Exhibit 4.4
FIRST SUPPLEMENTAL INDENTURE, dated as of May 1, 2003, by and among the
parties listed on Schedule A hereto (each an "Additional Guarantor" and
collectively, the "Additional Guarantors") and BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION, as trustee (the "Trustee").
RECITALS
WHEREAS, in connection with the issuance of $300,000,000 aggregate
principal amount of 6.875% Senior Notes due 2012 (the "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, the Issuer, the
Company and the Guarantors executed and delivered an Indenture dated as of
November 22, 2002, as supplemented and/or amended as the case may be (the
"Original Indenture"), to the Trustee;
WHEREAS, Section 4.04 of the Original Indenture provides that if in
accordance with the provisions of the Bank Credit Facilities 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
Facilities, such Subsidiary shall contemporaneously become a Guarantor under the
Original Indenture;
WHEREAS, desiring to become a Guarantor under the Original Indenture,
each of the Additional Guarantors (other than the Transferee Guarantors and the
Surviving Guarantors (as such terms are defined below)) is executing and
delivering this First Supplemental Indenture;
WHEREAS, in connection with (i) the transfers of all of the assets, if
any, of certain Guarantors (each a "Transferor Guarantor") to certain other
Guarantors (each a "Transferee Guarantor" and collectively, the "Transferee
Guarantors") and (ii) the mergers of certain Guarantors (each a "Merged
Guarantor") with and into certain other Guarantors (each a "Surviving Guarantor"
and collectively, the "Surviving Guarantors"), each of the Transferee Guarantors
and the Surviving Guarantors is executing and delivering this First Supplemental
Indenture to affirm its obligations under the Indenture pursuant to Section 5.01
thereof;
WHEREAS, the consent of Holders to the execution and delivery of this
First Supplemental Indenture is not required, and all other actions required to
be taken under the Original Indenture with respect to this First Supplemental
Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
Section 1. Definitions. Capitalized terms used in this First
Supplemental Indenture and not otherwise defined shall have the meanings
ascribed to them in the Original Indenture.
Section 2. Joinder. Each Additional Guarantor agrees that by its
entering into this First Supplemental Indenture (a) it hereby unconditionally
guarantees all of the Issuer's obligations under (i) the Senior Notes, (ii) any
other Securities of any Series that has the benefit of Guarantees of other
Subsidiaries of the Company and (iii) the Original Indenture (as it relates to
all such Series) on the terms set forth in the Original Indenture, as if each
such Additional Guarantor was a party to the Original Indenture and (b) to the
extent each Additional Guarantor is either a Transferee Guarantor or a Surviving
Guarantor, such Additional Guarantor hereby ratifies, approves and confirms in
all respects its obligations under the Original Indenture both in its own
capacity and as successor to its respective Transferor Guarantor or Merged
Guarantor, as the case may be.
Section 3. Ratification of Original Indenture. This First Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture, and as supplemented and modified hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original Indenture
and this Supplemental Indenture shall be read, taken and construed as one and
the same instrument.
Section 4. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
Section 5. 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 6. Separability Clause. In case any one or more of the
provisions contained in this First Supplemental 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 7. Governing Law. This First Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
This First Supplemental Indenture is subject to the provisions of the TIA, that
are required to be part of this First Supplemental Indenture and shall, to the
extent applicable, be governed by such provisions.
Section 8. Counterparts. This First 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 9. 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 First Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first above written.
THE ADDITIONAL GUARANTORS NAMED
ON SCHEDULE A HERETO,
as Guarantors
By: Joseph R. Sicree
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Name: Joseph R. Sicree
Title: Designated Officer
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BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By: Jeffrey L. Eubank
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Name: Jeffery L. Eubank
Title: Authorized Officer
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SCHEDULE A
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1. Toll NJ X-I Corp., a Delaware corporation
2. Toll NJ X-II Corp., a Delaware corporation
3. Toll RI II, L.P., a Rhode Island limited partnership
4. Toll SC II, L.P., a South Carolina limited partnership
5. Village Partners, L.P., a Pennsylvania limited partnership
6. Nosan & Silverman Homes LLC, a Michigan limited liability company
7. Toll DE X, LLC, a Delaware limited liability company
8. TB Proprietary, L.P., a Delaware limited partnership
9. First Brandywine Investment Corp. II, a Delaware corporation
10. Silverman Development Company, Inc., a Michigan corporation
11. Toll NJ, L.P., a New Jersey limited partnership
12. Toll Brothers Realty Michigan II LLC, a Michigan limited liability company
13. Toll IL, L.P., an Illinois limited partnership