Exhibit 4.1
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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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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.
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.
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.
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. Silverstein___
By: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President and Secretary
THE WARNACO GROUP, INC.
____/s/ Xxxxxxx X. Silverstein__
By: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President, General
Counsel and Secretary
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
____/s/ Xxxxxx Radich__________
By: Xxxxxx Xxxxxx
Title: Vice President
