EXHIBIT 4.9
THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of September 17, 2004, by
and among the parties listed on Schedule A hereto (each an "Additional
Guarantor" and collectively, the "Additional Guarantors") and X.X. XXXXXX TRUST
COMPANY, NATIONAL ASSOCIATION, as successor to BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION, as trustee (the "Trustee").
RECITALS
WHEREAS, the Indenture dated as of November 22, 2002 (the "Original
Indenture") by and among Toll Brothers Finance Corp., Toll Brothers, Inc. as
Guarantor, the other Guarantors identified therein and the Trustee prior to this
date has been supplemented by: (i) the Authorizing Resolutions, related to 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, 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 (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; (iii) the Authorizing Resolutions related to the
issuance of $250,000,000 aggregate principal amount of 5.95% Senior Notes due
2013 (the "5.95% 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 3, 2003; (iv) the Second Supplemental Indenture
dated November 3, 2003 (the "Second Supplemental Indenture"), by and among the
parties listed on Schedule A thereto (who, pursuant to such Second Supplemental
Indenture, thereby became Guarantors) and the Trustee; (v) the Third
Supplemental Indenture dated January 26, 2004 (the "Third Supplemental
Indenture"), by and among the parties listed on Schedule A thereto (who,
pursuant to such Third Supplemental Indenture, thereby became Guarantors) and
the Trustee; (vi) the Fourth Supplemental Indenture dated March 1, 2004 (the
"Fourth Supplemental Indenture"), by and among the parties listed on Schedule A
thereto (who, pursuant to such Fourth Supplemental Indenture, thereby became
Guarantors) and the Trustee; and (vii) the Authorizing Resolutions related to
the issuance of $300,000,000 aggregate principal amount of 4.95% Senior Notes
due 2014 (the "4.95% 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 March 9, 2004 (the Original Indenture, as so supplemented by
each of the foregoing, and as may be further supplemented (including by this
Fifth Supplemental Indenture) and/or amended, is hereinafter referred to as the
"Indenture");
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 is executing and delivering this Fifth Supplemental
Indenture; and
WHEREAS, the consent of Holders to the execution and delivery of this
Fifth Supplemental Indenture is not required, and all other actions required to
be taken under the Indenture with respect to this Fifth Supplemental Indenture
have been taken.
NOW, THEREFORE IT IS AGREED:
SECTION 1. DEFINITIONS. Capitalized terms used in this Fifth
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 Fifth Supplemental Indenture it hereby unconditionally
guarantees all of the Issuer's obligations under (i) the 6.875% Senior Notes,
(ii) the 5.95% Senior Notes, (iii) the 4.95% Senior Notes, (iv) any other
Securities of any Series that has the benefit of Guarantees of other
Subsidiaries of the Company and (v) 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 3. RATIFICATION OF INDENTURE. This Fifth 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 Fifth 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
Fifth 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 Fifth 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 Fifth Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
This Fifth Supplemental Indenture is subject to the provisions of the TIA that
are required to be part of this Fifth Supplemental Indenture and shall, to the
extent applicable, be governed by such provisions.
SECTION 8. COUNTERPARTS. This Fifth 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.
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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 Fifth Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed as of the date first above written.
THE ADDITIONAL GUARANTORS NAMED
ON SCHEDULE A HERETO,
as Guarantors
By: Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Designated Officer
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By: Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: Assistant Vice President
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SCHEDULE A
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Toll IL WSB, L.P.
Toll FL IV Limited Partnership
Toll MI IV Limited Partnership
Toll TX III, L.P.
000 Xxxx Xxxxxx Xxxxx Xxxxxxx, LLC
CWG Construction Company LLC
Longmeadow Properties LLC
Xxxxxxxx Drive LLC
Millbrook Investments I LLC
Millbrook Investments II LLC
Toll DE X II, LLC
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