CONTINGENCIES AND COMMITMENTS | 3 Months Ended |
Mar. 27, 2015 |
Commitments and Contingencies Disclosure [Abstract] | |
CONTINGENCIES AND COMMITMENTS | 8. CONTINGENCIES AND COMMITMENTS |
Guarantees |
We have historically issued guarantees to certain lenders in connection with the provision of third-party financing for our sale of vacation ownership products for the North America and Asia Pacific segments. The terms of these guarantees generally require us to fund if the purchaser fails to pay under the term of its note payable. Prior to the Spin-Off, Marriott International guaranteed our performance under these arrangements, and following the Spin-Off continues to hold a standby letter of credit related to the Asia Pacific segment guarantee. If Marriott International is required to fund any draws by lenders under this letter of credit it would seek recourse from us. Marriott International no longer guarantees our performance with respect to third-party financing for sales of products in the North America segment. We are entitled to recover any funding to third-party lenders related to these guarantees through reacquisition and resale of the financed vacation ownership product. Our commitments under these guarantees expire as notes mature or are repaid. The terms of the underlying notes extend to 2022. |
The following table shows the maximum potential amount of future fundings for financing guarantees where we are the primary obligor and the carrying amount of the liability for expected future fundings, which is included on our Balance Sheet in the Other caption within Liabilities. |
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($ in thousands) | | Maximum Potential | | | Liability for Expected | |
Amount of Future Fundings | Future Fundings |
At March 27, 2015 | At March 27, 2015 |
Segment | | | | | | | | |
Asia Pacific | | $ | 7,453 | | | $ | 56 | |
North America | | | 2,846 | | | | 210 | |
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Total guarantees where we are the primary obligor | | $ | 10,299 | | | $ | 266 | |
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Commitments and Letters of Credit |
In addition to the guarantees we describe in the preceding paragraphs, as of March 27, 2015, we had the following commitments outstanding: |
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| • | | We have various contracts for the use of information technology hardware and software that we use in the normal course of business. Our aggregate commitments under these contracts were $32.6 million, of which we expect $10.5 million, $8.1 million, $6.0 million, $2.5 million, $1.4 million and $4.1 million will be paid in 2015, 2016, 2017, 2018, 2019 and thereafter, respectively. | | | | | |
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| • | | We have commitments to subsidize vacation ownership associations of $4.0 million, which we expect to pay in 2015. | | | | | |
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| • | | We have a commitment of $75.5 million to purchase vacation ownership units located in Miami, Florida, contingent upon completion of construction and receipt of a certificate of occupancy, for use in our MVCD program. We made a deposit of $3.8 million in connection with this commitment in 2014, and we are committed to make an additional deposit of $3.8 million upon the seller’s receipt of a temporary certificate of occupancy and the remaining payment of $67.9 million upon acquisition of the units in 2015. We are currently evaluating the use of a capital efficient arrangement to delay the timing of this capital investment. | | | | | |
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| • | | We have a commitment of $38.5 million to purchase vacation ownership units located on the Big Island of Hawaii, for use in our MVCD program, contingent upon the seller subjecting the units to a condominium regime prior to our purchase. We made a deposit of $1.5 million in connection with this commitment in 2014, and we are committed to make the remaining payment of $37.0 million in 2015. Upon acquisition, we are committed to renovate the units pursuant to a property improvement plan to be agreed upon at a later date, for which an additional $45.0 million to $55.0 million is required to be funded. We are currently evaluating the use of a capital efficient arrangement to delay the timing of this capital investment. | | | | | |
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| • | | We have a commitment of $137.1 million to purchase vacation ownership units located in Marco Island, Florida, of which we expect $33.3 million, $50.0 million and $53.8 million will be paid in 2017, 2018 and 2019, respectively. See Footnote No. 5, “Acquisitions and Dispositions,” for additional information on this transaction. | | | | | |
Surety bonds issued as of March 27, 2015 totaled $73.8 million, the majority of which were requested by federal, state or local governments related to our operations. |
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Additionally, as of March 27, 2015, we had $3.3 million of letters of credit outstanding under our $200 million revolving credit facility (the “Revolving Corporate Credit Facility”). |
Loss Contingencies |
In December 2012, Jon Benner, an owner of fractional interests at The Ritz-Carlton Club and Residences, San Francisco (the “RCC San Francisco”), filed suit in Superior Court for the State of California, County of San Francisco, against us and certain of our subsidiaries on behalf of a putative class consisting of all owners of fractional interests at the RCC San Francisco who allegedly did not receive proper notice of their payment obligations under California’s Mello-Roos Community Facilities Act of 1982 (the “Mello-Roos Act”). The plaintiff alleged that the disclosures made about bonds issued for the project under this Act and the payment obligations of fractional interest purchasers with respect to such bonds were inadequate, and this and other alleged statutory violations constituted intentional and negligent misrepresentation, fraud and fraudulent concealment. The relief sought included damages in an unspecified amount, rescission of the purchases, restitution and disgorgement of profits. In September 2014, we reached an agreement in principle to settle the Benner action, which agreement was subject to court approval because the case is a putative class action. The court approved the settlement on March 31, 2015. At March 27, 2015, we have an accrual of $2.9 million related to the settlement. |
In December 2012, Steven B. Hoyt and Bradley A. Hoyt, purchasers of fractional interests in two of The Ritz-Carlton Destination Club projects, filed suit in the United States District Court for the District of Minnesota against us, certain of our subsidiaries and The Ritz-Carlton Hotel Company on behalf of a putative class consisting of all purchasers of fractional interests at The Ritz-Carlton Destination Club projects. The plaintiffs alleged that program changes beginning in 2009 caused an actionable decrease in the value of the fractional interests purchased. The relief sought included declaratory and injunctive relief, damages in an unspecified amount, rescission of the purchases, restitution, disgorgement of profits, interest and attorneys’ fees. In response to our motion to dismiss the original complaint, plaintiffs filed an amended complaint. In response, we filed a renewed motion to dismiss. On February 7, 2014, the court issued an order granting that motion in part and denying it in part. In November 2014, the court granted our motion for partial judgment on the pleadings clarifying the scope of the single remaining claim in the case. We have reached an agreement in principle to settle the case for a nominal amount. |
In January 2013, Krishna and Sherrie Narayan and other owners of 12 residential units at the resort formerly known as The Ritz-Carlton Residences, Kapalua Bay (“Kapalua Bay”) were granted leave by the court to file, and subsequently did file, an amended complaint related to a suit originally filed in Circuit Court for Maui County, Hawaii in June 2012 against us, certain of our subsidiaries, Marriott International, certain of its subsidiaries, and the joint venture in which we have an equity investment that developed and marketed vacation ownership and residential products at Kapalua Bay (the “Joint Venture”). In the original complaint, the plaintiffs alleged that defendants mismanaged funds of the residential owners association (the “Kapalua Bay Association”), created a conflict of interest by permitting their employees to serve on the Kapalua Bay Association’s board, and failed to disclose documents to which the plaintiffs were allegedly entitled. The amended complaint alleges breach of fiduciary duty, violations of the Hawaii Unfair and Deceptive Trade Practices Act and the Hawaii condominium statute, intentional misrepresentation and concealment, unjust enrichment and civil conspiracy. The relief sought in the amended complaint includes injunctive relief, repayment of all sums paid to us and our subsidiaries and Marriott International and its subsidiaries, compensatory and punitive damages, and treble damages under the Hawaii Unfair and Deceptive Trade Practices Act. We dispute the material allegations in the amended complaint and continue to defend against this action vigorously. In August 2013, the Hawaii Intermediate Court of Appeals reversed the Maui Circuit Court’s denial of our motion to compel arbitration of the claims asserted by plaintiffs. The Circuit Court subsequently granted our renewed motion to compel arbitration and referred the matter to arbitration. The Hawaii Supreme Court thereafter agreed to review the decision of the Intermediate Court of Appeals and heard oral argument in the case in April 2014, but has not yet taken any action to affirm or reverse that decision. Additionally, in 2014, owners of two residential units agreed to release their claims in this action. Given the inherent uncertainties of litigation, we cannot estimate a range of the potential liability, if any, at this time. |
In June 2013, Earl C. and Patricia A. Charles, owners of a fractional interest at Kapalua Bay, together with owners of 38 other fractional interests at Kapalua Bay, filed an amended complaint in the Circuit Court of the Second Circuit for the State of Hawaii against us, certain of our subsidiaries, Marriott International, certain of its subsidiaries, the Joint Venture, and other entities that have equity investments in the Joint Venture. The amended complaint supersedes a prior complaint that was not served on any defendant. The plaintiffs allege that the defendants failed to disclose the financial condition of the Joint Venture and the commitment of the defendants to the Joint Venture, and that defendants’ actions constituted fraud and violated the Hawaii Unfair and Deceptive Trade Practices Act, the Hawaii Condominium Property Act and the Hawaii Time Sharing Plans statute. The relief sought includes compensatory and punitive damages, attorneys’ fees, pre-judgment interest, declaratory relief, rescission and treble damages under the Hawaii Unfair and Deceptive Trade Practices Act. The complaint was subsequently further amended to add owners of two additional fractional interests as plaintiffs. The Circuit Court granted our motion to compel arbitration of the claims asserted by the plaintiffs, and the parties are currently engaged in arbitration. We dispute the material allegations in the amended complaint and in the statement of claim filed in the arbitration, and intend to defend against this action vigorously. Given the early stages of the action and the inherent uncertainties of litigation and arbitration, we cannot estimate a range of the potential liability, if any, at this time. Additionally, owners of two fractional interests have since agreed to release their claims in this action, and the owners of another fractional interest, who are not parties to the Charles action, have agreed to release similar claims, in each instance for nominal sums. |
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In June 2013, owners of 35 residences and lots at The Abaco Club on Winding Bay (“The Abaco Club”) in the Bahamas filed a complaint in Orange County, Florida Circuit Court against us, one of our subsidiaries, certain subsidiaries of Marriott International and the resort’s owners’ association, alleging that the defendants failed to maintain the golf course, golf clubhouse, roads, water supply system, and other facilities and equipment in a manner commensurate with a five-star luxury resort, and certain deficiencies in the quality of services provided at the resort. The plaintiffs also alleged that the defendants failed to honor an obligation to extend a right of first offer to club owners in connection with plans to sell the club property. The plaintiffs alleged statutory and common law claims for breach of contract, breach of fiduciary duty, and fraud and sought compensatory and punitive damages. We filed a motion to dismiss the complaint. In April 2014, this action was abated for a period after we entered into a non-binding letter of intent to dispose of undeveloped and partially developed land, an operating golf course, spa and clubhouse and related facilities at The Abaco Club to an entity to be comprised of certain members of The Abaco Club, including certain of the plaintiffs, and others. Upon the closing of the sale in December 2014, all claims asserted against us in this matter were dismissed with prejudice. |
In May 2014, we received notices of intent to initiate litigation or arbitration from: Michael and Marla Flynn, owners of weeks-based Marriott Vacation Club vacation ownership products at two of our resorts in Hawaii; William Sterman, an owner of such products at one of our resorts in Massachusetts; and Norman and Carreen Abramson, owners of such products at one of our resorts in California. The claimants, all of whom are represented by a single law firm, allege that the introduction of the MVCD program caused an actionable decrease in the value of their vacation ownership interests. The claimants stated that, if a satisfactory resolution of their concerns could not be achieved, they would pursue their claims through litigation or arbitration, each on behalf of a putative class consisting of themselves and all others similarly situated. The notices indicated that the relief that would be sought would include compensatory and exemplary damages, restitution, injunctive relief, interest and attorneys’ fees pursuant to applicable timeshare and unfair trade practices acts and common-law theories of breach of contract and breach of an implied covenant of good faith and fair dealing. The Flynns filed a claim based on the above allegations with the American Arbitration Association on August 6, 2014. We initiated a declaratory judgment action in the United States District Court of Hawaii against the Flynns, seeking to enjoin the arbitration proceedings. In December 2014, the Court ruled that the arbitrability of the Flynns’ claims must be resolved by an arbitrator. We appealed that decision to the United States Court of Appeals for the Ninth Circuit. The Court granted our motion to expedite the appeal. On March 30, 2015, the arbitrator ruled that the Flynns’ claims are not subject to arbitration, and dismissed the Flynn proceeding. As a result of the arbitrator’s ruling that the Flynns’ claims are not subject to arbitration, we dismissed as moot our appeal in the Ninth Circuit. Mr. Sterman filed a claim based on the above allegations with the American Arbitration Association in August 2014. We initiated a declaratory judgment action in the United States District Court for the Middle District of Florida against Mr. Sterman, seeking to enjoin the arbitration proceedings. On January 16, 2015, the Court ruled that the arbitrability of Mr. Sterman’s claims must be resolved by an arbitrator. We appealed that decision to the United States Court of Appeals for the Eleventh Circuit. The Court granted our motion to expedite the appeal, which remains pending. On March 30, 2015, the arbitrator ruled that Mr. Sterman’s claims were subject to arbitration, but reserved judgment on our motion to dismiss the arbitration for other reasons. On January 29, 2015, the Abramsons filed an action in the United States District Court for the Central District of California based on the above allegations. On March 30, 2015, we filed a motion to dismiss the Abramson action, which remains pending. We dispute the material allegations in the arbitration claim, as well as the allegations in the California action, and intend to defend against them vigorously. Given the early stages of the arbitration and litigation proceedings, we cannot estimate a range of potential liability, if any, at this time. |
Other |
We estimate the cash outflow associated with completing the phases of our existing portfolio of vacation ownership projects currently under development will be approximately $16.1 million, of which $4.4 million is included within liabilities on our Balance Sheet at March 27, 2015. This estimate is based on our current development plans, which remain subject to change, and we expect the phases currently under development will be completed by 2017. |