EXHIBIT 4.6
MEMBERSHIP INTEREST REDEMPTION AGREEMENT
THIS MEMBERSHIP INTEREST REDEMPTION AGREEMENT (this "AGREEMENT") is made and
entered into effective as of the 26 day of April, 2006, by and between
AlbaHealth, LLC, a Delaware limited liability company (the "COMPANY"), and
Tefron USA, Inc., a Delaware corporation formerly known as Alba-Waldensian, Inc.
("SELLER").
R E C I T A L S:
A. Seller is a member of the Company, owning 48,325 common units in the
Company. The common units owned by Seller are hereinafter referred to as the
"SELLER UNITS."
B. Pursuant to an option set forth in that certain Put Option Agreement
dated September 6, 2002 by and among the Company, Seller, Encompass Group,
L.L.C. ("Encompass") and General Electric Capital Corporation ("GE"), as amended
by Amendment No. 1 to the Put Option Agreement dated December 13, 2004
(collectively, the "PUT OPTION AGREEMENT"), Seller has elected to sell all of
the Seller Units to the Company.
C. The parties have agreed to terms and conditions of sale of the Seller
Units that differ in certain respects from those described in the Put Option
Agreement, and they desire to execute this Agreement to confirm the terms
pursuant to which the Seller Units will be redeemed by the Company effective as
of the Closing Date (as defined below).
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. REDEMPTION OF SELLER UNITS. Effective as of the Closing Date, the
Company shall redeem from Seller, and Seller shall sell, transfer, assign and
deliver to the Company, the Seller Units on the terms and conditions set forth
herein.
2. PURCHASE PRICE AND PAYMENT TERMS. The aggregate consideration payable by
the Company for the Seller Units (the "PURCHASE PRICE") shall be Thirteen
Million Two Hundred Fifty Thousand and 00/100 Dollars ($13,250,000.00). The
Purchase Price shall be payable as follows:
a. Ten Million Two Hundred Fifty Thousand and 00/100 Dollars
($10,250,000.00) (the "CLOSING PAYMENT") shall be payable in cash at
Closing (as defined below); and
b. Three Million and 00/100 Dollars ($3,000,000.00) shall be payable
pursuant to the terms of a subordinated promissory note in the form
attached hereto as EXHIBIT A (the "PROMISSORY NOTE").
3. REPRESENTATIONS AND WARRANTIES OF SELLER. As a material inducement to
the Company to enter into this Agreement, Seller represents and warrants as
follows:
a. UNENCUMBERED TITLE. The Seller Units are free and clear of all
liens, encumbrances or other charges of any kind whatsoever except those
restrictions imposed by (i) that certain Limited Liability Company
Agreement of AlbaHealth, LLC dated as of September 6, 2002 (the "LIMITED
LIABILITY COMPANY AGREEMENT"), and (ii) that certain Borrower Stockholder
Pledge Agreement dated as of September 6, 2002 among Encompass, Seller, GE,
as a member of the Company, and GE, as Agent for the Lenders (the "PLEDGE
AGREEMENT"), and at Closing, upon payment of the Purchase Price, Seller
will transfer to the Company good and valid title to the Seller Units, free
and clear of all liens, encumbrances or other charges of any kind
whatsoever, subject to the terms of the Limited Liability Company
Agreement. The Seller Units represents all of Seller's interest in the
Company of any kind whatsoever, whether debt or equity.
b. EXECUTION AND DELIVERY. Seller has the requisite power and
authority to enter into this Agreement all documents and instruments
contemplated hereby, and to sell the Seller Units. This Agreement has been
duly and validly executed and delivered by Seller, and constitutes a valid
and binding agreement of Seller enforceable against Seller in accordance
with its terms, except as may be limited by bankruptcy, liquidation,
receivership, conservatorship, insolvency or other similar laws affecting
the rights of creditors generally and by general equitable principles.
c. AUTHORITY. The execution, delivery and performance of this
Agreement and all documents and instruments contemplated hereby, and the
consummation by Seller of the transactions contemplated hereby and thereby,
have been duly authorized by all necessary action on the part of Seller.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As a material inducement
to Seller to enter into this Agreement, the Company represents and warrants as
follows:
a. EXECUTION AND DELIVERY. The Company has the requisite power and
authority to enter into this Agreement, the Promissory Note and all
documents and instruments contemplated hereby and thereby (collectively,
the "TRANSACTION DOCUMENTS"), to redeem the Seller Units and to otherwise
perform its obligation under the Transaction Documents. The Transaction
Documents have been duly and validly executed and delivered by the Company,
and each constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as may
be limited by bankruptcy, liquidation, receivership, conservatorship,
insolvency or other similar laws affecting the rights of creditors
generally and by general equitable principles.
b. AUTHORITY. The execution, delivery and performance of the
Transaction Documents and the consummation by the Company of the
transactions contemplated hereby and thereby have been duly authorized by
all necessary action on the part of the Company.
c. NO CONFLICTS. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby, including the issuance of
Common Units to Seller under clause (b) of Section 11 of the Promissory
Note, do not and will not (i) conflict with or violate any provision of its
organizational documents, including the Limited Liability Company
Agreement, (ii) conflict with, or constitute a default (or an event that,
with notice or lapse of time or both, would become a default) under, or
give to others any rights of termination, amendment, acceleration, or
cancellation of, any agreement or instrument to which the Company is a
party or by which any of its property is subject, or (iii) result in a
violation of any law, rule, regulation, order, judgment, injunction, decree
or other restriction of any court or governmental authority to which the
Company is subject or by which any property of the Company is subject.
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5. ADDITIONAL AGREEMENTS AND COVENANTS.
a. POST-CLOSING ACTIONS. On or after the Closing Date, each party
shall prepare, execute and deliver such further instruments and take such
further action as the other party hereto shall reasonably request at any
time or from time to time in order to perfect, confirm or evidence in the
Company title (as such title is conveyed pursuant to this Agreement) to all
or any of the Seller Units or to consummate, in any other manner, the terms
and conditions of this Agreement.
b. GENERAL ADMINISTRATIVE SERVICES AGREEMENT. On the Closing Date,
Seller and the Company shall enter into an amendment to that certain
General Administrative Services Agreement between the Company and Seller
dated September 6, 2002 (the "ADMINISTRATIVE SERVICES AGREEMENT"), pursuant
to which the amount payable by the Company to Seller for the 12-month
period commencing January 1, 2006 will be $766,000. The amendment shall be
in the form attached hereto as EXHIBIT B (the "AMENDMENT TO ADMINISTRATIVE
SERVICES AGREEMENT").
c. COMPUTER SYSTEM. On January 1, 2007, the Company agrees to purchase
from Seller, and Seller agrees to sell to the Company, or its assigns, for
a price of $600,000, all of the computer hardware and software, including
all related software licenses and hardware and software leases, comprising
the computer system located in Valdese, North Carolina and Rockwood,
Tennessee that is currently owned by Seller and used by the Company in its
regular business activities and for preparation of its internal financial
statements, all of which hardware and software are described on Schedule I
hereto. The purchase and sale of the computer system is expressly
conditioned upon (i) the Closing of the redemption transaction contemplated
by this Agreement, (ii) the equipment and software comprising the computer
system being free and clear of all liens and encumbrances and in reasonable
working order, and (iii) the delivery by Seller of any necessary consents
from Seller's software licensors; provided, that (i) any fees payable to
software licensors and to hardware and software lessors required in
connection with the assignment of the software licenses and the hardware
and software leases to the Company shall be paid by the Company and (ii)
the Company assumes those obligations of Seller under the hardware and
software leases assigned to the Company which accrue on and after the
purchase and sale of the computer system. At the time of the Company's
purchase of the computer system from Seller, Seller will deliver to the
Company a ▇▇▇▇ of Sale including customary warranties of Seller's title and
reasonable working condition of the computer system. Upon consummation of
such purchase, the Administrative Services Agreement will be terminated.
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d. MUTUAL RELEASE. At Closing, Seller and the Company shall execute
and deliver to each other a Mutual Release in the form attached hereto as
EXHIBIT C (the "MUTUAL RELEASE").
e. CONVERSION RIGHTS. The Company shall not, directly or indirectly,
enter into, incur or permit to exist any agreement that prohibits,
restricts or imposes any condition upon the ability of Seller to exercise
its conversion rights and receive Common Units, free and clear of any
restriction, lien or encumbrance of any kind, in accordance clause (b) of
Section 11 of the Promissory Note.
6. DATE AND PLACE OF CLOSING. The purchase and sale of the Seller Units
shall take place (the "CLOSING") at the offices of Winthrop & Weinstine, P.A. at
10:00 a.m., local time, within five (5) business days after satisfaction (or
waiver) of the conditions to Closing described in Section 7 of this Agreement
(the "CLOSING DATE"). In the event the Closing has not occurred by April 25,
2006, or such later date as the parties may agree upon, either party hereto
shall have the right to terminate this Agreement on notice to the other party,
unless the failure of the Closing to occur by such date is due to the failure of
the terminating party to comply with its obligations hereunder. Termination of
this Agreement shall not relieve a party from responsibility for damages
resulting from its breach. Each party hereto agrees to use its reasonable best
efforts to satisfy any conditions to Closing that are within its control.
7. CONDITIONS TO CLOSING.
a. CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligation of the
Company to close the transactions contemplated hereby shall be subject to
and is contingent upon the satisfaction at or before the Closing Date of
the following conditions (unless waived in writing by the Company):
(i) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller set forth in SECTION 3 of this Agreement shall
have been true and correct in all material respects when made and
shall be true and correct in all material respects at the Closing Date
as if such representations and warranties were made at such time, and
Seller shall deliver to the Company at Closing a certificate of an
authorized officer of Seller certifying to this condition.
(ii) PERFORMANCE OF AGREEMENT. All covenants, conditions and
other obligations under this Agreement which are to be performed or
complied with by Seller on or before the Closing Date shall have been
fully performed and complied with in all respects on or before the
Closing Date.
(iii) GE RELEASE. GE shall have provided a release of the Seller
Units from the Pledge Agreement.
(iv) SUBORDINATION AGREEMENT. Seller and SunTrust Bank shall have
executed the Subordination Agreement in the form attached hereto as
EXHIBIT D (the "SUBORDINATION AGREEMENT").
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(v) NO DEFAULT. Immediately after giving effect to the payment of
the Purchase Price, the fair value of the assets of the Company will
exceed all liabilities of the Company, other than liabilities to
Company members on account of their membership interests and
liabilities for which the recourse of creditors is limited to
specified property of the Company.
In the event that any one or more of the conditions in this SECTION
7.A. have not been satisfied (or waived) by the Closing Date, the Company
shall have the right to terminate this Agreement by notice to Seller.
b. CONDITIONS TO OBLIGATIONS OF SELLER. The obligation of Seller to
close the transactions contemplated hereby shall be subject to the
satisfaction at or before the Closing Date of the following conditions
(unless waived in writing by Seller):
(i) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company set forth in SECTION 4 of this Agreement
shall have been true and correct in all respects when made and shall
be true and correct in all material respects at the Closing Date as if
such representations and warranties were made at such time, and the
Company shall deliver to Seller a certificate of an authorized officer
of the Company certifying to this condition.
(ii) PERFORMANCE OF AGREEMENT. All covenants, conditions and
other obligations under this Agreement that are to be performed or
complied with by the Company shall have been fully performed and
complied with in all respects on or prior to the Closing Date.
(iii) GE RELEASE. GE shall have provided a release of the Seller
Units from the Pledge Agreement.
(iv) PROMISSORY NOTE. The Company shall have executed the
Promissory Note.
(v) SUBORDINATION AGREEMENT. The Company and SunTrust Bank shall
have executed the Subordination Agreement.
(vi) SUNTRUST LETTER. SunTrust Bank shall have executed a letter
in the form attached hereto as EXHIBIT F in which it agrees to
consider increasing by $3,000,000 the Revolving Commitment under its
loan agreement with the Company under certain circumstances (the
"SunTrust Letter").
8. CLOSING DELIVERIES.
a. DELIVERIES BY SELLER. At or prior to the Closing Date, Seller shall
deliver the following items and documents to the Company, each duly and
properly executed:
(i) One (1) original of the Membership Interest Power in the form
attached hereto as EXHIBIT E conveying, selling, transferring and
assigning to the Company all of Seller's right, title and interest in
the Seller Units;
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(ii) Four (4) counterpart originals of the Amendment to
Administrative Services Agreement;
(iii) Four (4) counterpart originals of the Mutual Release;
(iv) Four (4) counterpart originals of the Subordination
Agreement;
(v) A written resignation from each of Seller's designees to the
Company's Board of Managers;
(vi) Certified copies of the corporate resolutions of Seller
authorizing the transactions contemplated hereby, and authorizing the
execution, delivery and performance of this Agreement and all other
documents and agreements contemplated hereby; and
(vii) Seller's Certificate dated as of the Closing Date
confirming that (i) the representations and warranties of Seller were
true and correct in all material respects when made and remain true
and correct in all material respects on and as of the Closing Date,
and (ii) all covenants, agreements and conditions required to be
performed or complied with by Seller prior to or at the Closing Date
have been performed or complied with by Seller.
b. DELIVERIES BY THE COMPANY. At the Closing Date, the Company shall
deliver the following items and documents to Seller, each duly and properly
executed:
(i) Four (4) counterpart originals of the Amendment to
Administrative Services Agreement;
(ii) Four (4) counterpart originals of the Mutual Release;
(iii) Certified copies of the resolutions of the Company
authorizing the transactions contemplated hereby, and authorizing the
execution, delivery and performance of this Agreement and all other
documents and agreements contemplated hereby;
(iv) The Company's Certificate dated as of the Closing Date
confirming that (i) the representations and warranties of the Company
were true and correct in all material respects when made and remain
true and correct in all material respects on and as of the Closing
Date, and (ii) all covenants, agreements and conditions required to be
performed or complied with by the Company prior to or at the Closing
Date have been performed or complied with by the Company;
(v) A written release by GE of the Seller Units from the Pledge
Agreement;
(vi) The Closing Payment, via wire transfer, to an account
designated by Seller;
(vii) The Promissory Note;
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(viii) The Subordination Agreement; and
(ix) The SunTrust Letter executed by SunTrust Bank.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The statements,
representations, warranties, covenants and agreements of the parties hereto
contained in this Agreement and in any certificate, instrument or document
delivered by or on behalf of any of the parties hereto pursuant to this
Agreement and the transactions contemplated hereby shall survive the Closing and
the consummation of the transactions contemplated hereby.
10. OBSERVER RIGHTS. Until the Promissory Note is paid in full, Seller
shall be entitled to designate a non-voting observer to attend and participate
in (but not vote at) all meetings of the Board of Managers of the Company and
all Board committees. The Company shall provide the observer with copies of all
notices, minutes, consents, financial information and other materials that it
provides to its managers at the same time and in the same manner as provided to
such managers. Seller may, at any time, substitute or replace the observer. The
observer shall be entitled to the same indemnification from the Company as is
provided to all other members of the Board.
11. INDEMNIFICATION.
a. INDEMNITY BY SELLER. Seller agrees to indemnify, defend, exonerate
and hold the Company and its managers, officers, members, affiliates,
representatives, agents, successors and assigns, free and harmless from and
against any and all actions, causes of action, suits, losses, liabilities,
demands, damages, claims and expenses, of whatever type or nature,
including reasonable attorneys' fees and disbursements (collectively
"LOSSES"), incurred in any capacity by any of the indemnitees as a result
of or relating to any breach or misrepresentation of any of the
representations, warranties, covenants or agreements of Seller set forth in
this Agreement; provided that Seller shall not be liable for any loss of
profits or consequential damages suffered by the Company or any other
indemnitee under this Section 11.a.
b. INDEMNITY BY THE COMPANY. The Company agrees to indemnify, defend,
exonerate and hold Seller and its officers, directors, shareholders,
affiliates, representatives, agents, successors and assigns, free and
harmless from and against any and all Losses, incurred in any capacity by
any of the indemnitees as a result of or relating to any breach or
misrepresentation of any of the representations, warranties, covenants or
agreements of this Company set forth in any of this Agreement; provided
that the Company shall not be liable for any loss of profits or
consequential damages suffered by Seller or any other indemnitee under this
Section 11.b.
12. TERMINATION OF INTERESTS. From and after the Closing Date, and except
for Seller's rights under this Agreement and under the Promissory Note, Seller
shall have no further interest in the assets, profits or management of the
Company, and all obligations of the Company to Seller, including the return of
any capital contribution, loan or advance, and all obligations of Seller to the
Company, including those under the Limited Liability Company Agreement, shall be
deemed satisfied and discharged.
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13. MISCELLANEOUS.
a. INCORPORATION OF RECITALS. The recitals set forth above are
incorporated herein and are made a part of this Agreement as if fully set
forth herein and shall constitute an expression of the intent of the
parties and as an aid in the construction of this Agreement.
b. ENTIRE AGREEMENT; AMENDMENT. This Agreement, including the
schedules and exhibits, constitutes the entire agreement between the
parties and supersedes all prior discussions, negotiations and
understandings relating to the subject matter hereof, whether written or
oral. This Agreement may not be amended, altered, enlarged, supplemented,
abridged, modified, or any provisions waived, except by a writing duly
signed by all of the parties (in the case of an amendment) and by the
waiving party (in the case of a waiver).
c. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
d. HEADINGS. The headings of the paragraphs of this Agreement are
included for purposes of convenience only and shall not affect the
construction or interpretation of any of its provisions.
e. NO THIRD-PARTY RIGHTS. Nothing expressed or implied in this
Agreement is intended, nor may be construed, to confer upon or give any
person, firm or corporation, other than the parties hereto, any rights or
remedies under or by reason of this Agreement.
f. REMEDIES. The rights, remedies, powers and privileges provided in
this Agreement are cumulative and not exclusive and are in addition to any
and all rights, remedies, powers and privileges granted by law, rule,
regulation or instrument. The parties agree that, in addition to any other
relief afforded under the terms of this Agreement, the parties may enforce
this Agreement by injunctive or mandatory relief to be issued by or against
the other parties, it being understood that both damages and specific
performance will be proper modes of relief and are not to be understood as
alternative remedies.
g. GOVERNING LAW. This Agreement shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes it, plus any
related or supplemental documents and notices, shall be construed in
accordance with and governed by the laws of such State; provided that the
Subordination Agreement and the Promissory Note shall be governed by the
laws of the State of Georgia.
h. WAIVER. No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right or
remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right or remedy granted hereby or by any related
document or by law.
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i. SUCCESSORS AND ASSIGNS. This Agreement and all documents related
hereto shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. No party shall have the right
to assign this Agreement without the prior written consent of each other
party hereto.
j. NOTICES. All notices and communications required or permitted under
this Agreement shall be in writing and shall be delivered by hand, by
registered or certified mail, postage prepaid, by overnight courier, or by
facsimile transmission, in each case addressed as follows:
If to the Company: AlbaHealth, LLC
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Winthrop & Weinstine, P.A.
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller: Tefron USA, Inc.
ATTN: ▇▇▇▇▇ ▇▇▇▇▇▇
Industrial Center
Teradyon, ▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Telephone: (▇▇▇)▇-▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ Ballantime LLP
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone:_______________
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and to: Gross, Kleinhendler, Hodak, Halevy,
▇▇▇▇▇▇▇▇▇ & Co.
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇, Adv.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇ Israel
Telephone: (▇▇▇) ▇-▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇-▇▇▇-▇▇▇▇
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All notices and communications shall be effective as follows: if delivered
by mail, on the earlier of the day of actual receipt or ten business days after
deposit in mail; if sent by overnight courier, three business days after sent by
a reputable overnight courier; if delivered in person, upon actual receipt or,
if delivery is refused, upon tender of delivery; if sent by facsimile
transmission, immediately upon dispatch to the facsimile numbers shown above if
a business day at the location of receipt and confirmation of successful
transmission is received.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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[SIGNATURE PAGE TO MEMBERSHIP INTEREST REDEMPTION AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Membership Interest
Redemption Agreement as of the date and year first written above.
ALBAHEALTH, LLC
By: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇
----------------------
A. ▇▇▇▇▇▇▇ ▇▇▇
Its PRESIDENT
TEFRON USA, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Its Chief Executive Officer
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Its Senior Vice President
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EXHIBIT A
FORM OF SUBORDINATED PROMISSORY NOTE
[See attached]
EXHIBIT B
FORM OF AMENDMENT TO GENERAL ADMINISTRATIVE SERVICES AGREEMENT
AMENDMENT TO GENERAL ADMINISTRATIVE SERVICES AGREEMENT
THIS AMENDMENT, made and entered into this ___ day of _____________, 2006, by
and between AlbaHealth, LLC, a Delaware limited liability company (the
"COMPANY"), and Tefron USA, Inc., a Delaware corporation formerly known as
Alba-Waldensian, Inc. ("TEFRON").
W I T N E S S E T H :
WHEREAS, the Company and Tefron previously entered into that certain General
Administrative Services Agreement dated September 6, 2002 (the "Administrative
Services Agreement"); and
WHEREAS, the parties wish to amend the Administrative Services Agreement to
modify the services, compensation and termination provisions thereof.
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
sufficiency of which is hereby acknowledged, the parties hereto agree to the
following terms and conditions:
1. All references in the Agreement to "Alba" shall now read "Tefron".
2. Section 3(a) of the Agreement is hereby amended to provide that the
Service Fee shall be Seven Hundred Sixty-Six Thousand and 00/100 Dollars
($766,000.00) for the 12-month period commencing January 1, 2006.
3. Section 4 of the Agreement is hereby amended by adding a new subsection
(c) thereto, which subsection (c) shall provide in its entirety as follows:
(c) This Agreement shall expire on December 31, 2006, unless the
parties hereto agree to extend the Agreement in writing.
4. Except as otherwise amended herein, the Administrative Services
Agreement is hereby ratified and remains valid and in full force and effect. The
amended portion of the Administrative Services Agreement shall be read, wherever
reasonable to do so, to be consistent with the portions not so amended; provided
that the amended portion shall be deemed to control and any conflict shall be
resolved in favor of such amended portion.
5. This Amendment may be executed in two or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
[SIGNATURE PAGE TO AMENDMENT TO GENERAL ADMINISTRATIVE SERVICES AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
ALBAHEALTH, LLC
By: ___________________
Its:___________________
TEFRON USA, INC.
By:
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Its Chief Executive Officer
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EXHIBIT C
FORM OF MUTUAL RELEASE
MUTUAL RELEASE
THIS MUTUAL RELEASE is made and entered into effective as of the ____day of
___________, 2006, by and between Tefron USA, Inc., a Delaware corporation
formerly known as Alba-Waldensian, Inc. ("TEFRON"), and AlbaHealth, LLC, a
Delaware limited liability company (the "COMPANY").
W I T N E S S E T H :
WHEREAS, prior to the date hereof, Tefron was a member of the Company;
WHEREAS, Tefron and the Company have entered into a Membership Interest
Redemption Agreement and ancillary documents referenced therein (collectively,
the "REDEMPTION AGREEMENT") pursuant to which, among other things, the Company
is consummating the redemption from Tefron of all of its membership interest in
the Company; and
WHEREAS, consummation of the transactions contemplated by the Redemption
Agreement is conditioned upon the execution of this Mutual Release by the
parties hereto.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements of the parties herein contained and in consideration of, and as a
condition to, consummation of the transactions contemplated by the Redemption
Agreement, it is mutually agreed as follows:
1. The Company, for itself and for each of its agents, representatives and
assigns and others claiming through or under it, hereby releases and
forever discharges Tefron, and each and all of its past, present and future
officers, employees, directors, owners, agents and representatives, and
each and all of their respective subsidiaries, affiliates, agents,
representatives, predecessors, successors, assigns, associated companies,
corporate parents and all of their respective past, present and future
officers, employees, directors, owners, agents and representatives, of and
from any and all manner of action or actions, cause or causes of action, in
law or in equity, statutory or in common law, of any nature whatsoever,
known or unknown, fixed or contingent, which the Company has, had or may
hereafter have against each such persons or entities for or by reason of
any matter, cause or thing whatsoever arising out of acts or events
occurring from the beginning of time up to and through the date of this
Mutual Release; except any claims arising out of the Redemption Agreement
or the agreements entered into pursuant to the Redemption Agreement.
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2. Tefron, for itself and for each of its agents, representatives and assigns
and others claiming through or under it, hereby releases and forever
discharges the Company and each and all of its past, present and future
officers, employees, managers, owners, agents and representatives, and each
and all of their respective subsidiaries, affiliates, agents,
representatives, predecessors, successors, assigns, associated companies,
corporate parents and all of their respective past, present and future
officers, employees, managers, directors, owners, agents and
representatives, of and from any and all manner of action or actions, cause
or causes of action, in law or in equity, statutory or in common law, of
any nature whatsoever, known or unknown, fixed or contingent, which Tefron
has, had or may hereafter have against such persons or entities for or by
reason of any matter, cause or thing whatsoever arising out of acts or
events occurring from the beginning of time up to and through the date of
this Mutual Release; except any claims arising out of the Redemption
Agreement, the subordinated promissory note executed by the Company
pursuant thereto or the agreements entered into pursuant to the Redemption
Agreement.
3. The provisions of this Mutual Release are severable, and if any part of it
is found to be unenforceable, the other paragraphs shall remain fully valid
and enforceable. This Mutual Release shall survive the termination of any
arrangements contained in it.
4. All parties acknowledge that they have read all of the terms of this Mutual
Release and have had an opportunity to discuss it with their respective
attorneys. Each understands the terms of this Mutual Release. All parties
execute this Mutual Release of their own free will in exchange for the
consideration to be given, which each acknowledges is adequate and
satisfactory.
PLEASE READ CAREFULLY. This Mutual Release is a release of all known and
unknown claims.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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[SIGNATURE PAGE TO MUTUAL RELEASE]
IN WITNESS WHEREOF, the parties hereto have executed this Mutual Release
effective as of the date and year first indicated above.
TEFRON USA , INC. AlbaHealth, LLC
By:______________________________ By:______________________________
__________________(Print Name) __________________(Print Name)
Its:__________________________ Its:__________________________
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EXHIBIT D
FORM OF SUBORDINATION AGREEMENT
[See attached]
EXHIBIT E
FORM OF MEMBERSHIP INTEREST POWER
MEMBERSHIP INTEREST POWER
FOR VALUE RECEIVED, TEFRON USA, INC., a Delaware corporation formerly known
as Alba-Waldensian, Inc., hereby assigns and transfers unto ALBAHEALTH, LLC, a
Delaware limited liability company, FORTY-EIGHT THOUSAND THREE HUNDRED
TWENTY-FIVE (48,325) Common Units of ALBAHEALTH, LLC standing in its name on the
books of said limited liability company represented by certificate number 1
herewith.
Dated as of April ____, 2006. TEFRON USA, INC.
By:
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▇▇▇▇▇ ▇▇▇▇▇▇
Its Chief Executive Officer
EXHIBIT F
FORM OF SUNTRUST LETTER
[See attached]