Regulation

Beazer Sues Bank for Default “Campaign”

The troubled homebuilder says one of its lenders is trying to force it into default.
Marie LeoneAugust 22, 2007

Beazer Homes USA filed a lawsuit on Tuesday against the trustee of a bank that loaned the company $1.3 billion. The embattled homebuilder claims that U.S. Bank National Association wants to force the company to file its delinquent quarterly financials by August 24 or be declared in default of its debt obligation.

In its complaint, Beazer, beaten up by bankruptcy rumors in May, accuses the bank of taking part in a campaign to speed up the default process on behalf of bondholders, which include hedge funds and other “opportunistic investors.” Beazer alleges that the investors bought Beazer bonds at depressed rates and are “now improperly seeking to secure a windfall by demanding accelerated repayment in full.”

U.S. Bank declined to comment on the suit.

Beazer disclosed earlier this month that it would delay its quarterly filing as a result of preliminary findings of an internal probe. The company explained that since the probe was ongoing, it would not be able to determine whether it would need to adjust previously issued financials or whether the release of any part of the affected reserves or accrued liabilities would affect the company’s financials for the quarter. And while Beazer believed that the amounts in question were not “quantitatively material,” the company chose to delay its Securities and Exchange Commission filing for the period ended June 30.

Beazer disclosed its decision to delay the report in a Form 8-K filed on August 15. The company also delivered a copy of the 8-K to U.S. Bank and its bondholders within 15 days of the filing, as it is required to do under the terms of the bank’s indenture agreement.

But news of the filing delay prompted U.S. Bank to “threaten Beazer with a declaration of default” if the tardy quarterly report isn’t filed with the SEC and delivered to the trustee and bondholders by August 24, alleges Beazer. The default deadline is 15 days from the date that the Form 10-Q was originally due to be filed with the SEC.

According to Beazer’s complaint, U.S. Bank’s claim that the homebuilder is in breach of its indentures is wrong. Beazer points out that its obligation to deliver copies of SEC filings to the bank and bondholders “arises only after those reports are actually filed with the SEC.” Further, the indentures impose no requirements for Beazer to file the reports with the SEC by any particular day, the suit notes.

Beazer also charges that the assertion that an impending default would trigger immediate payback of its loan has hurt the company’s reputation and caused its credit rating to be downgraded. The lawsuit notes that the rating agencies cite the debt covenants and the uncertainty over the default issue as reasons for the downgrade.

As a result, Beazer is asking the court to rule that it isn’t required to provide the 10-Q to the bank and bondholders until 15 days after it files with the SEC. The company is also asking the court to ban U.S. Bank from taking any further action towards accelerating repayment of the loan.

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