Exhibit 4.5
SECOND SUPPLEMENTAL INDENTURE, dated as of November 3, 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 "6.875% 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 other Guarantors executed and delivered to the
Trustee an Indenture dated as of November 22, 2002 (the "Original Indenture"),
as supplemented by (i) the Authorizing Resolutions 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 November 22, 2002, (ii) the First Supplemental Indenture
dated May 1, 2003, by and among the parties listed on Schedule A thereto (who,
pursuant to such First Supplemental Indenture, thereby became Guarantors) and
the Trustee, and (iii) the Authorizing Resolutions 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 3, 2003, and as may be further supplemented
(including by this Second Supplemental Indenture) and/or amended as the case may
be (as so supplemented and/or amended, the "Indenture");
WHEREAS, on September 3, 2003, the Issuer issued under the Indenture
and sold $250,000,000 aggregate principal amount of 5.95% Senior Notes due 2013
(the "5.95% Senior Notes") guaranteed on a senior basis by the Company and the
other Guarantors;
WHEREAS, Section 4.04 of the 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 Indenture;
WHEREAS, desiring to become a Guarantor under the Indenture, each of
the Additional Guarantors (other than the Surviving Guarantors (as such term is
defined below)) is executing and delivering this Second Supplemental Indenture;
WHEREAS, in connection with the mergers of certain subsidiaries of the
Company, including certain Guarantors (collectively, the "Merged Guarantors"),
with and into certain other Guarantors (each a "Surviving Guarantor," and
collectively the "Surviving Guarantors"), each of the Surviving Guarantors is
executing and delivering this Second Supplemental Indenture to affirm its
obligations under the Indenture pursuant to Section 5.01 thereof; 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. Definitions. Capitalized terms used in this Second
Supplemental Indenture and not otherwise defined shall have the meanings
ascribed to them in the Indenture.
Section 2. Joinder. Each Additional Guarantor agrees that by its
entering into this Second Supplemental Indenture (a) it hereby unconditionally
guarantees all of the Issuer's obligations under (i) the 6.875% Senior Notes,
(ii) the 5.95% Senior Notes, (iii) any other Securities of any Series that has
the benefit of Guarantees of other Subsidiaries of the Company and (iv) 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 and (b) to the extent such Additional Guarantor is a Surviving
Guarantor, such Additional Guarantor hereby ratifies, approves and confirms in
all respects its obligations under the Indenture both in its own capacity and as
successor to its respective Merged Guarantor.
Section 3. 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 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
Second 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 Second 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 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 8. 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 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 Second Supplemental Indenture.
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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
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: Jeffery L. Eubank
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Name: Jeffery L. Eubank
Title: Authorized Officer
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SCHEDULE A
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Mountain View Country Club, Inc.
Toll PA Builder Corp.
Toll NJ Builder Corp.
Toll NJX III Corp.
Toll NJX IV Corp.
Toll MN GP Corp.
First Brandywine Investment Corp. IV
Toll Costa, L.P.
Toll MD V Limited Partnership
Toll NJ Builder I, L.P.
Toll FL II Limited Partnership
Toll FL III Limited Partnership
Toll Grove LP
Toll Marshall LP
Toll MN, L.P.
First Brandywine LLC III
First Brandywine LLC IV
60 Industrial Parkway Cheektowaga, LLC
Stoney Kill LLC
Toll Glastonbury LLC
2301 Fallston Road LLC
Toll Van Wyck LLC
Toll FL GP Corp.
Toll Peppertree Inc.
Toll PA GP Corp.
Hockessin Chase, L.P.
Cortlandt Chase, L.P.
Hurley Ridge Limited Partnership
Silverman-Toll Limited Partnership
Providence Plantation Limited Partnership
Hunterdon Ridge, L.P.
Blue Bell Country Club, L.P.
Lakeway Hills Properties, L.P.
Fair Lakes Chase, L.P.
Mizner Realty, L.L.C.
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