exv10w39



 






Exhibit 10.39




FOURTH AMENDMENT AGREEMENT



This Fourth Amendment Agreement dated as of January 25, 2008 (“Amendment”) is entered into with
reference to the Revolving Loan Agreement dated as of November 22, 2005 (as modified, amended,
renewed, extended, and restated from time to time, the “Loan Agreement”), among KB HOME, a Delaware
corporation (“Borrower”), the Banks party thereto, and Bank of America, N.A., as Administrative
Agent. Borrower and the Administrative Agent, acting on behalf of the Required Banks under the
Loan Agreement, agree to amend the Loan Agreement as follows:





	1.	 	Definitions. Capitalized terms used but not defined herein have the meanings set
forth in the Loan Agreement.
	 
	2.	 	Reduction of Commitment from $1,500,000,000 to $1,300,000,000.






	 	(a)	 	The definition of “Commitment” contained in Section 1.1 of the Loan Agreement
is amended to read in its entirety as follows:






“Commitment” means, subject to Sections 2.6, 2.7 and 2.9, $1,300,000,000.
The Pro Rata Shares of the Banks with respect to the Commitment are set
forth in Schedule 1.1.




	 	(b)	 	Schedule 1.1 of the Loan Agreement is amended to read in its entirety as set
forth in Annex I.






	3.	 	Amendment to Consolidated Tangible Net Worth Covenant. Section 6.9 of the Loan
Agreement shall be amended to read in its entirety as follows:






	 	6.9	 	Consolidated Tangible Net Worth. Permit Consolidated Tangible Net Worth to be, at the end of any Fiscal
Quarter, less than an amount equal to (a) $1,000,000,000, plus (b) an amount
equal to 50% of aggregate of the cumulative Consolidated Net Income for each Fiscal
Quarter contained in the fiscal period commencing on December 1, 2007 and ending as of
the last day of such Fiscal Quarter (provided that there shall be no reduction
hereunder in the event of a consolidated net loss in any such Fiscal Quarter),
plus (c) an amount equal to 50% of the cumulative net proceeds received by
Borrower from the issuance of its capital stock subsequent to November 30, 2007.






	4.	 	No Fiduciary Relationship. A new Section 11.29 is added to the Loan Agreement to
read in its entirety as follows:






	 	11.29	 	No Fiduciary Relationship. The Borrower hereby acknowledges that
none of the Administrative Agent, the Banks or their Affiliates has any fiduciary
relationship with or duty to the Borrower or any of its Affiliates arising out of or
in connection with the Loan Documents, and the relationship between the Administrative
Agent, the Banks or any of their Affiliates, on the one hand, and the Borrower or its
Affiliates, on the other hand, in connection with the Loan Documents is solely that of
debtor and creditor.






	5.	 	Consent Fee. Borrower agrees to pay to the Administrative Agent, for the account
of each “Consenting Bank” (as defined in Annex II), a fee equal to 0.100% of the Pro Rata
Share of the Commitment (as modified by the amendment in Section 2 above) held by such
Consenting Bank




 









 












	6.	 	(the “Consent Fee”). The Consent Fee shall be payable to the Consenting Banks only if
Consenting Banks constitute Required Banks and shall be paid by Borrower promptly after
receipt of consents from Required Banks. Upon payment by Borrower, the Consent Fee
received by each Consenting Bank shall be fully earned and nonrefundable.






	7.	 	Conditions Precedent. The effectiveness of this Amendment is conditioned upon the
receipt by the Administrative Agent of:






	 	(a)	 	written consents to the execution, delivery and performance hereof from the
Required Banks under the Loan Agreement;
	 
	 	(b)	 	the Consent Fee from the Borrower in the amount payable to each Consenting
Bank; and
	 
	 	(c)	 	such other fees and expenses in such amounts and at such times as heretofore
set forth in a letter agreement between Borrower and the Administrative Agent and as
otherwise required under the Loan Agreement.






	8.	 	Representations and Warranties. Borrower represents and warrants to the
Administrative Agent and the Banks that: No Default or Event of Default has occurred and
remains continuing and that each of the representations and warranties of Borrower
(other than the representations and warranties contained in Sections
4.4(a), 4.6, 4.9, 4.18 and 4.19 of the Loan
Agreement) contained in Article IV of the Loan Agreement (each as updated from time
to time in accordance with the terms of the Loan Agreement, and except that the financial
statements referred to in Section 4.7(a) of the Loan Agreement shall be deemed to
refer to the most recent financial statements delivered pursuant to Section 7.1(a) of
the Loan Agreement and the Borrowing Base Certificate referred to in Section 4.7(b)
of the Loan Agreement shall be deemed to refer to the most recent Borrowing Base Certificate
delivered pursuant to Section 2.8 of the Loan Agreement) is true and correct in all
material respects as of the date hereof (other than those which relate by their terms solely
to another date).






	9.	 	Effect of One Time Consent; Confirmation. Except to the limited extent expressly
set forth in this Amendment, no consent or waiver, express or implied, by the Administrative
Agent or any Bank to or for any breach of or deviation from any covenant, condition or duty
by any Loan Party may be deemed a consent or waiver to or of any other breach of the same or
any other covenant, condition or duty. In all other respects, the terms of the Loan
Agreement and the other Loan Documents are confirmed.





[signatures continued on following page]





 









 







IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the
date first written above.




	 	 	 	 	 
	 	KB HOME, a Delaware corporation 

 	 
	 	By:  	/s/ Kelly K. Masuda
 	 
	 	 	Kelly K. Masuda                                                                        	 
	 
	 	Its:  	Senior Vice President and Treasurer 	 
	 
	 	BANK OF AMERICA, N.A., as Administrative Agent and as a Bank 

 	 
	 	By:  	/s/ Mark Mokelke
 	 
	 	 	Mark Mokelke                                                                           	 
	 
	 	Its:  	 Vice President