-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EXdL+NlntUW5hD2sRlxAuuwDqZiinmVQAg7yztgj23dopdCCAsY+hssP6i1vJNlu EhdTrWukmHvXRw/Ie+n9aQ== 0000898430-97-002292.txt : 19970523 0000898430-97-002292.hdr.sgml : 19970523 ACCESSION NUMBER: 0000898430-97-002292 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19970522 SROS: NASD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BRAZOS SPORTSWEAR INC /DE/ CENTRAL INDEX KEY: 0000856711 STANDARD INDUSTRIAL CLASSIFICATION: WOMEN'S, MISSES', AND JUNIORS OUTERWEAR [2330] IRS NUMBER: 911770931 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-40836 FILM NUMBER: 97612910 BUSINESS ADDRESS: STREET 1: 6520 SOUTH 190TH ST CITY: KENT STATE: WA ZIP: 98032 BUSINESS PHONE: 2062513565 FORMER COMPANY: FORMER CONFORMED NAME: SUN SPORTSWEAR INC DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BANKAMERICA CORP CENTRAL INDEX KEY: 0000009672 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 941681731 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: BANK OF AMERICA CTR STREET 2: 555 CALIFORNIA ST CITY: SAN FRANCISCO STATE: CA ZIP: 94104 BUSINESS PHONE: 4156223530 MAIL ADDRESS: STREET 1: 555 CALIFORNIA STREET CITY: SAN FRANCISCO STATE: CA ZIP: 94104 SC 13D/A 1 AMENDMENT NO. 2 TO SCHEDULE 13D ---------------------------------- OMB APPROVAL ---------------------------------- OMB Number: 3235-0145 Expires: Estimated average burden hours per form............. 14.90 ---------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 2) BRAZOS SPORTSWEAR, INC., FORMERLY SUN SPORTSWEAR, INC. ------------------------------------------------------ (Name of Issuer) COMMON STOCK ------------ (Title of Class of Securities) 866875 10 7 ----------- (CUSIP Number) STANLEY A. CARLSON, ESQ. 701 Fifth Avenue, Floor 56, Seattle, Washington 98104 ------------------------------------------------------ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 14, 1997 -------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Check the following box if a fee is being paid with the statement [ ]. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) NOTE: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 866875 10 7 PAGE 1 OF 8 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON BankAmerica Corporation - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] N/A (b) [_] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS* 00 - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Delaware Corporation - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 307,552 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 Not Applicable OWNED BY ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 307,552 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 Not Applicable - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 307,552 11 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 7.12% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 CO - ------------------------------------------------------------------------------ *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 866875 10 7 PAGE 2 OF 8 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Bank of America NT & SA, as successor to Seattle-First National Bank - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] N/A (b) [_] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS* 00 - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 National Bank - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 307,552 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 Not Applicable OWNED BY ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 307,552 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 Not Applicable - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 307,552 11 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 7.12% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 BK - ------------------------------------------------------------------------------ *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. ITEM 1. SECURITY AND ISSUER This Amendment No. 2 to Schedule 13D relates to the common stock, par value $.001, ("Common Stock") of Brazos Sportswear, Inc., formerly Sun Sportswear, Inc. ("Issuer" or "Company") whose principal offices are located at 3860 Virgina Avenue, Cincinnati, Ohio 45227. ITEM 2. IDENTITY AND BACKGROUND This Amendment No. 2 to Schedule 13D is being filed jointly by Bank of America NT & SA (the "Bank") and BankAmerica Corporation ("BankAmerica"). The Bank is the record owner of the shares that are the subject of this filing and a wholly-owned subsidiary of BankAmerica. The original Schedule 13D and Amendment No. 1 to Schedule 13D were filed jointly by BankAmerica and two affiliates, Seattle-First National Bank and SeaFirst Corporation, which have been merged, respectively, into the Bank and BankAmerica. Pursuant to rule 13d-2(c), a copy of Amendment No. 1 to Schedule 13D as originally filed on December 23, 1992 accompanies this filing, attached as an exhibit. Amendment No. 1 restated the original Schedule 13D and reflected the beneficial ownership of certain additional shares of the Company by a director of Seattle-First National Bank. (a.1) BANKAMERICA CORPORATION (owner of 100% of the issued and outstanding common stock of the Bank). (b.1) STATE OF INCORPORATION: Delaware (c.1) PRINCIPAL BUSINESS: Bank Holding Company (a.2) BANK OF AMERICA NT & SA 701 Fifth Avenue, Floor 56 Seattle, Washington 98104 (b.2) STATE OF INCORPORATION: A national bank organized and existing under the laws of the United States. (c.2) PRINCIPAL BUSINESS: A national bank engaged in commercial banking. (d) - (e) Neither the Bank nor BankAmerica (collectively referred to as the "Corporations"), nor, to the best knowledge of the Corporations, any of the directors or executive officers of the Corporations, during the last five years, was a party to a criminal proceeding (excluding traffic violations or similar misdemeanors) of a judicial or administrative body of competent jurisdiction as a result of which any such entity or individual was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation of such laws. NOTE: See Attachment A for information relating to directors and executive officers of the Corporations. Page 3 of 8 ITEM 3: SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION The Bank acquired the Common Stock of the Issuer pursuant to the terms of a certain Loan Modification and Satisfaction Agreement dated December 23, 1992 by and among David A. Sabey and Sandra L. Sabey, husband and wife ("Sabey"), Sabey Corporation, a Washington corporation ("Sabey Corp."), Taylor Way Properties, Inc., a Washington corporation ("Taylor Way"), and Seattle-First National Bank, a predecessor of the Bank (the "Agreement"). Sabey, Sabey Corp. and Taylor Way (the "Borrowers") were in default under the terms of certain loans made by the Bank, which loans were in default and secured by the stock of the Issuer held by Sabey (the "Loans"). Pursuant to the terms of the Agreement, the parties agreed to the partial discharge of such Loans through the transfer to the Bank of certain assets owned by the Borrowers, including the Common Stock of the Issuer held by Sabey. ITEM 4: PURPOSE OF TRANSACTION (a) - (c) The original purpose of the acquisition was to transfer the Common Stock held by Sabey and pledged to the Bank in partial discharge of the Loans. As described in the Company's proxy statement (the "Proxy Statement") dated February 14, 1997, and as approved by its shareholders at a special meeting (the "Special Meeting") of the Company's shareholders on March 14, 1997, the Company entered into a Plan and Agreement of Merger dated as of November 13, 1996, as amended (the "Merger Agreement") pursuant to which BSI Holdings, Inc., a Delaware corporation ("BSI"), merged (the "Merger") with and into the Company. Pursuant to the Merger Agreement, BSI holders of common stock received shares of Common Stock representing approximately 88% of the Common Stock outstanding following the Merger. As part of the Merger, Sun Sportswear, Inc. was renamed Brazos Sportswear, Inc. Pursuant to the Merger Agreement, the Bank sold 2,262,236 shares at $2.20 per share, and was paid $3,476,919 in cash and $1,500,000 in the form of a promissory note. Other holders of the Common Stock received cash in the amount of $2.20 per share for 50% of their shares and retained 50% of the shares, although shareholders could elect to retain all shares of Common Stock. As a result of the Merger and the reverse stock split (as described in 4(g)) below), the Bank now owns directly 307,552 shares of Common Stock. The promissory note held by the Bank is, upon default or maturity, convertible into the Common Stock at $2.20 per share. (d) Under the terms of the Merger Agreement, the directors of the Company resigned at the effective date of the Merger and six directors designated by BSI became directors of the Company. Senior officers of the Company resigned on or before closing and the Page 4 of 8 Company's board of directors elected new officers, all of whom were previously officers of or associated with BSI. (e) - (f) As described above, holders of BSI's common stock received Common Stock representing 88% of the Common Stock outstanding following the Merger. As described in the Proxy Statement, the Merger effected the consolidation of the Company's business operations with the business operations of BSI. (g) As described in the Proxy Statement, the board of directors proposed, and the shareholders approved at the Special Meeting, a reincorporation of the Company from the state of Washington to the state of Delaware and simultaneously a one-for-five reverse stock split (the "Reincorporation"). (h) None (i) None (j) None ITEM 5: INTEREST IN SECURITIES OF THE ISSUER (a) Aggregate Number and Percentage of Common Stock Beneficially Owned: 307,552 shares (reflecting one-for-five reverse stock split) To the best of the Corporations' knowledge, none of their respective executive officers or directors beneficially own any Common Stock of the Issuer. (b) (1) Sole Voting Power: 307,552 shares (2) Shared Voting Power: None (3) Sole Dispositive Power: 307,552 shares (4) Shares Dispositive Power: None (c) Description of Transactions: To the best of the Corporations' knowledge, none of their respective executive officers or directors effected any transactions in the Common Stock during the past sixty (60) days. (d) N/A (e) N/A Page 5 of 8 ITEM 6: CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. In connection with the closing of the Merger, the Bank entered into the following arrangements: 1. A Lock-Up Agreement (attached as Exhibit 1) with the Company, in which the Bank agreed for 180 days following the Merger not to sell or offer to sell in any manner (such as by granting an option) any of its shares of the Company. The agreement provides certain narrow exceptions, such as in the event of a tender offer or other transaction resulting in a more than 50% of the Company being owned by any person or group, bankruptcy of the Company, or by operation of law. 2. The Bank received a Convertible Subordinated Note (the "Note") (attached as Exhibit 2) in the principal amount of $1,500,000, with Brazos, Inc., a wholly-owned subsidiary of the Company, as maker, which provides for interest at the following rates:
PERIOD INTEREST RATE March 14, 1997 to March 13, 1998 10% March 14, 1998 to March 13, 1999 10.5% March 14, 1999 to March 13, 2000 11.5%
Interest is payable at the end of each calendar quarter, with the entire principal balance and accrued interest due on March 13, 2000. The default rate of interest during any period of default is 15%. The Note may be prepaid without premium or penalty, in full or in part. The Note is unsecured. 3. A Convertible Subordinated Note Agreement (the "Note Agreement") (attached as Exhibit 3) with the Company and Brazos, Inc. The Note Agreement provides that the Note is convertible into Common Stock (at $2.20 per share) at any time (i) after the Note matures, if the Note has not been paid in full; or (ii) five days after a qualified public offering of the Company (in which the Company raises at least $15 million at a price per share of at least $3.50) if the Note has not been paid in full. The Note Agreement also grants to the Bank demand registration rights for common stock issued upon conversion of the Note. The Note Agreement also includes certain covenants and representations of Company and Brazos, Inc. 4. A Right of First Refusal Agreement (the "Refusal Agreement") (attached as Exhibit 4) with Brazos, Inc., in which the Bank granted the right to Brazos, Inc. to purchase the Note if the Bank receives a bona fide third-party offer to purchase the Note. Page 6 of 8 5. A Subordination Agreement (the "Subordination Agreement") (attached as Exhibit 5) with Fleet Capital Corporation and The First National Bank of Boston (collectively, the "Senior Lenders"), each of which are lenders to Brazos or the Company. The Subordination Agreement provides that the Note is subordinated to the debt obligations of Brazos, Inc. to the Senior Lenders and that, with certain exceptions, the Bank will not demand, sue or receive from Brazos, Inc. any part of the Note other than regularly scheduled interest payments on the Note. The Bank's rights to receive payments on the Note are suspended in the event of a default to the Senior Lenders. The Subordination Agreement includes other terms and provisions common to subordination agreements. ITEM 7: MATERIAL TO BE FILED AS EXHIBITS 1. Lock-Up Agreement with the Company 2. Convertible Subordinated Note made by Brazos, Inc. 3. Convertible Subordinated Note Agreement with the Company and Brazos, Inc. 4. Right of First Refusal Agreement with Brazos, Inc. 5. Subordination Agreement with Fleet Capital Corporation and The First National Bank of Boston Page 7 of 8 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: May 21, 1997 BANK OF AMERICA NT & SA, as successor to SEATTLE-FIRST NATIONAL BANK By /s/ Stanley A. Carlson -------------------------------------- Stanley A. Carlson General Counsel, Seafirst Division Dated: May 21, 1997 BANKAMERICA CORPORATION By /s/ Stanley A. Carlson -------------------------------------- Stanley A. Carlson General Counsel, Seafirst Division Page 8 of 8 ATTACHMENT A-1 Bank of America National Trust and Savings Association Directors and Executive Officers Information The following table sets forth the names, addresses and principal occupations of the executive officers and directors of Bank of America National Trust and Savings Association (directors are indicated by asterisk). Each such person is a citizen of the United States. * Joseph F. 1955 North Surveyor Ave. Chairman of the Board & Chief Executive Officer Alibrandi Simi Valley, CA 93063 Whittaker Corporation Simi Valley, CA (principal business: aerospace manufacturing) * Jill E. 333 Continental Blvd. President and Chief Executive Officer Barad 15th Floor Mattel, Inc. El Segundo, CA 90245 El Segundo, CA (principal business: toy maker) * Peter B. 270 Lafayette Circle Chairman of the Board and Bedford Lafayette, CA 94549 Chief Executive Officer Bedford Property Investors, Inc. Lafayette, CA (principal business: real estate investment trust) * Andrew F. 4400 MacArthur Blvd., N.W. President Brimmer Suite 302 Brimmer & Company, Inc. Washington, D.C. 20007 Washington, D.C. (principal business: economic and financial consulting) Kathleen J. 555 California Street Vice Chairman Burke 40th Floor Bank of America NT&SA San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance) * Richard A. 123 Mission St., Room H17F Retired Chairman of the Board and Clarke San Francisco, CA 94106 Chief Executive Officer Pacific Gas & Electric Company San Francisco, CA (principal business: gas and electric utility) * David A. 555 California Street Chairman, President and Chief Executive Officer Coulter 40th Floor Bank of America NT&SA San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance)
* Timm F. c/o Hallmark Cards, Inc. Retired Chairman Crull 1024 E. Balboa Blvd. Nestle USA, Inc. Newport Beach, CA 92661 Glendale, CA (principal business: food and related products processing) * Kathleen 147 Clifton Street President Feldstein Belmont, MA 02178 Economics Studies, Inc. Belmont, MA (principal business: economics consulting) * Donald E. Pacific Telesis Center Chairman Emeritus Guinn 130 Kearny St., Room 3704 Pacific Telesis Group San Francisco, CA 94108 San Francisco, CA (principal business: telecommunications) * Frank L. 2726 Shelter Island Dr. Consulting Architect Hope Suite 250 San Diego, CA San Diego, CA 92106 (principal business: architecture) H. Eugene 555 California Street President, Global Retail Bank Lockhart 40th Floor BankAmerica Corporation San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance) * Ignacio E. 411 West Fifth St., 12th Floor Chairman Lozano, Jr. Los Angeles, CA 90013 La Opinion Los Angeles, CA (principal business: newspaper publishing) * Walter E. Office of the President President Massey 830 Westview Drive., S.W. Morehouse College Atlanta, GA 30314 Atlanta, GA (principal business: education) Jack L. 555 California Street Vice Chairman Meyers 40th Floor Bank of America NT&SA San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance) Michael J. 555 California Street Vice Chairman Murray 40th Floor Bank of America NT&SA San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance)
Michael E. 555 California Street Vice Chairman, Cashier and O'Neill 40th Floor Chief Financial Officer San Francisco, CA 94104 Bank of America NT&SA San Francisco, CA (principal business: banking and finance) * John M. 227 West Monroe Street Of Counsel Richman Suite 4825 Wachtell, Lipton, Rosen & Katz Chicago, IL 60606 Chicago, IL (principal business: law) * Richard M. 555 California Street Retired Chairman and Chief Executive Officer Rosenberg 11th Floor Bank of America NT&SA San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance) * A. Michael Memorial Way, Room 140 Dean of Graduate School of Business Spence Stanford, CA 94305 Stanford University Stanford, CA (principal business: education) Martin A. 555 California Street Vice Chairman Stein 40th Floor Bank of America NT&SA San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance) * Solomon D. 1801 California Street President and Chief Executive Officer Trujillo 52nd Floor US West Communications Group Denver, CO 80202 Denver, CO (principal business: communications)
ATTACHMENT A-2 BankAmerica Corporation Directors and Executive Officers Information The following table sets forth the names, addresses and principal occupations of the executive officers and directors of BankAmerica Corporation (directors are indicated by asterisk). Each such person is a citizen of the United States. * Joseph F. 1955 North Surveyor Ave. Chairman of the Board & Chief Executive Officer Alibrandi Simi Valley, CA 93063 Whittaker Corporation Simi Valley, CA (principal business: aerospace manufacturing) * Jill E. 333 Continental Blvd. President and Chief Executive Officer Barad 15th Floor Mattel, Inc. El Segundo, CA 90245 El Segundo, CA (principal business: toy maker) * Peter B. 270 Lafayette Circle Chairman of the Board and Bedford Lafayette, CA 94549 Chief Executive Officer Bedford Property Investors, Inc. Lafayette, CA (principal business: real estate investment trust) * Andrew F. 4400 MacArthur Blvd., N.W. President Brimmer Suite 302 Brimmer & Company, Inc. Washington, D.C. 20007 Washington, D.C. (principal business: economic and financial consulting) Kathleen J. 555 California Street Vice Chairman and Personnel Burke 40th Floor Relations Officer San Francisco, CA 94104 BankAmerica Corporation San Francisco, CA (principal business: banking and finance) * Richard A. 123 Mission St., Room H17F Retired Chairman of the Board and Clarke San Francisco, CA 94106 Chief Executive Officer Pacific Gas & Electric Company San Francisco, CA (principal business: gas and electric utility) * David A. 555 California Street Chairman, President and Chief Executive Officer Coulter 40th Floor BankAmerica Corporation San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance)
* Timm F. c/o Hallmark Cards, Inc. Retired Chairman Crull 1024 E. Balboa Blvd. Nestle USA, Inc. Newport Beach, CA 92661 Glendale, CA (principal business: food and related products processing) * Kathleen 147 Clifton Street President Feldstein Belmont, MA 02178 Economics Studies, Inc. Belmont, MA (principal business: economics consulting) * Donald E. Pacific Telesis Center Chairman Emeritus Guinn 130 Kearny St., Room 3704 Pacific Telesis Group San Francisco, CA 94108 San Francisco, CA (principal business: telecommunications) * Frank L. 2726 Shelter Island Dr. Consulting Architect Hope Suite 250 San Diego, CA San Diego, CA 92106 (principal business: architecture) H. Eugene 555 California Street President, Global Retail Bank Lockhart 40th Floor BankAmerica Corporation San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance) * Ignacio E. 411 West Fifth St., 12th Floor Chairman Lozano, Jr. Los Angeles, CA 90013 La Opinion Los Angeles, CA (principal business: newspaper publishing) * Walter E. Office of the President President Massey 830 Westview Drive., S.W. Morehouse College Atlanta, GA 30314 Atlanta, GA (principal business: education) Jack L. 555 California Street Vice Chairman Meyers 40th Floor BankAmerica Corporation San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance) Michael J. 555 California Street President, Global Wholesale Bank Murray 40th Floor BankAmerica Corporation San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance) Michael E. 555 California Street Vice Chairman and Chief Financial Officer O'Neill 40th Floor BankAmerica Corporation San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance)
* John M. 227 West Monroe Street Of Counsel Richman Suite 4825 Wachtell, Kpton, Rosen & Katz Chicago, IL 60606 Chicago, IL (principal business: law) * Richard M. 555 California Street Retired Chairman and Chief Executive Officer Rosenberg 11th Floor BankAmerica Corporation San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance) * A. Michael Memorial Way, Room 140 Dean of Graduate School of Business Spence Stanford, CA 94305 Stanford University Stanford, CA (principal business: education) Martin A. 555 California Street Vice Chairman Stein 40th Floor BankAmerica Corporation San Francisco, CA 94104 San Francisco, CA (principal business: banking and finance) * Solomon D. 1801 California Street President and Chief Executive Officer Trujillo 52nd Floor US West Communications Group Denver, CO 80202 Denver, CO (principal business: communications)
EX-99.1 2 LOCK-UP AGREEMENT EXHIBIT 99.1 LOCK-UP AGREEMENT This LOCK-UP AGREEMENT (this "AGREEMENT") is made and entered into by and between the undersigned and Sun Sportswear, Inc., a Washington corporation ("SUN"). WHEREAS, the undersigned is the record and beneficial owner of shares of the issued and outstanding common stock of Sun; WHEREAS, Sun and BSI Holdings, Inc., a Delaware corporation ("BSI"), have entered into that certain Plan and Agreement of Merger, dated as of November 13, 1996, as amended by the First Amendment to Plan and Agreement of Merger, dated as of December 13, 1996 (the "MERGER AGREEMENT"), which provides, among other things, for the merger of BSI with and into Sun (the "MERGER"); and WHEREAS, pursuant to Section 5.1.13 of the Merger Agreement, the consummation of the Merger is subject to the condition that the undersigned execute and deliver an agreement in the form of this Agreement. NOW, THEREFORE, in consideration of the matters set forth in the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and for the purposes stated in this Agreement and the Merger Agreement, the undersigned hereby agrees as follows: 1. The undersigned will not, at any time during the 180-day period commencing immediately after the Merger becomes effective in accordance with the Merger Agreement, offer, sell, contract to sell, grant an option to purchase or otherwise dispose of any shares of Sun common stock, no par value, or any shares issued to the undersigned in the Merger (or the reincorporation contemplated thereby), held by it immediately after the effective date of the Merger (and the reincorporation contemplated thereby) (the "SUN STOCK"); provided, however, that the foregoing restriction shall not apply to any disposition effected: (a) by operation of law; provided, however, that the transferee agrees to be bound by the provisions of this Agreement; (b) pursuant to a tender offer or exchange offer made by, or any other transaction resulting in more than 50% of the Sun Stock being owned by, any person or entity or any group (as defined in Section 13 of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder); or (c) by virtue of any statutory merger or consolidation in which Sun is a constituent corporation, or pursuant to an exercise of dissenters' rights applicable to any statutory merger or consolidation in which Sun is a constituent corporation; (d) after Sun (i) voluntarily commences any proceeding or files any petition under any bankruptcy, insolvency or similar law seeking dissolution or reorganization or the appointment of a receiver, trustee, custodian or liquidator for it or a substantial portion of its property, assets or business or to effect a plan or other arrangement with its creditors, (ii) fails to have an involuntary petition filed against it in any bankruptcy, insolvency or similar proceeding dismissed within forty- five (45) days of such filing or if Sun admits the material allegations thereof within such period, or (iii) is adjudicated bankrupt or makes a general assignment for the benefit of its creditors or consents to, or acquiesces in the appointment of, a receiver, trustee, custodian or liquidator for a substantial portion of its property, assets or business; or (e) with an entity that controls, or is controlled by, or is under common control with, the undersigned; provided, however, that the transferee agrees to be bound by the provisions of this Agreement. 2. This Agreement is being entered into by the undersigned for the sole and exclusive benefit of Sun and none of the provisions of this Agreement shall be for the benefit of, or confer any rights or remedies upon, any other person or entity. 3. This Agreement shall extend to, and be binding upon, each party's respective successors and assigns. 4. No provision of this Agreement shall be interpreted or construed against the undersigned or Sun solely because the undersigned, Sun, or their respective counsel drafted such provision. 5. Anything herein to the contrary notwithstanding, no officer, director, partner, shareholder or employee of the undersigned shall have any personal liability (whether at law or in equity) for any breach of the Agreement, it being specifically understood and agreed that recourse for any breach of this Agreement shall be limited solely to the assets of the undersigned. 6. This Agreement may not be revoked, rescinded, terminated or amended in any respect without the prior written consent of Sun and the undersigned. 7. The undersigned hereby represents and warrants to Sun that it has full power and authority to execute and deliver this Agreement and that, upon the request of Sun, the undersigned will execute and deliver to Sun any additional documents which such requesting party reasonably deems necessary or desirable in connection with the enforcement hereof. IN WITNESS WHEREOF, the undersigned and Sun have each executed this Agreement as of the date set forth below, to be effective as of the date of the Merger. Dated: March 14, 1997 Bank of America NT & SA, doing business as Seafirst Bank By:_____________________________________ Name:___________________________________ Title:__________________________________ AGREED AND ACCEPTED: Sun Sportswear, Inc. By:__________________________________ Name:________________________________ Title:_______________________________ EX-99.2 3 CONVERTIBLE SUBORDINATED PROMISSORY NOTE EXHIBIT 99.2 THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE; THEREFORE, THIS NOTE MAY NOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED, DIRECTLY OR INDIRECTLY, EXCEPT IN ACCORDANCE HEREWITH AND UPON SUCH REGISTRATION OR UPON DELIVERY TO THE MAKER OF AN OPINION OF COUNSEL SATISFACTORY TO THE MAKER THAT REGISTRATION IS NOT REQUIRED FOR SUCH SALE OR TRANSFER. CONVERTIBLE SUBORDINATED PROMISSORY NOTE $1,500,000.00 MARCH 14, 1997 FOR VALUE RECEIVED, the undersigned, BRAZOS, INC., a Texas corporation ("MAKER"), hereby promises to pay to the order of BANK OF AMERICA NT & SA, doing business as Seafirst Bank ("PAYEE"), at its offices at 800 Fifth Avenue, Floor 29, P. O. Box 3977, Seattle, Washington 98124 or by wire transfer to such account as it may designate from time to time, in lawful money of the United States of America, the principal sum of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000.00), together with interest on the outstanding principal balance thereof at a rate of 10% per annum, from the date hereof until March 13, 1998, 10.5% per annum from March 14, 1998 until March 13, 1999, and 11.5% per annum from March 14, 1999 until March 13, 2000. Interest on the outstanding principal balance shall be due and payable in quarterly installments, commencing on June 30, 1997, and continuing on the last day of each September, December, April, and June thereafter. The entire principal balance, plus accrued interest, is due and payable on March 13, 2000. If Maker shall default in the payment of the principal or any interest on this Note, Maker shall on demand from time to time pay interest, to the extent permitted by applicable law, on the unpaid principal balance and on such defaulted payment, up to the date of actual payment, at the rate of 15% per annum. This Note is subject to the terms of that certain Convertible Subordinated Note Agreement (the "NOTE AGREEMENT") dated as of the date hereof between the Maker and the Payee. Unless otherwise defined herein or unless the context hereof otherwise requires, each term used herein with its initial letter capitalized has the meaning given to such term in the Note Agreement. This Note is entitled to the benefits of the Note Agreement and is subject to the obligations contained therein. Maker shall have the right, from time to time, without premium or penalty, to prepay the indebtedness evidenced by this Note, in full or in part. This Note may be converted into shares of Common Stock (as defined in the Note Agreement) subject to and in accordance with the terms of the Note Agreement. If this Note is placed in the hands of an attorney for collection through the institution of a judicial proceeding, and Payee is successful in such proceeding, then Maker agrees to pay, in addition to all other amounts owing hereunder, the reasonable attorneys' fees and collection costs of Payee arising specifically out of the collection of this Note. It is the intent of Maker and Payee in the execution and performance of this Note to remain in strict compliance with the usury laws of the State of Washington or any other applicable law ("APPLICABLE LAW") from time to time in effect. In furtherance thereof, Maker and Payee stipulate and agree that none of the terms and provisions contained in this Note, or any document securing or otherwise relating to this Note shall ever be construed to create a contract to pay for the use, forbearance or detention of money with interest at a rate or in an amount in excess of the maximum rate of interest permitted to be charged under Applicable Law. Maker shall never be required to pay interest at a rate or in an amount in excess of the maximum rate of interest that may be lawfully charged under Applicable Law, and the provisions of this paragraph shall control over all other provisions of this Note and of any other instrument pertaining to or securing this Note that may be in actual or apparent conflict herewith. All calculations of the rate or amount of interest contracted for, charged, taken or received under this Note shall be made by amortizing, prorating, allocating and spreading during the term of this Note. Except as provided in the Note Agreement, Maker and all sureties, endorsers and guarantors of this Note waive demand, presentment for payment, notice of non-payment, protest, notice of protest, and all other notice, filing of suit and diligence in collecting this Note or enforcing any of the security herefor. If any provisions of this Note are invalid or unenforceable in whole or in part, this instrument shall in all other respects remain in full force and effect. This Note is subordinate and junior in right of payment as set forth in the Note Agreement, and all rights of Payee upon an Event of Default are subject thereto. Maker and Payee agree that this Note shall be governed by the provisions of Article 3 of the Uniform Commercial Code of Washington pertaining to instruments, even if this Note is not deemed to be an "instrument" or a "negotiable instrument" thereunder, except that no assignee of this Note shall have the status of a "holder-in-due course" under that Article. Payee shall have the right to accelerate this Note as stated in the Note Agreement. NOTICE Oral agreements or oral commitments to loan money, extend credit, or to forbear from enforcing repayment of a debt are not enforceable under Washington law. Executed and delivered on the date first written above. BRAZOS, INC. By:____________________________________ Name:__________________________________ Title:_________________________________ 3 EX-99.3 4 CONVERTIBLE SUBORDINATED NOTE AGREEMENT EXHIBIT 99.3 CONVERTIBLE SUBORDINATED NOTE AGREEMENT CONVERTIBLE SUBORDINATED NOTE AGREEMENT ("AGREEMENT"), dated March 14, 1997, by and between Brazos Sportswear, Inc., a Delaware corporation and the successor to Sun Sportswear, Inc. ("SUN"), a Washington corporation (the "COMPANY"), Brazos, Inc., a Texas corporation and a wholly-owned subsidiary of the Company ("BRAZOS"), and Bank of America NT & SA, doing business as Seafirst Bank ("SEAFIRST"). W I T N E S S E T H: WHEREAS, Sun and BSI Holdings, Inc. ("BSI") are parties to a Plan and Agreement of Merger dated November 13, 1996, as amended (the "MERGER AGREEMENT"), pursuant to which BSI was merged with and into Sun; WHEREAS, the Merger Agreement provides that upon the Effective Date (as defined in the Merger Agreement), Brazos shall issue a Subordinated Note (as defined in the Merger Agreement), as partial consideration for the conversion of Seafirst's shares of Sun's common stock pursuant to the Merger; and WHEREAS, the Subordinated Note shall be issued by Brazos pursuant to the terms of this Agreement. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the parties hereto hereby agree as follows: SECTION 1. DEFINITIONS In addition to the defined terms set forth elsewhere herein, the following terms shall have the meanings set forth below: "BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in Seattle, Washington are authorized or obligated by law or executive order to close. "CLOSING PRICE" on any Trading Day with respect to any security means the last reported sales price regular way or, if no such sales are reported, the average of the bid and asked prices regular way, on the principal securities exchange on which the security is traded, or if such securities are not traded on any securities exchange, the over-the-counter price therefor quoted by a New York Stock Exchange member firm. "COMMISSION" means the Securities and Exchange Commission. "COMMON STOCK" means any class of stock of the Company which is not entitled to any preference as to dividends or liquidating distributions and which is not redeemable by the Company; provided, that the shares issuable upon conversion of the Note shall include only shares of Common Stock of the class designated on the date hereof as the "common stock" of the Company, having a par value of $0.01 per share, or any securities resulting from the reclassification of such shares. "CONVERSION DATE" means the date on which delivery of notice of election to convert is delivered to the Company by Seafirst. "CONVERSION FACTOR" means a number, which at the Effective Date (as defined in the Merger Agreement) shall be 1.0. "CONVERSION SHARES" means the Common Stock issued upon conversion of the Note. "DEFAULT" means any event that is, or after the passage of time or the giving of notice, or both, would be, an Event of Default. "EVENT OF DEFAULT" means the occurrence of any of the following: (i) failure to pay principal on the Note when due; (ii) failure to pay any other amount due under this Agreement or the Note within 10 days of the date when due; (iii) any insolvency of, or commencement of a bankruptcy case or appointment of a receiver with respect to, Brazos or the Company, (iv) breach of any representation or warranty in this Agreement by Brazos or Company, (v) breach of any covenant of this Agreement, which is not promptly cured after written notice to Brazos and the Company by Seafirst, or (vi) a default under the terms of any indebtedness to a Senior Lender, if not waived or cured within the period provided by the relevant loan agreement or instrument. "NOTE" means a convertible subordinated promissory note of Brazos in the form attached hereto as Exhibit A, dated as of the date hereof and payable to the order of Seafirst and any renewals, extensions and rearrangements thereof. "PERSON" means any individual, corporation, non-profit corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, financial institution, or government or any agency or political subdivision thereof. "QUALIFIED PUBLIC OFFERING" means the underwritten public offering of Common Stock by the Company for cash for its own account pursuant to a registration statement filed under the Securities Act (as herein defined) (other than any registration statement relating to warrants, options or shares of capital stock of the Company granted or to be granted or sold primarily to employees, directors, or officers of the Company, a registration statement filed pursuant to Rule 145 under the Securities Act or any successor rule, a registration statement relating to employee benefit plans or interests therein or any registration statement covering securities issued in connection with any debt financing of the Company), in which the net offering proceeds to be 2 received by the Company are at least $15,000,000 and the per share Common Stock offering price to the public is not less than $3.50 per share (as adjusted for stock splits or combinations). "SENIOR LENDER" means any holder of indebtedness of Brazos which is secured by liens on substantially all of its assets. "TRADING DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which securities are not traded on the applicable securities exchange. SECTION 2. ISSUANCE OF THE NOTE 2.1. Upon the Effective Date (as defined in the Merger Agreement) and in accordance with the Merger Agreement, Brazos shall issue the Note to Seafirst. The Note shall be convertible into Common Stock, as provided in Section 3 hereof. Brazos shall have the right to prepay the principal amount of the Note in full or in part at any time, without premium or penalty. 2.2. The Note shall bear interest at the rate of 10% per annum from the date hereof until March 13, 1998, 10.5% per annum from March 14, 1998 until March 13, 1999, and 11% per annum from March 14, 1999 until March 13, 2000, on the principal amount thereof outstanding from time to time, payable quarterly on each April 30, June 30, September 30 and December 31, commencing June 30, 1997, until the principal thereof is paid. If the Note is converted, Seafirst shall be entitled to receive interest accrued and unpaid to the date of conversion. If Brazos shall default in the payment of the principal of or interest on the Note, Brazos shall on demand from time to time pay interest, to the extent permitted by law, on the unpaid principal balance of the Note and on such defaulted amount up to the date of actual payment at a rate of 15% per annum. The maturity date of the Note is March 13, 2000 (the "MATURITY DATE"). All principal and any accrued but unpaid interest shall be due on the Maturity Date, or five business days following the closing of any Qualified Public Offering, if sooner. 2.3. The principal of and interest on the Note shall be payable by wire transfer in immediately available funds to any account in the United States which Seafirst may designate by written notice to Brazos at least three Business Days prior to the due date. All payments shall be made by Brazos not later than 2:00 p.m., New York City time, on the date that such payment is required to be made. If the date for any payment due under the Note falls on a day which is not a Business Day, such payment date shall be deemed to have fallen on the next following Business Day. 2.4. Subject to rights of the Company to acquire the Note pursuant to a Right of First Refusal Agreement between Seafirst and the Company dated as of the date hereof (the "ROFR AGREEMENT"), Seafirst shall not to sell, assign, transfer, negotiate or hypothecate the Note to any party, unless such party agrees to all of the terms and conditions of this Agreement applicable to Seafirst, and further agrees to execute a subordination agreement consistent with Section 7.3. 3 SECTION 3. CONVERSION RIGHT 3.1. At any time (i) after the Maturity Date, if the principal amount of the Note has not been paid in full or (ii) subsequent to five Business Days following the closing of a Qualified Public Offering, if the principal amount of the Note has not been paid in full, Seafirst shall have the right to convert the outstanding principal amount of the Note and any accrued but unpaid interest into Common Stock. Seafirst may exercise its conversion right by delivering to the Company and Brazos a written notice stating the amount of the principal of the Note which Seafirst elects to convert into Common Stock as provided herein and, if the entire principal amount of the Note is to be converted, its Note duly endorsed and assigned to the Company. Conversion shall be effective as of the close of business on the date of delivery of such notice. As promptly as practicable thereafter, the Company shall issue and deliver to Seafirst, a certificate for the shares of Common Stock issuable upon such conversion. Any person in whose name the certificate for Common Stock is to be issued shall be considered to have become a holder of record of such Common Stock as of the close of business on the Conversion Date. The number of shares of Common Stock issuable upon conversion of the entire $1,500,000 principal amount of the Note shall be the product of (a) 681,818 and (b) the Conversion Factor. If the amount of the Note plus unpaid interest to be converted on any Conversion Date is either less than or more than $1,500,000, the number of Conversion Shares issuable upon such conversion, as compared to the number of Conversion Shares issuable upon conversion of such entire principal amount, shall be proportionate to the aggregate principal amount of the Note plus unpaid interest to be converted on such Conversion Date, as compared to the entire principal amount of $1,500,000.00. If Seafirst shall convert less than the entire principal amount and any unpaid interest of the Note, Seafirst shall indicate on the Note the amount and date of such conversion, as the case may be, and the remaining principal amount thereof. 3.2. The Company shall not be required to issue fractional shares of Common Stock on the conversion of the Note. Seafirst expressly waives its right to receive any fractional shares upon conversion of the Note. If any fraction of a share would be issuable on the conversion of the Note, the Company or Brazos shall pay to Seafirst in lieu thereof an amount in cash equal to the product of such resulting fraction and the Closing Price for such Common Stock on the effective date of the Conversion. 3.3. The Conversion Factor shall be subject to adjustment from time to time in case any of the following events shall occur: (i) distribution of any dividend consisting solely of Common Stock with respect to any class of the Common Stock, or the distribution consisting in whole or in part of Common Stock of any dividend on any class of capital stock of the Company; (ii) distribution of any dividend on any class of the Common Stock of the Company consisting in 4 whole or in part of, or the issuance to all holders of Common Stock of, rights or warrants entitling the holders thereof to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Price of the Common Stock on the relevant record date; and (iii) the subdivision or combination of the outstanding shares of Common Stock into a greater or lesser number of such shares. Upon the occurrence of any such event, the Conversion Factor shall be adjusted as appropriate so that the economic benefits or losses that would have accrued to Seafirst upon conversion of any part of the Note prior to such event shall be equal to the economic benefits that would accrue to Seafirst upon conversion of such part after such event. Such adjustments shall be effective as of the record date for such dividend or distribution or the effective date of such combination or subdivision and shall be made successively whenever any event listed above shall occur. 3.4. If the Company shall merge or consolidate with another corporation, Seafirst shall thereafter have the right, upon conversion of the Note to receive solely the kind and amount of shares of stock (including, if applicable, Common Stock), other securities, property or cash or any combination thereof receivable by a holder of the number of shares of Common Stock for which such Note might have been exercised immediately prior to such merger or consolidation (assuming, if applicable, that the holder of such Common Stock failed to exercise its rights of election, if any, as to the kind or amount of shares of stock, other securities, property or cash or combination thereof receivable upon such merger or consolidation). SECTION 4. COVENANTS The Company and Brazos covenant to Seafirst as follows: 4.1. The Company shall furnish to Seafirst, promptly upon becoming aware of the existence of any condition or event which constitutes a Default or an Event of Default, written notice specifying the nature and period of existence thereof and the action which the Company or Brazos is taking or proposes to take with respect thereto. 4.2. The Company agrees to give Seafirst the same notice of any regular or special meeting of the board of directors of the Company as it provides to its directors, and the Company agrees that a representative of Seafirst may attend any such board meeting or be present by telephone. Any such representative of Seafirst shall only attend or be present at any such meeting for informational purposes and shall have no rights as a board member. 4.3. Neither the Company nor Brazos shall merge or consolidate with, or sell substantially all its assets to, any other corporation unless the surviving corporation expressly assumes all obligations of the Company or Brazos under this Agreement and the Note. 4.4. Brazos agrees not to prepay any other debt subordinated to indebtedness owed a Senior Lender, and agrees to not to modify any terms nor take any action that would permit the 5 lender to (i) accelerate payment of such debt, or (ii) increase the interest rates or fees payable in connection with such debt. 4.5. Company and Brazos each agree not to purchase or redeem any of the Company's common or preferred stock, and the Company further agrees not to pay dividends for any of its preferred stock, other than such dividends that it is contractually obligated to pay as of the date of this Agreement. 4.6. Company and Brazos agree to provide Seafirst with all reports filed with the Securities and Exchange Commission. 4.7. Company and Brazos agree that Seafirst shall have the right, upon reasonable notice to Brazos and at reasonable times, to visit and inspect any plant or facility of Brazos. 4.8. Brazos agrees to immediately notify Seafirst of any default under the terms of any indebtedness to any Senior Lender, if such default is not waived or cured within the period provided for such cure by the relevant loan agreement or instrument. 4.9. Company and Brazos each agree not to issue any additional subordinate debt which has a maturity date sooner than the maturity date of the Subordinated Convertible Note issued to Seafirst. SECTION 5. REPRESENTATIONS AND WARRANTIES 5.1. The Company and Brazos represent and warrant to Seafirst as follows: (a) Each of the Company and Brazos is a corporation duly organized, validly existing and in good standing under the laws of the state of its jurisdiction of incorporation, and has full power and authority to consummate the transactions contemplated in this Agreement. (b) The Company and Brazos are duly authorized and empowered to create, issue, execute and deliver this Agreement, and with respect to Brazos, the Note, and all action on the part of each party requisite for the due creation, issuance, execution and delivery of this Agreement, and with respect to Brazos, the Note, has been duly and effectively taken. This Agreement and all agreements executed in connection herewith are valid and binding obligations of the Company or Brazos, as the case may be, enforceable in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, debtor relief, or similar laws affecting the rights of creditors generally. 6 5.2. Seafirst represents and warrants to the Company and Brazos as follows: (a) Seafirst is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has full power and authority to consummate the transactions contemplated in this Agreement. Seafirst is duly authorized and empowered to execute, deliver and perform its obligations under this Agreement and all action on its part requisite for the due execution, delivery and performance of its obligations under this Agreement has been duly and effectively taken. (b) Seafirst will acquire the Conversion Shares solely for its own beneficial account, for investment purposes, and not with a view to, or for resale in connection with, any distribution of the Conversion Shares; Seafirst understands that the Conversion Shares have not been registered under the Securities Act of 1933, as amended (the "1933 ACT"), or any state securities laws by reason of specific exemptions under the provisions thereof which depend in part upon the investment intent of Seafirst; and Seafirst understands that the Company is relying upon the representations and agreements contained in this Agreement for the purpose of determining whether this transaction meets the requirements for such exemptions. Seafirst understands further that the certificate for the Conversion Shares will bear the following legend for so long as such legend may be required pursuant to applicable federal securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,OR THE SECURITIES LAWS OF ANY STATE; THEREFORE, THIS STOCK MAY NOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED, DIRECTLY OR INDIRECTLY,EXCEPT UPON SUCH REGISTRATION OR UPON DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED FOR SUCH SALE OR TRANSFER. SECTION 6. REGISTRATION RIGHTS 6.1. As used in this Section 6, the term "Registrable Stock" shall mean all Common Stock issued upon conversion of the Note; provided, however, such Common Stock shall cease to be Registrable Stock when such securities shall be eligible for sale pursuant to Rule 144(k) under the Securities Act or any successor rule which permits resale of such securities without restriction. (a) Required Registration. After receipt of a written request (a --------------------- "REGISTRATION REQUEST") from Seafirst requesting that the Company effect the registration of Registrable Stock under the Securities Act of 1933, as amended (the "SECURITIES ACT") and specifying the intended 7 method or methods of disposition thereto, the Company shall prepare and file with the Commission a registration statement under the Securities Act on any form which the Company is eligible to use for registering the resale of the Registrable Stock which the Company has been requested to register (including, without limitation, a registration statement on Form S-3 of the Securities Act) and shall use its best efforts to cause such registration statement to become effective; provided, however, that, subject to the provisions of the immediately following sentence, the Company shall not be required to effect more than a total of one registration statement of Registrable Stock with respect to a request by Seafirst pursuant to this section and, in the case of an underwritten offering, the Company shall have the right to approve the underwriter, which approval shall not be unreasonably withheld. The Company shall have the right to defer the filing of any registration statement requested pursuant to this section if (i) on the date of the Registration Request the Company is in the process of preparing another registration statement for an underwritten public offering, until the 90th day after the date of such Registration Request, (ii) in order to file such registration statement, the Company would be required to conduct an audit other than the regular audit of the Company conducted by the Company at the end of its fiscal year, until such time the Company conducts its regular annual audit (unless Seafirst agrees to pay the expenses of such an audit) or (iii) in the good faith determination of the board of directors of the Company the filing of such registration statement would have a materially adverse affect to the Company, until such time period as such filing would not have such affect, such period not to exceed 90 days; provided that the Company shall not have the right to exercise this right more than once in any 12 month period. (b) Registration Procedures. ----------------------- (1) If and when the Company is required by the provisions of this section to use its best efforts to effect promptly the registration of shares of Registrable Stock under the Securities Act, the Company will: (i) prepare and file with the Commission a registration statement with respect to such shares and use its best efforts to cause such registration statement to become and remain effective as provided herein for a period of not less than six months, except that the Company shall not be required to conduct any special audit of the Company and if such an audit would be required, the Company may delay such registration statement until such time as such special audit is no longer required; (ii) prepare and file with the Commission such amendments and supplements to such registration statement and prospectus used in connection therewith as may be necessary to keep such registration statement effective and current and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all shares covered by such registration statement, including such amendments and supplements as may be necessary to reflect the intended method of disposition from time to time by Seafirst of such shares for a period of not less than six months; 8 (iii) furnish to Seafirst such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as Seafirst may reasonably request in order to facilitate the public sale or other disposition of the shares owned by Seafirst; (iv) use its best efforts to register or qualify the shares covered by such registration statement under such other securities or blue sky or other applicable laws of such jurisdictions within the United States, as Seafirst shall reasonably request, to enable Seafirst to consummate the public sale or other disposition in such jurisdictions of the shares owned by Seafirst; (2) Seafirst and each underwriter designated by Seafirst shall be required to furnish to the Company such information as the Company may reasonably require from Seafirst reflect the intended method of disposition from time to time by Seafirst of such shares for a period of not less than six mac 9 EX-99.4 5 RIGHT OF FIRST REFUSAL AGREEMENT 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: - - - - - - - - - - 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. -2- 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: 3860 Virginia Avenue Cincinnati, Ohio 45227 Telecopy No.: (800) 999-8673 Attention: President BANK OF AMERICA NT & SA, Doing Business as Seafirst Bank By:_________________________________________ Name:____________________________________ Title:___________________________________ Address: Telecopy No.: Attention: -3- EX-99.5 6 SUBORDINATION AGREEMENT EXHIBIT 99.5 SUBORDINATION AGREEMENT ----------------------- This Subordination Agreement (this "Agreement") is entered into by and --------- among BANK OF AMERICA NT & SA, doing business as SEAFIRST BANK, a national savings and trust association (the "Subordinated Lender"), whose address is 701 ------------------- Fifth Avenue, Seattle, Washington 98104, FLEET CAPITAL CORPORATION, a Rhode Island corporation ("Fleet"), with an office located at 2711 N. Haskell Avenue, ----- Suite 2100, Dallas, Texas 75204, THE FIRST NATIONAL BANK OF BOSTON, a national banking association ("Boston") with an office at 100 Federal Street, Boston, ------ Massachusetts 02110 (Fleet and Boston are hereinafter collectively referred to as "Senior Lenders" and each individually a "Senior Lender") and FLEET, as agent -------------- ------------- for Senior Lenders (Fleet, in such capacity, the "Agent"). ----- Preliminary Statements: ---------------------- 1. Brazos, Inc., a Texas corporation ("Debtor"), a wholly-owned ------ subsidiary of Brazos Sportswear, Inc., a Delaware corporation ("Parent"), ------ executed to the order of Subordinated Lender that certain Convertible Subordinated Note Agreement and Convertible Promissory Note, dated as of or about the date hereof, in the stated principal amount of $1,500,000 (together, the "Subordinated Note"). The Subordinated Note contains a conversion option, ----------------- that will under certain conditions, allow the Subordinated Lender to convert obligations due under the Subordinated Note to common stock in Parent. 2. Senior Lenders, Agent and Debtor have entered into that certain Second Amended and Restated Loan and Security Agreement, dated as of August 9, 1996 (as the same may be renewed, extended, modified, amended or replaced from time to time, the "Senior Loan Agreement"). --------------------- 3. Subordinated Lender acknowledges that the extension of credit and other financial accommodations granted to Debtor by Senior Lenders are of value to Subordinated Lender. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in order to induce Senior Lenders, now or from time to time hereafter, to extend credit and grant other financial accommodations to or for the benefit of Debtor or to grant such renewals or extensions thereof as Senior Lenders may deem advisable, and to better secure Senior Lenders in respect of the foregoing, Subordinated Lender hereby agrees with Senior Lenders as follows: 1. Definitions. ----------- "Default" shall have the meaning ascribed to such term in the Senior ------- Loan Agreement. "Event of Default" shall have the meaning ascribed to such term in the ---------------- Senior Loan Agreement. 1 "Obligations" shall mean any and all obligations, liabilities and ----------- indebtedness of Debtor or any successor or assign of Debtor, including without limitation, a receiver, trustee or debtor in possession, to Agent and Senior Lenders, whether now existing or hereafter arising, whether direct, indirect, contingent, joint, several or independent, whether created directly or acquired by assignment or otherwise, whether evidenced by a written instrument or not and whether such obligations, liabilities and indebtedness (including, but not limited to, interest on any such obligations, liabilities and indebtedness) arises or accrues before or after the commencement of any bankruptcy, insolvency or receivership proceeding. The Obligations shall be entitled to the benefits of this Agreement irrespective of the amount or terms thereof, and shall continue to constitute Obligations for all purposes of this Agreement, notwithstanding the fact that such Obligations or any claim in respect thereof shall be disallowed, avoided or subordinated pursuant to the provisions of Title 11 of the United Stated Code, as amended from time to time, or other applicable law. "Permitted Payments" means regularly scheduled interest payments due ------------------ under the Subordinated Debt. "Proceeds" shall have the meaning assigned to it under the Uniform -------- Commercial Code, shall also include "products" (as defined in the Uniform Commercial Code), and, in any event, shall include, but not be limited to (a) any and all proceeds of any insurance, indemnity, warranty, letter of credit or guaranty or collateral security payable to any grantor from time to time with respect to any of the Senior Lender Collateral, (b) any and all payments (in any form whatsoever) made or due and payable to or on behalf of the owner of the Senior Lender Collateral from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Senior Lender Collateral by any governmental body, authority, bureau or agency (or any person acting under color of governmental authority) and (c) any and all other amounts from time to time paid or payable under or in connection with any of the Senior Lender Collateral. "Senior Lender Collateral" shall mean the "Collateral" as such term is ------------------------ defined in the Senior Loan Agreement. Agent and Senior Lenders acknowledge that the term "Collateral" does not include the capital stock of Parent or the treasury stock of Parent. "Subordinated Debt" shall mean the Subordinated Note and any and all ----------------- other obligations, liabilities and indebtedness of Debtor to Subordinated Lender for borrowed money, whether now existing or hereafter arising, whether direct, indirect, contingent, joint, several or independent, whether created directly or acquired by assignment or otherwise, whether evidenced by a written instrument or not and whether such obligations, liabilities and indebtedness arise or accrue before or after the commencement of any bankruptcy, insolvency or receivership proceeding including without limitation, interest on any such obligations, liabilities and indebtedness. "Subordinated Loan Documents" shall mean any and all documents, --------------------------- agreements and instruments executed or delivered pursuant to or in connection with the Subordinated Note. 2 2. Debt Subordination. The Subordinated Debt is hereby subordinated to ------------------ the Obligations, and each holder of Subordinated Debt, by acceptance of all or any portion of the Subordinated Debt, whether upon original issuance, transfer, assignment or exchange, agrees to be bound by the provisions of this Agreement. Except as specifically permitted in this Agreement, Subordinated Lender will not ask, demand, sue for, take or receive from Debtor, by setoff or in any other manner, all or any part of the Subordinated Debt, except the Permitted Payments, or take or receive any payment or distribution of any character, whether in cash, securities or other property from Debtor on account of or in respect of the Subordinated Debt, including, without limitation, the taking of any negotiable instruments evidencing such amounts or any security for any of the foregoing, unless and until all of the Obligations shall have been fully and irrevocably paid in cash and all financing arrangements between Debtor and Senior Lenders shall have been terminated. However, notwithstanding any other provisions contained herein, in the Senior Loan Documents, or in any acknowledgment of this Agreement by Debtor, Subordinated Lender shall have the right without notice to Senior Lenders to ask for, demand, take and receive a distribution of shares of common stock of Parent (or the common stock of any successor entity to Parent, including the common stock of Debtor if Debtor is the successor entity pursuant to a merger or similar corporate reorganization of Parent and Debtor as long as such merger or similar corporate reorganization is permitted by the provisions of the Senior Loan Agreement) as provided in the conversion option of the Subordinated Note, and Debtor, if it becomes a successor entity to Parent pursuant to merger or similar corporate reorganization, shall have the right to deliver such shares to Subordinated Lender pursuant to the terms and conditions of the Subordinated Note. 3. Mutual Recognition and Consent. The Subordinated Lender acknowledges ------------------------------ and consents to the existence of the Senior Loan Documents and the liens and security interests in the Senior Lender Collateral granted in connection therewith as security for the prompt payment and performance by Debtor of the Obligations. The Agent and Senior Lenders acknowledge and consent to the existence of the Subordinated Loan Documents. The provisions of this Agreement are intended by the parties hereto to control any conflicting provisions, including, without limitation, any covenants contained in the Senior Loan Documents or the Subordinated Loan Documents. 4. Priorities Regarding Collateral. The Subordinated Debt is unsecured ------------------------------- and shall not be secured, by any lien on or security interest in any assets or properties of Debtor, or otherwise, in any way during the term of this Agreement. Without affecting Subordinated Lender's obligations set forth in this Agreement not to obtain any lien or security interest, any and every lien and security interest in the Senior Lender Collateral in favor of or held for the benefit of the Senior Lenders has and shall have priority over any lien or security interest that Subordinated Lender might have or acquire in the Senior Lender Collateral notwithstanding any statement or provision contained in the Subordinated Loan Documents or otherwise to the contrary and irrespective of the time or order of filing or recording of financing statements, deeds of trust, mortgages or other notices of security interests, liens or assignments granted pursuant thereto, and irrespective of anything contained in any filing or agreement to which any party hereto or its respective successors and assigns may now or hereafter be a party, and irrespective of the ordinary rules for determining priorities under the Uniform Commercial Code or under any other law governing the relative priorities of secured creditors. 3 5. Management of Collateral. Agent and Senior Lenders shall have the ------------------------ exclusive right to manage, perform and enforce the terms of the Senior Loan Documents with respect to the Senior Lender Collateral, to exercise and enforce all privileges and rights thereunder according to their discretion and the exercise of their business judgment including, but not limited to, the exclusive right to take or retake possession of the Senior Lender Collateral and to hold, prepare for sale, process, sell, lease, dispose of, or liquidate the Senior Lender Collateral, pursuant to a foreclosure or otherwise. Notwithstanding anything to the contrary contained in any document, instrument or agreement evidencing, securing or otherwise executed in connection with the incurrence of the Subordinated Debt, only the Senior Lenders shall have the right to restrict or permit, or approve or disapprove, the sale, transfer or other disposition of Senior Lender Collateral. Accordingly, should Agent or any Senior Lender elect to exercise its rights and remedies with respect to any of the Senior Lender Collateral, Agent or such Senior Lender may proceed to do so in a commercially reasonable manner as required by the Uniform Commercial Code, without regard to any interest of Subordinated Lender, and Subordinated Lender waives any claims that it may have against Agent and Senior Lenders for any disposition of the Senior Lender Collateral, provided that any such disposition by Agent and Senior Lenders is conducted in a commercially reasonable ma nner as required by the applicable provisions of the Uniform Commercial Code. Without affecting Subordinated Lender's obligations set forth in this Agreement not to obtain any lien or security interest in any of the Senior Lender Collateral, Subordinated Lender agrees, whether or not a default has occurred in the payment of the Subordinated Debt or the performance of any other obligations to it, that any liens on and security interests in the Senior Lender Collateral or any portion thereof that it might have or acquire shall automatically be fully released ipso facto as to all indebtedness and other obligations secured thereby owing to Subordinated Lender if and when Senior Lenders release their lien in and security interest on such Senior Lender Collateral or any portion thereof. 6. Distribution of Proceeds of Collateral. At any time during which all -------------------------------------- or any part of the Obligations remains outstanding, and whether or not the same is then due and payable, the Proceeds of any sale, disposition or other realization by Agent, Senior Lenders or other party hereto (or any agent therefor) upon all or any part of the Senior Lender Collateral shall be applied in the following order of priorities irrespective of the application of any rule of law or the defect or impairment of any Senior Loan Document, Subordinated Loan Document or security interest, lien or assignment thereunder: first, to the payment of all reasonable costs and expenses of ----- Agent, Senior Lenders and/or their agent or agents (including, without limitation, the reasonable fees and expenses of counsel to Agent and Senior Lenders) incurred in connection with the collection of such Proceeds or the protection of the rights and interests of Agent or any Senior Lender therein; and second, to the payment in full of all the Obligations in such ------ order as Agent and Senior Lenders shall determine in their sole discretion; and 4 finally, to pay any surplus then remaining to the owner of the ------- Senior Lender Collateral or its successors or assigns or as a court of competent jurisdiction may direct. 7. Permitted Payments. Notwithstanding the provisions of Section 2 of ------------------ --------- this Agreement, Debtor may pay to Subordinated Lender, and Subordinated Lender may accept from Debtor the Permitted Payments; provided, however, that the -------- ------- rights of Subordinated Lender to 2 receive the Permitted Payments may be suspended pursuant to the provisions of Section 8 of this Agreement. Under no --------- circumstances shall prepayments on the Subordinated Debt constitute Permitted Payments. Except as provided in Section 11 of this Agreement, prior to full and ---------- irrevocable payment in cash of the Obligations and the termination of all financing arrangements between Debtor and Senior Lenders, Subordinated Lender shall have no right to enforce payment of any Permitted Payment, or to otherwise take any action against Debtor or Debtor's property without Senior Lenders' prior written consent. 8. Effect of Certain Events on Permitted Payments. ---------------------------------------------- (a) If any Default or Event of Default has occurred under the Senior Loan Documents or would be caused as a result of any Permitted Payment, then (i) the rights of Subordinated Lender to receive the Permitted Payments shall be suspended from and after the date that Subordinated Lender receives a notice to suspend payments under the Subordinated Debt which is accompanied by a copy of the notice of such Default that Agent or Senior Lenders sent to Debtor (a "Stop Payment Notice"), and (ii) no ------------------- payment of Subordinated Debt shall be made by Debtor, or received or accepted by Subordinated Lender from Debtor, unless and until such Default shall have been cured or waived. (b) Notwithstanding anything to the contrary contained in this Section ------- 8, (i) Debtor may pay and Subordinated Lender may take and retain any - Permitted Payment before receipt by Subordinated Lender of a Stop Payment Notice; provided, however, that in the event that a Stop Payment Notice is -------- ------- issued within fifteen (15) business days after receipt of such Permitted Payment, Subordinated Lender shall, in accordance with Section 13 hereof, ---------- hold such payment in trust and forthwith deliver the same to Agent, for the benefit of Senior Lenders, and (ii) Debtor shall be entitled to resume the making of payment of Subordinated Debt otherwise prohibited under Section ------- 8(a) of this Agreement at such time as the Agent and/or Senior Lenders ---- provide Subordinated Lender writt en Notice that the Default described in Section 8(a) of this Agreement has been cured or waived. ------------ 9. Modification of Subordinated Debt. Subordinated Lender shall not --------------------------------- increase the aggregate principal amount of the Subordinated Debt without the prior written consent of Senior Lenders. Further, Subordinated Lender shall not otherwise amend, modify or supplement any instruments, agreements or documents evidencing or related to the Subordinated Debt without the prior written consent of Senior Lenders, if such amendment, modification or supplement would, in 5 the opinion of Senior Lenders, have an adverse effect on Senior Lenders, any of the Senior Lender Collateral or the rights of Agent or any Senior Lender under this Agreement. 10. Representations and Warranties Regarding Subordinated Debt. ---------------------------------------------------------- Subordinated Lender represents and warrants that as of the date of this Agreement (i) all of the Subordinated Debt outstanding on the date hereof is evidenced by the Subordinated Loan Documents, (ii) Subordinated Lender has not previously assigned any interest in the Subordinated Debt or granted any security interest therein, (iii) no other party owns any interest in the Subordinated Debt other than Subordinated Lender (whether as joint holders of the Subordinated Debt, participants or otherwise), other than any such interest arising by operation of law and (iv) the entire Subordinated Debt is owing only to Subordinated Lender. 11. Standstill. Subordinated Lender agrees to promptly send to Agent and ---------- each Senior Lender a copy of any notice of default under the Subordinated Loan Documents sent to any loan party and further agrees that, except as specifically permitted in this Section 11, and in exercising its conversion option for a ---------- distribution of common stock of Parent as provided in Section 2, Subordinated --------- Lender shall not exercise any rights or remedies or take any enforcement action available upon the occurrence of a default or an event of default or otherwise under the Subordinated Loan Documents or take any action toward the collection of any Subordinated Debt, until all of the Obligations shall have been paid in full and all of the commitments of Senior Lenders to Debtor under the Senior Loan Documents shall have expired or terminated. The failure to make a payment of principal of, interest on, or fees, costs or expenses relative to any of the Subordinated Debt by reason of any provision of this Agreement shall not be construed as preventing the occurrence of a default or event of default with respect to such Subordinated Debt. 12. Commencement of Proceeding; Grant of Authority to Agent and Senior ------------------------------------------------------------------ Lenders. Subordinated Lender will not join with any creditor, unless Senior - ------- Lenders shall also join, in bringing any Proceeding against Debtor unless and until the Obligations shall have been fully and irrevocably paid in cash and all financing arrangements between Debtor and Senior Lenders shall have been terminated. The provisions of this Agreement shall continue in full force and effect, notwithstanding the commencement of any Proceeding under the Federal Bankruptcy Code by or against Debtor. In furtherance of the foregoing, if Subordinated Lender receives any property of, or payments from Debtor after the commencement of such Proceeding on account of a secured claim which is subordinated by the terms of this Agreement (whether as "adequate protection" payments or otherwise), Subordinated Lender shall immediately turn such property or payments over to the Agent, for the benefit of Senior Lenders, for distribution by it in accordance with the applicable provisions of Section 6 --------- hereof. To the extent that Subordinated Lender has or acquires any rights under Section 363 or Section 364 of the Federal Bankruptcy Code with respect to the Senior Lender Collateral, Subordinated Lender hereby agrees not to assert such rights without the prior written consent of the Senior Lenders. The Subordinated Lender hereby grants to the Agent and each Senior Lender the right, but neither Agent nor any Senior Lender shall be obligated, to file, prove and vote claims on account of the Subordinated Indebtedness in any receivership, bankruptcy, or other Proceeding commenced by or against Debtor. Subordinated Lender will execute and deliver to Agent, for the benefit of Senior Lenders such powers of attorney, assignments and other instruments or documents, including notes and stock certificates (together 6 with such assignments or endorsements as Agent shall deem necessary), as may be requested by Senior Lenders in order to enable Agent and Senior Lenders to enforce any and all claims upon or with respect to any or all of the Subordinated Debt and to collect and receive any and all payments and distributions which may be payable or deliverable to Agent or any Senior Lender at any time upon or with respect to the Subordinated Debt, all for Agent's and each Senior Lender's own benefit. In the event Debtor makes any payment, distribution, or transfer to Subordinated Lender, which Subordinated Lender is required to hold in trust for and/or deliver to Agent or Senior Lenders under Section 8 and Section 13 of this Agreement, and in the further event - --------- ---------- Subordinated Lender is required in a preference action, a fraudulent transfer action, or otherwise by operation of law to return such payments to a bankruptcy trustee, a receiver, a court, or any other third party, Senior Lenders shall reimburse Subordinated Lender for all such payments, distributions, or transfers actually delivered to Agent or Senior Lenders, with Subordinated Lender hereby agreeing to contest in good faith the return of any such payment in such an action and to permit Senior Lenders to participate in the defense of any such attempt to require the return of any such payment. Notwithstanding anything to contrary in this Section 12, Subordinated Lender may take such actions or bring ---------- or join in such Proceedings as necessary to enforce its right to reimbursement for any such payments, distributions, or transfers so held or delivered. 13. Payments Received by Subordinated Lender. If any payment or ---------------------------------------- distribution or security (other than a distribution of common stock of Parent as provided in Section 2) or instrument or proceeds thereof is received by --------- Subordinated Lender upon or with respect to the Subordinated Debt in contravention of any of the terms of this Agreement and prior to the full and irrevocable payment in cash of the Obligations and termination of all financing arrangements between Debtor and Senior Lenders, Subordinated Lender shall receive and hold the same in trust, as trustee for the benefit of Senior Lenders and shall forthwith deliver the same to Agent, for the benefit of Senior Lenders, in precisely the form received (except for the endorsement or assignment of Subordinated Lender where necessary), for application on the Obligations, due or not due, and, until so delivered, the same shall be held in trust by Subordinated Lender as the property of Senior Lenders. In the event of the failure of Subordinated Lender to make any such endorsement or assignment to Agent or Senior Lenders, then Agent, Senior Lenders, or any of their officers or employees, is hereby irrevocably authorized to make the same. 14. Instrument Legend. Any instrument now or hereafter evidencing any of ----------------- the Subordinated Debt will be inscribed with a legend conspicuously indicating that payment thereof is subject to the terms of this Agreement, and a copy thereof will be delivered to Agent and each Senior Lender on or before the date hereof (or, with respect to hereafter arising indebtedness of Debtor to Subordinated Lender, if any, upon execution thereof or within five days thereafter). 15. Continuing Nature of Subordination. This Agreement shall be effective ---------------------------------- and may not be terminated or otherwise revoked by Subordinated Lender until the Obligations shall have been fully and irrevocably paid and all financing arrangements between Debtor and Senior Lenders have been terminated. This is a continuing agreement and Senior Lenders may continue, at any time and without notice to Subordinated Lender, to extend credit or other financial accommodations to or for the benefit of Debtor on the faith hereof. 7 16. Additional Agreements Between Agent, Senior Lenders and Debtor. Agent -------------------------------------------------------------- and Senior Lenders at any time and from time to time, either before or after any such aforesaid notice of termination or revocation, may enter into such agreement or agreements with the Debtor as Agent and Senior Lenders may deem proper. Not in limitation of the foregoing, Agent and Senior Lenders may, at any time and from time to time, without the consent of or notice to Subordinated Lender, and without impairing or releasing any of Agent's or any Senior Lender's rights, or any of Subordinated Lender's obligations, under this Agreement, do any of the following: (i) change the amount, manner, place, or terms of payment or change or extend the time of payment of or renew or alter the Obligations, or any part thereof, or enter into or amend in any manner any agreement or instrument relating to the Obligations, (ii) sell, exchange, release, or otherwise deal with the Senior Lender Collateral, or any part thereof in a commercially reasonable manner, (iii) release anyone liable in any manner for the payment or collection of the Obligations, or (iv) exercise or refrain from exercising any rights against Debtor, Subordinated Lender or any other person. 17. Subordinated Lender's Waivers. All of the Obligations shall be deemed ----------------------------- to have been made or incurred in reliance upon this Agreement. Subordinated Lender waives any right it may have to require that Senior Lenders marshal their collateral in favor of Subordinated Lender. Subordinated Lender expressly waives all notice of the acceptance by Agent and Senior Lenders of the subordination and other provisions of this Agreement and all other notices not specifically required pursuant to the terms of this Agreement whatsoever, and Subordinated Lender expressly waives reliance by Agent and Senior Lenders upon the subordination and other agreements as herein provided. 18. Agent's and Senior Lenders' Waivers. No waiver shall be deemed to be ----------------------------------- made by Agent or any Senior Lender of any of its rights hereunder, unless the same shall be in writing signed on behalf of Agent or such Senior Lender, and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of Agent or any Senior Lender or the obligations of Subordinated Lender to Agent or any Senior Lender in any other respect at any other time. 19. Information Concerning Financial Condition of Debtor. Subordinated ---------------------------------------------------- Lender hereby assumes responsibility for keeping itself informed of the financial condition of Debtor, any and all other makers, endorsers and guarantors of the Obligations and of all other circumstances bearing upon the risk of nonpayment of the Obligations and/or the Subordinated Debt that diligent inquiry would reveal, and Subordinated Lender hereby agrees that neither Agent nor any Senior Lender shall have any duty to advise Subordinated Lender of information known to Agent or any Senior Lender regarding such condition or any such circumstances. In the event, Agent or any Senior Lender, in its sole discretion, undertakes, at any time or from time to time, to provide any such information to Subordinated Lender, neither Agent nor any Senior Lender shall be under any obligation (i) to provide any such information to Subordinated Lender on any subsequent occasion or (ii) to undertake any investigation not apart of its regular business routine and shall be under no obligation to disclose any information which, pursuant to accepted or reasonable commercial finance practices, Agent and Senior Lenders wish to maintain confidential. Subordinated Lender hereby agrees that all payments received by Agent, for the benefit of Senior 8 Lenders, may be applied, reversed, and reapplied, in whole or in part, to any of the Obligations, as Agent and Senior Lenders, in their sole discretion, deems appropriate. 20. Subrogation. The provisions of this Agreement are solely for the ----------- purpose of defining the relative rights of Agent and Senior Lenders on the one hand and the Subordinated Lender on the other hand, and nothing herein shall impair as between the Subordinated Lender and the Debtor, the Debtor's obligations to pay to the Subordinated Lender the principal, interest, and other charges due on the Subordinated Debt as and when the same shall become due in accordance with the terms thereof; nor shall anything herein prevent the Subordinated Lender from exercising all rights and remedies otherwise permitted by applicable law upon default, subject, however, to the terms and conditions of this Agreement and rights of the Agent and Senior Lenders hereunder. In the event that the Obligations shall have been irrevocably paid in full in cash, and cash, securities or other property otherwise payable or deliverable to the Subordinated Lender shall have been applied pursuant to this Agreement to the payment of the Obligations, then the Subordinated Lender shall be subrogated to any right of the Agent and/or Senior Lenders to receive any further payments or distributions applicable to the Obligations until the Subordinated Debt shall have been paid in full; provided, however, that for purposes of such -------- ------- subrogation, as among the Debtor, its creditors other than the Senior Lenders, and the Subordinated Lender, no payments or distributions to Agent or any Senior Lender of any cash, property, or securities to which the Subordinated Lender would be entitled, except for the provisions hereof, shall be deemed to be a payment by or on account of the Obligations. 21. Notice. Except as otherwise provided herein, all notices, requests ------ and demands to or upon a party hereto shall be in writing and shall be sent by certified or registered mail return receipt requested, by personal delivery against receipt, or by telegraph or telex and, unless otherwise expressly provided herein, shall be deemed to have been validly served, given or delivered when delivered against receipt or one business day after deposit in the U.S. mail postage prepaid, or, in the case of telegraphic notice, when delivered to the telegraph company, or, in the case of telex notice, when sent, answerback received, addressed to the parties at the addresses specified on the first page hereof, or to such other address as each party may designate for itself by like notice given in accordance with this paragraph. Any written notice that is not sent in conformity with the provisions hereof shall nevertheless be effective on the date that such notice is actually received by the noticed party. 22. Governing Law. This Agreement shall be deemed to have been made in ------------- Dallas, Texas, and shall be interpreted, and the rights and obligations of the parties hereto determined, in accordance with the laws and decisions of the State of Texas. 23. Binding Obligations; Successors and Assigns. This Agreement shall be ------------------------------------------- immediately binding upon Subordinated Lender and its successors and assigns, and shall inure to the benefit of the successors and assigns of Agent and Senior Lenders. Subordinated Lender will not assign or transfer all or any part of the Subordinated Debt unless it first advises any such transferee in writing that the Subordinated Debt is subject in all respects to the terms of this Agreement. This Agreement may be assigned by Agent and Senior Lenders in connection with any assignment or transfer of the Obligations. 9 24. Section Titles. The Section titles contained in this Agreement are -------------- and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto. 25. Entire Agreement. This Agreement embodies the entire agreement ---------------- between the parties and supersedes all prior agreements regarding the subject matter hereof. 26. Counterparts. This Agreement may be executed by one or more of the ------------ parties hereto in any number of separate counterparts, each of which shall be an original, but all of which shall constitute but one agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 10 EXECUTED as of this 14th day of March, 1997. SUBORDINATED LENDER: BANK OF AMERICA NT & SA, doing business as SEAFIRST BANK By:____________________________________ Name:__________________________________ Title:_________________________________ SENIOR LENDERS: FLEET CAPITAL CORPORATION By:____________________________________ Name:__________________________________ Title:_________________________________ THE FIRST NATIONAL BANK OF BOSTON By:____________________________________ Name:__________________________________ Title:_________________________________ AGENT: FLEET CAPITAL CORPORATION By:____________________________________ Name:__________________________________ Title:_________________________________ 11 ACKNOWLEDGMENT BY DEBTOR ------------------------ Debtor hereby acknowledges receipt of a copy of the foregoing Subordination Agreement, confirms that the Subordinated Note represents all of Debtor's existing indebtedness and obligations to Subordinated Lender, and agrees that it will not pay any indebtedness subordinated by the foregoing Subordination Agreement (except as otherwise permitted thereby) until all Obligations described therein shall have been paid in full in cash and Senior Lenders' financing arrangements with Debtor are terminated. In the event of any breach of the provisions of the foregoing Subordination Agreement, Debtor agrees that, in addition to any other rights and remedies Agent or any Senior Lender may have, all of Debtor's obligations and liabilities to Agent and Senior Lenders shall, without notice or demand, become immediately due and payable, unless Agent and Senior Lenders shall otherwise elect. BRAZOS, INC. By:____________________________________ Name:__________________________________ Title:_________________________________ 12 EX-99.6 7 AMENDMENT NO. 1 TO SCHEDULE 13D DATED 12/23/92 EXHIBIT 99.6 ---------------------------------- OMB APPROVAL ---------------------------------- OMB Number: 3235-0145 Expires: October 31, 1994 Estimated average burden hours per form............. 14.90 ---------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 1 )* ----- SUN SPORTWEAR, INC. ------------------------------------------------------------- (Name of Issuer) COMMON STOCK --------------------------------------------------- (Title of Class of Securities) 866875 10 7 ----------------------------------------- (CUSIP Number) STANLEY A. CARLSON, ESQ. 701 Fifth Avenue, Floor 56, Seattle, Washington 98104 --------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 23, 1992 ------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [_]. Check the following box if a fee is being paid with this statement [_]. (A fee is not required only if the filing person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7). Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required in the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 866875 10 7 PAGE 1 OF 5 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 1. Seattle-First National Bank 2. Seafirst Corporation 3. Bankamerica Corporation - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] N/A (b) [_] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS* 00 - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 1. National Banking Association 3. Delaware Corporation 2. Washington Corporation - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 3,800,000 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 7,500 (directly owned by Herman Sarkowsky, director OWNED BY of Seafirst Corporation) ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 3,800,000 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 7,500 (directly owned by Herman Sarkowsky, director of Seafirst Corporation) - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 3,807,500 (Reporting persons disclaim beneficial ownership of the 7,500 shares held directly by Herman Sarkowsky. - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 13 67.8% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 1. BK 3. CO 2. CO - ------------------------------------------------------------------------------ *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. Item 1. Security and Issuer This Schedule 13D relates to the Common Stock, no par value, ("Common Stock") of Sun Sportswear, Inc. ("Issuer" or "Company") whose principal offices are located at 6520 South 190th Street, Kent, Washington 98032. The name and address of the principal executive officers of the Issuer are: Randolph H. Clark, President 6520 South 190th Street Kent, WA 98032 L. Kaye Counts, Chiefs Operating Officer 6520 South 190th Street Kent, WA 98032 Robert L. Buchanan, Vice President Manufacturing 6520 South 190th Street Kent, WA 98032 Kevin James, Vice President Finance 6520 South 190th Street Kent, WA 98032 Item 2. Identity and Background (a.1) SEATTLE-FIRST NATIONAL BANK (the "Bank") 701 Fifth Avenue, Floor 56 Seattle, Washington 98104 (b.1) STATE OF INCORPORATION: A national banking association organized and existing under the laws of the United States. (c.1) PRINCIPAL BUSINESS: A national banking association engaged in commercial banking. (a.2) SEAFIRST CORPORATION ("SeaFirst" - owner of 100% of the issued and outstanding Common Stock of the Bank, except for directors' qualifying shares). 701 Fifth Avenue, Floor 56 Seattle, Washington 98104 (b.2) STATE OF INCORPORATION: Washington (c.2) PRINCIPAL BUSINESS: Bank Holding Company (a.3) BANKAMERICA CORPORATION ("BankAmerica" - owner of 100% of the issued and outstanding common stock of SeaFirst). (b.3) STATE OF INCORPORATION: Delaware (c.3) PRINCIPAL BUSINESS: Bank Holding Company Page 2 of 5 Pages (d) - (e) Neither the Bank, SeaFirst or BankAmerica (collectively referred to as the "Corporations"), nor, to the best knowledge of the Corporations, any of the directors or executive officers of the Corporations, during the last five years, was a party to a criminal proceeding (excluding traffic violations or similar misdemeanors) of a judicial or administrative body of competent jurisdiction as a result of which any such entity or individual was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation of such laws. NOTE: See Attachment A for information relating to directors and executive officers of the Corporations. Item 3: Source and Amount of Funds or Other Consideration The Bank is acquiring the Common Stock of the Issuer pursuant to the terms of a certain Loan Modification and Satisfaction Agreement dated December 23, 1992 by and among David A. Sabey and Sandra L. Sabey, husband and wife ("Sabey"), Sabey Corporation, a Washington corporation ("Sabey Corp."), Taylor Way Properties, Inc., a Washington corporation ("Taylor Way"), and Seattle-First National Bank (the "Bank") (the "Agreement"). Sabey, Sabey Corp. and Taylor Way (the "Borrowers") are indebted to the Bank pursuant to the terms and conditions of certain loans made by the Bank, certain of such loans which are in default and are secured by the stock of the Issuer held by Sabey (the "Loans"). Pursuant to the terms of the Agreement, the parties agreed to the partial discharge of such Loans through the transfer to the Bank of certain assets owned by the Borrowers, including the Common Stock of the Issuer held by Sabey. Item 4: Purpose of Transaction (a) - (c) The purpose of the acquisition is to transfer the Common Stock held by Sabey and pledged to the Bank in partial discharge of the Loans. The Bank presently intends to allow NationsBank Investment Banking Co., located in North Carolina, ("NationsBank") to continue its efforts to sell the Company or find an appropriate merger partner. NationsBank was hired by the Company earlier this year for such purpose. (d) The Bank has no present intentions to change the current Board of Directors or management, except to fill the vacancy of David Sabey who will resign as Chairman of the Board no later than January 22, 1993, and to fill any other vacancies that may occur. Page 3 of 5 Pages (e) - (f) The Bank does not presently intend any material change in the present capitalization or dividend policy of the Issuer or any other material change in the Issuer's business or corporate structure. (g) The Bank does not presently intend to change the Issuer's Articles, Bylaws or other instruments relating thereto. To the best of its knowledge, the Bank is not aware of any other actions which may impede the acquisition of control or the Issuer by any person. (h) None (i) None (j) None Item 5: Interest in Securities of the Issuer (a) Aggregate Number and Percentage of Common Stock Beneficially owned: 3,807,500 shares (7,500 shares of which are directly owned by Herman Sarkowsky, director of Seafirst) To the best of the Corporations' knowledge, with the exception of Mr. Sarkowsky, none of their respective executive officers or directors beneficially own any Common Stock of the Issuer. (b) (1) Sole Voting Power: 3,800,000 shares (2) Shared Voting Power: 7,500 shares (owned directly by Herman Sarkowsky) (3) Sole Dispositive Power: 3,800,000 shares (4) Shares Dispositive Power: 7,500 shares (owned directly by Herman Sarkowsky) (c) Description of Transactions: To the best of the Corporations' knowledge, none of their respective executive officers or directors effected any transactions in the Common Stock of the Issuer during the past sixty (60) days. (d) N/A (e) N/A Item 6: Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. N/A Item 7: Material to be filed as Exhibits N/A Page 4 of 5 Pages SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: January 27, 1993 SEATTLE FIRST NATIONAL BANK BY: /s/ Stanley A. Carlson ---------------------------- Signature Stanley A. Carlson ---------------------------- Name Secretary ---------------------------- Title SEAFIRST COMPORATION BY: /s/ Stanley A. Carlson ---------------------------- Signature Stanley A. Carlson ---------------------------- Name Secretary ---------------------------- Title BANKAMERICA CORPORATION BY: /s/ Daniel W. Lally ---------------------------- Signature Daniel W. Lally ---------------------------- Name Senior Counsel ---------------------------- Title Page 5 of 5 Pages -----END PRIVACY-ENHANCED MESSAGE-----