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DESIGNER HOLDINGS LTD.,
THE WARNACO GROUP, INC.,
AND
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of March 31, 1998
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1
FIRST SUPPLEMENTAL INDENTURE, dated as of March 31, 1998, among
Designer Holdings Ltd., a Delaware corporation (the "Company"), The Warnaco
Group, Inc., a Delaware corporation ("Warnaco"), and IBJ Xxxxxxxx Bank & Trust
Company, a New York corporation, as trustee (the "Trustee"). Terms not defined
herein shall have the meanings assigned to them in the Indenture (as defined
below).
R E C I T A L S
WHEREAS, the Company and the Trustee are parties to an Indenture,
dated as of November 6, 1996 (the "Indenture"), relating to the Company's 6%
Convertible Subordinated Debentures due 2016 (the "Securities").
WHEREAS, on December 12, 1997, a wholly-owned subsidiary of Warnaco
was merged with and into the Company with the Company being the surviving
corporation in the merger (the "Merger") and each outstanding share of common
stock of the Company (other than shares held by Warnaco, Designer Holdings or
any of their direct or indirect subsidiaries) was converted into the right to
receive 0.324 of a fully paid and nonassessable share of Warnaco Class A Common
Stock.
WHEREAS, Warnaco desires to become jointly and severally liable for
and assume all of the obligations of the Company under the Indenture and the
Securities.
WHEREAS, Section 901 of the Indenture provides that the Company, when
authorized by a Board Resolution, and the Trustee may enter into a supplemental
indenture, without the consent of any Holder, to, among other things, make
provision with respect to the conversion rights of Holders pursuant to the
requirements of Article Thirteen of the Indenture.
WHEREAS, the Company and the Trustee have determined that this First
Supplemental Indenture complies with Section 901 of the Indenture and does not
require the consent of any Holders and, on the basis of the foregoing, the
Trustee has determined that this First Supplemental Indenture is in form
satisfactory to it.
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W I T N E S S E T H :
NOW, THEREFORE, for and in consideration of the premises, it is
mutually covenanted and agreed, for the equal and ratable benefit of the
Holders, as follows:
ARTICLE 1
ASSUMPTION OF OBLIGATIONS
Section 1.1. Assumption. Warnaco hereby unconditionally assumes joint
and several liability on and after the Effective Date (as defined below) for all
of the obligations of the Company under the Indenture and the Securities,
including the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of the principal of, premium, if any, and interest on
the Securities according to the terms of the Securities and as more fully
described in the Indenture. Notwithstanding the foregoing, the Company shall
remain obligated under the Indenture and the Securities, in accordance with the
terms of the Indenture. "Effective Date" shall mean December 12, 1997.
ARTICLE 2
CONVERSION RIGHTS OF HOLDERS IN
CONNECTION WITH THE MERGER
SECTION 2.1. Conversion Rights. The Company, as the surviving
corporation of the Merger, and Warnaco hereby provide in accordance with Section
1304 of the Indenture that the Holder of each Security outstanding at the
effective time of the Merger shall have the right, during the period such
Security shall be convertible as specified in Section 1301 of the Indenture, to
convert such Security only into that number of shares of class A common stock,
par value $.01 per share, of Warnaco ("Warnaco Common Stock") equal to the
product of .324 and the number of shares of Common Stock of the Company into
which such Security would have been convertible into immediately prior to the
Merger.
ARTICLE 3
GENERAL PROVISIONS
SECTION 3.1. Incorporation of Indenture. All the provisions of this
First Supplemental Indenture shall be deemed to be incorporated in, and made a
part of, the Indenture; and the Indenture, as supplemented and amended by this
First Supplemental Indenture, shall be read, taken and construed as one and the
same instrument.
SECTION 3.2. Headings. The headings of the Articles and Sections of
this First Supplemental Indenture are inserted for convenience of reference and
shall not be deemed to be a part thereof.
3
SECTION 3.3. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 3.4. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this First Supplemental Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control.
SECTION 3.5. Successors. All covenants and agreements in this First
Supplemental Indenture by the Company and Warnaco shall be binding upon and
accrue to benefit of their respective successors. All covenants and agreements
in this First Supplemental Indenture by the Trustee shall be binding upon and
accrue to the benefit of its successors.
SECTION 3.6. Separability Clause. In case any provision in this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 3.7. Benefits of First Supplemental Indenture. Nothing in this
First Supplemental Indenture, express or implied, shall give to any person,
other than the parties hereto and their successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim under this First
Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this First Supplemental Indenture, as
of the date first above written.
DESIGNER HOLDINGS LTD.
/s/ Xxxxxxx X. Xxxxxxxxxxx
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By: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President and Secretary
Attest:
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Name:
THE WARNACO GROUP, INC.
/s/ Xxxxxxx X. Xxxxxxxxxxx
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By: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President, General
Counsel and Secretary
Attest:
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Name:
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
/s/ Xxxxxx Xxxxxx
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By: Xxxxxx Xxxxxx
Title: Vice President
