EXHIBIT 1.1
FLEETWOOD CAPITAL TRUST
5,000,000 Convertible Trust Preferred Securities
(Liquidation Amount $50 Per Preferred Security)
Guaranteed by
FLEETWOOD ENTERPRISES, INC.
PURCHASE AGREEMENT
February 4, 1998
PAINEWEBBER INCORPORATED
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Fleetwood Capital Trust (the "Trust"), a business trust organized under the
Delaware Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. C. ss. 3801 et seq.) and
Fleetwood Enterprises, Inc., a Delaware corporation (the "Company"), hereby
confirms its agreement with you (the "Initial Purchaser"), as set forth below.
1. DESCRIPTION OF SECURITIES. The Trust proposes to issue and sell to
the Initial Purchaser an aggregate of 5,000,000 shares of its 6% Convertible
Trust Preferred Securities (the "Firm Securities"). The Trust has also agreed
to grant to the Initial Purchaser an option (the "Option") to purchase up to an
additional 750,000 shares of its 6% Convertible Trust Preferred Securities (the
"Option Securities") on the terms and for the purposes set forth in Section 2(b)
hereof. The Firm Securities and the Option Securities are hereinafter
collectively referred to as the "Preferred Securities." The Preferred
Securities will be guaranteed, to the extent set forth in the Final Memorandum
(as defined below), by the Company. Capitalized terms used but not separately
defined herein are defined in the Final Memorandum and used herein as so
defined.
It is understood that substantially contemporaneously with the offering and
sale of the Firm Securities to the Initial Purchaser contemplated hereby, (i)
the Trust, its trustees (the "Trustees") and the Company shall take all
necessary action to adopt an Amended and
Restated Declaration of Trust (as so amended and restated, the
"Declaration"), pursuant to which the Trust shall (x) issue and sell the
Preferred Securities to the Initial Purchaser pursuant hereto and (y) issue
155,000 shares of its 6% common trust securities (and up to an additional
23,000 shares of such securities in connection with the issuance and sale of
the Option Securities) (the "Common Securities" and, together with the
Preferred Securities, the "Trust Securities") to the Company, in each case
with such rights and obligations as shall be set forth in the Declaration,
(ii) the Company shall sell such Convertible Subordinated Debentures to the
Trust in conjunction with the consummation of the sale of the Preferred
Securities to you contemplated hereby, (iii) the Preferred Securities will be
convertible into shares (the "Underlying Securities") of common stock, $1.00
par value, of the Company (the "Fleetwood Common Stock") and (iv) the Company
and The Bank of New York, as Guarantee Trustee (the "Guarantee Trustee"),
shall enter into a Guarantee Agreement with respect to the Preferred
Securities (the "Guarantee") for the benefit of holders from time to time of
the Preferred Securities. The Company and The Bank of New York, as trustee
(the "Debt Trustee"), have entered into an Indenture dated as of February 1,
1998 (the "Indenture") providing for the issuance of up to $7,750,000 in
aggregate principal amount of the Company's 6% Convertible Subordinated
Debentures due 2028 (the "Convertible Subordinated Debentures"). The
Preferred Securities together with the Underlying Securities and the
Guarantee are collectively hereinafter called the "Offered Securities".
The Preferred Securities will be offered and sold to the Initial Purchaser
without being registered under the Securities Act of 1933, as amended (the
"Act"), in reliance on exemptions therefrom provided by the Act and the rules
and regulations thereunder (the "Rules and Regulations").
In connection with the offer and sale of the Preferred Securities, the
Company, as sponsor of the Trust, has prepared a preliminary offering memorandum
dated January 21, 1998 (the "Preliminary Memorandum") and a final offering
memorandum dated the date hereof (such final offering memorandum, in the form
furnished to the Initial Purchaser for use in connection with the offering of
the Preferred Securities, or if such form is not so used, in the form
subsequently furnished for such use, the "Final Memorandum") for delivery to
prospective purchasers of the Offering Securities. Each of the Preliminary
Memorandum and the Final Memorandum includes certain information concerning,
among other things, the Trust, the Company, the Offered Securities and the
Convertible Subordinated Debentures. The Final Memorandum incorporates by
reference each document or report filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
after the date thereof and prior to the termination of the distribution of the
Preferred Securities as well as the Company's Proxy Statement and Annual Report
on Form 10-K for the fiscal year ended April 27, 1997, Quarterly Reports on Form
10-Q for the fiscal quarters ended July 27, 1997, and October 26, 1997 and
Current Reports on Form 8-K dated October 8, 1997, January 14, 1998 and January
23, 1998. As used herein, the terms "Preliminary Memorandum" and "Final
Memorandum" shall include in each case the documents incorporated by reference
therein, and any and all supplements
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and amendments to such documents incorporated by reference therein and any
and all amendments and supplements to the Preliminary Memorandum or the Final
Memorandum, as the case may be, and the term "Memorandum" shall consist of
the Preliminary Memorandum and the Final Memorandum. The terms "supplement,"
"amendment" and "amend" as used herein shall include all documents deemed to
be incorporated by reference in the Preliminary Memorandum or Final
Memorandum that are filed subsequent to the date of such memorandum with the
Commission pursuant to the Exchange Act.
The Trust and the Company understand that the Initial Purchaser proposes to
make an offering of the Preferred Securities only on the terms, subject to the
conditions and in the manner set forth in the Final Memorandum and Section 5
hereof, as soon as the Initial Purchaser deems advisable after this Agreement
has been executed and delivered.
The Initial Purchasers and other holders of Offered Securities
(including subsequent transferees) will be entitled to the benefits of the
registration rights agreement, to be dated as of the Closing Date (as defined
below) (the "Registration Rights Agreement") among the Trust, the Company and
the Initial Purchaser, in the form attached hereto as Exhibit D. Pursuant to
the Registration Rights Agreement, the Trust and the Company will agree to file
with the Securities and Exchange Commission (the "Commission") under the
circumstances set forth therein a shelf registration statement pursuant to Rule
415 under the Act relating to the resale of (i) the Preferred Securities, (ii)
the Convertible Subordinated Debentures and (iii) the shares of Underlying
Shares initially issuable upon conversion of the Convertible Subordinated
Debentures by holders thereof, and to use their best efforts to cause such shelf
registration statement to be declared effective.
2. AGREEMENT TO SELL AND PURCHASE.
(a) Subject to the terms and conditions and in reliance on the
representations and warranties of the Initial Purchaser set forth herein, the
Trust agrees to sell to the Initial Purchaser and, on the basis of the
representations, warranties and agreements of the Trust and the Company herein
contained and subject to all the terms and conditions of this Agreement, the
Initial Purchaser agrees to purchase from the Trust, at a purchase price of
$50.00 per Preferred Security plus accrued and unpaid distributions, if any, on
the Firm Securities as of the Closing Date (as defined below), all of the Firm
Securities.
(b) Subject to all the terms and conditions of this Agreement,
the Trust grants the Option to the Initial Purchaser to purchase up to 750,000
Option Securities from the Trust at the same purchase price per Preferred
Security as the Initial Purchaser shall pay for the Firm Securities plus any
accrued and unpaid distributions on the Option Securities as of the Option
Closing Date (as defined below). The Option may be exercised only to cover
over-allotments in the sale of the Firm Securities by the Initial Purchaser and
may be exercised in whole or in part at any time (but not more than once) on or
before the 30th day after the date hereof, upon written or telegraphic notice
(the "Option Securities Notice") by the Initial Purchaser to the Trust and the
Company no later than 12:00 noon,
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New York City time, at least two and no more than five business days before
the date specified for closing in the Option Securities Notice (the "Option
Closing Date") setting forth the aggregate number of Option Securities to be
purchased and the time and date for such purchase. On the Option Closing
Date, the Trust will issue and sell to the Initial Purchaser the number of
Option Securities set forth in the Option Securities Notice, and the Initial
Purchaser will purchase the Option Securities.
(c) As compensation to the Initial Purchaser for its commitment
hereunder, and in view of the fact that the proceeds of the sale of the
Preferred Securities will be used by the Trust to purchase the Convertible
Subordinated Debentures of the Company, the Company hereby agrees to pay the
Initial Purchaser at the Closing Date and the Option Closing Date, if
applicable, an amount equal to $1.25 per Preferred Security.
3. DELIVERY AND PAYMENT. Delivery of one or more certificates in
definitive form for the Firm Securities that the Initial Purchaser has agreed to
purchase hereunder, and in such denomination or denominations and registered in
such name or names as the Initial Purchaser requests upon notice to the Trust
and the Company at least 48 hours prior to the Closing Date shall be made to the
Initial Purchaser at the offices of PaineWebber Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed
among the Trust, the Company and the Initial Purchaser, against payment of the
purchase price by wire transfer of immediately available funds to such account
as the Trust shall specify at least 48 hours prior to the Closing Date. Such
payments shall be made at 10:00 a.m., New York City time, on February 10, 1998
or at such time on such other date as may be agreed upon by the Trust, the
Company and the Initial Purchaser (such date is hereinafter referred to as the
"Closing Date"). The certificates (including one or more global certificates),
if any, for the Firm Notes to be so delivered will be made available to the
Initial Purchaser at such office or at such other location in New York City as
the Initial Purchaser may reasonably request for checking at least one full
business day prior to the Closing Date. To the extent that the Initial
Purchaser so elects, delivery of the Firm Securities held in global certificates
may be made by credit through full fast transfer to the accounts at The
Depository Trust Company ("DTC") designated by the Initial Purchaser.
To the extent the Option is exercised, delivery of the Option
Securities against payment by the Initial Purchaser (in the manner specified
above) will take place at the time and date (which may be the Closing Date)
specified in the Option Securities Notice.
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Firm Securities and Option Securities by the Trust
to the Initial Purchaser shall be borne by the Trust and the Company. The Trust
and the Company will, jointly and severally, pay and save the Initial Purchaser
and any subsequent holder of the Preferred Securities harmless from any and all
liabilities with respect to or resulting from any failure or delay in paying
Federal and state stamp and other transfer taxes, if any, which may be payable
or determined to be payable in connection with the original issuance or sale to
the Initial Purchaser of the Firm Securities and Option Securities.
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At the Closing Date and the Option Closing Date, if any, the Company
will pay, or cause to be paid, the commission payable at such time to the
Initial Purchaser under Section 2(c) hereof in immediately available funds.
4. REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE COMPANY.
Each of the Trust and the Company, jointly and severally, represents and
warrants to, and agrees with, the Initial Purchaser that:
(a) The Company and each of the Company's subsidiaries is, and
at the Closing Date will be, a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation and has,
and at the Closing Date will have, full power and authority to conduct all the
activities conducted by it, to own or lease all the assets owned or leased by it
and to conduct its business as described in the Final Memorandum; except where
the failure to have such power and authority would not have a Material Adverse
Effect (as defined below). The Company and each of its subsidiaries is, and at
the Closing Date will be, duly licensed or qualified to do business and in good
standing as a foreign corporation in all jurisdictions in which the nature of
the activities conducted by it or the character of the assets owned or leased by
it makes such licensing or qualification necessary except for such failures to
be licensed or qualified as would not materially and adversely affect the
business, properties, business prospects, condition (financial or otherwise) or
results of operation of the Trust or of the Company and its subsidiaries
considered as one enterprise (a "Material Adverse Effect"). All of the
outstanding shares (excluding the outstanding shares of Expression Homes
Corporation, which is 49% owned by the Company) of capital stock of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and nonassessable and are owned by the Company free and clear of all
liens, encumbrances and claims (collectively, "Liens") whatsoever except for
such Liens as would not have a Material Adverse Effect. Complete and correct
copies of the certificate of incorporation and of the by-laws of the Company
have been delivered to counsel to the Initial Purchaser and complete and correct
copies of the certificate of incorporation and of the by-laws of each of its
subsidiaries set forth on Schedule A hereto and all amendments thereto have been
made available to counsel to the Initial Purchaser, and no changes therein will
be made subsequent to the date hereof and prior to the Closing Date or, if
later, the Option Closing Date.
(b) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act; all filings required
under the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made; under the Delaware
Act and the Declaration, the Trust has the business trust power and authority to
(x) own property and conduct its business, all as described in the Final
Memorandum, (y) enter into and perform its obligations under this Agreement, and
(z) issue and perform its obligations under the Preferred Securities and the
Common Securities and is not required to be authorized to do business in any
jurisdiction other than Delaware; the Trust is not a party to or otherwise bound
by any agreement other than those described in the Final Memorandum; the Trust
does not have any consolidated or
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unconsolidated subsidiaries; the Trust is and will be treated as a
consolidated subsidiary of the Company pursuant to generally accepted
accounting principles; and the Trust is not and, assuming compliance by the
Trust with the Declaration, will not be classified as an association taxable
as a corporation for United States federal income tax purposes.
(c) The Declaration has been duly and validly authorized by the
Company and, when executed and delivered by the Company and the Regular Trustees
(as defined in the Declaration) at the Closing Date, and assuming due
authorization, execution and delivery thereof by the Property Trustee and the
Delaware Trustee (as such terms are defined in the Declaration), will be the
valid and binding obligation of the Company and the Regular Trustees,
enforceable against the Company and the Regular Trustees in accordance with its
terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights generally
from time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at law)
and conforms to the description thereof contained in the Final Memorandum.
(d) The Final Memorandum does not, and on the Closing Date will
not, contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranty set forth in this sentence do not apply to statements or omissions in
the Final Memorandum based upon information relating to the Initial Purchaser
furnished to the Company in writing by the Initial Purchaser expressly for use
therein as specified in herein. The Company is subject to Section 13 or 15(d)
of the Exchange Act. The Company has timely filed with the Commission all the
documents that the Company was required to file with the Commission under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (collectively, the "SEC
Documents"). The SEC Documents, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange Act and
the rules, regulations and instructions of the Commission thereunder, and any
documents so filed and incorporated by reference in either Memorandum subsequent
to the date hereof will, when they are filed with the Commission, conform in all
material respects to the requirements of the Exchange Act and the rules,
regulations and instructions of the Commission thereunder.
(e) The Trust and the Company each have all trust and corporate
power, as the case may be, to enter into this Agreement and the Registration
Rights Agreement. This Agreement has been and, as of the Closing Date, the
Registration Rights Agreement will have been, duly authorized, executed and
delivered by each of the Trust and the Company and upon such execution by each
of the Trust and the Company (assuming the due authorization, execution and
delivery of such agreements by the other parties thereto) this Agreement and the
Registration Rights Agreement will constitute the valid and binding obligations
of each of the Trust and the Company enforceable against each of the Trust and
the Company in accordance with the terms hereof or thereof, subject to the
applicable
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bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors rights generally from time to time in
effect and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in equity or at law and
except as the enforcement of indemnification and contribution provisions
hereof and thereof may be limited by applicable law.
(f) The Indenture has been duly and validly authorized and will
be executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Debt Trustee, constitutes a valid and legally
binding agreement of the Company enforceable in accordance with its terms
(subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights generally
from time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at law);
and the Indenture conforms to the description thereof contained in the Final
Memorandum.
(g) The Preferred Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust in accordance with the
Declaration to the Initial Purchaser and paid for in accordance with this
Agreement, will be validly issued, and fully paid and nonassessable undivided
beneficial interests in the assets of the Trust and will be entitled to the
benefits of the Declaration; provided, however, the holders of the Preferred
Securities may be obligated, pursuant to the Declaration, (i) to provide
indemnity and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of Preferred Securities and the
issuance of replacement Preferred Securities certificates, and (ii) to provide
security or indemnity in connection with requests of or directions to the
Property Trustee (as defined in the Declaration) to exercise its rights and
powers under the Declaration. The holders of the Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same limitation of
personal liability as that extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware;
under the Delaware Act and the Declaration, the issuance of the Preferred
Securities will not be subject to preemptive or other similar rights; and the
Preferred Securities will conform to the description thereof in the Final
Memorandum.
(h) The Convertible Subordinated Debentures have been duly and
validly authorized by the Company and, when executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid for by the
Trust in accordance with the Final Memorandum, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their terms
(subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights generally
from time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at law);
and the Convertible Subordinated Debentures will be in the form contemplated by,
and entitled to the benefits of,
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the Indenture and will conform to the description thereof contained in the
Final Memorandum.
(i) The Guarantee has been duly and validly authorized by the
Company and, when executed and delivered by the Company at the Closing Date,
will constitute a valid and legally binding agreement of the Company enforceable
in accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether considered in
a proceeding in equity or at law); and the Guarantee will conform to the
description thereof contained in the Final Memorandum.
(j) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
payment therefor in accordance with the Declaration, will be validly issued and
fully paid and undivided beneficial interests in the assets of the Trust; under
the Delaware Act and the Declaration, the issuance of the Common Securities will
not be subject to preemptive or other similar rights; and at the Closing Date,
all of the issued and outstanding Common Securities of the Trust will be
directly owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(k) The Fleetwood Common Stock, the Registration Rights
Agreement and the Declaration conform in all material respects to the
description thereof in the Final Memorandum. The Underlying Securities have
been duly authorized and duly reserved for issuance and, upon issuance thereof
upon conversion of the Preferred Securities and the Convertible Subordinated
Debentures in accordance with the terms of the Preferred Securities, the
Declaration, the Convertible Subordinated Debentures and the Indenture, will be
validly issued, fully paid and nonassessable shares of Fleetwood Common Stock
and will be issued free and clear of any pledge, lien, security interest,
encumbrance, claim or equitable interest and will not be subject to any
preemptive rights, co-sale rights, rights of first refusal or other rights to
subscribe for or purchase the Fleetwood Common Stock.
(l) The descriptions of the Preferred Securities, the Common
Securities, the Guarantee and the Convertible Subordinated Debentures in the
Final Memorandum are, and at the Closing Date will be, complete and accurate in
all material respects. Each of the Declaration and the Indenture conforms to
the description thereof contained in the Final Memorandum in all material
respects.
(m) The financial statements and schedules of the Company
together with the notes thereto included in the Final Memorandum, and any
amendment or supplement thereto, present fairly the consolidated financial
condition of the Company as of the respective dates thereof and the consolidated
results of operations and cash flows of the Company for the respective periods
covered thereby, all in conformity with generally
8
accepted accounting principles applied on a consistent basis throughout the
entire period involved, except as otherwise disclosed in the Final
Memorandum. Xxxxxx Xxxxxxxx LLP (the "Accountants"), who have reported on
such financial statements and schedules, are independent accountants within
the meaning of the Act and the Rules and Regulations.
(n) Each of the Trust and the Company maintains a system of
internal accounting control sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(o) Subsequent to the respective dates as of which information
is given in the Final Memorandum and prior to the Closing Date, except as set
forth in or contemplated by the Final Memorandum, (i) there has not been and
will not have been any change in the capitalization of the Trust or material
adverse change in the capitalization of the Company, or any material adverse
change in the business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Trust or the Company and its
subsidiaries considered as one enterprise, (ii) neither the Trust nor the
Company nor any of its subsidiaries has incurred nor will incur any material
liabilities or obligations, direct or contingent, nor have they entered into nor
will they enter into any material transactions other than pursuant to this
Agreement and the transactions referred to herein or, in the case of the Company
and its subsidiaries, in the ordinary course of business, and (iii) the Trust
has not and will not have paid or declared any distributions of any kind on any
class of its securities.
(p) Except for subsequent issuances, if any, pursuant to this
Agreement or upon issuance of stock or exercise of stock options or warrants
pursuant to employee benefit plans, the Company has the authorized, issued and
outstanding capitalization set forth in the Final Memorandum under the caption
"Capitalization"; all of the outstanding capital stock of the Company has been
duly authorized and validly issued, is fully paid and nonassessable; and the
authorized capital stock of the Company conforms in all material respects to the
statements relating thereto in the Final Memorandum.
(q) Each of the Preferred Securities, the Preferred Securities
Guarantee and the Convertible Subordinated Debentures satisfy the eligibility
requirements of Rule 144A(d)(3) under the Act.
(r) None of the Trust, the Company, any of their affiliates (as
such term is defined in Rule 501(b) of Regulation D under the Act ("Regulation
D")), or any person acting on behalf of the foregoing (other than the Initial
Purchaser, as to which no representation or warranty is made) has, directly or
indirectly, made offers or sales of any
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security, or solicited offers to buy the Offered Securities, under
circumstances that would require the registration of the Offered Securities
under the Act.
(s) None of the Trust, the Company or any of their affiliates
(as such term is defined in Rule 501(b) of Regulation D) or any person (other
than the Initial Purchaser, as to which no representation or warranty is made)
acting on the Trust's or the Company's behalf has engaged, in connection with
the offering of the Offered Securities, (A) in any form of general solicitation
or general advertising within the meaning of Rule 502(c) under the Act or (B) in
any directed selling efforts within the meaning of Rule 902 under the Act in the
United States in connection with the Offered Securities being offered and sold
pursuant to Regulation S under the Act, and each of them has complied with the
offering restrictions requirement of Regulation S under the Act.
(t) Assuming the accuracy of the representations and warranties
and compliance with the agreements of the Initial Purchaser in Section 5, it is
not necessary in connection with the offer, sale and delivery of the Preferred
Securities to the Initial Purchaser, or in connection with the initial resale of
the Preferred Securities by the Initial Purchaser in accordance with this
Agreement, to register the Offered Securities under the Act or to qualify the
Indenture, the Guarantees or the Declaration under the Trust Indenture Act of
1939, as amended (the "TIA").
(u) The Company has not taken and will not take, directly or
indirectly, any action prohibited by Regulation M under the Exchange Act in
connection with the sale and offering of the Debentures.
(v) Neither the Company nor any of the subsidiaries is in
violation of its respective charter and the Trust is not in violation of the
Declaration, and none of the Company, any of the subsidiaries or the Trust is in
default (or, with notice or lapse of time or both, would be in default) in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other instrument to which it is a party or by which it is bound,
or to which any of its respective assets or properties is subject, which default
or violation, in the case of the Company and its subsidiaries, would have a
Material Adverse Effect.
(w) At the Closing Date and the Option Closing Date, all of the
issued and outstanding Common Securities of the Trust will be owned by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(x) At the Closing Date and the Option Closing Date, the
Property Trustee will be the record holder of the Convertible Subordinated
Debentures and no security interest, mortgage, pledge, lien, encumbrance, claim
or equity will be noted thereon or on the Debenture register maintained by or on
behalf of the Company.
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(y) The execution, delivery and performance by the Company of
this Agreement, the Indenture, the Convertible Subordinated Debentures, the
Declaration and the Guarantee and the execution, delivery and performance by the
Trust of this Agreement and the Trust Securities, the performance by the Trust
of the Declaration and the consummation of the transactions contemplated hereby
and thereby and compliance by the Company and the Trust, as the case may be,
with the terms hereof and thereof and the application of the net proceeds from
the offering and sale of the Trust Securities to be sold by the Trust and the
Convertible Subordinated Debentures to be sold by the Company in the manner set
forth in the Final Memorandum under "Use of Proceeds" will not result in the
creation or imposition of any lien, charge or encumbrance upon any of the assets
of the Trust (other than the creation of a lien on the Convertible Subordinated
Debentures in favor of the holders of the Trust Securities as provided in the
Declaration) or the Company or any of its subsidiaries pursuant to the terms or
provisions of, or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give any other party a right to
terminate any of its obligations under, or result in the acceleration of any
obligation under, the Declaration, the certificate of incorporation or by-laws
of the Company or any of its subsidiaries, any contract or other agreement to
which the Trust or the Company or any of the subsidiaries is a party or by which
the Trust or the Company or any of the subsidiaries or any of their respective
properties is bound or affected, or violate or conflict with any judgment,
ruling, decree, order, statute, rule or regulation of any court or governmental
agency or body applicable to the business or properties of the Trust or the
Company or any of its subsidiaries except for any of the foregoing which would
not have a Material Adverse Effect.
(z) No holder of securities of the Company, other than holders
of the Offered Securities, has rights to the registration of any securities of
the Company because of the offering of the Offered Securities or will have such
rights upon the filing of the shelf registration statement referred to in
Section 1 above.
(aa) Neither the Trust nor the Company is an "investment company"
or an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended.
(ab) Except as set forth in the Final Memorandum, there are no
actions, suits or proceedings pending or threatened against or affecting the
Trust or the Company or any of its subsidiaries or any of their respective
officers in their capacity as such, before or by any Federal or state court,
commission, regulatory body, administrative agency or other governmental body,
domestic or foreign, wherein an unfavorable ruling, decision or finding would
reasonably be expected to have a Material Adverse Effect.
(ac) Each of the Trust and the Company and each of its
subsidiaries has, and at the Closing Date will have, (i) all governmental
licenses, permits, consents, orders, approvals and other authorizations
necessary to carry on its business as contemplated in the Final Memorandum, (ii)
complied in all respects with all laws, regulations and orders
11
applicable to it or its business and (iii) performed all obligations required
to be performed by it, and is not, and at the Closing Date will not be, in
default, under any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement, lease, contract
or other agreement or instrument (collectively, a "contract or other
agreement") to which it is a party or by which its property is bound or
affected, except in the case of (i), (ii) or (iii) above, for such failures
to possess, comply or perform as would not have a Material Adverse Effect.
None of the Trust, the Company nor any of its subsidiaries is, nor at the
Closing Date will any of them be, in violation of its respective Declaration,
charter or by-laws.
(ad) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is required
in connection with the authorization, issuance, transfer, sale or delivery of
the Trust Securities by the Trust or the Guarantee and the Convertible
Subordinated Debentures by the Company, in connection with the execution,
delivery and performance of this Agreement by the Trust and the Company or in
connection with the taking by the Trust or the Company of any action
contemplated hereby and in the Indenture, the Guarantee, the Preferred
Securities and the Common Securities in connection with the purchase and
distribution by the Initial Purchaser of the Preferred Securities.
(ae) Except as disclosed in the Final Memorandum, there is no
claim pending or to the knowledge of the Company threatened under any
Environmental Law (as defined below) against the Company or the subsidiaries
which could reasonably be expected, singly or in the aggregate, to result in a
Material Adverse Effect; to the knowledge of the Company there are no past or
present actions, conditions, events, circumstances or practices, including,
without limitation, the release of any Hazardous Material (as defined below)
that could reasonably be expected to form the basis of any such claim under any
Environmental Law against the Company or the subsidiaries which would, singly or
in the aggregate, result in a Material Adverse Effect. The term "Environmental
Law" means the common law and any federal, state, local or foreign law, rule or
regulation, code, order, decree, judgment or injunction, issued, promulgated,
approved or entered thereunder relating to pollution or protection of public or
employee health or the environment, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended, the Resource Conservation and Recovery Act, as amended, the Toxic
Substance Control Act, as amended, the Clean Air Act, as amended, and the
Federal Water Pollution Act, as amended, and their foreign, state and local
counterparts or equivalents and any other laws relating to (i) releases of any
Hazardous Material into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata), (ii) the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, presence or handling of any Hazardous Material, or (iii) underground
storage tanks and related piping, and releases therefrom. The term "Hazardous
Material" means any pollutant, contaminant, chemical, hazardous material, or
industrial, toxic or hazardous substance or waste (including, without
limitation, petroleum, including crude oil or any
12
fraction thereof or any petroleum product) regulated by or the subject of any
Environmental Law.
(af) No statement, representation, warranty or covenant made by
the Trust or the Company in this Agreement, the Indenture or the Declaration or
made in any certificate or document required by this Agreement to be delivered
to the Initial Purchaser was or will be, when made, inaccurate, untrue or
incorrect in any material respect.
(ag) None of the Trust, the Company or any of its subsidiaries is
involved in any material labor dispute nor, to the knowledge of the Trust or the
Company, is any such dispute threatened which could reasonably be expected to
have a Material Adverse Effect.
(ah) The Company and its subsidiaries own, or are licensed or
otherwise have the full right to use, all material trademarks and trade names
which are used in or necessary for the conduct of their respective businesses as
described in the Final Memorandum. No claims have been asserted by any person
to the use of any such trademarks or trade names or challenging or questioning
the validity or effectiveness of any such trademark or trade name except such
claims as would not reasonably be expected to have a Material Adverse Effect.
The use, in connection with the business and operations of the Company and its
subsidiaries of such trademarks and trade names does not, to the Company's
knowledge, infringe on the rights of any person except such infringements as
would not reasonably be expected to have a Material Adverse Effect.
(ai) None of the Trust, the Company or any of its subsidiaries
or, to the Trust's or the Company's knowledge, any employee or agent of the
Trust, the Company or any subsidiary has made any payment of funds of the Trust,
the Company or any subsidiary or received or retained any funds in violation of
any law, rule or regulation or of a character required to be disclosed in the
Final Memorandum.
(aj) Any certificate signed by any officer of the and delivered
to the Initial Purchaser or to counsel for the Initial Purchaser pursuant to the
terms of this Agreement shall be deemed a representation and warranty by the
Company to the Initial Purchaser as to the matters covered thereby.
(ak) The Company maintains insurance with respect to its
properties and business of the types and in amounts the Company reasonably deems
adequate for its business, all of which insurance is in full force and effect.
(al) The Company has filed all material federal, state and
foreign income and franchise tax returns and has paid all taxes shown as due
thereon, other than taxes which are being contested in good faith and for which
adequate reserves have been established in accordance with generally accepted
accounting principles ("GAAP"); and the Company has no knowledge of any tax
deficiency which has been or might be asserted or
13
threatened against the Company. There are no tax returns of the Company or
any of its subsidiaries that are currently being audited by state, local or
federal taxing authorities or agencies (and with respect to which the Company
or any subsidiary of the Company has received notice), where the findings of
such audit, if adversely determined, would result in a Material Adverse
Effect.
(am) With respect to each employee benefit plan, program and
arrangement (including, without limitation, any "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) maintained or contributed to by the Company, or with
respect to which the Company could incur any liability under ERISA
(collectively, the "Benefit Plans"), no event has occurred and, to the best
knowledge of the Company, there exists no condition or set of circumstances, in
connection with which the Company could be subject to any liability under the
terms of such Benefit Plan, applicable law (including, without limitation, ERISA
and the Internal Revenue Code of 1986, as amended) or any applicable agreement
that could have a Material Adverse Effect.
(an) The Company and the Trust have not done anything and will
not do anything in connection with the issuance and sale of the Offered
Securities that is violative of Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System.
5. OFFERING OF SECURITIES. The Initial Purchaser represents and
warrants to, and agrees with, the Trust and the Company that:
(a) It has not offered or sold, and will not offer or sell, any
Preferred Securities except (i) to those institutions it reasonably believes to
be qualified institutional buyers (as defined in Rule 144A under the Securities
Act), (ii) to a limited number of institutional investors that qualify as
"accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Act or (iii) in offshore transactions within the meaning and meeting the
requirements of Rule 903 under the Act.
(b) Neither it, nor any of its Affiliates, nor any person acting
on its behalf has made or will make offers or sales of the Preferred Securities
in the United States by means of any form of general solicitation or general
advertising (within the meaning of Rule 502(c) under Regulation D under the Act)
in the United States.
(c) Neither it, nor any of its Affiliates, nor any person acting
on its or their behalf has engaged in any "directed selling efforts" (as defined
in Regulation S under the Act) with respect to the Preferred Securities.
(d) It is an "accredited investor" (within the meaning of Rule
501 of Regulation D under the Act).
14
(e) It will comply with all applicable laws and regulations in
each jurisdiction in which it purchases, offers, sell or delivers Preferred
Securities or has in its possession or distributes either Memorandum, any
amendment or supplement thereto or any other offering or publicity material
relating to the Preferred Securities.
(f) It will notify the Company of the completion of the
distribution of the Preferred Securities as promptly as practicable upon such
completion.
6. AGREEMENTS OF THE TRUST AND THE COMPANY. The Trust and the
Company, jointly and severally, agree with the Initial Purchaser as follows:
(a) The Company and the Trust will not, either prior to the
Closing Date or thereafter, distribute any amendment or supplement to the Final
Memorandum, unless a copy thereof shall first have been submitted to the Initial
Purchaser within a reasonable period of time prior to any distribution thereof
and the Initial Purchaser shall not have objected thereto in good faith.
(b) The Trust and the Company will notify the Initial Purchaser
promptly, and will confirm such advice in writing, of (i) the happening of any
event during the period mentioned in the third sentence of Section 6(c) that in
the judgment of the Trust or the Company makes any statement made in the Final
Memorandum untrue or that requires the making of any changes in the Final
Memorandum in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and (ii) receipt by the
Trust or the Company or any representative or attorney of the Trust or the
Company of any other communication from the Commission relating to the Trust or
the Company, any Preliminary Memorandum or the Final Memorandum. If at any time
the Commission shall issue any order suspending the use of any Preliminary
Memorandum or the Final Memorandum, the Trust and the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible moment.
(c) The Company will deliver to the Initial Purchaser, without
charge, as many copies of the Preliminary Memorandum and Final Memorandum and
any amendment or supplement thereto, as the Initial Purchaser may reasonably
request. The Company and the Trust consent to the use of the Preliminary
Memorandum or Final Memorandum and any amendment or supplement thereto, as the
case may be, by the Initial Purchaser, in connection with the offering or sale
of the Preferred Securities. If during such period of time any event shall
occur which in the judgment of the Trust or the Company or the Initial Purchaser
or counsel to the Initial Purchaser should be set forth in the Final Memorandum
in order to make any statement therein, in the light of the circumstances under
which it was made, not misleading in any material respect, or if it is necessary
to supplement or amend the Final Memorandum to comply with law, the Company will
forthwith prepare an appropriate supplement or amendment thereto, and will
deliver to the Initial Purchaser, without charge, such number of copies thereof
as the Initial Purchaser may reasonably request. The Company shall not file any
document under the Exchange Act before the
15
termination of the offering of the Preferred Securities by the Initial
Purchaser if such document would be deemed to be incorporated by reference
into the Final Memorandum without reasonable notice to the Initial Purchaser.
The Trust and the Company agree to notify the Initial Purchasers in writing
to suspend use of the Final Memorandum as promptly as practicable after the
occurrence of an event specified in this Section 6(c), and the Initial
Purchaser hereby agrees upon receipt of such notice from the Trust and the
Company to suspend use of the Final Memorandum until the Trust and the
Company have amended or supplemented the Final Memorandum to correct such
misstatement or omission or to effect such compliance.
(d) Notwithstanding any provision of Section 6(b) or Section
6(c) to the contrary, however, the Trust's and the Company's obligations under
Section 6(b) and Section 6(c) and the Initial Purchasers obligations under
Section 6(c) shall terminate on the earlier to occur of (i) the effective date
of a shelf registration statement with respect to the Offered Securities filed
pursuant to the Registration Rights Agreement and (ii) the date upon which the
Initial Purchaser and its affiliates cease to hold Offered Securities acquired
as part of their initial distribution.
(e) Neither the Company, the Trust nor any of their affiliates
(as defined in Rule 501(b) under the Act), nor any person acting on behalf of
the foregoing (other than the Initial Purchasers), will engage in any form of
general solicitation or general advertising (within the meaning of Regulation D)
in connection with any offer or sale of the Offered Securities in the United
States, or engage in any directed selling efforts (as defined in Rule 902 under
the Act) with respect to the Offered Securities prior to the effectiveness of a
registration statement with respect to the Offered Securities, and each of them
will comply with the offering restrictions requirement of Regulation S. Terms
used in this clause 5(e) have the meanings given to them by Regulation S.
(f) Neither the Company nor any of its affiliates (including the
Trust) (as defined in Rule 501(b) under the Act) will, directly or indirectly,
make offers or sales of any security, or solicit offers to buy any security,
under circumstances that would require the registration of the Offered
Securities under the Act.
(g) So long as any of the Offered Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, the Company
will, during any period in which it is not subject to and in compliance with,
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), provide to each holder of such restricted securities and to
each prospective purchaser (as designated by such holder) of such restricted
securities, upon the request of such holder or prospective purchaser, any
information required to be provided by Rule 144A(d)(4) under the Act. This
covenant is intended to be for the benefit of the holders, and the prospective
purchasers designated by such holders, from time to time of such restricted
securities.
16
(h) Each Preferred Security (and each Convertible Subordinated
Debenture distributed to holders of Preferred Securities pursuant to the terms
of the Declaration) will bear the following legend until such legend shall no
longer be necessary or advisable because the Preferred Securities (or the
Convertible Subordinated Debentures) are no longer subject to the restrictions
on transfer described herein:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH FLEETWOOD
CAPITAL TRUST (THE "TRUST"), FLEETWOOD ENTERPRISES, INC. (THE
"COMPANY") OR ANY AFFILIATE OF THE FOREGOING WAS THE OWNER OF THIS
SECURITY (THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE
TRUST OR THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1) (2), (3) OR (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
17
TO THE TRUST'S, THE COMPANY'S AND THE TRANSFER AGENT'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (D), (E) OR (F)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
(i) Each Underlying Share, if any, will bear the following
legend until such legend shall no longer be necessary or advisable because the
Underlying Shares are no longer subject to the restrictions on transfer
described herein:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER
OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE CONVERTIBLE
SUBORDINATED DEBENTURES UPON THE CONVERSION OF WHICH THE CLASS B
COMMON STOCK EVIDENCED HEREBY WAS ISSUED AND THE LAST DATE ON WHICH
FLEETWOOD CAPITAL TRUST (THE "TRUST"), FLEETWOOD ENTERPRISES, INC.
(THE "COMPANY") OR ANY AFFILIATE OF THE FOREGOING WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE
RESTRICTION TERMINATION DATE"), ONLY (A) TO THE COMPANY, (B) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE CLASS B COMMON STOCK IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN
18
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2),
(3) or (7) OF RULE 501 UNDER THE SECURITIES THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE TRUST'S, THE COMPANY'S AND THE TRANSFER
AGENT'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
(j) The Company will, or will cause the Trust to, arrange for
the registration and qualification of the Offered Securities for offering and
sale under the applicable securities or "blue sky" laws of such states and
other jurisdictions as the Initial Purchaser may reasonably designate in
connection with the resale of the Offered Securities as contemplated by this
Agreement and the Final Memorandum and will continue such qualifications in
effect for as long as may be necessary to complete the distribution of the
Offered Securities; PROVIDED that in no event shall the Trust or the Company be
obligated to (i) qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to so qualify but
for this Section 6(j), (ii) file any general consent to service of process in
any jurisdiction where it is not at the Closing Date then so subject or (iii)
subject itself to taxation in any such jurisdiction if it is not so subject.
The Company will, or will cause the Trust to, file such statements and reports
as may be required by the laws of each jurisdiction to continue such
qualification in effect for a period that will terminate when all Offered
Securities to be sold subject to such qualification have been sold or withdrawn.
The Company shall promptly advise the Initial Purchaser of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of the Offered Securities for offering or sale
in any jurisdiction or the institution of any proceeding for such purpose.
19
(k) The Trust will apply the net proceeds from the offering and
sale of the Preferred Securities in the manner set forth in the Final Memorandum
under the caption "Use of Proceeds."
(l) During a period of 90 days from the date hereof, neither the
Trust nor the Company will, without the Initial Purchaser's prior written
consent, directly or indirectly, offer, pledge, sell, sell any option or
contract to purchase any option or contract to sell, contract to sell, grant any
option to sell, or otherwise transfer or dispose of (each such action, a
"Disposition"), (i) any Preferred Securities, any equity security convertible
into or exchangeable into or exercisable for, Preferred Securities, (ii)
Convertible Subordinated Debentures or any debt securities substantially similar
to the Convertible Subordinated Debentures, (iii) any equity securities
substantially similar to the Preferred Securities, except for the Convertible
Subordinated Debentures, Preferred Securities and the Common Securities, (iv)
any preferred stock or any other security of the Company that is substantially
similar to the Preferred Securities, (v) any shares of any class of common stock
of the Company (other than shares of Fleetwood Common Stock issuable upon
conversion of the Preferred Securities or pursuant to the exercise of options
and warrants outstanding as of the date hereof, the grant of stock options or
other stock-based awards (and the exercise or vesting thereof) to directors,
officers and employees of the Company or its subsidiaries or (vi) any other
securities which are convertible into, or exercisable or exchangeable for, any
of such securities; or enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of any equity
securities of the Company, the Trust or any similar trust each, a "Company
Security", whether any such transaction is to be settled by delivery of equity
securities of the Company, the Trust or any similar trust, cash or otherwise.
For the avoidance of doubt, it is acknowledged that debt securities
substantially similar to the Convertible Subordinated Debentures would be debt
securities that have substantially the same rate, maturity and other provisions
as the Convertible Subordinated Debentures.
(m) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay
or cause to be paid, or reimburse if paid by the Initial Purchaser, all costs
and expenses incident to the performance of the obligations of the Trust and the
Company under this Agreement, including but not limited to (i) the preparation
and printing of each Preliminary Memorandum, the Final Memorandum, any amendment
or supplement thereto and the Indenture, (ii) the preparation and delivery of
certificates representing the Trust Securities, (iii) furnishing (including cost
of shipping, mailing and courier) such copies of the Final Memorandum and any
Preliminary Memorandum, and all amendments and supplements thereto, as may be
requested for use in connection with the offering and sale of the Offered
Securities by the Initial Purchaser, (iv) the qualification of the Offered
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions designated pursuant to Section 6(j), including the fees,
disbursements and other charges of counsel to the Initial Purchaser in
connection therewith, and the preparation and printing of preliminary,
supplemental and final Blue Sky memoranda, (v) fees and disbursements of counsel
to the
20
Company and the Trust, (vi) the fees and expenses of the transfer agent and
registrar for the Trust Securities, (vii) any fees charged by rating agencies
with respect to the rating of the Offered Securities by one or more rating
agencies, (viii) the fees and expenses of the Debt Trustee under the
Indenture, the Guarantee Trustee under the Guarantee, the Property Trustee,
the Delaware Trustee and the Regular Trustees under the Declaration and any
agents of such trustees and the fees, disbursements and other charges of
counsel for such trustees in connection with the Indenture, the Guarantee,
the Declaration and the Convertible Subordinated Debentures, and (ix) the
fees and disbursements of the Accountants.
(n) If this Agreement shall be terminated pursuant to any of the
provisions of Section 7 or Section 10 hereof or if for any reason the Company or
the Trust shall be unable to perform its obligations hereunder, the Company or
the Trust will reimburse the Initial Purchaser for all out-of-pocket expenses
(including the fees, disbursements and other charges of counsel to the Initial
Purchaser) reasonably incurred by it in connection herewith.
(o) The Company will not claim the benefit of any usury law
against any holders of Convertible Subordinated Debentures or Preferred
Securities.
7. CONDITIONS OF OBLIGATIONS OF THE INITIAL PURCHASER. The
obligations of the Initial Purchaser to purchase and pay for the Preferred
Securities shall, in its sole discretion, be subject to the satisfaction or
waiver of the following conditions on or prior to the Closing Date:
(a) The Issuance and sale of the Preferred Securities pursuant
to this Agreement and of the Common Securities and the Convertible Subordinated
Debentures shall not be enjoined (temporarily or permanently) and no restraining
order or other injunctive order shall have been issued on any action, suit or
proceeding shall have been commenced with respect to this Agreement before any
court or governmental authority.
(b) Since the respective dates as of which information is given
in the Final Memorandum (i) there shall not have been a material adverse change
in the business, business affairs, business prospects, properties, condition
(financial or otherwise) or results of operations of the Company and its
subsidiaries, considered as one enterprise, whether or not arising from
transactions in the ordinary course of business, in each case other than as set
forth in or contemplated by the Final Memorandum, and (ii) neither the Company
nor any of its subsidiaries shall have sustained any material loss or
interference with its business or properties from fire, explosion, flood or
other casualty, whether or not covered by insurance, or from any labor dispute
or any court or legislative or other governmental action, order or decree, which
is not set forth in the Final Memorandum if, in the sole judgment of the Initial
Purchaser, any such development makes it impracticable or inadvisable to
consummate the sale and delivery of the Offered Securities by the Initial
Purchaser in accordance with the terms and in the manner hereof and thereof.
21
(c) Since the respective dates as of which information is given
in the Preliminary Memorandum, there shall have been no litigation or other
proceeding instituted against the Trust, the Company or any of its subsidiaries
or any of their respective officers or directors in their capacities as such,
before or by any federal, state or local court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, in which
litigation or proceeding an unfavorable ruling, decision or finding could
reasonably be expected to materially and adversely affect the business,
properties, business prospects, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries considered as one enterprise.
(d) Each of the representations and warranties of the Company
and the Trust contained herein shall be true and correct in all material
respects on the Closing Date and, with respect to the Option Securities, on the
Option Closing Date, if applicable, as if made on the Closing Date, or on the
Option Closing Date, if applicable, and all covenants and agreements herein
contained to be performed on the part of the Trust and the Company and all
conditions herein contained to be fulfilled or complied with by the Company or
the Trust on or prior to the Closing Date and, with respect to the Option
Securities, on or prior to the Option Closing Date, if applicable, shall have
been duly performed, fulfilled or complied with.
(e) The Initial Purchaser shall have received an opinion of
Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel for the Trust and the Company,
dated the Closing Date and, with respect to the Option Securities, the Option
Closing Date, addressed to the Initial Purchaser, in form and substance
satisfactory to counsel for the Initial Purchaser and substantially in the form
of Exhibit A.
(f) The Initial Purchaser shall have received an opinion of
Xxxxxxx X. Xxxx, Vice President-General Counsel and Secretary of the Company,
dated the Closing Date and, with respect to the Option Securities, the Option
Closing Date, addressed to the Initial Purchaser, in form and substance
satisfactory to counsel for the Initial Purchaser and substantially in the form
of Exhibit B.
(g) The Initial Purchaser shall have received an opinion of
Morris, Nichols, Arsht & Xxxxxxx, special Delaware counsel to the Trust, dated
the Closing Date and, with respect to the Option Securities, the Option Closing
Date, addressed to the Initial Purchaser, in form and substance satisfactory to
counsel for the Initial Purchaser and substantially in the form of Exhibit C.
(h) The Initial Purchaser shall have received an opinion, dated
the Closing Date and, with respect to the Option Securities, the Option Closing
Date, from Xxxxx & Wood LLP, counsel to the Initial Purchaser, which opinion
shall be satisfactory in form and substance to the Initial Purchaser, with
respect to certain legal matters relating to this Agreement, and such other
related matters as the Initial Purchaser may reasonably require. In rendering
such opinion, Xxxxx & Xxxx LLP shall have received and may rely
22
upon such certificates and other documents and information as they may
reasonably request to pass upon such matters.
(i) At the Closing Time, the Trust shall have received opinions
of Morris, Nichols, Arsht & Xxxxxxx, with respect to the Delaware Trustee, dated
as of the Closing Time substantially in the forms set forth in Exhibit D.
(j) At the Closing Date, the Company shall have received the
favorable opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, special tax counsel to the
Company and the Trust, dated as of the Closing Date substantially in the form
set forth in Exhibit E.
(k) On the Closing Date and any Option Closing Date, the Initial
Purchaser shall have received a certificate of the Company, in its capacity as
Sponsor of the Trust and on its own behalf, signed by the Chairman and Chief
Executive Officer or the President and by the Chief Financial Officer of the
Company, dated the date of its delivery, to the effect that:
(i) Each of the representations and warranties of the
Trust and the Company contained in this Agreement were, when originally
made, and are, at the time such certificate is delivered, true and
correct in all material respects;
(ii) Each of the covenants required herein to be
performed by the Trust and the Company on or prior to the delivery of
such certificate has been duly, timely and fully performed and each
condition herein required to be complied with by the Trust and the
Company on or prior to the date of such certificate has been duly,
timely and fully complied with; and
(iii) Since the respective dates as of which
information is given in the Final Memorandum, (A) there has not been,
and no development has occurred which could reasonably be expected to
result in, a material adverse change in the business, business affairs,
business prospects, properties, condition (financial or otherwise) or
results of operations of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, in each case other than as set forth in or contemplated by
the Final Memorandum and (B) neither the Company nor any of its
subsidiaries has sustained any material loss or interference with its
business or properties from fire, explosion, flood or other casualty,
whether or not covered by insurance, or from any labor dispute or any
court or legislative or other governmental action, order or decree,
which is not set forth in the Final Memorandum.
(l) Concurrently with the execution and delivery of this
Agreement, the Accountants shall have furnished to the Initial Purchaser a
letter, dated the date of its delivery, addressed to the Initial Purchaser and
in form and substance satisfactory to the Initial Purchaser, confirming that
they are independent accountants with respect to the Trust
23
and the Company as required by the Act and the Rules and Regulations and with
respect to the financial and other statistical and numerical information
contained in the Preliminary Memorandum or incorporated by reference therein.
On the Closing Date and, as to the Option Securities, the Option Closing
Date, if applicable, the Accountants shall have furnished to the Initial
Purchaser a letter, dated the date of its delivery, which shall confirm, on
the basis of a review in accordance with the procedures set forth in the
letter from the Accountants, that nothing has come to their attention during
the period from the date of the letter referred to in the prior sentence to a
date (specified in the letter) not more than three days prior to the Closing
Date and the Option Closing Date, if applicable, which would require any
change in their letter dated the date hereof if it were required to be dated
and delivered on the Closing Date and the Option Closing Date, if applicable.
(m) The Offered Securities shall be qualified for sale in such
states as the Representative may reasonably request, each such qualification
shall be in effect and not subject to any stop order or other proceeding on the
Closing Date or the Option Closing Date, if applicable.
(n) The Company and the Trust shall have executed and delivered
to the Initial Purchaser on the Closing Date the Registration Rights Agreement
(the "Registration Rights Agreement").
(o) The Company shall have obtained and delivered to the Initial
Purchaser an agreement from each executive officer and director of the Company
in writing on or prior to the date hereof, in form and substance satisfactory to
counsel for the Initial Purchase and substantially in the form of Exhibit F
hereto.
(p) The Trust and the Company shall have furnished to the
Initial Purchaser such certificates, in addition to those specifically mentioned
herein, as the Initial Purchaser may have reasonably requested as to the
accuracy and completeness on the Closing Date and the Option Closing Date, if
applicable, of any statement in the Final Memorandum or any documents filed
under the Exchange Act and deemed to be incorporated by reference into the Final
Memorandum, as to the accuracy on the Closing Date and the Option Closing Date,
if applicable, of the representations and warranties of the Trust and the
Company herein, as to the performance by the Trust and the Company of their
respective obligations hereunder, or as to the fulfillment of the conditions
concurrent and precedent to the obligations hereunder of the Initial Purchaser,
each in form and substance satisfactory to the Initial Purchaser.
24
8. INDEMNIFICATION.
(a) The Trust and the Company, jointly and severally, will
indemnify and hold harmless the Initial Purchaser, its directors, officers,
employees and agents and each person, if any, who controls the Initial Purchaser
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, liabilities, expenses and damages
(including, but not limited to, any and all investigative, legal and other
expenses reasonably incurred in connection with, and any and all amounts paid in
settlement of, any action, suit or proceeding between any of the indemnified
parties and any indemnifying parties or between any indemnified party and any
third party, or otherwise, or any claim asserted), as and when incurred, to
which the Initial Purchaser, or any such person, may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, liabilities, expenses
or damages arise out of or are based on (i) any untrue statement or alleged
untrue statement of a material fact contained in any Memorandum or in any
application or other document executed by or on behalf of the Company or based
on written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Offered Securities under the securities
laws thereof or filed with the Commission, (ii) the omission or alleged omission
to state in such document a material fact required to be stated in it or
necessary to make the statements in it not misleading or (iii) any act or
failure to act or any alleged act or failure to act by any Initial Purchaser,
its directors, officers, employees and agents and each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, in connection with, or relating in any manner
to, the Preferred Securities, the Guarantee, the Convertible Subordinated
Debentures or the Fleetwood Common Stock or the offering contemplated hereby,
and which is included as part of or referred to in any loss, claim, liability,
expense or damage arising out of or based upon matters covered by clause (i) or
(ii) above (provided that the Trust or the Company shall not be liable under
this clause (iii) to the extent it is finally judicially determined by a court
of competent jurisdiction that such loss, claim, liability, expense or damage
resulted directly form any such acts or failures to act undertaken or omitted to
be taken by such Initial Purchaser through its gross negligence or willful
misconduct); provided that neither the Company nor the Trust will be liable to
the extent that such loss, claim, liability, expense or damage arises from the
sale of the Offered Securities to any person by the Initial Purchaser and is
based on an untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information relating to the Initial
Purchaser furnished in writing to the Company or the Trust by the Initial
Purchaser expressly for inclusion in the Final Memorandum provided, however,
that the foregoing indemnity with respect to the Preliminary Memorandum shall
not inure to the benefit of the Initial Purchaser, or any person controlling
such Initial Purchaser, if the Company had previously furnished copies of the
Final Memorandum to the Initial Purchaser within a reasonable amount of time
prior to the time that written confirmations are sent out to purchasers of the
Offered Securities and if a copy of the Final Memorandum (as then amended or
supplemented) was not sent to or given by or on behalf of such Initial Purchaser
to such person, and was required by law to have been so delivered, at or prior
to the time
25
that written confirmation of the sale of the Preferred Securities was
provided to such person and if the Final Memorandum (as so amended or
supplemented) would have cured the defect given rise to such losses, claims,
damages or liabilities.
This indemnity agreement will be in addition to any liability which the
Trust and the Company might otherwise have including under this Agreement.
(b) The Initial Purchaser will indemnify and hold harmless (i)
the Trust, the Trustees, its officers and any person controlling the Trust
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the Company, its directors, its officers and each other person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, in each case to the same extent as the foregoing
indemnity from the Trust and the Company to the Initial Purchaser, but only
insofar as losses, liabilities, claims, expenses or damages arise out of or are
based upon any untrue statement or omission or alleged untrue statement or
omission, made in reliance on and in conformity with written information
relating to the Initial Purchaser furnished to the Trust or the Company by the
Initial Purchaser expressly for use in the Final Memorandum. This indemnity
will be in addition to any liability that the Initial Purchaser may otherwise
have; provided, however, that in no case shall any Initial Purchaser be liable
or responsible for any amount in excess of the total commissions received by the
Initial Purchaser in connection with the Preferred Securities.
(c) Any party that proposes to assert the right to be
indemnified under this Section 8 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 8, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party
will not relieve it from any liability that it may have to any indemnified party
under the foregoing provisions of this Section 8 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the indemnifying party. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled to participate in and, to the extent
that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel satisfactory to the indemnified party,
and after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based
26
on advice of counsel) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf
of the indemnified party), or (4) the indemnifying party has not in fact
employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of
which cases the reasonable fees, disbursements and other charges of counsel
will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction at any one time
for all such indemnified party or parties. All such fees, disbursements and
other charges will be reimbursed by the indemnifying party promptly as they
are incurred. An indemnifying party will not be liable for any settlement of
any action or claim effected without its written consent (which consent will
not be unreasonably withheld). No indemnifying party shall, without the
prior written consent of each indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim,
action or proceeding relating to the matters contemplated by this Section 6
(whether or not any indemnified party is a party thereto), unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising or that may arise out of such
claim, action or proceeding. Notwithstanding any other provision of this
Section 8(c), if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior
to the date of such settlement.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 8 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Trust and the Company or the
Initial Purchaser, the Trust, the Company and the Initial Purchaser shall
contribute to the aggregate losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Trust or the Company,
any contribution received by the Trust or the Company from persons other than
the Initial Purchaser, such as persons who control the Trust or the Company
within the meaning of the Act and directors and officers of the Company, who may
also be liable for contribution) to which the Trust, the Company and the Initial
Purchaser may be subject in such proportion as is appropriate to reflect the
relative
27
benefits received by the Trust and the Company on the one hand and the
Initial Purchaser on the other. The relative benefits received by the Trust
and the Company on the one hand and the Initial Purchaser on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Preferred Securities (before deducting expenses) received by
the Trust and the Company bear to the total commissions received by the
Initial Purchaser, in each case as set forth in the Final Memorandum. If,
but only if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall be made in
such proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of the
Trust and the Company on the one hand and the Initial Purchaser on the other
with respect to the statements or omissions which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as well as
any other relevant equitable considerations with respect to such offering.
Such relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to information
supplied by the Trust or the Company or the Initial Purchaser, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Trust, the
Company and the Initial Purchaser agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, liability, expense or damage, or action in respect thereof, referred
to above in this Section 8(d) shall be deemed to include, for purpose of this
Section 8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), the
Initial Purchaser shall not be required to contribute any amount in excess of
the total commissions with respect to the offering of the Preferred
Securities received by it, and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8(d), any person
who controls a party to this Agreement within the meaning of the Act will
have the same rights to contribution as that party, and each officer of the
Trust and the Company will have the same rights to contribution as the Trust
and the Company, respectively, subject in each case to the provisions hereof.
Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for
contribution may be made under this Section 8(d), will notify any such party
or parties from whom contribution may be sought, but the omission so to
notify will not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have under this Section 8(d).
Except for a settlement entered into pursuant to the last sentence of Section
8(c) hereof, no party will be liable for contribution with respect to any
action or claim settled without its written consent (which consent will not
be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Trust and the Company
and the Initial
28
Purchaser contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any investigation made by or on behalf of
the Initial Purchaser, (ii) acceptance of any of the Offered Securities and
payment therefor, or (iii) any termination of this Agreement.
9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties, covenants and agreements of the Trust and the
Company and the Initial Purchaser herein or in certificates delivered pursuant
hereto, and the indemnity and contribution agreements contained in Section 8
hereof shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Initial Purchaser or any person
controlling the Initial Purchaser within the meaning of the Act or the Exchange
Act, or by or on behalf of the Trust and the Company or any of their respective
officers, trustees, directors or controlling persons within the meaning of the
Act or the Exchange Act, and shall survive the delivery of the Offered
Securities to the Initial Purchaser hereunder or termination of this Agreement.
10. TERMINATION. (a) The obligations of the Initial Purchaser under
this Agreement may be terminated at any time on or prior to the Closing Date
(or, with respect to the Option Securities, on or prior to the Option Closing
Date), by notice to the Trust and the Company from the Initial Purchaser,
without liability on the part of the Initial Purchaser to the Trust or the
Company, if, prior to delivery and payment for the Firm Securities (or the
Option Securities, as the case may be), in the sole judgment of the Initial
Purchaser, (i) there has been, since the respective dates as of which
information is given in the Final Memorandum, any material adverse change in the
Company's business, properties, business prospects, condition (financial or
otherwise) or results of operations, (ii) trading in any of the securities of
the Company shall have been suspended by the Commission, by an exchange that
lists the securities or by the Nasdaq Stock Market, (iii) trading in securities
generally on the NYSE or the Nasdaq shall have been suspended or limited or
minimum or maximum prices shall have been generally established on such
exchange, or additional material governmental restrictions, not in force on the
date of this Agreement, shall have been imposed upon trading in securities
generally by such exchange or by order of the Commission or any court or other
governmental authority, (iv) a general banking moratorium shall have been
declared by either Federal or New York State authorities, or (v) any material
adverse change in the financial or securities markets in the United States or in
political, financial or economic conditions in the United States or any outbreak
or material escalation of hostilities or declaration by the United States of a
national emergency or war or other calamity or crisis shall have occurred, the
effect of any of which is such as to make it, in the sole judgment of the
Initial Purchaser, impracticable or inadvisable to market the Offered Securities
on the terms and in the manner contemplated by the Final Memorandum.
(b) Termination of this Agreement pursuant to this Section 10 or
Section 7 hereof shall be without liability of any party to any other party
except as provided in Sections 6 and 8 hereof.
29
11. MISCELLANEOUS. All notices given pursuant to any of the
provisions of this Agreement shall be in writing and, unless otherwise specified
herein, shall be mailed or delivered (a) if to the Trust, at 0000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx, Senior Vice President-
Finance, or (b) if to the Company, at the office of the Company, 0000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxx, Vice President-
General Counsel and Secretary or (c) if to the Initial Purchaser, to the Initial
Purchaser at the offices of PaineWebber Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Department.
Any such notice shall be effective only upon receipt. Any notice under Section
7 or 8 may be made by facsimile, telex or telephone, but if so made shall be
subsequently confirmed in writing.
This Agreement has been and is made solely for the benefit of the
Initial Purchaser and the Trust and the Company and of the controlling persons,
Trustees, directors and officers referred to in Section 8, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" as used
in this Agreement shall not include a purchaser, as such purchaser, of Offered
Securities from the Initial Purchaser.
All representations, warranties and agreements of the Trust and the
Company contained herein or in certificates or other instruments delivered
pursuant hereto, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Initial Purchaser or any of its
controlling persons and shall survive delivery of and payment for the Preferred
Securities hereunder.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
The Trust, the Company and the Initial Purchaser each hereby
irrevocably waives any right it may have to trial by jury in respect of any
claim based upon or arising out of this Agreement or the transactions
contemplated hereby.
This Agreement may not be amended or otherwise modified or any
provision hereof waived except by an instrument in writing signed by the Initial
Purchaser, the Trust and the Company.
30
Please confirm that the foregoing correctly sets forth the agreement among
the Trust, the Company and the Initial Purchaser.
Very truly yours,
FLEETWOOD CAPITAL TRUST
a Delaware business trust
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Xxxx X. Xxxxxxx
Regular Trustee
FLEETWOOD ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
President
Confirmed as of the date first
above mentioned:
PAINEWEBBER INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
Vice President
Schedule A
Fleetwood Motor Homes of California, Inc.
Fleetwood Motor Homes of Indiana, Inc.
Fleetwood Homes of Georgia, Inc.
Exhibit A
[FORM OF OPINION OF XXXXXX, XXXX & XXXXXXXX LLP
PURSUANT TO SECTION 7(E)]
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation.
2. The Company has corporate power to own its properties and conduct its
business as described in the Final Memorandum, and the Company has corporate
power to issue the Convertible Subordinated Debentures, to enter into the
Purchase Agreement, the Guarantee Agreement, the Indenture, the Declaration and
the Registration Rights Agreement and to perform its obligations thereunder.
3. The execution and delivery of the Indenture have been duly authorized
by all necessary corporate action of the Company, and the Indenture has been
duly executed and delivered by the Company, and is a legal, valid, binding and
enforceable agreement of the Company.
4. The execution and delivery of the Convertible Subordinated Debentures
have been duly authorized by all necessary corporate action of the Company, and
the Convertible Subordinated Debentures have been duly executed and delivered by
the Company and are the legal, valid, binding and enforceable obligations of the
Company, entitled to the benefits of the Indenture.
5. The execution and delivery of the Declaration have been duly authorized
by all necessary corporate action of the Company, and the Declaration has been
duly executed and delivered by the Company.
6. The execution and delivery of the Guarantee Agreement has been duly
authorized by all necessary corporate action of the Company, and the Guarantee
Agreement has been duly executed and delivered by the Company, and is a legal,
valid, binding and enforceable agreement of the Company.
7. The holders of outstanding shares of capital stock of the Company are
not entitled to any preemptive rights under the Certificate of Incorporation or
By-Laws of the Company or the law of Delaware to subscribe for the Preferred
Securities, the Convertible Subordinated Debentures or the Fleetwood Common
Stock; and the Fleetwood Common Stock into which the Convertible Subordinated
Debentures are convertible at the initial conversion price have been duly
authorized by all necessary corporate action of the Company and reserved for
issuance upon conversion and, upon issuance thereof on conversion of the
Convertible Subordinated Debentures in accordance with the Indenture and the
terms of the
Convertible Subordinated Debentures at conversion prices at or in excess of
the par value of such Fleetwood Common Stock, will be validly issued, fully
paid and nonassessable.
8. The statements set forth under the headings "Description of the
Preferred Securities", "Description of the Guarantee", "Description of the
Convertible Subordinated Debentures", "Effect of Obligations under the
Convertible Subordinated Debentures and the Guarantee" and "Description of
Fleetwood Capital Stock" in the Final Memorandum, insofar as such statements
purport to summarize certain provisions of the Trust Securities, the Convertible
Subordinated Debentures, the Guarantees, the Indenture, the Declaration and the
Certificate of Incorporation of the Company, provide a fair summary of such
provisions.
9. The execution and delivery of the Purchase Agreement have been duly
authorized by all necessary corporate action of the Company, and the Purchase
Agreement has been duly executed and delivered by the Company.
10. The execution and delivery of the Registration Rights Agreement have
been duly authorized by all necessary corporate action of the Company, and the
Registration Rights Agreement has been duly executed and delivered by the
Company and is a legal, valid, binding and enforceable agreement of the Company
(except that we express no opinion with respect to Section 5 of the Registration
Rights Agreement providing for indemnification and contribution).
11. Assuming the execution and delivery of the Registration Rights
Agreement have been duly authorized by the Trust, and assuming the Registration
Rights Agreement has been duly executed and delivered by the Trust, the
Registration Rights Agreement is a legal, valid, binding and enforceable
agreement of the Trust (except that we express no opinion with respect to
Section 5 of the Registration Rights Agreement providing for indemnification and
contribution).
12. The issuance and sale of the Preferred Securities by the Trust to the
Initial Purchasers pursuant to the Purchase Agreement, the performance by the
Trust and the Company of their respective obligations in the Purchase Agreement,
the Indenture, the Convertible Subordinated Debentures, the Guarantee, the
Declaration, the Trust Securities and the Registration Rights Agreement and the
application of the net proceeds of the Convertible Subordinated Debentures by
the Company in the manner described in the Final Memorandum do not require any
consent, approval, authorization, registration or qualification of or with any
governmental authority of the United States or the State of New York, except
such as may be required pursuant to the Registration Rights Agreement (but we
express no opinion as to any consent, approval, authorization, registration or
qualification that may be required under state securities or Blue Sky laws).
13. When the Preferred Securities, the Preferred Securities Guarantee
Agreement and the Convertible Subordinated Debentures are issued and delivered
pursuant to the Purchase Agreement, such securities will not be of the same
class (within the meaning of Rule 144A under the Securities Act of 1933, as
amended (the "Securities Act")) as securities of the Company listed on a
national securities exchange registered under Section 6 of the Securities
Exchange Act of 1934, as amended, or quoted in a U.S. automated inter-dealer
quotation system.
14. Assuming the accuracy of the representations and warranties and
compliance with the agreements contained in the Purchase Agreement, and except
as may be required pursuant to the Registration Rights Agreement, no
registration of the Preferred Securities, the Preferred Securities Guarantee
Agreement, the Convertible Subordinated Debentures or the Fleetwood Common Stock
under the Securities Act, and no qualification of the Declaration, the Preferred
Securities Guarantee Agreement or the Indenture under the Trust Indenture Act of
1939, as amended, are required for the offer and sale of the Preferred
Securities to the Initial Purchaser and the subsequent resale by the Initial
Purchaser in the manner contemplated in the Final Memorandum.
15. Neither the Company nor the Trust is an "investment company" and the
Company is not a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
Insofar as the foregoing opinions relate to the valid existence and good
standing of the Company, they are based solely on a certificate of good standing
received from the Secretary of State of the State of Delaware. So far as the
foregoing opinions relate to the legal, valid, binding effect or enforceability
of any agreement or obligation of the Company or the Trust, (a) we have assumed
that each other party to such agreement or obligation has satisfied those legal
requirements that are applicable to it to the extent necessary to make such
agreement or obligation enforceable against it, and (b) such opinions are
subject to (i) bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally, (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and (iii) with respect to rights to indemnity or contribution,
may be limited to applicable law or by the policies underlying such laws.
Such counsel may also state that in connection with their participation in
the preparation of the Final Memorandum, such counsel has not independently
verified the accuracy, completeness or fairness of the statements contained
therein, and that the limitations inherent in the examination made by them and
the knowledge available to them are such that they are unable to assume, and do
not assume, any responsibility for the accuracy, completeness or fairness of the
statements contained in the Final Memorandum (except as otherwise expressly
stated in opinion 8 above). However, on the basis of such counsel's review of
the Final Memorandum and their participation in conferences in connection with
the preparation of the Final Memorandum, such counsel shall state that they do
not believe that the Final Memorandum, as of its date or as of the date hereof,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion or belief with
respect to the financial statements and other financial and statistical
information included in the Final Memorandum).
The foregoing opinions are limited to the federal law of the United States
of America, the law of the State of New York and the General Corporation Law of
the State of Delaware.
We are furnishing this opinion letter to you, as the Initial Purchaser,
solely for your benefit connection with the offering of the Preferred
Securities. This opinion letter is not to be used, circulated, quoted or
otherwise referred to for any other purpose.
Exhibit B
[FORM OF OPINION OF XXXXXXX X. XXXX,
VICE PRESIDENT-GENERAL COUNSEL AND SECRETARY
OF THE COMPANY PURSUANT TO SECTION 7(f)]
1. Each of the subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, with corporate power to own or lease its assets and conduct
its business as described in the Final Memorandum, except where the failure to
have such power and authority would not have a Material Adverse Effect;
2. The Company and each of the subsidiaries is duly qualified to do
business as a foreign corporation and is in good standing under the laws of all
other jurisdictions in the United States where the ownership or leasing of its
respective assets or the conduct of its business as described in the Final
Memorandum requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect;
3. All of the issued and outstanding capital stock of each of the
subsidiaries has been duly authorized and validly issued, is fully paid and
nonassessable and, except as set forth in the Final Memorandum is owned
beneficially and of record directly or indirectly by the Company free and clear
of all security interests, pledges, liens, encumbrances, equities or claims
(collectively, "Liens"), except for such Liens as would not have a Material
Adverse Effect;
4. Other than as described in the Final Memorandum, no legal, regulatory
or governmental proceedings are pending or, to my knowledge, threatened to which
the Company or any of its subsidiaries is a party or to which the assets of the
Company or any of the subsidiaries are subject which, individually or in the
aggregate, would have a Material Adverse Effect;
5. To my knowledge, none of the Company or any of the subsidiaries is,
except as disclosed in the Final Memorandum, in default (or, with notice or
lapse of time or both, would be in default) in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan agreement, note, lease or
other instrument to which it is a party or by which it is bound, or to which any
of its respective assets is subject, or in violation of any law, statute,
judgment, decree, order, rule or regulation of any domestic or foreign court
with jurisdiction over the Company or any of its subsidiaries or any of their
respective assets, or other governmental or regulatory authority, agency or
other body, other than such defaults or violations which, individually or in the
aggregate, would not have a Material Adverse Effect; and
6. To my knowledge, the issuance, sale and delivery of the Offered
Securities, the execution, delivery and performance by the Company and the Trust
of the Purchase
Agreement and the Registration Rights Agreement, the filing of the
Declaration with the Secretary of State of the State of Delaware, the
consummation by the Company and the Trust of the transactions contemplated by
such documents and the application of the proceeds from the sale of the
Offered Securities as contemplated by the Final Memorandum do not, and, at
the Closing Date will not, conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets of the Company or any of its subsidiaries
pursuant to, any material contract, indenture, mortgage, loan agreement,
note, lease other instrument to which the Company or any of its subsidiaries
is a party or by which any of them is bound, or to which any of the assets of
the Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the charter of the Company or
any of its subsidiaries or any applicable law, administrative regulation or
administrative or court decree.
Insofar as the foregoing opinions relate to the valid existence and good
standing of the subsidiaries, they are based solely on certificates of good
standing received from the competent official of the respective jurisdiction in
which each of such subsidiaries was organized and on a telephonic confirmation
from the office of such. Insofar as the foregoing opinions relate to
qualification to do business of the Company and the subsidiaries, they are based
solely on certificates of foreign qualification received from the office of the
applicable official in each jurisdiction, office, although I have made inquiry
as to the jurisdictions in the United States in which the Company and its
subsidiaries conduct business.
I participated in conferences and telephone conversations with officers and
other representatives of the Company (including Xxxxxx, Xxxx & Xxxxxxxx LLP),
representatives of the independent public accountants for the Company, your
representatives and representatives of your counsel, during which conferences
and conversations the contents of the Final Memorandum and related matters were
discussed, and I reviewed certain corporate records and documents of the
Company.
Based on my participation in such conferences and conversations and my
review of such documents, I advise you that no information has come to my
attention that has caused me to believe that the Final Memorandum (except the
financial statements and other financial and statistical data of a financial
nature included therein, as to which we express no view), as of the date thereof
or hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
The foregoing opinions are limited to the federal law of the United States
of America, the General Corporation Law of the State of Delaware and the law of
the State of California.
I am furnishing this opinion letter to you, as the Initial Purchaser,
solely for your benefit in connection with the offering of the Preferred
Securities. This opinion letter is not to be used, circulated, quoted, filed
with any governmental authority or otherwise referred to for any other purpose.
Exhibit C
[FORM OF OPINION OF MORRIS, NICHOLS, ARSHT & XXXXXXX,
SPECIAL COUNSEL TO THE TRUST AND THE COMPANY]
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, and all
filings required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust have been made.
2. The Declaration constitutes a valid and binding obligation of the
Company and each of the Regular Trustees, and is enforceable against the Company
and each of the Regular Trustees, in accordance with its terms, except as such
enforceability may be limited by (A) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other laws of general application relating
to or affecting the enforcement of creditors' rights and remedies, (B)
application of equitable principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law) and (C) considerations of
public policy or the effects of applicable law relating to fiduciary duties.
3. Under the Delaware Business Trust Act and the Declaration, the
Trust has the trust power and authority (A) to execute and deliver, and to
perform its obligations under, the Purchase Agreement, (B) perform its
obligations under the Declaration, (C) issue the Securities and (D) purchase and
hold the Debentures.
4. The execution and delivery of the Purchase Agreement by the Trust
and the performance of its obligations thereunder have been duly authorized by
all necessary trust action on the part of the Trust.
5. The Common Securities have been duly authorized by the
Declaration for issuance and, when issued and sold in accordance with the
Declaration, will be validly issued undivided beneficial interests in the assets
of the Trust.
6. The Preferred Securities have been duly authorized by the
Declaration for issuance and, when issued, delivered and paid for in accordance
with the terms of the Declaration, will be validly issued and, subject to the
terms of the Declaration and the further qualifications set forth herein, fully
paid and non-assessable undivided beneficial interests in the assets of the
Trust. Under the Delaware Business Trust Act and the Declaration, the holders
of the Preferred Securities will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware; provided that we
express no opinion as to any Holder of Preferred Securities that is, was or
becomes a named Trustee of the Trust. We note that the Holders of Preferred
Securities may be subject to the withholding provisions of Section 11.4 of the
Declaration and may be required to make payment or provide indemnity or security
as set forth in the Declaration.
7. Under the Delaware Business Trust Act and the Declaration, the
issuance of the Preferred Securities is not subject to preemptive rights.
8. The issuance and sale by the Trust of the Preferred Securities,
the execution, delivery and performance by the Trust of the Purchase Agreement,
the consummation by the Trust of the transactions contemplated thereby and
compliance by the Trust with its obligations thereunder do not (A) result in any
violation of the Declaration or the Certificate or any applicable Delaware law
(statutory or decisional) or any rule or regulation of any Delaware governmental
agency or (B) require the approval of any Delaware governmental agency.
9. No authorization, approval, consent or order of any Delaware
governmental authority or agency is required to be obtained by the Trust solely
in connection with the issuance and sale of the Preferred Securities, except
such as may be required under Delaware securities or blue sky laws.
10. Assuming that the Trust derives no income from or connected with
services provided within the State of Delaware and has no assets, activities
(other than maintaining the Delaware Trustee and the filing of documents with
the Secretary of the Stare of the State of Delaware) or employees in the State
of Delaware, the Trust's Security Holders (other than Holders of Securities, or
Persons who are partners or S corporation shareholders for federal income tax
purposes in such Holders of Securities, who reside or domiciled in the State of
Delaware or who are otherwise subject to income taxation in the State of
Delaware) will have no liability for income taxes imposed by the State of
Delaware solely as a result of their participation in the Trust, and the Trust
will not be liable for any income tax imposed by the State of Delaware.
Exhibit D
[FORM OF OPINION OF MORRIS, NICHOLS, ARSHT & XXXXXXX,
WITH RESPECT TO THE DELAWARE TRUSTEE
PURSUANT TO SECTION 7(i)]
1. The Bank of New York, Delaware is duly incorporated and is
validly existing in good standing as a banking corporation with trust powers
under the laws of the State of Delaware.
2. The Bank of New York, Delaware has the corporate and trust power
and authority to execute, deliver and perform its obligations under the
Declaration.
3. The Declaration constitutes a legal, valid and binding
obligation of The Bank of New York, Delaware, enforceable against The Bank of
New York, Delaware, in accordance with its terms, except as such enforceability
may be limited by (A) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other laws of general application relating to or
affecting the enforcement of creditors' rights and remedies, (B) application of
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and (C) considerations of public policy or the
effects of applicable law relating to fiduciary duties.
4. The execution, delivery and performance by The Bank of New York,
Delaware of the Declaration does not violate the charter or by-laws of The Bank
of New York, Delaware.
5. No consent, approval or authorization of, or registration with or
notice to, any governmental authority or agency of the State of Delaware is
required to be obtained by The Bank of New York, Delaware solely in connection
with the execution, delivery or performance by The Bank of New York, Delaware of
the Declaration.
Exhibit E
[FORM OF OPINION OF XXXXXX, XXXX & XXXXXXXX LLP,
SPECIAL TAX COUNSEL TO THE TRUST AND THE COMPANY
PURSUANT TO SECTION 7(j)]
1. The Trust will be characterized as a grantor trust for U.S.
federal income tax purposes and not as a partnership or as an association
subject to tax as a corporation;
2. The Convertible Subordinated Debentures will constitute
indebtedness of the Company; and
3. The discussion set forth in the Final Memorandum under the
caption "Certain Federal Tax Consequences," to the extent it constitutes
summaries of legal matters or legal conclusions, is accurate in all material
respects.
Exhibit F
[FORM OF LOCK-UP LETTER]
February __, 1998
PAINEWEBBER INCORPORATED
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
In consideration of the agreement of PaineWebber Incorporated (the
"Initial Purchaser") to enter into a purchase agreement (the "Purchase
Agreement) with Fleetwood Capital Trust, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), and Fleetwood Enterprises,
Inc., a corporation incorporated under the laws of the State of Delaware (the
"Company"), providing for the offering of the 6% Convertible Trust Preferred
Securities (the "Preferred Securities") of the Trust, guaranteed by and
convertible into common stock, par value $1.00 share of the Company, as
contemplated by the final offering memorandum dated February 4, 1998 (the "Final
Memorandum"), the undersigned hereby agrees that the undersigned will not, for a
period of 90 days after the date of the Purchase Agreement, without the prior
written consent of PaineWebber Incorporated, (i) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option to purchase or otherwise transfer or dispose
of any Preferred Securities, any equity securities of the Company, the Trust or
any similar trust or any securities convertible into or exchangeable or
exercisable for any equity securities of the Company, the Trust or any similar
trust or (ii) enter into any swap or other agreement that transfers, in whole or
in part, any of the economic consequences of ownership of any equity securities
of the Company, the Trust or any similar trust, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of equity
securities of the Company, the Trust or any similar trust, other securities,
cash or otherwise, of which the undersigned is now, or may in the future become,
the beneficial owner within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934.
Very truly yours,
By:
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Print Name:
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