KB HOME, Company, THE EXISTING GUARANTORS PARTY HERETO, Guarantors, KB HOME ORLANDO LLC, Additional Guarantor, and SUNTRUST BANK, Trustee THIRD SUPPLEMENTAL INDENTURE Dated as of May 1, 2006
EXHIBIT 10.26
KB HOME,
Company,
Company,
THE EXISTING GUARANTORS PARTY HERETO,
Guarantors,
Guarantors,
KB HOME ORLANDO LLC,
Additional Guarantor,
Additional Guarantor,
and
SUNTRUST BANK,
Trustee
Trustee
Dated as of May 1, 2006
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THIS THIRD SUPPLEMENTAL INDENTURE is dated as of May 1, 2006 (this “Third Supplemental
Indenture”), between KB HOME, a Delaware corporation (the “Company”), the Existing
Guarantors (as defined below), KB HOME ORLANDO LLC, a Delaware limited liability company (the
“Additional Guarantor”), and SUNTRUST BANK, a banking association duly organized and
existing under the laws of Georgia (the “Trustee”).
RECITALS:
WHEREAS, the Company, the Existing Guarantors and the Trustee have heretofore executed and
delivered an Indenture dated as of January 28, 2004 (the “Original Indenture”), which
Original Indenture has been previously amended and supplemented by a First Supplemental Indenture
dated as of January 28, 2004 (the “First Supplemental Indenture”), and a Second
Supplemental Indenture dated as of June 30, 2004 (the “Second Supplemental Indenture”; the
Original Indenture, as amended and supplemented by the First Supplemental Indenture, the Second
Supplemental Indenture and this Third Supplemental Indenture, is hereinafter called the
“Indenture”, which term shall include the terms and provisions of each series of Securities
(as defined in the Original Indenture) established from time to time pursuant to Section 301 of the
Original Indenture), providing for the issuance by the Company from time to time of its Securities;
WHEREAS, pursuant to Articles Two and Three of the Original Indenture, the Company has
established (i) by the First Supplemental Indenture, the form and terms of a series of the
Company’s Securities designated the “53/4% Senior Notes due 2014” (the “2014 Notes”), (ii) by
the Second Supplemental Indenture, the form and terms of a series of the Company’s Securities
designated the “6-3/8% Senior Notes due 2011” (the “2011 Notes”), (iii) by an Officers’
Certificate and Guarantors’ Officers’ Certificate, dated as of December 15, 2004, the form and
terms of a series of the Company’s Securities designated the “5-7/8% Senior Notes due 2015” (the
“2015 Notes”), (iv) by Officers’ Certificates and Guarantors’ Officers’ Certificates, dated
as of June 2, 2005 and June 27, 2005, the form and terms of a series of the Company’s Securities
designated the “6-1/4% Senior Notes due 2015” (the “Second 2015 Notes”), and (v) by an
Officers’ Certificate and Guarantors’ Officers’ Certificate, dated as of April 3, 2006, the form
and terms of a series of the Company’s Securities designated the “7-1/4% Senior Notes due 2018”
(the “2018 Notes,” and together with the 2014 Notes, the 2011 Notes, the 2015 Notes and the
Second 2015 Notes, the “Senior Notes”) (the Officers’ Certificates and Guarantors’
Officers’ Certificates referred to in clauses (iii), (iv) and (v) of this paragraph are hereinafter
called, together, the “Existing Certificates”);
WHEREAS, concurrently with the execution and delivery of this Third Supplemental Indenture,
the Additional Guarantor is becoming a party to, and is guaranteeing the obligations of the Company
under, that certain Revolving Loan Agreement, dated as of November 22, 2005, between the Company,
the banks party thereto, Bank of America, N.A. as Administrative Agent, Citicorp North America,
Inc. and JPMorgan Chase Bank, N.A. as Co-Syndication Agents, Calyon New York Branch, Wachovia Bank,
N.A., Barclays Bank plc and The Royal Bank of Scotland plc as Co-Documentation Agents and Banc of
America Securities LLC and Citigroup Global Markets Inc. as Joint Lead Arrangers and Joint Book
Managers;
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WHEREAS, pursuant to Section 1614 of the Original Indenture, the Company, the Existing
Guarantors and the Additional Guarantor wish to amend and supplement the Indenture to provide for
the Additional Guarantor to become a Guarantor (as defined in the Original Indenture) under the
Indenture and to guarantee the obligations of the Company under the Indenture and the Securities
(including, without limitation, the Senior Notes) issued thereunder from time to time and any
Coupons appertaining thereto, and otherwise to modify the Indenture on the terms set forth in this
Third Supplemental Indenture; and
WHEREAS, the Company has requested that the Trustee execute and deliver this Third
Supplemental Indenture pursuant to Section 901(10) of the Original Indenture, and all requirements
necessary to make this Third Supplemental Indenture a valid instrument in accordance with its terms
have been performed and the execution and delivery of this Third Supplemental Indenture have been
duly authorized in all respects by the Company, each of the Existing Guarantors and the Additional
Guarantor.
NOW, THEREFORE, for and in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, the
Existing Guarantors, the Additional Guarantor and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the Holders (as defined in the Original Indenture) of the
Securities or any series thereof and any Coupons, as follows:
SECTION 1. Definitions.
(a) Terms used herein and not defined herein have the meanings ascribed to such terms in the
Original Indenture.
(b) As used in this Third Supplemental Indenture, the terms “2011 Notes,” “2014 Notes,” “2015
Notes,” “2018 Notes,” “Additional Guarantor,” “Existing Certificates,” “First Supplemental
Indenture,” “Original Indenture,” “Second Supplemental Indenture,” “Senior Notes” and “Third
Supplemental Indenture” have the meanings specified in the recitals hereto and in the paragraph
preceding such recitals; and the term “Existing Guarantors” means the Guarantors who signed the
Original Indenture.
SECTION 2. Guarantee. The parties hereto covenant and agree that, from and after the
date of this Third Supplemental Indenture:
(a) the Additional Guarantor shall be a Guarantor under the Original Indenture, the First
Supplemental Indenture and the Second Supplemental Indenture as if the Additional Guarantor were an
original signatory to each such document and an original Guarantor named therein;
(b) without limitation to the other provisions of this Section 2, the Additional Guarantor
shall be a Guarantor under the Indenture with respect to all of the Securities issued and
outstanding thereunder from time to time (including, without limitation, the Senior Notes) and any
Coupons appertaining thereto on and subject to the terms and provisions of the Indenture
(including, without limitation, the terms and provisions of the Existing Certificates);
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(c) without limitation to the other provisions of this Section 2, the Additional Guarantor
agrees that each of the Original Indenture, the First Supplemental Indenture and the Second
Supplemental Indenture constitutes a valid and binding obligation of the Additional Guarantor,
enforceable against the Additional Guarantor in accordance with its terms; and
(d) without limitation to the other provisions of this Section 2, the Additional Guarantor
agrees to perform and to comply with all of the covenants and agreements of a Guarantor in the
Original Indenture, the First Supplemental Indenture and the Second Supplemental Indenture and each
of the Existing Certificates, in each case as if the Additional Guarantor were an original
signatory thereto and an original Guarantor named therein.
SECTION 3. Governing Law; Third Supplemental Indenture. This Third Supplemental
Indenture shall be governed by and construed in accordance with the laws of the State of New York
applicable to agreements made or instruments entered into and, in each case, performed in said
State. The terms and conditions of this Third Supplemental Indenture shall be, and be deemed to
be, part of the terms and conditions of the Indenture for any and all purposes. Other than as
amended and supplemented by this Third Supplemental Indenture, the Original Indenture, as amended
and supplemented by the First Supplemental Indenture and the Second Supplemental Indenture, is in
all respects ratified and confirmed.
SECTION 4. Acceptance by Trustee. Subject to Section 7 hereof, the Trustee hereby
accepts this Third Supplemental Indenture and agrees to perform the same upon the terms and
conditions set forth in the Original Indenture, as amended and supplemented by the First
Supplemental Indenture and the Second Supplemental Indenture.
SECTION 5. Counterparts. This Third Supplemental Indenture may be executed in two or
more counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute but one instrument.
SECTION 6. Headings. The headings of this Third Supplemental Indenture are for
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 7. Trustee Not Responsible for Recitals. The recitals herein contained are
made by the Company, the Existing Guarantors and the Additional Guarantor and not by the Trustee,
and the Trustee assumes no responsibility for the correctness thereof. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Third
Supplemental Indenture, except as to its validity with respect to the Trustee.
SECTION 8. Separability. In case any one or more of the provisions contained in this
Third Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof shall not, to the fullest extent permitted by
law, in any way be affected or impaired thereby.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be
duly executed, and their respective seals to be hereunto affixed, all as of the day and year first
above written.
“Company”: | KB HOME | |||
By: | /s/ XXXXX X. XXXXXX | |||
Name: Xxxxx X. Xxxxxx | ||||
Title: Vice President, Treasury | ||||
[SEAL] |
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Attest: |
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/s/ XXXX XXXXXXXXX
|
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Name: Xxxx Xxxxxxxxx |
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Title: Assistant Secretary |
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“Existing Guarantors”: | KB HOME PHOENIX INC., an Arizona corporation | |||
By: | /s/ XXXXX X. XXXXXX | |||
Name: Xxxxx X. Xxxxxx | ||||
Title: Vice President and Treasurer | ||||
[SEAL] |
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Attest: |
||||
/s/ XXXX XXXXXXXXX
|
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Name: Xxxx Xxxxxxxxx |
||||
Title: Secretary |
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KB HOME COASTAL INC., a California corporation | ||||
By: | /s/ XXXXX X. XXXXXX | |||
Name: Xxxxx X. Xxxxxx | ||||
Title: Vice President and Treasurer | ||||
[SEAL] |
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Attest: |
||||
/s/ XXXX XXXXXXXXX
|
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Name: Xxxx Xxxxxxxxx |
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Title: Secretary |
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KB HOME NORTH BAY INC., a California corporation | ||||
By: | /s/ XXXXX X. XXXXXX | |||
Name: Xxxxx X. Xxxxxx | ||||
Title: Vice President and Treasurer | ||||
[SEAL] |
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Attest: |
||||
/s/ XXXX XXXXXXXXX
|
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Name: Xxxx Xxxxxxxxx |
||||
Title: Secretary |
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KB HOME SOUTH BAY INC., a California corporation | ||||
By: | /s/ XXXXX X. XXXXXX | |||
Name: Xxxxx X. Xxxxxx | ||||
Title: Vice President and Treasurer | ||||
[SEAL] |
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Attest: |
||||
/s/ XXXX XXXXXXXXX
|
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Name: Xxxx Xxxxxxxxx |
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Title: Secretary |
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KB HOME GREATER LOS ANGELES INC., a California corporation | ||||
By: | /s/ XXXXX X. XXXXXX | |||
Name: Xxxxx X. Xxxxxx | ||||
Title: Vice President and Treasurer | ||||
[SEAL] |
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Attest: |
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/s/ XXXX XXXXXXXXX
|
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Name: Xxxx Xxxxxxxxx |
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Title: Secretary |
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KB HOME COLORADO INC., a Colorado corporation | ||||
By: | /s/ XXXXX X. XXXXXX | |||
Name: Xxxxx X. Xxxxxx | ||||
Title: Vice President and Treasurer | ||||
[SEAL] |
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Attest: |
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/s/ XXXX XXXXXXXXX
|
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Name: Xxxx Xxxxxxxxx |
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Title: Secretary |
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KB HOME NEVADA INC., a Nevada corporation | ||||
By: | /s/ XXXXX X. XXXXXX | |||
Name: Xxxxx X. Xxxxxx | ||||
Title: Vice President and Treasurer | ||||
[SEAL] |
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Attest: |
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/s/ XXXX XXXXXXXXX
|
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Name: Xxxx Xxxxxxxxx |
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Title: Secretary |
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KB HOME LONE STAR LP, a Texas limited partnership | ||||
By: | KBSA, INC., a Texas corporation, | |||
Its general partner | ||||
By: | /s/ XXXXX X. XXXXXX | |||
Name: Xxxxx X. Xxxxxx | ||||
Title: Vice President and Treasurer | ||||
[SEAL] |
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Attest: |
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/s/ XXXX XXXXXXXXX
|
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Name: Xxxx Xxxxxxxxx |
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Title: Secretary |
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“Additional Guarantor”: | KB HOME ORLANDO LLC, a Delaware limited liability company | |||
By: | KB HOME FLORIDA LLC, a Delaware limited liability company, Its sole member |
|||
By: | /s/ XXXXX X. XXXXXX | |||
Name: Xxxxx X. Xxxxxx | ||||
Title: Vice President and Treasurer | ||||
[SEAL] |
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Attest: |
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/s/ XXXX XXXXXXXXX
|
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Title: Secretary |
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“Trustee”: | SUNTRUST BANK, | |||
as Trustee | ||||
By: | /s/ XXXXXX XXXX | |||
Name: Xxxxxx Xxxx | ||||
Title: Assistant Vice President | ||||
[SEAL] |
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Attest: |
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/s/ XXXX XXXXXXX
|
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Name: Xxxx Xxxxxxx |
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Title: Vice President |
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