Official Committee of Unsecured Creditors of Tousa, Inc. v. Citicorp North America, Inc. (In Re Tousa, Inc.)

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AMENDED

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FINDINGS OF FACT AND CONCLUSIONS OF LAW

JOHN K. OLSON, Bankruptcy Judge.

In this adversary proceeding, the Creditors’ Committee seeks to avoid (as fraudulent transfers) and to recover some $500 million in liens granted by certain of the Debtors (the “Conveying Subsidiaries”) less than 6 months before their bankruptcy filings in January 2008 and at a time when the Committee contends that the Conveying Subsidiaries were insolvent. The Committee also seeks to recover some $420 million paid in cash to prior lenders to other Debtors whose loans were paid out as part of the same transaction in which the challenged liens were granted. Finally, the Committee seeks to avoid as preferential the grant of a security interest in a $207 million tax refund which was perfected less than 90 days before the Debtors’ petitions were filed. Because I conclude that the Conveying Subsidiaries (a) did not receive reasonably equivalent value in exchange for the liens granted, (b) were insolvent both before and after the transaction, and (c) were left with unreasonably small capital with which to operate their businesses as a result of the transaction, the liens will be avoided and the value of the property conveyed will be recovered with interest for the benefit of the respective Debtors’ estates. Because I conclude that the security interest in the tax refund claim was perfected within the preference period and at a time when the Debtors were insolvent, and that recognition of the security interest would enable the lenders to receive more than they would receive in a Chapter 7 liquidation, the security interest in the tax refund will be avoided and those portions of it which were paid out to the lenders as part of a cash collateral stipulation will be ordered disgorged.

This case was tried in 13 trial days in July and August 2009. The stakes are enormous: the Debtors, who are a roll-up of homebuilders, are grossly insolvent and are in a phased wind-down of their operations, heading to a liquidating Chapter 11 plan. The plaintiff Committee, which was authorized to bring this avoidance action on behalf of the Debtors’ estates, represents the interests of unsecured creditors, primarily bondholders owed a principal amount slightly over $1 billion. Aligned as defendants in the fraudulent transfer claims are the holders of a first lien term loan (in the original amount of roughly $200 million), the holders of a second lien term loan (in the original amount of roughly $300 million), and the lenders who were paid some $420 million in the financing transaction which forms the basis for the lawsuit. The defendants in the preference claim include the first and second lien term lenders.

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The parties were all represented by extremely able lawyers; no expense was spared in trial preparation and presentation and no avenue of legal argument was left unexplored.

This case arises from the decision of TOUSA, Inc. (“TOUSA”) to borrow, and to cause many of its subsidiaries (the “Conveying Subsidiaries”) to borrow, $500 mil

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lion on July 31, 2007, and to secure that debt by granting to the lenders liens on substantially all of their assets. The proceeds of the loans were used to settle litigation against TOUSA and one of its subsidiaries, TOUSA Homes LP (“Homes LP”), that arose from the default on debt incurred to finance the Transeastern Joint Venture, a disastrous business venture that TOUSA undertook in 2005. The Conveying Subsidiaries, which were not defendants in the litigation and were not liable to the entities that financed the Transeast-ern Joint Venture (the “Transeastern Lenders”) nonetheless incurred liabilities and granted liens to secure the resolution of their parent’s liabilities. TOUSA and the Conveying Subsidiaries filed their chapter 11 petitions on January 29, 2008. In this adversary proceeding, the Official Committee of Unsecured Creditors of TOUSA, Inc. (“the Committee”) seeks to avoid obligations and transfers pursuant to 11 U.S.C. §§ 544 (b), 548, and 550, and comparable state law provisions. The Committee also seeks, pursuant to 11 U.S.C. § 547 , to avoid liens on a federal income tax refund for tax years 2005 and 2006 arising from losses suffered by TOUSA and its subsidiaries in tax year 2007.

I. TOUSA, the Transeastern Joint Venture, and the July 31, 2007 transaction

TOUSA and its subsidiaries design, build, and market detached single-family residences, town homes, and condominiums.

TOUSA made its initial public offering of common stock in March 1998 under the name Newmark Homes Corp. In 1995, it had acquired The Adler Companies, Inc., which had operated in southern Florida since 1990. In December 1999, Technical Olympic USA, Inc. acquired 80% of New-mark Home Corp.’s common stock. In November 2000, Technical Olympic USA, Inc. purchased Engle Holdings, Inc., a Florida-based publicly traded homebuild-ing company. In June 2002, Engle Holdings Corp. merged into Newmark Homes Corp, and the company changed its name to Technical Olympic USA, Inc. In 2007, the company officially changed its name to TOUSA, Inc.

TOUSA grew rapidly through a series of acquisitions. In October 2002, TOUSA acquired the net assets of DS Ware Homes LLC, a homebuilder operating in Jacksonville, Florida. In November 2002, TOUSA acquired the net assets of Masonry Homes, Inc., a homebuilder operating in the northwestern suburbs of Baltimore, Maryland and southern Pennsylvania. In February 2003, TOUSA acquired Trophy Homes, Inc., a homebuilder operating in the Las Vegas area, and James Construction Company, a homebuilder operating in the greater Denver area. During 2004, TOUSA acquired certain assets of Gilligan Homes, a homebuilder with operations in Maryland, Pennsylvania, and Delaware. TOUSA’s homes are marketed under various brand names, including Engle Homes, Newmark Homes, Fedrick Harris Estate Homes, Marksman Homes, D.S. Ware Homes, Masonry Homes, Trophy Homes, James Company, and Gilligan Homes.

To facilitate its rapid growth, TOUSA took on more than $1 billion of unsecured bond indebtedness. TOUSA, Inc. was the obligor on the bond debt, and the Conveying Subsidiaries were jointly and severally liable as guarantors. The holders of these bonds were senior in right to payment from the assets of all of the Conveying Subsidiaries. As of July 31, 2007, the total amount of principal outstanding on the bonds was approximately $1.061 billion.

In June 2005, Homes LP, a wholly-owned subsidiary of TOUSA, and Fal-cone/Ritchie LLC (“Falcone”) formed TE/TOUSA LLC (the “Transeastern Joint

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Venture”) to acquire certain homebuilding assets owned by Transeastern Properties, Inc. in Florida. Homes LP and Falcone each held a 50% voting interest in the joint venture, and Homes LP was its managing member.

The Transeastern Joint Venture was funded with $675 million of third-party debt capacity (of which $560 million was drawn as of July 31, 2007), a $20 million subordinated loan from Homes LP and $165 million of equity, of which Homes LP contributed $90 million in cash and Fal-cone contributed $75 million in property. None of the Conveying Subsidiaries was an obligor or guarantor on this third party debt.

As a condition precedent to the Tran-seastern credit agreements, TOUSA and Homes LP executed three unsecured completion guaranties and three unsecured carve-out guaranties (the “Transeastern Guaranties”). None of the Conveying Subsidiaries was a guarantor on the Tran-seastern Guaranties.

The housing downturn soon threatened the viability of the Transeastern Joint Venture. On September 27, 2006, TOUSA announced that the Transeastern Joint Venture’s “revised sales and delivery projections are not adequate to support the existing capital structure.” Ex. 5004 at 5. Two days later, the Transeastern Joint Venture and the Transeastern Lenders entered into the “Consent and Agreement,” whereby the parties agreed that a potential default or an event of default, as defined in the Transeastern credit agreements, had occurred. Citicorp North America, Inc. (“Citi”), the administrative agent for TOUSA’s revolving loan facility (“the Revolver”), in turn notified TOUSA that the potential default constituted a material adverse change under the Revolver, and insisted that TOUSA secure the Revolver by having its subsidiaries grant liens on their assets.

On October 4, 2006, the Transeastern Joint Venture received a letter from certain affiliates of Falcone giving notice of defaults on four existing option agreements for failure by the Transeastern Joint Venture to make required payments of approximately $29 million. On October 30, 2006, the Transeastern Joint Venture received a default notice from Kendall Land Development, LLC (“Kendall”), a land bank.

Deutsche Bank Trust Company Americas (“DB Trust”) (the Administrative Agent for the Transeastern Lenders) sent letters dated October 31, 2006, and November 1, 2006, to TOUSA and Homes LP demanding payment under the Transeast-ern Guaranties. The demand letters alleged that potential defaults and events of default had occurred under the Transeast-ern credit agreements, triggering the guarantors’ obligations. DB Trust asserted that TOUSA’s and Homes LP’s guaranty obligations equaled or exceeded all of the outstanding obligations under the Transeastern credit agreements and that TOUSA and Homes LP were also liable for default interest, costs, and expenses. TOUSA’s 8-K, filed November 7, 2006, acknowledged receipt of the demand letters from DB Trust and reported that DB Trust contended that TOUSA was liable under the Transeastern Guaranties.

TOUSA disclosed in its Form 10-Q dated November 14, 2006 that the Tran-seastern Joint Venture’s management had concluded that the Transeastern Joint Venture would not have the ability to continue as a going concern under its current debt structure. TOUSA also announced that it would write off $143.6 million of its investment in the Transeast-ern Joint Venture.

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On November 28, 2006, TOUSA and Homes LP filed a declaratory action in Florida state court against DB Trust seeking a declaration that their obligations under the Transeastern credit agreements had not been triggered and/or that their exposure under the Transeastern Guaranties differed from what DB Trust alleged in its demand letters. On December 4, 2006, DB Trust filed a lawsuit seeking repayment of the Transeastern loans and “damages for the various breaches by TOUSA and TOUSA Homes of the Carve-Out Guaranties and the Completion Guaranties.” TOUSA filed an 8-K announcing the lawsuits and asserted that the lawsuits were “without merit.” Ex. 5010 at 5.

TOUSA executed settlements with the Transeastern Lenders and Falcone on July 31, 2007. The settlement included the payment of more than $421 million to the Senior Transeastern Lenders.

To finance the settlements, TOUSA and the Conveying Subsidiaries took on new debt. They borrowed $200 million pursuant to a $200 million first lien term loan facility with Citi as Administrative Agent and $300 million pursuant to a $300 million second lien term loan facility with Citi as Administrative Agent. Citi subsequently resigned as administrative agent under the Second Lien Term Loan and was replaced by Wells Fargo Bank. The First Lien and Second Lien Term Loan Credit Agreements stated that the funds must be used, among other things, to pay the Transeast-ern Lenders. TOUSA also amended its revolving credit agreement and entered into the Second Amended and Restated Revolving Credit Agreement (Ex. 362), with Citi as Administrative Agent. The July 31, 2007 credit agreements were executed as part of a single integrated transaction (“the July 31 Transaction”).

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In connection with the July 31 Transaction, TOUSA and the Conveying Subsidiaries also executed, among other documents, Pledge and Security Agreements for the First Lien Term Credit Agreement and Second Lien Term Credit Agreement, and an Amended and Restated Pledge and Security Agreement for the Amended Revolver Agreement. The Amended Security Agreement for the First Lien Term Loan and the Amended and Restated Pledge and Security Agreement for the Amended Revolver Agreement state that they secure obligations under the Revolving Debt and First Lien Term Loan by granting first priority liens on, among other things, the property and assets of all of the Debtors, whether real or personal, tangible or intangible, and wherever located. The Amended Security Agreement for the Second Lien Term Loan states that it secures obligations under the Second Lien Term Loan by granting a second priority lien on the same property and assets. An Intercreditor Agreement, dated as of July 31, 2007 governs the respective rights of

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the lenders under the First Lien and Second Lien Term Loans.

II. CONTEMPORANEOUS EVIDENCE SUGGESTS THAT THE CONVEYING SUBSIDIARIES WERE INSOLVENT AT THE TIME OF THE JULY 31 TRANSACTION, AND THAT THE TRANSACTION (A) RENDERED THEM EVEN LESS SOLVENT, (B) LEFT THEM WITH UNREASONABLY SMALL CAPITAL, AND (C) LEFT THEM UNABLE TO PAY THEIR DEBTS AS THEY MATURED

A. The events leading to the July 31 transaction demonstrate that the Conveying Subsidiaries were insolvent both before and after the transaction

1. The severe downturn in the housing market and TOUSA’s home-building business

The effects of the housing downturn were not confined to the Transeastern Joint Venture; the homebuilding business of TOUSA and its subsidiaries also collapsed. As early as February 2006, TOU-SA’s CEO, Antonio (“Tony”) Mon, informed TOUSA’s Board that “the housing industry is beginning to show signs of a slowdown.” Ex. 2016 at 2. At TOUSA’s May 2006 board meeting, Mon told the Board that “the housing industry is definitely in a slowdown” and that he believed “this slowdown is not a short term event, rather this is something that could take up to 2 years to work through.” He said that “2007 and 2008 could be significantly weaker than previously anticipated” and that lower sales and lower margins were expected to continue “for the foreseeable future.” Ex. 2022 at 2.

At TOUSA’s June 2006 board meeting, Mon told the Board that TOUSA’s third quarter results would likely show a significant decrease from the prior year. He reported that the Phoenix region had experienced a decrease in orders, in traffic, and in gross margins, and he expected to see significant decreases in backlogs and increased cancellations. The market in the Florida region had “dramatically decreased.” Two other homebuilders, Len-nar and Horton, had decided to “sell at any price,” and the market was now a “buyer’s market.” Ex. 2023 at 2-3.

At TOUSA’s October 2006 board meeting, Mon discussed with the Board “the difficult market conditions existing in a majority of the markets in which the Company operates, focusing particularly on the Florida market.” He reported “concerns about operating results for the balance of 2006 and 2007.” Ex. 2029 at 1-2.

At the November 17, 2006 board meeting, the TOUSA Board was given a “detailed report” on the Florida region, including a review of each distinct Florida market. The Board was told that “the market continues to decline;” that resale inventories remained “at an all time high;” that “spec units have flooded the market;” that “traffic is down 28% over last year;” and that the traffic the company was seeing was “less qualified.” Ex. 2035 at 2.

In January 2007, John Kraynick, Executive Vice President for the Florida region of TOUSA Homes, Inc., sent Mon an email attaching a Credit Suisse First Boston research report on the Florida housing market, which predicted “a long road toward recovery in Florida.” The CSFB report described “major headwinds to the Florida housing market” that “will continue to present significant challenges.” Ex. 2046 at 1-3. At the February 16, 2007 board meeting, Mon “pointed to the challenges of the housing industry across almost all of the markets in which the Company is currently operating” and “expressed his belief

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that the markets were likely to remain difficult for the balance of 2007. He noted that the total supply of homes on the market ... was at a 40 year high as of the end of 2006.” This fact, combined with a loss of affordability, “has resulted in a conclusion that the recovery is likely not to be rapid.” Ex. 2052 at 3.

On February 19, 2007, Kraynick sent an email to David Cobb, the president of the Orlando division, urging that “we must figure out a way to make sales.... I feel that we reached the point for radical solutions.” Cobb responded that the southwest Florida market “has yet to hit bottom and from what I’ve seen so far this season we are nowhere near it. This market is going to take years to recover.” Ex. 2054 at 1-2.

In a March 2007 “Special Comment,” Moody’s stated that its outlook on the homebuilding industry, which had been “cautiously negative” in the summer of 2006, was “more assertively negative” from the fall of 2006 to the present. It noted that TOUSA’s rating had been downgraded twice, to B2, and predicted that if the 2007 market “turn[s] into a rout ... the pace of negative rating actions would accelerate.” Ex. 2057 at 2. A Credit Suisse report issued on March 12, 2007 forecasted a 20% drop in new home sales in 2007 and a decline of 35%-45% in housing starts through 2007 and into 2008. A press report on the same date, circulated among Citi’s TOUSA team, noted that issues affecting subprime mortgage lenders weakened TOUSA’s bonds, which dropped as much as 3 points during the trading day. Also on March 12, Business Week published an interview with Yale’s Robert Shiller, who predicted that home prices would decline 10-30 percent over the next five years, and further stated that homebuild-ers had been disguising falling prices by including incentives at no cost to the buyer.

Other industry experts also noted the serious downward trends in the home-building sector. Two leading monthly real estate newsletters, U.S. Building Market Intelligence (USBMI) and the Key Indicator Alert (KIA), each rated the New Home Sales market as a D+ in Spring 2007, highlighting the significant drops in new home sales, dangerously high inventories, and continued poor affordability.

Mon acknowledged that as of April 15, 2007, “[deliveries, margins, foreclosures, short sales .... [cancellations, everything was getting negative.” “It was very obvious everywhere.” Mon Tr. 134:21-135:4. “One has to look far back to 1989-1992 to find anything even remotely similar to what we are now experiencing.” Ex. 243. On April 25, 2007, Mon wrote an email acknowledging that the markets were going down faster than the company had expected. The email noted that the chief economist of the National Association of Home Builders was now predicting that the market would not recover until 2011; that existing home sales were much lower than expected and had experienced the largest drop in 18 years; and that consumer confidence fell to its lowest level in 8 months.

Investors recognized that TOUSA faced increasingly long odds. TOUSA’s stock price fell from a high of $23 during 2006 to below $4 by April 2007. Its bonds traded at discounts of 30% and 40% to face value in May 2007. One securities analyst wrote in April that for TOUSA, “things just seem to go from bad to worse”. Ex. 2078 (capitalization altered). When TOUSA’s corporate credit rating was lowered after the proposed July 31 Transaction was presented to ratings agencies, one of Citi’s lead bankers on the deal, Svetoslav Nikov, declared, “The ship is sinking.” See Nikov

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Dep. 77:11-78:22; 79:3-11; 81:4-20; Ex. 336. In an email in March, after examining financial models for TOUSA, Nikov wrote, “I don’t think the downside model should be shown to anyone outside of here. It’s too scary.” Nikov Dep. 60:21-61:3; Ex. 334.

But even as market conditions and TOUSA’s own financial condition deteriorated in the first quarter of 2007, TOUSA continued to prepare to take on the $500 million in new secured debt.

TOUSA’s management realized that the company was already dangerously over-leveraged and in need of an infusion of capital. On February 16, 2007, David Kaplan, one of Mon’s senior financial ad-visors, sent an email to Mon and Wagman, with the heading “VERY IMPORTANT.” The email noted that “there are all kinds of costs/liabilities, old and new, coming at us from Transeastern. And there are impairments and cash flow issues — of which I am not informed — arising in Colorado and in the mid-Atlantic region.” Kaplan stated, “Cash will be everything is [sic] 2007 and 2008.” “I would recommend, strongly, that you prepare the owners for the possible/likely need for an equity infusion— perhaps $150 [million], perhaps more.” Ex. 2053 at 1. Kaplan sent another email to Mon and Wagman on February 18, 2007, urging a focus on “TOUSA’s first, highest, and, to me, almost its only priority — the need to keep all of the cash it gets when it sells homes, reinvesting only in what beings [sic] in more cash, fast. So that we have water as we traverse the 2007 Valley of (Possible) Death.” Ex. 2055 at 4.

Lehman Brothers prepared a bankruptcy waterfall analysis for TOUSA in February 2007, and Kaplan suggested in early 2007 that the company needed a Chief Restructuring Officer. Two versions of a memorandum introducing Larry Young, an advisor to TOUSA from AlixPartners LLP (“Alix”), as Chief Restructuring Officer were drafted. On April 15, 2007, Young wrote to Wagman, “[W]hy rush to restructure in a down market with a bad set of terms just to file in 3 months. If we need to file due to the lenders/shareholder issues, then lets do it now and save ourselves about $50 million in transaction cost!” Ex. 246; Wagman Tr. 457:20-24. Wagman agreed. Wagman Tr. 458:15-17.

Mon recognized that the increased debt resulting from the settlement could severely constrain the company. As notes on a draft Board presentation stated, “we must build in the capacity in this model so that when the market does turn, we have access to capital to build/sell product. If we can’t do this, we are toast.” Ex. 419 at 3.

However, TOUSA’s management was faced with ownership (the Stengos family in Greece, often referred to as “The Greeks,” which owned about two-thirds of TOUSA’s issued and outstanding shares) that opposed dilution of its controlling position. On February 21, 2007, Mon wrote to Mark Shapiro at Lehman Bros, concerning a presentation Shapiro had made to TOUSA about financing a Transeastern settlement: “The [G]reeks got a little spooked by the increasing dilution in the slide presented at the meeting.” Ex. 2433.

On March 1, 2007, Mon sent an email to the Stengos family, asking their opinions on a draft memo for the Board. The draft memo noted the “likelihood that any Tran-seastern solution will make us overlever-aged in the short term” and “[t]he potential that the current housing recession lasts longer or becomes deeper than previously anticipated.” The draft memo proposed that, after the Transeastern settlement, TOUSA “re-balance its capital structure within the 45% to 55% debt to cap range as quickly as possible.” Kon-

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stantinos Stengos

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directed Mon not to send the memo to Board members.

Later, recognizing the company’s desperate need for an infusion of equity, Mon spoke with several potential investors. But he was “working under some real limitations because of the controlling shareholder views” that opposed any dilution in their ownership of the company. Mon Tr. 140:11-22; Ex. 243. The majority owners directed Mon to terminate discussions with potential investors until the Transeastern settlement and new financing closed. Wagman also recognized the company’s precarious financial condition and pushed to reduce the debt to be incurred in the Transeastern Settlement, “[m]uch to the disappointment of the Sten-gos family.” Wagman Tr. 466:2-21; Ex. 2114. Wagman believed that the Stengos family’s opposition to diluting their equity interest prevented the company from maintaining necessary flexibility. Wag-man Tr. 456:7-16. Paul Berkowitz, TOU-SA’s Chief of Staff and its former outside counsel, agreed that the controlling Greek shareholders “were very interested in maintaining their equity position” and that the company was laboring under constraints because of the Greeks’ desire to maintain control. Berkowitz Tr. 1829:17-23.

The Stengos family’s resistance to equity dilution forced TOUSA to take on excessive debt — a point management made clear to the owners.

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On April 26, 2007, Mon sent Sam Bakhshandehpour, a financial ad-visor to the Stengos family, a PowerPoint presentation that included slides on the prospective Transeastern settlement and Citi financing. The slides noted that the settlement would over-leverage TOUSA, which would have a 70/30 debt to equity ratio post-settlement; that post-settlement TOUSA would have limited access to capital markets, joint venture partners, or land bankers to grow its business; and that there were significant risks to TOUSA’s ability to de-leverage, among which were further deterioration in the housing market, falling land and home values, and further weakening in credit markets.

TOUSA’s prospects continued to decline precipitously in the second quarter of 2007. A Kaplan email to Mon on May 1, 2007 noted that margins, cash flows, earnings, and asset values were all very low, and would stay low for an unknown period of time; that appraisals would be low, so financing will be expensive and at low loan-to-cost ratios; and that a step down in the market was certainly possible. Kaplan concluded that “although we can agree to pay Creditors in full and with interest if payments are postponed, we cannot afford to pay them cash up front;” ... “Today, what is possible is not what looked possible a few months ago. And everyone knows this.” Ex. 497; Mon Tr. 177:3-178:4; 180:22-25.

In a May 25, 2007 email to himself, Wagman stated that TOUSA

“will

fail” to satisfy covenants in its bond indentures “into late 2008 or 2009. Not even close.” Ex. 2113 at 1-2 (emphasis added). He noted the view of the rating agencies that the homebuilding industry was “grim and getting grimmer,” with downward pressure on prices and margins. He wrote,

As CFO, and in light of all of this market uncertainty, I have absolutely no desire to fly this plane too close to the ground, achieve some from [sic] of consensual settlement today and crash with

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in the upcoming year. That would be a clusterfuck.

Id.

On May 29, 2007, Mon and other TOU-SA executives received a report that S & P had downgraded, from stable to negative, the bond ratings on major homebuilders Centex, D.R. Horton, and Pulte, all of which were close to violating financial covenants in their bond indentures. On June 6, 2007, Mon and others executives received a report that the National Association of Realtors was predicting that prices of new homes would fall 2.3 percent, and prices of existing homes would fall 1.3 percent. Mon forwarded the report to the Board, noting “FYI, this represents [ ] the first time in 40 years that the U.S. median home prices have declined.” Ex. 2416.

In a June 14, 2007 email to the Board, Mon stated that the company had not anticipated the degree to which problems in the subprime mortgage segments were spreading across the prime and ALT-A mortgage markets, leading to tighter underwriting of residential mortgage loan applications, mortgage lenders’ pulling commitments to homebuyers, and increased interest rates. These developments, Mon observed, “could have a cascading effect down the line.” Ex. 2125. Mon summed up for the Board: “[Tjhis housing correction is far from over.” Ex. 2125.

In June, two Bear Stearns hedge funds that were heavily invested in the subprime mortgage market collapsed, harming an already weak credit market further.

At the June 20, 2007 Board meeting, at which the Board approved the July 31 Transaction, Mon informed the Board that the U.S. housing market was at the lowest point since 1991. Lehman Bros, made a presentation to the Board that concluded that the Transeastern settlement, funded with the $500 million to be borrowed in the July 31 Transaction, was “the best alternative ... to maximize value for shareholders.” Ex. 187 at 27. Lehman’s waterfall analysis concluded that all equity would be wiped out in a TOUSA bankruptcy.

Id.

at 36 . Lehman expressly declined to opine whether the settlement was the best alternative for TOUSA’s creditors and expressly stated that it was not offering an opinion on the fairness of the settlement. A PowerPoint presentation to the Board described the economic reality facing the company. The “selling season and housing recovery [are] not what we hoped when we prepared the budget.” Ex. 2128 at 3. TOUSA was liquidating assets at the bottom of the market; pursuing a “[v]alue-destructive” strategy through the Tran-seastern settlement; had limited access to capital markets; had undertaken financing on a “very short leash;” and had “[l]ittle room for errors” because the company was “[f]ly[mg] low to the ground.” Ex. 423 at 29; Ex. 2128.

Just two days later, Mon sent Ba-khshandehpour, the Stengos family advis- or, a memo entitled “Strategic Alternatives.” In a bullet-point summary at the outset captioned “The TE settlement leaves TOUSA in a very difficult position,” Mon observed that, as a result of the Transeastern settlement, TOUSA would be “[o]ver-leveraged,” “[w]ithout access to the capital markets,” in the midst of a “serious housing correction,” at the “wrong time” to be “[f]orced to reduce assets,” “[i]n need of a significant equity infusion,” and “[ujnable to survive should housing conditions degrade further or the housing correction lengthen appreciably.” Ex. 496 at 2. Mon’s memorandum foresaw that a “[s]tay the [cjourse” strategy — even when coupled with the company’s de-leveraging plan — would, among other things, leave TOUSA unable to service its $1 billion of bond debt, at a “competitive disadvantage,” with “[c]apital [c]on-

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straints” that would allow “[bjarely enough ‘oxygen’ to survive,” with “[l]ittle room for error [and] increased risk of crashing and burning,” “[ljimited ability to re-invest in the business,” and “[a]lways on the brink of default.” The “[e]nd [r]e-sult” of the strategy, Mon acknowledged, would be “[ijncreased risk of failure and inability to withstand worsening business conditions.” A list of the pros and cons of the strategy identified only one “pro”— “[pjreserves the entity and the existing, but diluted, ownership structure” — but seven “cons,” the first of which was “[[liquidation or bankruptcy risk.” Ex. 496 at 2-4. Significantly, Mon reached these dire conclusions

before

the June 20 Board meeting; he exchanged a substantially identical version of the memo with Tommy McAden, then an executive vice president of TOUSA and President of the Tran-seastern Joint Venture, as early as June 17, 2007. A more complete and prescient prediction (that the effect of the Tran-seastern transaction would be to leave TOUSA with unreasonably small capital) would be hard to imagine. I note particularly that Mons’ predictions were made in mid-June 2007. As found below, both the general business conditions in which TOU-SA operated and its specific situation worsened significantly in the intervening six weeks leading up to the July 31st closing.

Mon did not send any version of his Strategic Alternatives analysis to Alix, nor did he share it with Wagman, his CFO, or with Citi, the administrative agent for the new financing. Berkowitz testified, “I would rather the memo not have been sent.” Berkowitz Tr. 1836:9-10. And when McAden saw this email from Mon, he wondered why the company was engaging in the July 31 Transaction at all.

On June 27, 2007, Mon advised the Board that in a June 26 investor call, Lennar, a national home builder based in Miami, reported a “very ugly quarter” with “more ugliness to come” as “housing markets ... continued to deteriorate.” Ex. 2132. Mon testified that “throughout the summer we continued to see a downward slope in the housing market.” Mon Tr. 225:17-226:10.

On July 9, 2007, Mon sent the Board copies of articles from Barron’s and the Wall Street Journal that Mon summarized as “un-relenting negative news on housing.” Barron’s foresaw that home sale volumes would decline another 20% to 25%. The Wall Street Journal reported that declining home prices would increase homebuilders’ impairments and decrease their book values “for the foreseeable future.” Stating the obvious, Mon told the Board that this “is news we could do without.” Ex. 2142.

By late July 2007, McAden described the Florida homebuilding market as having gone from the “hottest market” to being “at the bottom.” McAden Dep. 99:10-24. Even so, he believed that the worst was yet to come for Southwest Florida. On July 17, 2007, Hunter Blanken-baker, TOUSA’s head of investor relations, sent Mon and other TOUSA executives an email headed “Pulte — Not so good news,” attaching a report about Pulte Homes’ preliminary results for the second quarter. Blankenbaker wrote, “[mjost concerning was the $740-$770 million of land related charges[] that is about 11% (pre-tax) of their book and 100% of our book.” Ex. 2425.

TOUSA’s own performance continued to plummet. Its sales in the first quarter of 2007 plunged more than 16% from the comparable quarter the previous year, its backlog fell more than 20%, and its profit margin fell. The crash continued in the second quarter. On July 12, 2007, TOU-SA’s 8-K reported that deliveries and

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sales dropped 15%, profit margins tumbled, backlog fell 29% year over year, and the cancellation rate rose to 33%. TOU-SA’s internal financial reporting showed similar declines year over year.

Numerous analysts, ratings agencies and market participants recognized that TOUSA was deeply troubled. On May 16, Debtwire reported that TOUSA bondholders had warned that the company would be entering the “zone of insolvency” if it took on the new financing to settle with the Transeastern Lenders, and that “[s]ome holders of Technical Olympic’s secured debt, and a portion of other Transeastern mezz lenders, believe that the proposed settlement could force the company into an eventual bankruptcy.” Ex. 2107. In July 2007, ratings agencies Moody’s and Standard & Poor’s both downgraded their ratings of TOUSA bonds in contemplation of the July 31 Transaction, concluding that TOUSA was “not likely” to be able to meet its financial obligations. Ex. 2145; Ex. 2146; Ex. 2332. By the time of the July 31 Transaction, TOUSA’s unsecured bonds were selling at a dramatic discount, some as low as $0.45 on the dollar.

2. Prior to the July 31 transaction, Citi harbored significant doubts about TOUSA’s solvency, but — motivated by the prospect of substantial fee income — pressed forward nonetheless

Citi saw the proposed new financing as a highly attractive opportunity for fees. In a March 23, 2007 email, Citi employees discussed their strategy of structuring the deal so that, even in a worst-case scenario, Citi would lose less than its fees. Citi ultimately collected approximately $15 million in fees for the transaction, including funds paid to its advisors by TOUSA. Citi was keenly aware of its ultimate goal. In early March 2007, when TOUSA requested an amendment of the Revolver to relax the interest coverage ratio and avoid a going concern opinion from its auditors, Citi assented to modifying the covenants because “[a] going concern [opinion] would not be particularly helpful in putting in place the $1.2B financing we’re working on, as you know, and for which we are slated to earn roughly $8mm in fees.” Ex. 2062.

Citi was also well aware of the negative effect its financing would have on TOU-SA’s bondholders. In a February 8, 2007 email chain among Citi bankers, one noted that TOUSA’s bonds “will get a whole lot less attractive when our deal is announced.” Ex. 338.

Members of Citi’s real estate risk group raised doubts about whether Citi should enter into the July 31 Transaction. In addition, Bank of the West, a member of the Revolver syndicate, informed Citi of its extreme displeasure at the notion that the Revolver lenders would become

pari passu

with $200 million of new secured debt, and that TOUSA was borrowing hundreds of millions of dollars to repay an unsecured debt to settle a lawsuit that would result, at worst, in an unsecured judgment.

Prior to the July 31 Transaction, Citi had reclassified TOUSA’s loans to “2” — a “defined problem.” David Mode, one of the Citi bankers on the deal, recognized that in April-July of 2007, “there was deterioration in the market and deliveries were down.” Mode Dep. 69:10-21. And Citi’s bankers on the July 31 Transaction reacted with shock when they learned, on July 12, 2007, that S & P had lowered TOUSA’s rating from B to CCC+ that day. Ex. 2146; Ex. 337. “That is whack,” said one. Ex. 337.

Citi nevertheless pressed on with the transaction. Its due diligence, however, failed to uncover the privately-held views of TOUSA’s senior management, which were considerably more pessimistic than

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TOUSA’s projections used to support the July 31 Transaction. For example, Citi never discovered the Strategic Alternatives memo in which Mon observed — -prior to the June 20th board meeting — that the July 31 Transaction would leave TOUSA “[o]ver-leveraged” and at risk of “crashing and burning” even if it could successfully execute its de-leveraging plan. Ex. 496 at 2-3.

3. The syndication process for the new loans reflected the dramatic deterioration in TOUSA’s business

Because of the plummeting housing sector and the market’s perceptions of TOU-SA’s credit risks, the syndication market for the new loans became “[m]ore challenging” in July, and the cost of the loans to TOUSA increased. Wagman Tr. 426:14-427:11. At least as early as July 24, lenders were dropping out of the deal. Nikov emailed colleagues at Citi that they were losing syndicate participants, and “[tjhings were looking ugly out there.” Ex. 349. Marni McManus, the Citi engagement leader, described leaving “panicky” messages about the deal as the market got worse. Ex. 350; Nikov Dep. 210:16-19; 211:6-10. In a July 24 email to Wagman, Devendorf, and Berkowitz, McManus urged TOUSA to resolve the remaining open items quickly, because “the [market] has completely dried up,” and “[t]he market is going from horrendous to worse.” Ex. 2153 at 1-2.

In the end, there was nearly a 50 percent attrition in prospective lenders for the First Lien Term Loan in the four days immediately before July 31, reducing the level of commitments by almost half. In order to keep a sufficient number of lenders in the deal — and avoid having to underwrite the rest of TOUSA’s debt — Citi had to provide significant pricing incentives, thus raising TOUSA’s borrowing costs.

The final group of lenders included some firms that were lenders on the Transeast-ern debt that the new loans paid off. These former Transeastern lenders were able to leverage themselves from an unsecured loan to the Transeastern Joint Venture into secured loans to TOUSA and all of the Conveying Subsidiaries. Compare Ex. A to CIT stipulation, Adv. Pro. DE 383 (list of Senior Transeastern Lenders receiving payments) with Ex. 3359 (list of lenders to First Lien Term Loan and the Second Lien Term Loan at initial syndication).

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The Citi bankers on the deal should not have been surprised by these market challenges had they been paying attention. In that connection, I note that the lead Citi banker, Marni McManus, testified that it was not until Sunday, August 5, 2007 — as a result of a call at her beach house from a Citi colleague — that she first came to believe that the housing market downturn would be particularly severe. In that call, a Citi trader advised her that American Home Mortgage, a prominent mortgage lender, would soon be filing for bankruptcy. But publicly available information showed that American Home Mortgage’s problems began well before July 31, 2007. In late June, American Home Mortgage had already withdrawn its earnings guidance for the second quarter, causing a twelve percent drop in its stock price on that day alone. American Home Mortgage announced on July 27 that it would face significant margin calls, and trading of its stock was suspended on July 30. At

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the same time, Countrywide Financial, another large mortgage lender, announced that defaults on its mortgages — including those to prime borrowers — were rising quickly. American Home Mortgage’s stock price fell from $21.43 per share on June 27, 2007, to $1.04 per share on July 31. And, in fact, in American Home Mortgage’s first day bankruptcy filings, filed on August 6, 2007, its CEO noted that the issues that led to American Home Mortgage’s bankruptcy had developed for several weeks prior to its filing. These issues had affected American Home Mortgage, Countrywide Financial, and other mortgage lenders for a significant time prior to July 31, 2007. From this, I conclude that, if the news of American Home Mortgage’s problems as of August 5 did affect Mc-Manus’s views of the housing market, it was not because of a sudden change in market conditions, but rather because, as McManus conceded, she simply did not follow American Home Mortgage and other mortgage lenders in her normal course of business. How it is possible that the lead Citi lender to TOUSA did not consider knowledge of the residential mortgage industry to be important for any analysis of homebuilder prospects is inexplicable and, in any event, was never explained at trial.

Ultimately, the key Citi employees who shepherded the July 31 Transaction through its closing had more than sufficient knowledge to understand TOUSA’s precarious situation. As McManus stated: “I didn’t remember exactly what caused the whole house of cards to start coming down.” McManus Tr. 3791:7-9.

4. TOUSA’s CEO and top advisors had outsized personal incentives to consummate the transaction

TOUSA’s CEO had a strong personal incentive to ensure that the July 31 Transaction was consummated. As TOUSA reported in its July 24, 2007 Report on Form 8-K, half of Mon’s 2007 target incentive bonus of $4.5 million was ■ contingent on, among other things, the successful completion of the July 31 Transaction.

Mon also brought in third party advisors whose compensation was contingent on providing opinions that facilitated the closing. Under Lehman Bros.’s original fee arrangement, $3.5 million of Lehman’s compensation was contingent on completion of the Transeastern settlement. Later, when it became clear that Lehman would not be participating in the financing of that settlement, the fee arrangement was modified to add a $2.9 million financing advisory fee, which was also contingent on completion of the settlement.

Likewise, as I set out at greater length in Section IV below, AlixPartners, too, was retained to provide a solvency opinion pursuant to a contingent fee arrangement. TOUSA agreed to pay Alix $2 million if Alix opined that TOUSA was solvent. If Alix failed to offer an opinion of solvency, TOUSA would pay only Alix’s time charges and reimburse its costs. These time-based fees and costs were less than half of the $2 million incentive fee paid to Alix.

B. Contemporaneous evidence demonstrates that the Conveying Subsidiaries were left with unreasonably small capital

On June 22, 2007, Mon wrote that the Transeastern settlement would leave TOU-SA “in a very difficult position.” The company would be “[o]ver-leveraged,” “[without access to the capital markets,” “[i]n need of a significant equity infusion,” and “[u]nable to survive should housing conditions degrade further or the housing correction lengthen appreciably.” Among the listed problems were an “unsustainable

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and dangerous” level of debt and “major operational constraints.” A “[s]tay the [c]ourse” strategy — even when coupled with TOUSA’s de-leveraging plan — would, among other things, leave the company “[bjarely enough ‘oxygen’ to survive,” “[ljittle room for error; increased risk of crashing and burning,” “[ljimited ability to re-invest in the business,” and “[ajlways on the brink of default.” The end result of the strategy would be “[ijncreased risk of failure and inability to withstand worsening business conditions.” A list of the pros and cons of the strategy identified only one “pro” — “[preserves the entity and the existing, but diluted, ownership structure.” It identified seven “cons,” the first of which was “[liquidation or bankruptcy risk.” Ex. 496 at 2-6.

Mon believed that the covenants proposed by Citi “will surely limit our ability to grow the business in the future.” But he concluded that “we do not have a lot of choice in this.” Ex. 2439.

Mon also recognized that the increased debt resulting from the settlement could severely constrain the company. As notes on a draft Board presentation stated, “[W]e must build in the capacity in this model so that when market does turn, we have access to capital to build/sell product. If we can’t do this, we are toast.” Ex. 419 at 3. Mon was right, and TOUSA was toast.

On March 1, 2007, Mon emailed Kon-stantinos Stengos, Andreas Stengos, George Stengos, and Marianna Stengos to request their opinions on a draft memo for the Board. The draft memo noted the “likelihood that any Transeastern solution will make us overleveraged in the short term” and “[t]he potential that the current housing recession lasts longer or becomes deeper than previously anticipated.” The draft memo proposed that TOUSA “re-balance its capital structure within the 45% to 55% debt to cap range as quickly as possible.” Ex. 2059.

All of this is consistent with the story told by the contemporaneous, objective indicators of capital adequacy: In the wake of the July 31 Transaction, TOUSA and its subsidiaries were saddled with a debt to total capitalization ratio of 71.3% — much higher than the ratios of comparable homebuilders. See Section III.B.2, below. As TOUSA documented at the time, the transaction “[limited [TOUSA’s] ability to re-invest in the business,” saddled it with an “[inability to enter into new joint ventures,” and imposed “[t]ight control on land acquisitions.” As a result, TOUSA recognized it would be “[ujnable to participate in [an] eventual upturn” in the real estate market. Ex. 496 at 2-3.

Because the parent company was left with unreasonably small capital to operate its business, the Conveying Subsidiaries also were left with unreasonably small capital. What is more, because of the Conveying Subsidiaries’ grants of liens to First and Second Lien Term Lenders, they were left with no unencumbered assets with which to procure capital independent of TOUSA.

C. Contemporaneous evidence demonstrates that the Conveying Subsidiaries were unable to pay their debts as they came due

As early as March 2007, TOUSA was told by its auditors that it could receive a going concern opinion because of its inability to satisfy the covenants on its revolver loan. To avoid that opinion, Citi agreed to modify the covenants.

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In a May 26, 2007 e-mail, Wagman stated that he had “pushed damn hard for no debt in the settlement.” Having been unsuccessful in that effort, he observed that under even a moderate downside scenario, TOUSA would violate its bond covenants in 2008 and 2009. And “in light of all [the] market uncertainty” — including “downward pressure on prices” and “a ton of pressure” on margins — he worried that such a downside scenario would indeed come to pass. In the colorful language quoted above, Wagman expressed the view that the payoff of the Transeastern debt would leave TOUSA flying too close to the ground, with a likelihood of crashing within the next year. The crash actually came in less than six months.

Kaplan warned Mon that the company “cannot incur a great deal of debt or accept covenants whose terms and conditions might not be met by our uncertain, projected earnings where the risk is all on the downside.” Realizing that this was precisely what the company intended to do to finance the Transeastern settlement, he specifically advised Mon that “we cannot afford to borrow to pay [the Transeastern creditors] cash up front.” Ex. 497 at 2-3.

The bond market reached the same conclusion about TOUSA’s creditworthiness. TOUSA’s bonds were trading at a severe discount to face value at the time of the July 31 Transaction, selling for prices as low as 48 cents on the dollar. Those discounts revealed the market’s perception of TOUSA’s financial distress: TOUSA’s bonds carried very low credit ratings, and particularly noted its senior subordinated debt was “likely in, or very near, default” as of July 2007. Ex. 2145; Ex. 2146; Ex. 2332.

None of these post-July 31 Transaction developments should have been the least bit surprising to TOUSA. In a letter to the TOUSA Board prior to the July 31 Transaction, counsel for one of the bondholders urged TOUSA not to go forward with the ill-advised new loans:

Cap Re also suspects that substantial additional asset impairment write downs are imminent and will be announced soon after the Refinancing is complete. The Company’s asset write downs to date have been substantially lower than those taken at the Transeastern JV — a comparable business — and less than one would expect in light of the Company’s drastically declining orders and other deteriorating business metrics. Most disturbingly, the terms of the Company’s new debt and preferred stock suggest a company which is unable to pay its debts as they come due. The Company had to dramatically increase pricing at the senior secured credit facility at the last minute to consummate the Refinancing.... In sum, the Company cannot service its debt and has chosen to mortgage its future....

Ex. 2158 at 3.

D. TOUSA was insolvent both before and after the Transaction

Immediately after completion of the July 31 Transaction, TOUSA’s financial condition quickly became even more attenuated. By August 8, Wagman found that the TOUSA financing model was wrong, putting the company at risk of covenant violations. By the end of September, Wagman decided that he could not issue a solvency representation, as required by the credit agreement, and that TOUSA was already in violation of several covenants under the new credit agreement.

On October 25, 2007, TOUSA and Citi amended the Amended Revolver Agree

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ment and the First Lien Loan Term Credit Agreement, waiving the requirement that TOUSA provide a solvency representation to borrow under the Revolver.

Representatives from an ad hoc committee of bondholders urged the company to file for bankruptcy in October to preserve a potential preference claim involving the Term Loans.

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The effort culminated in a letter to TOUSA’s Board on October 26, 2007 and a presentation to the Board days later.

In its Form 10-Q for the period ending September 30, 2007, filed on November 14, 2007, TOUSA reported inventory impairments and abandonment costs of more than $500 million for the third quarter, a net year-to-date loss for 2007 of $817 million, and that “there was substantial doubt about our ability to continue as a going concern.” Ex. 3281.

On December 14, 2007, TOUSA and Citi amended the Amended Revolver Agreement and the First Lien Term Credit Agreement to further extend the waivers contained in the October 25 amendments.

On January 2 and January 15, 2008, TOUSA filed 8-Ks disclosing that it had failed to make required semi-annual interest payments due on its bonds. On January 28, 2008, TOUSA and most of its subsidiaries — including all of the Conveying Subsidiaries — filed petitions for relief under the Bankruptcy Code.

III. THE EXPERT TESTIMONY SUGGESTS THAT EACH OF THE CONVEYING SUBSIDIARIES WAS INSOLVENT BOTH BEFORE AND AFTER THE JULY 31 TRANSACTION

A. The Conveying Subsidiaries were insolvent before the Transaction

1. The fair value of the Conveying Subsidiaries’ liabilities exceeded the fair value of their assets before the Transaction

The Committee sought to prove the insolvency of the Conveying Subsidiaries just before the July 31, 2007 transaction through the testimony of Kevin P. Clancy. Clancy is qualified in the fields of financial restructuring and accounting services. He is a partner in the business investigation services group at the national accounting and consulting firm of J.H. Cohn, LLP, and has extensive experience providing advice and litigation-related services in the bankruptcy context, including expert testimony. He is a Certified Public Accountant, a Certified Insolvency and Restructuring Advisor, and a member of the American Bankruptcy Institute. He has been involved with the TOUSA bankruptcy case since March 2008 and has had numerous interactions with TOUSA personnel and TOUSA’s accounting systems.

Clancy presented adjusted balance sheets reflecting the net worth, on a fair value basis, of the three most significant TOUSA entities — the parent company, TOUSA, Inc., and the two Conveying Sub

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sidiaries that held nearly all of the consolidated enterprise’s assets, TOUSA Homes, Inc. and Newmark Homes, L.P. — -just before the transaction on July 31, 2007. His starting point for these balance sheets was a trial balance, compiled by the Debtors using the same data they used to operate their business, containing accounting data for the various TOUSA legal entities as of July 31.

Clancy adjusted various line items on the trial balance, both up and down, to reflect the fair value of the relevant entities’ assets and liabilities. His most significant adjustments were as follows: First, he adjusted the book value of the TOUSA entities’ homebuilding inventory assets to reflect the fair market value of those assets as provided by the Committee’s real estate expert, Charles Hewlett. Second, because he analyzed each entity individually — and ultimately determined each entity individually to be insolvent and therefore without value as an investment — he eliminated certain line items that reflected one entity’s ownership of another. The Defendants’ expert Stryker performed the same adjustment. Third, because the parent and the Conveying Subsidiaries each were obligated on TOU-SA’s bond and revolver debt, he allocated the liability for those debts among the various entities according to the amount of the burden they would be expected to shoulder. Because the bond indentures expressly provide a right of contribution in proportion to various entities’ relative net worth, Clancy allocated the bond liability in proportion to net worth; because the revolver debt was secured by various entities’ assets, he allocated the revolver liability in proportion to asset value. These allocations were rational and reasonable, and were substantially identical to Stryker’s allocation for revolver debt. Fourth, he eliminated line items relating to written intercompany notes that formalized certain financial obligations from one Conveying Subsidiary to another, because including these notes would serve only to shift assets (and a proportionate share of the shared liabilities just described) among various Conveying Subsidiaries without having any bottom-line effect on the Conveying Subsidiaries’ solvency. I found Clancy to be credible and his methodology reasonable and rational.

Clancy’s adjusted pre-transaction balance sheets for TOUSA Inc., TOUSA Homes, Inc., and Newmark Homes L.P. are shown below:

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[[Image here]]

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Ex. 2411.

These adjusted balance sheets demonstrate that each of the TOUSA entities Clancy analyzed was insolvent prior to the transaction: TOUSA, Inc.’s liabilities exceeded the fair value of its assets by $360 million; TOUSA Homes, Inc.’s liabilities exceeded the fair value of its assets by $122 million; and Newmark Homes L.P.’s liabilities exceeded the fair value of its assets by $58 million. Clancy’s methodology and conclusions are credible and reliable. Indeed, they are substantially supported by the testimony of John Salomon, an accountant designated as an expert witness by the Senior Transeastern Lenders but ultimately not called at trial. Salomon testified at his deposition that, if Hewlett’s valuation of the real-estate assets is correct, he has no disagreement with Clancy’s insolvency conclusions.

Defendants did not mount substantial objections to most of Clancy’s analysis; their experts trained their most significant criticisms on his treatment of certain “in-tercompany balances” (amounts owing from one TOUSA entity to another, which are distinct from the “intercompany notes” discussed above) and his write-down of inventory assets based on the input of Hewlett. Neither criticism undermines Clancy’s methodology or conclusions.

2. Clancy’s treatment of intercompa-ny balances as equity was credible and reliable

Defendants objected to Clancy’s treatment of TOUSA’s so-called “intercompany balances.” When one TOUSA entity had given money to another, Clancy treated that amount as an equity investment, and he therefore did not include it as an asset or a liability on either entity’s adjusted balance sheet. Clancy therefore did not include in his adjusted balance sheets a

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negative $798 million net intercompany balance for TOUSA Homes, Inc. and a negative $174 million net intercompany balance for Newmark Homes L.P., which reflected that those companies had received substantially more from other TOUSA entities than those entities had received from them. According to Defendants’ expert William Lenhart, however, this was a mistake and the intercompany balances should have been listed on the balance sheet as assets or (in the cases of TOUSA Homes, Inc. and Newmark Homes L.P.) liabilities.

Clancy presented credible and reliable reasons for treating these balances as equity. He testified that TOUSA had never itself classified these balances as assets or liabilities; that the trial balance recorded them as equity; and that TOUSA had also consistently treated them as equity in the relevant sections of its SEC filings. In any event, the dispute about intercompany balances has no impact on Clancy’s insolvency conclusions. Because both of the relevant Conveying Subsidiaries — TOUSA, Homes, Inc. and Newmark Homes, L.P.— had received substantially more money from other TOUSA entities than they had provided, a balance sheet that included their intercompany balances as liabilities would have shown them to be even more deeply insolvent than Clancy’s balance sheets reflect.

3. Hewlett’s fair-value adjustments to TOUSA’s homebuilding inventory were credible and reliable

Committee expert Charles Hewlett performed an analysis of the fair value of the homebuilding inventory assets owned by TOUSA and its significant Conveying Subsidiaries as of July 31, 2007. Hewlett provided his valuation conclusions to Clancy. The values provided by Hewlett are reliable, but his decision not to ascribe value to certain assets (including one asset sold post-Transaction for a substantial price) rendered his aggregate conclusions subject to vigorous challenge at trial.

Hewlett is a Managing Director with RCLCO, a reputable real estate advisory firm, and has more than 25 years of experience in the real estate industry. He is a frequent speaker, moderator and panelist at various real estate industry events, and a guest lecturer and faculty member at various graduate business and real estate school programs. During his career, Hewlett has provided valuation services, market analyses, and feasibility studies to various clients, including large residential homebuilders and developers, on hundreds of occasions.

As discussed in more detail below, Hewlett’s methodology was, for the most part, the application of a discounted cash flow analysis to the various residential communities. This methodology is fundamentally appropriate as a means of assessing what a purchaser of any of the communities would pay, analyzed

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by subtracting development and carrying costs from prospective net sale prices. The methodology invites attack when the cost to complete exceeds prospective revenues: in those cases, Hewlett ascribed zero value to the project (a proper conclusion when examining discounted cash flow) but ascribed nothing to “option value,” or what a purchaser would pay to buy and hold the land for future development.

Hewlett concluded that, as of July 31, 2007, (a) homebuilding inventory assets owned by TOUSA Homes, Inc., had a fair

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value of approximately $771.5 million; (b) homebuilding inventory assets owned by Newmark Homes, L.P., had a fair value of approximately $303.2 million; (c) home-building inventory assets owned by TOU-SA Homes Florida, L.P., after the July 31 Transaction had a fair value of approximately $28.2 million; (d) homebuilding inventory assets owned by a joint venture (owned by TOUSA Homes, Inc.) known as Engle/Sunbelt, LLC, had a fair value of approximately $14.4 million; and (e) home-building inventory assets owned by TOU-SA Mid-Atlantic Investment, LLC, had a fair value of approximately $8 million. Hewlett’s analysis demonstrated that the fair value of Newmark Homes, L.P.’s hom-ebuilding assets was greater than then-book value on July 31, 2007, while the fan-value of the homebuilding assets held by the other four legal entities listed above was substantially less than their respective book values.

Hewlett’s valuation was based on a detailed, community-level analysis of the real estate assets held by TOUSA and the Conveying Subsidiaries as of July 31, 2007. He used a “bottoms-up approach, looking at a life of project analysis for each individual community and rolling up those individual community-level analyses into divisions and then legal entities.” Hewlett Tr. 598:2-6. That approach was a reliable way to value the real estate assets held by TOUSA and the Conveying Subsidiaries, including the undeveloped land parcels (discussed in more detail in section III. A.3.d, below). In conducting his valuation, Hewlett considered the collection of assets within a given community, and determined how the composition of those assets

(ie.,

unsold complete homes, unsold under construction, finished lots, etc.) would affect when they would be sold to individual hom-ebuyers.

Hewlett determined the fair market value of the homebuilding assets as of July 31, 2007, by assessing the price that a hypothetical willing buyer would have paid a hypothetical willing seller for the assets on or about that date, assuming no undue pressure on either party, and with a reasonable period of time to consummate a transaction. The valuation standard used by Hewlett was consistent with a going concern value, not a liquidation value.

Based upon the portfolio of real estate assets at issue, Hewlett concluded that, under the circumstances, the most likely hypothetical willing buyer would be another developer or homebuilder that would purchase communities or groups of assets from TOUSA or the Conveying Subsidiaries. That conclusion is reasonable given the nature of TOUSA’s business, the volume of real estate assets TOUSA and the Conveying Subsidiaries owned as of July 31, 2007, and the fact that many of the properties were in a largely undeveloped or semi-developed state.

Hewlett’s valuation conclusions are well-supported; they are the product of a careful and systematic approach to each community analyzed. As Hewlett explained, his analysis consisted of six steps.

First, for each community, Hewlett determined the market-driven average sales price (“ASP”) and sales pace (ie., the rate at which homes would sell) as of July 31, 2007, using TOUSA’s own historical data, as well as data from comparable non-TOU-SA communities and market data. For communities that had historical sales information, Hewlett considered the sales and closing figures for (i) four months, (ii) year-to-date, and (iii) 12 months, immediately before July 31, 2007. Using that information, Hewlett analyzed trends relating to sales, pricing, cancellation rates, gross margins, and the various components of ASPs. He also collected and ana

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lyzed sales data for other TOUSA and non-TOUSA comparables in each market, particularly in instances where the TOU-SA community itself had no historical sales.

Second, based on numerous sources of information available on July 31, 2007, Hewlett forecasted future ASPs and sales pace. To do that, he undertook a comprehensive examination of the housing market, based upon contemporaneous industry data, reports by industry experts and economists, news articles, financial reports of other builders, metropolitan area forecasts, and TOUSA’s own results and internal documents. Hewlett also analyzed housing affordability, as well as the relationship between for-sale and rental housing costs as of July 31, 2007. Hewlett’s analysis of the housing market as of July 31, 2007 and his conclusions regarding future ASPs and sales pace are discussed in more detail in section III.A.3.a, below.

Third, Hewlett performed community-level discounted cash flow (“DCF”) analy-ses. He projected revenues from the sale of finished homes in each community over the life of the project, and subtracted from those projected revenues the costs associated with holding the land, building and developing the lots, and marketing and selling the finished homes. This process involved calculating the revenues based on the project-level ASPs and sales pace, and subtracting the labor, material and other construction costs as well as the costs associated with marketing, sales and closings, such as commissions, advertising, and real estate taxes. The various cost inputs used by Hewlett in his community-level DCFs are discussed in section III.A.3.b, below.

Fourth, Hewlett assessed the value, if any, of land option rights owned by TOU-SA and the Conveying Subsidiaries as of July 31, 2007. He concluded that the majority of the options — mostly those located in markets that had experienced declines — had no value. In those cases, Hewlett assumed — as did the Senior Tran-seastern Lenders’ real estate expert Michael Samuels — that the prudent business decision would have been for TOUSA to decline to exercise the options. In instances where the optioned lots had value, Hewlett added their value to the community.

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Fifth, after determining the revenue and cost inputs, Hewlett applied a set of discount rates to the computed future cash flows to derive each community’s net present value. Hewlett used discount rates that were tailored to the particular geographic market and the risks associated with different types of real estate assets. The discount rates were within the range used by market participants on July 31, 2007, and averaged 20% overall. Hewlett’s discount rates are discussed in greater detail in section III.A.3.C, below.

Sixth, Hewlett took his community-level, discounted cash flow results and aggregated them in their respective divisions and legal entities. In total, Hewlett performed community-level analyses for 298 communities, which represented 83% of the book value of the significant divisions. As to the remaining communities, Hewlett extrapolated from his findings for the 298 communities, taking into account the development stage, community size and other characteristics of the remaining communities. For purposes of his extrapolation, Hewlett categorized the remaining communities based on their similarities to the communities analyzed and assigned them a percentage of their book value that corre

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sponded to what he had found for analyzed communities in the same division.

Overall, I find that Hewlett’s valuation approach is reasonable and methodologically sound. The subsections that follow include additional detail regarding various components of Hewlett’s valuation analysis as well as an explanation of why the criticisms and alternative approaches offered by Defendants’ experts — primarily real estate experts Michael Cannon (for the First and Second Lien Lenders) and Michael Samuels (for the Senior Transeastern Lenders) — are less convincing. In particular, the subsections included below discuss (a) Hewlett’s forecasts of future ASPs and sales pace; (b) the cost projections he used; (c) his discount rate analysis; (d) his approach to undeveloped land; (e) his qualifications; and (f) his proposed valuation findings.

a. Hewlett’s forecasts of future ASPs and sales pace were reliable and based on a realistic and supported view of the likely trajectory of the housing market after July 31, 2007

The second step of Hewlett’s six-step analysis involved projecting future ASPs and sales pace for each community. Before making those projections, Hewlett conducted a review of information regarding the state of the housing market as of July 31, 2007, using only information that was available on or before that date. Based on his review, Hewlett concluded that the housing market downturn, which was already in full swing by July 31, 2007, was likely to continue and worsen in certain markets. Those conclusions are well supported by the weight of the evidence available as of July 31, 2007. Certain of the contrary conclusions offered by Defendants’ real estate were less credible.

(i) Hewlett made reasonable conclusions regarding future ASPs and sales pace based on a thorough and competent analysis of market information

Various indices and other housing data available by the spring of 2007 demonstrated a markedly downward trend, and by the second quarter of 2007, sentiment and press about the housing market had turned decidedly more negative. Even most economists who believed that the worst of the housing slump had passed by July 31, 2007 still predicted that future housing prices would decline and that the downturn would be prolonged. Predictions regarding the amount of future declines in home prices varied, with some commentators predicting national declines in the 20-30% range and others, such as Moody’s Economy.com, predicting declines of 5-7% through 2009.

Contemporaneous information from a variety of sources showed that the national housing market and many of the geographic markets where TOUSA’s assets were located were in a serious decline that appeared likely to continue. The following were among the indicators that Hewlett considered:

• U.S. Census Bureau data showed a precipitous decline in the volume of new home sales and the number of permits secured for new housing starts beginning in late 2005/early 2006 and continuing through July 31, 2007.

• Data from the well-regarded Standard & Poor’s/Case Shiller Index regarding home price changes in certain metropolitan areas showed that (a) existing home prices had been trending downward on average in twenty major metropolitan areas for ten months in a row prior to July 31, 2007, and (b) certain TOUSA markets that had experienced astronomical price inflation beginning in 2002

*809

were seeing price declines in 2006 and 2007.

• The NAHB/Wells Fargo Housing Market Index of Builder Confidence showed that (a) homebuilders’ confidence in the housing market began to drop precipitously in 2005 and (b) the downward trend continued in the months leading up to July 31, 2007, reflecting, among other things, builders’ awareness of the subprime mortgage crisis and their disappointment in the spring 2007 selling season.

• The Housing Opportunity Index of Housing Affordability published by the National Association of Home Builders (NAHB) and Wells Fargo showed a “dramatic decrease in the affordability of housing markets across the country.”

The contemporaneous third-party data upon which Hewlett relied

12

was consistent with Hewlett’s analysis of the affordability of for-sale housing, which demonstrated that housing prices were seriously out of equilibrium with income and rental rates. In addition, it was apparent that the downward trends in sales volume and home prices that were shown in the third-party data were affecting TOUSA as well by July 31, 2007. In most TOUSA markets, sales were down in 2007 compared to 2006, and prices were falling. TOUSA’s own internal documents also show that senior executives at the Company were increasingly pessimistic about housing sales and prices in the second half of 2007 and beyond.

After considering information from a variety of sources, Hewlett concluded that forecasts of home price changes at the metropolitan area level prepared in or about July 2007 by Moody’s Economy.com comported with his view of where home prices were likely to go after July 31, 2007. Overall, Moody’s predicted a relatively modest 5-7% decline in home prices between 2007 and 2009, although it predicted more dramatic price declines in certain geographic markets and price increases in others. According to Moody’s, home prices would increase by 2010 in the vast majority of metropolitan areas where TOUSA communities were located. The Moody’s forecasts that Hewlett relied on were available prior to July 31, 2007 and therefore were not influenced by events that occurred after that date.

Moody’s Economy.com is a reputable source of information regarding the housing market and its forecasts are based on the S & P/Case Shiller and OFHEO indi-ces. Price changes to these indices apply to new home sales as well as existing home sales, as those two types of home sales generally have tracked together.

13

*810

Hewlett’s views about the likely trajectory of the housing market informed his community-level sales pace (absorption) assumptions as well. In general, Hewlett assumed that TOUSA communities would be expected to continue to achieve the sales pace they had experienced in the four months leading up to July 31, 2007, until such time as a community’s sales prices began to increase (based on the Moody’s Economy.com metropolitan level forecasts). When a community’s sales prices were predicted to increase (indicating a recovery), Hewlett assumed that the sales pace would accelerate simultaneously. When it was available, Hewlett focused on the sales activity over the four months prior to July 31, 2007 because he determined that the activity during that period provided the best information for calculating the absorption rate of a community during the months ahead.

In determining the expected sales pace for each community, Hewlett considered the community’s own sales history to be the best source of information if an active sales history existed. As a supplement to that information, Hewlett examined information from other TOUSA and non-TOU-SA communities as comparables.

I find that Hewlett’s ASP and absorption forecasts were reasonable and reliable. In particular, I find that Hewlett’s reliance on the Moody’s forecasts to predict changes in future ASPs and absorption, as reflected in his community-level cash flow analyses, was reasonable.

(ii) The ASP and sales pace assumptions used by Cannon and Samu-els are unreliable and contrary to the weight of the evidence

Defendants’ experts, Cannon and Samu-els, criticized Hewlett’s reliance on the Moody’s forecasts and offered their own forecasts for future ASPs and absorption trends. As discussed below, their criticisms and forecasts are for the most part less reliable and credible.

(a) Cannon’s ASP and sales pace assumptions

As part of his valuation, Cannon fore-casted that ASPs would be flat — neither increasing nor decreasing — for six years and that absorption would decrease by 25% for two years and then return to its pre-downturn sales pace. There are a number of serious problems with Cannon’s assumptions.

First, he adopted his flat-ASPs-for-six-years rule for all communities throughout TOUSA, regardless of their location. But Cannon conceded that, like politics,

14

all real estate is local. National trends have limited utility in forecasting what will happen in specific submarkets and local communities. Historical experience has shown that different metropolitan areas recover from housing downturns at different rates depending on a host of factors relating to the local economy, supply and demand, and the degree of correction needed in that particular housing market. Hewlett’s analysis — in contrast to Cannon’s — accounts for expected differences in ASPs in different geographic markets in 2007, 2008, 2009 and thereafter. Using the Moody’s forecasts, Hewlett assumed price changes

*811

that were “very specific and very sensitive to the geographic market” instead of adopting a “one size fits all approach” like the one used by Defendants’ real estate experts.

Second, despite the abundance of evidence indicating that the relevant housing markets were in decline well before and leading up to July 31, 2007, Cannon fore-casted no further decline in ASPs. In light of the numerous indicators cited by Hewlett, all showing a declining housing market (see section III.A.3.a(i), above); contemporaneous TOUSA documents acknowledging that further deterioration was likely (see section II.A.1, above); as well as Cannon’s own admission that the housing market was declining as of July 31, 2007, it was unreasonable not to project a decrease in ASPs for some appreciable period of time after July 31, 2007.

Cannon’s explanations for his failure to project lower ASPs are not credible. As an initial matter, Cannon’s assertion that homebuilders were not lowering their actual prices (and were, instead, increasing option incentives) was contradicted by the public statements and statistics of other homebuilders and the data in Cannon’s own report.

15

In addition, Cannon’s assumption that ASPs would remain flat was predicated, at least in part, on his belief that ASPs have “nothing ... to do with market value.” Cannon Tr. 3160:1. That view is at odds with all of the other testimony in the case, including that of Defendants’ other real estate expert Samuels, who used ASPs in his analysis and could not understand Cannon’s assertion that ASPs are irrelevant to market value. In fact, TOUSA management, Hewlett, and Samuels all recognized that incentives offered to homebuyers by homebuilders must be factored into the sales price when looking at the value of the asset to a homebuilder. Thus, contrary to Cannon’s assertion, ASP — which includes incentives — is the proper metric to consider. In light of Cannon’s concession that home-builders were addressing the problems in the housing market by offering substantially greater incentives to generate sales, his failure to use ASPs appears to be a way to avoid lowering future sales prices in his valuation analysis. Although Cannon’s motivations in that regard are unclear, his methodology appears result-driven.

Third, Cannon provided little support for his assumption that, as of July 31, 2007, sales pace (absorption) should have been expected to be depressed for only two years. While he contended that the typical housing downturn lasts only 2 or 3 years and therefore TOUSA’s home sales should have been expected to recover in that time frame, Cannon’s own chart of historical housing downturns shows a number that lasted for four to six years. Given the many indications as of July 31, 2007 that the present downturn would be serious and prolonged, Cannon’s anticipation of a “normal” housing recovery is unfounded.

16

*812

Fourth, Cannon made unreliable assumptions when assessing the sales pace for a given community. In determining the absorption rates for each of his communities, he used a divisional rate of sales, not the sales history in the community at hand. Ex. 652 (Cannon Report) at 23-24. Although Cannon professed to consider carefully a range of factors, his workpa-pers show that he in fact engaged in a purely mathematical exercise at the division level to come up with the absorption rates that he applied.

17

Moreover, Cannon’s divisional “aggregate” was not even a simple average but was weighted to increase the absorption rate significantly.

18

Cannon’s use of divisional absorption information resulted in inflated absorption assumptions and overstated values.

Fifth, Cannon’s absorption analysis is flawed because he did not appropriately consider a community as a whole when valuing the properties within a community. By assessing each asset group in isolation, Cannon arrived at inflated absorption rates because he ignored the fact that there are other categories of assets that have to be sold. For example, a rational homebuilder would not begin vertical construction on finished lots in a community with a large supply of unsold completed homes that would take years to sell. As Hewlett cogently explained, it was an error for Defendants’ real estate experts to have finished lots absorbed beginning in year one if the community had existing inventory that would first have to be sold off. Although at trial Cannon claimed to have considered the interplay of various types of assets within a community, his absorption assumptions do not bear that out. For all of the foregoing reasons, I find that Cannon’s analysis of future ASPs and sales pace was flawed and unreliable.

(b) Samuels’ ASP and sales pace assumptions

For his valuation, Samuels made the following forecast regarding ASPs: (1) ASPs would be flat for three years; (2) all incentives would end at the beginning of the fourth year (causing ASPs to increase); and (3) ASPs would rise three percent in the fifth year and thereafter. Samuels’ forecast for future ASPs, therefore, suffers from many of the same defects as Cannon’s: his forecast was the same for all of TOUSA, with no attempt to differentiate among geographic areas; it predicted no decline in ASPs after July 31, 2007, despite overwhelming evidence that housing markets around the country were declining, especially in TOUSA’s key geographic regions; and it assumed that ASPs would rebound more quickly than could reasonably have been expected based on evidence available as of July 31, 2007. Those assumptions are not credible.

The rebound in ASPs that Samuels fore-casted in year four is especially unrealistic. It defies logic to think that homebuilders simply would cease to offer incentives in all markets at a set point in time. Not surprisingly, Samuels never quantified the impact of that forecast and conceded that his forecast had the effect of increasing ASPs in year four by more than 18%. I find that such a large percentage increase

*813

in one year is not a credible assumption. A typical annual increase in ASPs is in the low single digits; Samuels’ forecast included a 3% increase in year five, and even TOUSA management’s own unduly optimistic forecasts projected annual increases only in the

1%

to 3% range. I similarly cannot credit the explanation that Samuels offered at trial — that he believed that incentives would actually be removed gradually beginning at an earlier date but that he simply reflected it all in year four— since that approach would be the equivalent of forecasting steep annual ASP increases beginning in year one, when all of the data and evidence showed a declining housing market.

Samuels also failed to conduct any absorption analysis whatsoever on the vast majority of the assets, because he did not consider it relevant to his “retail approach” to valuation. Thus, for all assets except land under development, Samuels did not consider whether the pace of home sales would be rising or falling in a geographic region or a specific community. The fact that the rate of home sales in TOUSA communities was not important to Samuels’ valuation of the vast majority of the real estate properties is telling and undermines the reliability of his analysis. In the limited instances where Samuels did consider sales pace

(ie.,

when valuing land under development), he failed to use realistic assumptions or to consider the interplay of the other types of assets that existed within the community. For all of the foregoing reasons, I find that Samuels’ analysis of future ASPs and sales pace, to the extent he performed any, was flawed and unreliable.

(iii) James’ testimony does not cast doubt upon Hewlett’s ASP and sales pace assumptions

Defendants also offered an economist, Christopher James, to opine that Hewlett was unduly pessimistic in his projections. According to James, the national economy, and thus the housing market, sustained unexpectedly sharp declines beginning in August 2007 for reasons that TOUSA management could not reasonably have foreseen. James demonstrated that the national economy did, indeed, suffer significant deterioration from and after August 2007, and that these shocks reverberated in the national housing market. The undisputed fact that the national housing market went to hell in a handcart beginning in August 2007 does not mean that TOUSA’s markets and business were not already there at July 31, 2007.

James’ testimony does not demonstrate that Hewlett’s forecasts were materially mistaken. First and foremost, James focused entirely on the

national

economy and the

national

housing market. He offered no opinion on the conditions of the particular geographic markets in which TOUSA and the Conveying Subsidiaries did business. As James acknowledged, TOUSA did a significant percentage of its business in regions, like Florida, that were adversely affected

before

the declines in other parts of the country.

Second, although James focused on the ways in which a deteriorating

economy

caused deterioration in the

housing market,

causation, as he recognized, also moved in the opposite direction: A substantial downturn in the housing market (especially in TOUSA’s markets) caused deterioration in the national economy. Much, though certainly not all, of the decline in the national economy from and after August 2007 was the byproduct of housing market deterioration that was sustained in the spring and summer of 2007.

Finally, James’ own data confirm that a highly pessimistic view of TOUSA’s housing market was well warranted as of July

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31, 2007. For example, although James noted a sharp increase in foreclosures, including for prime mortgages, beginning in late July 2007, he agreed that foreclosures were generally preceded by events of default.

19

It follows that defaults and delinquencies in mortgages must have been spiking in the spring and early summer of 2007. Similarly, whereas James noted a substantial drop in the issuance of commercial paper beginning in August 2007, he agreed that at least one reason for that could be a spike in the

preceding

months in defaults in the asset class backing the commercial paper. And although James opined that “U.S. corporate bond spreads experienced sharp increases starting in August 2007” — from which James inferred that private borrowing costs were increasing due to marketwide risk — the chart on which he relied in fact shows a much sharper increase in

July

2007. James’ effort to explain this apparent contradiction was unpersuasive.

Taken as a whole, the evidence persuades me that Hewlett’s assumptions, which were based on the Moody’s forecasts, were a reasonable estimate of future home price changes and absorption rates in the various geographic markets where TOUSA and the Conveying Subsidiaries operated. I would note, although it did not affect Hewlett’s analysis (or my findings), that home prices have in fact fallen far more than Moody’s or Hewlett predicted as of July 31, 2007, and that Hewlett’s fair value conclusions undoubtedly would have been lower had he anticipated or taken into account the post-July 31, 2007 events noted by James.

b. The cost inputs used in Hewlett’s DCFs were reasonable predictions of future costs

The third step of Hewlett’s six-step analysis involved projecting expected future revenues and costs at the community level. As explained above, Hewlett derived the revenue inputs from his projections of ASPs and sales pace. Hewlett’s community models also incorporated detailed information regarding future (ie., post-July 31) costs, including assumptions regarding what it would cost to develop, build out, market and sell the homebuild-ing assets owned by TOUSA and the Conveying Subsidiaries as of July 31, 2007. Hewlett based his cost inputs on TOUSA’s historical and projected costs for developing and building the same or similar types of houses. Hewlett obtained some of the cost inputs directly from various TOUSA data sources. Many others were provided by Committee expert Amy Benbrook.

Benbrook is a partner with J.H. Cohn, LLP. She has twenty years of experience in the real estate development and construction accounting fields. Benbrook has performed work for many residential home builders, including numerous assignments estimating costs associated with developing and building residential developments.

Using cost information provided by TOUSA was the best way to estimate what it would cost to develop and build out lots and houses in communities owned by TOUSA and the Conveying Subsidiaries as of July 31, 2007. By relying on TOUSA’s historical cost information and its projections regarding what it expected to spend on future development, Hewlett was able to use community-specific cost inputs, which factor in differences in costs incurred (and expected to be incurred) for different projects and different geographic areas, and which are more accurate than national industry averages.

Hewlett’s discounted cash flow analyses accounted for horizontal costs,

ie.,

the

*815

costs associated with developing land into building-ready pads and constructing community amenities, and vertical costs,

ie.,

the costs associated with constructing, finishing and selling houses built on those pads.

For the vast majority of projects that were expected to have additional horizontal costs after July 31, 2007, Benbrook estimated the cost to complete the horizontal development. Benbrook derived the horizontal cost-to-complete estimates from various sources, including information obtained from TOUSA’s HSP accounting system,

20

and she cross-checked the numbers she used with information from several other contemporaneous sources. In cases where the HSP budgets appeared to be missing or incomplete, Benbrook relied on cost-to-complete information from non-HSP sources.

21

For vertical construction costs, Hewlett’s DCF analyses incorporated inputs from two sources. First, for houses that were under construction on July 31, 2007 (backlog and speculative homes), Hewlett derived the cost-to-complete vertical construction from house-specific budgets that were in the HSP system. Hewlett used those budgets because they were in line with actual historical costs incurred to build similar homes in the same or neighboring communities. Second, for houses that had not been started on July 31, 2007 — that is, for future vertical construction — Benbrook provided estimated future construction costs associated with building out and selling an average home in each community, including material and labor costs, option costs, and indirect eonstruction costs. Benbrook derived her future vertical construction cost inputs from multiple sources, including recent actual historical cost information, TOUSA impairment models, and in some cases divisional averages, and she cross-checked them. Benbrook also provided inputs for soft costs, such as commissions, marketing and advertising costs, and closing costs, and Hewlett incorporated those costs in his DCF models for each home in his community-level analyses.

Finally, in addition to providing community-specific cost inputs, Benbrook advised Hewlett to make the following two assumptions regarding the trajectory of future construction costs: (1) construction costs would remain flat during a housing downturn; and (2) costs would begin to increase when the housing market recovered, but in no case would construction costs escalate by more than five percent per year.

22

The assumptions provided by Benbrook are reasonable and consistent with historical experience. Data from previous downturns (cited in Samuels’ expert report for the Defendants) show that while the

rate of increase

in construction costs slowed during previous housing downturns and the first part of 2007, the overall costs continued to go up. Recent data from the current housing downturn provided by Samuels also indicate that building material costs continued to rise, which further demonstrates that Benbrook’s cost assumptions were conservative.

The cost estimates and assumptions used by Hewlett, whether derived from HSP reports or other sources, represent

*816

reasonable predictions of the costs associated with building out the communities that were owned by TOUSA and the Conveying Subsidiaries as of July 31, 2007. I find that Hewlett’s use of detailed cost inputs based on TOUSA information from the same or similar communities was the most reliable method of predicting future construction expenses.

Defendants offered numerous criticisms of the cost inputs used by Hewlett. First, they attacked the reliability of the underlying HSP data used by Benbrook and Hewlett. Second, they contended that it was inappropriate for Hewlett to deduct costs such as commissions, closing costs, and marketing costs. And third, they argued that it was wrong for Hewlett to hold construction costs constant during the time period that he forecast declining ASPs. None of these criticisms convinces me that Hewlett’s analysis is unreliable.

At the time of her initial direct testimony and cross-examination, Benbrook testified that the information contained in the HSP system was “static;” that is, she believed that her review of Land Development Cost Code reports from the HSP system run in October 2008 “as of’ July 31, 2007 would accurately reflect the information which was in the system as of July 31, 2007. But the HSP system did not work that way. Changes in TOUSA budget information made subsequent to July 31, 2007 would, in fact, be carried back and appear in runs made “as of’ July 31st.

During the course of the trial, Defendants elicited testimony establishing that budget information contained in certain reports from the Debtors’ HSP system was “non-static” when run “as of’ July 31, 2007. That is to say, if the database were queried at different times for budget data as it existed on July 31, 2007, the resulting outputs sometimes differed. Although this fact calls into some question the accuracy of the information upon which Benbrook (and therefore Hewlett) relied is establishing costs, I am satisfied after carefully considering the attacks made on Ben-brook’s cost information that the non-static nature of the reports did not make a material difference to Hewlett’s bottom-line conclusion regarding the value of the real-estate assets owned by TOUSA and the Conveying Subsidiaries. While the Defendants’ efforts to discredit Benbrook’s cost information succeeded in establishing an error in her premise that information in the Land Development Cost Code reports was static, it did not succeed in establishing that post-July 31, 2007 changes to the data base made any material difference to the ultimate values derived.

Benbrook used TOUSA’s Land Development Cost Code reports — which she obtained from the Debtors’ HSP system — to compute the horizontal land-development costs for 115 of the 292 communities she analyzed. To assess the reliability of those reports, she compared the numbers she derived from those reports to the cost numbers she would otherwise have derived from five other static sources: two sets of historical data detailing the horizontal costs for houses that had closed in the same community in the months before July 31, 2007; projections prepared by the Debtors for purposes of impairment analy-ses; a land acquisition model prepared by the Debtors in December 2006; and a borrowing base document prepared by the Debtors on or around July 31, 2007. The aggregate difference between the data from the non-static Land Development Cost Code reports and the data from these alternative sources would, at most, have changed Hewlett’s valuation of the real-estate assets by $5.1 million — approximately a 0.4% difference, which is an amount Hewlett appropriately characterized as

de minimis.

Benbrook additional

*817

ly investigated the degree to which the budget information in the Land Development Cost Code reports actually had changed over time, by comparing the budget data in the reports she had run in October 2008 with the budget data in a fresh set of reports she ran in July 2009, after the “non-static” issue had come to light. Although Defendants suggested that the aggregate difference between the horizontal costs derived from the two sets of reports could be as much as $1.7 million, that is an insignificant amount of variability when compared to a total cost figure of approximately $628 million. Nor did the cost inputs particular to either TOUSA Homes, Inc. (0%) or Newmark Homes L.P. (0.7%) change to any significant degree. For all of the above reasons, I conclude that Benbrook’s horizontal cost estimates were reliable, as were the Land Development Cost Code reports she used to calculate them.

Hewlett provided similar testimony regarding the reliability of TOUSA’s Job Cost Detail reports, which he used to compute remaining vertical home-construction costs for backlog and speculative homes in inventory as of July 31, 2007. He compared the cost data in those reports to two alternative (static) sources of cost data: a historical record of the vertical costs of homes that closed in the relevant community in the months leading up to July 31, 2007; and the July 31, 2007 borrowing base document that Defendants’ real-estate expert Samuels used for his vertical cost inputs. The first comparison showed an aggregate difference of 3.6% ($16.3 million compared to a total cost figure of $456 million for the communities for which comparable data existed), which Hewlett reasonably deemed to be “fairly minimal.” The second comparison showed an aggregate difference of only 0.2% ($1.4 million compared to a total cost figure of $575 million for the communities for which comparable data existed), which Hewlett reasonably deemed

de minimis.

Hewlett also analyzed how much the Job Cost Detail reports in fact changed over time, and determined that they changed by only 0.7% between the time he originally compiled them and the time of trial. Nor was there significant localized variability: roughly 85% of the reports changed by less than 3%, and the differences for the reports relating to communities owned by TOUSA Homes, Inc. and Newmark Homes L.P. were only 0.2% and 1.7%, respectively. For all of these reasons, I conclude that the vertical construction cost estimates Hewlett derived from the Job Cost Detail reports were reliable.

Moreover, the HSP reports used by Benbrook and Hewlett are consistent with (in the case of Samuels) or superior to (in the case of Cannon) the cost data used by Defendants’ experts in their analyses. Samuels, like Hewlett, believed that TOU-SA’s own reports were the best available means of calculating the percentage of completion in horizontal development. For his projected costs of vertical development, Samuels primarily used TOUSA’s borrowing base budgets, which varied overall by only approximately 0.2% from the HSP budgets used by Hewlett. Thus, Samuels — like Hewlett — used TOUSA’s own projected costs-to-complete, many of which were originally derived from the HSP system.

As for Cannon, he made no effort to calculate the cost to complete the horizontal development at specific communities, instead relying on general assumptions, ratios and “rules of thumb.” Thus, for all TOUSA properties he simply adopted an industry “60/40 rule” that 40% of the value of the finished lot is attributable to the raw land. He then assumed that all sites were 50% developed rather than trying to determine how much horizontal development

*818

was still required in each community as of July 31, 2007. Both Samuels and Hewlett rejected this “valuation by assumption” approach and instead estimated horizontal costs to complete on a community-by-community basis based on the information in the TOUSA accounting system. Simply assuming that all communities were 50% developed is bound to be inaccurate: “some of [the TOUSA properties] might be at 85 percent developed” and “[s]ome of them might be at 20 percent developed.” Samuels Tr. 3534:16-3535:4. Even if the HSP budgets used by Hewlett changed a relatively small amount over time, Hewlett’s more detailed, site-specific analysis is plainly superior to and more reliable than the gross assumptions relied on by Cannon.

Defendants’ second cost-related criticism was that Hewlett erred by factoring in commissions, marketing and advertising costs, and closing costs in his DCFs. Defendants’ experts contended that no deductions were needed for those costs because the relevant measure of “fair value” is the retail value of the home (ie., the amount paid by the ultimate purchaser of a finished home) which does not include deductions for those costs. Defendants’ experts’ criticism is unfounded and their “retail” valuation approach is inappropriate.

As discussed above, for purposes of his fair valuation of the inventory, Hewlett determined that another homebuilder or developer would be the most likely purchaser of TOUSA communities or groups of assets. In deciding how much another homebuilder or developer would pay, Hewlett assessed the risks and costs associated with monetizing the homebuilding assets, just as the potential purchaser would. Accordingly, as part of his community-level DCF analyses, Hewlett deducted the costs that would be associated with maintaining, marketing and selling the completed homes, including commissions, marketing and advertising costs, closing costs, and holding costs, because those costs would be considered by a purchaser in deciding what it would pay for the assets.

Cannon and Samuels, in contrast, did not include the costs associated with the future sale and closing of homes in performing their valuations of many categories of real estate assets.

23

The “retail values” they used made no deductions at all for costs such as commissions, marketing and advertising costs, closing costs, and holding costs. Even if one were to assume as they did that a “fair valuation” could be based on TOUSA and the Conveying Subsidiaries building out and selling each backlog home, speculative home, and finished lot to an individual homebuyer at a retail price in the months or years after July 31, 2007, it is unrealistic to ignore the costs that TOUSA and the Conveying Subsidiaries would incur for maintaining, selling and closing on these homes. TOUSA and the Conveying Subsidiaries would need to deduct those costs — -all of which would be necessary to generate income from these properties — in determining their fair value. Thus, I find that, regardless of whether the hypothetical willing buyer is a homebuilder, developer or a collection of individual homebuyers who purchase from TOUSA, Hewlett was correct to take into account in his fair value analyses the costs associated with maintaining, selling and closing on these real estate assets. I further find that, by failing to take those costs into account, Defendants’ experts overvalued the real estate assets by tens of millions of dollars.

*819

Defendants’ final criticism of Hewlett’s cost information was their attack on his (and Benbrook’s) assumption that construction costs would remain flat during a housing downturn. Samuels (along with Professor Metrick) criticized that assumption, arguing that construction costs should go down if housing sales fall. While understandable as theory, Defendants’ criticism is unsubstantiated by the facts.

24

Data from past housing downturns, as well as data regarding the current downturn, confirm that building material costs generally continue to rise (albeit at a much slower rate than during housing market upswings) and generally do not decrease. Benbrook’s assumption regarding construction cost changes is reasonable, conservative, and consistent with historical experience.

c. Hewlett’s discount rates were reasonable and consistent with prevailing market rates

In the fifth step of his six-step analysis, Hewlett applied a set of discount rates to the community-level cash flows he computed to arrive at each community’s net present value. The discount rates that he developed and used were specific to each community and they took into account the geographic market and the risks associated with different types of real estate assets. The average discount rate used by Hewlett was approximately 20%. The rates used by Hewlett were within the range used by actual market participants on July 31, 2007 and were consistent with Hewlett’s experience in the real estate industry. Cannon and Samuels criticized Hewlett’s discount rates for being too high and argued that the rates they used— 11.5% and 10.63%, respectively — were more reasonable. Defendants’ experts’ rates are unreasonably low and are inconsistent with contemporaneous industry surveys. Indeed, the RealtyRates.com Developer Survey for Second Quarter 2007 shows average discount rates for site-built residential properties of 25.14% (“actual rates”) and 23.97% (“pro-forma rates”). The Korpacz survey for the second quarter of 2007 shows a range of discount rates of 10% to 25%, with a national average of 17.72%. Other industry analysts also reported that typical discount rates are 20% to 25% for finished lots and 15% to 20% for vertical construction. The evidence demonstrates that Hewlett’s discount rates are reliable and consistent with what market participants were using on or about July 31, 2007, while the rates used by Cannon and Samuels are unreasonably low.

Hewlett’s discount rates are reliable for the additional reason that they varied based on the characteristics of each community. Unlike Hewlett, both Cannon and Samuels used a single, flat discount rate for all of the assets that they valued. By using a one-size-fits-all approach, Cannon and Samuels failed to take account of differences in geographic markets and the risks associated with different assets. Thus, even though Cannon acknowledged that the “present value rate” should “var[y] with the size, complexity, market potential, overall quality, appeal, estimated absorption, and pricing of the product,”

25

Ex. 652 (Cannon Report) at Addenda 43, neither Cannon nor Samuels used discount rates that took those differences into account.

Cannon and Samuels made an additional error in conducting their “present value” analyses: they failed to discount certain

*820

categories of assets at all. For those assets, Defendants’ experts simply assumed that discounting to present value was unnecessary.

26

That approach ignores certain holding costs as well as the time value of money, which is implicated by the fact that it would take months or years for homes under construction and finished lots to be completed, sold and transferred to retail purchasers. In contrast, Hewlett considered when homes would likely be sold, and discounted their value to account for the time required to complete their sale. By failing to apply a present value discount to whole categories of assets, Defendants’ experts greatly overestimated the value of those assets.

I find that Hewlett’s discount rates are reasonable and reliable. I also find that the present value analyses conducted by Cannon and Samuels were deficient because they used unreasonably low discount rates and failed to discount certain types of assets at all.

d. Hewlett’s valuation of the undeveloped land was problematic

As he did with the other categories of inventory assets, Hewlett valued the undeveloped land owned by TOUSA and the Conveying Subsidiaries by conducting community-level DCF analyses. Hewlett considered using a different approach— known as the sales comparison approach— but he ultimately concluded that approach was unreliable because purchase activity for large parcels of undeveloped land in the relevant markets was not sufficiently active in the months leading up to July 31, 2007 and there was a dearth of truly comparable transactions. Under the circumstances that existed on or about July 31, 2007, it was reasonable for Hewlett to use the DCF approach instead of the sales comparison approach to arrive at a fair market value.

27

In fact, market participants such as homebuilders and developers generally rely on that approach to value raw land.

In conducting his DCF analyses for the undeveloped land parcels, Hewlett assumed that the undeveloped land would be used for residential development. Although there was some suggestion from Defendants’ experts at trial that the land could be used for other purposes (actually suggesting, with an apparent straight face, use as an amusement park, an illegal alien holding facility, or a sports stadium,

28

Me-trick Tr. 1976:19-1977:4), TOUSA’s own contemplated use — and the use contemplated by all three real estate experts— was for development into residential communities. Hewlett Tr. 806:8-12; Ex. 616 (Hewlett Report) at 41^43; Ex. 643 (Sam-uels Report) at 283-284; Ex. 652 (Cannon Report) at 5. Thus, there is no real, non-frivolous dispute that the highest and best use for the undeveloped land was residential construction. In such circumstances, it was reasonable and valid for Hewlett to

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value the undeveloped land assets by performing a cash flow analysis that contemplated the hypothetical build-out of parcels using assumptions based on TOUSA’s own information and his expertise.

In light of the evidence regarding the market for raw land transactions on or about July 31, 2007, and the uncontroversial assumption that the land would be used for residential development, I find that Hewlett’s valuation of the raw land using the DCF approach was appropriate and reliable.

Hewlett’s valuation methodology is not called into question by the fact that his analysis yielded zero values for some (approximately 18%) of the communities. Hewlett’s conclusion that certain communities had no value as of July 31, 2007 was a reflection of various factors, including the length of time before sufficient demand would support the construction of homes at a reasonable profit and the substantial holding costs and obligations that TOUSA and the Conveying Subsidiaries would incur in the meantime. That finding is consistent with market conditions and experience, but only to a limited extent. It is consistent with the testimony of Mon, who stated that if the cost to develop a piece of undeveloped land exceeded the expected return, the company could “decide to write it down to zero” and sit on it. Mon Tr. 341:24-342:7. Put another way, a zero value reflects the absence of an active market for that property, and it reflects the likelihood that an owner would not be able to sell the property at that time.

Defendants’ expert Samuels also criticized Hewlett’s undeveloped land valuations because a single parcel which Hewlett valued at zero sold after July 31, 2007 for a substantial sum. If this were a broader issue, I would be more concerned about the methodology, or at least its application; it is troublesome when “worthless” property sells for a lot of money. But I ultimately find this cherry picking of post-July 31, 2007 events is unpersuasive. Samuels did not do a systematic study of TOUSA’s raw land sales after July 31, 2007, nor did he mention the fact that TOUSA sold a parcel post-July 31, 2007 for several million dollars

less

than the value attributed to it by Hewlett. Samuels himself also concluded that several hundred properties in five communities (from his Land Under Development and Finished Lots categories) had zero value. Samuels’ critical reference to a single post-July 31, 2007 sale also failed to take into account TOUSA’s continuing, unsuccessful efforts to sell many of its raw land parcels, despite its strong incentive under the de-leveraging strategy and bankruptcy to execute such land sales. Samuels also did not consider whether TOUSA had abandoned a number of properties since July 31, 2007. Furthermore, in his selective use of post-July 31, 2007 data, Samuels never took into consideration the fact that TOUSA currently forecasts the sale of its largest raw land parcel — known as “Red River” — at a time and for an amount that is far closer to Hewlett’s valuation than that of Defendants’ experts.

In sum, I find Defendants’ experts’ criticisms of Hewlett’s valuation of the undeveloped land parcels to be unpersuasive.

In contrast to Hewlett’s valuation of the undeveloped land, the valuations performed by Defendants’ real estate experts are less reliable. In particular, it was unreasonable for Defendants’ real estate experts to rely on the sales comparison method to value TOUSA’s undeveloped land, because their use of that method was predicated on the faulty assumptions that there was an active market for raw land as of July 31, 2007, and that there were sufficient comparable transactions. In fact, at that time, homebuilders and developers

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had little interest in purchasing new raw land parcels, as most were more interested in reducing their undeveloped land inventory in the face of declining demand for homes and riskier market conditions. Consequently, in attempting to come up, for example, with a set of comparable sales for six raw land parcels in the Las Vegas area as of July 31, 2007, Samuels was able to identify only a single sale in the Las Vegas area during the first seven months of 2007.

Defendants’ experts were forced in many instances to fall back on sales from 2006 and earlier in their search for “comparable” transactions, but this was inappropriate given the decreases in home prices and the resulting dramatic decline in land values that had occurred in the interim.

29

Given that raw land prices are extremely sensitive to changes in home prices and often drop precipitously in comparison, it was unreliable for Defendants’ experts to use sales from earlier years. The sea change in the raw-land market in the time period leading up to July 31, 2007, with 60 to 80% declines in value in those rare instances where sales did occur, rendered inadequate the minuscule “timing adjustments” made by Defendants’ experts and made the 2005 and 2006 sales transactions not sufficiently comparable for purposes of a sales comparison approach. The “adjustments” which were made have a decided air of being result-oriented.

The huge Red River parcel in Arizona is a prime example of Defendants’ experts’ use of inappropriate sales comparables. Virtually all of the supposedly comparable transactions Samuels and Cannon used to come up with a value for the Red River parcel were not in fact comparable.

Samuels listed eight assertedly comparable transactions. Yet half of the sales took place in 2006 and thus were not at all comparable because of the critical impact of the decline in home prices. In addition, one of the 2007 transactions Samuels considered comparable actually was negotiated in 2005 as part of an ongoing master planned community development. Seven of the eight transactions involved sales of parcels of 1,300 lots or fewer, with four of the transactions for parcels of fewer than 1,000 lots. The Red River site involved more than 6,300 lots and thus was five or six times the size of the supposedly comparable sales. The locations of several of the eight comparables also were far removed from the Red River site, oftentimes with much more desirable access to commuting routes, services and amenities.

Cannon’s sales comparables for Red River suffer from the same deficiencies, with some located in different counties, different metropolitan areas, or 80 miles away. Moreover, based on his workpa-pers, Cannon apparently adopted wholesale the raw land valuations generated earlier by Crown Appraisers, even though Crown appeared to make no adjustments for the earlier time periods or other differences between the supposedly comparable transactions. One of Cannon’s assertedly comparable sales — and one included in the Crown Appraisal — was a parcel of land adjacent to the Biosphere science experiment, which the developer hoped to use as a lure for a unique resort, hotel, retail mixed use development and which bore no

*823

discernable similarity to the Red River parcel.

In light of the evidence regarding the condition of the market for undeveloped land transactions on or about July 31, 2007, and the problems with Defendants’ experts’ use of the sales comparison approach, I find that the valuations of the undeveloped land parcels performed by Cannon and Samuels were unreliable.

e. Hewlett is a qualified real estate expert whose opinions were credible

As discussed above, Hewlett is an experienced real estate professional who is well qualified to serve as an expert witness on real estate valuation issues. Nonetheless, Defendants moved to exclude Hewlett as an expert witness under

Daubert v. Merrell Dow Pharmaceuticals,

509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), and its progeny, arguing that he is unqualified because he is not a licensed appraiser and his opinions are unreliable. Cannon in particular appeared to hold as Received Truth the view that only a licensed appraiser was qualified to offer any views on the value of real estate.

I find that Hewlett is qualified to offer expert witness testimony in this case and, for the reasons discussed above, the opinions he expressed are reliable. In my evaluation of the evidence and credibility of the witnesses, I find that it is inconsequential that Hewlett is not a licensed appraiser and that he can offer opinions regarding the value of real estate assets in this forum.

f. Real estate valuation findings

Based on the totality of the evidence, I find Hewlett to be credible and his methodology to be reliable. I therefore accept his conclusions concerning the value of the homebuilding inventory assets owned by TOUSA Homes, Inc., Newmark Homes, L.P., TOUSA Homes Florida, L.P., En-gle/Sunbelt, LLC, and TOUSA Mid-Atlantic Investment, LLC. As explained above, I do not find the valuations provided by Cannon or Samuels to be credible or reliable.

Furthermore, even were I to conclude that Hewlett’s valuation conclusions are somewhat too low and that certain assets owned by TOUSA and the Conveying Subsidiaries may have been worth more on July 31, 2007 than the value he assigned, it would not change my conclusion that the principal Conveying Subsidiaries — TOUSA Homes, Inc. and Newmark — were insolvent both pre-transaction and post-transaction. As set forth in Clancy’s adjusted pre-transaction balance sheets, TOUSA Homes, Inc. and Newmark were insolvent by $122 million and $58 million, respectively, prior to the July 31, 2007 transaction. See section III.A.1, above. Clancy’s post-July 31, 2007 transaction balance sheets show that TOUSA Homes, Inc. and New-mark were insolvent by $395 million and $206 million, respectively. See section III. B.l, below. Thus, even if Hewlett’s valuations were understated by 10%, TOUSA Homes, Inc. and Newmark would still be insolvent both pre-transaction and post-transaction. My review of the totality of the evidence leads me to find that any understatement by Hewlett of the valuation of the TOUSA Homes, Inc. and New-mark real estate assets was considerably less than the amount by which these Conveying Subsidiaries were insolvent both pre-transaction and post-transaction.

30

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B. The Conveying Subsidiaries were insolvent after the transaction

1. The fair value of the Conveying Subsidiaries’ liabilities exceeded the fair value of their assets after the Transaction

In addition to providing fair-value-adjusted balance sheets for several TOUSA entities reflecting their financial situation just

before

the July 31 Transaction, Clancy also provided fair-value-adjusted balance sheets for TOUSA, Inc., TOUSA Homes, Inc., Newmark Homes, L.P., and TOUSA Homes Florida, L.P. reflecting their financial situation just

after

the Transaction. The major adjustments between the pre-transaction balance sheets and the post-transaction balance sheets are (1) the allocation of the new debts taken on in the Transaction — the $500 million in new secured loans and $20 million in PIK notes— proportionately among the entities by assets and net worth, respectively; and (2) the placement of the Transeastern assets, as valued by Hewlett, on the balance sheet of TOUSA Homes Florida L.P. (which also assumed its portion of the Conveying Subsidiaries’ shared debt burdens).

Clancy’s post-transaction balance sheets are summarized in the following table:

[[Image here]]

Ex. 2411.

As this table shows, Clancy concluded that, immediately after the transaction, TOUSA Inc.’s liabilities exceeded the fair value of its assets by $43 million; TOUSA Homes, Inc.’s liabilities exceeded the fair value of its assets by $395 million; New-mark Homes, L.P.’s liabilities exceeded the fair value of its assets by $206 million; and TOUSA Homes Florida L.P.’s liabilities exceeded the fair value of its assets by $18 million.

Clancy’s analysis demonstrates that the Conveying Subsidiaries, which were already insolvent before the transaction,

*825

were rendered even more deeply insolvent by the transaction. Because Clancy used essentially the same methodology for his post-transaction balance sheets as for his pre-transaction balance sheets, they are reliable and credible for similar reasons. And, again, Defendants’ expert John Salo-mon largely validates Clancy’s conclusions.

a. Consolidated TOUSA’s debts exceeded its total enterprise value after the Transaction, which further supports the conclusion that the Conveying Subsidiaries all were insolvent

The results of Clancy’s post-Transaction adjusted balance-sheet analysis were further confirmed by the similar results reached by another of the Committee’s experts, William Derrough. Derrough performed three separate balance-sheet analyses of the Conveying Subsidiaries and concluded in each that their liabilities exceeded their assets following the Transaction.

Derrough is well qualified in the fields of business valuation, capital markets, and restructuring. He is a Managing Director and the co-head of the Recapitalization and Restructuring Group at the investment banking firm Moelis & Company, LLC. He is a fellow of the American College of Bankruptcy and a member of the Board of Directors of the International Insolvency Institute. He has advised on or executed more than 100 transactions over a wide range of industries. In the majority of these engagements, he has completed detailed financial analyses, including valuation, debt capacity, feasibility, and solvency analyses. He possesses extensive experience in the homebuilding industry in particular.

Derrough applied the balance sheet test by computing a “Total Enterprise Value” (“TEV’) for the consolidated TOUSA enterprise and subtracting the net value of TOUSA’s debt. TEV is a commonly used concept in determining the going-concern value of a business. As such, it represents a proxy for the fair value of the enterprise’s assets. If the enterprise’s TEV is less than its net debt (its outstanding indebtedness minus its cash on hand), then its liabilities exceed the fair value of its assets and it is insolvent. Not only Der-rough, but also Defendants’ experts Len-hart and Stryker use a TEV method for determining solvency.

Although Derrough’s application of the balance sheet test directly examines only the solvency of the consolidated TOUSA enterprise as a whole, the insolvency of the consolidated TOUSA enterprise

after

the July 31 Transaction necessarily means that the individual Conveying Subsidiaries all were insolvent. That is because, following the Transaction, the Conveying Subsidiaries each were jointly and severally liable on TOUSA’s $1,724 million of outstanding funded indebtedness: $1,061 million in bond debt, $200 million of First Lien Term Loan debt, $300 million of Second Lien Term Loan debt, $144 million of revolver debt, and $20 million of PIK note debt. If the consolidated TOUSA enterprise as a whole lacked sufficient assets to repay this debt, it follows that there would have been no way for any individual Conveying Subsidiary to satisfy its joint and several obligations on the debt.

(i) After the Transaction, Consolidated TOUSA’s debt exceeded the market’s valuation of its assets

The first method Derrough used to compute the TEV of the consolidated TOUSA enterprise was the Observable Market Value method. The Observable Market Value method calculates a public company’s TEV on a certain date by adding the market value of the company’s publicly

*826

traded debt and equity securities on that date and subtracting its cash. The sum of the market values of a company’s debt and equity is the textbook definition of enterprise value. Indeed, it is so defined in a recent book published by one of Defendant’s own experts, Yale professor Andrew Metrick, who also provided testimony to similar effect. And it is commonly accepted among valuation professionals. As Derrough explained, the market price of the equity plus the market price of the debt is what it would cost investors to purchase claims on all of a company’s assets. Derrough’s Observable Market Value approach is a reliable and credible test for determining the solvency of the consolidated TOUSA enterprise (and therefore, post-transaction, of the Conveying Subsidiaries).

Derrough calculated the sum of the market values of all of the consolidated TOU-SA enterprise’s outstanding equity and debt instruments on July 31, 2007 to be $1,503.5 million. Subtracting the face value of the debt and adding back cash (which could be used to pay off that debt) resulted in a net equity figure of negative $189.4 million. The fact that the Observable Market Value of the consolidated TOUSA enterprise on July 31, 2007 was smaller than the face amount of the debt it would be obligated to pay shows that it — and, by extension, each of the Conveying Subsidiaries — was insolvent on that date. Furthermore, similar calculations using the market prices of TOUSA’s securities on July 25, 2007 and August 6, 2007 (the first full trading day following an 8-K filed by TOUSA announcing the closing of the transaction) yielded results of negative $89.3 million and negative $333.5 million net equity respectively, reinforcing the conclusion of insolvency.

One of Defendants’ experts, René Stulz, contended that, as a general matter, an Observable Market Value approach might conceivably be inaccurate. His criticisms, however, are almost entirely theoretical, and there is no evidence that they actually undermine the applicability and reliability of Derrough’s Observable Market Value calculations here.

First, Stulz pointed out that the Observable Market Approach does not work well in circumstances where the market for a company’s securities is not sufficiently efficient. He did not, however, offer any opinion that the markets for TOUSA’s securities were inefficient. And there is no reason to believe that Derrough’s analysis suffers any inefficiency-related inaccuracies. Derrough testified to a number of factors showing that the market for TOU-SA’s equity securities (which were listed on the New York Stock Exchange) and debt securities were efficient: they were actively traded, they were followed by market analysts, and the SEC permitted TOUSA to file an S-3 short-form registration.

Second, Stulz suggested that the prices for debt instruments might be depressed for reasons other than the creditworthiness of the company that backs them, thereby skewing any Observable Market Value calculation. However, there is no evidence that the trading prices for TOU-SA’s bonds on July 31, 2007- — -lower than 50 cents on the dollar for some of TOU-SA’s subordinated notes — resulted from any factors other than the market’s perception of the depressed fair value of TOUSA’s assets. Stulz himself performed no quantitative analysis of how much effect, if any, such factors had on the price of TOUSA’s bonds. He furthermore conceded that a chart attached to Derrough’s expert report — showing that the Credit Suisse High Yield Bond Index was trading at or near par

(i.e.,

100 cents on the dollar), while TOUSA’s bonds traded at much

*827

lower prices — would, if correct, strongly support the view that the deflated prices for TOUSA’s bonds reflected concerns about TOUSA in particular, and not high-yield bonds more generally. And he also conceded that creditworthiness concerns explained at least some (if not all) of the difference in prices between TOUSA’s senior notes (which would be paid off first in the event of bankruptcy) and otherwise comparable subordinated notes (which would be paid off only after the senior notes).

Third, Stulz suggested that Derrough should have used a higher value for TOU-SA’s stock, adding a “control premium” to account for the fact that a purchaser would pay more for majority control of a company. There is no reason why Derrough should have added a control premium. As he testified, doing so would be “inappropriate” here because “[wje’re valuing this company with ... these assets, this capital structure, this balance sheet, this management team, this business plan; not what it might be worth to somebody else if somebody else had the opportunity to control it.” Derrough Tr. 1225:3-16. There is no evidence in the record that any outside purchaser was willing to pay any such premium for control of TOUSA, and consequently there is no factual basis for applying an increase to the observable traded value of TOUSA’s stock based on what such a hypothetical buyer might pay. And in any event, even if a control premium were applicable here, Stulz provides no measure of what it should be. There is thus no evidentiary grounding for the implausible notion that the stock, which had market value of $170.5 million, should have been valued nearly $190 million higher, as would have been necessary for TOUSA to be solvent under the Observable Market Method on July 31, 2007.

Fourth, Stulz suggested that TOUSA’s positive market cap (the total value of outstanding public and private shares)— which was $170.5 million according to Der-rough — outs against Derrough’s opinion that TOUSA was insolvent. But as Der-rough explained, TOUSA’s equity market cap may simply reflect “option value” created by investors who think there is little to lose (because the stock price is low) and much to gain (if, against all expectations, the stock price skyrockets), rather than any actual present-day value. At trial, Stulz himself disavowed any opinion as to whether TOUSA’s positive market cap actually proved that it was solvent. In any event, it is readily observable in the marketplace that the stock of even notoriously bankrupt companies trades at a positive price even after it is clear that the stock interests will be wiped out in the bankruptcy process. Economic rationality appears to play little role in such matters.

(ii) After the Transaction, Consolidated TOUSA’s debt exceeded the value of its assets under a comparable companies analysis

The second method Derrough used to compute the TEV of the consolidated TOUSA enterprise was the Comparable Companies method. In this method, the practitioner (1) identifies a set of companies similar to the one being valued and calculates the TEV for each of these comparable companies using the Observable Market Value method; (2) derives an appropriate “valuation” metric — a statistic that, for each of the comparable companies, bears a meaningful and reasonably consistent relationship to its TEV; and (3) uses that valuation metric to compute the TEV for the company under consideration. There is no dispute that this is a widely accepted, and commonly used, valuation methodology.

*828

In the first step, Derrough identified five homebuilders — Standard Pacific Corp.; Hovnanian Enterprises Inc.; M7I Homes, Inc.; Meritage Homes Corp.; and Beazer Homes USA Inc. — as TOUSA’s most comparable peers based on their operating profile. In the next step, he focused upon the book value of a company’s homebuilding inventory as the most appropriate valuation metric. He did so because inventory is the largest and most valuable item on a homebuilder’s balance sheet; because his experience in the homebuilding industry had taught him that this was the metric investors typically looked at; because other analysts focused on this or similar metrics; and because each of the comparable companies had reasonably similar ratios between their TEVs and the book value of their inventory, suggesting that book value of inventory is a meaningful determinant of value to investors in homebuilding companies. In the third step, based on the ratio between TEV and book value of inventory for the comparable companies, and TOUSA’s condition relative to these other companies, Derrough concluded that the best estimate for TOU-SA’s TEV under this valuation method would lie between 55% and 65% of the book value of its inventory. Using that “inventory multiple,” Derrough calculated TOUSA’s TEV to be between $1,336 million and $1,579 million. Subtracting TOU-SA’s net debt yielded a net equity value of negative $357 million to negative $114 million, again demonstrating insolvency of the consolidated TOUSA enterprise and each of the Conveying Subsidiaries.

Derrough’s comparable companies analysis is both reliable and credible. Two of Defendants’ experts — William Lenhart and Andrew Metrick' — criticize Derrough’s application of this technique, but 'their criticisms are largely contradictory and ultimately unpersuasive.

First, both Lenhart and Metrick attacked Derrough’s use of an “inventory multiple” to derive TOUSA’s TEV. They did so from opposite directions: Lenhart criticized him for looking at a balance-sheet item such as inventory, rather than an income-based item like the EBITDA (Earnings Before Interest, Taxes, Depreciation, and Amortization) multiple that Len-hart and Alix (see Section IV, below) used in their valuations of TOUSA. Metrick, on the other hand, criticized Derrough for looking at only

one

item on TOUSA’s balance sheet, rather than looking at

all

of the assets on TOUSA’s balance sheet. Neither criticism undermines Derrough’s use of the inventory multiple. Metrick persuasively explained why Lenhart’s (and Alix’s; see Section IV.F., below) focus on EBITDA is inappropriate, because the ratio of EBITDA to TEV varies too widely across the range of comparable companies, suggesting that market participants do not consider it a stable valuation metric. Len-hart’s criticisms are furthermore fatally undermined by his lack of understanding of how Derrough’s comparable companies analysis — wherein he derived an inventory multiple for TOUSA from the comparable-company set and used it to determine TOUSA’s TEV — worked.

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As for Me-triek’s own focus on total assets, he conceded that his main critique of Derrough’s alternative focus on inventory was that (in Metrick’s view) Derrough did not adequately explain himself in his report. However, as described above, Derrough persuasively explained at trial why he used an inventory multiple, and Metrick conceded that he does not have sufficient ex

*829

perience with homebuilders to contest Derrough’s industry-specific reasoning. Furthermore, Derrough’s reliance on an inventory multiple gains additional support from other valuation professionals’ use of that same metric when looking at TOUSA.

Second, Metrick criticized Derrough for using a 55%-65% range for his inventory multiple, as distinct from using the median or mean of the TEY/inventory ratios of the five comparable companies, which would have been slightly higher. But Derrough amply supported his methodology. He discussed no fewer than eight reasons— TOUSA’s historical trading levels, high leverage, lack of geographic diversity, perceived low-quality assets, perceived low-quality management, perceived under-impairment of assets, overhang of concentrated shareholder base, and concerns about the transaction — why TOUSA should be valued at a discount to its peers. Furthermore, in contrast to Metrick’s academic judgment that valuation practitioners should not depart from the median or the mean of the comparable-company set’s valuation ratios, testimony from Defendants’ expert Stryker confirmed that such departures are standard practice in circumstances where there are reasons to believe a company to be worse off than its peers.

(iii) After the Transaction, Consolidated TOUSA’s debt exceeded the valuation of its assets under a discounted cash flow analysis

The third method Derrough used to compute the TEY of the consolidated TOUSA enterprise was the Discounted Cash Flow (“DCF”) method. A company is valued by adding (1) the company’s projected cash flows for the next several years (discounted to present value) to (2) a “terminal value” representing the future worth of the company at the end of the projection period (also discounted to present value). To perform his DCF analysis here, Der-rough started with a model created by TOUSA itself in combination with Alix. Because both he and Hewlett viewed the ASP projections in that model as unreasonably high, Derrough replaced the ASP assumptions with alternative forecasts (made from the perspective of July 31, 2007) supplied by Hewlett. Based on my review of his reports and testimony as well as the other evidence in the case, I find the assumptions and alternative forecasts supplied by Hewlett to be reliable and well-supported.

For the first part of the DCF (the cash-flow projections), Derrough used the modified model to generate projections of TOU-SA’s cash flows from 2007 to 2012, which he then discounted to present value. For the second part of the DCF (the terminal value), Derrough used his modified model to predict the book value of TOUSA’s inventory at the end of 2012, to which he then applied an inventory multiple of 60% (the middle of the range he derived in his comparable companies analysis) to arrive at TOUSA’s valuation at the end of the projection period, which he also discounted to present value. He added the discounted cash flows and discounted terminal value together to get a total TEV of $1.1 billion. Subtracting TOUSA’s net debt, Derrough arrived at a net equity value of negative $585 million. This again confirmed that TOUSA was insolvent after July 31, 2007' — as, by extension, were each of the Conveying Subsidiaries. Derrough furthermore provided a sensitivity chart showing how that net equity conclusion would change if his assumptions were altered; according to that chart, TOUSA would have a positive net equity only under a vastly more optimistic set of assumptions that Derrough deemed implausible.

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Derrough’s DCF analysis is a credible and reliable indicator of the insolvency of TOUSA and the Conveying Subsidiaries. Metrick criticized Derrough’s DCF analysis on two primary grounds, but neither undermines the analysis. First, Metrick criticized Derrough for failing to lower the model’s projections for TOUSA’s home-building costs when he substituted in the lower ASPs provided by Hewlett. But Metrick’s assumption that costs must fall when ASPs fall is purely theoretical, and is contradicted by the unrebutted empirical evidence presented in the testimony and report of the Committee’s cost expert, Amy Benbrook. Second, Metrick criticized Derrough for calculating his terminal value using an inventory multiple, rather than an alternative approach that tries to model the growth of the company in perpetuity. As the deposition testimony of another of Defendants’ experts makes clear, however, the use of a valuation multiple in these circumstances is not uncommon. Indeed, Alix followed a valuation-multiple approach too, although as explained by both Metrick and Derrough, the EBITDA multiple Alix used was inappropriate. In any event, Derrough cross-checked his results using the perpetuity growth method advocated by Metrick and saw no reason to conclude that his multiple-based approach had undervalued the collective TOUSA enterprise.

2. The Conveying Subsidiaries had unreasonably small capital after the Transaction

In addition to concluding that the consolidated TOUSA enterprise was insolvent after the transaction under various applications of the balance-sheet test, Derrough also determined that the consolidated TOUSA enterprise had unreasonably small capital as of July 31, 2007. Derrough observed that the transaction left TOUSA with a very high debt-to-capitalization ratio of 71.3%, higher than any of the comparable homebuilders. Both Derrough and TOUSA’s own management recognized that this left TOUSA with little maneuvering room in a tightening marketplace, unable to take advantage of opportunities that might otherwise be available. In addition, Derrough — with input from Hewlett — opined that TOUSA’s plan to survive its troubles depended on unreasonable assumptions about ASPs and the company’s ability to generate cash through hypothesized bulk land sales.

Derrough’s methodology and conclusions on this issue are credible and reliable. And because of the consolidated enterprise’s shared cash structure, the lack of adequate capital on a consolidated basis necessarily shows that the individual Conveying Subsidiaries had unreasonably small capital as well.

3. The Conveying Subsidiaries were unable to pay their debts as they came due after the Transaction

Finally, Derrough concluded that the consolidated TOUSA enterprise would not be able to meet its debts as they came due after the transaction. That conclusion was informed by a number of factors. TOU-SA’s bonds were trading at very low levels (below 50 cents for some of the subordinated bonds), well below comparable bonds from other issuers, demonstrating that the market did not expect that bond debt to be paid off in full. Derrough’s modified model, using Hewlett’s projected ASPs, predicted that TOUSA would fail one of the covenant conditions on its secured debt within six months of the transaction. Even under the more optimistic ASP projections used by Alix, TOUSA still would have failed covenants. As Derrough explained from his own experience, covenant violations could have potentially disastrous results for TOUSA.

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Derrough’s methodology and conclusions on this issue are credible and reliable. Indeed, his conclusions mirror the contemporaneous conclusions of two ratings agencies, Moody’s and Standard

&

Poor’s (S & P), each of which independently advised the market that TOUSA was unlikely to meet its debt obligations. On July 11, 2007, Moody’s downgraded TOUSA’s subordinated bonds to a rating of Ca based on the “serious challenges” it foresaw for TOUSA. Ex. 2145 at 1-2. According to Moody’s, “[o]bligations rated Ca are highly speculative and are likely in, or very near, default.” Ex. 2332 at 1. Similarly, on July 12, 2007, S

&

P lowered its rating of TOUSA’s subordinated bonds to CCC-. Ex. 2146 at 4. According to S

&

P, “[i]n the event of adverse business, financial or economic conditions” — which were certainly in the offing for TOUSA — an “obligor is not likely to have the capacity to meet its financial commitment on [an] obligation” with such a rating. Ex. 2329 at 4.

Because the Conveying Subsidiaries each were jointly and severally liable for all of the collective enterprise’s bond debt, the conclusion that the collective TOUSA enterprise could not pay its debts as they came due necessarily demonstrates that the Conveying Subsidiaries were individually unable to pay their debts as they came due.

C. Defendants’ experts’ claims of solvency are unpersuasive

In response to the Committee’s experts, Defendants presented two experts— Charles Stryker and William Lenhart— who opined on solvency. For the reasons stated below, I decline to accept their solvency-related conclusions.

1. Charles Stryker’s report and testimony do not show that the Conveying Subsidiaries were solvent

Stryker’s opinion on solvency is limited to the presentation of adjusted balance sheets for the consolidated TOUSA enterprise both before and after the transaction. Those balance sheets are not persuasive evidence of the Conveying Subsidiaries’ solvency. To begin with, Stryker relies on a homebuilding inventory valuation provided to him by Samuels. For all of the reasons set forth above in sections III. A.3.a(ii), (b) — (d), I do not find Samuels’ valuation of the homebuilding inventory assets to be credible or reliable. Had Stryker used the valuations of Hewlett— which I do credit — he too would have found that the consolidated TOUSA enterprise was insolvent both before and after the transaction. Stryker opined that the TOUSA enterprise was solvent by approximately $145 million before the transaction. That is considerably less than the $277 million difference between the inventory valuation he used ($1.360 billion) and the comparable inventory valuation provided by Hewlett ($1.083 billion). (Hewlett valuations of $772 million for TOUSA Homes, Inc., $303 million for Newmark Homes, L.P., and $8 million for TOUSA Mid-Atlantic Investment, LLC). Likewise, Stryker’s post-transaction solvency cushion of $283 million was considerably less than the approximately $400 million difference in post-transaction inventory valuations.

Stryker included on his adjusted balance sheet a $228 million line item labeled “Goodwill and other intangible assets” that does not properly belong there. $63 million of that line item consists of the book value of TOUSA’s goodwill, which both Clancy and Lenhart properly wrote off in order not to overstate the fair value of TOUSA’s assets. A going-concern fair valuation of TOUSA’s homebuilding assets is likely to include at least some, and in some cases all, of the intangible value recorded on the balance sheet as goodwill, because (as

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Clancy and Lenhart agreed) the selling prices of TOUSA’s homes will incorporate that goodwill. To add the entire value of TOUSA’s booked goodwill on top of that going-concern asset valuation — as Stryker did — creates the risk, if not the certainty, of double-counting.

The rest of Stryker’s $228 million figure — which consists of additional value Stryker assigned to TOUSA’s trademarks ($162 million) and workforce ($5 million)— is also unsupported. Neither Lenhart nor Clancy included additional value for these items, and Stryker admitted at trial that the value (if any) attributable to TOUSA’s trademarks and workforce might already have been part of the $63 million in goodwill that TOUSA had recorded on its books. Furthermore, Stryker’s valuation of the trademarks includes a number of assumptions — including the trademarks’ value in the marketplace, the appropriate royalty rate to apply to them, and the rate at which TOUSA’s business would grow in the future — that lack empirical and theoretical footing. If one were simply to remove the $161 million of trademark value from Stryker’s balance sheet, the balance sheet would show the consolidated TOUSA enterprise to be

insolvent

by approximately $16 million just before the transaction on July 31, 2007.

2. William Lenhart’s testimony and report do not show that the Conveying Subsidiaries were solvent

Lenhart opined that, because TOUSA operated as a so-called “common enterprise,” the solvency of TOUSA and the Conveying Subsidiaries must be evaluated on a consolidated basis. Applying both a “balance sheet” and “income” methodology, Lenhart concluded that TOUSA was solvent both before and after the July 31 Transaction. Lenhart further opined that, if one were forced to examine the Conveying Subsidiaries as separate legal entities, he would still find each to be solvent both before and after the July 31 Transaction. For the reasons that follow, I find that Lenhart’s opinions lack sufficient credibility and, in any event, are unpersuasive.

a. Lenhart was not a credible witness

Having heard his testimony and observed his demeanor, I find that Lenhart is not a credible expert witness in this case. I say that for several reasons.

First, Lenhart’s pretrial disclosures and conduct call his credibility at trial into question. Athough Lenhart professed in his report that no court had ever found his methodology to be unreliable, that assertion was simply not true. As the evidence showed, Chief Bankruptcy Judge Gerling in the

Mateo Electronics

case expressly found that Lenhart’s methodology — contained in sworn affidavits submitted in support of a summary judgment motion— was insufficiently reliable, and the court therefore denied summary judgment.

See In re Matco Electronics Group, Inc.,

No. 02-60835, Mem. Decision, Findings of Fact, Conclusions of Law

&

Order at 26, (Bankr.N.D.N.Y. Dec. 19, 2005).

More troubling, Lenhart testified regarding solvency in the

Cablevision Electronics Investments

case. Trial Tr. vol. I, 24, Nov. 29, 2007,

Official Comm. of Unsecured Creditors of TW, Inc. v. Cablevision Sys. Corp. (In re TW, Inc.),

Ch. 11 Case No. 03-10785, Adv. No. 05-50585 (Bankr.D. Del. dismissed Apr. 15, 2009). In the course of being qualified as a solvency expert, Lenhart testified under oath that he had never served as an expert in a case “in which the court did not ultimately adopt [his] insolvency-related conclusions.”

Id.

There were, however, at least two such cases on the books at the time of this 2007 sworn testimony. The first was Chief

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Judge Gerling’s decision in

Matco Electronics.

The second was United States District Judge Sweet’s decision in

Pereira v. Cogan,

294 B.R. 449 (S.D.N.Y.2003),

rev’d on other grounds, Pereira v. Farace,

413 F.3d 330 (2d Cir.2005). Although Len-hart sought to distance himself from

Pereira

— noting that the case was later reversed on appeal (on other grounds, as it turns out) — I find that a plain reading of the decision shows that here, too, a court declined to “ultimately adopt” Lenhart’s “insolvency-related conclusions.” As Len-hart acknowledged, he prepared with trial counsel before testifying in this case, and thus knew that this “ultimately adopt” question was coming. Indeed, Lenhart indicated that he and Defendants’ trial counsel expressly selected the word “ultimately” in the question in order to exclude (putatively) the

Pereira

case from the compass of his answer. Dissembling from a putative expert is extraordinarily troublesome.

Lenhart’s labored effort at trial to account for these pretrial derelictions only heightened my concerns about his credibility. But most troubling of all was Len-hart’s flat contradiction at trial of a crucial portion of his sworn deposition. As I explain more fully elsewhere in these findings and conclusions, Lenhart based his opinion that TOUSA was reasonably capitalized in part on his conclusion that TOU-SA had a “reasonable plan to de-lever its balance sheet.” Not surprisingly, Lenhart was asked at trial how he could square that conclusion with Mon’s “Strategic Alternatives” memo (Ex. 496) in which Mon cast considerable doubt on the efficacy of the de-leveraging plan in late June 2007, two days after the TOUSA Board had already approved the July 31 Transaction. But whereas at his deposition Lenhart had sworn that he had, in fact, “obviously” taken Exhibit 496 “into consideration,” at trial he conceded that he was not sure that he had even

seen

a copy of Exhibit 496 prior to the issuance of his report. Such a fundamental contradiction about a crucial document in the case served to erode further Lenhart’s overall credibility.

b. Lenhart’s “common enterprise” approach

I reject as unpersuasive Lenhart’s opinion that the solvency analysis in this case must be examined on a “common enterprise” basis. First and foremost, this issue presents a question of law: Section 548 is framed in terms of “debtors,” and each of the Conveying Subsidiaries manifestly is a “debtor.” I address this in more detail in the Conclusions of Law.

Beyond that, Lenhart’s “common enterprise” analysis lacks any roots in statutory law and he furnished no standard by which to tell when a complex corporate organization should or should not be considered a “common enterprise.” Most, if not all, of the factors Lenhart cited are, by his own admission, common to many public companies. Finally, I note that in the

Cablevision Electronics Investments

case, Len-hart opined that, unless the doctrine of substantive consolidation applies (and neither Lenhart nor I find it applicable in this case at this juncture), he has “always” analyzed the solvency of a subsidiary-debt- or “on a stand-alone basis.” When asked why this case is different from all his other cases, Lenhart’s distinctions were entirely unpersuasive. I was left with the distinct impression that Lenhart’s testimony on this and many other points was simply unbelievable and that, for the right price,

32

Lenhart would opine as desired on anything.

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In any event, the evidence clearly shows that TOUSA could — and did — rely on the separateness of individual legal entities when it served its best interests. Testimony from many TOUSA employees confirmed that TOUSA routinely recognized the distinctions among its individual subsidiaries. For example, TOUSA filed state and local tax returns on behalf of many of its subsidiaries, as part of a planning process intended to decrease its overall tax burden. The filing of these tax returns required TOUSA to determine financial information for individual subsidiaries on a state by state basis. Berkowitz testified that he believed the information contained in these tax returns accurately stated the relevant financial information for individual subsidiaries and that state tax returns were commonly prepared for a number of the Conveying Subsidiaries.

Steven Sisson, TOUSA’s former Tax Director, was responsible for the preparation of state tax returns. As part of that preparation, he inspected data from TOUSA’s consolidated accounting system and engaged in a “mapping” process to arrive at results for individual subsidiaries. When asked about the accuracy of that process, Sisson described it as “[v]ery accurate,” and testified that the process was “fairly simple in that the divisions operated within particular states. And by being able to map to that particular state I was able to determine what legal entity it was.” Sis-son Dep. 20:1-21:13.

Angela Valdes, TOUSA’s Chief Accounting Officer, testified that she assisted in the preparation of documentation that divided TOUSA’s assets and liabilities by legal entity; a “lot of divisions,” she testified, mapped “cleanly” to a particular legal entity. Valdes Dep. 1/14/09 17:9-18:8. The “trial balance” she helped to create used data from TOUSA’s accounting system, which was then mapped to individual legal entities. Ex. 48; Valdes Dep. 1/14/09 178:3-181:11. The templates, once created, allowed the company to create analyses of individual entities’ financial situations on different dates, including July 31, 2007. Valdes Dep 1/14/09 16:19-22.

Berkowitz’s testimony illustrates several instances in which TOUSA relied on the separateness of the Conveying Subsidiaries. Notably, this includes a document, prepared by Berkowitz, that contains the “Closing Steps” for the Transeastern Settlement. This “Closing Steps” document, which Berkowitz agreed detailed a “lengthy” series of steps, was motivated in part by a desire to maintain losses associated with the Transeastern Settlement as ordinary. Doing so required that the partnership interests in the Transeastern Joint Venture never be held by the same entity — otherwise, TOUSA’s advisors believed, the losses would be characterized as capital losses, and the company would be unable to offset ordinary profits using those losses. As Berkowitz testified, a significant percentage of the entities involved in the “Closing Steps” memorandum were Conveying Subsidiaries.

The relationship between TOUSA, Inc. and the Conveying Subsidiaries was similar to the typical relationship between corporate parents and subsidiaries. TOUSA maintained “process memos” to track in-tercompany transactions, such as the cost of employees that were formally employed by TOUSA Associates Services Company, but whose work benefitted other entities. As Shapiro described it, “TOUSA was a normal corporate structure.” Shapiro Dep. 201:23-24.

From this I conclude that the Conveying Subsidiaries are properly viewed as distinct, individual entities. While TOUSA may have, at times, consolidated some of its record-keeping for the sake of administrative simplicity, its management certain

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ly recognized and relied upon the legal separateness of the entities when they saw some benefit from doing so. The information that TOUSA maintained is sufficient to permit an accurate determination of the insolvency of individual subsidiaries. I therefore decline to adopt Lenhart’s “common enterprise” methodology for evaluating the solvency of the Conveying Subsidiaries in this case.

c. Lenhart’s “balance sheet” analysis

To perform his balance sheet solvency analysis, Lenhart began with essentially the same legal entity balance sheet that Clancy used in his analysis for the Plaintiff. He then used Cannon’s numbers for the major categories of homebuilding inventory, (including unimproved land, land under development, finished lots, unsold homes under construction, and completed unsold homes). As Lenhart acknowledged, the inventory asset account was highly material to his fair value balance sheet, and thus if Cannon’s methodology and numbers were flawed, so too would Lenhart’s analysis. Because I reject Cannon’s inventory valuations for the reasons discussed in section III.A.3.a(ii), (b)-(d), above, I reject Lenhart’s balance sheet solvency analysis both for TOUSA consolidated, as well as for his “legal entity” analysis. Because I have credited Hewlett’s fair valuation of TOUSA’s inventory, I note that Lenhart himself agrees that, with those substantial adjustments, TOU-SA consolidated would be insolvent.

d. Lenhart’s “income” analysis

Lenhart alternatively used an “income” approach — essentially a Discounted Cash Flow — in evaluating TOUSA’s solvency. Lenhart used two different models for his DCF: a base case model developed by TOUSA management for Alix (“Management Base Case” or “Base Case”) and a Modified Downside Scenario that he and his colleagues at BDO Seidman developed. He also used an EBITDA multiple for the terminal year of the DCF model. I am not persuaded by either of Lenhart’s DCF models.

The Management Base Case suffers from a variety of flaws that I address below in more detail in section IV dealing with the Alix solvency opinion. The Base Case model substantially ignored “bottoms-up” input; it failed to revisit or revise year-over-year percentage-increase assumptions in ASP or deliveries even as market realities were deteriorating between April and July 2007; and, as Hewlett demonstrated, it made wildly overoptimistic assumptions about the future— assumptions that TOUSA management itself disbelieved even as it was transmitting the model to Alix and Citi. Lenhart’s DCF models both rely heavily on the Management Base Case and accordingly are just as flawed as the underlying data.

The Modified Downside Scenario also suffers from independent flaws. For one thing, although it purports to be a “downside” model, several of its key assumptions are the same as or, in the case of future ASP’s, actually more optimistic than the Management Base Case. For another, Lenhart never considered testing assumptions that, if valid, would have resulted in negative equity. In light of all the evidence in the case — including Hewlett’s realistic projections of future ASP’s and sales volumes which I have found to be credible and persuasive — I reject as unpersuasive both models that underlie Len-hart’s income approach to solvency.

D. The conclusions reached by Plaintiffs expert

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