Exhibit 4.4
THE ANDERSONS, INC.
AND
THE FIFTH THIRD BANK,
Trustee.
__________________
SEVENTEENTH SUPPLEMENTAL INDENTURE
dated effective as of August 14, 1997
Supplementing Indenture Dated as of October 1, 1985
__________________
Debentures
Due Five Years or Ten Years
from Original Issue Date
THIS SEVENTEENTH SUPPLEMENTAL INDENTURE, dated effective as of
August 14, 1997, between The Andersons, Inc., an Ohio corporation having its
principal office at 000 X. Xxxxxx Xxxxx, Xxxx xx Xxxxxx, Xxxxx Xxxxxx, Xxxx
(hereinafter called the "Corporation"), and The Fifth Third Bank, a state
banking association organized and existing under the laws of the state of Ohio
(hereinafter called the "Trustee");
W I T N E S S E T H
WHEREAS, the Corporation and Trustee are parties to 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 Corporation heretofore executed and delivered to the
Trustee a Seventeenth Supplemental Indenture dated as of January 16, 1997; 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(1) of the Indenture, to provide for the creation of a
new series of Debentures; and
WHEREAS, 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 Resolution
requesting the Trustee to authenticate and deliver, effective August 14, 1997,
a new series of Debentures, designated as "7.7% Ten-Year Debentures" and "7.0%
Five-Year Debentures" in the aggregate principal amounts of $5,000,000 for the
Ten-Year Debentures and $5,000,000 for the Five-Year Debentures; and all other
terms of the new series shall remain the same as for the original series of
Debentures issued under the Indenture; and
WHEREAS, the Corporation has delivered to the Trustee a Corporate
Certificate and an Opinion of Counsel, stating that the issuance of a new
series of Debentures and this Seventeenth Supplemental Indenture comply with
the Indenture and that all conditions precedent therein provided for relating
to such issuance of a new series of Debentures have been complied with; and
WHEREAS, the Corporation has been authorized by its Board of
Directors to enter into this Seventeenth 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.
IN WITNESS WHEREOF, the parties hereto have caused this Seventeenth
Supplemental Indenture to be duly executed as of the day and year first above
written.
THE FIFTH THIRD BANK THE ANDERSONS, INC., an Ohio
corporation
By: /s/Xxxxxxxxx X. Xxxxxx By: /s/Xxxxxxx X. Xxxxxxxx
Xxxxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxx
Trust Officer President and Chief
Operating Officer
[Corporate Seal] By: /s/Xxxx Xxxxx
Xxxx Xxxxx
Vice President and Treasurer
Attest:
/s/Xxxx Xxxx
STATE OF OHIO )
COUNTY OF XXXXX ) SS:
Before me, a Notary Public, in and for said county and state, personally
appeared Xxxxxxx X. Xxxxxxxx and Xxxx Xxxxx, President and Chief Operating
Officer and Vice President 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 16th day of March, 1998.
/s/Xxxxx X. Xxxxxxx
Notary Public
My Commission Expires: 4-10-99
[Notarial Seal]
STATE OF OHIO )
COUNTY OF XXXXX ) SS:
On the 18th day of March, 1998, before me personally came Xxxxxxxxx X.
Xxxxxx, Trust Officer, and Xxxx Xxxx, Trust Officer, to me known, who, being
by me duly sworn, did depose and say that they are Trust Officers of THE
FIFTH THIRD BANK, a bank organized under the laws of the state of Ohio,
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/Xxx X. Xxxxxxx
Notary Public
My Commission Expires: 4-7-03
[Notarial Seal]
CORPORATE CERTIFICATE
This is to certify that The Andersons, Inc., an Ohio corporation, has
examined the above-mentioned Indenture, Seventeenth 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/Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
President and Chief Operating
Officer
By: /s/Xxxx Xxxxx
Xxxx Xxxxx, Vice President and
Treasurer
March 17, 1998
The Fifth Third Bank, Trustee
Mail Drop 0000X0
Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Re: Indenture Dated As Of October 1, 1985 ("Indenture") and
Seventeenth Supplemental Indenture Thereto Dated
Effective As Of August 14, 1997; Opinion of Counsel and
Corporate Certificate
According to the terms of the Indenture dated October 1, 1985, please be
advised that I have examined 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
instruments which have been or are herewith delivered to the Trustee conform
to the requirements of this Indenture and constitute sufficient authority
under this Indenture for the authentication and delivery by the Trustee of
the Debentures applied for, and the issuance of a new series of Debentures,
effective August 14, 1997, complies with and is authorized by the Indenture
and that The Andersons, Inc. has complied with all conditions precedent
therein provided for relating to said transfer and Seventeenth Supplemental
Indenture. Further, it is my opinion that there are no tax laws applicable to
the issuance of the new series of Debentures with which The Andersons, Inc.
need comply and no state or federal commission or other governmental body need
give authorization approval or consent to the issuance of these Debentures.
/s/Xxxxxxx X. XxXxxxx
Xxxxxxx X. XxXxxxx, General Counsel