Exhibit 4.4
THE ANDERSONS, INC.
AND
THE FIFTH THIRD BANK OF NORTHWESTERN OHIO, N.A.,
Trustee.
__________________
FIFTEENTH SUPPLEMENTAL INDENTURE
dated as of January 2, 1996
Supplementing Indenture Dated as of October 1, 1985
__________________
Debentures
Due Five Years or Ten Years
from Original Issue Date
THIS FIFTEENTH SUPPLEMENTAL INDENTURE, dated as of January 2, 1996,
between The Andersons, Inc., an Ohio corporation having its principal office at
480 W. Dussel Drive, City of Maumee, Lucas County, Ohio (hereinafter called the
"Corporation"), and The Fifth Third Bank of Northwestern Ohio, N.A., a national
banking association organized and existing under the laws of the United States
of America (hereinafter called the "Trustee");
W I T N E S E T H
WHEREAS, The Andersons, an Ohio limited partnership ("Partnership")
heretofore executed and delivered to the Trustee a certain indenture dated as
of October 1, 1985 (hereinafter called the "Indenture"), providing for the
issuance of debentures (hereinafter called the "Debentures") as therein
provided; and
WHEREAS, the Partnership heretofore executed and delivered to the Trustee
a Fourteenth Supplemental Indenture dated as of January 1, 1995; and
WHEREAS, at the time of the execution of the Fourteenth Supplemental
Indenture, the Partnership had been formed and existed under a Partnership
Agreement dated as of January 1, 1995; and
WHEREAS, the Partnership dated as of January 1, 1995, is no longer in
existence; and
WHEREAS, a Certificate of Merger has been filed on January 2, 1996,
wherein the Partnership and The Andersons Management Corp., an Ohio
corporation, and being the Partnership's sole General Partner, merged, with the
surviving entity being The Andersons Management Corp., which changed its name
to The Andersons, Inc. ("Corporation"), which merger resulted in the transfer
thereto of the Partnership's property and assets substantially as an entirety
for purposes of Sections 801 and 8 02 of the Indenture; and
WHEREAS, the Corporation and the Trustee may enter into supplemental
indentures to the Indenture without the consent of the holders of Debentures,
pursuant to Section 901(3) of the Indenture, to evidence the merger and the
assumption by the Corporation of the covenants of the Partnership contained in
the Indenture and the Debentures; and
WHEREAS, giving effect to the execution of the above-referenced merger as
of January 2, 1996, no Event of Default, as defined in Section 501 of the
Indenture, and no event which after notice or lapse of time, or both, would
become an Event of Default, has happened or is continuing; and
WHEREAS, the Corporation has delivered to the Trustee a Corporate
Certificate and an Opinion of Counsel, stating that the transfer of the
Partnership's properties and assets substantially as an entirety from the
Partnership, as formed under the Partnership Agreement dated as of January 1,
1995, to the Corporation, pursuant to the Certificate of Merger filed January
2, 1996, and this Fifteenth Supplemental Indenture comply with Article Eight of
the Indenture and that all condition s precedent therein provided for relating
to such transfer and change in interest rates have been complied with; and
WHEREAS, the Corporation has been authorized by its Board of Directors to
enter into this Fifteenth Supplemental Indenture in accordance with Section 901
of the Indenture;
NOW, THEREFORE,
The Corporation, hereby expressly assumes the due and punctual payment of
the principal of, including each installment thereof (and premium, if any), and
interest on all the Debentures and the performance of every covenant of the
Indenture on the part of the Corporation to be performed or observed; and
Pursuant to Section 802 of the Indenture, the Corporation, hereby succeeds
to, and is substituted for, and may exercise every right and power of the
Partnership, and all successors, under the Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Fifteenth
Supplemental Indenture to be duly executed as of the day and year first above
written.
THE FIFTH THIRD BANK OF THE ANDERSONS, INC., an Ohio corporation
NORTHWESTERN OHIO, N.A.
By: \s\Douglas P. Foxx By: \s\Richard P. Anderson
Douglas P. Foxx Richard P. Anderson
Executive Vice President President and Chief Executive Officer
[Corporate Seal]
By: \s\ Gary Smith
Gary Smith
Treasurer
Attest:
\s\James A. Foote
James A. Foote
Trust Operations Officer
STATE OF OHIO )
) SS:
COUNTY OF LUCAS )
Before me, a Notary Public, in and for said county and state, personally
appeared Richard P. Anderson and Gary Smith, President and Chief Executive
Officer and Treasurer, respectively, of The Andersons, Inc., an Ohio
corporation, who acknowledged that, they being thereunto duly authorized, did
sign the foregoing instrument in behalf of said corporation and by authority of
its board of directors and that the same is the free act and deed of said
officers and of said corporation.
In Testimony Whereof, I have hereunto set my hand and official seal at
Maumee, Ohio this 24th day of January, 1996.
/s/ Julie Ann Dibble
Julie Ann Dibble
Notary Public
My Commission Expires:6/20/2000
[Notarial Seal]
STATE OF OHIO )
) SS:
COUNTY OF LUCAS )
On the 12th day of February, 1996, before me personally came Douglas P.
Foxx, Executive Vice President, and James A. Foote, Trust Operations Officer,
to me known, who, being by me duly sworn, did depose and say that they are
Trust Officers of THE FIFTH THIRD BANK OF NORTHWESTERN OHIO, N.A., a bank
organized under the laws of the United States of America, described in and
which executed the foregoing instrument; that they know the seal of said
corporation; that the seal affixed to said instrument is such corporation seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that they signed their names hereto by like authority.
\s\Karen S. Opblinger
Notary Public
My Commission Expires 2/16/2000
[Notarial Seal]
CORPORATE CERTIFICATE
This is to certify that The Andersons, Inc., an Ohio corporation, has
examined the above-mentioned Indenture, Fifteenth Supplemental Indenture, the
foregoing Opinion of Counsel and all other documents and matters as it deemed
necessary to express an informed opinion on compliance by the corporation with
the conditions precedent provided in said Indenture and that it concurs with
the aforesaid Opinion of Counsel.
THE ANDERSONS, INC., an Ohio corporation
By: /s/ Richard P. Anderson
Richard P. Anderson
President and Chief Executive Officer
By: /s/ Gary Smith
Gary Smith, Treasurer
January 23, 1996
Mr. James A. Foote
Trust Operations Officer
The Fifth Third Bank of
Northwestern Ohio, N.A.
606 Madison Avenue
Toledo, Ohio 43604
RE: The Andersons, Inc. Fifteenth Supplemental Indenture Dated as
of January 2, 1996
Dear Jim:
According to the terms of the Indenture dated October 1, 1985, each year, in
the past, it has been necessary to transfer the property and assets of the
partnership to the successor partnership formed. This year, there has been a
merger of The Andersons, an Ohio limited partnership, and The Andersons
Management Corp., an Ohio corporation, being the partnership's sole General
Partner, with The Andersons Management Corp. as the surviving entity. The name
of the Corporation was changed to The Andersons, Inc. A certified copy of the
Certificate of Merger, along with the Amended Articles of Incorporation, is
enclosed.
In order to accomplish transfer of the assets from the limited partnership
which was formed effective January 1, 1995, to The Andersons, Inc., the
following documents relative to the current debenture issue are enclosed:
1. Fifteenth Supplemental Indenture.
2. Opinion of Counsel.
3. Corporate Certificate.
If you have any questions regarding the above, please do not hesitate to
contact me. All of this is based upon work previously accepted in connection
with the Indenture dated as of October 1, 1985. Please return to me a copy of
the fully-executed Fifteenth Supplemental Indenture.
Thank you for your assistance. Best regards.
Sincerely,
/s/ Beverly J. McBride
Beverly J. McBride
General Counsel and
Corporate Secretary
BJM
Enclosures
cc: Ms. Cathy Redford, Legal Analyst
Ms. Anne Rex, Financial Accounting Manager
Mr. Gary Smith, Corporate Treasurer
January 23, 1996
The Fifth Third Bank of
Northwestern Ohio, N.A., Trustee
606 Madison Avenue
Toledo, Ohio 43604
Re: Indenture Dated As Of October 1, 1985 and Fifteenth Supplemental
Indenture Thereto Dated As Of January 2, 1996; Opinion of Counsel
and Corporate Certificate
Gentlemen:
In compliance with Section 801(3) of the above-referenced Indenture
between The Andersons, Inc., an Ohio corporation, as successor to The
Andersons, an Ohio limited partnership, by Certificate of Merger filed January
2, 1996, and The Fifth Third Bank of Northwestern Ohio, N.A., Trustee, please
be advised that I have examined the Certificate of Merger filed January 2,
1996, the aforementioned Indenture and Supplemental Indenture thereto and all
other documents and matters as I deemed necessary under the circumstances to
render the within opinion, and it is my opinion that the instruments which have
been or are herewith delivered to the Trustee conform to the requirements of
this Indenture, and it is my opinion that the transfer of the partnership's
property and assets to The Andersons, Inc. and the said Fifteenth Supplemental
Indenture comply with and are authorized by Article Eight of the Indenture and
that The Andersons, Inc. has complied with all conditions precedent therein
provided for relating to said transfer and Fifteenth Supplemental Indenture.
/s/ Beverly J. McBride
Beverly J. McBride
General Counsel
BJM