CELLNET DATA SYSTEMS, INC.,
and
THE BANK OF NEW YORK, as Trustee
_______________
SECOND SUPPLEMENTAL INDENTURE
Dated as of August 30, 1996
To
INDENTURE
Dated as of June 15, 1995
_______________
Relating to
CellNet Data Systems, Inc.
13% Senior Discount Notes
Due 2005
Series B 13% Senior Discount Notes
Due 2005
SECOND SUPPLEMENTAL INDENTURE (the "Second Supplemental Indenture"),
dated as of August 30, 1996, between CellNet Data Systems, Inc., a Delaware
corporation (the "Surviving Corporation"), and The Bank of New York, a New
York banking corporation (the "Trustee").
RECITALS:
WHEREAS, CellNet Data Systems, Inc., a California corporation (the
"Company"), has duly issued its 13% Senior Discount Notes Due 2005
(hereinafter called the "Notes") in the aggregate principal amount at
maturity of $325,000,000 pursuant to an Indenture, dated as of June 15, 1995,
between the Company and the Trustee and a First Supplemental Indenture dated
as of November 21, 1995 by and between Company and the Trustee (such
Indenture, as modified by such First Supplemental Indenture, hereafter the
"Indenture"); and
WHEREAS, the Company and the Surviving Corporation have entered into
that certain Agreement and Plan of Merger, dated as of August 30, 1996,
pursuant to which the Company and the Surviving Corporation will combine into
a single company through the statutory merger of the Company with and into
the Surviving Corporation (the "Merger"); and
WHEREAS, in the case of a merger of the Company with or into any other
corporation, Article 5 of the Indenture requires that the surviving
corporation execute and deliver to the Trustee a supplemental indenture
providing the assumption by the surviving corporation of the covenants,
agreements and obligations of the Company under the Indenture and the
Registration Rights Agreement; and
WHEREAS, Section 9.01 of the Indenture provides that the Company and the
Trustee may, without the consent of any holders of Notes, enter into a
supplemental indenture to comply with the terms of Article 5 of the
Indenture; and
WHEREAS, in accordance with Sections 5.01(a)(iv) and 10.04 of the
Indenture, the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that the Merger and the Second
Supplemental Indenture comply with the applicable provisions of the
Indenture; and
WHEREAS, in accordance with Section 5.01 (a)(iv) of the Indenture, the
Company has delivered to the Trustee a certificate from the Company's
certified public accountants stating that the Surviving Corporation has made
the calculations required by Section 5.01(a)(ii) and 5.01 (a)(iv) regarding
the Debt to Cash Flow Ratio and that such calculations evidence compliance
with such section; and
WHEREAS, all acts and proceedings required by law and under the
Indenture to constitute this Second Supplemental Indenture, a valid and
binding agreement for the uses and purposes set forth herein, in accordance
with its terms, have been done and taken, and the execution and delivery of
this Second Supplemental Indenture have been in all respects duly authorized
by the Surviving Corporation; and
WHEREAS, the foregoing recitals are made as representations of fact by
the Surviving Corporation and not by the Trustee;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Surviving Corporation and the Trustee hereby agree as follows:
1. All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Indenture, and the Rules of Construction set
forth in the Indenture shall likewise govern this Second Supplemental
Indenture.
2. The Surviving Corporation hereby assumes all the covenants,
agreements and obligations of the Company under the Notes, the Indenture and
the Registration Rights Agreement, including the obligation to make due and
punctual payment of the principal of and premium, if any, and interest on all
of the Notes and the due and punctual performance of all of the covenants and
conditions to be performed by the Company under the Indenture and the
Registration Rights Agreement. On or after the effective time of the Merger,
all references in the Indenture to the "Company" shall be deemed to be
references to CellNet Data Systems, Inc., a Delaware corporation.
3. Upon the execution and delivery of this Second Supplemental
Indenture by the Trustee and the Surviving Corporation, the proposed
agreements contained herein will become effective and operative. Thereafter,
all references to the Indenture shall, unless specifically referring to the
Indenture as originally executed, be deemed to be references to the Indenture
as modified by this Second Supplemental Indenture.
4. The recitals contained herein shall be taken as the statement of
the Company and the Surviving Corporation, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity of this Second Supplemental Indenture. The
Indenture, as supplemented and amended by this Second Supplemental Indenture,
is in all respects hereby ratified and confirmed.
5. This Second Supplemental Indenture shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. Except as amended herein, the terms, provisions and covenants of the
Indenture shall remain in full force and effect and continue to govern the
parties thereto.
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6. This Second Supplemental Indenture may be executed in two or more
counterparts, each of which shall be deemed original and all of which
together will constitute the same agreement, whether or not all parties
execute each counterpart.
7. The laws of the State of New York, without regard to principles of
conflicts of law, shall govern this Second Supplemental Indenture and the
Notes.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Second Supplemental
Indenture to be duly executed, all as of the date first above written.
CELLNET DATA SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, General Counsel,
Secretary and Chief
Administrative Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
