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Exhibit 4.10
SUNSHINE MERGER COMPANY
AS SUCCESSOR TO SUNSHINE MINING AND REFINING COMPANY
TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
_______________________________________
FOURTH SUPPLEMENTAL INDENTURE
TO THE INDENTURE DATED AS OF JULY 15, 1988
Dated as of February ____, 1996
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FOURTH SUPPLEMENTAL INDENTURE, dated as of February ___, 1996, by and
among SUNSHINE MERGER COMPANY, a Delaware corporation, (hereinafter referred to
as the "Company"), SUNSHINE MINING AND REFINING COMPANY, a Delaware corporation
(formerly known as Sunshine Mining Company hereinafter referred to as
"Sunshine") and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, successor by merger
to Ameritrust Texas National Association formerly known as MTrust Corp,
National Association, Trustee, a national banking association organized and
existing under the laws of the United States of America (hereinafter called the
"Trustee").
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee the First Supplemental Indenture dated as of August 8, 1988, the Second
Supplemental Indenture dated as of November 10, 1988, and the Third
Supplemental Indenture dated as of April 10, 1991, to the Indenture date as of
July 15, 1988, (collectively, the "Indenture"), pursuant to which the Company's
8 7/8% Convertible Subordinated Reset Debentures due July 15, 2008 (the
"Debentures") were issued. All terms used in this Fourth Supplemental
Indenture that are defined in the Indenture shall have the meanings assigned to
them in the Indenture; and
WHEREAS, the Company is a wholly owned subsidiary of Sunshine, and
Sunshine and the Company have entered into a merger agreement which, upon
receipt of shareholder approval, will result in the merger of Sunshine with and
into the Company, with the Company being the surviving entity; and
WHEREAS, the Company is organized and validly existing under the laws
of the State of Delaware, and it is the intention of the Company after the
merger to change its name to "Sunshine Mining and Refining Company"; and
WHEREAS, immediately after the merger of Sunshine into the Company,
the Company shall have a Consolidated Net Worth at least equal to Sunshine's
Consolidated Net Worth immediately prior to such merger; and
WHEREAS, immediately after giving effect to the merger, no Event of
Default, and no event which, after notice or lapse of time or both would become
an Event of Default, shall have happened and be continuing; and
WHEREAS, Section 901(a) of the Indenture provides that a supplemental
indenture may be entered into by Sunshine and the Trustee without the consent
of the Holders to evidence the succession of the Company to Sunshine and the
assumption by the Company of the covenants and obligations of Sunshine in the
Indenture and the Debentures; and
WHEREAS, Sunshine has furnished the Trustee with an Officer's
Certificate complying with the requirements of Sections 102, 801
FOURTH SUPPLEMENTAL INDENTURE - 1
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and 903 of the Indenture and stating that all conditions precedent provided for
in the Indenture with respect to the merger and satisfaction of the
requirements of Section 801 and with respect to this Fourth Supplemental
Indenture have been complied with; and
WHEREAS, the Company and Sunshine have furnished the Trustee with a
copy of resolutions of their respective Board of Directors certified by their
respective Secretary or Assistant Secretary authorizing the execution of this
Fourth Supplemental Indenture; and
WHEREAS, Sunshine has furnished the Trustee with an Opinion of Counsel
complying with the requirements of Sections 801 and 903 of the Indenture and
stating that such merger and this Fourth Supplemental Indenture comply with
Article Eight of the Indenture and that all conditions precedent in the
Indenture relating to such merger have been complied with, and stating that the
execution of this Fourth Supplemental Indenture is authorized or permitted by
the Indenture; and
WHEREAS, all things necessary to make this Fourth Supplemental
Indenture a valid agreement of Sunshine, the Company and the Trustee and a
valid amendment of and supplement to the Indenture have been accomplished.
NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof and of the sum of one dollar duly paid to
each of the Company and Sunshine by the Trustee at the execution thereof, the
receipt whereof is hereby respectively acknowledged, it is mutually covenanted
and agreed, for the equal and proportionate benefit of the Holders of the
Debentures, as follows:
ARTICLE ONE
Section 1.01. Assumption of Obligations. Pursuant to the merger
and the provisions of Section 101, 801 and 901 of the Indenture, as of the date
hereof, the Company does hereby assume the due and punctual payment of the
principal amount (and premium, if any) and interest on all outstanding
Debentures and the performance of every covenant and obligation in the
Indenture and the outstanding Debentures on the part of Sunshine to be
performed or observed and hereby otherwise succeeds to and is substituted for
and may exercise every right and power of Sunshine under the Indenture and the
outstanding Debentures with the same effect as if the Company had been
initially named as the obligor under the Indenture and the outstanding
Debentures.
Section 1.02. Conversion of Debentures. The Holder of a Debenture
may convert it into the kind and amount of securities, cash or other assets
which such Holder would have owned immediately after the merger if such Holder
had converted the Debenture
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immediately before the effective date of the merger. No adjustment to the
conversion price of Debentures is required incident to the proposed Merger.
ARTICLE TWO
Section 2.01 Execution in Counterparts. This Fourth Supplemental
Indenture may be executed in any number of counterparts. Each such counterpart
shall be an original, but such counterparts shall together constitute one and
the same instrument.
Section 2.02 Confirmation of Indenture. Except as supplemented
hereby, all of the provisions of the Indenture shall remain and continue in
full force and effect and are hereby confirmed in all respects.
IN WITNESS WHEREOF, the Company and Sunshine have each caused this
Fourth Supplemental indenture to be duly executed and their respective
corporate seals to be hereunto affixed and attested and the Trustee has caused
this Fourth Supplemental Indenture to be duly executed and its corporate seal
to be hereunto affixed and attested, all as of the day and year first above
written.
SUNSHINE MERGER COMPANY
By:
--------------------------------
ATTEST: Its:
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SUNSHINE MINING AND REFINING COMPANY
By:
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ATTEST: Its:
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TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Trustee
[SEAL] By:
--------------------------------
Its:
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ATTEST:
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FOURTH SUPPLEMENTAL INDENTURE - 3
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STATE OF IDAHO )
) ss.
County of Ada )
On this _________________ day of February 1996, before me, a notary
public for said state, personally appeared XXXX X. XXXXX, known or identified
to me to be the President of SUNSHINE MERGER COMPANY, the corporation that
executed the within instrument or the person who executed the within instrument
on behalf of said corporation, and acknowledged to me that such corporation
executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and
year first above written.
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Notary Public for Idaho
Residing at:
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My Commission Expires:
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STATE OF IDAHO )
) ss.
County of Ada )
On this _________________ day of February, 1996, before me, a notary
public for said state, personally appeared XXXX X. XXXXX, known or identified
to me to be the President of SUNSHINE MINING AND REFINING COMPANY, the
corporation that executed the within instrument or the person who executed the
within instrument on behalf of said corporation, and acknowledged to me that
such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and
year first above written.
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Notary Public for Idaho
Residing at:
---------------------------
My Commission Expires:
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FOURTH SUPPLEMENTAL INDENTURE - 4
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STATE OF TEXAS )
)ss.
County of Dallas )
On this _________________ day of February, 1996, before me, a notary
public, personally appeared _____, known or identified to me to be a
___________________________________________ of TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, the national banking association that executed the within
instrument or the person who executed the within instrument on behalf of said
national banking association, and acknowledged to me that said national banking
association executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and
year first above written.
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Notary Public for Idaho
Residing at:
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My Commission Expires:
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