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EXHIBIT 1.2
FLEETWOOD ENTERPRISES, INC.,
FLEETWOOD CAPITAL TRUST II
and
BANC OF AMERICA SECURITIES LLC
Distribution Agreement
dated as of December 5, 2001
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DISTRIBUTION AGREEMENT
December 5, 2001
BANC OF AMERICA SECURITIES LLC
9 West 57th Street
New York, New York 10019
Ladies and Gentlemen:
1. INTRODUCTORY. Fleetwood Enterprises, Inc., a Delaware
corporation (the "Company") proposes to offer for sale up to $50.0 million in
aggregate liquidation amount of 9.75% Convertible Trust Preferred Securities
due February 15, 2013 (the "Additional Securities") of Fleetwood Capital
Trust II (the "Trust"). The Additional Securities will be guaranteed by a
guarantee (the "Guarantee") by the Company to the extent described in the
Prospectus (as hereinafter defined) and will be identical in all respects to
the securities (the "Exchange Securities") offered in the Company's exchange
offer as described in the Prospectus (the "Exchange Offer"). The cash offer
described above and in the Prospectus (as hereinafter defined) is herein
referred to as the "Cash Offer." In connection with the Cash Offer, the
Company will deposit in the Trust as trust assets its 9.75% Convertible
Subordinated Debentures due February 15, 2013 (the "Debentures") issued
pursuant to an Indenture (the "Indenture") between the Company and the Debt
Trustee (as defined in the Indenture) and the Trust will transfer to the
Company the Additional Securities and its common securities (the "Common
Securities"), as set forth in the Prospectus.
2. ENGAGEMENT AS PLACEMENT AGENT. By this Distribution Agreement
(the "Agreement"), each of the Company and the Trust hereby engages and appoints
you as the exclusive placement agent (the "Placement Agent") for the Cash Offer
and authorizes you to act as such in connection with the Cash Offer.
(a) Subject to the terms and conditions stated herein, the Company
hereby agrees that the Additional Securities issued in the Cash Offer will be
sold exclusively through the Placement Agent. Accordingly, the Company agrees
that it will not appoint any other agent to act on its behalf, or assist it in
the placement
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of the Additional Securities in the Cash Offer. Nothing in this Agreement
shall constitute the Placement Agent a partner or joint venturer with the
Trust, the Company or any of its subsidiaries. On the basis of the
representations and warranties and agreements of each of the Company and the
Trust contained herein and subject to and in accordance with the terms and
conditions hereof and of the Cash Offer, the Placement Agent agrees to use
its best efforts to obtain purchases for any and all of the Additional
Securities at a price of $20.0 per Additional Security.
(b) The Company shall not sell or approve the solicitation of offers
for the purchase of Additional Securities in excess of the amount which shall be
authorized by the Company or in excess of the aggregate offering price of the
Additional Securities registered pursuant to the Registration Statement (as
hereinafter defined).
3. REGISTRATION STATEMENT AND PROSPECTUS. (a) The Company and the
Trust have prepared and filed with the Securities and Exchange Commission (the
"Commission"), under the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder (collectively, the
"Securities Act"), a combined registration statement on Form S-4 (Reg. No.
333-62838) and Form S-3 (Reg. No. 333-62850), including a Prospectus (as
hereinafter defined), covering the registration of the Additional Securities,
the Guarantee, the Debentures, the shares of the common stock, par value $1.00
per share of the Company (the "Fleetwood Common Stock"), issuable upon
conversion of the Additional Securities and the Debentures (the "Conversion
Shares"), and the shares of Fleetwood Common Stock (the "Interest Shares" and
together with the "Conversion Shares", the "Shares") that may be issued solely
at the Company's option as payment of interest on the Debentures in accordance
with the terms of the Indenture. The term "Registration Statement," as used in
this Agreement, shall mean such registration statement, including the exhibits
thereto and any documents incorporated by reference therein, in the form in
which it becomes effective and, in the event of any amendment or supplement
thereto or the filing of any abbreviated registration statement pursuant to Rule
462(b) of the Securities Act relating thereto after the effective date of such
registration statement, shall also mean (from and after the effectiveness of
such abbreviated registration statement) such registration statement as so
amended or supplemented, together with any such abbreviated registration
statement. The final prospectus included in the Registration Statement
(including any documents incorporated in the Prospectus by reference) is herein
called the "Prospectus," except that if the final prospectus furnished to the
Placement Agent for use in connection with the Cash Offer differs from the
prospectus set forth in the Registration Statement (whether or not such
prospectus is required to be filed pursuant to Rule 424(b)), the term
"Prospectus" shall refer to the final prospectus
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furnished to the Placement Agent for such use. The terms "supplement" and
"amendment" or "supplemented" and "amended" as used herein with respect to the
Prospectus shall include all documents deemed to be incorporated by reference in
the Prospectus that are filed subsequent to the date of the Prospectus and prior
to the termination of the Cash Offer by the Company with the Commission pursuant
to the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder (the "Exchange Act").
4. USE OF THE PROSPECTUS AND REGISTRATION STATEMENT. (a) The
Prospectus has been or will be prepared and approved by, and is the sole
responsibility of, the Company and the Trust. The Company shall, to the extent
permitted by law, use its best efforts to disseminate the Prospectus to each
registered holder of any of the outstanding 6% Convertible Preferred Securities
due February 15, 2028 (the "Existing Securities") of Fleetwood Capital Trust
(the "Existing Trust"), as soon as practicable after the date of commencement of
the Exchange (the "Commencement Date"), pursuant to Rule 13e-4 under the
Exchange Act and comply in all material respects with its obligations
thereunder. Thereafter, to the extent practicable until three days prior to the
expiration date of the Cash Offer, the Company shall use its best efforts to
cause copies of such Prospectus and a return envelope to be mailed to each
person who becomes a holder of record of any Existing Securities. The Company
and the Trust acknowledge and agree that you may use the Prospectus as specified
herein without assuming any responsibility for independent verification on your
part and the Company and the Trust represent and warrant to you that you may
rely on the accuracy and completeness of any information delivered to you by or
on behalf of the Company or the Trust without assuming any responsibility for
independent verification of such information or without performing or receiving
any appraisal or evaluation of the assets or liabilities of the Company or the
Trust.
(b) The Company and the Trust agree to provide you with as many
copies as you may reasonably request of the Prospectus and the Registration
Statement. The Company and the Trust agree that within a reasonable time prior
to using or filing with any federal, state or other governmental or regulatory
agency or instrumentality (an "Other Agency"), including the National
Association of Securities Dealers Inc. (the "NASD"), of the Prospectus and
Registration Statement, it will submit copies of such materials to you and your
counsel and will give reasonable consideration to you and your counsel's
comments, if any, thereon. The Company and the Trust agree prior to the
termination of the Cash Offer, before amending or supplementing the Registration
Statement, or the Prospectus, to furnish copies of drafts to, and consult with,
the Placement Agent and its counsel within a reasonable time in advance of
filing with the Commission of any amendment or supplement to the Registration
Statement or the Prospectus. Neither the Company nor the Trust shall file any
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such amendment or supplement to which the Placement Agent shall reasonably
object.
(c) The Company has furnished or shall use its best efforts to
furnish to you, or cause the transfer agents or registrars for the Existing
Securities to furnish to you, as soon as practicable after the date hereof (to
the extent not previously furnished), cards or lists in reasonable quantities or
copies thereof showing the names of persons who were the holders of record or,
to the extent available, the beneficial owners of the Existing Securities as of
a recent date, together with their addresses and the number of Existing
Securities held by them. Additionally, the Company and the Trust shall update,
or cause the transfer agents or registrars referred to above to update, such
information from time to time during the term of this Agreement as may be
reasonably requested by you. Except as otherwise provided herein, you agree to
use such information only in connection with the Cash Offer.
(d) The Company and the Trust authorize the Placement Agent to use
the Prospectus in connection with the Cash Offer and for such period of time as
any such materials are required by law to be delivered in connection therewith.
(e) The Company and the Trust agree that any reference to the
Placement Agent in any Prospectus or in any newspaper announcement or press
release or other document or communication is subject to the Placement Agent's
prior consent, which consent shall not be unreasonably withheld.
5. WITHDRAWAL. In the event that either the Company or the Trust
(i) uses or permits the use of, or files with the Commission or any Other
Agency, any amendment or supplement to the Registration Statement and any such
document (a) has not been previously submitted to you for your and your
counsel's comments or (b) has been so submitted, and you or your counsel have
made comments which have not been reflected in a manner reasonably satisfactory
to you or your counsel; or (ii) shall have breached, in any material respect,
any of its representations, warranties, agreements or covenants herein; or (iii)
amend or revise the Cash Offer in a manner not reasonably acceptable to you;
then you shall be entitled upon written notice to the Company or the Trust to
withdraw as Placement Agent in connection with the Cash Offer without any
liability or penalty to you or any other indemnified person (as defined in
Section 11 below) and without loss of any right to indemnification or
contribution provided in Section 11 or to the payment of all fees and expenses
payable pursuant to Sections 6 and 7 below which have accrued through the date
of such withdrawal (it being agreed that in the event of any such withdrawal,
for the purpose of determining the fees payable to you pursuant to Section 6,
the aggregate liquidation amount of Additional Securities for which indications
of interest have
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been submitted pursuant to the Cash Offer as of the close of business on the
date of such withdrawal which is thereafter sold by the Trust, the Company or
any of its subsidiaries or affiliates pursuant to the Cash Offer or otherwise,
shall be deemed to have been sold as of the date of such withdrawal).
6. FEES. In connection with the Cash Offer, the Company and the
Trust, jointly and severally, agree to pay a fee to the Placement Agent in an
amount as set forth in a separate letter agreement, dated June 12, 2001, between
the Company and the Placement Agent (the "Engagement Letter").
7. EXPENSES AND REIMBURSEMENT OF EXPENSES. The Company and the
Trust, jointly and severally, agree to pay all costs, fees and expenses incurred
in connection with the performance of their obligations hereunder and in
connection with the transactions contemplated hereby, including without
limitation (i) all expenses incident to the preparation, issuance, execution and
delivery of the Additional Securities, (ii) all advertising expenses related to
the Cash Offer and all fees and expenses incurred in marketing the Cash Offer,
including but not limited to road show presentations, if any, (iii) all fees and
expenses of the registrar and transfer agent, the exchange agent and the
information agent, (iv) all fees and expenses of the Company's and the Trust's
counsel, independent public or certified public accountants and other advisors,
(v) all fees, costs and expenses incurred in connection with (a) the
registration or qualification of the Additional Securities under the laws of
such jurisdictions as the Placement Agent may designate (including, without
limitation, reasonable fees of counsel for the Placement Agent and its
reasonable disbursements), and (b) any filing with the NASD, (vi) all costs and
expenses incurred in connection with the preparation, printing and filing under
the Securities Act of the Registration Statement and the Prospectus (including
financial statements, exhibits, schedules, consents and certificates of experts,
and amendments and supplements thereto), (vii) all costs and expenses incurred
in connection with the printing (including word processing and duplication
costs), shipping, distribution and delivery of the Prospectus and Registration
Statement (including, without limitation, any preliminary and supplemental blue
sky memoranda), (viii) all costs and expenses incurred by dealers and brokers
(including yourself), commercial banks, trust companies and nominees for their
customary mailing and handling expenses incurred in forwarding the Prospectus to
their customers, and (ix) the fees and expenses of the trustees of the Trust
under the Declaration (as hereinafter defined) (the "Trustees") or the Debt
Trustee under the Indenture, the Guarantee Trustee under the Guarantee 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 Debentures. In addition, the Company and the Trust, jointly
and severally, agree to reimburse the reasonable documented out-of-pocket
expenses of the Placement Agent incurred in connection with the Cash
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Offer (including, without limitation, the reasonable documented out-of-pocket
legal fees and expenses of the Placement Agent's counsel in connection with the
Cash Offer).
8. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE
COMPANY AND THE TRUST. Each of the Company and the Trust jointly and severally
represents and warrants to you, and agrees with you, that as of the Commencement
Date and at all times on or prior to date when the Cash Offer is consummated
(the "Closing Date"):
(a) The Registration Statement, including the Prospectus, has been
prepared by the Company in conformity in all material respects with the
requirements of the Securities Act and has been filed with the Commission as of
the Commencement Date and will become effective not later than the expiration
date of the Exchange Offer. Such amendments to such Registration Statement and
Prospectus and such abbreviated registration statements pursuant to Rule 462(b)
of the Securities Act as may have been required prior to the date hereof have
been similarly prepared and filed with the Commission; and the Company will file
such additional amendments to such Registration Statement and Prospectus and
such abbreviated registration statements as may hereafter be required. Copies of
such Registration Statement and Prospectus, including all amendments thereto and
all documents incorporated by reference therein, and of any abbreviated
registration statement pursuant to Rule 462(b) of the Securities Act have been
or, if filed after the Commencement Date, will be, delivered or made available
to you and your counsel. No stop order refusing or suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any
Prospectus is in effect, and no proceedings for such purpose have been
instituted or are pending before or are threatened by the Commission.
(b) (i) The Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply, in all material
respects, with the Securities Act, the Exchange Act and the Trust Indenture Act
of 1939, as amended, and the applicable rules and regulations of the Commission
thereunder (the "Trust Indenture Act"); (ii) the Registration Statement, when it
becomes effective, will not contain and as amended or supplemented thereafter,
if applicable, will not contain, any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; (iii) neither the Prospectus nor the
Registration Statement contains, and, as amended or supplemented, if applicable,
will 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 warranties set forth in this paragraph 8(b) do not apply to
statements or omissions in the Registration
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Statement or the Prospectus, or, in each case, any amendment or supplement
thereto, based upon information relating to the Placement Agent furnished to the
Company in writing by the Placement Agent expressly for use therein; and (iv)
there are no agreements, leases, contracts or other documents required to be
described in the Prospectus or to be filed as exhibits to the Registration
Statement which have not been so described or filed.
(c) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement or the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act, and, when read
together with the other information in the Registration Statement or the
Prospectus, as the case may be, at the time the Registration Statement and any
amendments thereto become effective and at the Commencement Date and the Closing
Date, as the case may be, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) The Company has not distributed and will not distribute, prior
to the later of the Closing Date and the completion of the Placement Agent's
distribution of the Additional Securities pursuant to the Cash Offer, any
offering material in connection with the Cash Offer other than the Prospectus.
(e) The Company and each of the Company's subsidiaries is, and at
the Closing Date will be, a corporation, a limited liability company, a limited
liability partnership or a statutory business trust duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or formation, as applicable, 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 Prospectus; except where the failure to have such power and
authority would not have a Material Adverse Effect (as hereinafter defined). 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 have a material and adverse effect on the condition, financial or
otherwise, or on the earnings, business, operations or prospects, whether or not
arising from transactions in the ordinary course of business, of the Trust or of
the Company and its subsidiaries considered as one entity (any such effect
called a "Material Adverse Effect"). All of the outstanding shares of capital
stock of the Company's subsidiaries have been duly authorized
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and validly issued and are fully paid and nonassessable and are owned by the
Company free and clear of all liens, encumbrances and claims whatsoever, except
for those pledged shares of capital stock set forth on Schedule I of that
certain Pledge Agreement by and among the Company, Fleetwood Holdings, Inc.
("Holdings"), Fleetwood Retail Corp. ("Retail") and certain subsidiaries of the
Company, Holdings and Retail (collectively with the Company, Holdings and
Retail, the "Pledgors"), in favor of Bank of America, N.A., as agent for the
lenders that may from time to time become parties to the Bank of America Credit
Agreement (as defined herein) (the "Lenders"). Complete and correct copies of
the certificate of incorporation and the by-laws of the Company have been
delivered to counsel to the Placement Agent 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 Placement Agent, and no changes therein will be made
subsequent to the date hereof and prior to the Closing Date.
(f) 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 upon execution and delivery of the Trust's Amended and Restated
Declaration of Trust in the form filed with the Registration Statement (the
"Declaration"), the Trust will have the business trust power and authority to
(x) own property and conduct its business, all as described in the Prospectus,
(y) enter into and perform its obligations under this Agreement, and (z) issue
and perform its obligations under the Additional 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 Prospectus; the Trust does
not have any consolidated or 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.
(g) 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 in
accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights
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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 Declaration conforms to the description thereof
contained in the Prospectus.
(h) Each of the Trust and the Company has all trust and corporate
power, as the case may be, to enter into this Agreement. This Agreement has 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 agreement by the Placement Agent)
this 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, subject to the applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in 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 may be limited by applicable
law.
(i) The Indenture has been duly and validly authorized by the
Company, will be qualified under the Trust Indenture Act not later than the
expiration date of the Exchange Offer and, assuming due authorization, execution
and delivery of the Indenture by the Debt Trustee, when executed and delivered
by the Company, 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 Indenture
conforms to the description thereof contained in the Prospectus.
(j) The Additional Securities to be issued pursuant to the Cash
Offer will be duly authorized by the Declaration upon execution and delivery of
the Declaration in the form filed with the Registration Statement, and, when
issued and delivered by the Trust in accordance with the terms of the
Declaration in exchange for Existing Securities pursuant to the Cash Offer, will
be validly issued and fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will be entitled to the benefits of the
Declaration. The holders of the Additional 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
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Additional Securities will not be subject to preemptive or other similar rights;
and the Additional Securities will conform to the description thereof in the
Prospectus.
(k) The Debentures to be deposited in the Trust as Trust assets in
connection with the Cash Offer and to be issued and delivered thereafter from
time to time in accordance with the terms of the Declaration and the Indenture
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 the
Trust pursuant to the terms of the Cash Offer, 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 Debentures will be in the form contemplated by, and entitled to the
benefits of, the Indenture and will conform to the description thereof contained
in the Prospectus.
(l) 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 Prospectus.
(m) 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 non-assessable 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; and the Common
Securities will conform to the description thereof contained in the Prospectus.
(n) The Fleetwood Common Stock conforms in all material respects to
the description thereof in the Prospectus. The Shares have been duly authorized
and duly reserved for issuance and, upon issuance thereof upon conversion of the
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Additional Securities and the Debentures or as payment of interest on the
Debentures in accordance with the terms of the Additional Securities, the
Declaration, the Debentures and the Indenture, will be validly issued, fully
paid and non-assessable 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.
(o) The descriptions in the Prospectus of the Additional Securities,
the Common Securities, the Guarantee, the Trust, the Declaration, the Indenture
and the Debentures, and of the Existing Securities, the Existing Trust and the
common securities, guarantee and 6% Convertible Subordinated Debentures due
February 15, 2028 (the "Existing Debentures") issued in connection with the
issuance of the Existing Securities, and the related indenture and Declaration
of Trust are, and at the Closing Date will be, complete and accurate in all
material respects.
(p) The financial statements and schedules of the Company together
with the notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus, and any amendments or supplements 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 accepted accounting principles applied on a consistent basis
throughout the entire period involved, except as otherwise disclosed in the
Registration Statement and the Prospectus. The interim consolidated financial
statements together with the notes thereto included or incorporated by reference
in the Registration Statement and the Prospectus, and any amendments or
supplements thereto, have been prepared on a basis consistent with the audited
consolidated financial statements except as otherwise stated therein, and
include in your opinion all adjustments, including normal recurring adjustments
necessary to present fairly the financial information therein. The selected and
summary consolidated financial and statistical data included in the Registration
Statement and the Prospectus, and any amendments and supplements thereto,
present fairly the information shown therein and have been compiled on a basis
consistent with the audited financial statements presented therein. No financial
statements or schedules, other than the consolidated financial statements that
are included in the Registration Statement and the Prospectus, and any
amendments or supplements thereto, are required to be included therein. Arthur
Andersen LLP, who have reported on such financial statements and schedules, are
independent accountants within the meaning of the Securities Act.
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(q) 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 if
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.
(r) Subsequent to the respective dates as of which information is
given in the Prospectus and prior to the Closing Date, except as set forth in or
contemplated by the Prospectus, (i) there has not been and will not have been
any (a) change in the capitalization of the Trust or material adverse change in
the capitalization of the Company, or (b) any material adverse change, or any
development that could reasonably be expected to result in a material adverse
change, in the condition, financial or otherwise, or in the earnings, business,
operations or prospects, whether or not arising from transactions in the
ordinary course of business, of the Trust or the Company and its subsidiaries,
considered as one entity (any such change is called a "Material Adverse
Change"), (ii) neither the Trust nor the Company and its subsidiaries,
considered as one entity, has incurred any material liability or obligation,
indirect, direct or contingent, not in the ordinary course of business, nor has
it entered into any material transaction or agreement not in the ordinary course
of business, and (iii) there has been no dividend or distribution of any kind
declared, paid, or made by the Trust or the Company or, except for dividends
paid to the Company or other subsidiaries, any of its subsidiaries on any class
of its securities, or repurchase or redemption by the Company or any of its
subsidiaries of any class of capital stock.
(s) Except for subsequent issuances, if any, pursuant to the
Exchange Offer or the Cash Offer or upon issuance of capital stock or exercise
of stock options or warrants pursuant to employee benefit plans described in the
Prospectus, the Company has authorized, issued and outstanding capitalization
set forth in the Prospectus under the caption "Capitalization"; all of the
outstanding capital stock of the Company has been duly authorized and validly
issued, and is fully paid and non-assessable; and the authorized capital stock
of the Company conforms in all material respects to the statements relating
thereto in the Registration Statement and the Prospectus.
(t) Neither the Company nor the Trust has taken and neither the
Company nor the Trust will take, directly or indirectly, any action prohibited
by Regulation M promulgated under the Exchange Act or designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the
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price of the Common Stock to facilitate the distribution of Additional
Securities in the Exchange Offer or the Cash Offer.
(u) Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws and the Trust is not in violation of the Declaration,
and, except as specifically described in the Prospectus, none of the Company,
any of its subsidiaries or the Trust is in default (or, with notice or lapse of
time or both, would be in default) ("Default") in the performance or observance
of any obligation, agreement, covenant or condition contained in the Existing
Securities, the Existing Debentures, and the related indenture and guarantee,
the credit agreement dated as of July 27, 2001 among the Company, as guarantor,
the financial institutions named therein, as the lenders, Bank of America, N.A.,
as administrative agent, Citicorp USA, Inc., as documentation agent, Heller
Financial, Inc., as syndication agent and Fleetwood Holdings, Inc., and certain
of its subsidiaries and Fleetwood Retail Corp., and certain of its subsidiaries,
as the borrowers, and the related mortgages and other security documents (the
"Bank of America Credit Agreement"), or any other 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 (each, an "Existing Instrument"), except for such Defaults
as would not, in the case of the Company and its subsidiaries, individually or
in the aggregate, have a Material Adverse Effect.
(v) At the Closing Date, the Property Trustee will be the record
holder of the 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.
(w) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Debentures, the Declaration and the Guarantee, and the execution
and delivery by the Trust of, and the performance by the Trust of its
obligations under, this Agreement and the Additional Securities, the performance
by the Trust of its obligations under the Declaration and the consummation of
the Cash Offer and fulfillment of terms herein contemplated (i) will not result
in any violation of the provisions of the charter or by-laws of the Company or
of the Declaration, (ii) will not conflict with or constitute a breach of, or
Default, or a Debt Repayment Triggering Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust or the Company or any of its subsidiaries
pursuant to, or require the consent of any other party to, any Existing
Instrument, except for such conflicts, breaches, Defaults, liens, charges or
encumbrances as would not, individually or in the aggregate, have a Material
Adverse Effect and (iii) will not result in any violation of any law,
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administrative regulation or administrative or court decree applicable to the
Trust, the Company or any subsidiary. As used herein, a "Debt Repayment
Triggering Event" means any event or condition which gives, or with the giving
of notice or lapse of time would give, the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any of its subsidiaries.
(x) Neither the Trust nor the Company is, and after giving effect to
the consummation of the Cash Offer, will not be 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.
(y) Except as set forth in the Prospectus, there are no actions,
suits or proceedings pending or, to the Company's knowledge, 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.
(z) 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 described in the Prospectus and (ii) complied in all respects with
all laws, regulations and orders applicable to it or its business, except, in
case of (i) and (ii) above, for such failures to possess or comply as would not,
individually or in the aggregate, have a Material Adverse Effect, and neither
the Trust, nor the Company or any subsidiary, has received any notice of
proceedings relating to the revocation or modification of, or non-compliance
with, any such license, permit, consent, order, approval or other authorization
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could have a Material Adverse Effect.
(aa) No consent, approval, authorization, or order of, or any filing,
declaration, registration or qualification with, any court or governmental
agency or body is required in connection with the authorization, issuance,
transfer or delivery of the Additional Securities by the Trust or the Guarantee
and the Debentures by the Company, in connection with the consummation of the
Cash Offer, or in connection with the execution, delivery and performance of
this Agreement by the Trust and the Company, except such as may be required by
the
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Securities Act or the Exchange Act, as may be required by the securities or Blue
Sky laws of the various states, and as may be required from the NASD.
(bb) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(cc) No statement, representation, warranty or covenant made by the
Trust or the Company in this Agreement, the Indenture, the Guarantee or the
Declaration or made in any certificate or document required by this Agreement to
be delivered to the Placement Agent was or will be, when made, inaccurate,
untrue or incorrect in any material respect.
(dd) 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.
(ee) The Company and its subsidiaries own, or are licensed or
otherwise have the full right to use, all material trademarks and trade names
(collectively, the "Intellectual Property Rights") which are used in or
necessary for the conduct of their respective businesses as described in the
Prospectus. No claims have been asserted by any person to the use of any such
Intellectual Property Rights or challenging or questioning the validity or
effectiveness of any such Intellectual Property Rights 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 Intellectual Property Rights 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.
(ff) Any certificate signed by any officer of the Company and
delivered to the Placement Agent or to counsel for the Placement Agent pursuant
to the terms of this Agreement shall be deemed a representation and warranty by
the Company to the Placement Agent as to the matters covered thereby.
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(gg) 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.
(hh) 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 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.
(ii) The Company and the Trust have not done anything and will not do
anything in connection with the Exchange Offer or the Cash Offer that is
violative of Regulations G, T, U or X of the Board of Governors of the Federal
Reserve System.
(jj) The Common Stock (including the Underlying Securities) is
registered pursuant to Section 12(g) of the Securities Exchange Act of 1934 (the
"Exchange Act") and is listed on the New York Stock Exchange (the "NYSE") and
the Pacific Stock Exchange (the "PSE"), and the Company has taken no action
designed to, or likely to have the effect of, terminating the registration of
the Common Stock under the Exchange Act or delisting the Common Stock from the
NYSE or the PSE, nor has the Company received any notification that the
Commission or the NYSE or PSE is contemplating terminating such registration or
listing.
(kk) There are no persons with registration or other similar rights
to have any equity or debt securities registered for sale under the Registration
Statement.
(ll) All written communications made during the period from the first
public announcement and to the earlier of either the expiration date of the
Exchange Offer or the Closing Date of the Cash Offer have been or will be filed
with the Commission in accordance with the Exchange Act and the Commission's
rules and regulations including Rule 13e-4 under the Exchange Act.
(mm) Except as set forth in the Bank of America Credit Agreement, no
subsidiary of the Company is currently prohibited, directly or indirectly, from
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making any distribution in respect of its partnership interests, membership
interests or shares of capital stock, as the case may be, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or any
other subsidiary of the Company, except as described in the Prospectus.
(nn) The Bank of America Credit Agreement has been duly and validly
authorized executed and delivered by the Company, and constitutes a valid and
legally binding obligation 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 Bank of America Credit Agreement conforms to the description thereof
contained in the Prospectus.
(oo) The Trust has complied with all provisions of Section 517.075
Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing business
with the Government of Cuba or with any person or affiliate located in Cuba.
9. CONDITIONS TO PLACEMENT AGENT'S OBLIGATIONS. The obligations of
the Placement Agent hereunder are subject, as of the Commencement Date and at
all times on or prior to the Closing Date, to the accuracy of the
representations and warranties on the part of each of the Company and the Trust
herein, to the accuracy of the statements of officers of the Company and of the
Trust made pursuant to the provisions hereof, to the performance by each of the
Company and the Trust of their respective obligations hereunder and to the
following additional conditions:
(a) You shall have received, on the Commencement Date and the
Closing Date, letters, dated the Commencement Date and the Closing Date as the
case may be, from Arthur Andersen LLP, independent public or certified public
accountants for the Company, in form and substance satisfactory to you,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" delivered according to Statement of Auditing
Standards No. 72 (or any successor bulletin), with respect to the audited and
unaudited consolidated financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(b) For the period from and after effectiveness of this Agreement
and prior to the Closing Date:
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(i) the Company shall have filed the Registration Statement
with the Commission prior to the Commencement Date and the Registration
Statement shall become effective prior to the expiration date of the
Exchange Offer; and
(ii) no stop order refusing or suspending the effectiveness of
the Registration Statement or any post-effective amendment shall have
been issued or be in effect and no proceedings for such purpose shall
have been instituted or threatened by the Commission and any request
for additional information shall have been complied with to the
reasonable satisfaction of the Placement Agent's counsel.
(c) For the period from and after the date of this Agreement and
prior to the Closing Date:
(i) in the judgment of the Placement Agent, there shall not
have occurred any Material Adverse Change, or any development involving
a prospective Material Adverse Change;
(ii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating or preliminary rating
accorded the Additional Securities or of any other securities of or
guaranteed by the Company or any of its subsidiaries by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
(iii) there shall not have been (A) (1) any liability or
obligations, indirect, direct or contingent, incurred by the Trust or
the Company or any of its subsidiaries, that is material to the Trust
or to the Company and its subsidiaries, considered as one entity,
except obligations incurred in the ordinary course of business, or (2)
any material transaction or agreement entered into by the Trust or the
Company and its subsidiaries, considered as one entity, not in the
ordinary course of business, (B) any change in the capital stock or
outstanding indebtedness of the Company, (C) any dividend or
distribution of any kind declared, paid or made on the capital stock of
the Company other than quarterly dividends declared, paid or made in
the ordinary course of business, or (D) any loss or damage (whether or
not insured) to the property of the Trust, the Company or any of its
subsidiaries which has been sustained or will have been sustained, that
either individually or in the aggregate, in the Placement Agent's
judgment, are material and adverse and that make it, in the Placement
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Agent's judgment, impracticable to solicit the tender of Existing
Securities pursuant to and in accordance with the terms of the Cash
Offer on the terms and in the manner contemplated in the Registration
Statement.
(d) On each of the Commencement Date (except with respect to clause
(d)(iii) of this Section 9) and the Closing Date, you shall have received a
written certificate, dated such date and executed by the Chairman of the Board
or the Chief Executive Officer or the President of the Company, the Chief
Financial Officer or Chief Accounting Officer of the Company, and an authorized
officer of the Trust acceptable to you, to the effect set forth in clauses
(b)(ii) and (c)(ii) of this Section 9 and further to the effect that:
(i) the representations, warranties and covenants of each of
the Company and the Trust, as the case may be, contained in this
Agreement are true and correct with the same force and effect as though
expressly made on and as of the Commencement Date and the Closing Date,
as the case may be;
(ii) each of the Company and the Trust has complied to all of
its agreements hereunder and satisfied all the conditions on its part
to be performed or satisfied hereunder on or prior to the Closing Date;
and
(iii) when the Registration Statement became effective and at
all times subsequent thereto up to the date of such certificate, the
Registration Statement and the Prospectus, and any amendments or
supplements thereto, contained all material information required to be
included therein by the Securities Act or the Exchange Act, as the case
may be, and in all material respects conformed to the requirements of
the Securities Act or the Exchange Act, as the case may be; the
Registration Statement, and any amendment or supplement thereto, did
not and does not include any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the
Prospectus, and any amendment or supplement thereto, did not and does
not include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and, since
the effective date of the Registration Statement, there has occurred no
event required to be set forth in an amended or supplemented Prospectus
which has not been so set forth.
The officers signing and delivering certificates described in this
Section 9(e) on behalf of each of the Company and the Trust may rely upon the
best of their knowledge as to proceedings threatened.
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(e) Each of the Company and the Trust shall have furnished to you on
each of the Commencement Date and the Closing Date such additional certificates,
opinions or other documents as you shall reasonably request (including
additional certificates of officers of the Company) as to the accuracy of the
representations and warranties of the Trust and the Company herein, as to the
performance by the Trust and the Company of its obligations hereunder, and as to
the other conditions concurrent and precedent to your obligations hereunder.
(f) On the Commencement Date (except with respect to paragraphs 3,
4, 6, 13 and 14 and clause (i) of the next-to-last paragraph of EXHIBIT A) and
the Closing Date, the Placement Agent shall have received the favorable opinion
of Gibson, Dunn & Crutcher LLP, special counsel for the Trust and the Company,
dated as of such date, the form of which is attached as EXHIBIT A.
(g) On the Commencement Date (except with respect to clause (i) of
the next-to-last paragraph of EXHIBIT B) and the Closing Date, the Placement
Agent shall have received the favorable opinion of Forrest Theobald, Vice
President -General Counsel and Secretary of the Company, dated as of such date,
the form of which is attached as EXHIBIT B.
(h) On the Commencement Date (except with respect to paragraph 6 of
EXHIBIT C) and the Closing Date, the Placement Agent shall have received the
favorable opinion of Morris, Nichols, Arsht & Tunnell, special Delaware counsel
to the Trust, dated as of such date, the form of which is attached as EXHIBIT C.
(i) On the Commencement Date and the Closing Date, the Placement
Agent shall have received the favorable opinion of Richards, Layton & Finger,
P.A., with respect to the Delaware Trustee (as defined in the Declaration),
dated as of such date, the form of which is attached as EXHIBIT D.
(j) On the Commencement Date and the Closing Date, the Placement
Agent shall have received the favorable opinion of Gibson, Dunn & Crutcher LLP,
special tax counsel to the Trust and the Company, dated as of such date, the
form of which is attached as EXHIBIT E.
(k) On the Commencement Date and the Closing Date, the Placement
Agent shall have received the favorable opinion of Davis Polk & Wardwell,
counsel for the Placement Agent, in form and substance satisfactory to the
Placement Agent.
(l) On the date hereof, the Company shall have furnished to the
Placement Agent an agreement in the form of Annex A hereto from each director
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and executive officer of the Company, and such agreement shall be in full force
and effect on each of the Commencement Date and the Closing Date.
Each of the Company and the Trust will furnish you with such executed
or conformed copies of such opinions, certificates, letters and documents as you
may reasonably request.
10. COVENANTS OF THE COMPANY AND THE TRUST. Each of the Company and
the Trust covenants and agrees with the Placement Agent:
(a) To use its reasonable best efforts to cause the Registration
Statement, and any amendment thereof, to become effective as soon as possible
but no later than the expiration date of the Exchange Offer; to use its
reasonable best efforts to cause any abbreviated registration statement pursuant
to Rule 462(b) of the Securities Act as may be required subsequent to the date
the Registration Statement is declared effective to become effective as promptly
as possible; to promptly advise the Placement Agent in writing (i) of the
receipt of any comments from the Commission relating to the Cash Offer, (ii)
when the Registration Statement, any post-effective amendment to the
Registration Statement or any abbreviated Registration Statement shall have
become effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (iii) of any request by the Commission to amend the
Registration Statement or amend or supplement the Prospectus or for additional
information relating to the Cash Offer and (iv) of (A) the issuance by the
Commission of any stop order refusing or suspending the use of the Prospectus or
any qualification of the Additional Securities for offering or sale in
connection with the Cash Offer in any jurisdiction, (B) the institution or
threatening of any proceedings for any of such purposes, (C) the occurrence of
any event which could cause the Company or the Trust to withdraw, rescind,
terminate or modify the Cash Offer or would permit the Company or the Trust to
exercise any right not to accept Additional Securities tendered pursuant to the
Cash Offer, or (D) the institution of any proceedings to remove, suspend or
terminate from listing or quotation the Common Stock from any securities
exchange upon which it is listed for trading or included or designated for
quotation, or the threatening or initiation of any proceedings for any such
purposes. Each of the Company and the Trust will use its reasonable efforts to
prevent the issuance of any such stop order, the issuance of any order
preventing or suspending such use and the suspension of any such qualification
and, if any such order is issued or qualification suspended, to obtain the
lifting of such order or suspension at the earliest practicable time.
(b) To comply with the Securities Act, the Exchange Act and the
Trust Indenture Act in connection with the Cash Offer, the Registration
Statement, the Prospectus and the transactions contemplated hereby and thereby,
as applicable.
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If, at any time when the Prospectus is required by the Securities Act or the
Exchange Act to be delivered in connection with the Cash Offer, any event shall
occur or condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Placement Agent or counsel for the Company
or the Trust, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements in the Prospectus, in the light of the circumstances under which they
were made, not misleading or if, in the reasonable opinion of either such
counsel, it shall be necessary to amend the Registration Statement or amend or
supplement the Prospectus to comply with the requirements of the Securities Act
or Exchange Act, the Company and the Trust will promptly prepare, file with the
Commission, subject to Section 4(b) hereof, and furnish, at their own expense,
to the Placement Agent and to the dealers (whose names and addresses will be
furnished to the Company and the Trust by the Placement Agent) to which they are
required to furnish, such amendment or supplement as may be necessary to correct
such untrue statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements.
(c) During such period beginning on the date hereof and ending on
such date as in the opinion of counsel for the Placement Agent, the Prospectus
is no longer required by law to be delivered in connection with the Cash Offer,
the Company will file all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within
the time periods required by the Exchange Act.
(d) To cooperate with the Placement Agent and Placement Agent's
counsel to qualify or register the Additional Securities for sale under (or
obtain exemptions from the application of) the state securities or blue sky laws
or Canadian provincial Securities laws of those jurisdictions designated by the
Placement Agent; to comply with such laws and continue such qualifications,
registrations and exemptions in effect so long as required for the consummation
of the Cash Offer; and in each jurisdiction in which the Additional Securities
have been so qualified, the Trust will file such statements and reports as may
be required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Registration Statement; provided that neither the Company nor the Trust shall be
required to qualify as a foreign corporation or to take any action that would
subject either the Company or the Trust to general service of process in any
such jurisdiction where it is not presently qualified or where it would be
subject to taxation as a foreign corporation.
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(e) To make generally available to its security holders and to the
Placement Agent an earnings statement covering a twelve-month period beginning
not later than the first day of the Trust's fiscal quarter next following the
effective date of the Registration Statement that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) To use its best efforts to advise or cause the Exchange Agent to
advise the Placement Agent at 5:00 P.M., New York City time, or promptly
thereafter, daily (or more frequently if requested), by telephone or facsimile
transmission, with respect to Existing Securities tendered as follows: (i) the
aggregate number of Existing Securities validly tendered and represented by
certificates physically held by the Exchange Agent or confirmations of receipt
of book-entry transfer of Exchange Securities pursuant to the procedures set
forth in the Prospectus with respect to the Exchange Offer on such day; (ii) the
aggregate liquidation amount of Existing Securities properly withdrawn on such
day; and (iii) the cumulative totals of the liquidation amount of Exchange
Securities in categories (i) and (ii) above.
(g) During the period of 90 days from the date of the Prospectus,
neither the Trust nor the Company will, without the Placement Agent'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, establish an open "put equivalent position" within the meaning
of Rule 16a-1(h) of the Exchange Act, or otherwise transfer or dispose of (i)
any Additional Securities, or any equity security convertible into or
exchangeable into or exercisable for, Additional Securities, (ii) Debentures or
any debt securities substantially similar to the Debentures, (iii) any equity
securities substantially similar to the Additional Securities, except for the
Debentures, Additional Securities and the Common Securities, (iv) any preferred
stock or any other security of the Company that is substantially similar to the
Additional Securities, (v) any shares of any class of common stock of the
Company (other than (A) shares of Fleetwood Common Stock issuable upon
conversion of the Additional Securities pursuant to the terms of the Declaration
and the Indenture, for payment of interest on the Debentures at the Company's
option pursuant to the terms of the Indenture, or pursuant to the exercise of
options and warrants outstanding as of the date hereof, (B) 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 pursuant to
any stock option, stock bonus or other stock plan or arrangement described in
the Prospectus, 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, whether any such transaction is to be
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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 Debentures would be debt
securities that have substantially the same rate, maturity and other provisions
as the Debentures.
(h) Without limiting Sections 5, 7 and 12 of this Agreement, if the
transactions contemplated hereby are not consummated by reason of any failure,
refusal or inability on the part of the Company to perform any agreement on its
part to be performed hereunder or to fulfill any condition of the obligations of
the Placement Agent hereunder, each of the Company and the Trust, jointly and
severally, agrees to reimburse the Placement Agent for all reasonable documented
out-of-pocket expenses (including reasonable fees and disbursements of the
Placement Agent's counsel) incurred by the Placement Agent in connection with
the Cash Offer.
11. INDEMNIFICATION AND CONTRIBUTION; SETTLEMENT OF LITIGATION;
RELEASE. Each of the Company and the Trust jointly and severally agrees as
follows:
(a) Each of the Company and the Trust, jointly and severally, agrees
to indemnify and hold harmless the Placement Agent, its partners, its officers
and employees, and each person, if any, who controls the Placement Agent within
the meaning of the Securities Act and the Exchange Act against any loss, claim,
damage, liability or expense, as incurred, to which the Placement Agent or such
controlling person may become subject, under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Company), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (as amended
or supplemented), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading; or (ii) upon any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; or
(iii) in whole or in part upon any inaccuracy in the representations and
warranties of the Company or the Trust contained herein; or (iv) in whole or in
part upon any failure of the Company or the Trust to perform their respective
obligations hereunder or under law; or (v) upon a withdrawal, rescission or
modification of or a failure to make or consummate the Cash Offer; or (vi) upon
any act or failure to act or any alleged act or failure to act by the Placement
Agent in connection with,
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or relating in any manner to, the Additional Securities or the Cash Offer and
which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon any matter covered by clause
(i) or (ii) above, PROVIDED that neither the Trust nor the Company shall be
liable under this clause (vi) to the extent that a court of competent
jurisdiction shall have determined by a final judgment that such loss, claim,
damage, liability or action resulted directly from any such acts or failures to
act undertaken or omitted to be taken by the Placement Agent through its bad
faith or willful misconduct; and to reimburse the Placement Agent and each such
controlling person for any and all expenses (including the reasonable fees and
disbursements of counsel chosen by the Placement Agent) as such expenses are
reasonably incurred by the Placement Agent or such controlling person in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; PROVIDED, HOWEVER, that
the foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out of or
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by the Placement Agent expressly for use in
the Registration Statement, any preliminary prospectus or the Prospectus. The
indemnity agreement set forth in this Section 11(a) shall be in addition to any
liabilities that the Company and the Trust may otherwise have.
(b) The Placement Agent agrees to indemnify and hold harmless the
Trust and the Company, each of their respective directors, each of their
respective officers who signed the Registration Statement, and each person, if
any, who controls the Company or the Trust within the meaning of the Securities
Act or the Exchange Act, against any loss, claim, damage, liability or expense,
as incurred, to which the Company or the Trust, or any such director, officer or
controlling person may become subject, under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Placement Agent), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (or, in each case, any amendment or supplement thereto), or arises
out of or is based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement or the Prospectus (or any
amendments or supplements thereto), in reliance upon and in conformity with
written information furnished to the Company by the
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Placement Agent expressly for use therein; and to reimburse the Company, the
Trust or any such director, officer or controlling person for any legal and
other expense reasonably incurred by the Company, the Trust or any such
director, officer or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. The indemnity agreement set forth in this Section
11(b) shall be in addition to any liabilities that the Placement Agent may
otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 11 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 11, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party for
contribution or otherwise than under the indemnity agreement contained in this
Section 11 or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in, and, to the
extent that it shall elect, jointly with all other indemnifying parties
similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; PROVIDED, HOWEVER, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that a conflict may arise
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 11 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with local counsel), approved by the indemnifying
party, representing the indemnified parties who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel satisfactory to the
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indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying party.
(d) The indemnifying party under this Section 11 shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party against any
loss, claim, damage, liability or expense by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by Section 11(c) hereof,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement, compromise or consent to the entry
of judgment in any pending or threatened action, suit or proceeding in respect
of which any indemnified party is or could have been a party and indemnity was
or could have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
(e) (i) If the indemnification provided for above is for any
reason held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Trust, on the one hand, and the
Placement Agent, on the other hand, from the Cash Offer or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Trust, on the one hand, and the Placement Agent, on the other hand, in
connection with the statements or omissions or inaccuracies in the
representations and warranties herein or any other matter which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Trust, on the one hand, and the Placement Agent, on the other hand, in
connection with the
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Cash Offer shall be deemed to be in the same respective proportions as the
maximum aggregate liquidation amount of the Additional Securities issuable
pursuant to the Cash Offer bears to the total Placement Agent's fee under the
Engagement Letter attributable to the Cash Offer payable to the Placement Agent
pursuant to the Engagement Letter. The relative fault of the Company and the
Trust, on the one hand, and the Placement Agent, on the other hand, shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by the Company or the
Trust, on the one hand, or the Placement Agent, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(ii) The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth in
Section 11(c), any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any action
or claim. The provisions set forth in Section 11(c) with respect to
notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 11(e); PROVIDED, HOWEVER,
that no additional notice shall be required with respect to any action
for which notice has been given under Section 11(c) for purposes of
indemnification.
(iii) The Company, the Trust and the Placement Agent agree that
it would not be just and equitable if contribution pursuant to this
Section 11(e) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in this Section 11(e).
(iv) Notwithstanding the provisions of this Section 11(e), the
Placement Agent shall not be required to contribute any amount in
excess of the fee received by the Placement Agent in connection with
the Cash Offer as provided in the Engagement Letter. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 11(e), each officer and employee of the Placement Agent
and each person, if any, who controls the Placement Agent within the
meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as the Placement Agent, and each director of the
Company or the Trust, each officer of the Company or the Trust who
signed the
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Registration Statement, and each person, if any, who controls the
Company or the Trust within the meaning of the Securities Act and the
Exchange Act shall have the same rights to contribution as the Company
and the Trust.
(f) With respect to the Cash Offer (and for no other purpose), this
Section 11 shall supersede the indemnity agreement attached to the Engagement
Letter and with respect to the Cash Offer (and for no other purpose) such
indemnity agreement shall be of no further effect.
12. TERMINATION OF THIS AGREEMENT. (a) This Agreement shall
terminate upon the earliest to occur of (i) thirty days after the expiration
date of the Exchange Offer, (ii) any of the conditions specified in Section 9
has not been fulfilled as of any date such condition is required to be fulfilled
pursuant to Section 9 (and the Placement Agent shall have notified the Trust and
the Company thereof), (iii) the date on which the Company and the Trust
terminate or withdraw the Cash Offer for any reason, or (iv) any modification to
the business terms of the Cash Offer in the Company's and the Trust's sole and
absolute discretion that results in the Placement Agent withdrawing pursuant to
Section 5 hereof.
(b) Notwithstanding termination of this Agreement pursuant to
subsection (a) above, the obligations of the parties pursuant to Sections 6, 7
and 11 shall survive any termination of this Agreement.
13. REPRESENTATIONS, WARRANTIES, COVENANTS, INDEMNITIES AND
AGREEMENTS TO SURVIVE DELIVERY. All representations, warranties, covenants and
agreements of the Trust, the Company and the Placement Agent herein or in
certificates delivered pursuant hereto, and the indemnity and contribution
agreements contained in Section 11 hereof shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Placement Agent or any person controlling the Placement Agent within the meaning
of the Securities Act or the Exchange Act, or by or on behalf of the Trust, the
Company or any of their respective officers, directors or controlling persons
within the meaning of the Securities Act or the Exchange Act, and shall survive
the consummation of the Cash Offer and the termination of this Agreement.
14. NOTICES. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Placement Agent:
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Banc of America Securities LLC
9 West 57th Street
New York, NY 10019
Facsimile: 212-583-8457
Attention: Eric Hambleton
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Facsimile: 212-450-4800
Attention: Winthrop B. Conrad, Jr.
If to the Company:
Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, California 92513
Facsimile: (909) 351-3776
Attention: General Counsel
with a copy to:
Gibson, Dunn & Crutcher LLP
Jamboree Center
4 Park Plaza
Irvine, CA 92614-8557
Facsimile: (949) 451-4220
Attention: Mark W. Shurtleff, Esq.
If to the Trust:
Fleetwood Capital Trust II
Regular Trustees
c/o Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, California 92513
Facsimile: (909) 351-3776
Attention: General Counsel
with a copy to:
Gibson, Dunn & Crutcher LLP
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Jamboree Center
4 Park Plaza
Irvine, CA 92614-8557
Facsimile: (949) 451-4220
Attention: Mark W. Shurtleff, Esq.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
15. SUCCESSORS. This agreement will inure to the benefit of and be
binding upon the parties hereto and to the benefit of the employees, agents,
officers and directors and controlling persons referred to in Section 11, and in
each case their respective successors, and personal representatives, and no
other person will have any right or obligation hereunder. The term "successors"
shall not include any holder of Existing Securities receiving Exchange
Securities upon exchange of such Existing Securities merely by reason of such
exchange.
16. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of
any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
17. GOVERNING LAW PROVISIONS. (a) THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
(b) Any legal suit, action or proceeding arising out of or based
upon this Agreement, the Indenture, the Additional Securities, the Registration
Statement or the Prospectus or the transactions contemplated hereby ("Related
Proceedings") may be instituted in the federal courts of the United States of
America located in the City and County of New York or the courts of the State of
New York in each case located in the City and County of New York (collectively,
the "Specified Courts"), and each party irrevocably submits to the exclusive
jurisdiction (except for proceedings instituted in regard to the enforcement of
a judgment of any such court (a "Related Judgment"), as to which such
jurisdiction is non-exclusive) of such courts in any such suit, action or
proceeding. Service of any process summons notice or document by mail to such
party's address set forth above shall be effective service of process for any
suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive any objection to the laying of venue of
any suit, action or other proceeding in the Specified
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Courts and irrevocably and unconditionally waive and agree not to plead or claim
in any such court that any such suit, action or other proceeding brought in any
such court has been brought in an inconvenient forum.
18. GENERAL PROVISIONS. This Agreement, together with the Engagement
Letter (including all attachments or schedules thereto) and the Dealer Manager
Agreement, dated the date hereof, among the Company, the Trust and Banc of
America Securities, LLC, as dealer manager, constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
may not be amended or modified unless in writing by all of the parties hereto,
and no condition herein (express or implied) may be waived unless waived in
writing by each party whom the condition is meant to benefit. The descriptive
headings herein are for the convenience of the parties only and shall not affect
the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated
business person who was adequately represented by counsel during negotiations
regarding the provisions hereof, including, without limitation, the
indemnification and contribution provisions of Section 11 and is fully informed
regarding said provisions. Each of the parties hereto further acknowledges that
the provisions of Section 11 hereto fairly allocate the risks in light of the
ability of the parties to investigate the Company, its affairs and its business
in order to assure that adequate disclosure has been made in the Registration
Statement and the Prospectus (and any amendments or supplements thereto), as
required by the Securities Act and the Exchange Act.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company and the Trust the enclosed
copies hereof, whereupon this instrument, along with all counterparts hereof,
shall become a binding agreement in accordance with its terms.
Very truly yours,
FLEETWOOD ENTERPRISES, INC.
By: /s/ Boyd R. Plowman
----------------------
Name: Boyd R. Plowman
Title: Senior Vice President-Finance
FLEETWOOD CAPITAL TRUST II
By: /s/ Lyle N. Larkin
----------------------
Name: Lyle N. Larkin
Title: Regular Trustee
The foregoing Distribution Agreement is hereby confirmed and accepted
by the Placement Agent in New York, New York as of the date first above written.
Accepted and agreed as of the date
first above written:
BANC OF AMERICA SECURITIES LLC
By: /s/ Derek Dillon
-----------------------
Name: Derek Dillon
Title: Managing Director
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EXHIBIT A
FORM OF OPINION OF GIBSON, DUNN & CRUTCHER LLP
PURSUANT TO SECTION 9(f)
1. The Company has been duly incorporated and is validly existing
and in good standing under the laws of its jurisdiction of incorporation and has
all corporate power to own, lease and operate its properties and conduct its
business as described in the Registration Statement. The Company has all
requisite corporate power and authority to issue the Debentures pursuant to the
Indenture, to enter into the Distribution Agreement, the Guarantee, the
Indenture and the Declaration, to consummate the Cash Offer, and to perform its
obligations thereunder.
2. The Indenture has been duly qualified under the Trust Indenture
Act, 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.
3. (i) The execution and delivery of the Debentures have been
duly authorized by all necessary corporate action of the Company; (ii) the
Debentures have been duly executed and delivered by the Company; (iii) the
Debentures are the legal, valid, binding and enforceable obligations of the
Company, entitled to the benefits of the Indenture.
4. 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.
5. The execution and delivery of the Guarantee have been duly
authorized by all necessary corporate action of the Company, and the Guarantee
has been duly executed and delivered by the Company, and is a legal, valid,
binding and enforceable agreement of the Company.
6. The authorized, issued and outstanding capital stock of the
Company (including the Fleetwood Common Stock) conforms to the descriptions
thereof set forth or incorporated by reference in the Prospectus. The form of
certificate used to evidence the Fleetwood Common Stock is in due and proper
form and complies with all applicable requirements of the Certificate of
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Incorporation and By-laws of the Company and the General Corporation Law of the
State of Delaware.
7. The holders of outstanding shares of capital stock of the
Company are not entitled to any preemptive rights, rights of first refusal or
other similar rights, under the Certificate of Incorporation or By-Laws of the
Company, the law of Delaware or to our knowledge, otherwise, to subscribe for
the Additional Securities, the Debentures or the Fleetwood Common Stock; the
Fleetwood Common Stock into which the Debentures are convertible at the initial
conversion price has 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 Debentures in accordance with the terms of the Debentures
and the Indenture, will be validly issued, fully paid and non-assessable and
free of preemptive rights under the Certificate of Incorporation or By-laws of
the Company or the General Corporation Law of the State of Delaware, or to our
knowledge, otherwise; and the Fleetwood Common Stock to be issued as payment of
interest on the Debentures has been duly authorized by all necessary corporate
action of the Company and reserved for issuance, and upon issuance as payment of
interest on the Debentures in accordance with the terms of the Debentures and
the Indenture, will be validly issued, fully paid and non-assessable and free of
preemptive rights under the Certificate of Incorporation or By-laws of the
Company or the General Corporation Law of the State of Delaware, or to our
knowledge, otherwise.
8. The statements set forth (i) in the Prospectus under the
headings, "The Cash Offer", "Fleetwood Capital Trust", "Fleetwood Capital Trust
II", "Description of Preferred Securities", "Description of Our Capital Stock",
"United States Federal Income Tax Considerations" and "Plan of Distribution",
and (ii) in the Prospectus describing the Distribution Agreement and Bank of
America Credit Agreement, in each case insofar as such statements constitute
summaries of the legal matters, documents or legal proceedings referred to
therein, fairly present and summarize in all material respects, the matter
referred to therein.
9. The execution and delivery of the Distribution Agreement, the
performance by the Company of its obligations thereunder, [the issuance and
delivery by the Company of the Debentures pursuant to the Indenture and the
consummation of the Cash Offer have been duly authorized by all necessary
corporate action of the Company], and each of the Distribution Agreement and the
Bank of America Credit Agreement has been duly executed and delivered by, and is
a valid and binding agreement of, the Company, enforceable in accordance with
its terms.
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10. Assuming the accuracy of the representations and warranties of
the Placement Agent and compliance by it of its agreements contained in the
Distribution Agreement, neither of the issuance of the Debentures, the
Guarantee, the Additional Securities and the Common Securities, nor the
execution, delivery and performance by the Trust and the Company of their
respective obligations in the Distribution Agreement, the Indenture, the
Debentures, the Guarantee, the Declaration, the Additional Securities and the
Common Securities, and the consummation of the Cash Offer, do or will violate,
or require any approval, authorization, consent, qualification, registration or
waiver of or with any governmental authority or regulatory body of the State of
New York or the United States of America under any law or regulation of the
State of New York or the United States of America applicable to the Company or
the Trust that is generally applicable to transactions in the nature of those
contemplated by the Registration Statement and the Prospectus, or the General
Corporation Law of the State of Delaware, except for such approvals,
authorizations, consents, qualifications, registrations or waivers (i) as may be
required under the Securities Act, the Exchange Act, the Trust Indenture Act,
(ii) as may be required under any securities or Blue Sky laws, (iii) as already
have been made or obtained or (iv) that, if not made or obtained, would not have
a Material Adverse Effect on the Company and its subsidiaries taken as a whole.
11. Neither the Company nor the Trust is, or after giving effect to
the Cash Offer, will be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
12. The Registration Statement (i) has been filed under the
Securities Act prior to the Commencement Date and (ii) has been declared
effective by the Commission under the Securities Act. To the best knowledge of
such counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act and no proceedings for such
purpose have been instituted or threatened by the Commission. Any required
filing of the Prospectus and any supplement thereto pursuant to Rule 424(b)
under the Securities Act has been made in the manner and within the time period
required by such Rule 424(b).
13. The Registration Statement and the Prospectus, and each
amendment or supplement to the Registration Statement and the Prospectus, as of
the effective date of the Registration Statement (other than the financial
statements and supporting schedules and other financial or statistical data
included or incorporated by reference therein or in exhibits to or excluded from
the Registration Statement or that part of the Registration Statement that
constitutes the Form T-1, as to which no opinion need be rendered) appear on
their face to comply as to form in all material respects with the applicable
requirements of the Securities Act.
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14. The Registration Statement and the Prospectus (other than the
financial statements and notes thereto and related schedules and other financial
and statistical data contained therein, as to which such counsel expresses no
opinion), as of the time of filing with the Commission, appeared on their face
to comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission.
15. To such counsel's knowledge, there are no agreements, contracts,
leases or documents to which the Company is a party of a character required to
be described in the Registration Statement or to be filed as an exhibit to the
Registration Statement which are not described therein or filed as required.
16. The Schedule TO, and each amendment or supplement thereto, and
the documents required by Item 12 thereof (other than the financial statements
and supporting schedules and other financial or statistical data included or
incorporated by reference therein, as to which no opinion need be rendered)
comply as to form as of the date it was filed in all material respects with the
requirements of the Exchange Act.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company and the
Trust, representatives of the independent auditors of the Company and with
representatives of the Placement Agent at which the contents of the Registration
Statement and related matters were discussed. Such counsel may state that the
purposes of its professional engagement was not to establish or confirm factual
matters, that the scope of its examination of the affairs of the Company did not
permit it to verify the accuracy, completeness or fairness of the statements set
forth in the Registration Statement and that such counsel is not passing upon
and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement except to the
extent set forth in paragraph 9 of above. Such counsel shall state that on the
basis of the foregoing, and except for the financial statements and schedules
and other financial, statistical and accounting data included or incorporated by
reference in the Registration Statement and except for documents filed pursuant
to the Exchange Act annexed to or incorporated by reference in the Registration
Statement, as to which such counsel need not state an opinion, nothing has come
to such counsel's attention which would lead them to believe (i) that either the
Registration Statement or the Prospectus, at the time the Registration Statement
became effective, contained an 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 not misleading or (ii) that the Prospectus, as of the date of
the Prospectus and at all times subsequent thereto up to and on the date of such
opinion, as the case may be, contained an untrue statement of a material fact or
omitted to state a material fact necessary in
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order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
express no belief as to the financial statements or schedules or other financial
or statistical data derived therefrom, included or incorporated by reference in
the Registration Statement, the Prospectus, or any amendments or supplements
thereto, or as to that part of the Registration Statement that constitutes the
Form T-1).
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.
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EXHIBIT B
FORM OF OPINION OF FORREST THEOBALD,
VICE PRESIDENT-GENERAL COUNSEL AND SECRETARY
OF THE COMPANY PURSUANT TO SECTION 9(g)
1. The Company and each of the Company's Significant Subsidiaries
has been duly incorporated or formed and is validly existing as a corporation or
business trust in good standing under the laws of the jurisdiction of its
incorporation or formation, with corporate or trust power to own, lease and
operate its properties and conduct its business as described in the Registration
Statement, and is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in the United States where the ownership
or leasing of its respective assets or the conduct of its business as described
in the Prospectus requires such qualification, except where the failure to be so
qualified would not, individually or in the aggregate, have a Material Adverse
Effect;
2. All of the issued and outstanding capital stock of each of the
Company's subsidiaries has been duly authorized and validly issued, is fully
paid and non-assessable and, except as set forth in the Prospectus, is owned
beneficially and of record, directly or indirectly, by the Company, free and
clear of all security interests, pledges, liens, encumbrances, equities or, to
the knowledge of such counsel, any pending or threatened claims;
3. The holders of outstanding shares of capital stock of the
Company are not entitled to any preemptive rights, rights of first refusal or
similar rights under the Certificate of Incorporation or Bylaws of the Company,
the General Corporation Law of the State of Delaware, or to such counsel's
knowledge, otherwise, to subscribe for the Exchange Securities, the Debentures
or the Fleetwood Common Stock.
4. The statements in the Company's most recent Annual Report on
Form 10-K, incorporated by reference in the Registration Statement, under the
caption "Legal Proceedings in Which We Are Involved" and in the Company's most
recent Quarterly Report on Form 10-Q, incorporated by reference in the
Registration Statement, under the caption "Legal Proceedings," insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly summarize in all material respects the matters
referred to therein. Except as described in the Registration Statement, there is
not pending or, to such counsel's knowledge, threatened any action, suit,
proceeding, inquiry or investigation, before or brought by any court or
governmental agency or regulatory body, to which the Company or any Significant
Subsidiary or the property of the
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Company or any Significant Subsidiary, is subject, which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated in the Dealer Manager
Agreement or the performance by the Company of its obligations thereunder or
transactions contemplated by the Registration Statement.
5. The documents incorporated by reference in the Prospectus
(except for the financial statements and other financial or statistical data, as
to which such counsel expresses no opinion), as of the dates they were filed
with the Commission, appear on their face to comply as to form in all material
respects to the requirements of the Securities Act and the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
under both such Acts.
6. The execution, delivery and performance of the Documents and the
consummation of the transactions contemplated in the Registration Statement
(including the issuance of the Exchange Securities and the Common Securities by
the Trust) and compliance by the Company and the Trust with their respective
obligations under the Documents do not and will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute a breach
of, or default or Debt Repayment Triggering Event under or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Significant Subsidiary pursuant to the Existing
Securities, the Existing Debentures, and the related indenture and guarantee,
the Bank of America Credit Agreement, or any other any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, required to be filed as an exhibit to the reports of
the Company filed pursuant to the Exchange Act to which the Company or any of
its Significant Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
Significant Subsidiary is subject (the "Material Contracts") (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any violation of
the provisions of the Certificate of Incorporation or Bylaws of the Company or
any of its Significant Subsidiaries, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to such counsel other than
state securities or Blue Sky laws, of any government, government instrumentality
or court, domestic or foreign, having jurisdiction over the Company or any of
its Significant Subsidiaries or any of their respective properties, assets or
operations.
7. To such counsel's knowledge after due inquiry and reasonable
investigation, (i) no default by the Company or its Significant Subsidiaries
exists in the due performance or observance of any material obligation,
agreement, covenant
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or condition contained in any Material Contract and (ii) none of the Company or
any Significant Subsidiary is in violation of any applicable law, statute, rule
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their respective
properties, assets or operations except, with respect to clauses (i) and (ii),
for such defaults or violations as would not have a Material Adverse Effect.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public or certified public accountants for
the Company and with representatives of the Placement Agent at which the
contents of the Registration Statement and the Prospectus, and any supplements
or amendments thereto, and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (other than as specified above), and
any supplements or amendments thereto, on the basis of the foregoing, nothing
has come to their attention which would lead them to believe (i) that either the
Registration Statement or the Prospectus, at the time the Registration Statement
became effective, contained an 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 not misleading or (ii) that the Prospectus, as of the date of
the Prospectus and at all times subsequent thereto up to an on the date of such
opinion, as the case may be, contained an untrue statement of a material fact or
omitted 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 (it being understood that such counsel need express no belief as to
the financial statements or schedules or other financial or statistical data
derived therefrom, included or incorporated by reference in the Registration
Statement, the Prospectus, or any amendments or supplements thereto).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of Delaware, the General Corporation Law of the
State of California or the federal law of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion (which shall be
dated the Commencement Date or the Closing Date, as the case may be, shall be
satisfactory in form and substance to the Placement Agent, shall expressly state
that the Placement Agent may rely on such opinion as if it were addressed to
them and shall be furnished to the Placement Agent) of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Placement Agent; PROVIDED, HOWEVER, that such counsel shall further
state that they
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believe that they and the Placement Agent is justified in relying upon such
opinion of other counsel, and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials.
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EXHIBIT C
FORM OF OPINION OF MORRIS, NICHOLS, ARSHT & TUNNELL,
SPECIAL COUNSEL TO THE TRUST AND THE COMPANY
PURSUANT TO SECTION 9(i)
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust 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, and the
Trust has the requisite business trust power and authority to conduct its
business as described in the Prospectus.
2. The Declaration constitutes a legal, 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 requisite business trust power and authority (A) to perform its
obligations under the Declaration, (B) issue the Additional Securities and the
Common Securities and (C) purchase and hold the Debentures.
4. The execution and delivery of the Distribution Agreement and the
Common Securities Purchase Agreement by the Trust and the performance of its
obligations thereunder have been duly authorized by all necessary business trust
action on the part of the Trust.
5. The Common 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 undivided beneficial
interests in the assets of the Trust.
6. The Additional Securities have been duly authorized by the
Declaration for issuance and, when issued, delivered and paid for in accordance
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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 Additional 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.
7. Under the Delaware Business Trust Act and the Declaration, the
issuance of the Additional Securities and the Common Securities is not subject
to preemptive rights.
8. The issuance and sale by the Trust of the Additional Securities,
the execution, delivery and performance by the Trust of the Distribution
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 of Trust 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 Additional 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 State 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 are 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.
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EXHIBIT D
FORM OF OPINION OF RICHARDS, LAYTON & FINGER, P.A.
WITH RESPECT TO THE DELAWARE TRUSTEE
PURSUANT TO SECTION 9(i)
1. The BNY (DE) is duly incorporated and is validly existing in
good standing as a banking corporation with banking and trust powers under the
laws of the State of Delaware.
2. The BNY (DE) has the power and authority to execute, deliver and
perform its obligations under each of the Original Declaration of Trust and the
Amended and Restated Declaration of Trust.
3. The Original Declaration of Trust has been duly authorized,
executed and delivered by BNY (DE) and constitutes a legal, valid and binding
agreement of BNY (DE), enforceable against BNY (DE), in accordance with its
terms.
4. Assuming due authorization, execution and delivery of the
Amended and Restated Declaration of Trust by each of the Sponsor, BNY (DE), the
Property Trustees and the Regular Trustees, and that each of the Sponsor, the
Property Trustee and the Regular Trustees has the power and authority to enter
into and perform its obligations under the Amended and Restated Declaration of
Trust, the Amended and Restated Declaration of Trust will constitute a legal,
valid and binding agreement of BNY (DE), enforceable against BNY (DE), in
accordance with its terms.
5. Neither the execution, delivery and performance by BNY (DE) of
the Original Declaration of Trust and the Amended and Restated Declaration of
Trust, nor the consummation by BNY (DE) of any of the transactions contemplated
thereby, requires the consent, authorization, order or approval of, the giving
of notice to, the registration with or the taking of any other action in respect
of any governmental authority or agency under the laws of the State of Delaware
or any law of the United States of America governing the banking or trust powers
of BNY (DE), other than the filing of the Certificate of Trust with the
Secretary of State (which Certificate of Trust has been duly filed).
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6. Neither the execution, delivery and performance by BNY (DE) of
the Original Declaration of Trust or the Amended and Restated Declaration of
Trust, nor the consummation by BNY (DE) of any of the transactions contemplated
thereby, (i) conflicts with or constitutes a breach of or default under the
Certificate of Trust, the Original Declaration of Trust, the Amended and
Restated Declaration of Trust, the certificate of incorporation or by-laws of
BNY (DE) or, to our knowledge without independent investigation and solely in
reliance on a certificate of an authorized officer of BNY (DE), any agreement,
indenture or other instrument to which BNY (DE) is a party or by which it or any
of its properties may be bound or (ii) violates any law, governmental rule or
regulation of the State of Delaware or any federal law of the United States of
America governing the banking or trust powers of BNY (DE) or, to our knowledge
without independent investigation and solely in reliance on a certificate of an
authorized officer of BNY (DE), any court decree of the State of Delaware
applicable to BNY (DE).
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EXHIBIT E
FORM OF OPINION OF GIBSON, DUNN & CRUTCHER LLP,
SPECIAL TAX COUNSEL TO THE TRUST AND THE COMPANY
PURSUANT TO SECTION 9(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 Debentures, when issued, authenticated and delivered in
accordance with the terms of the Indenture, will constitute indebtedness of the
Company; and
3. The discussion set forth in the Prospectus under the caption
"United States Federal Income Tax Considerations," to the extent it constitutes
summaries of legal matters or legal conclusions, is accurate in all material
respects.
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ANNEX A
[Date]
Banc of America Securities LLC
600 Montgomery Street
San Francisco, California 94111
RE: Fleetwood Enterprises, Inc. (the "Company")
Ladies & Gentlemen:
The undersigned understands that the Company proposes to offer to exchange up
to $34.5 million in aggregate liquidation amount of 9.75% Convertible Trust
Preferred Securities due February 15, 2013 (the "Exchange Securities") issued
by Fleetwood Capital Trust II, a statutory business trust formed under the
laws of the State of Delaware (the "Trust") for up to $86.25 million in
aggregate liquidation amount of 6% Convertible Trust Preferred Securities due
February 15, 2028, for which you will act as the Dealer Manager, and a public
offering of up to an additional $50.0 million in aggregate liquidation amount
of Exchange Securities for which you will act as the Placement Agent (such
exchange offer and additional public offering hereinafter collectively
referred to as the "Offering"). The undersigned recognizes that the Offering
will be of benefit to the undersigned and will benefit the Company. The
undersigned acknowledges that you are relying on the representations and
agreements of the undersigned contained in this letter in carrying out the
Offering and in entering into dealer manager and distribution agreements with
the Company with respect to the Offering.
In consideration of the foregoing, the undersigned hereby agrees that the
undersigned will not, without the prior written consent of Banc of America
Securities LLC (which consent may be withheld in its sole discretion), (i)
directly or indirectly, sell, offer, contract or grant any option to sell
(including without limitation any short sale), pledge, transfer, establish an
open "put equivalent position" within the meaning of Rule 16a-1(h) under the
Securities Exchange Act of 1934, or otherwise dispose of any Exchange
Securities, any equity securities of the Company, the Trust or any similar
trust, any options or warrants to acquire any such securities, or securities
exchangeable or exercisable for or convertible into such securities, 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
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securities of the Company, the Trust or any similar trust, other securities,
cash or otherwise) currently or hereafter owned either of record or beneficially
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
by the undersigned, or publicly announce the undersigned's intention to do any
of the foregoing, for a period commencing on the date hereof and continuing
through the close of trading on the date 90 days after the date of the final
prospectus relating to the Offering. The undersigned also agrees and consents to
the entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock held by the
undersigned except in compliance with the foregoing restrictions.
With respect to the Offering only, the undersigned waives any registration
rights relating to registration under the Securities Act of any Common Stock
owned either of record or beneficially by the undersigned, including any rights
to receive notice of the Offering.
This agreement is irrevocable and will be binding on the undersigned and the
respective successors, heirs, personal representatives, and assigns of the
undersigned.
- ---------------------------------------
Printed Name of Holder
By:
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Signature
- ------------------------------------
Printed Name of Person Signing
(AND INDICATE CAPACITY OF PERSON
SIGNING IF SIGNING AS CUSTODIAN,
TRUSTEE, OR ON BEHALF OF AN ENTITY)
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