EXHIBIT 99.4
RIGHT OF FIRST REFUSAL AGREEMENT
THIS RIGHT OF FIRST REFUSAL AGREEMENT (this "AGREEMENT") is made as of this
_______ day of March, 1997, by and among Bank of America NT & SA, doing business
as Seafirst Bank ("SEAFIRST"), and Brazos, Inc., a Texas corporation ("BRAZOS").
W I T N E S S E T H:
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WHEREAS, on the date hereof, the Plan and Agreement of Merger dated
November 13, 1996, as amended (the "MERGER AGREEMENT"), between Sun Sportswear,
Inc., a Washington corporation, and BSI Holdings, Inc., a Delaware corporation
and the parent corporation of Brazos, was consummated;
WHEREAS, pursuant to the Merger Agreement, Brazos has issued to Seafirst
that certain Convertible Subordinated Promissory Note (the "NOTE") as part of
the consideration in connection with the Merger Agreement; and
WHEREAS, the parties hereto desire to set forth their agreement regarding
Seafirst's obligation to offer the Note to Brazos prior to transferring the Note
to any other party.
NOW, THEREFORE, for and in consideration of the mutual covenants contained
in this Agreement, the parties hereto hereby agree as follows:
1. RIGHT OF FIRST REFUSAL.
(a) If Seafirst receives a bona fide third-party offer to purchase
the Note, Seafirst shall promptly send written notice thereof (the
"NOTICE") to Brazos at the address set forth on the signature page hereof.
The Notice shall constitute an offer to sell the Note or any part thereof
to Brazos on the terms set out in the Notice (which shall be the same as
the third-party offer). Brazos shall have an exclusive option, but not the
obligation, to purchase the Note at the offering price and on the terms
described in the Notice. Brazos may exercise its option to purchase the
Note by (a) delivering to Seafirst written notice of Brazos' election to
accept the offer set out in the Notice, and (b) consummating such purchase,
in each case within 15 days after the date Brazos receives the Notice.
(b) If any consideration to be paid under terms set out in the Notice
is other than cash (or other immediately available funds), Brazos may
substitute therefore cash (or other immediately available funds) equal to
the then fair market value of such non-cash consideration. If the fair
market value of any such non-cash consideration is not readily
ascertainable and Seafirst and Brazos cannot agree as to its value,
Seafirst may (at its cost and expense) engage a mutually agreed upon third
party appraiser or investment banker to determine the fair market value of
such non-cash consideration. Brazos agrees to be bound by such
determination, provided that, after such determination is made, Brazos may
purchase the Note for cash (or other immediately available funds) in an
amount equal to
the lesser of (i) the amount of the offer set out in the Notice (including
the fair market value of the non-cash consideration) and (ii) the
outstanding principal balance of the Note plus all accrued and unpaid
interest.
(c) If and to the extent that Brazos does not timely notify Seafirst
of its election to purchase the Note on the terms set forth in the Notice,
then the offer by Seafirst to Brazos to the extent not timely accepted
shall lapse. Upon the lapse, Seafirst shall, for a period of 60 days after
the lapse, be free to transfer the Note to the third-party offeror
described in the Notice in accordance with the terms of the bona fide offer
set out in the Notice, but after such 60-day period, the restrictions of
this Agreement shall again apply.
(d) Brazos may assign its option to purchase the Note under this
Agreement to an affiliate of Brazos. However, if Brazos' election to
purchase the Note (or its exercise of that option) requires the consent of
the agent or lenders under that certain Second Amended and Restated Loan
and Security Agreement dated as of August 9, 1996, by and among Brazos,
Fleet Capital Corporation, as agent, and the lenders party thereto from
time to time, then Brazos shall obtain such consent prior to consummating
the purchase of the Note (and within the 15 day period immediately
following its receipt of the Notice).
2. TERMINATION. This Agreement shall terminate upon the first to occur
of (1) payment in full of the Note or (2) the transfer of the Note by Seafirst,
which transfer has been made in accordance with this Agreement.
3. ENTIRE AGREEMENT; AMENDMENT. This Agreement supersedes all previous
agreements by and among the parties hereto relating to the subject matter
hereof. This Agreement may be amended at any time by a written instrument
executed by all of the parties hereto.
4. BINDING EFFECT. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto, their and respective
successors and assigns.
5. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be considered an original but all of which
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
on and effective as of the day first above written.
BRAZOS, INC.
(a Texas corporation)
By:_________________________________________
Name:____________________________________
Title:___________________________________
Address: 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: President
BANK OF AMERICA NT & SA,
Doing Business as Seafirst Bank
By:_________________________________________
Name:____________________________________
Title:___________________________________
Address:
Telecopy No.:
Attention:
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