EXHIBIT 4.4
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of NOVEMBER 1, 2011, by and among the parties listed onSchedule A hereto (each an “Additional Guarantor” and collectively, the “Additional Guarantors”) and THE BANK OF NEW YORK MELLON, as trustee (the “Trustee”). Capitalized terms used in this First Supplemental Indenture and not otherwise defined herein (including terms used on Exhibit A attached hereto) shall have the meanings ascribed to them in the Indenture (as defined on Exhibit A attached hereto).
RECITALS
WHEREAS, Section 4.04 of the Indenture provides that if in accordance with the provisions of the Bank Credit Facility the Company adds, or causes to be added, any Subsidiary that was not a Guarantor at the time of execution of the Original Indenture as a guarantor under the Bank Credit Facility, such Subsidiary shall contemporaneously become a Guarantor under the Indenture;
WHEREAS, desiring to become a Guarantor under the Indenture, each of the Additional Guarantors is executing and delivering this Second Supplemental Indenture; and
WHEREAS, the consent of Holders to the execution and delivery of this Second Supplemental Indenture is not required, and all other actions required to be taken under the Indenture with respect to this Second Supplemental Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
Section 1.Joinder. Each Additional Guarantor agrees that by its entering into this Second Supplemental Indenture it hereby unconditionally guarantees all of the Issuer’s obligations under (i) the 8.91% Senior Notes, (ii) the 6.75% Senior Notes, (iii) any other Securities of any Series that has the benefit of Guarantees of other Subsidiaries of the Company, and (ii) the Indenture (as it relates to all such Series) on the terms set forth in the Indenture, as if each such Additional Guarantor was a party to the Original Indenture.
Section 2.Ratification of Indenture. This Second Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Indenture, and as supplemented and modified hereby, the Indenture is in all respects ratified and confirmed, and the Indenture and this Second Supplemental Indenture shall be read, taken and construed as one and the same instrument.
Section 3.Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
Section 4.Successors and Assigns. All covenants and agreements in this First Supplemental Indenture by each Additional Guarantor shall bind each such Additional Guarantor’s successors and assigns, whether so expressed or not.
Section 5.Separability Clause. In case any one or more of the provisions contained in this SecondSupplemental Indenture shall for any reason be held to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 6.Governing Law. This Second Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York. This Second Supplemental Indenture is subject to the provisions of the TIA that are required to be part of this Second Supplemental Indenture and shall, to the extent applicable, be governed by such provisions.
Section 7.Counterparts. This Second Supplemental Indenture may be executed in any number of counterparts, and each of such counterparts shall for all purposes be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
Section 8.Role of Trustee. The recitals contained herein shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Second Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the date first above written.
THE ADDITIONAL GUARANTORS NAMED ONSCHEDULE A HERETO, as Guarantors |
| By: /s/ Joseph R. Sicree |
| Name: Joseph R. Sicree |
| Title: Designated Officer |
THE BANK OF NEW YORK MELLON,
as Trustee
By: /s/ Mary Miselis
Name: Mary Miselis
Title: Vice President
SCHEDULE A
New Guarantors as of November 1, 2011
State of Organization | ||
Limited Liability Companies | ||
1450 Washington LLC | New Jersey | |
Hatboro Road Associates LLC | Pennsylvania | |
PT Maxwell Holdings, LLC | New Jersey | |
PT Maxwell, L.L.C. | New Jersey | |
Toll CA I LLC | California | |
Toll CA Note II LLC | California | |
Toll FL IV LLC | Florida | |
Toll Houston TX LLC | Texas | |
Toll Lexington LLC | New York | |
Toll MA I LLC | Massachusetts | |
Toll MA II LLC | Massachusetts | |
Toll NC I LLC | North Carolina | |
Toll NC IV LLC | North Carolina | |
Toll NC Note II LLC | North Carolina | |
Toll NC Note LLC | North Carolina | |
Toll TX Note LLC | Texas | |
Partnerships | ||
Toll CT III Limited Partnership | Connecticut | |
Toll DE II LP | Delaware | |
Toll FL X Limited Partnership | Florida | |
Toll MD XI Limited Partnership | Maryland | |
Toll NC III LP | North Carolina | |
Toll NY II L.P. | New York | |
Toll NY III L.P. | New York | |
Toll NY IV L.P. | New York | |
Toll PA XIV, L.P. | Pennsylvania | |
Toll PA XV, L.P. | Pennsylvania | |
Toll SC IV, L.P. | South Carolina | |
Toll WA LP | Washington | |
Corporations | ||
Toll WA GP Corp. | Washington | |
EXHIBIT A
For purposes of this Second Supplemental Indenture, the term “Indenture” shall mean that certain Indenture, dated as of April 20, 2009 (the “Original Indenture”) by and among Toll Brothers Finance Corp., Toll Brothers, Inc. as Guarantor, the other Guarantors identified therein and the Trustee, as supplemented by: (i) the Authorizing Resolutions, related to the issuance of $400,000,000 aggregate principal amount of 8.91% Senior Notes due 2017 (the “8.91% Senior Notes”) by Toll Brothers Finance Corp. (the “Issuer”) and the issuance of related guarantees by Toll Brothers, Inc. (the “Company”) and the other Guarantors, attached as Exhibit A to the Joint Action of the Persons Authorized to Act on Behalf of Each of Toll Brothers Finance Corp., Toll Brothers, Inc. and Each of the Entities listed on Schedule I thereto dated as of April 20, 2009; (ii) the Authorizing Resolutions, related to the issuance of $250,000,000 aggregate principal amount of 6.75% Senior Notes due 2019 (the "6.75% Senior Notes") by the Issuer and the issuance of related guarantees by the Company and the other Guarantors, attached as Exhibit A to the Joint Action of the Persons Authorized to Act on Behalf of Each of Toll Brothers Finance Corp., Toll Brothers, Inc. and Each of the Entities listed on Schedule I thereto dated as of September 22, 2009; and (iii) the First Supplemental Indenture, dated as of October 27, 2011 (the “First Supplemental Indenture”), by and among the parties listed on Schedule A thereto (who, pursuant to such First Supplemental Indenture, thereby became Guarantors) and the Trustee; and as may be further supplemented (including by this Second Supplemental Indenture) and/or amended.