash equivalents at beginning of period

     30,155       1,945       9,776       —         41,876  
                                        

Cash and cash equivalents at end of period

   $ 2,911     $ 3,932     $ 331     $ —       $ 7,174  
                                        

 

20


Table of Contents

WCI COMMUNITIES, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

September 30, 2007

(In thousands)

Condensed Consolidating Statements of Cash Flows

(continued)

 

     For the nine months ended September 30, 2006  
     WCI
Communities,
Inc.
    Guarantor
Subsidiaries
    Non-guarantor
Subsidiaries
    Eliminating
Entries
    Consolidated
WCI
Communities,
Inc.
 

Cash flows from operating activities:

          

Net income

   $ 73,576     $ 35,487     $ 7,561     $ (43,048 )   $ 73,576  

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

     (702,548 )     15,360       (26,250 )     34,868       (678,570 )
                                        

Net cash (used in) provided by operating activities

     (628,972 )     50,847       (18,689 )     (8,180 )     (604,994 )
                                        

Net cash used in investing activities

     (15,525 )     (30,436 )     873       —         (45,088 )
                                        

Cash flows from financing activities:

          

Net borrowings on senior unsecured debt

     477,506       —         —         —         477,506  

Net borrowings (repayments) on mortgages and notes payable

     232,457       (19,641 )     —         8,180       220,996  

Other

     (66,768 )     (6,957 )     (5,825 )     —         (79,550 )
                                        

Net cash provided by (used in) financing activities

     643,195       (26,598 )     (5,825 )     8,180       618,952  
                                        

Net (decrease) increase in cash and cash equivalents

     (1,302 )     (6,187 )     (23,641 )     —         (31,130 )

Cash and cash equivalents at beginning of period

     17,389       6,424       28,771       —         52,584  
                                        

Cash and cash equivalents at end of period

   $ 16,087     $ 237     $ 5,130     $ —       $ 21,454  
                                        

 

21


Table of Contents
ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

Three and nine months ended September 30, 2007 compared to three and nine months ended September 30, 2006

Overview

 

(Dollars in thousands)    For the three months ended
September 30,
   For the nine months ended
September 30,
     2007     2006    2007     2006

Total revenues

   $ 165,979     $ 425,558    $ 746,471     $ 1,522,195

Total gross margin (a)

     (40,643 )     62,567      (7,617 )     289,717

Net (loss) income

     (69,722 )     10,659      (118,750 )     73,576

(a) Our gross margin includes overhead expenses directly associated with each line of business. See the condensed consolidated statements of operations for the details of other components that are part of the condensed consolidated (loss) income before minority interest and income taxes for each period.

Reduced demand for our products and services experienced by each of our principal lines of business contributed to significant decreases in revenue and gross margin for the three and nine months ended September 30, 2007. For the three months ended September 30, 2007, total revenues decreased 61.0%. For the nine months ended September 30, 2007, total revenues decreased 51.0%. The most significant impact to our third quarter operations occurred in our tower homebuilding division which experienced a $209.1 million and $87.7 million decline in revenues and gross margin, respectively. Tower defaults in certain of our buildings that began delivering units in 2007 have been higher than our average default rate experienced prior to 2007. The tower unit default rate was approximately 1%-2% prior to 2006, 7% during 2006 and 26% for the nine months ended September 30, 2007. The effect of recording actual contract defaults and increasing our reserve for the effect of potential future defaults reduced gross margin by $23.7 million and $41.5 million for the three and nine month periods of 2007, respectively. For the three and nine months ended September 30, 2007, we recorded real estate impairment losses of approximately $35.9 million and $72.6 million, respectively. Our traditional homebuilding operations reported a 25.9% and 27.3% decline in revenues and 73.9% and 69.9% decline in gross margin for the three and nine months, respectively. Our real estate services revenues declined 11.1% and 15.2% for the three and nine months ended, respectively. Real estate services gross margin increased 70.2% for the three months ended and decreased 19.5% for the nine months ended.

In April 2007, we sold a non-golf recreational facility for $47.5 million (excluding closing costs) and recorded a pre-tax gain of approximately $20.1 million. The gain from the sale and the operations has been reflected as discontinued operations.

For the three and nine months ended we recorded gross orders for combined traditional and tower homebuilding of 197 and 729, respectively with an aggregate value of $139,102 and $528,781 for the three and nine months ended, respectively. For the three months and nine months ended September 30, 2007, the aggregate value of combined traditional and tower homebuilding net new home orders declined 111.9% and 78.2%, respectively, over the same periods a year ago, to $(14.3) million and $150.1 million, respectively, while the number of net new home unit orders declined 82.9% and 62.5%, respectively, to 24 and 311, respectively.

We believe the slowdown in new unit orders is attributable to a national softening in demand for new homes as well as an oversupply of homes available for sale, particularly in our Florida market. We believe the decline in demand for our new homes is related to concerns of prospective home buyers regarding the direction of home prices, interest rates and their inability to sell their current homes or to obtain appraisals at sufficient amounts to secure mortgage financing. Further, the current problems in the mortgage lending sector and the tightening credit markets have exacerbated the challenges faced by prospective homeowners in their ability to obtain financing. In addition to the traditional homebuyer, it appears that speculators and investors have significantly reduced their participation in the new home market. In addition to reducing new contract demand, many of these speculators and investors have further increased the supply of homes available for sale in our markets by attempting to sell

 

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Table of Contents
ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)

 

homes they previously purchased or by cancelling contracts for homes under construction or by filing legal proceeding seeking rescission of their contracts. In addition, high cancellation rates and rescission claims reported by other builders, and the increased cancellation rates we have experienced, are adding to the supply of homes in the marketplace.

The continuing deterioration of conditions in the markets in which we operate has had, and will likely continue to have for an extended period of time, a negative impact on our liquidity and our ability to comply with financial and other covenants under our bank loans and indentures. Some of the factors which have adversely affected us include, but are not limited to, declines in new home orders; significant increase in cancellations, defaults and rescission claims and lawsuits; increased use of incentives and discounts; reduced margins; significant tower project delays and increased interest and insurance costs; general contractor financial instability; and credit rating downgrades. All of these factors, and others which may arise in the future, have adversely impacted, and will likely continue to adversely impact our financial condition. Refer to our discussion under Liquidity and Capital Resources for further information concerning our covenant compliance.

With little or no visibility as to when market conditions are likely to improve, we have been taking steps to reduce costs to partially offset variances caused by the current unfavorable business environment. We are continuing to reduce overhead, improving operating efficiency, and implementing practices to reduce construction costs. The Company announced a restructuring of its operations to combine the traditional homebuilding and tower operations to enhance efficiencies. In addition, we have reduced land purchases and development activities. All of these measures are focused on maximizing cash flow and paying down debt. Although no assurance can be given, we expect to realize approximately $200-$450 million of cash flow from operating activities and approximately $10 million of cash flow from investing activities in 2007, generated primarily from the collection of tower receivables and proceeds from traditional home closings, land and recreational amenity sales.

In February 2007, we engaged Goldman, Sachs & Co. as our financial advisor to assist us in a thorough review of the Company’s business plans, capital structure, and growth prospects, with the objective of enhancing the Company’s value for all of our shareholders. The Board of Directors authorized Goldman, Sachs & Co. to explore whether a sale of the company was the best way to maximize shareholder value by initiating a sale process open to all potential bidders, including Carl Icahn and related entities (“the Icahn Group”). In addition, the Icahn Group nominated a competing slate of Directors and announced that it planned to engage in a proxy contest with us. In July 2007, our Board of Directors announced the company had not received a definitive proposal for the purchase of the company. In September 2007, our new Board of Directors discontinued the sale process.

On August 20, 2007 the Company entered into a settlement agreement (“Settlement Agreement”) with Icahn Partners LP, Icahn Partners Master Fund LP, and High River Limited Partnership (collectively, the “Icahn Parties”) that enabled the Company to avoid a costly proxy contest at its 2007 Annual Meeting of Shareholders (“2007 Annual Meeting”). Previously, affiliates of the Icahn Parties filed a proxy statement with the Securities and Exchange Commission soliciting proxies in favor of electing their nominees. Pursuant to the Settlement Agreement, affiliates of the Icahn Parties terminated their solicitation of proxies in support of these nominees and the parties agreed to propose a new slate of nominees.

Pursuant to the terms of the Settlement Agreement, the Board was decreased from ten to nine members immediately prior to the 2007 Annual Meeting. The parties agreed that the Board would nominate and approve a slate of directors for election at the 2007 Annual Meeting consisting of three members from the Company’s existing Board (the “Incumbent Nominees”), three Icahn nominees (the “Icahn Nominees”) and three other nominees selected by large stockholders (the “Other Stockholders Nominees”, and together with the Incumbent Nominees and the Icahn Nominees, the “Company Nominees”). Each of the Icahn Parties has agreed (i) to vote

 

23


Table of Contents
ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)

 

in favor of such nominees at the 2007 Annual Meeting and (ii) to vote in favor of the Incumbent Nominees, or any replacement directors approved by the Incumbent Nominees, at the 2008 Annual Meeting. The Company and the Icahn Parties further agreed that at least one Incumbent Nominee will serve on each Committee of the Board (other than the Icahn Nominating Committee and the other Stockholders Nominating Committee, each as defined in the Settlement Agreement). All of the nominees were elected to the Board of Directors at the Company’s August 30, 2007 Annual Meeting. On September 6, 2007, the Company announced that it had decided to terminate the sale process and that Carl C. Icahn was elected Chairman of the Board.

Homebuilding

Traditional homebuilding

 

(Dollars in thousands)    For the three months ended
September 30,
    For the nine months ended
September 30,
 
     2007     2006     2007     2006  

Revenues

   $ 151,484     $ 203,477     $ 536,840     $ 737,538  

Gross margin

   $ 10,436     $ 46,184     $ 45,749     $ 161,708  

Gross margin percentage

     6.9 %     22.7 %     8.5 %     21.9 %

Homes closed (units)

     212       279       735       1,143  

Average selling price per home closed

   $ 715     $ 729     $ 730     $ 645  

Lot revenues

   $ 5,532     $ 8,420     $ 13,328     $ 19,473  

Net new orders for homes (units)

     105       144       456       742  

Net contract values of net new orders

   $ 65,224     $ 118,768     $ 287,727     $ 565,326  

Average selling price per net new order

   $ 621     $ 825     $ 631     $ 762  
     As of September 30,        
     2007     2006    

Backlog (units)

     591       1,296    

Backlog contract values

   $ 442,016     $ 1,022,829    

Average sales price in backlog

   $ 748     $ 789    

Traditional home revenues decreased 25.6% for the three months ended 2007 due primarily to the 24.0% decline in home deliveries and by the 1.9% decrease in average selling price per home closed. Traditional home revenues decreased 27.2% for the nine months ended September 30, 2007 primarily due to the 35.7% decline in home deliveries partially offset by the 13.2% increase in average selling price per home closed. In 2007, we closed 145 units and 484 units in our Florida market compared to 219 units and 950 units in the three and nine month periods in 2006, respectively. The Northeast U.S. and Mid-Atlantic U.S. markets closed 67 units and 251 units for the three and nine months ended September 30, 2007, respectively, compared to 60 units and 193 units in the same periods last year, respectively. The Northeast U.S. market experienced a 68.1% increase in home deliveries during the nine months ended September 30, 2007 primarily as a result of one community where deliveries increased to 145 units due to construction delays in prior periods that pushed deliveries into 2007. The increase in the average selling price per home closed for the nine month periods ended September 30, 2007 was positively impacted by a 22.1% increase contributed by the Florida market, as well as the $1.3 million average price achieved by our Mid-Atlantic U.S. market. The Florida and Northeast U.S. markets achieved average selling prices per home closed of $751,000 and $547,000 for the nine months ended 2007, respectively.

Lot revenues decreased to $5.5 million from $8.4 million for the three months ended September 30, 2007 and decreased to $13.3 million from $19.5 million for the nine months ended September 30, 2007. From time to time, we sell certain lots for custom homes directly to prospective residents or custom homebuilders as part of our strategy to serve a broad range of customers. Lot sales are not a primary strategy of the traditional homebuilding segment and therefore will fluctuate from time to time.

 

24


Table of Contents
ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)

 

The decrease in the home gross margin percentage to 6.9% from 22.7% for the three months ended 2007 and 8.5% from 21.9% for the nine months ended September 30, 2007 was primarily due to increased utilization of sales discounts, incentives, and the recording of impairment losses on certain completed and in process homes. Sales discounts and incentives for the three months ended September 30, 2007 reduced home gross margin by approximately 1330 basis points of revenue compared to 330 basis points for the same period last year. Sales discounts and incentives for the nine months ended September 30, 2007 reduced home gross margin by approximately 1140 basis points of revenue compared to 210 basis points for the same period last year. Home gross margin for the three and nine months ended September 30, 2007 was favorably impacted by $2.9 million and $8.7 million, respectively, in forfeited deposits from contract cancellations compared to $3.4 million for the same periods in 2006. The Florida, Northeast U.S. and Mid-Atlantic U.S. markets, achieved gross margins of 4.3%, 14.9% and 8.9% for the three months ended September 30, 2007 compared to 24.4%, .8% and 21.7% in the same period in 2006, respectively. The Florida, Northeast U.S. and Mid-Atlantic U.S. markets, achieved gross margins of 6.7%, 13.6% and 10.5% for the nine months ended September 30, 2007 compared to 23.5%, 11.5% and 19.2% in the same period in 2006, respectively.

As a result of the continuing decline in demand for new homes as well as an oversupply of homes available for sale in our markets, we continue to focus on liquidating certain finished homebuilding product or lowering sales prices in certain communities and implementing targeted incentives and discounts to compete in this competitive and difficult market. We recorded $4.9 million and $23.0 million of asset impairment losses for the three and nine months ended September 30, 2007, respectively, compared to $2.3 and $6.9 million for the three and nine months in 2006. If conditions in the homebuilding industry worsen in the future, we may be required to evaluate additional homes and communities which may result in additional impairment charges and such charges could be significant.

Contract values of net new orders decreased 45.1% and 49.1% for the three and nine months ended September 30, 2007, respectively, primarily due to the decline in the number of gross new orders and the effects of cancellations and defaults. For three months ended 2007, our Florida, Mid-Atlantic and Northeast U.S. markets had declines of 31, 1 and 7 units, respectively, compared to 2006. For the nine months ended 2007, our Florida and Northeast U.S. markets had declines of 197 units and 105 units, respectively compared to the same period in 2006. The Mid-Atlantic U.S. market had an increase of 16 units for the nine months ended 2007 compared to the same period in 2006.

The 56.8% decrease in backlog contract values reflects a 54.4% decrease in backlog units combined with a 5.2% decrease in the average sales price of homes under contract to $748,000 in 2007 compared to $789,000 in 2006. The decrease in average sales price of homes under contract can be attributed to sales discounts and a shift in product mix. The decline in backlog contract values and units can be attributed to the weak homebuilding sales experienced in most of our markets and an increase in our cancellation rate. Our cancellation rate on traditional homes for the three and nine months September 30, 2007 was approximately 44.4% and 34.7%, respectively, of gross new contracts signed, compared to 34.2% and 26.0% for the same periods in 2006. Based on recent cancellation experience, we do not expect to completely deliver the 591 units in backlog at September 30, 2007.

We employ a wide range of sales incentives and discounts to market our homes to prospective buyers, particularly in these difficult market conditions. These incentives are an important aspect of our sales and marketing of homes, and we rely on them more heavily in promoting communities experiencing weaker demand or to promote the sale of completed unsold homes. Without the use of these marketing incentives and discounts, our ability to sell homes would be adversely impacted.

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)

 

Tower homebuilding

 

(Dollars in thousands)    For the three months ended
September 30,
    For the nine months ended
September 30,
 
     2007     2006     2007     2006  

Revenues

   $ (36,788 )   $ 172,324     $ 39,326     $ 606,153  

Gross margin

   $ (56,646 )   $ 31,077     $ (72,533 )   $ 130,105  

Gross margin percentage

     NM       18.0 %     NM       21.5 %

Net new orders (units)

     (81 )     (4 )     (145 )     87  

Contract values of new orders, net

   $ (79,494 )   $ 1,278     $ (136,836 )   $ 127,923  

Average selling price per new order

     NM       NM       NM     $ 1,470  
     As of September 30,        
     2007     2006    

Cumulative contracts (units)

     652       1,558    

Cumulative contract values

   $ 883,894     $ 1,834,572    

Less: Cumulative revenues recognized

     (808,955 )     (1,450,309 )  
                  

Backlog contract values

   $ 74,939     $ 384,263    
                  

Average sales price in backlog

   $ 1,356     $ 1,178    

Towers under construction recognizing revenue during the nine months ended September 30, 2007 and 2006, respectively

     11       24    

NM- Data not meaningful

Tower revenues recognized using the percentage-of-completion method decreased $589.1 million for the nine month period ended September 30, 2007 compared to the same period of 2006. Tower revenues were favorably impacted by $17.6 million in forfeited deposit income compared to $1.1 million in 2006. The decline in tower unit sales in buildings under construction, fewer towers under construction recognizing revenue, and slower construction cycles contributed to the decline in percentage-of-completion revenues. Eleven towers with a total sellout value of $1.8 billion were under construction and recognizing revenue for the nine months ended September 30, 2007 compared to 24 towers with a total sellout value of $2.4 billion for the same period last year. During the three months ended September 30, 2007, we recorded 89 defaulted contracts that resulted in the reversal of approximately $88.9 million of revenue. The impact to gross margin was charged against the contracts receivable default reserve.

For the quarter ended September 30, 2007, tower gross margin was impacted by several changes in estimated revenues and costs, including (1) a $23.7 million increase to the contracts receivable default reserve that was required to absorb the effect of the 89 defaulted contracts and to update the balance of the reserve to reflect expected future defaults, (2) a $1.5 million increase in interest costs associated with increased tower construction cycle times, (3) a $413,000 increase in insurance costs, (4) a $11.0 million increase in tower construction costs, incentives and sales discounts and other costs and, (5) impairment losses of approximately $31.1 million related to certain completed tower units. The changes in estimates of tower construction costs are accounted for on a cumulative basis in the period that the change occurs. Future gross margins in towers currently under construction may be materially impacted by any additional changes in estimates.

For the three months ended September 30, 2007, we recorded 8 gross new orders with a contract value of approximately $9.4 million offset by the default of 89 contracts with a contract value of approximately $88.9 million. For the nine months ended September 30, 2007, we recorded 31 gross new orders with a contract value of approximately $43.7 million offset by the default of 176 contracts with a contract value of approximately $180.5 million. Similar to the traditional homebuilding division, our tower division experienced a significant decline in gross new orders, partly due to the increased supply of existing tower units for sale on the market in Florida, as well as reduced participation in the new home market by investors and speculators.

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)

 

The 80.5% decrease in backlog contract values was due to the completion of towers combined with no new towers under construction. We have three towers under construction at September 30, 2007.

Real estate services

 

(Dollars in thousands)    For the three months ended
September 30,
    For the nine months ended
September 30,
 
     2007     2006     2007     2006  

Revenues

   $ 20,808     $ 23,412     $ 73,808     $ 87,083  

Gross margin

     194       114       4,768       5,926  

Gross margin percentage

     0.9 %     0.5 %     6.5 %     6.8 %

Real estate services revenues, including real estate brokerage and title operations, for the three and nine months ended September 30, 2007 decreased 11.1% and 15.2%, respectively, primarily due to a decrease in the volume of transactions associated with our Prudential Florida WCI Realty brokerage operations and the sale of our mortgage banking operations in June 2006.

During the three months ended September 30, 2007, Prudential Florida WCI Realty brokerage transaction volume decreased 8.6% to 1,529 closings from 1,672 in the third quarter of 2006 and decreased 20.9% to 4,993 closings from 6,309 for the nine month periods. The decrease in the number of transactions is primarily due to the decline in demand for homes in the Florida market. In June 2006, we sold our mortgage banking operations, formerly operated under the business name of Financial Resources Group, Inc., to a newly formed joint venture, WCI Mortgage LLC. In conjunction with the formation of WCI Mortgage LLC, we sold a 50.1% interest in the newly formed company to Wells Fargo Ventures, LLC. WCI Mortgage LLC began originating and funding mortgage loans for our new home and resale customers, beginning in the third quarter of 2006. WCI Mortgage LLC is accounted for as an unconsolidated joint venture in our financial statements.

The decrease in gross margin percentage for both periods was primarily due to the decrease in revenue without a proportional decrease in fixed overhead costs associated with Prudential Florida WCI Realty partially offset by the reduced overhead and increased revenues contributed by the title operations.

Other revenues and cost and sales

Amenity membership and operations

 

(Dollars in thousands)    For three months ended
September 30,
    For nine months ended
September 30,
 
     2007     2006     2007     2006  

Revenues

   $ 18,006     $ 14,490     $ 60,163     $ 58,305  

Gross margin

     (1,438 )     (4,410 )     (843 )     (4,546 )

Gross margin percentage

     (8.0 )%     (30.4 )%     (1.4 )%     (7.8 )%

Total amenity membership and operations revenues increased 24.3% and 3.2% for the three and nine months ended September 30, 2007, respectively. The increase for three and nine months ended 2007 was due primarily to the recognition of $2.1 million of previously deferred revenue related to slip sales at one of our marinas in Florida offset by reduced revenue because of the second quarter sale of a recreational facility. In April 2007, we sold a non-golf recreational facility for $47.5 million (excluding closing costs) and recorded a pre-tax gain of approximately $20.1 million. The gain from the sale and the operations has been reflected as discontinued operations in the statements of income. In addition to the impact of selling the recreational facility, the revenues for the nine months ended September 30, 2007 were impacted by the continued decline in luxury membership sales and increased competition in the Florida market.

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)

 

Amenity gross margins continue to be adversely affected by deficits associated with new amenity operations and slow absorption of membership sales.

Land sales

 

(Dollars in thousands)    For the three months ended
September 30,
    For the nine months ended
September 30,
 
     2007     2006     2007     2006  

Revenues

   $ 5,337     $ 1,401     $ 17,934     $ 7,517  

Gross margin

     4,661       1,278       10,528       4,728  

Gross margin percentage

     87.3 %     91.2 %     58.7 %     62.9 %

For the nine months ended September 30, 2007 we sold 8 commercial parcels for $17.9 million in revenue with a gross margin of 58.7% compared to the sales of 6 commercial parcels for $7.5 million in revenue with a gross margin of 62.9% for the same period last year. Land sales are ancillary to our overall operations and are expected to continue in the future, but may significantly fluctuate.

Other Revenues and Costs of Sales

Other revenues and cost of sales includes our property management operations which are an ancillary business primarily providing management services to our communities and other miscellaneous revenues and costs. During the three and nine months ended September 30, 2006, we recognized approximately $14.0 million of land acquisition termination costs. There were no comparable costs classified in other costs of sales during the three and nine months ended 2007.

Other income and expense

 

(Dollars in thousands)    For the three months ended
September 30,
    For the nine months ended
September 30,
 
     2007     2006     2007     2006  

Equity in losses (earnings) from joint ventures

   $ 52     $ 865     $ (443 )   $ 814  

Other income

     (1,668 )     (3,090 )     (2,520 )     (5,248 )

Hurricane recoveries

     —         (6,437 )     (5,393 )     (6,435 )

Selling, general and administrative expense, including real estate taxes

     46,461       44,832       143,201       148,711  

Interest expense, net

     22,365       8,693       57,000       19,103  

Expenses related to debt amendments and early repayment of debt

     3,583       —         3,583       455  

Other income for the three and nine months ended 2007 includes interest income on mortgage notes, customer deposits and other non-operating fee income and expenses, respectively. The hurricane recoveries represent the final settlement of our Hurricane Wilma claims.

Selling, general and administrative expenses, (SG&A) including real estate taxes, increased 3.6% to $46.5 million and decreased 3.7% to $143.2 million for the three and nine months ended September 30, 2007, respectively. General and administrative costs increased 7.2% and 5.9% for the respective periods primarily due to costs related

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)

 

to the engagement of Goldman, Sachs & Co. and other outside advisors in connection with the proxy contest, in our response to the tender offer, and the company sale process offset by cost savings from staff reductions and insurance cost savings. Sales and marketing expenditures decreased 24.4% and 30.5% during the three and nine month period ended September 30, 2007, respectively, primarily due to the reduction in advertising expenditures and sales office overhead reductions.

Selling, general and administrative was also impacted by a non-cash mark-to market loss of approximately $1.9 million related to an interest rate swap agreement. Effective August 2007, we removed the designation of the swap as a cash flow hedge as a consequence of our bank facility modifications and will no longer apply hedge accounting.

Interest incurred increased 8.7% and 19.0% for the three and nine months ended 2007, respectively, primarily as a result of the increase in the effective interest rate for 2007 as compared to the same periods last year. Interest capitalized decreased 40.8% and 27.2% for the three and nine months, respectively, primarily due to the decrease in real estate inventories under development in each period.

Liquidity and Capital Resources

We assess our liquidity in terms of our ability to generate cash to fund our operating and investing activities. We finance our land acquisitions, land improvements, homebuilding, development and construction activities from internally generated funds, credit agreements with financial institutions and other debt. As of September 30, 2007, we had $7.2 million of cash and cash equivalents and approximately $251.3 million available to draw under our amended senior credit facility. Although no assurance can be given, we expect to realize approximately $200-$450 million of cash flow from operating activities and approximately $10 million of cash flow from investing activities in 2007, generated primarily from the collection of tower receivables and proceeds from traditional home closings, land and recreational amenity sales.

Cash flows from operations improved compared to the same period in 2006 due to decreased capital investments in real estate inventories and delivery of completed tower units. Including land acquisitions, net additions to real estate inventories were approximately $109.3 million for the nine months ended September 30, 2007 compared to $383.2 million in 2006. During the first nine months of 2007, we acquired approximately $5.4 million in additional land compared to $54.9 million in the same period of 2006. In conjunction with the lower overall demand for homebuilding product we are currently experiencing, we continue to re-evaluate all planned land development spending, home and tower construction spending, amenity development plans and contractual arrangements to acquire developed and undeveloped land parcels and lots.

Our cash flows from operations were positively impacted by the delivery of 500 tower units during 2007, which provided net cash inflows of approximately $407 million. We expect to collect a portion of the remaining contracts receivable in the fourth quarter of 2007 as 2 tower closings (approximately 420 sold units with estimated cash proceeds of approximately $450 million net of the estimated default reserves) will begin to occur, allowing delivery of units to residents. Our contracts receivable at September 30, 2007 includes approximately $57.3 million related to 44 tower units sold but that have not closed although the tower buildings have been completed. As of November 5, 2007, the number of unclosed units has been reduced to 31 totaling approximately $41.2 million in contracts receivable. We have reserved for an estimated 16 defaults related to the 31 unclosed units. Due to the larger number of units in certain buildings, the general weakness of the real estate market, the current challenges that exist in the mortgage market and other individual circumstances, it has taken us longer than expected during the last 9 to 12 months to close sold units in any building. If we do not collect these contract receivables due to various contingencies, including buyer defaults and rescission claims, we may receive materially less cash than we expect. An analysis of our tower contracts receivable balance indicates that certain purchasers of our tower units are partnerships and limited liability corporations. Many individual or entity purchasers have multiple units under contract. We believe that many of these units have been placed under contract for investment or speculative purposes. The concentration of contracts to purchase multiple tower units among these entities or individuals may increase the risk associated with our collection of the related contracts receivable balance.

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)

 

We continue to experience an increase in the number of condominium and single family contract purchasers who are alleging rescission rights under the Interstate Land Sales Act as well as other federal and state laws. Although we do not believe these claims are valid and intend to vigorously contest them, there can be no assurance that we will prevail in each claim. If a buyer successfully sues the company in a rescission claim, we would not be entitled to keep the buyer’s deposits. For the nine months ended September 30, 2007, we recorded 176 tower unit defaults. Prior to 2006, our residential tower default rate had been approximately 1%-2% of total sold tower units. Our current tower default reserve accounts for an estimated 15% default rate for our remaining tower unit closings. Our historical default and rescission rates may not be indicative of future default and rescission rates. There can be no assurance that our defaults or rescission claims will not increase in the future. Future defaults and rescission claims may limit our ability to deliver units from backlog and collect contract receivables upon the completion of towers under construction. Due to various contingencies, like delayed construction and buyer defaults and rescission claims, we may receive less cash than the amount of revenue already recognized or the cash may be received at a later date than we expected which could materially affect our financial condition and results of operations. If we do not receive cash corresponding to previously recognized revenues, our future cash flows could be materially lower than expected.

For the nine months ended 2007, approximately $21.3 million of cash was used in investing activities to develop WCI owned club facilities and acquire property and equipment. We received net cash proceeds of approximately $47.1 million associated with the sale of a recreational amenity facility in April 2007.

For the nine months ended September 30, 2007, financing activities used cash of approximately $80.2 million to reduce the balances outstanding under the senior unsecured credit facility and mortgages and notes payable.

We utilize a senior revolving credit facility (the Revolving Credit Facility) to fund land acquisitions, land improvements, homebuilding and tower development and for general corporate purposes. At September 30, 2007, approximately $448.7 million was outstanding on this amended facility . We use a $390 million revolving tower construction facility (Tower Loan Agreement) to fund a majority of our tower development activities.

In April 2007, we amended the Revolving Credit Facility with an effective date of March 31, 2007. On August 17, 2007 we amended the Revolving Credit Facility, the Term Loan Agreement and the Tower Loan Agreement each with effective dates as of August 17, 2007, with the exception of the modifications to the EBITDA to Fixed Charges and the Debt to Tangible Net Worth covenants, which were effective June 30, 2007. The borrowing capacity under the Revolving Credit Facility has been reduced from $850 million to $700 million, with subsequent reductions to $600 million on July 1, 2008, and to $550 million on July 1, 2009. The interest rate for loans thereunder is LIBOR plus 300 basis points. The revised Term Loan Agreement required an immediate reduction in the committed and outstanding amount from $300 million to $262.5 million, with a subsequent reduction to $225 million on July 1, 2008. The interest rate for loans thereunder will be LIBOR plus 350 basis points. The Tower Loan Agreement modifications provide for the acceleration of repayment of this facility upon delivery of tower units and prohibit any extension or addition of tower loan commitments to the facility. The Tower Loan Agreement also contains a cross default to the other two facilities discussed in this paragraph. The interest rate on loans under the Tower Loan Agreement is the applicable Eurodollar Rate plus 300 basis points or the lender’s prime rate plus 100 basis points.

The revised Revolving Credit Facility and revised Term Loan Agreement contain modifications to certain financial and operational covenants, which limit our ability, among other items, to repurchase subordinated debt and common stock, and to finance tower construction under the Credit Facility. We also agreed to provide these lenders with mortgages and other security documents covering substantially all of our unsecured assets as security and to obtain appraisals and other property-specific reports. In addition, sales of assets in excess of $100 million and not in the ordinary course of business will require approval by a majority of the lenders under each of these

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)

 

facilities. The principal financial covenant modifications include the following, as defined: (1) EBITDA (earnings before interest, taxes, depreciation, amortization and other non-cash income and expenses) to Fixed Charges cannot be less than 0.50x at the end of any fiscal quarter through December 31, 2008, 1.0x at March 31, 2009, 1.25x at June 30, 2009, 1.50x at September 30, 2009, 1.75x at December 31, 2009, and 2.0x thereafter, (2) the number of Unsold Units is limited to 50% of trailing twelve months closed homebuilding units through December 31, 2008, and 35% thereafter (3) Debt to Tangible Net Worth cannot exceed 2.15x at the end of any fiscal quarter through the end of December 31, 2007, and cannot exceed 1.75x at the end of any fiscal quarter thereafter.

In addition, the lenders under the Revolving Credit Facility, the Term Loan Agreement and the Tower Loan Agreement agreed to waive existing prohibitions on a defined Change of Control to accommodate the change in the membership of our Board of Directors as a result of the settlement by the Company with the Icahn Parties.

At September 30, 2007, $525.0 million of senior subordinated debt was outstanding. Under our senior subordinated indenture agreements, certain financial and operational covenants may limit the Company’s and its subsidiaries’ ability to incur additional debt, pay dividends, repurchase capital stock and make investment acquisitions. As defined in our senior subordinated bond indentures, subject to certain exceptions, in order to incur additional debt, we are required to maintain a minimum EBITDA to interest incurred coverage ratio of 2.0 to 1.0 or maximum debt to tangible net worth ratio of 3.0 to 1.0. Additionally, under the indentures, if our consolidated tangible net worth declines below $125.0 million for two consecutive quarters we would be required to offer to purchase 10% of the aggregate principal of the notes originally issued. At September 30, 2007 the EBITDA to interest incurred ratio was less than 2.0 to 1.0.

In February 2007, as a result of our significant debt leverage and declining market conditions, Standard and Poor’s Rating Services (S & P) and Moody’s Investor Service (Moody’s) lowered our corporate credit rating to B+ from BB- and B2 from B1, respectively. S & P and Moody’s also lowered their credit rating on our subordinated debt to B- from B and Caa1 from B2, respectively. In July 2007, S&P lowered our company credit rating to CCC+ from B+ and lowered our credit rating on our subordinated debt to CCC- from B-. In August 2007, Moody’s lowered our company credit rating to B3 from B2 and the credit rating on our subordinated debt to Caa2 from Caa1.

For the quarter ended September 30, 2007, we were not able to comply with the modified Fixed Charge Coverage covenant under the Revolving Credit Facility and Term Loan Agreement. As a result, on November 7, 2007, we obtained a limited waiver of performance under this covenant which is effective through December 7, 2007. Following the filing of this quarterly report, we expect to finalize our discussions with the lead lenders under these facilities and submit a longer-term amendment that would provide financial flexibility, including suspension of the Fixed Charge Coverage covenant, for approval by the lenders that are now participants in these facilities and the Tower Facility. As of September 30, 2007, the balance on the Revolving Credit Facility was $448.7 million, the balance on the Term Loan Agreement was $262.5 million, and the balance on the Tower Facility was $358.5 million.

At this time, it is not certain that we will reach agreement or obtain approval of the anticipated longer-term amendments. This amendment will be expensive and there can be no assurance that we will be able to comply with the amended covenants and other requirements. If WCI is unable to obtain the amendment or comply with its terms, the lenders would have the right to exercise remedies specified in the loan agreements, including foreclosing on certain collateral and accelerating the maturity of the loans, which could result in the acceleration of substantially all of our other outstanding indebtedness. In such a situation, there can be no assurance that we would be able to obtain alternative financing. In addition, if the Company is determined to be in default of these loan agreements, it may be prohibited from drawing additional funds under the Revolving Credit Facility and the Tower Loan Agreement, which could impair our ability to maintain sufficient working capital. Either situation could have a material adverse effect on the solvency of the Company.

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)

 

In connection with the reduction in our credit ratings on our subordinated debt, a holder of our $125.0 million, 4.0% Contingent Convertible Senior Subordinated Notes due 2023 (Convertible Notes) may now convert all or a portion of such Convertible Notes. Upon conversion of the Convertible Notes, we will pay cash equal to the lesser of the cash conversion price (as defined in the Supplemental Indenture) and 100 percent of the principal amount of the Convertible Notes. In the event that the cash conversion price exceeds 100 percent of the principal amount of the Convertible Notes, we may elect to issue common stock or pay an amount of cash equivalent to the difference between the cash conversion price and 100 percent of the principal amount of the Convertible Notes. As of September 30, 2007, the cash conversion price per $1,000 aggregate principal amount of Convertible Notes would result in the holder receiving an amount less than par and no holders have requested conversion.

As a result of the revenue and cost dynamics that are adversely affecting contractors that build large scale commercial, industrial and residential projects, we could potentially be affected by the deteriorating financial viability of certain Tower homebuilding general contractors. Specifically, we have been informed by one general contractor of their inability to perform, resulting in surety company intervention on a project that is nearing completion, but we do not expect this to result in any material adverse consequence to the project. In the event a general contractor should breach a construction agreement with us, we rely upon performance bonds related to these buildings to complete these projects. A continuing financial deterioration of certain Tower general contractors may result in a reduction in the profitability of certain towers, delayed cash flow receipts, and an increase in the cost and possible availability of sufficient performance bonds to complete or commence new Tower construction.

In certain instances, a breach of a Tower construction contract by a general contractor may result in a default under the Tower Facility. If we are unsuccessful in obtaining a waiver from or amendment to certain debt facility covenants, it would also result in a cross-default under certain of our other debt instruments which if not cured, all of the lenders under each of such debt facilities could elect to declare all amounts outstanding under such facilities to be due and payable and terminate all commitments to extend further credit.

The Company has been experiencing a reduction in availability of security bond capacity. In addition to increasing cost of surety bond premiums there may be some cases where we may have to obtain a letter of credit or some other type of collateral to secure necessary surety bonds or, if unable to secure such bonds, may elect to post alternative forms of collateral with government entities or escrow agents.

The Company has implemented another significant reduction to its workforce in response to continued soft demand in its markets. Including voluntary resignations, this restructuring will result in a net reduction in force of about 575 employees and is expected to generate annual net savings of approximately $46 million in salaries and benefits. The costs associated with this restructuring are estimated to be approximately $5.4 million, of which approximately $1.0 million was incurred in the third quarter of 2007 and the balance in fourth quarter of 2007. The remaining workforce of roughly 2,100 employees represents a 46% reduction from our peak employment in mid 2006 of 3,889 employees.

OFF-BALANCE SHEET ARRANGEMENTS

We selectively enter into business relationships in the form of partnerships and joint ventures with unrelated parties. These partnerships and joint ventures are utilized to acquire, develop, market and operate homebuilding, amenities and real estate projects. In connection with the operation of these partnerships and joint ventures, the partners may agree to make additional cash contributions to the partnerships pursuant to the partnership agreements. We believe that future contributions, if required, will not have a significant impact on our liquidity or financial position. If we fail to make required contributions, we may lose some or all of our interest in such partnerships or joint ventures. At September 30, 2007, one of our unconsolidated joint ventures had obtained third party financing of $20.5 million, of which $15.5 million is outstanding. Under the terms of the agreement, we provide a joint and several guarantee up to 60% of the principal amount outstanding. Although the majority of our unconsolidated partnership and joint ventures do not have outstanding debt, the partners may agree to incur debt to fund partnership and joint venture operations in the future.

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)

 

In the normal course of business, we enter into contractual arrangements to acquire developed and undeveloped land parcels and lots. As of September 30, 2007, our evaluation of our contractual arrangements to acquire land and lots did not indicate any material variable interests with VIEs and we did not have any material lot purchase arrangements in which we concluded that we were compelled to exercise the option. As of September 30, 2007, we had land and lot option contracts aggregating $343.8 million net of deposits, to acquire approximately thirteen hundred acres of land. Our contractual obligation with respect to the land and lot option contracts is limited to the forfeiture of the related non-refundable deposits, any other payments which may be due to the landowner and other pre-development costs, which totaled $35.3 million at September 30, 2007.

Standby letters of credit and performance bonds, issued by third party entities, are used to guarantee our performance under various contracts, principally in connection with the development of our projects and land purchase obligations. At September 30, 2007, we had approximately $49.6 million in letters of credit outstanding. Performance bonds do not have stated expiration dates; rather, we are released from the bonds as the contractual performance is completed. These bonds, which approximated $177.0 million at September 30, 2007, are typically outstanding over a period of approximately one to five years.

INFLATION

The homebuilding industry is affected by inflation as it relates to the cost to acquire land, land improvements, homebuilding raw materials and subcontractor labor. We compete with other builders and real estate developers for raw materials and labor. On certain occasions we have experienced vendors limiting the supply of raw materials which slows the land, home and tower development process and requires us to obtain raw materials from other vendors, typically at higher prices. Unless these increased costs are recovered through higher sales prices, our gross margins would be impacted. Because the sales prices of our homes in backlog are fixed at the time a buyer enters into a contract to acquire a home, any inflation in the costs of raw materials and labor costs greater than those anticipated may result in lower gross margins.

In general, if interest rates increase, construction and financing costs could increase, which would result in lower future gross margins. Increases in home mortgage interest rates may make it more difficult for our customers to qualify for home mortgage loans, potentially decreasing home sales revenue.

CRITICAL ACCOUNTING POLICIES

The Company's critical accounting policies are those related to (1) revenue recognition related to traditional and tower homebuilding and amenity membership and operations; (2) contracts receivable; (3) real estate inventories and cost of sales; (4) share-based compensation expense; (5) warranty costs; (6) capitalized interest and real estate taxes; (7) community development district obligations; (8) impairment of long-lived assets; (9) goodwill and (10) litigation.

We believe that there have been no significant changes to our critical accounting policies during the nine months ended September 30, 2007 as compared to those fully described in Items 7 and 8 in the Company's Annual Report on Form 10-K for the year ended December 31, 2006.

FORWARD-LOOKING STATEMENTS

Certain information included herein and in other company reports, Securities and Exchange Commission filings, statements and presentations is forward-looking within the meaning of the Private Securities Litigation Reform Act of 1995, including, but not limited to, statements about the company's anticipated operating results, financial resources, ability to acquire land, ability to sell homes and properties, ability to deliver homes from backlog, and

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)

 

ability to secure materials and subcontractors. Such forward-looking information involves important risks and uncertainties that could significantly affect actual results and cause them to differ materially from expectations expressed herein and in other company reports, filings, statements and presentations. These risks and uncertainties include WCI's ability to compete in real estate markets where we conduct business; WCI's ability to pay principal and interest on its current and future debts; WCI's ability to amend its bank agreements and obtain waivers as needed from time to time to obtain covenant relief and to avoid bank defaults during the market downturn; WCI's ability to maintain or increase historical revenues and profit margins; WCI's ability to collect contract receivables from buyers purchasing homes as investments; the availability and cost of land in desirable areas in its geographic markets and our ability to expand successfully into those areas; WCI's ability to obtain necessary permits and approvals for the development of its lands; the availability of capital to WCI and our ability to effect growth strategies successfully; availability of labor and materials and material increases in insurance, labor and material costs; increases in interest rates and availability of mortgage financing; the ability of prospective residential buyers to obtain mortgage financing due to tightening credit markets, appraisal problems or other factors; increases in construction and homeowner insurance and availability of insurance, the continuing negative buyer sentiment and erosion of consumer confidence; the negative impact of claims for contract rescission or increasing cancellation rates by contract purchasers; adverse legislation or regulations; adverse legal proceedings; the ability to retain employees; changes in generally accepted accounting principles; natural disasters; adverse weather conditions; and changes in general economic, real estate and business conditions and other factors over which the company has little or no control. If one or more of the assumptions underlying our forward-looking statements proves incorrect, then the company's actual results, performance or achievements could differ materially from those expressed in, or implied by the forward-looking statements contained in this report. Therefore, we caution you not to place undue reliance on our forward-looking statements. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. This statement is provided as permitted by the Private Securities Litigation Reform Act of 1995.

 

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ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES

ABOUT MARKET RISK

We utilize fixed and variable rate debt. Changes in interest rates on fixed rate debt generally affect the fair market value of the instrument, but not our earnings or cash flow. Changes in interest rates on variable rate debt generally do not impact the fair market value of the instrument but does affect our earnings and cash flow. We are exposed to market risk primarily due to fluctuations in interest rates on our variable rate debt. Effective December 23, 2005 we hedged a portion of our exposure to changes in interest rates by entering into an interest swap agreement to lock in a fixed interest rate. The swap agreement effectively fixed the variable rate cash flows on our $300.0 million of variable rate senior term note and expires December 2010. On August 17, 2007, we amended the senior term note agreement, which required us to reduce the balance to $262.5 million and increased the interest rate. As a result, the underlying terms of the interest swap agreement no longer effectively matched the terms of the senior term note and we removed the designation of the swap agreement as a cash flow hedge. Subsequent changes in the fair value of the swap agreement are reflected in other income and expense in the consolidated statements of income. At September 30, 2007, the fair value of the swap agreement of ($2.8) million is reflected in other liabilities in the consolidated balance sheet.

Our Annual Report on Form 10-K for the year ended December 31, 2006 contains information about market risks under "Item 7A. Quantitative and Qualitative Disclosure about Market Risk."

The following table sets forth, as of September 30, 2007, the Company’s debt obligations, principal cash flows by scheduled maturity, weighted average interest rates and estimated fair market values (dollars in thousands).

 

     2007     2008     2009     2010     2011    Thereafter     Total     FMV at
9/30/07

Debt:

                 

Fixed rate

   $ 10,000     $ 6,290     $ —       $ —       $ —      $ 815,000     $ 831,290     $ 627,698

Average interest rate

     7.0 %     7.0 %     —         —         —        7.2 %     7.2 %  

Variable rate

   $ —       $ 358,537     $ 1,775     $ 711,200     $ —      $ —       $ 1,071,512     $ 1,071,512

Average interest rate

     —         8.2 %     7.0 %     8.5 %     —        —         8.4 %  

 

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ITEM 4. CONTROLS AND PROCEDURES

The Company maintains disclosure controls and procedures that are designed to ensure that information required to be disclosed in the Company’s report under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms, and that such information is accumulated and communicated to the Company’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosures. Any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives. The Company’s management, with the participation of the Company’s Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of the design and operation of the Company’s disclosure controls and procedures as of September 30, 2007. Based upon that evaluation and subject to the foregoing, the Company’s Chief Executive Officer and Chief Financial Officer concluded that the design and operation of the Company’s disclosure controls and procedures provided reasonable assurance that the disclosure controls and procedures are effective to accomplish their objectives.

In addition, there was no change in the Company’s internal control over financial reporting that occurred during the quarter ended September 30, 2007 that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

 

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PART II. OTHER INFORMATION

 

Item 1. Legal Proceedings

The Company and certain of its subsidiaries have been named as defendants in various claims, complaints and other legal actions arising in the normal course of business. In addition, the Company has experienced a significant increase in the number of rescission claims and legal actions brought by resident contract purchasers alleging that various factors give them rescission rights under the Interstate Land Sales Act and other federal and state laws. Although the Company intends to vigorously contest these claims, there can be no assurance that the Company will prevail in each claim. In the opinion of management, the outcome of all these matters will not have a material adverse effect on the financial condition or results of operations of the Company, but it is possible that the Company’s performance may be affected by either changes in the Company’s estimates and assumptions related to these proceedings, or due to the ultimate outcome of the litigation, claim or proceeding.

On August 13, 2007, a purported class action lawsuit “David A. Berry and John Schrenkel, et al v. WCI Communities, Inc. a Delaware Corporation, Case No. 2:07-CV-512-FTM-MMH-DNF, was filed in the United States District Court Middle, District of Florida Ft. Myers Division against the Company. The complaint includes statutory claims, claims for unjust enrichment, constructive trust and an equitable lien in connection with the Company’s sale of condominium units in its community known as “Florencia at the Colony”. The Plaintiff’s purport to bring the claim on behalf of all other contract purchasers who allegedly wish to rescind their contracts to purchase Florencia condominium units and obtain a refund of their deposits. The complaint seeks rescission of the Plaintiff’s contracts, return of the Plaintiff’s deposits, interest on those deposits, attorney fees and costs. The Company believes the lawsuit is without merit and intends to vigorously defend itself against all of the claims and allegations in the complaint. Due to uncertainty as to the outcome of the foregoing matters, management cannot make an estimate of exposure, if any, at this time.

 

Item 1A. Risk Factors

Due to continuing deterioration of conditions in the markets in which we operate, we have amended and restated certain risk factors contained in our Annual Report on Form 10-K for the year ended December 31, 2006 and included additional risk factors. These risk factors should be read together with the other risk factors contained in the Annual Report on Form 10-K for the year ended December 31, 2006. The following cautionary discussion of risks and uncertainties relevant to our business includes factors we believe could cause our actual results to differ materially from expected and historical results. Other factors beyond those listed below, including factors unknown to us and factors known to us which we have not determined to be material, could also adversely affect us.

Covenant Compliance—If we are unable to maintain compliance with the financial covenants contained in our existing credit facilities and we are unable to enter into an amendment or waiver of the credit facilities, we may be forced to declare bankruptcy.

For the quarter ended September 30, 2007, we were not able to comply with the modified Fixed Charge Coverage covenant under the Revolving Credit Facility and Term Loan Agreement. As a result, on November 7, 2007, we obtained a limited waiver of performance under this covenant which is effective through December 7, 2007. Following the filing of this quarterly report, we expect to finalize our discussions with the lead lenders under these facilities and submit a longer-term amendment that would provide financial flexibility, including suspension of the Fixed Charge Coverage covenant, for approval by the lenders that are now participants in these facilities and the Tower Facility. As of September 30, 2007, the balance on the Revolving Credit Facility was $448.7 million, the balance on the Term Loan Agreement was $262.5 million, and the balance on the Tower Facility was $358.5 million.

At this time, it is not certain that we will reach agreement or obtain approval of the anticipated longer-term amendments. This amendment will be expensive and there can be no assurance that we will be able to comply with the amended covenants and other requirements. If WCI is unable to obtain the amendment or comply with its terms, the lenders would have the right to exercise remedies specified in the loan agreements,

 

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including foreclosing on certain collateral and accelerating the maturity of the loans, which could result in the acceleration of substantially all of our other outstanding indebtedness. In such a situation, there can be no assurance that we would be able to obtain alternative financing. In addition, if the Company is determined to be in default of these loan agreements, it may be prohibited from drawing additional funds under the Revolving Credit Facility and the Tower Loan Agreement, which could impair our ability to maintain sufficient working capital. Either situation could have a material adverse effect on the solvency of the Company, including the risk of being forced to declare bankruptcy.

Substantial Indebtedness—Our substantial indebtedness could adversely affect our financial condition, limit our growth and make it more difficult for us to satisfy our debt obligations.

As of September 30, 2007, we had outstanding indebtedness of approximately $1.9 billion. Our substantial indebtedness could have important consequences to us and the holders of our securities, including, among other things: causing us to be unable to satisfy our obligations under our debt agreements; making us more vulnerable to adverse general economic and industry conditions; making it difficult to fund future working capital, land purchases, acquisitions, share repurchases, general corporate purposes or other purposes; and causing us to be limited in our flexibility in planning for, or reacting to, changes in our business.

Moreover, the continuing deterioration of conditions in the markets in which we operate has had, and likely will continue to have for an extended period of time, a negative impact on our liquidity and our ability to comply with financial and other covenants under our bank loans and indentures. Some of the factors which have adversely affected us include, but are not limited to, declines in new home orders; increased cancellations, defaults and rescission claims; increased use of incentives and discounts; reduced margins; tower project delays and increased interest and insurance costs; general contractor financial instability; and credit rating downgrades. All of these factors, and others which may arise in the future, may adversely impact our financial condition.

In addition, subject to restrictions in our existing debt instruments, we may incur additional indebtedness. In particular, as of September 30, 2007, we had available borrowings of $251.3 million under our revolving credit facility. If new debt is added to our current debt levels, the related risks that we now face could intensify. Our growth plans and our ability to make payments of principal or interest on, or to refinance, our indebtedness, will depend on our future operating performance and our ability to enter into additional debt and/or equity financings. If we are unable to generate sufficient cash flows in the future to service our debt, we may be required to refinance all or a portion of our existing debt, to sell assets or to obtain additional financing. We may not be able to do any of the foregoing on terms acceptable to us, if at all.

In February 2007, as a result of our significant debt leverage and declining market conditions, Standard and Poor’s Rating Services (S & P) and Moody’s Investor Service (Moody’s) lowered our corporate credit rating to B+ from BB– and B2 from B1, respectively. S & P and Moody’s also lowered their credit rating on our subordinated debt to B- from B and Caa1 from B2, respectively . In July 2007, S&P lowered our company credit rating to CCC+ from B+ and lowered our credit rating on our subordinated debt to CCC- from B-. In August 2007, Moody’s lowered our company credit rating to B3 from B2 and the credit rating on our subordinated debt to Caa2 from Caa1.

In connection with the reduction in our credit ratings on our senior subordinated debt, a holder of our 4% Notes may now convert all or a portion of such 4% Notes. Upon conversion of the 4% Notes, we will pay cash equal to the lesser of the cash conversion price (as defined in the Supplemental Indenture) and 100 percent of the principal amount of the Convertible Notes. In the event that the cash conversion price exceeds 100 percent of the principal amount of the 4% Notes, we may elect to issue common stock or pay an amount of cash equivalent to the difference between the cash conversion price and 100 percent of the principal amount of the 4% Notes. As of September 30, 2007, the cash conversion price per $1,000 aggregate principal amount of 4% Notes would result in the holder receiving an amount less than par and no holders have requested conversion.

 

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Risks Associated with General Contractor Financial Deterioration – Continuing financial deterioration of our Tower general contractors may result in a breach of one or more of our Tower construction agreements which may cause a default under the Tower Facility.

As a result of the revenue and cost dynamics that are adversely affecting contractors that build large scale commercial, industrial and residential projects, we could potentially be affected by the deteriorating financial viability of certain Tower homebuilding general contractors. Specifically, we have been informed by one general contractor of their inability to perform, resulting in surety company intervention on a project that is nearing completion, but we do not expect this to result in any material adverse consequence to the project. In the event a general contractor should breach a construction agreement with us, we rely upon performance bonds related to these buildings to complete these projects. A continuing financial deterioration of certain Tower general contractors may result in a reduction in the profitability of certain towers, delayed cash flow receipts, and an increase in the cost and possible availability of sufficient performance bonds to complete or commence new Tower construction.

In certain instances, a breach of a Tower construction contract by a general contractor may result in a default under the Tower Facility. If we are unsuccessful in obtaining a waiver from or amendment to certain debt facility covenants, it would also result in a cross-default under certain of our other debt instruments which if not cured, all of the lenders under each of such debt facilities could elect to declare all amounts outstanding under such facilities to be due and payable and terminate all commitments to extend further credit.

Insurance—Increased insurance risk and adverse changes in economic conditions could negatively affect our business.

Insurance and surety companies are continuously re-examining their business risks, and have taken actions including increasing premiums, requiring higher self-insured retentions and deductibles, requiring additional collateral on surety bonds, reducing limits, restricting coverage’s, imposing exclusions, such as mold damage, sabotage and terrorism, and refusing to underwrite certain risks and classes of business. Any increased premiums, mandated exclusions, change in limits, significant extension of building construction duration, coverage’s, terms and conditions or reductions in the amounts of bonding capacity available may adversely affect our ability to obtain appropriate insurance coverage’s at reasonable costs, which could have a material adverse effect on our financial condition and results of operations. A substantial increase in insurance costs could have a negative impact on contract recessions or cancellations by unit purchasers. Due to the possible deteriorating financial viability of Tower homebuilding general contractors, it is possible that surety companies could seek a reduction in the business exposure to the tower homebuilding industry which may result in a reduction in the profitability of certain towers or delayed cash flow receipts and an increase in the cost and possible availability of sufficient performance bonds at a reasonable cost to complete or commence new Tower construction.

Risk of default on Tower Residence Sales—If we do not receive cash corresponding to previously recognized revenues, our future cash flows could be lower than expected.

In accordance with generally accepted accounting principles, we recognize revenues and profits from sales of tower residences during the course of construction. Revenue recognition commences and continues to be recorded when construction is beyond a preliminary stage, the buyer is committed to the extent of being unable to require a full refund of its deposit except for non-delivery of the residence, a substantial percentage of residences in a tower are under non-cancelable contracts, collection of the sales price is reasonably assured and costs can be reasonably estimated. Each quarter we review the criteria of paragraph 37 of SFAS 66, Accounting for Sales of Real Estate , to determine that each tower under construction recognizing revenue continues to qualify for revenue recognition under the percentage of completion method. If increased contract defaults, excessive changes in revenue forecasts or profitability or other negative factors become significant enough to indicate that a tower does not qualify for this revenue recognition method, we would be required to reverse revenues and receivables previously recognized for that tower, resulting in a net reduction of earnings and equity for that period.

 

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Due to various circumstances, including buyer defaults and rescission claims, we may receive less cash than we expect. An analysis of our tower contracts receivable balance at September 30, 2007 indicates that certain purchasers of our tower units are partnerships and limited liability corporations. Several individual or entity purchasers have multiple units under contract. Many of these units may be held for investment or speculative purposes. The concentration of contracts to purchase multiple tower units among these entities or individuals may increase the risk associated with our collection of the related contracts receivable balance.

Additionally, we have experienced an increase in the number of condominium contract purchasers who are alleging rescission rights under federal and state law. Although we do not believe these claims are valid and intend to vigorously contest them, there can be no assurance that we will prevail in each claim. If a buyer successfully sues the company in a rescission claim, we would not be entitled to keep the buyer’s deposits. For the nine months ended September 30, 2007, 176 contracts defaulted on the obligation to close the purchase of a tower unit. Tower defaults in certain of our buildings that began delivering units during 2007 have been higher than our prior estimates and higher than the default rate experienced prior to 2007. Prior to 2006, our residential tower default rate had been approximately 1% to 2% of total sold tower units. Our current tower default reserve accounts for an estimated 15% default rate for future tower unit closings.

Our historical default rates may not be indicative of future default rates. There can be no assurance that our defaults or rescission claims will not increase in the future. Future defaults and rescission claims may limit our ability to deliver units from backlog and collect contract receivables upon the completion of towers under construction.

 

Item 3. Defaults Upon Senior Securities

On August 17, 2007, WCI amended its Credit Facility, the Term Loan Agreement and the revolving credit $390 million construction loan (Tower Facility) to permit certain changes in the composition of WCI’s Board of Directors without triggering a change of control and to establish certain other modifications to the terms and financial covenants of the loans.

For the quarter ended September 30, 2007, we were not able to comply with the modified Fixed Charge Coverage covenant under the Revolving Credit Facility and Term Loan Agreement. As a result, on November 7, 2007, we obtained a limited waiver of performance under this covenant which is effective through December 7, 2007. Following the filing of this quarterly report, we expect to finalize our discussions with the lead lenders under these facilities and submit a longer-term amendment that would provide financial flexibility, including suspension of the Fixed Charge Coverage covenant, for approval by the lenders that are now participants in these facilities and the Tower Facility. As of September 30, 2007, the balance on the Revolving Credit Facility was $448.7 million, the balance on the Term Loan Agreement was $262.5 million, and the balance on the Tower Facility was $358.5 million.

At this time, it is not certain that we will reach agreement or obtain approval of the anticipated longer-term amendments. This amendment will be expensive and there can be no assurance that we will be able to comply with the amended covenants and other requirements. If WCI is unable to obtain the amendment or comply with its terms, the lenders would have the right to exercise remedies specified in the loan agreements, including foreclosing on certain collateral and accelerating the maturity of the loans, which could result in the acceleration of substantially all of our other outstanding indebtedness. In such a situation, there can be no assurance that we would be able to obtain alternative financing. In addition, if the Company is determined to be in default of these loan agreements, it may be prohibited from drawing additional funds under the Revolving Credit Facility and the Tower Loan Agreement, which could impair our ability to maintain sufficient working capital. Either situation could have a material adverse effect on the solvency of the Company, including the risk of being forced to declare bankruptcy. For further information concerning our operational and financial risks, refer to item 1A. Risk Factors

 

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Item 4. Submission of Matters to a Vote of Shareholders

At the 2007 Annual Meeting of Shareholders of the Company held August 30, 2007, the following individuals were elected to the Board of Directors to serve until the next annual meeting.

 

Nominee

  

For

  

Against

  

Authority Withheld

Don E. Ackerman

   28,544,733    0    77,707

Charles E. Cobb, Jr.

   28,545,308    0    77,132

Hilliard M. Eure, III

   28,545,708    0    76,732

Carl C. Ichan

   28,585,638    0    36,802

Keith Meister

   28,585,096    0    37,344

David Schechter

   28,585,096    0    37,344

Craig Thomas

   28,587,344    0    35,096

Nick Graziano

   28,585,194    0    37,246

Jonathan R. Macey

   28,587,388    0    35,052

At this Annual Meeting the Shareholders voted to ratify the appointment of Ernst & Young LLP as the independent registered public accountants for 2007.

 

For

  

Against

  

Abstain

    

27,186,705

   1,411,435    24,300   

The information required by Item 4(d) is contained in the Company’s 2007 Proxy Statement filed with the Securities and Exchange Commission on April 30, 2007 as supplemented and filed on August 21, 2007. For the limited purpose of providing the information necessary to comply with this Item 4(d), the 2007 Proxy Statement is incorporated herein by reference.

 

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Item 6. Exhibits

 

  (a) Exhibits

 

  3.1

  Certificate of Incorporation of WCI Communities, Inc. (1)

  3.2

  Amended and Restated By-laws of WCI Communities, Inc. (2)

31.1

  Rule 13a-14(a) certification by Jerry L. Starkey, President and Chief Executive Officer. (**)

31.2

  Rule 13a-14(a) certification by James P. Dietz, Executive Vice President and Chief Financial Officer. (**)

32.1

  Section 1350 certification by Jerry L. Starkey, President and Executive Officer, pursuant to section 906 of the Sarbanes-Oxley Act of 2002. (**)

32.2

  Section 1350 certification by James P. Dietz, Executive Vice President and Chief Financial Officer, pursuant to section 906 of the Sarbanes-Oxley Act of 2002. (**)

** Filed herewith.
(1) Incorporated by reference to the exhibits filed with WCI Communities, Inc.’s Form 8-K filed on May 24, 2005 (Commission File No. 1-31255)
(2) Incorporated by reference to the exhibits filed with WCI Communities Inc.‘s Form 8-K filed on August 21, 2007 (Commission File No.1-31255)

 

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Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

   WCI COMMUNITIES, INC.
Date: November 9, 2007   

/s/ J AMES P. D IETZ

   James P. Dietz
   Executive Vice President and Chief Financial Officer
   (Principal Financial and Accounting Officer)

 

43

Exhibit 31.1

CERTIFICATIONS

I, Jerry L. Starkey, certify that:

1. I have reviewed this quarterly report on Form 10-Q of WCI Communities, Inc.;

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

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

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

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

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

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

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

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

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

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

 

  WCI COMMUNITIES, INC.
Date: November 9, 2007  

/s/ J ERRY L. S TARKEY

  Jerry L. Starkey
  President and Chief Executive Officer

Exhibit 31.2

CERTIFICATIONS

I, James P. Dietz, certify that:

1. I have reviewed this quarterly report on Form 10-Q of WCI Communities, Inc.;

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

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

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

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

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

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

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

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

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

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

 

  WCI COMMUNITIES, INC.
Date: November 9, 2007  

/s/ J AMES P. D IETZ

  James P. Dietz
  Executive Vice President and Chief Financial Officer
  (Principal Financial and Accounting Officer)

Exhibit 32.1

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report of WCI Communities, Inc. (the “Company”) on Form 10-Q for the quarterly period ended September 30, 2007 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Jerry L. Starkey, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

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

 

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

/s/ J ERRY L. S TARKEY

Jerry L. Starkey
President and Chief Executive Officer
Date: November 9, 2007

Exhibit 32.2

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report of WCI Communities, Inc. (the “Company”) on Form 10-Q for the quarterly period ended September 30, 2007 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, James P. Dietz, Executive Vice President and Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

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

 

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

/s/ J AMES P. D IETZ

James P. Dietz

Executive Vice President and

Chief Financial Officer

Date: November 9, 2007