<Page>
EXHIBIT 4.6
- --------------------------------------------------------------------------------
FLEETWOOD ENTERPRISES, INC.
TO
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
----------------------------------
Indenture
Dated as of [______________, 2002]
----------------------------------
9.75% Convertible Subordinated Debentures Due 2013
- --------------------------------------------------------------------------------
<Page>
TABLE OF CONTENTS
<Table>
<Caption>
PAGES
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............................................2
SECTION 101. DEFINITIONS..................................................................2
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.........................................9
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.......................................9
SECTION 104. ACTS OF HOLDERS; RECORD DATES...............................................10
SECTION 105. NOTICES, ETC., TO TRUSTEE AND THE COMPANY...................................11
SECTION 106. NOTICE TO HOLDERS; WAIVER...................................................11
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT...........................................11
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS....................................12
SECTION 109. SUCCESSORS AND ASSIGNS......................................................12
SECTION 110. SEPARABILITY CLAUSE.........................................................12
SECTION 111. BENEFITS OF INDENTURE.......................................................12
SECTION 112. GOVERNING LAW...............................................................12
SECTION 113. LEGAL HOLIDAYS..............................................................12
ARTICLE TWO SECURITY FORMS......................................................................................13
SECTION 201. FORMS GENERALLY.............................................................13
SECTION 202. INITIAL ISSUANCE TO PROPERTY TRUSTEE........................................13
SECTION 203. GLOBAL SECURITIES...........................................................13
ARTICLE THREE THE SECURITIES....................................................................................14
SECTION 301. TITLE AND TERMS.............................................................14
SECTION 302. DENOMINATIONS...............................................................16
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..............................16
SECTION 304. TEMPORARY SECURITIES........................................................17
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.........................17
(A) GENERAL.............................................................17
(B) TRANSFER PROCEDURES AND RESTRICTIONS................................18
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES............................18
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED..............................19
SECTION 308. PERSONS DEEMED OWNERS.......................................................20
SECTION 309. CANCELLATION................................................................21
SECTION 310. RIGHT OF SETOFF.............................................................21
SECTION 311. CUSIP NUMBERS...............................................................21
SECTION 312. EXTENSION OF INTEREST PAYMENT PERIOD; NOTICE OF EXTENSION...................21
SECTION 313. PAYING AGENT, SECURITY REGISTRAR AND CONVERSION AGENT.......................22
ARTICLE FOUR SATISFACTION AND DISCHARGE.........................................................................22
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.....................................22
SECTION 402. APPLICATION OF TRUST MONEY..................................................23
ARTICLE FIVE REMEDIES...........................................................................................23
</Table>
i
<Page>
<Table>
SECTION 501. EVENTS OF DEFAULT...........................................................23
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..........................25
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.............26
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM............................................26
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.................27
SECTION 506. APPLICATION OF MONEY COLLECTED..............................................27
SECTION 507. LIMITATION ON SUITS.........................................................28
SECTION 508. UNCONDITIONAL RIGHT OF HOLDER TO RECEIVE PRINCIPAL AND
ANY PREMIUM AND INTEREST AND TO CONVERT. ...................................28
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES..........................................28
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE..............................................29
SECTION 511. DELAYS OR OMISSION NOT WAIVER...............................................29
SECTION 512. CONTROL BY HOLDERS..........................................................29
SECTION 513. WAIVER OF PAST DEFAULTS.....................................................29
SECTION 514. UNDERTAKING FOR COSTS.......................................................30
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS............................................30
SECTION 516. ENFORCEMENT BY HOLDERS OF PREFERRED SECURITIES..............................30
ARTICLE SIX THE TRUSTEE.........................................................................................31
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.........................................31
SECTION 602. NOTICE OF DEFAULTS..........................................................32
SECTION 603. CERTAIN RIGHTS OF TRUSTEE...................................................32
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES......................33
SECTION 605. MAY HOLD SECURITIES.........................................................33
SECTION 606. MONEY HELD IN TRUST.........................................................33
SECTION 607. COMPENSATION AND REIMBURSEMENT..............................................33
SECTION 608. DISQUALIFICATION; CONFLICTING INTEREST......................................34
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.....................................34
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...........................35
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR......................................36
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.................36
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...........................36
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.................................................37
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS...................37
SECTION 702. PRESERVATION OF INFORMATION: COMMUNICATIONS TO HOLDERS......................37
SECTION 703. REPORTS BY TRUSTEE..........................................................37
SECTION 704. REPORTS BY COMPANY..........................................................38
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..............................................38
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS........................38
SECTION 802. SUCCESSOR SUBSTITUTED.......................................................39
</Table>
ii
<Page>
<Table>
ARTICLE NINE SUPPLEMENTAL INDENTURES............................................................................39
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..........................39
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.............................40
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES........................................41
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES...........................................41
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.........................................41
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES..........................42
ARTICLE TEN COVENANTS; REPRESENTATIONS AND WARRANTIES...........................................................42
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST...........................................42
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.............................................42
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.............................42
SECTION 1004. STATEMENT AS TO COMPLIANCE..................................................43
SECTION 1005. STATEMENT BY OFFICERS AS TO DEFAULT.........................................44
SECTION 1006. LIMITATION ON DIVIDENDS; COVENANTS AS TO THE TRUST..........................44
SECTION 1007. PAYMENT OF EXPENSES OF THE TRUST............................................45
SECTION 1008. LIMITATION OF TRANSACTIONS..................................................45
SECTION 1009. LISTING OF SECURITIES.......................................................46
ARTICLE ELEVEN REDEMPTION OF SECURITIES.........................................................................46
SECTION 1101. RIGHT OF REDEMPTION.........................................................46
SECTION 1102. APPLICABILITY OF ARTICLE....................................................47
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.......................................47
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED...........................47
SECTION 1105. NOTICE OF REDEMPTION........................................................47
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.................................................48
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.......................................48
SECTION 1108. SECURITIES REDEEMED IN PART.................................................48
SECTION 1109. OPTIONAL REDEMPTION.........................................................49
SECTION 1110. TAX EVENT REDEMPTION........................................................51
SECTION 1111. CERTAIN LIMITATIONS ON REDEMPTION...........................................52
ARTICLE TWELVE SUBORDINATION OF SECURITIES......................................................................52
SECTION 1201. AGREEMENT TO SUBORDINATE....................................................52
SECTION 1202. DEFAULT ON SENIOR INDEBTEDNESS..............................................52
SECTION 1203. LIQUIDATION; DISSOLUTION; BANKRUPTCY........................................53
SECTION 1204. SUBROGATION.................................................................54
SECTION 1205. TRUSTEE TO EFFECTUATE SUBORDINATION.........................................55
SECTION 1206. NOTICE BY THE COMPANY.......................................................55
SECTION 1207. RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS.......................56
SECTION 1208. SUBORDINATION MAY NOT BE IMPAIRED...........................................56
ARTICLE THIRTEEN CONVERSION OF SECURITIES.......................................................................57
SECTION 1301. CONVERSION RIGHTS...........................................................57
SECTION 1302. CONVERSION PROCEDURES.......................................................57
SECTION 1303. CONVERSION PRICE ADJUSTMENTS................................................59
SECTION 1304. ADJUSTMENT OF CONVERSION PRICE; FUNDAMENTAL CHANGE..........................65
</Table>
iii
<Page>
<Table>
SECTION 1305. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE...................................69
SECTION 1306. COMPANY TO PROVIDE STOCK....................................................70
SECTION 1307. EMPLOYEE BENEFIT PLANS......................................................71
SECTION 1308. CERTAIN ADDITIONAL RIGHTS...................................................71
SECTION 1309. [RESERVED.].................................................................72
SECTION 1310. TRUSTEE NOT RESPONSIBLE FOR DETERMINING CONVERSION PRICE OR ADJUSTMENTS.....72
ARTICLE FOURTEEN MEETINGS.......................................................................................72
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED...................................72
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS..........................................73
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS........................................73
SECTION 1404. QUORUM; ACTION..............................................................73
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.........74
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.............................75
EXHIBIT A-1 FORM OF SECURITY...................................................................................A-1-1
</Table>
- ------------------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
iv
<Page>
FLEETWOOD ENTERPRISES, INC.
Certain Sections of this Indenture relating to Sections 310 through 318 of
the Trust Indenture Act of 1939
<Table>
<Caption>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310(a)(1)........................ 609
(a)(2).................... 609
(a)(3).................... Not applicable
(a)(4).................... Not applicable
(a)(5).................... 609
(b)....................... 608, 610
Section 311(a)........................... 613
(b)....................... 613
(c)....................... Not applicable
Section 312(a)........................... 701, 702(a)
(b)....................... 702(b)
(c)....................... 702(c)
Section 313(a)........................... 703(a)
(a)(4).................... 101, 1004
(b)....................... 703(a)
(c)....................... 703(a)
(d)....................... 703(b)
Section 314(a)........................... 704
(b)....................... Not applicable
(c)(1).................... 102
(c)(2).................... 102
(c)(3).................... Not applicable
(d)....................... Not applicable
(e)....................... 102
Section 315(a)........................... 601
(b)....................... 602
(c)....................... 601
(d)....................... 601
(e)....................... 514
Section 316(a)........................... 101
(a)(1)(A)................. 502, 512
(a)(1)(B)................. 513
(a)(2).................... Not applicable
(b)....................... 508
(c)....................... 104(c)
Section 317(a)(1)........................ 503
(a)(2).................... 504
(b)....................... 1003
Section 318(a)........................... 107
</Table>
- -------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture
v
<Page>
INDENTURE, dated as of [_____________, 2002], between Fleetwood
Enterprises, Inc., a corporation duly organized and existing under the laws of
the State of Delaware ("Fleetwood" or the "Company"), having its principal
office at 3125 Myers Street, Riverside, California 92503, and The Bank of New
York, a New York banking corporation, not in its individual capacity but solely
as trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, Fleetwood Capital Trust II, a Delaware statutory business
trust (the "Trust") formed under the Amended and Restated Declaration of
Trust among the Company, as Sponsor, The Bank of New York, not in its
individual capacity but solely in its capacities as property trustee (the
"Property Trustee") and Delaware trustee (the "Delaware Trustee"), and Boyd
R. Plowman, Lyle L. Larkin and Nelson W. Potter, as trustees (the "Regular
Trustees"), dated as of [____________, 2002] (the "Declaration"), will issue
up to $34,500,000 aggregate liquidation amount of its 9.75% Convertible Trust
Preferred Securities due February 15, 2013 (the "Preferred Securities"), with
a liquidation amount of $20 per Preferred Security, in exchange for up to
$86,250,000 aggregate liquidation amount of 6% Convertible Trust Preferred
Securities due February 15, 2028 (the "Existing Preferred Securities") issued
by Fleetwood Capital Trust, a Delaware statutory business trust (the
"Existing Trust"), pursuant to the Company's exchange offer (the "Exchange
Offer") and will issue and sell up to an additional $50,000,000 aggregate
liquidation amount of Preferred Securities pursuant to a cash offer;
WHEREAS, the trustees of the Trust, on behalf of the Trust, will
execute and deliver to the Company common securities evidencing an ownership
interest in the Trust (the "Common Securities"), registered in the name of
the Company, in an aggregate liquidation amount equal to approximately three
percent (3%) of the capitalization of the Trust, equivalent to [______]
Common Securities, with a liquidation amount of $20 per Common Security and
having an aggregate liquidation amount with respect to the assets of the
Trust of $[________];
WHEREAS, the Trust will use the proceeds from the sale of the Preferred
Securities and the Common Securities to purchase from the Company Securities (as
defined below) in an aggregate principal amount of $[__________] and, in
exchange for the issuance by the Trust of the Preferred Securities in the
Exchange Offer, the Company will issue additional Securities to the Trust in the
aggregate principal amount of $[___________];
WHEREAS, the Company is guaranteeing the payment of all distributions
(including Additional Interest and Compounded Interest, if any) on the Preferred
Securities, payment of the Redemption Price, as applicable, and payments on
liquidation with respect to the Preferred Securities, to the extent provided in
the Preferred Securities Guarantee Agreement(s) (the "Preferred Securities
Guarantee") between the Company and The Bank of New York, not in its individual
capacity but solely in its capacity as guarantee trustee, for the benefit of the
holders from time to time of the Preferred Securities;
WHEREAS, the Company has duly authorized the creation of an issue of
its 9.75% Convertible Subordinated Debentures due February 15, 2013 (the
"Securities") of substantially
<Page>
the tenor and amount hereinafter set forth and, to provide therefor, the Company
has duly authorized the execution and delivery of this Indenture;
WHEREAS, so long as the Trust is a Holder (as defined below) of
Securities and any Preferred Securities are outstanding, the Declaration
provides that the holders of Preferred Securities may cause the Conversion Agent
(as defined below) to (a) exchange such Preferred Securities for Securities held
by the Trust and (b) immediately convert such Securities into Fleetwood Common
Stock (as defined below); and
WHEREAS, all things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSED:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section, Clause or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Interest" has the meaning specified in Section 301.
"Additional Payments" means Compounded Interest and Additional
Interest, if any.
2
<Page>
"Additional Redemption Distribution" has the meaning specified in
Section 1109.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Applicable Price" has the meaning specified in Section 1304(d).
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Property Trustee's corporate trust office or the Trustee's Corporate Trust
Office is closed for business.
"Change in 1940 Act Law" has the meaning specified in the Declaration.
"Closing Price" has the meaning specified in Section 1304(d).
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Securities" has the meaning specified in the Recitals to this
Indenture.
"Common Securities Guarantee" means the common securities guarantee
agreement(s) dated as of [____________, 2002], of the Sponsor in respect of
the Common Securities.
"Common Stock Fundamental Change" has the meaning specified in Section
1304(d).
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its
3
<Page>
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Compounded Interest" has the meaning specified in Section 312.
"Conversion Agent" means the Person or Persons appointed to act on
behalf of the holders of Preferred Securities and/or on behalf of the holders of
Common Securities in effecting the conversion of Preferred Securities and/or
Common Securities as and in the manner set forth in the Declaration and Section
1302 hereof.
"Conversion Date" has the meaning specified in Section 1302.
"Conversion Price" has the meaning specified in Section 1301.
"Corporate Trust Office" means the principal office of The Trustee at
which at any particular time its corporate trust business shall be administered
and which at the date of this Indenture is at 101 Barclay Street, 21 West, New
York, New York, 10286, Attention: Corporate Trust Administration.
"Current Market Price" has the meaning specified in Section
1303(a)(vii).
"Dealer-Manager" means Banc of America Securities LLC, as
dealer-manager under the Dealer-Manager Agreement.
"Dealer-Manager Agreement" means the Dealer-Manager Agreement dated as
of [___________], 2001, among Banc of America Securities LLC, the Company and
the Trust.
"Declaration" has the meaning specified in the Recitals to this
Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Delaware Trustee" has the meaning specified in the Recitals to this
Indenture.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Declaration, and the Securities held by the Property Trustee are to be
distributed to the holders of the Trust Securities issued by the Trust pro rata
in accordance with the Declaration.
"Dissolution Tax Opinion" has the meaning specified in the Declaration.
"Distribution Agreement" means the Distribution Agreement dated as of
[ ], 2001, among Banc of America Securities LLC, the Company and the Trust.
"Event of Default" has the meaning specified in Section 501.
"Existing Common Securities" means the common securities issued to the
Company evidencing an ownership interest in the Existing Trust.
4
<Page>
"Existing Common Securities Guarantee" means the guarantee by the
Company of the payments and distributions with respect to the Existing Common
Securities to the extent provided in the Common Securities Guarantee Agreement,
dated as of February 10, 1998, executed and delivered by the Company for the
benefit of the holders from time to time of the Existing Common Securities.
"Existing Debentures" means the 6% Convertible Subordinated Debentures
Due 2028 issued by the Company to the Existing Trust.
"Existing Preferred Securities Guarantee" means the guarantee by the
Company of the payments and distributions with respect to the Existing Preferred
Securities to the extent provided in the Preferred Securities Guarantee
Agreement between the Company and The Bank of New York, not in its individual
capacity but solely as guarantee trustee, dated as of February 10, 1998.
"Existing Preferred Securities" has the meaning specified in the
Recitals to this Indenture.
"Existing Trust" has the meaning specified in the Recitals to this
Indenture.
"Extension Period" has the meaning specified in Section 312.
"Fleetwood Common Stock" has the meaning specified in Section
1303(a)(x).
"Fundamental Change" has the meaning specified in Section 1304(d).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" has the meaning specified in Section 301.
"Investment Company Event" has the meaning specified in the
Declaration.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"90 Day Period" has the meaning specified in Section 1110.
"Non-Stock Fundamental Change" has the meaning specified in Section
1304(d).
"No Recognition Opinion" has the meaning specified in the Declaration.
"Notice of Conversion" means the notice to be given by a holder of
Preferred Securities or Common Securities to the Conversion Agent directing the
Conversion Agent to exchange
5
<Page>
such Preferred Securities or Common Securities for Securities and to convert
such Securities into Fleetwood Common Stock on behalf of such holder.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT: (i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation; (ii) Securities for whose
payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made; and (iii) Securities which have been paid pursuant to Section 306,
converted into Fleetwood Common Stock pursuant to Section 1301, or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company; PROVIDED, HOWEVER, that upon any
distribution of the Securities to the holders of the Preferred Securities in
accordance with the Declaration, in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum purposes, Securities
beneficially owned by the Company or any other obligor upon the Securities, or
any Affiliate of the Company or such other obligor, shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making any such determination or relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee actually knows to be so owned shall be so
disregarded.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, company, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Placement Agent" means Banc of America Securities LLC, as placement
agent under the Distribution Agreement.
6
<Page>
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" has the meaning specified in the Recitals to
this Indenture.
"Preferred Securities Guarantee" has the meaning specified in the
Recitals to this Indenture.
"Property Trustee" has the meaning specified in the Recitals to this
Indenture.
"Purchaser Stock Price" has the meaning specified in Section 1304(d).
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Date" has the meaning specified in Section 1303(a)(iv).
"Reference Market Price" has the meaning specified in Section 1304(d).
"Regular Record Date" has the meaning specified in Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant vice president, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer, or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities" has the meaning specified in the Recitals to this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means (a) any liability of the Company (1) for
borrowed money or under any reimbursement obligation relating to a letter of
credit, surety bond or similar instrument, or (2) evidenced by a bond, note,
debenture or similar instrument, or (3) for obligations to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, or (4) for the payment of money relating to a
7
<Page>
capitalized lease obligation, or (5) for the payment of money under any Swap
Agreement; (b) any liability of others described in the preceding clause (a)
that the Company has guaranteed or that is otherwise its legal liability; (c)
any deferral, renewal, extension or refunding of any liability of the types
referred to in clauses (a) and (b) above, unless, in the instrument creating or
evidencing any such liability referred to in clause (a) or (b) above or any such
deferral, renewal, extension or refunding referred to in clause (c) above or
pursuant to which the same is outstanding, it is expressly provided that such
liability, deferral, renewal, extension or refunding is subordinate in right of
payment to all other indebtedness of the Company or is not senior or prior in
right of payment to the Securities or ranks PARI PASSU with or subordinate to
the Securities in right of payment; PROVIDED that the Securities shall not
constitute Senior Indebtedness; and PROVIDED, FURTHER, that Senior Indebtedness
shall not include any indebtedness or guarantees between or among the Company or
its affiliates, including all debt securities or guarantees in respect of those
debt securities issued to any trust (including the Trust), trustee of a trust
(including the Trust), partnership, limited liability company or other person
affiliated with the Company that is a financing vehicle of the Company (a
"Financing Entity") in connection with the issuance by such Financing Entity of
preferred securities unless otherwise expressly provided in the instrument
creating or evidencing such indebtedness, debt securities or guarantees, as the
case may be, or pursuant to which the same is outstanding. For the avoidance of
doubt, none of the Preferred Securities Guarantee, the Common Securities
Guarantee, the Existing Debentures, the Existing Preferred Securities Guarantee
or the Existing Common Securities Guarantee shall constitute Senior
Indebtedness.
"Special Event" means either a Tax Event or an Investment Company
Event.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal, together with any accrued and unpaid
interest (including Compounded Interest), of such Security or such installment
of interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"Swap Agreement" means any financial agreement designed to manage the
Company's exposure to fluctuations in interest rates or credit conditions,
currency exchange rates or commodity prices, including without limitation swap
agreements, option agreements, cap agreements, floor agreements, collar
agreements, credit swaps and forward purchase agreements.
"Tax Event" has the meaning specified in the Declaration.
8
<Page>
"Trading Day" means a day on which Fleetwood Common Stock is traded on
the national securities exchange or the quotation system used to determine the
Current Market Price.
"Trust" has the meaning specified in the Recitals to this Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; PROVIDED, HOWEVER, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Securities" means Common Securities and Preferred Securities.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Stock" of any Person means capital stock of such Person which
ordinarily has voting power for the election of directors (or Persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act or reasonably requested by the Trustee in connection with such
application or request. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
applicable requirements of the Trust Indenture Act and any other applicable
requirement set forth in this Indenture.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
9
<Page>
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee or the Company, as the case may be, deems
sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
10
<Page>
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND THE COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under the Trust Indenture Act to be
a part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter
11
<Page>
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness, the holders of Preferred
Securities (to the extent provided herein) and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or the last date on which a Holder has the right to
convert his Securities shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal or conversion of the Securities need not be made on such date, but may
be made on the next succeeding Business Day (except that, if such Business Day
is in the next succeeding calendar year, such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, shall be the immediately preceding
Business Day) with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity or on such last day for
conversion, PROVIDED, that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
12
<Page>
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities and the Trustee's certificates of authentication shall
be substantially in the form of EXHIBIT A-1 which is hereby incorporated in and
expressly made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Company). The Company shall
furnish any such legend not contained in EXHIBIT A-1 to the Trustee in writing.
Each Security shall be dated the date of its authentication. The terms and
provisions of the Securities set forth in EXHIBITS A-1 are part of the terms of
this Indenture and, to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
The definitive Securities shall be typewritten or printed, lithographed
or engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on which
the Securities may be listed, all as determined by the officers executing such
Securities, as conclusively evidenced by their execution of such Securities.
SECTION 202. INITIAL ISSUANCE TO PROPERTY TRUSTEE.
The Securities initially issued to the Property Trustee of the Trust
shall be in the form of one or more individual certificates in definitive, fully
registered form without distribution coupons unless the Company determines
otherwise in accordance with applicable law.
SECTION 203. GLOBAL SECURITIES.
Any Securities issued to holders of Preferred Securities, when and if
such holders receive the Securities in lieu of Preferred Securities, shall be
issued in the form of one or more global securities in definitive, fully
registered form without distribution coupons with the appropriate global legend
set forth in EXHIBIT A-1 hereto (a "Global Security"), which shall be (a)
deposited by the Property Trustee on behalf of such holders with The Depository
Trust Company (the "Depositary") or held by the Property Trustee as custodian
for the Depositary and (b) registered in the name of Cede & Co., as nominee of
the Depositary, or other nominee of the Depositary, pursuant to the Depositary's
instructions.
Members of, or participants in, the Depositary ("Participants") shall
have no rights under this Indenture with respect to any such Global Security
held on their behalf by the Depositary or by the Property Trustee, as the
custodian of the Depositary, or under such global Security, and the Depositary
will be treated by the Company, the Property Trustee and any agent of the
Company or the Property Trustee as the absolute owner of such Global Security
for all purposes whatsoever during such period that the Depositary, or its
nominee, is the registered owner or holder of any such Global Security.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Property Trustee or any agent of the Company or the Property Trustee from
13
<Page>
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its
Participants, the operation of customary practices of such Depositary governing
the exercise of the rights of a holder of a beneficial interest in any Global
Security. Except as otherwise provided in Section 304, owners of beneficial
interests in any Global Security will not be entitled to receive physical
delivery of certificated Securities.
ARTICLE THREE
THE SECURITIES
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is initially limited to $[___________],
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Sections
304, 305, 306, 906, 1108 and 1301, PROVIDED that additional Securities of any
series of Securities authenticated and delivered under this Indenture may be
authenticated and delivered hereunder at any time, having the same terms as,
treated as a single class (for all purposes under this Indenture) with, such
previously authenticated and delivered Securities, PROVIDED further that such
additional Securities shall be authenticated and delivered to the Trust in
exchange for the issuance by the Trust of additional Preferred Securities to
holders of Existing Preferred Securities in exchange for Existing Preferred
Securities tendered in an exchange offer.
The Securities shall be known and designated as the "9.75%
Convertible Subordinated Debentures Due 2013" of the Company. Their Stated
Maturity shall be February 15, 2013, and they shall bear interest at the rate
of 9.75% per annum, from [___________, 2002], or from the most recent
Interest Payment Date (as defined below) to which interest has been paid or
duly provided for, as the case may be, payable quarterly (subject to deferral
as set forth herein), in arrears, on February 15, May 15, August 15 and
November 15 (each an "Interest Payment Date") of each year, commencing
February 15, 2002, until the principal thereof is paid or made available for
payment.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date shall be paid, in cash or, at the Company's
election, prior to February 15, 2004, in Fleetwood Common Stock to the Person
in whose name a Security is registered at the close of business on the
regular record date for such interest installment, which shall be the date
that is 15 days prior to the Interest Payment Date (whether or not a Business
Day) (the "Regular Record Date"), as the case may be, next preceding such
Interest Payment Date. The Company may elect to pay such interest by delivery
of shares of Fleetwood Common Stock pursuant to this Section 301 if and only
if the following conditions shall have been satisfied:
(1) The shares of Fleetwood Common Stock deliverable in
payment of the interest shall have a fair market value as of the
Interest Payment Date of not less than the interest as determined by
this Section 301 hereof. For purposes of this Section 301, the fair
market value of shares of Fleetwood Common Stock shall be determined by
the Company and shall be equal to 90% of the average of the Closing
Price for the five
14
<Page>
consecutive Trading Days immediately preceding the second Trading Day
prior to the Interest Payment Date.
(2) Interest shall be paid only in cash in the event any
shares of Fleetwood Common Stock to be issued for the payment of
interest on the Securities hereunder (i) require registration under any
federal securities law before such shares may be freely transferable
without being subject to any transfer restrictions under the Securities
Act upon issuance and if such registration is not completed or does not
become effective prior to the Interest Payment Date, and/or (ii)
require registration with or approval of any governmental authority
under any state law or other federal law before such shares may be
validly issued or delivered upon issuance and if such registration is
not completed or does not become effective or such approval is not
obtained prior to the Interest Payment Date;
(3) The Fleetwood Common Stock is, or shall have been,
approved for quotation on the Nasdaq National Market or listing on the
New York Stock Exchange, in either case, prior to the Interest Payment
Date; and
(4) All shares of Fleetwood Common Stock which may be issued
with respect to the payment of interest on the Securities will be
issued out of the Company's authorized but unissued Fleetwood Common
Stock and, will upon issue, be duly and validly issued and fully paid
and non-assessable and free of any preemptive rights.
If all of the conditions set forth in the preceding paragraph are not
satisfied in accordance with the terms thereof, the interest required to be paid
or duly provided for by the Company pursuant to this Section shall be paid by
the Company only in cash.
Holders of Securities shall be provided notice of the Company's
election to pay interest in Fleetwood Common Stock instead of cash no later than
the relevant Regular Record Date. Interest will compound quarterly and will
accrue at the rate of 9.75% per annum on any interest installment in arrears for
more than one quarter or during an extension of an interest payment period as
set forth in Section 312 hereof.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months, and, for any period of less
than a full calendar month, the actual number of days elapsed in such month. In
the event that any date on which interest is payable on the Securities is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
If at any time while the Property Trustee is the Holder of any
Securities, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any such case, the Company will pay as additional interest ("Additional
Interest") on the Securities held by the Property Trustee, to the extent
permitted by applicable
15
<Page>
law, such additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee after paying such
taxes, duties, assessments or other governmental charges will be equal to the
amounts the Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other government charges been imposed.
The principal of the Securities shall be payable at the office or
agency of the Company in the United States maintained for such purpose and at
any other office or agency maintained by the Company for such purpose in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. The interest on the
Securities shall be payable, if paid in cash, at and in the same manner as the
payment of principal described in the preceding sentence (PROVIDED, HOWEVER,
that any such payment of interest may be made at the option of the Company by
check mailed to the address of the holder entitled thereto or by wire transfer
to an account in the United States appropriately designated by the holder
entitled thereto prior to the record date for the corresponding interest payment
date) or, if at the Company's election the interest is paid in shares of
Fleetwood Common Stock, the Company shall register such shares in the name of
the Holder entitled thereto. Notwithstanding the foregoing, so long as the
holder of any Securities is the Property Trustee, the payment of principal on
the Securities held by the Property Trustee will be made by wire transfer at
such place and to such account in the United States as may be designated by the
Property Trustee, and any interest (x) paid in cash shall be paid to the
Property Trustee at and in the same manner as the payment of principal and (y)
paid in shares of Fleetwood Common Stock shall be registered in the name of the
Property Trustee or such other name as the Property Trustee shall designate in
writing.
The Securities shall be redeemable as provided in Article Eleven
hereof.
The Securities shall be subordinated in right of payment to Senior
Indebtedness and senior and prior in right of payment to the Preferred
Securities Guarantee, the Common Securities Guarantee, the Existing Debentures,
the Existing Common Securities Guarantee and the Existing Preferred Securities
Guarantee, as provided in Article Twelve hereof.
The Securities shall be convertible as provided in Article Thirteen
hereof.
SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $20 and integral multiples thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
16
<Page>
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order, an Officers'
Certificate and an Opinion of Counsel, as contemplated by Section 102, for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall manually authenticate and make available for
delivery such Securities as in this Indenture provided and not otherwise.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities, at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and
make available for delivery in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(A) GENERAL.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees,
17
<Page>
one or more new Securities of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1108 or 1301 not involving any transfer.
The Company shall not be required (i) in the case of a partial
redemption of the Securities, to issue, register the transfer of, or exchange,
any Security during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of Securities selected for
redemption under Section 1104 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
(B) TRANSFER PROCEDURES AND RESTRICTIONS.
Upon any distribution of the Securities to the holders of the Preferred
Securities in accordance with the Declaration, the Company and the Trustee shall
enter into a supplemental indenture pursuant to Section 901(6) to provide for
transfer procedures and restrictions with respect to the Securities
substantially similar to those contained in the Declaration to the extent
applicable in the circumstances existing at the time of such distribution.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as
18
<Page>
may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date, shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money, or such number of shares of Fleetwood
Common Stock, the value of which shall be determined as set forth in
Section 301, equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest, or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money or shares of Fleetwood Common
19
<Page>
Stock when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest, which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and, if so
listed, upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue (including in each such case Compounded Interest),
which were carried by such other Security.
In the case of any Security that is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security that is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable, and the Company shall
not make nor be required to make any other payment, adjustment or allowance with
respect to accrued but unpaid interest (including Additional Payments, if any)
on the Securities being converted, which shall be deemed to be paid in full.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 307) interest (including Additional Payments, if any) on such Security
and for all other purposes whatsoever, whether or not such Security is overdue,
and
20
<Page>
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order; PROVIDED, HOWEVER, that the Trustee shall not be required to destroy the
certificates representing such cancelled Securities.
SECTION 310. RIGHT OF SETOFF.
Notwithstanding anything to the contrary in this Indenture, the Company
shall have the right to set off any payment it is otherwise required to make
hereunder to the extent the Company has theretofore made, or is concurrently on
the date of such payment making, a payment under the Preferred Securities
Guarantee.
SECTION 311. CUSIP NUMBERS.
At any time when the Securities are not held solely by the Trust, the
Company shall obtain and use "CUSIP" numbers, and the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; PROVIDED, that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
SECTION 312. EXTENSION OF INTEREST PAYMENT PERIOD; NOTICE OF EXTENSION.
(a) So long as the Company shall not be in default in the payment of
interest on the Securities, the Company shall have the right, at any time on
or after February 15, 2004 and from time to time thereafter during the term
of the Securities, to defer payments of interest (including Additional
Interest, if any) by extending any interest payment period for successive
periods not exceeding 20 consecutive quarters for each such period (an
"Extension Period"). To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 312, will bear interest at the per
annum rate specified in Section 301 compounded quarterly for each quarter of
the Extension Period ("Compounded Interest"); PROVIDED, that during an
Extension Period, the Company shall be subject to the provisions of Section
1008 hereof. At the end of the Extension Period, the Company shall pay all
interest then accrued and unpaid on the Securities, including any Additional
Payments, that shall be payable to the Holders of the Securities in whose
names the Securities are registered in the Security Register on the first
Regular Record Date after the
21
<Page>
end of the Extension Period. Before the termination of any Extension Period, the
sCompany may further extend such period, PROVIDED, that such period together
with all such further extensions thereof shall not exceed 20 consecutive
quarters or extend beyond the maturity of the Securities or end other than on an
Interest Payment Date. Upon the termination of any Extension Period and upon the
payment of all amounts then due on the Securities, including any Additional
Payments, the Company may commence a new Extension Period, subject to the
foregoing requirements. No interest shall be due and payable during an Extension
Period except at the end thereof.
(b) The Company must give the Property Trustee, the Regular Trustees
and the Trustee notice of its election to begin an Extension Period at least one
Business Day prior to the earliest of (i) the date the distribution on the
Preferred Securities would have been payable except for the election to begin
such Extension Period or (ii) if applicable, the date the Regular Trustees are
required to give notice of the Regular Record Date to the NYSE, the Nasdaq
National Market or other applicable self-regulatory organization or to holders
of such Preferred Securities of the record date or (iii) the date such
distribution is payable, but in any event not less than one Business Day prior
to the Regular Record Date. The Trustee shall give notice of the Company's
election to begin an Extension Period to the holders of the Securities and the
Regular Trustees shall give notice of the Company's election to the holders of
the Preferred Securities.
(c) The quarter in which any notice is given pursuant to paragraph (b)
hereof shall be counted as one of the 20 quarters permitted in the maximum
Extension Period permitted under paragraph (a) hereof.
SECTION 313. PAYING AGENT, SECURITY REGISTRAR AND CONVERSION AGENT.
The Trustee will initially act as Paying Agent, Security Registrar and
Conversion Agent. The Company may change any Paying Agent, Security Registrar,
co-registrar or Conversion Agent without prior notice. The Company or any of its
Affiliates may act in any such capacity.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
On demand and at the expense of the Company, this Indenture shall cease
to be of further effect (except as to the obligations to pay Additional Payments
and the rights of conversion, registration of transfer or exchange of Securities
herein provided for), and the Trustee, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities that have been destroyed,
lost or stolen and that have been replaced or paid as provided
in Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
22
<Page>
(B) all such Securities not theretofore delivered to
the Trustee for cancellation (i) have become due and payable,
or (ii) will become due and payable at their Stated Maturity
within one year, or (iii) are to be called for redemption
within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company; and the Company, in
the case of (i), (ii) or (iii) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for
the purpose an amount in U.S. Dollars sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee, for cancellation, for
principal (and premium, if any) and interest (including
Compounded Interest and Additional Interest, if any) to the
date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive. The Company will also continue to be
obligated to pay Additional Payments to the extent the amount thereof exceeds
the amount so deposited.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee. All moneys
deposited with the Trustee pursuant to Section 401 (and held by it or any Paying
Agent) for the payment of Securities subsequently converted shall be returned to
the Company upon Company Request.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
23
<Page>
(1) default in the payment of any interest on the Securities
(including Additional Payments, if any, in respect thereof), when the
same shall become due and payable, and continuance of such default for
a period of 30 days, provided that a valid extension of an interest
payment period will not constitute a default in the payment of any
interest (including Additional Interest or Compounded Interest, if any)
for this purpose;
(2) default in the payment of the principal of or premium, if
any, on any Security when due upon Maturity (whether upon redemption or
otherwise);
(3) failure by the Company (i) to deliver any shares of
Fleetwood Common Stock upon an appropriate election by a registered
holder of Securities to convert such Securities, provided that such
election is made in accordance with applicable provisions of the
Indenture, or (ii) if an Additional Redemption Distribution is payable,
to make such payment when due;
(4) default by the Company in the performance, or breach, of
any other covenant or warranty of the Company in this Indenture or a
Security, and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder;
(5) the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with the distribution of
Securities to holders of Trust Securities in liquidation of the Trust
upon the occurrence of a Special Event, upon the redemption of all of
the outstanding Trust Securities, upon the conversion of all the
outstanding Trust Securities, or upon any merger, consolidation or
amalgamation, each as permitted by the Declaration;
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any
24
<Page>
bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by it
to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of any such action.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default occurs and is continuing, then the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities may declare the principal of all the Securities, accrued and unpaid
interest, if any (including any Additional Payments) and Additional Redemption
Distributions, if any, thereon to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal or such lesser amount, as the case may be,
such accrued and unpaid interest and such Additional Redemption Distributions,
if any, shall become immediately due and payable.
At any time after Securities have been accelerated and before a
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of not less than a majority
in aggregate principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(a) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay
(i) all overdue interest on any Securities that have become
due otherwise than by such declaration of acceleration and any
Additional Payments with respect thereto,
(ii) the principal of any premium, and any Additional
Redemption Distributions on any Securities that have become due
otherwise than by such declaration of acceleration and any Additional
Payments with respect thereto and, to the extent permitted by
applicable law, interest thereon at the rate borne by the Securities,
(iii) to the extent permitted by applicable law, interest upon
installments of any interest, if any, that has become due otherwise
than by such declaration of acceleration and any Additional Payments
with respect thereto at the rate borne by or provided for in the
Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and
the compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due the Trustee under
Section 607; and
(b) all Events of Default, other than the non-payment of the principal
of, any premium, interest on and any Additional Redemption Distributions on, and
any Additional
25
<Page>
Payments with respect to, the Securities that shall have become due solely by
such declaration of acceleration, shall have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest (including
any Additional Payments) on any Security when such interest becomes due
and payable and such default continues for a period of 30 days
(provided that a valid extension of the interest payment period by the
Company pursuant to this Indenture shall not constitute a default in
the payment of any interest (including any Additional Payments) for
this purpose), or
(2) default is made in the payment of the principal of any
Security at the Maturity thereof or the payment of any Additional
Redemption Distributions when due,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, interest (including any Additional Payments
and Additional Redemption Distributions) and, to the extent that payment thereof
shall be legally enforceable, interest on any overdue principal, any premium and
on any overdue interest (including any Additional Interest) and Additional
Redemption Distributions, at the rate borne by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and all other amounts due to the
Trustee under Section 607.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
26
<Page>
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Subject to Article Twelve, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal or interest (including any Additional Payments), upon presentation
of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of, any premium, interest (including any Additional Payments)
and Additional Redemption Distributions on the Securities in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium, interest (including any Compounded Interest) and Additional
Redemption Distributions, respectively; and
THIRD: Any remaining amounts shall be repaid to the Company.
27
<Page>
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity satisfactory to the Trustee has failed
to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDER TO RECEIVE PRINCIPAL AND ANY PREMIUM
AND INTEREST AND TO CONVERT.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and any premium, if any, (subject to
Section 307) interest (including any Additional Payments) and Additional
Redemption Distributions on, such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to convert such Security in accordance with Article Thirteen and to
institute suit for the enforcement of any such payment and right to convert, and
such rights shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
28
<Page>
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAYS OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee; PROVIDED, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction; and
(3) such direction is not unduly prejudicial to the rights of
the other Holders of Securities not joining in such action.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 902 hereof, the Holders of not less than 66-2/3% in
aggregate principal amount of the Outstanding Securities may, on behalf of the
Holders of all the Securities, waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of, and any premium,
interest (including any Additional Payments) or Additional Redemption
Distributions on, any Security
29
<Page>
(unless such default has been cured and a sum sufficient to pay all
matured installments of interest (including any Additional Payments),
principal and Additional Redemption Distributions due otherwise than by
acceleration has been deposited with the Trustee); or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
However, while any Preferred Securities are outstanding, an Event of
Default with respect to the Securities may not be waived without the consent of
66-2/3% in aggregate liquidation amount of the Preferred Securities.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; PROVIDED, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Trustee or in
any suit for the enforcement of the right to receive the principal of, and any
interest (including any Additional Payments) and Additional Redemption
Distributions on, any Security or to convert any Security in accordance with
Article Thirteen.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 516. ENFORCEMENT BY HOLDERS OF PREFERRED SECURITIES.
Notwithstanding anything to the contrary contained herein, an event of
default under the Declaration has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest, including any
Additional Payments or Additional Redemption Distributions, or principal on the
Securities on the date such interest, Additional Redemption Distributions and
principal are otherwise payable (or in the case of redemption, the redemption
date), a holder of Preferred Securities may directly institute a proceeding for
enforcement of
30
<Page>
payment to such holder of the principal of, or Additional Redemption
Distributions and interest, including any Additional Payments, on the Securities
having a principal amount equal to the aggregate liquidation amount of the
Preferred Securities of such holder on or after the due date specified in the
Securities. In connection with such a direct proceeding, the Company will remain
obligated to pay the principal and interest on the Securities and will be
subrogated to the rights of such holders of Preferred Securities under the
Declaration to the extent of any payment made by the Company to such holder of
Preferred Securities in such a direct proceeding.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions by
which any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(b) In the case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any
31
<Page>
series, determined as provided in Sections 101, 104 and 512, relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the
Securities of such series.
Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default hereunder as
and to the extent provided by the Trust Indenture Act; PROVIDED, HOWEVER, that
in the case of any default of the character specified in Section 501(4), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
that is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) shall, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity
32
<Page>
satisfactory to the Trustee against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to reasonable
examination of the books, records and premises of the Company, personally or by
agent or attorney at the sole cost of the Company and shall incur no liability
or additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with the prior written
consent of the Company and with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture,
unless it shall be proven that the Trustee was negligent in ascertaining the
pertinent facts.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of the Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar, or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
33
<Page>
(1) to pay to the Trustee from time to time such compensation
as the Company and the Trustee shall from time to time agree in writing
for all services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or willful misconduct; and
(3) to indemnify the Trustee, its agents and counsel and any
predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder,
including the costs and expenses of defending itself against any claim
(whether asserted by the Company, or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its
powers or duties hereunder, or in connection with enforcing the
provisions of this Section, except to the extent that such loss,
damage, claim, liability or expense is due to its own negligence or bad
faith.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 608. DISQUALIFICATION; CONFLICTING INTEREST.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time
34
<Page>
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee under Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning
Trustee may petition, at the reasonable expense of the Company, any
court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company. If an
instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice
of removal, the retiring Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee, or (ii) subject
to Section 514, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders
of a majority in aggregate principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee,
35
<Page>
the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor Trustee
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been
a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to
all Holders in the manner provided in Section 106. Each notice shall
include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; PROVIDED, that on request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments required to more fully and
certainly vest in and confirm to such successor Trustee all such rights, powers
and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to or purchasing all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
36
<Page>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not later than February 15 and August 15 in
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of a date not more than 15
days prior to the delivery thereof, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION: COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year, commencing May 15, 2002,
the Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust
Indenture Act in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
37
<Page>
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; PROVIDED, that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge with or into any other
Person or, directly or indirectly, convey, transfer or lease all or
substantially all of its properties and assets on a consolidated basis to any
Person, unless:
(1) in case the Company shall consolidate with or merge with
or into another Person or convey, transfer or lease all or
substantially all of its properties and assets on a consolidated basis
to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance,
transfer or lease, all or substantially all of the properties and
assets of the Company on a consolidated basis shall be a corporation
organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the
Trustee, the due and punctual payment of the principal of, premium, if
any, and interest (including Additional Payments), if any, and
Additional Redemption Distributions, if any, on all the Securities
outstanding under this Indenture and the performance or observance of
the Company's obligations under this Indenture and the Securities
outstanding hereunder on the part of the Company to be performed or
observed and shall have provided for conversion rights in accordance
with Article Thirteen;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event that, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
38
<Page>
(3) such consolidation or merger or conveyance, transfer or
lease of assets of the Company is permitted under, and does not give
rise to any breach or violation of, the Declaration or the Preferred
Securities Guarantee; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of all or
substantially all the properties and assets of the Company on a consolidated
basis in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the Events of Default or the covenants of the
Company for the benefit of the Holders, or to surrender any right or
power herein conferred upon the Company; or
(3) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article Thirteen; or
(4) to cure any ambiguity, to correct or supplement any
provision herein that may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture; PROVIDED, that such action
pursuant to this clause (4) shall not adversely affect the interests of
the Holders of the Securities or,
39
<Page>
so long as any of the Preferred Securities shall remain outstanding,
the holders of the Preferred Securities; or
(5) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act; or
(6) to make provision for transfer procedures, certification,
book-entry provisions, the form of restricted securities legends, if
any, to be placed on Securities, and all other matters required
pursuant to Section 305(b) or otherwise necessary, desirable or
appropriate in connection with the issuance of Securities to holders of
Preferred Securities in the event of a distribution of Securities by
the Trust if a Special Event occurs and is continuing; or
(7) to comply with the requirements of the New York Stock
Exchange or such other national securities exchange or automated
quotation system, if any, on which the Securities are then listed.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
premium, if any, or (except as permitted by Section 312) any
installment of interest (including any Additional Payments) on, any
Security, or reduce the principal amount thereof, or reduce the rate or
(except as permitted by Section 312) extend the time for payment of
interest thereon, or reduce any premium payable upon the redemption
thereof, or reduce any Additional Redemption Distribution payable upon
the conversion thereof, or change the place of payment where, or the
coin or currency in which, any Security or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or adversely affect the
right to convert any Security as provided in Article Thirteen,
(2) reduce the percentage in aggregate principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such modification or amendment or the consent of whose holders is
required for any waiver under this Indenture or reduce the requirements
for a quorum or voting at a meeting of Holders of the Securities,
(3) modify any of the provisions of Article 12 hereof or the
definition of Senior Indebtedness in a manner adverse to the Holders of
the Securities, or
40
<Page>
(4) modify any of the provisions of this Section or Section
513, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected
thereby;
PROVIDED, that so long as any of the Preferred Securities remains outstanding,
no waiver of any Event of Default shall be effective, without the prior consent
of the holders of at least 66-2/3% of the aggregate liquidation amount of the
outstanding Preferred Securities.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; PROVIDED, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes, and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. No such supplemental indenture shall directly or
indirectly modify the provisions of Article Twelve in any manner that might
terminate or impair the rights of the Senior Indebtedness pursuant to such
subordination provisions.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
41
<Page>
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
COVENANTS; REPRESENTATIONS AND WARRANTIES
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
The Company will duly and punctually pay the principal of, premium, if
any, and interest (including any Additional Payments) and Additional Redemption
Distributions on the Securities when due in accordance with the terms of the
Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the United States an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
United States for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of, or interest, or Additional
Redemption Distributions on any of the Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum (including Fleetwood
Common Stock, if the Company shall have elected to pay interest in Fleetwood
Common Stock pursuant to Section 301) sufficient to pay the principal, interest
or Additional Redemption Distributions so becoming due until such sums shall be
paid to such
42
<Page>
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of, or interest or Additional Redemption
Distributions on, any Securities, deposit with a Paying Agent a sum (including
Fleetwood Common Stock, if the Company shall have elected to pay interest in
Fleetwood Common Stock pursuant to Section 301) sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money or Fleetwood Common Stock deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the
principal of, or interest or Additional Redemption Distributions, on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of any such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money or Fleetwood Common Stock,
and all liability of the Company as trustee thereof, shall thereupon cease.
SECTION 1004. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not, to the best knowledge of the signers
thereof, the Company is in default in the performance and observance of any of
the material terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
43
<Page>
SECTION 1005. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five (5) days after the Company becomes aware of the occurrence
of any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
SECTION 1006. LIMITATION ON DIVIDENDS; COVENANTS AS TO THE TRUST.
(a) The Company covenants that, so long as any Securities are
outstanding, if (x) there shall have occurred and be continuing an Event of
Default or event that, with the giving of notice or the lapse of time or both,
would constitute an Event of Default or (y) the Company shall be in default with
respect to its payment of any obligations under the Preferred Securities
Guarantee, then (a) the Company shall not declare or pay dividends on, make any
distribution with respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to any of its capital stock (other than (i) purchases or
acquisitions of Fleetwood Common Stock in connection with the satisfaction by
the Company of its obligations under any existing employee benefit plans or
future employee benefit plans established in the ordinary course or the
satisfaction by the Company of its obligations pursuant to any existing contract
or security requiring the Company to purchase Fleetwood Common Stock, (ii) as a
result of a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock, or (iii) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged (or make any guarantee
payments with respect to the foregoing)) and (b) the Company shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by the Company that rank pari passu with or
junior to the Securities; PROVIDED, FURTHER, that the Company may declare and
pay a stock dividend where the dividend stock is the same stock as that on which
the dividend is paid.
(b) The Company also covenants and agrees that, for so long as the
Trust Securities remain outstanding, the Company shall (i) directly or
indirectly maintain 100% ownership of the Common Securities of the Trust;
PROVIDED, HOWEVER, that any permitted successor of the Company hereunder may
succeed to the Company's ownership of such Common Securities, (ii) not cause, as
sponsor of the Trust, or permit, as the holder of the Common Securities, the
termination, dissolution or winding up of the Trust, except in connection with a
distribution of Securities, as provided in the Declaration and in connection
with certain mergers, consolidations or amalgamations as permitted by the
Declaration, and (iii) use its reasonable efforts, consistent with the terms and
provisions of the Declaration, to cause the Trust to (x) remain a statutory
business trust, except in connection with the distribution of the Securities to
the holders of Trust Securities in liquidation of the Trust, the redemption of
all of the Trust Securities of the Trust, or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration, and (y) otherwise continue
to be classified as a grantor trust for United States federal income tax
purposes.
44
<Page>
SECTION 1007. PAYMENT OF EXPENSES OF THE TRUST.
In connection with the Exchange Offer and the sale and issuance of the
Securities to the Property Trustee in connection with the sale of the Trust
Securities by the Trust, the Company shall:
(a) pay for all fees and expenses relating to the offering, sale and
issuance of the Securities and the Preferred Securities, including fees and
expenses payable to the Dealer-Manager pursuant to the Dealer-Manager Agreement
and to the Placement Agent pursuant to the Distribution Agreement, and
compensation of the Trustee in accordance with the provisions of Section 607;
(b) be responsible for and pay for all debts and obligations (other
than with respect to the Trust Securities) of the Trust, pay for all fees and
expenses of the Trust (including, but not limited to, fees and expenses relating
to the organization of the Trust, the offering, sale and issuance of the Trust
Securities, the fees and expenses of the Property Trustee and the Delaware
Trustee, the fees and expenses relating to the operation of the Trust, including
without limitation, fees and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and fees
and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets);
(c) pay for all fees and expenses related to the retention of the
Property Trustee;
(d) pay for all fees and expenses related to the enforcement by the
Property Trustee of the rights of the holders of the Preferred Securities; and
(e) pay any and all income taxes, duties and other governmental
charges, and all costs and expenses relating to these charges, to which the
trust may become subject, which shall not include United States withholding
taxes but shall include liabilities imposed on the Trust as withholding agent.
SECTION 1008. LIMITATION OF TRANSACTIONS.
If the Company shall exercise its right to defer payment of interest as
provided in Section 312, then during the Extension Period, (a) the Company shall
not declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (A) (i) purchases or acquisitions of shares of the
Company's capital stock (or capital stock equivalents) in connection with the
satisfaction by the Company of its obligations under any officers, directors or
employee benefit plans existing on the date of hereof or future officers, direct
or employee benefit plans established in the ordinary course (or any options or
other instruments issued thereunder) or the satisfaction by the Company of its
obligations pursuant to any contract or security requiring the Company to
purchase shares of the Company's capital stock (or capital stock equivalents),
(ii) purchases of shares of the Company's capital stock (or capital stock
equivalents) from officers, directors or employees of the Company or its
subsidiaries pursuant to employment agreements or upon termination of employment
or retirement, (iii) as a result of a
45
<Page>
reclassification, combination or subdivision of the Company's capital stock or
the exchange or conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock, (iv) dividends or
distributions of shares of common stock on common stock, (v) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or any security being
converted or exchanged into such capital stock, (vi) dividends or distributions
in shares of its capital stock of the same class on which such dividend or
distribution is being made and conversions or exchanges of common stock of one
class into common shares of another class, (vii) purchases or other acquisitions
of common stock in connection with a dividend reinvestment or other similar
plan, or (viii) any dividend or distribution of capital stock (or capital stock
equivalents) in connection with the implementation of a stockholders' rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, or (B) guarantee
payments made with respect to any of the foregoing), (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company that rank PARI
PASSU with or junior to the Securities and (c) the Company shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Common Securities Guarantee or the Preferred Securities Guarantee).
SECTION 1009. LISTING OF SECURITIES
If the Securities are distributed to the holders of the Preferred
Securities, the Company will use its best efforts to have the Securities listed
on the New York Stock Exchange or on such other national securities exchange or
similar organization, if any.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. RIGHT OF REDEMPTION.
(a) The Securities may be redeemed at the election of the Company,
as a whole or in part, at any time or from time to time on or after February
15, 2004, at the Redemption Prices set forth in Section 1109(b)(ii) below.
The Securities may be redeemed, in whole but not in part, at the Company's
option at any time before February 15, 2004 at the Redemption Price set forth
in Section 1109(b)(i) below if the Closing Price of Fleetwood Common Stock
has exceeded 200% of the Conversion Price for at least twenty (20) Trading
Days during a 30-day Trading Day period ending five (5) Trading Days prior to
the date of the notice of redemption described in Section 1105 below.
(b) The Securities may be redeemed as provided in Section 1110 of this
Article Eleven as a whole but not in part at the election of the Company at any
time within 90 days following the occurrence of a Tax Event; PROVIDED, HOWEVER,
that, subject to Section 1110 of this Article Eleven, if, at the time there is
available to the Company or the Trust the opportunity to eliminate, within such
90-day period, the Tax Event by taking some ministerial action, including but
not limited to filing a form or making an election, or pursuing some other
similar reasonable measure, which, in the sole judgment of the Company, has or
will cause no adverse effect on the Trust, the Company or the Holders of the
Trust Securities and involves or will involve no material cost, then the Company
or the Trust shall pursue such measure in lieu of redemption.
46
<Page>
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company, as permitted
by Section 1101, shall be made in accordance with such provision and this
Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem Securities pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days and no more than 90
days prior to the Redemption Date fixed by the Company, notify the Trustee of
such Redemption Date and of the principal amount of Securities to be redeemed,
and the Company shall provide the Trustee with a copy of the notice of
redemption given to Holders of Securities to be redeemed pursuant to Section
1104.
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities not previously called for
redemption, on a pro rata basis, in portions equal to $20 (or any integral
multiple thereof) of the principal amount of the Securities.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities that has been or is to be
redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed, in the case of a redemption at any time prior to February
15, 2004, not less than 15 days nor more than 30 days before the Redemption
Date and, in all other cases, not less than 30 nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be redeemed, at such
Holder's address appearing in the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including the CUSIP number) and shall state:
47
<Page>
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date,
(4) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(5) a description of all material conversion features.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest (including Additional
Payments, if any) on, all the Securities that are to be redeemed on that date.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
(including Additional Payments, if any) to the Redemption Date; PROVIDED,
HOWEVER, that installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to the terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Security.
SECTION 1108. SECURITIES REDEEMED IN PART.
In the event of any redemption in part, the Company shall not be
required to (i) issue, register the transfer of, or exchange any Security during
a period beginning at the opening of business 15 days before any selection for
redemption of Securities and ending at the close of
48
<Page>
business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all holders of Securities to be so redeemed and
(ii) register the transfer of or exchange any Securities so selected for
redemption, in whole or in part, except for the unredeemed portion of any
Securities being redeemed in part.
Any Security that is to be redeemed only in part shall be surrendered
at a place of payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
SECTION 1109. OPTIONAL REDEMPTION.
(a) Except as provided in Sections 1109(b) and 1110, the Securities
shall not be subject to redemption at the option of the Company prior to
February 15, 2004.
(b) Subject to the provisions of this Article Eleven, the Company shall
have the right to redeem the Securities (i) in whole but not in part, at the
Company's option at any time before February 15, 2004 at a Redemption Price
equal to 100.00% of the aggregate principal amount of the Securities if the per
share price of Fleetwood Common Stock has exceeded 200% of the Conversion Price
for at least 20 Trading Days during a 30-day Trading Day period ending 5 Trading
Days prior to the date of the notice of redemption described in Section 1105
above, upon not less than 15 nor more than 30 days' notice to Holders of the
Securities, and (ii) in whole or in part, from time to time, on or after
February 15, 2004, upon not less than 30 nor more than 60 days' notice to the
Holders of the Securities (which notice shall state (A) the Redemption Date, (B)
whether the Additional Redemption Distribution, if any, shall be paid by the
Company in cash or by delivery of Fleetwood Common Stock, (C) the procedures
pursuant to which such Securities are to be surrendered for conversion and
receipt of the Additional Redemption Distribution, if any, and (D) the
Conversion Price then in effect), at the following prices (expressed as
percentages of the principal amount of the Securities), together (except as
provided below) with accrued and unpaid interest, including, to the extent
permitted by applicable law, Additional Payments, if any, to, but excluding, the
Redemption Date, if redeemed during the 12-month period beginning
February 15:
<Table>
<Caption>
YEAR REDEMPTION
---- ----------
2004................................................... 106.500%
2005................................................... 104.875%
2006................................................... 103.250%
2007................................................... 101.625%
</Table>
and 100% if redeemed on or after February 15, 2008. Notwithstanding the
foregoing provisions of this Section 1109(b), if the Company shall redeem any
Securities pursuant to
49
<Page>
Section 1110 hereof on or after February 15, 2004, then the Redemption Price
of such Securities shall be the Redemption Price set forth in Section 1110 and
not the Redemption Price set forth in this Section 1109(b).
Without limitation to the proviso to the first paragraph of Section
1107 hereof, if Securities are redeemed on any date in the period beginning on
any record date and ending on the next February 15, May 15, August 15 or
November 15, accrued and unpaid interest that is due and payable on such
Interest Payment Date shall be payable to the Holders of record at the close of
business on the relevant Regular Record Date.
In the event the Company delivers a notice of redemption to exercise
its right to redeem the Securities at any time prior to February 15, 2004, if
a Holder of Securities converts such Securities to Fleetwood Common Stock
pursuant to Article Thirteen during the period following a notice of
redemption and prior to the Redemption Date, then the Company shall pay such
Holder, in cash or shares of Fleetwood Common Stock, at the election of the
Company, an amount equal to interest payments payable on such securities
through February 15, 2004, less any interest actually paid with respect to
such Securities in accordance with the provisions of Section 301 prior to the
applicable Conversion Date (the "Additional Redemption Distribution"). The
Company may elect to pay such Additional Redemption Distribution by delivery
of shares of Fleetwood Common Stock pursuant to this Section 1109(b) if and
only if the following conditions shall have been satisfied:
(1) The shares of Fleetwood Common Stock deliverable in payment of the
Additional Redemption Distribution shall have a fair market value as of the
applicable Conversion Date of not less than the Additional Redemption
Distribution as determined by this Section 1109(b). For purposes of this Section
1109(b), the fair market value of shares of Fleetwood Common Stock shall be
determined by the Company and shall be equal to 90% of the average of the
Closing Price for the five consecutive Trading Days immediately preceding the
second Trading Day prior to the applicable Conversion Date.
(2) The Additional Redemption Distribution shall be paid only in cash
in the event any shares of Fleetwood Common Stock to be issued for the payment
of the Additional Redemption Distribution hereunder (i) require registration
under any federal securities law before such shares may be freely transferable
without being subject to any transfer restrictions under the Securities Act upon
issuance and if such registration is not completed or does not become effective
prior to the applicable Conversion Date, and/or (ii) require registration with
or approval of any governmental authority under any state law or other federal
law before such shares may be validly issued or delivered upon issuance and if
such registration is not completed or does not become effective or such approval
is not obtained prior to the applicable Conversion Date;
(3) The Fleetwood Common Stock is, or shall have been, approved for
quotation on the Nasdaq National Market or listing on the New York Stock
Exchange, in either case, prior to the applicable Conversion Date; and
(4) All shares of Fleetwood Common Stock which may be issued with
respect to the payment of the Additional Redemption Distribution will be issued
out of the Company's
50
<Page>
authorized but unissued Common Stock and, will upon issue, be duly and validly
issued and fully paid and non-assessable and free of any preemptive rights.
If all of the conditions set forth in the preceding paragraph are not
satisfied in accordance with the terms thereof, the Additional Redemption
Distribution required to be paid or duly provided for by the Company pursuant to
this Section shall be paid by the Company only in cash.
In the event of such conversion prior to February 15, 2004 during
the period following a notice of redemption and prior to the Redemption Date,
the Company shall issue and deliver a certificate or certificates for the
number of full shares of Fleetwood Common Stock issuable upon conversion of
the Securities and the Additional Redemption Distribution, if any, due on
such Securities, along with any cash in respect of any fractional shares of
Fleetwood Common stock otherwise issuable upon conversion or in the event
that the Company elects to pay Additional Redemption Distribution, if any, in
Fleetwood Common Stock instead of cash, for payment to the Holder as promptly
on or after the applicable Conversion Date as practicable in accordance with
the provisions of Article Thirteen.
So long as any Trust Securities are outstanding, (a) the proceeds from
the redemption of the Securities will be used to redeem Trust Securities having
an aggregate liquidation amount equal to the aggregate principal amount of the
Securities so redeemed and (b) any Additional Redemption Distributions shall be
used as distributions to holders of Trust Securities that are converted prior to
a redemption of Trust Securities occurring before February 15, 2004.
The Redemption Price for the Securities to be redeemed shall be paid on
the Redemption Date or at such earlier time as the Company determines; provided
that the Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price on the date such Redemption Price is to be paid.
SECTION 1110. TAX EVENT REDEMPTION.
If a Tax Event has occurred and is continuing, and after receiving a
Dissolution Tax Opinion, the Regular Trustees shall have been informed by tax
counsel rendering the Dissolution Tax Opinion that a No Recognition Opinion
cannot be delivered to the Trust, then the Company shall have the right, upon
not less than 30 days nor more than 60 days notice to the Holders of the
Securities, to redeem the Securities, in whole or in part for cash, at a
redemption price equal to 100% of the principal amount thereof plus accrued and
unpaid interest thereon (including, to the extent permitted by applicable law,
Additional Payments, if any) to but excluding the date of such redemption,
within 90 days following the occurrence of such Tax Event (the "90-Day Period");
PROVIDED, HOWEVER, that if at the time there is available to the Company or the
Trust the opportunity to eliminate, within such 90-Day Period, the Tax Event by
taking some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable measure that in the sole judgment of the
Company has or will cause no adverse effect on the Company, the Trust or the
holders of the Trust Securities and will involve no material costs, the Company
or the Trust will pursue such ministerial action in lieu of redemption.
51
<Page>
SECTION 1111. CERTAIN LIMITATIONS ON REDEMPTION.
(a) If a partial redemption of the Securities would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
listed, the Company shall not be permitted to effect such partial redemption and
may only redeem the Securities in whole.
(b) The Company may not redeem any Securities unless all accrued and
unpaid interest thereon (including, to the extent permitted by law, Additional
Payments, if any) has been or is contemporaneously paid (or duly provided for)
for all quarterly interest payment periods terminating on or prior to the date
of notice of redemption.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 1201. AGREEMENT TO SUBORDINATE.
The Company covenants and agrees, and each Holder of Securities by such
Holder's acceptance thereof likewise covenants and agrees, that all Securities
shall be issued subject to the provisions of this Article Twelve; and each
Holder of a Security, whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions. The payment by the
Company of the principal of, premium, if any, interest (including any Additional
Payments) and Additional Redemption Distributions, if any, on all Securities
issued hereunder shall, to the extent and in the manner hereinafter set forth,
be subordinated and junior in right of payment to the prior payment in full of
all Senior Indebtedness, whether outstanding at the date of this Indenture or
thereafter incurred; PROVIDED, HOWEVER, that no provision of this Article Twelve
shall prevent the occurrence of any default or Event of Default hereunder.
SECTION 1202. DEFAULT ON SENIOR INDEBTEDNESS.
No payment of principal (including redemption payments) of, or premium,
if any, or interest (including any Additional Interest or Compound Interest) or
Additional Redemption Distributions, if any, on the Securities may be made if
there shall have occurred and be continuing (i) a default in the payment when
due of principal of, premium, if any, sinking funds, if any, or interest, if
any, on any Senior Indebtedness of the Company and any applicable grace period
with respect to such default shall have ended without such default having been
cured or waived or ceasing to exist or (ii) an event of default with respect to
any Senior Indebtedness of the Company resulting in the acceleration of the
maturity thereof without such acceleration having been rescinded or annulled.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 1202, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days of such payment
of the amounts then due and owing on the Senior Indebtedness and only
52
<Page>
the amounts specified in such notice to the Trustee shall be paid to the holders
of Senior Indebtedness.
SECTION 1203. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution winding up, liquidation or reorganization of the
Company, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other proceedings, all amounts (including principal, premium, if
any, and interest) due or to become due upon all Senior Indebtedness shall first
be paid in full, or payment thereof provided for in money in accordance with its
terms, before any payment is made on account of the principal (and premium, if
any) or interest (including any Additional Payments) or Additional Redemption
Distributions on the Securities; and upon any such dissolution winding up,
liquidation or reorganization, any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee would be
entitled, except for the provisions of this Article Twelve, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Holders of the
Securities or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Securities before all Senior Indebtedness is paid
in full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior Indebtedness or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay such Senior Indebtedness in full
in money in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article Twelve, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article Twelve with
respect to the Securities to the payment of all Senior Indebtedness that may at
the time be outstanding; PROVIDED, that (i) such Senior Indebtedness is assumed
by the new corporation, if
53
<Page>
any, resulting from any such reorganization or readjustment, and (ii) the rights
of the holders of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Company with, or the merger of the Company with or into, another Person or
the liquidation or dissolution of the Company following the conveyance, transfer
or lease of all or substantially all its properties and assets on a consolidated
basis to another Person upon the terms and conditions provided for in Article
Eight hereof shall not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section 1203 if such other Person shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions stated in Article Eight hereof. Nothing in Section 1202 or
in this Section 1203 shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 607 hereof.
SECTION 1204. SUBROGATION.
Subject to the payment in full of all Senior Indebtedness, the rights
of the Holders of the Securities shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company, as the case may be, applicable to
such Senior Indebtedness until the principal of (and premium, if any) and
interest (including any Additional Payments) on the Securities shall be paid in
full; and, for the purposes of such subrogation, no payments or distributions to
the holders of such Senior Indebtedness of any cash, property or securities to
which the Holders of the Securities or the Trustee would be entitled except for
the provisions of this Article Twelve, and no payment over pursuant to the
provisions of this Article Twelve, to or for the benefit of the holders of such
Senior Indebtedness by Holders of the Securities or the Trustee, shall, as
between the Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Securities, be deemed to be a payment by the Company to
or on account of such Senior Indebtedness. It is understood that the provisions
of this Article Twelve are and are intended solely for the purposes of defining
the relative rights of the Holders of the Securities, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article Twelve or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest (including any Additional Payments) and Additional Redemption
Distributions, if any, on the Securities as and when the same shall become due
and payable in accordance with their terms (except as permitted by Section 312),
or is intended to or shall affect the relative rights of the Holders of the
Securities and creditors of the Company, as the case may be, other than the
holders of Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Twelve of the holders of such Senior
Indebtedness in respect of cash, property or securities of the Company, as the
case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article Twelve, the Trustee, subject to the provisions of Section 603,
and the Holders of the Securities shall be entitled to rely conclusively upon
any order or decree made by any court of competent
54
<Page>
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities, for the purposes of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, as the case may be, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Twelve.
SECTION 1205. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of Securities, by such Holder's acceptance thereof,
authorizes and directs the Trustee, on such Holder's behalf, to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article Twelve and appoints the Trustee as such Holder's attorney-in-fact
for any and all such purposes.
SECTION 1206. NOTICE BY THE COMPANY.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of moneys to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article Twelve. Notwithstanding the
provisions of this Article Twelve or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of moneys to or by the Trustee in
respect of the Securities pursuant to the provision of this Article Twelve,
unless and until a Responsible Officer of the Trustee shall have received
written notice thereof at the Corporate Trust Office of the Trustee from the
Company or a holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 603 hereof, shall be entitled in all
respects to assume that no such facts exist; PROVIDED, HOWEVER, that if the
Trustee shall not have received the notice provided for in this Section 1206 at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (and premium, if any), interest (including any
Additional Payments) or Additional Redemption Distributions, if any, on any
Security), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purposes for which they were received, and shall not be affected
by any notice to the contrary that may be received by it within two Business
Days prior to such date.
The Trustee, subject to the provisions of Section 603, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of such Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Twelve, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
right of such Person under this Article Twelve,
55
<Page>
and, if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 1207. RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Twelve in respect of any Senior Indebtedness at
any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are set forth in this Article Twelve, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of such Senior Indebtedness and, subject
to the provisions of Section 603, the Trustee shall not be liable to any holder
of such Senior Indebtedness if it shall pay over or deliver to Holders of
Securities, the Company or any other Person money or assets to which any holder
of such Senior Indebtedness shall be entitled by virtue of this Article Twelve
or otherwise. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article Twelve and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
SECTION 1208. SUBORDINATION MAY NOT BE IMPAIRED.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the holders of the Securities
and without impairing or releasing the subordination provided in this Article
Twelve or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, such Senior Indebtedness, or otherwise amend or supplement in any
manner such Senior Indebtedness or any instrument evidencing the same or any
agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
56
<Page>
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
SECTION 1301. CONVERSION RIGHTS.
Subject to and upon compliance with the provisions of this Article
Thirteen, the Securities are convertible, at the option of the Holders, at
any time prior to the close of business on February 15, 2013 (or in the case
of Securities called for redemption, prior to the close of business on the
Business Day prior to the corresponding Redemption Date), into shares of
Fleetwood Common Stock at an initial conversion price of $[___] per share of
Fleetwood Common Stock, subject to adjustment as described in this Article
Thirteen (the "Conversion Price"). A Holder of Securities may convert any
portion of the principal amount of the Securities (provided that such
principal amount is $20 or an integral multiple thereof) into that number of
fully paid and nonassessable shares of Fleetwood Common Stock obtained by
dividing the principal amount of the Securities to be converted by the
Conversion Price in effect at the close of business on the Conversion Date.
All calculations under this Article Thirteen shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be, with one-half
of a cent and 0.005 of a share being rounded upwards to the nearest cent and
1/100th of a share, respectively.
SECTION 1302. CONVERSION PROCEDURES.
(a) In order to convert all or a portion of the Securities (provided
that such principal amount is $20 or an integral multiple thereof) the Holder
thereof shall deliver to the Conversion Agent an irrevocable notice of
conversion in substantially the form appearing as part of Exhibit A-l hereto
or, in the case of a notice of conversion delivered by a holder of Trust
Securities, in substantially the form appearing in Exhibit A-l, as the case
may be, of the Declaration (each, a "Notice of Conversion") setting forth the
principal amount of Securities to be converted, together with the name or
names, if other than the Holder, in which the shares of Fleetwood Common
Stock should be issued upon conversion and, if such Securities are definitive
Securities, surrender to the Conversion Agent the Securities to be converted,
duly endorsed or assigned to the Company or in blank. In addition, a holder
of Trust Securities may exercise its right under the Declaration to convert
such Trust Securities into Fleetwood Common Stock by delivering to the
Conversion Agent an irrevocable Notice of Conversion setting forth the number
of Trust Securities to be redeemed and the other information called for by
the preceding sentence and directing the Conversion Agent (i) to exchange
such Trust Securities for a portion of the Securities held by the Trust (at
an exchange rate of $20 principal amount of Securities for each Trust
Security) and (ii) to convert such Securities as soon as practicable, on
behalf of such holder, into Fleetwood Common Stock pursuant to this Article
Thirteen and, if such Trust Securities are in definitive form, surrendering
to the Conversion Agent such Trust Securities, duly endorsed or assigned to
the Company or in blank. So long as any Trust Securities are outstanding, the
Trust shall not convert any Securities except pursuant to a Notice of
Conversion delivered to the Conversion Agent by a holder of Trust Securities.
(b) If a Security is surrendered for conversion after the close of
business on any record date for payment of interest thereon and before the
opening of business on the corresponding payment date (other than a Security or
portion of a Security called for redemption on a Redemption Date occurring after
such record date and prior to such payment date), then,
57
<Page>
notwithstanding such conversion, the interest payable on such payment date will
be paid to the Trust which will distribute such interest to the holder of the
applicable Trust Securities at the close of business on the record date or to
such other Person in whose name such Security is registered at the close of
business on such record date, as the case may be, despite such conversion, and
(other than a Security or a portion of a Security called for redemption on a
Redemption Date occurring after such record date and on or prior to such payment
date) when so surrendered for conversion, the Security need not be accompanied
by payment of an amount in cash equal to the interest payable on such payment
date. Except as otherwise provided in the immediately preceding sentence, in the
case of any Security that is converted, interest that would otherwise be due and
payable after the date of conversion of such Security shall not be payable, and
the Company shall not make nor be required to make any other payment, adjustment
or allowance with respect to accrued but unpaid interest on the Securities being
converted, which shall be deemed to be paid in full. Each conversion shall be
deemed to have been effected immediately prior to the close of business on the
day (the "Conversion Date") on which the Notice of Conversion (together with, if
required by the preceding paragraph, certificates, duly endorsed or assigned to
the Company or in blank, evidencing the Trust Securities or Securities, as the
case may be, being surrendered for conversion) was received by the Conversion
Agent from (x) a holder of the Trust Securities effecting a conversion thereof
pursuant to its conversion rights under the Declaration or (y) if the Securities
shall have been distributed to holders of Trust Securities following the
occurrence of a Special Event, when received by the Conversion Agent from the
Holder effecting the conversion thereof pursuant to its conversion rights under
the Indenture, as the case may be. The Person or Persons entitled to receive the
Fleetwood Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such Fleetwood Common Stock as of
the Conversion Date. As promptly as practicable on or after the Conversion Date,
the Company shall issue and deliver at the office of the Conversion Agent,
unless otherwise directed in the Notice of Conversion, a certificate or
certificates for the number of full shares of Fleetwood Common Stock issuable
upon such conversion, together with the cash payment, if any, in lieu of any
fraction of any share to the Person or Persons entitled to receive the same. The
Conversion Agent shall deliver such certificate or certificates to such Person
or Persons.
(c) The Company's delivery upon conversion of the fixed number of
shares of Fleetwood Common Stock into which the Securities are convertible
(together with the cash payment, if any, in lieu of fractional shares) shall be
deemed to satisfy the Company's obligation to pay the principal amount at
maturity of the Securities so converted and any unpaid interest (including
Additional Interest) accrued on such Securities at the time of such conversion;
PROVIDED, that if any Security is surrendered for conversion after the close of
business on a record date for payment of interest and before the opening of
business on the corresponding interest payment date, the interest payable on
such interest payment date with respect to such Security shall be paid to the
Trust (which will distribute such interest to the holder of the applicable Trust
Securities at the close of business on such record date) or to such other person
in whose name the Securities are registered at the close of business on such
record date, as the case may be, despite such conversion. The Company will make
no payment or allowance for distributions on the shares of Fleetwood Common
Stock issued upon such conversion, except to the extent that such shares of
Fleetwood Common Stock are held of record on the record date for any such
distributions. Each conversion will be deemed to have been effected immediately
prior to the
58
<Page>
close of business on the day on which the related conversion notice was received
by the Conversion Agent.
(d) No fractional shares of Fleetwood Common Stock will be issued as a
result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of
the Closing Price of such fractional interest on the applicable Conversion Date,
or, if such day is not a Trading Day, on the preceding Trading Day, and the
Conversion Agent in turn will make such payment, if any, to the Holder of the
Securities or the holder of the Trust Securities, as the case may be, so
converted.
(e) In the event of the conversion of any Security in part only, a new
Security or Securities for the unconverted portion thereof will be issued in the
name of the Holder thereof upon the cancellation thereof.
(f) In effecting the conversion transactions described in this Section
1302, the Conversion Agent is acting as agent of the holders of Trust Securities
(in the exchange of Trust Securities for Securities) and as agent of the Holders
of Securities (in the conversion of Securities into Fleetwood Common Stock), as
the case may be. The Conversion Agent is hereby authorized (i) to exchange
Securities held by the Trust from time to time for Trust Securities in
connection with the conversion of such Trust Securities in accordance with this
Article Thirteen and (ii) to convert all or a portion of the Securities into
Fleetwood Common Stock and thereupon to deliver such shares of Fleetwood Common
Stock in accordance with the provisions of this Article Thirteen and to deliver
to the Person entitled thereto a new Security or Securities for any resulting
unconverted principal amount.
SECTION 1303. CONVERSION PRICE ADJUSTMENTS.
(a) The Conversion Price shall be adjusted from time to time as
follows:
(i) In case the Company shall pay or make a dividend or other
distribution on Fleetwood Common Stock in shares of Fleetwood Common
Stock, then the Conversion Price in effect at the opening of business
on the day following the date fixed for the determination of
shareholders entitled to receive such dividend or other distribution
shall be reduced by multiplying such Conversion Price, by a fraction
the numerator of which shall be the number of shares of Fleetwood
Common Stock outstanding at the close of business on the date fixed for
such determination and the denominator of which shall be the sum of
such number of shares and the total number of shares constituting such
dividend or other distribution, such reduction to become effective
immediately after the opening of business on the day following the date
fixed for such determination. For the purposes of this subparagraph
(i), the number of shares of Fleetwood Common Stock at any time
outstanding shall not include shares held in the treasury of the
Company (except to the extent such dividend or distribution is being
made with respect to such shares) but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of
Fleetwood Common Stock. In the event that an adjustment is made
pursuant to this subparagraph (i) and, thereafter, the relevant
distribution or dividend is not made, the Conversion Price shall again
be adjusted to be the Conversion Price that would then be in effect if
no such adjustment had been made.
59
<Page>
(ii) In case the outstanding shares of Fleetwood Common Stock
shall be subdivided or reclassified (in a reclassification that does
not constitute a Fundamental Change) into a greater number of shares of
Fleetwood Common Stock, then the Conversion Price in effect at the
opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and,
conversely, in case the outstanding shares of Fleetwood Common Stock
shall be combined into a smaller amount of shares of Fleetwood Common
Stock, then the Conversion Price in effect at the opening of business
on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(iii) In case the Company shall issue rights or warrants to
all holders of Fleetwood Common Stock entitling them (for a period
expiring within 45 days after the record date fixed for a distribution
of such rights or warrants) to subscribe for or purchase shares of
Fleetwood Common Stock at a price per share less than the Current
Market Price (as hereinafter defined) (determined as provided in
subparagraph (vii) below) of Fleetwood Common Stock on the date fixed
for the determination of shareholders entitled to receive such rights
or warrants (other than pursuant to a dividend reinvestment or similar
plan), then the Conversion Price in effect at the opening of business
on the day following the date fixed for such determination shall be
reduced by multiplying such Conversion Price by a fraction, the
numerator of which shall be the number of shares of Fleetwood Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Fleetwood Common Stock which
the aggregate of the offering price of the total number of shares of
Fleetwood Common Stock so offered for subscription or purchase would
purchase at such Current Market Price and the denominator shall be the
number of shares of Fleetwood Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of
shares of Fleetwood Common Stock so offered for subscription or
purchase, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such
determination. For the purposes of this subparagraph (iii), the number
of shares of Fleetwood Common Stock at any time outstanding shall not
include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Fleetwood Common Stock. The Company agrees not
to issue any rights or warrants in respect of shares of Fleetwood
Common Stock held in the treasury of the Company. To the extent that
shares of Fleetwood Common Stock are not delivered after the expiration
or redemption by the Company of such rights or warrants, the Conversion
Price shall be readjusted to the Conversion Price which would then be
in effect had the adjustments made in respect of the issuance of such
rights or warrants been made on the basis of delivery of only the
number of shares of Fleetwood Common Stock actually delivered.
(iv) Subject to the second sentence of this subparagraph (iv),
in case the Company shall, by dividend or otherwise, distribute to all
holders of Fleetwood Common Stock (A) shares of capital stock of the
Company (other than Fleetwood Common Stock), (B) evidences of
indebtedness of the Company and/or (C) other assets (including
60
<Page>
securities, but excluding (1) any rights or warrants referred to in
subparagraph (iii) above, (2) any rights or warrants to acquire capital
stock of any Person other than the Company or any subsidiary of the
Company, (3) any dividends or distributions in connection with the
liquidation, dissolution or winding-up of the Company, (4) any
dividends or distributions payable solely in cash that may from time to
time be fixed by the Board of Directors, and (5) any dividends or
distributions referred to in subparagraph (i) or (ii) above, then in
each case (unless the Company makes the election referred to in the
next sentence) the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the effectiveness of the Conversion Price
adjustment contemplated by this subparagraph (iv) by a fraction, the
numerator of which shall be the Current Market Price (determined as
provided in subparagraph (vii) below) of the Fleetwood Common Stock on
the date fixed for payment of such distribution (the "Reference Date"),
less the fair market value on the Reference Date (as determined in good
faith by the Board of Directors, whose determination shall be
conclusive and shall be described in a statement filed with the
Trustee) of the portion of the shares of capital stock of the Company,
evidences of indebtedness or other assets so distributed (and for which
an adjustment to the Conversion Price has not been made previously
pursuant to the terms of this Article Thirteen) applicable to one share
of Fleetwood Common Stock and the denominator shall be such Current
Market Price of the Fleetwood Common Stock, such adjustment to become
effective immediately prior to the opening of business on the day
following the Reference Date. However, the Company may elect, in its
sole discretion, in lieu of the foregoing adjustment, to make adequate
provision so that each Holder of Securities shall have the right to
receive upon conversion thereof the amount and kind of shares of
capital stock, evidences of indebtedness or other assets such Holder
would have received had such Holder converted such shares immediately
prior to the Reference Date. In the event that no such dividend or
distribution is so paid or made, the Conversion Price shall again be
adjusted to be the Conversion Price that would then be in effect if
such dividend or distribution had not occurred. If the Board of
Directors determines the fair market value of any distribution for
purposes of this subparagraph (iv) by reference to the actual or when
issued trading market for any securities (including shares of capital
stock or evidence of indebtedness of the Company) comprising such
distribution, it must in doing so consider the price in such market
over the period used in computing the Current Market Price of the
Fleetwood Common Stock or, if shorter, the portion of such period
during which a trading market for such securities existed. For purposes
of this subparagraph (iv), any dividend or distribution that includes
both (x) any of the items described in clauses (A), (B) or (C) of the
first sentence of this subparagraph (iv) and (y) Fleetwood Common Stock
or rights or warrants to subscribe for or purchase Fleetwood Common
Stock of the type referred to in subparagraph (iii) shall be deemed to
be (1) a dividend or distribution of shares of capital stock of the
Company (other than Fleetwood Common Stock), evidences of indebtedness
of the Company or other assets of the type referred to in clause (C) of
the first sentence of this subparagraph (iv) (making any Conversion
Price reduction required by this subparagraph (iv)) immediately
followed by (2) a dividend or distribution of such Fleetwood Common
Stock or rights or warrants to purchase Fleetwood Common Stock of the
type referred to in subparagraph (iii) (making any further Conversion
Price reduction required by subparagraph (i) or (iii) of this
61
<Page>
Section 1303(a)), except (A) the Reference Date of such dividend or
distribution as defined in this subparagraph (iv) shall be substituted
for "the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution," "the date fixed for the
determination of shareholders entitled to receive such rights or
warrants" and "the date fixed for such determination" within the
meaning of subparagraphs (i) and (iii) of this Section 1303(a) and (B)
any shares of Fleetwood Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of business
on the date fixed for such determination" within the meaning of
subparagraph (i) of this Section 1303(a).
(v) In case the Company shall, by dividend or otherwise, at
any time distribute cash to all holders of Fleetwood Common Stock,
excluding (A) any cash dividends on Fleetwood Common Stock to the
extent that the aggregate cash dividends per share of Fleetwood Common
Stock in any consecutive 12-month period do not exceed the greater of
(x) the amount per share of Fleetwood Common Stock of the cash
dividends paid on the Fleetwood Common Stock in the immediately
preceding 12-month period, to the extent that such dividends for the
immediately preceding 12-month period did not require an adjustment to
the Conversion Price pursuant to this subparagraph (v) (as adjusted to
reflect subdivisions or combinations of the Fleetwood Common Stock) and
(y) 15% of the average of the Current Market Price of Fleetwood Common
Stock for the ten consecutive Trading Days immediately prior to the
date of declaration of such dividend and (B) any dividend or
distribution in connection with the liquidation, dissolution or
winding-up of the Company, whether voluntary or involuntary, or any
redemption of Rights (as defined in subparagraph (viii) below);
PROVIDED, HOWEVER, that no adjustment shall be made pursuant to this
subparagraph (v) if such distribution would otherwise constitute a
Fundamental Change (as hereinafter defined), then (unless the Company
makes the election referred to in the proviso following this clause),
the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to the effectiveness of the Conversion Price
reduction contemplated by this subparagraph (v) by a fraction, the
numerator of which shall be the Closing Price of a share of Fleetwood
Common Stock on the date fixed for the payment of such distribution
less the amount of cash so distributed (to the extent not excluded as
provided above) applicable to one share of Fleetwood Common Stock, and
the denominator shall be such Closing Price of Fleetwood Common Stock,
such reduction to become effective immediately prior to the opening of
business on the day following the date fixed for the payment of such
distribution; PROVIDED, HOWEVER, that the Company may elect, in its
sole discretion, in lieu of the foregoing adjustment, to make adequate
provision so that each Holder of Securities shall thereafter have the
right to receive upon conversion the amount of cash such Holder would
have received had such Holder converted such Securities immediately
prior to the record date for such distribution of cash. If any
adjustment is required to be made as set forth in this subparagraph (v)
as a result of a distribution that is a dividend described in clause
(A) of this subparagraph (v), such adjustment will be based upon the
amount by which such distribution exceeds the amount of the dividend
permitted to be excluded pursuant to such clause (A) of this
subparagraph (v). If an adjustment is required to be made pursuant to
this subparagraph (v) as a result of a distribution that is not such a
dividend, such adjustment would be based upon the full amount of such
distribution. In the event
62
<Page>
that an adjustment is made pursuant to this subparagraph (v) and,
thereafter, the relevant distribution or dividend is not made, the
Conversion Price shall again be adjusted to be the Conversion Price
that would then be in effect if no such adjustment had been made.
(vi) In case of the consummation of a public tender offer or
public exchange offer (other than an odd lot tender offer) made by the
Company or any subsidiary of the Company for Fleetwood Common Stock to
the extent that the cash and fair market value (as determined in good
faith by the Board of Directors, whose determination shall be
conclusive and shall be described in a resolution of such Board) of any
other consideration included in such payment per share of Fleetwood
Common Stock at the last time (the "Expiration Time") tenders or
exchanges may be made pursuant to such tender or exchange offer (as
amended if applicable) exceed by more than 10% (with any smaller excess
being disregarded in computing the adjustment to the Conversion Price
provided in this subparagraph (vi)) the first reported sale price (on
the principal national securities exchange or quotation system on which
the Fleetwood Common Stock is then traded) per share of Fleetwood
Common Stock on the Trading Day next succeeding the Expiration Time,
then the Conversion Price shall be reduced so that the same shall equal
the price determined by multiplying the Conversion Price in effect
immediately prior to the Expiration Time by a fraction the numerator of
which shall be the number of shares of Fleetwood Common Stock
outstanding (including any tendered or exchanged shares) at the
Expiration Time multiplied by the first reported sale price (on such
principal exchange or quotation system) of the Fleetwood Common Stock
on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value (determined
as aforesaid and subject to the last sentence of this paragraph) of the
aggregate consideration payable to shareholders based on the acceptance
(up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as
of the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") and (y) the
product of the number of shares of Fleetwood Common Stock outstanding
(less any Purchased Shares) at the Expiration Time and the first
reported sale price (on such principal exchange or quotation system) of
the Fleetwood Common Stock on the Trading Day next succeeding the
Expiration Time, such reduction to become effective immediately prior
to the opening of business on the day following the Expiration Time. If
an adjustment is required to be made as set forth in this subparagraph
(vi), the fair market value of the aggregate consideration payable to
shareholders referred to in clause (x) of the preceding sentence shall
be calculated by including only that portion of such fair market value
of such consideration per share of Fleetwood Common Stock which exceeds
110% of the first reported sale price (determined as aforesaid) per
share of Fleetwood Common Stock on the Trading Day next succeeding the
Expiration Time.
(vii) For the purpose of any computation under this Article
Thirteen, the "Current Market Price" of Fleetwood Common Stock on any
day shall be deemed to be the average of the daily Closing Prices (as
hereinafter defined) of Fleetwood Common Stock for the ten consecutive
Trading Days ending on the earlier of the day in question and, if
applicable, the day before the "ex" date (as defined below) with
respect to the issuance or distribution requiring such computation;
PROVIDED, HOWEVER, that if more than one event occurs that would
require an adjustment pursuant to subparagraphs (i) through
63
<Page>
(vi), inclusive, of this Section 1303(a), the Board of Directors may
make such adjustments to the Closing Prices during such ten Trading Day
period as it deems appropriate to effectuate the intent of the
adjustments in this Section 1303, in which case any such determination
by the Board of Directors shall be set forth in a Board Resolution and
shall be conclusive. For purposes of this paragraph, the term "ex"
date, (1) when used with respect to any issuance or distribution, means
the first date on which the Fleetwood Common Stock trades regular way
on the New York Stock Exchange or on such successor principal
securities exchange as the Fleetwood Common Stock may be listed or in
the relevant market from which the Closing Prices were obtained without
the right to receive such issuance or distribution, and (2) when used
with respect to any tender or exchange offer, means the first date on
which the Fleetwood Common Stock trades regular way on such principal
securities exchange or in such market after the Expiration Time of such
offer.
(viii) No adjustment in the Conversion Price shall be required
pursuant to this Section 1303(a) unless the adjustment would require a
change of at least 1% in the Conversion Price then in effect; PROVIDED,
HOWEVER, that any adjustment that by reason of this subparagraph (viii)
is not required to be made shall be carried forward and taken into
account in any subsequent adjustment. In addition, anything herein to
the contrary notwithstanding, no adjustment to the Conversion Price
will be required in connection with the issuance of rights or other
similar instruments ("Rights") pursuant to a shareholder rights plan or
similar plan or the repurchase or redemption of those rights or the
issuance of common stock, options or other securities under any
officer, director or employee benefit plan in existence on [_________],
2002. Except as otherwise expressly provided in subparagraph (iv)
above, if any action pursuant to this Section 1303 would require
adjustment of the Conversion Price pursuant to more than one of the
provisions described above, only one adjustment shall be made and such
adjustment shall be the amount of the adjustment that has the highest
absolute value to the Holders of the Securities. All calculations shall
be made to the nearest cent (with one-half of a cent being rounded
upward) or to the nearest 1/100th of a share (with .005 of a share
being rounded upward), as the case may be. Notwithstanding anything to
the contrary in this Article Thirteen, the Company from time to time
may, to the extent permitted by law, reduce the Conversion Price by any
amount for any period of at least 20 Business Days, in which case the
Company shall give at least 15 days' notice of such reduction to the
holders of Securities and the Trustee. In particular, the Company may,
at its option, make such reductions in the Conversion Price in addition
to those set forth in this Article Thirteen, as it considers to be
advisable in order to avoid or diminish any income tax to any holder of
shares of Fleetwood Common Stock resulting from any dividend or
distribution of stock or issuance of rights or warrants to purchase or
subscribe for stock or from any event treated as such for income tax
purposes or for any other reasons. Except as otherwise provided in this
Section 1303(a), the Conversion Price will not be adjusted for the
issuance of Fleetwood Common Stock or any securities convertible into
or exchangeable for Fleetwood Common Stock or carrying the right to
purchase any of the foregoing.
(ix) In any case in which this Article Thirteen provides that
an adjustment shall become effective immediately after a record date
for an event, the Company may defer
64
<Page>
until the occurrence of such event (A) issuing to the holder of any
Securities converted after such record date and before the occurrence
of such event the additional shares of Fleetwood Common Stock or other
securities, cash or property issuable upon such conversion by reason of
the adjustment required by such event over and above the Fleetwood
Common Stock issuable upon such conversion before giving effect to such
adjustment and (B) paying to such holder any amount in cash in lieu of
any fractional shares pursuant to this Article Thirteen.
(x) For purposes of this Indenture, "Fleetwood Common Stock"
includes any stock of any class of the Company that has no preference
in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which is not subject to redemption by the Company. However,
subject to the provisions of this Article Thirteen, shares issuable on
conversion of Securities shall include only shares of the class
designated as the common stock of the Company on the date of this
Indenture or shares of any class or classes resulting from any
reclassification or reclassifications thereof and that have no
preference in respect of dividends or of amounts payable in the event
of any voluntary or involuntary liquidation, dissolution or winding-up
of the Company and that are not subject to redemption by the Company;
PROVIDED, HOWEVER, that if at any time there shall be more than one
such resulting class, the shares of each such class then so issuable
shall be substantially in the proportion that the total number of
shares of such class resulting from all such reclassifications bears to
the total number of shares of all such classes resulting from all such
reclassifications.
(b) Whenever the Conversion Price is adjusted as herein provided:
(i) the Company shall compute the adjusted Conversion Price
and shall prepare a certificate signed by the Chief Financial Officer
or the Treasurer of the Company setting forth the adjusted Conversion
Price and showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall forthwith be filed with
the Trustee and, if different, the transfer agent for the Preferred
Securities and the Securities; and
(ii) a notice stating the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall as soon as
practicable be mailed by the Company to all record holders of Preferred
Securities and the Securities at their last addresses as they appear
upon the stock transfer books of the Company and the Trust.
SECTION 1304. ADJUSTMENT OF CONVERSION PRICE; FUNDAMENTAL CHANGE.
(a) In the event that the Company shall be a party to any transaction
or series of transactions constituting a Fundamental Change (as hereinafter
defined) (including, without limitation, (i) any recapitalization or
reclassification of Fleetwood Common Stock (other than a change in par value or
a change from par value to no par value or from no par value to par value, or as
a result of a subdivision or combination of the Fleetwood Common Stock); (ii)
any consolidation or merger of the Company with or into another corporation as a
result of which holders of Fleetwood Common Stock shall be entitled to receive
securities or other property or
65
<Page>
assets (including cash) with respect to or in exchange for Fleetwood Common
Stock (other than a merger that does not result in a reclassification,
conversion, exchange or cancellation of the outstanding Fleetwood Common Stock);
(iii) any sale or transfer of all or substantially all of the assets of the
Company; or (iv) any compulsory share exchange) pursuant to which holders of
Fleetwood Common Stock shall be entitled to receive other securities, cash or
other property, then appropriate provision shall be made so that the holder of
each Security then outstanding shall have the right thereafter to convert such
Security only into (A) if any such transaction does not constitute a Common
Stock Fundamental Change (as hereinafter defined), the kind and amount of the
securities, cash or other property that would have been receivable upon such
recapitalization, reclassification, consolidation, merger, sale, transfer or
share exchange by a holder of the number of shares of Fleetwood Common Stock
issuable upon such conversion of such Security immediately prior to such
recapitalization, reclassification, consolidation, merger, sale, transfer or
share exchange, after, in the case of a Non-Stock Fundamental Change, giving
effect to any adjustment in the Conversion Price in accordance with subparagraph
(i) of Section 1304(c), and (B) if any such transaction constitutes a Common
Stock Fundamental Change (as hereinafter defined), shares of common stock of the
kind received by holders of Fleetwood Common Stock as a result of such Common
Stock Fundamental Change in an amount determined in accordance with subparagraph
(ii) of Section 1304(c). The company formed by such consolidation or resulting
from such merger or which acquires such assets or which acquires the Fleetwood
Common Stock, as the case may be, shall enter into a supplemental indenture with
the Trustee, reasonably satisfactory in form to the Trustee and executed and
delivered to the Trustee, the provisions of which shall establish such right.
Such supplemental indenture shall provide for adjustments that, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as practicable to the relevant adjustments provided for in
this Article Thirteen. The above provisions shall similarly apply to successive
recapitalizations, reclassifications, consolidations, mergers, sales, transfers
or share exchanges.
(b) Notwithstanding any other provisions in this Article Thirteen to
the contrary, if any Fundamental Change (as hereinafter defined) occurs, then
the Conversion Price in effect will be adjusted immediately after such
Fundamental Change as described below in Section 1304(c). In addition, in the
event of a Common Stock Fundamental Change, each Security shall be convertible
solely into common stock of the kind received by holders of Fleetwood Common
Stock as the result of such Common Stock Fundamental Change as more specifically
provided below in Section 1304(c).
(c) For purposes of calculating any adjustment to be made pursuant to
this Article Thirteen in the event of a Fundamental Change, immediately
following such Fundamental Change (and for such purposes a Fundamental Change
shall be deemed to occur on the earlier of (a) the occurrence of such
Fundamental Change and (b) the date, if any, fixed for determination of
shareholders entitled to receive the cash, securities, property or other assets
distributable in such Fundamental Change to holders of the Fleetwood Common
Stock):
(i) in the case of a Non-Stock Fundamental Change, the
Conversion Price per share of Fleetwood Common Stock immediately
following such Non-Stock Fundamental Change shall be the lower of (A)
the Conversion Price in effect immediately prior to such Non-Stock
Fundamental Change, but after giving effect to any other adjustments
effected pursuant to this Article Thirteen, and (B) the product
obtained by multiplying the greater
66
<Page>
of the Applicable Price (as hereinafter defined) or the then applicable
Reference Market Price (as hereinafter defined) by a fraction of which
the numerator shall be 100.0 and the denominator of which shall be the
amount set forth below based on the date on which such Non-Stock
Fundamental Change occurs. For the period beginning [_________], 2002
and ending on February 14, 2003, the denominator shall be 109.750,
and for each succeeding twelve month period beginning February 15
shall be as follows:
<Table>
<Caption>
YEAR DENOMINATOR
---- -----------
2003....................................................... 108.125
2004....................................................... 106.500
2005....................................................... 104.875
2006....................................................... 103.250
2007....................................................... 101.625
2008 and thereafter........................................ 100.000
</Table>
(ii) in the case of a Common Stock Fundamental Change, the
Conversion Price per share of Fleetwood Common Stock immediately
following the Common Stock Fundamental Change shall be the Conversion
Price in effect immediately prior to such Common Stock Fundamental
Change, but after giving effect to any other adjustments effected
pursuant to this Article Thirteen, multiplied by a fraction, the
numerator of which is the Purchaser Stock Price (as hereinafter
defined) and the denominator of which is the Applicable Price;
PROVIDED, HOWEVER, that in the event of a Common Stock Fundamental
Change in which (A) 100% of the value of the consideration received by
a holder of Fleetwood Common Stock is common stock of the successor,
acquiror or other third party (and cash, if any, paid with respect to
any fractional interests in such common stock resulting from such
Common Stock Fundamental Change) and (B) all of the Fleetwood Common
Stock shall have been exchanged for, converted into, or acquired for
common stock (and cash, if any, with respect to fractional interests)
of the successor, acquiror or other third party, the Conversion Price
per share of Fleetwood Common Stock immediately following such Common
Stock Fundamental Change shall be the Conversion Price in effect
immediately prior to such Common Stock Fundamental Change divided by
the number of shares of common stock of the successor, acquiror, or
other third party received by a holder of one share of Fleetwood Common
Stock as a result of such Common Stock Fundamental Change.
(d) The following definitions shall apply to terms used in this Article
Thirteen:
"Applicable Price" means (A) in the event of a
Non-Stock Fundamental Change in which the holders of Fleetwood
Common Stock receive only cash, the amount of cash receivable
by a holder of one share of Fleetwood Common Stock; and (B) in
the event of any other Fundamental Change, the average of the
Closing Prices (as hereinafter defined) for one share of
Fleetwood Common Stock during the ten Trading Days immediately
prior to the record date for the determination of
67
<Page>
the holders of Fleetwood Common Stock entitled to receive
cash, securities, property or other assets in connection with
such Fundamental Change or, if there is no such record date,
prior to the date upon which the holders of Fleetwood Common
Stock shall have the right to receive such cash, securities,
property or other assets.
"Closing Price" with respect to any securities on any
day shall mean the last reported sale price, regular way, on
such day or, in case no such sale takes place on such day, the
average of the last reported closing bid and asked prices on
such day, regular way, in each case on the New York Stock
Exchange or, if such security is not listed or admitted to
trading on the New York Stock Exchange, on the principal
national securities exchange or quotation system on which such
security is quoted or listed or admitted to trading or, if not
quoted or listed or admitted to trading on any national
securities exchange or quotation system, the average of the
closing bid and asked prices of such security in the
over-the-counter market on the date in question as reported by
the National Quotation Bureau Incorporated, or a similarly
generally accepted reporting service or, if not so available
in such manner, as furnished by any New York Stock Exchange
member firm selected from time to time by the Board of
Directors for that purpose or a price determined in good faith
by the Board of Directors.
"Common Stock Fundamental Change" means any
Fundamental Change in which more than 50% of the value (as
determined in good faith by the Board of Directors) of the
consideration received by the holders of Fleetwood Common
Stock pursuant to such transactions consists of shares of
common stock that, for the ten consecutive Trading Days
immediately prior to such Fundamental Change, has been
admitted for listing or admitted for listing subject to notice
of issuance on a national securities exchange or quoted on the
Nasdaq National Market; PROVIDED, HOWEVER, that a Fundamental
Change shall not be a Common Stock Fundamental Change unless
either (A) the Company continues to exist after the occurrence
of such Fundamental Change and the outstanding Preferred
Securities continue to exist as outstanding Preferred
Securities (or, if the Securities have been distributed to
holders of Trust Securities following a Dissolution Event, the
outstanding Securities continue to exist as outstanding
Securities), or (B) the outstanding Preferred Securities
continue to exist as Preferred Securities and are convertible
into shares of common stock of the successor to the Company
(or, if the Securities have been distributed as aforesaid, the
outstanding Securities continue to exist as Securities and are
convertible into shares of common stock of the successor to
the Company).
"Fundamental Change" means the occurrence of any
transaction or event, or series of transactions or events,
pursuant to which all or substantially all of the Fleetwood
Common Stock shall be exchanged for, converted into, acquired
for or constitutes solely the right to receive, cash,
securities, property or other assets (whether by means of an
exchange offer, liquidation, tender offer, consolidation,
merger, combination, reclassification, recapitalization or
otherwise); PROVIDED, HOWEVER, in the case of any such series
of transactions or events, for purposes of
68
<Page>
adjustment of the Conversion Price, such Fundamental Change
shall be deemed to have occurred when substantially all of the
Fleetwood Common Stock had been exchanged for, converted into,
or acquired for or constitutes solely the right to receive
cash, securities, property or other assets, but the adjustment
shall be based upon the consideration the holders of Fleetwood
Common Stock received in such transaction or event as a result
of which more than 50% of the Fleetwood Common Stock shall
have been exchanged for, converted into, or acquired for, or
shall constitute solely the right to receive cash, securities,
property or other assets.
"Non-Stock Fundamental Change" means any Fundamental
Change other than a Common Stock Fundamental Change.
"Purchaser Stock Price" means, with respect to any
Common Stock Fundamental Change, the average of the Closing
Prices for one share of the common stock received by holders
of Fleetwood Common Stock in such Common Stock Fundamental
Change during the ten Trading Days immediately prior to the
record date for the determination of the holders of Fleetwood
Common Stock entitled to receive such shares of common stock
or, if there is no such record date, prior to the date upon
which the holders of Fleetwood Common Stock shall have the
right to receive such shares of common stock.
"Reference Market Price" shall initially mean
$[_____] and, in the event of any adjustment to the Conversion
Price other than as a result of a Fundamental Change, the
Reference Market Price shall also be adjusted so that the
ratio of the Reference Market Price to the Conversion Price
after giving effect to any such adjustment shall always be the
same as the ratio of the initial Reference Market Price of
$[_____] to the initial Conversion Price of $[____].
(e) In determining the amount and type of consideration received by a
holder of Fleetwood Common Stock in the event of a Fundamental Change,
consideration received by a holder of Fleetwood Common Stock pursuant to a
statutory right of appraisal will be disregarded.
SECTION 1305. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
In case:
(i) the Company shall declare a dividend (or any other
distribution) on Fleetwood Common Stock that would cause an adjustment
to the Conversion Price of the Securities pursuant to Section 1303
(including such an adjustment that would occur but for the terms of the
first sentence of Section 1303(a)(viii) above); or
(ii) the outstanding shares of Fleetwood Common Stock shall be
subdivided into a greater number of shares of Fleetwood Common Stock or
combined into a smaller number of shares of Fleetwood Common Stock; or
(iii) the Company shall authorize the granting to the holders
of Fleetwood Common Stock generally of rights or warrants (for a period
expiring within 45 days after
69
<Page>
the record date fixed for a distribution of such rights and warrants)
to subscribe for or purchase any shares of the Company's capital stock
or other capital stock of any class or of any other rights (excluding
any Rights); or
(iv) of any reclassification of Fleetwood Common Stock (other
than a subdivision or combination of the outstanding shares of
Fleetwood Common Stock), or of any consolidation, merger or share
exchange to which the Company is a party and for which approval of any
shareholders of the Company is required, or of the sale or transfer of
all or substantially all of the assets of the Company or a compulsory
share exchange; or
(v) of the voluntary or involuntary dissolution, liquidation
or winding-up of the Company;
then the Company shall (a) if any Preferred Securities are outstanding, cause to
be filed with the transfer agent for the Preferred Securities and, except in a
case described in paragraph (i) above, cause to be mailed to the holders of
record of the Preferred Securities, at their last addresses as they shall appear
upon the stock transfer books of the Trust, or (b) if the Securities shall have
been distributed to holders of the Trust Securities in accordance with the terms
of the Declaration following a Dissolution Event, cause to be mailed to all
Holders at their last addresses as they shall appear in the Security Register,
at least 15 days prior to the applicable record or effective date hereinafter
specified, a notice stating (I) the date on which a record (if any) is to be
taken for the purpose of such dividend, distribution, rights or warrants or, if
a record is not to be taken, the date as of which the holders of Fleetwood
Common Stock of record to be entitled to such dividend, distribution, rights or
warrants are to be determined or (II) the date on which such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding-up is expected to become effective, and the date as of which it is
expected that holders of Fleetwood Common Stock of record shall be entitled to
exchange their shares of Fleetwood Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, share exchange, dissolution, liquidation or winding-up (but no failure
to mail such notice or any defect therein or in the mailing thereof shall affect
the validity of the corporate action required to be specified in such notice).
SECTION 1306. COMPANY TO PROVIDE STOCK.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares, as determined by the
Conversion Price as of the date hereof, to provide for (i) the election by the
Company to pay interest in Fleetwood Common Stock pursuant to Section 301, (ii)
the payment of Additional Redemption Distributions, if any, in Fleetwood Common
Stock pursuant to Section 1109, and (iii) the conversion of the Securities from
time to time as such Securities are presented for conversion, provided, that
nothing contained herein shall be construed to preclude the Company from
satisfying its obligations in respect of the conversion of Securities by
delivery of repurchased shares of Fleetwood Common Stock that are held in the
treasury of the Company.
If any shares of Fleetwood Common Stock to be reserved for the purpose
of payment of interest or Additional Redemption Distributions, if any, or
conversion of Securities hereunder
70
<Page>
require registration with or approval of any governmental authority under any
federal or state law before such shares may be validly issued or delivered upon
such payment of interest or Additional Redemption Distributions, if any, or
conversion, then the Company covenants that it will in good faith and as
expeditiously as possible endeavor to secure such registration or approval, as
the case may be, provided, however, that nothing in this Section 1306 shall be
deemed to affect in any way the obligations of the Company to convert Securities
into Fleetwood Common Stock as provided in this Article Thirteen.
Before taking any action that would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Fleetwood Common
Stock, the Company will take all corporate action that may, in the Opinion of
Counsel, be necessary in order that the Company may validly and legally issue
fully paid and nonassessable shares of Fleetwood Common Stock at such adjusted
Conversion Price.
The Company covenants that all shares of Fleetwood Common Stock that
may be issued upon payment of interest or Additional Redemption Distributions,
if any, or conversion of Securities will upon issue be fully paid and
nonassessable by the Company and free of preemptive rights.
SECTION 1307. EMPLOYEE BENEFIT PLANS.
Notwithstanding the provisions of this Article Thirteen, the issuance
of any shares of Fleetwood Common Stock or options or other securities pursuant
to any option, warrant, right or exercisable, exchangeable or convertible
security outstanding as of the date of this Indenture or pursuant to any present
or future officer, director or employee benefit plan or program of the Company
shall not give rise to an adjustment in the Conversion Price pursuant to this
Article Thirteen. There shall also be no adjustment of the Conversion Price (i)
in case of the issuance of any stock (or securities convertible into or
exchangeable for stock) of the Company except as specifically described in this
Article Thirteen, (ii) as the result of the issuance of Fleetwood Common Stock
upon conversion of the Trust Securities or the Securities or (iii) as the result
of the issuance or redemption of Rights.
SECTION 1308. CERTAIN ADDITIONAL RIGHTS.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on the Fleetwood Common Stock referred to in Section 1303(a)(iv)
and (v) (including, without limitation, dividends or distributions referred to
in the last sentence of Section 1303(a)(iv)), the Holder of the Securities, upon
the conversion thereof subsequent to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution and
prior to the effectiveness of the Conversion Price adjustment in respect of such
distribution, shall also be entitled to receive for each share of Fleetwood
Common Stock into which the Securities are converted, the portion of the shares
of Fleetwood Common Stock, rights, warrants, evidences of indebtedness, shares
of capital stock, cash and assets so distributed applicable to one share of
Fleetwood Common Stock; PROVIDED, HOWEVER, that, at the election of the Company
(whose election shall be evidenced by a resolution of the Board of Directors)
with respect to all Holders so converting, the Company may, in lieu of
distributing to such Holders any portion of such distribution not consisting of
cash or securities of the Company, pay such Holders an amount in
71
<Page>
cash equal to the fair market value thereof (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors). If any conversion of Securities described
in the immediately preceding sentence occurs prior to the payment date for a
distribution to holders of Fleetwood Common Stock that the Holder of Securities
so converted is entitled to receive in accordance with the immediately preceding
sentence, the Company may elect (such election to be evidenced by a resolution
of the Board of Directors) to distribute to such Holder a due bill for the
shares of Fleetwood Common Stock, rights, warrants, evidences of indebtedness,
shares of capital stock, cash or assets to which such Holder is so entitled,
provided, that such due bill (a) meets any applicable requirements of the
principal national securities exchange or other principal securities market on
which the Fleetwood Common Stock is then traded and (b) requires payment or
delivery of such shares of Fleetwood Common Stock, rights, warrants, evidences
of indebtedness, shares of capital stock, cash or assets no later than the date
of payment or delivery thereof to holders of shares of Fleetwood Common Stock
receiving such distribution.
SECTION 1309. [RESERVED.]
SECTION 1310. TRUSTEE NOT RESPONSIBLE FOR DETERMINING CONVERSION PRICE OR
ADJUSTMENTS.
Neither the Trustee nor any Conversion Agent shall at any time be under
any duty or responsibility to any Holder of any Security to determine whether
any facts exist that may require any adjustment of the conversion price, or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed herein or in any supplemental indenture provided
to be employed, in making the same. Neither the Trustee nor any Conversion Agent
shall be accountable with respect to the validity or value (or the kind of
account) of any shares of Fleetwood Common Stock or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Security; and neither the Trustee nor any Conversion Agent makes any
representation with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Company to make any cash
payment or to issue, transfer or deliver any shares of Fleetwood Common Stock or
stock certificates or other securities or property upon the surrender of any
Security for the purpose of conversion, or, except as expressly herein provided,
to comply with any of the covenants of the Company contained in Article Ten or
this Article Thirteen.
ARTICLE FOURTEEN
MEETINGS
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of the Securities may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other Act provided
by this Indenture to be made, given or taken by Holders of the Securities.
72
<Page>
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(1) The Trustee may at any time call a meeting of Holders of Securities
for any purpose specified in Section 1401, to be held at such time and at such
place in the Borough of Manhattan, The City of New York as the Trustee shall
determine. Notice of every meeting of Holders of Securities, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner provided in Section 106,
not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities shall have requested the Trustee to call a meeting of the
Holders of Securities for any purpose specified in Section 1401, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed notice of or made the first
publication of the notice of such meeting within 21 days after receipt of such
request (whichever shall be required pursuant to Section 106) or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities in the amount above specified, as the case
may be, may determine the time and the place in the Borough of Manhattan, The
City of New York and may call such meeting for such purposes by giving notice
thereof as provided in clause (1) of this Section.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities, a
Person shall be (1) a Holder of one or more Outstanding Securities, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities by such Holder or Holders. The only Persons
who shall be entitled to be present or to speak at any meeting of Holders of
Securities shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities shall constitute a quorum for a meeting of Holders of
Securities; PROVIDED, HOWEVER, that if any action is to be taken at such meeting
with respect to a consent or waiver which this Indenture expressly provides may
be given by the Holders of at least 66-2/3% in principal amount of the
Outstanding Securities, the Persons entitled to vote 66-2/3% in principal amount
of the Outstanding Securities shall constitute a quorum. In the absence of a
quorum within 30 minutes after the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1402(1), except that
such notice need be given only once not less than five days prior to the date on
which the
73
<Page>
meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities; PROVIDED,
HOWEVER, that, except as limited by the proviso to Section 902, any resolution
with respect to any consent or waiver which this Indenture expressly provides
may be given by the Holders of at least 66-2/3% in principal amount of the
Outstanding Securities may be adopted at a meeting or an adjourned meeting duly
convened and at which a quorum is present as aforesaid only by the affirmative
vote of the Holders of at least 66-2/3% in principal amount of the Outstanding
Securities; and PROVIDED, FURTHER, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other Act which this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding Securities
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities, whether or not such Holders were present or represented
at the meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(1) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities in regard to proof of the holding of Securities and of the
appointment of proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in
the manner specified in Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1402(2), in which
case the Company or the Holders of Securities calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Securities
represented at the meeting.
74
<Page>
(3) At any meeting, each Holder of a Security or proxy shall be
entitled to one vote for each $1,000 principal amount of Securities held or
represented by him; PROVIDED, HOWEVER, that no vote shall be cast or counted
at any meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. A Holder of a
Security in a principal amount of less than $1,000 shall be entitled to a
fraction of one vote which is equal to the fraction that the principal amount
of such Security bears to $1,000. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
(4) Any meeting of Holders of Securities duly called pursuant to
Section 1402 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the Outstanding
Securities represented at the meeting; and the meeting may be held as so
adjourned without further notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of Holders of
Securities shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
75
<Page>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
FLEETWOOD ENTERPRISES, INC.
By:
-----------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity but solely as Trustee
By:
-----------------------------------------------
Name:
Title:
76
<Page>
EXHIBIT A-1
FORM OF SECURITY
[FORM OF FACE OF SECURITY]
[Include if the Security is in global form and the Depository Trust Company is
the U.S. Depositary -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[Include if the Security is in global form -- TRANSFERS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO BELOW.]
FLEETWOOD ENTERPRISES, INC.
9.75% Convertible Subordinated Debenture Due 2013
No. $
----------- -----------
CUSIP No
-----------
FLEETWOOD ENTERPRISES, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _________________, or registered
assigns, the principal sum [indicated on Schedule A hereof]* [of ______
Dollars** ($ )] on [_________].
- -----------------------------------
* Applicable to Global Securities only.
** Applicable to certificated Securities only.
A-1-1
<Page>
Interest Payment Dates: February 15, May 15, August 15 and November 15,
commencing February 15, 2002
Regular Record Dates: except as otherwise provided in the Indenture,
the date 15 days prior to each Interest Payment
Date
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A-1-2
<Page>
IN WITNESS WHEREOF, the Company has caused this instrument to be signed
manually or by facsimile by its duly authorized officer and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
FLEETWOOD ENTERPRISES, INC.
By:
-----------------------------------------------
Name:
Dated: ___________, 2002
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Trustee
By:
-----------------------------------------------
Authorized Signatory:
Dated: ___________, 2002
A-1-3
<Page>
[FORM OF REVERSE OF SECURITY]
FLEETWOOD ENTERPRISES, INC.
9.75% Convertible Subordinated Debenture Due 2013
(1)______INTEREST. Fleetwood Enterprises, Inc., a Delaware
corporation (the "Company"), is the issuer of this 9.75% Convertible
Subordinated Debenture due February 15, 2013 (the "Security") limited in
aggregate principal amount to $[_________], issued under the Indenture
hereinafter referred to. The Company promises to pay interest on the
Securities in cash or, at the Company's election prior to February 15, 2004,
shares of Fleetwood Common Stock, from [_________], 2002 or from the most
recent interest payment date to which interest has been paid or duly provided
for, quarterly (subject to deferral for up to 20 consecutive quarters on or
after February 15, 2004, as described in Section 3 hereof) in arrears on
February 15, May 15, August 15 and November 15 of each year (each such date,
an "Interest Payment Date"), commencing February 15, 2002, at the rate of
9.75% per annum (subject to increase as provided in Section 12 hereto) plus
Additional Interest (as defined below), if any, until the principal hereof
shall have become due and payable.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date shall be paid, in cash or, at the Company's election,
prior to February 15, 2004, in shares of Fleetwood Common Stock to the Person in
whose name a Security is registered at the close of business on the regular
record date for such interest installment, which shall be the date that is 15
days prior to the Interest Payment Date (whether or not a Business Day) (the
"Regular Record Date"), as the case may be, next preceding such Interest Payment
Date. The Company may elect to pay such interest by delivery of shares of
Fleetwood Common Stock pursuant to this Section 1 if and only if the following
conditions shall have been satisfied:
(a) The shares of Fleetwood Common Stock deliverable in payment of the
interest shall have a fair market value as of the Interest Payment Date of not
less than the interest as determined by this Section 1 hereof. For purposes of
this Section 301, the fair market value of shares of Fleetwood Common Stock
shall be determined by the Company and shall be equal to 90% of the average of
the Closing Price for the five consecutive Trading Days immediately preceding
the second Trading Day prior to the Interest Payment Date.
(b) Interest shall be paid only in cash in the event any shares of
Fleetwood Common Stock to be issued for the payment of interest on the
Securities hereunder (i) require registration under any federal securities law
before such shares may be freely transferable without being subject to any
transfer restrictions under the Securities Act upon issuance and if such
registration is not completed or does not become effective prior to the Interest
Payment Date, and/or (ii) require registration with or approval of any
governmental authority under any state law or other federal law before such
shares may be validly issued or delivered upon issuance and if such registration
is not completed or does not become effective or such approval is not obtained
prior to the Interest Payment Date;
A-1-4
<Page>
(c) The Fleetwood Common Stock is, or shall have been, approved for
quotation on the Nasdaq National Market or listing on the New York Stock
Exchange, in either case, prior to the Interest Payment Date; and
(d) All shares of Fleetwood Common Stock which may be issued with
respect to the payment of interest on the Securities will be issued out of the
Company's authorized but unissued Common Stock and, will upon issue, be duly and
validly issued and fully paid and non-assessable and free of any preemptive
rights.
If all of the conditions set forth in the preceding paragraph are
not satisfied in accordance with the terms thereof, the interest required to be
paid or duly provided for by the Company pursuant to this Section shall be paid
by the Company only in cash.
The amount of interest payable for any period will be computed on the
basis of twelve 30-day months and a 360-day year. To the extent lawful, the
Company shall pay interest on overdue installments of interest (without regard
to any applicable grace period) at the rate borne by the Securities, compounded
quarterly. Any interest paid on this Security shall be increased to the extent
necessary to pay Additional Interest as set forth in this Security.
(2) ADDITIONAL INTEREST. The Company shall pay to Fleetwood Capital
Trust II. a Delaware statutory business trust (and its permitted successors or
assigns under the Declaration) (the "Trust"), such additional amounts as may be
necessary in order that the amount of dividends or other distributions then due
and payable by the Trust on the Preferred Securities that at any time remain
outstanding in accordance with the terms thereof shall not be reduced as a
result of any taxes, duties, assessments or governmental charges of whatever
nature (other than withholding taxes) imposed by the United States or any other
taxing authority ("Additional Interest").
(3) EXTENSION OF INTEREST PAYMENT PERIOD. The Company shall have the
right, at any time on or after February 15, 2004 and from time to time
thereafter during the term of this Security, to defer payments of interest
(including Compounded Interest (as defined below), and Additional Interest, if
any) by extending the interest payment period of such Security for up to 20
consecutive quarters (each an "Extension Period"). To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to Section 312 of the
Indenture (as defined below), will bear interest thereon at 9.75% compounded
quarterly for each quarter of the Extension Period ("Compounded Interest");
provided, that during an Extension Period, the Company shall be subject to the
provisions of Section 1008 of the Indenture. At the end of the Extension Period,
the Company shall pay all interest then accrued and unpaid on the Securities,
including any Additional Payments, that shall be payable to the holders of the
Securities in whose names the Securities are registered in the Security Register
("Holders") on the first Regular Record Date after the end of the Extension
Period. Before the termination of any Extension Period, the Company may further
extend such period, provided that such period together with all such further
extensions thereof shall not exceed 20 consecutive quarters or extend beyond the
maturity of the Securities or end other than on an Interest Payment Date. Upon
the termination of any Extension Period and upon the payment of all amounts then
due on the Securities, including any Additional Payments, the
A-1-5
<Page>
Company may commence a new Extension Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extension Period
except at the end thereof.
The Company must give the Property Trustee, the Regular Trustees and
the Trustee notice of its election to begin an Extension Period at least one
Business Day Prior to the earliest of (i) the date the distribution on the
Preferred Securities would have been payable except for the election to begin
such Extension Period, or (ii) if applicable, the date the Regular Trustees are
required to give notice to the New York Stock Exchange, the Nasdaq National
Market or other applicable self-regulatory organization or to holders of such
Preferred Securities of the record date or (iii) the date such distribution is
payable, but in any event not less than one Business Day prior to the record
date. The Trustee shall give notice of the Company's election to begin an
Extension Period to the holders of the Securities and the Regular Trustees shall
give notice of the Company's election to the holders of the Preferred
Securities.
The quarter in which any notice is given pursuant to the second
paragraph of this Section 3 shall be counted as one of the 20 quarters permitted
in the maximum Extension Period permitted under the first paragraph of this
Section 3.
(4) METHOD OF PAYMENT. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities (as defined in the Indenture)) is registered at the
close of business on the Regular Record Date for such interest installment,
which, except as otherwise provided in the Indenture, shall be the date 15
days prior to each Interest Payment Date (whether or not a Business Day) (the
"Regular Record Date"), commencing February 15, 2004. Any such interest not
so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall
be given to Holders of Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
The principal of the Securities shall be payable at the office or
agency of the Company in the United States maintained for such purpose and at
any other office or agency maintained by the Company for such purpose in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. The interest on the
Securities shall be payable, if paid in cash, at and in the same manner as the
payment of principal described in the preceding sentence (PROVIDED, HOWEVER,
that any such payment of interest may be made at the option of the Company by
check mailed to the address of the holder entitled thereto or by wire transfer
to an account in the United States appropriately designated by the holder
entitled thereto prior to the record date for the corresponding interest payment
date) or, if at the Company's election the interest is paid in shares of
Fleetwood Common Stock, the Company shall register such shares in the name of
the Holder entitled thereto. Notwithstanding the foregoing, so long as the
holder of any Securities is the Property Trustee, the payment of principal on
the Securities held by the Property Trustee will be made by wire transfer at
such
A-1-6
<Page>
place and to such account in the United States as may be designated by the
Property Trustee, and any interest (x) paid in cash shall be paid to the
Property Trustee at and in the same manner as the payment of principal and
(y) paid in shares of Fleetwood Common Stock shall be registered in the name
of the Property Trustee or such other name as the Property Trustee shall
designate in writing. If interest is paid in the form of shares of Fleetwood
Common Stock prior to February 15, 2004, the interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date shall be
paid in Fleetwood Common Stock to the Person in whose name a Security is
registered at the close of business on the Regular Record Date for such
Interest Payment Date (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. The Company may elect to pay such
interest by delivery of shares of Fleetwood Common Stock pursuant to Section
1 hereof if and only if the following conditions shall have been satisfied:
(a) The shares of Fleetwood Common Stock deliverable in payment of the
interest shall have a fair market value as of the Interest Payment Date of not
less than the interest as determined by Section 1 hereof. For purposes of this
Section 301, the fair market value of shares of Fleetwood Common Stock shall be
determined by the Company and shall be equal to 90% of the average of the
Closing Price for the five consecutive Trading Days immediately preceding the
second Trading Day prior to the Interest Payment Date.
(b) Interest shall be paid only in cash in the event any shares of
Fleetwood Common Stock to be issued for the payment of interest on the
Securities hereunder (i) require registration under any federal securities law
before such shares may be freely transferable without being subject to any
transfer restrictions under the Securities Act upon issuance and if such
registration is not completed or does not become effective prior to the Interest
Payment Date, and/or (ii) require registration with or approval of any
governmental authority under any state law or other federal law before such
shares may be validly issued or delivered upon issuance and if such registration
is not completed or does not become effective or such approval is not obtained
prior to the Interest Payment Date;
(c) The Fleetwood Common Stock is, or shall have been, approved for
quotation on the Nasdaq National Market or listing on the New York Stock
Exchange, in either case, prior to the Interest Payment Date; and
(d) All shares of Fleetwood Common Stock which may be issued with
respect to the payment of interest on the Securities will be issued out of the
Company's authorized but unissued Common Stock and, will upon issue, be duly and
validly issued and fully paid and non-assessable and free of any preemptive
rights.
If all of the conditions set forth in the preceding paragraph are
not satisfied in accordance with the terms thereof, the interest required to be
paid or duly provided for by the Company pursuant to Section 1 hereof shall be
paid by the Company only in cash.
Notwithstanding the foregoing, so long as the holder of any Securities
is the Property Trustee, the payment of principal and interest on the Securities
held by the Property Trustee, if such payment is made in cash and not in shares
of Fleetwood Common Stock, will be made by
A-1-7
<Page>
wire transfer at such place and to such account tin the United States as may be
designated by the Property Trustee.
(5) PAYING AGENT AND SECURITY REGISTRAR. The Trustee will act as Paying
Agent, Security Registrar and Conversion Agent. The Company may change any
Paying Agent, Security Registrar, co-registrar or Conversion Agent without prior
notice. The Company or any of its Affiliates (as defined in the Indenture) may
act in any such capacity.
(6) INDENTURE. The Company issued the Securities under an indenture,
dated as of [_________], 2002 (the "Indenture"), between the Company and The
Bank of New York, not in its individual capacity but solely as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by the Trust Indenture Act of
1939 (15 U.S.C. Sections 77aaa-77bbbb) ("TIA") as in effect on the date of the
Indenture. The Securities are subject to, and qualified by, all such terms,
certain of which are summarized herein, and Holders are referred to the
Indenture and the TIA for a more complete statement of such terms. The
Securities are unsecured general obligations of the Company initially limited to
$[_________] in aggregate principal amount, except for such additional principal
amount of Securities authenticated and delivered under the Indenture upon
registration of transfer of, or in lieu of other Securities pursuant to Sections
304, 305, 306, 906, 1108 and 1301 of the Indenture, PROVIDED that additional
Securities of any series of Securities authenticated and delivered under the
Indenture may be authenticated and delivered thereunder at any time, having the
same terms as, treated as a single class (for all purposes under this Indenture)
with, such previously authenticated and delivered Securities, PROVIDED further
that such additional Securities shall be authenticated and delivered to the
Trust in exchange for the issuance by the Trust of additional Preferred
Securities to holders of Existing Preferred Securities in exchange for Existing
Preferred Securities tendered in an exchange offer. The Securities are
subordinated in right of payment to all existing and future Senior Indebtedness
of the Company. No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest and Additional Redemption Distributions, if any, on, this Security when
due at the times, place and rate, and in the coin or currency, herein prescribed
or to convert this Security as provided in the Indenture.
(7) OPTIONAL REDEMPTION. The Securities are redeemable (a) in whole but
not in part, at the Company's option at any time before February 15, 2004 at a
Redemption Price equal to 100.00% of the aggregate principal amount of the
Securities if the Closing Price of Fleetwood Common Stock has exceeded 200% of
the Conversion Price for at least 20 Trading Days during a 30-day Trading Day
period ending five Trading Days prior to the date of the notice of redemption
described in Section 8 below, upon not less than 15 nor more than 30 days'
notice to Holders of the Securities (which notice shall state (A) the Redemption
Date, (B) whether the Additional Redemption Distribution, if any, shall be paid
by the Company in cash or by delivery of Fleetwood Common Stock, (C) the
procedures pursuant to which such Securities are to be surrendered for
conversion and receipt of the Additional Redemption Distribution, if any, and
A-1-8
<Page>
(D) the Conversion Price then in effect), and (b), in whole or in part, at
the Company's option at any time and from time to time on or after February
15, 2004, upon not less than 30 or more than 60 days' notice, at the
following Redemption Prices, expressed as a percentage of the principal
amount of the Securities, if redeemed during the 12-month period beginning
February 15 of the applicable year set forth below:
<Table>
<Caption>
YEAR REDEMPTION PRICE
---- ----------------
2004................................................... 106.500%
2005................................................... 104.875%
2006................................................... 103.250%
2007................................................... 101.625%
2008 and thereafter.................................... 100.000%
</Table>
plus, in each case described in clauses (a) and (b) of this sentence, accrued
and unpaid interest, including Additional Payments, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant record date to
receive interest due on the Interest Payment Date). From and after the
Redemption Date, interest will cease to accrue on the Securities, or portion
thereof, called for redemption.
In the case of a redemption at any time prior to February 15, 2004,
if a holder of Securities converts such Securities to Fleetwood Common Stock
pursuant to Section 12 during the period following a notice of redemption and
prior to the Redemption Date, then the Company shall pay such holder, in cash
or shares of Fleetwood Common Stock, at the election of the Company, an
amount equal to interest payments payable on such Securities through February
15, 2004, less any interest actually paid prior to the applicable Conversion
Date. If such payment is made in shares of Fleetwood Common Stock, the amount
of shares of Fleetwood Common Stock payable shall be determined in the same
manner that interest payments payable in shares of Fleetwood Common Stock are
determined pursuant to Section 4.
(8) OPTIONAL REDEMPTION UPON TAX EVENT. The Securities are subject to
redemption in whole, but not in part, at the Company's option at any time within
90 days, if a Tax Event (as defined in the Declaration) shall occur and be
continuing, at a redemption price equal to 100% of the principal amount thereof
plus accrued but unpaid interest thereon (including, to the extent permitted by
applicable law, Additional Payments, if any) to the Redemption Date. Any
redemption pursuant to this Section 8 will be made upon not less than 30 nor
more than 60 days' notice.
(9) NOTICE OF REDEMPTION. Notice of redemption will be mailed, in
the case of a redemption at any time prior to February 15, 2004, at least 15
days but not more than 30 days before the Redemption Date and, in all other
cases, at least 30 days but not more than 60 days before the Redemption Date,
to each Holder of the Securities to be redeemed at his address of record. In
the event of a redemption of less than all of the Securities, the Securities
will be chosen for redemption by the Trustee in accordance with the
Indenture. On and after the Redemption Date, interest ceases to accrue on the
Securities or portions thereof called for redemption.
A-1-9
<Page>
If this Security is redeemed subsequent to a Regular Record Date with
respect to any Interest Payment Date specified above and on or prior to such
Interest Payment Date, then any accrued interest will be paid to the person in
whose name this Security is registered at the close of business on such record
date.
(10) MANDATORY REDEMPTION. The Securities will mature on
February 15, 2013. There are no sinking fund payments with respect to the
Securities.
(11) SUBORDINATION. The payment of the principal of, premium (if any),
interest on or any other amounts due on the Securities is subordinated and
junior in right of payment to all existing and future Senior Indebtedness (as
defined below) of the Company and senior and prior in right of payment to the
Preferred Securities Guarantee, the Existing Debentures and the Existing
Preferred Securities Guarantee, as described in the Indenture. Each Holder, by
accepting a Security, agrees to such subordination and authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to effectuate the subordination so provided and appoints the Trustee as its
attorney-in-fact for such purpose.
In addition, no payment of principal (including redemption payments)
of, premium, if any, or interest (including any Additional Interest or
Compounded Interest) on the Securities may be made if there shall have occurred
and be continuing (i) a default in the payment when due of principal of,
premium, if any, sinking funds, if any, or interest, if any, on any Senior
Indebtedness of the Company and any applicable grace period with respect to such
default shall have ended without such default having been cured or waived or
ceasing to exist or (ii) an event of default with respect to any Senior
Indebtedness of the Company resulting in the acceleration of the maturity
thereof without such acceleration having been rescinded or annulled.
"Senior Indebtedness" means (a) any liability of the Company (1) for
borrowed money or under any reimbursement obligation relating to a letter of
credit, surety bond or similar instrument, or (2) evidenced by a bond, note,
debenture or similar instrument, or (3) for obligations to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, or (4) for the payment of money relating to a
capitalized lease obligation, or (5) for the payment of money under any Swap
Agreement, (b) any liability of others described in the preceding clause (a)
that the Company has guaranteed or that is otherwise its legal liability; and
(c) any deferral, renewal, extension or refunding of any liability of the types
referred to in clauses (a) and (b) above, unless, in the instrument creating or
evidencing any such liability referred to in clause (a) or (b) above or any such
deferral, renewal, extension or refunding referred to in clause (c) above or
pursuant to which the same is outstanding, it is expressly provided that such
liability, deferral, renewal, extension or refunding is subordinate in right of
payment to all other indebtedness of the Company or is not senior or prior in
right of payment to the Securities or ranks PARI PASSU with or subordinate to
the Securities in right of payment; PROVIDED that the Securities shall not
constitute Senior Indebtedness; and PROVIDED, FURTHER, that Senior Indebtedness
shall not include any indebtedness or guarantees between or among the Company or
its affiliates, including all debt securities or guarantees in respect of those
debt securities issued to any trust (including the Trust), trustee of a trust
(including the Trust), partnership, limited liability company or other person
affiliated with the Company that is a financing vehicle of the Company (a
"Financing Entity") in connection with the issuance by such Financing Entity of
preferred securities unless otherwise expressly
A-1-10
<Page>
provided in the instrument creating or evidencing such indebtedness, debt
securities or guarantees, as the case may be, or pursuant to which the same is
outstanding. For the avoidance of doubt, none of the Preferred Securities
Guarantee, the Common Securities Guarantee, the Existing Debentures, the
Existing Preferred Securities Guarantee or the Existing Common Securities
Guarantee shall constitute Senior Indebtedness.
(12) CONVERSION. Subject to and in compliance with the provisions of
the Indenture, the Holder of any Security has the right, exercisable at any time
prior to the close of business (New York time) on the date of the Security's
maturity (or, in the case of Securities called for redemption, prior to the
close of business on the Business Day prior to the corresponding Redemption
Date), to convert the principal amount thereof (or any portion thereof that is
an integral multiple of $20) into shares of Fleetwood Common Stock at the
initial conversion price of $[___] per share of Fleetwood Common Stock, subject
to adjustment under certain circumstances.
To convert a Security, a Holder must (1) complete and sign a conversion
notice substantially in the form attached hereto, (2) surrender the Security to
a Conversion Agent, (3) furnish appropriate endorsements or transfer documents
if required by the Security Registrar or Conversion Agent and (4) pay any
transfer or similar tax, if required. Upon conversion, no adjustment or payment
will be made for interest or dividends, but if any Holder surrenders a Security
for conversion after the close of business on the Regular Record Date for the
payment of an installment of interest and prior to the opening of business on
the next Interest Payment Date, then, notwithstanding such conversion, the
interest payable on such Interest Payment Date will be paid to the Trust (which
will distribute such interest to the holder of the applicable Trust Securities
at the close of business on such record date) or to such other person in whose
name the Securities are registered at the close of business on such record date,
as the case may be, despite such conversion. In such event, such Security, when
surrendered for conversion, need not be accompanied by payment of an amount
equal to the interest payable on such Interest Payment Date on the portion so
converted. The number of shares issuable upon conversion of a Security is
determined by dividing the principal amount of the Security converted by the
conversion price in effect on the Conversion Date. No fractional shares will be
issued upon conversion but a cash adjustment will be made for any fractional
interest. The outstanding principal amount of any Security shall be reduced by
the portion of the principal amount thereof converted into shares of Common
Stock.
(13) REGISTRATION, TRANSFER EXCHANGE AND DENOMINATIONS. As provided in
the Indenture and subject to certain limitations therein set forth, the transfer
of this Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company
designated for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $20 and integral multiples thereof. No service charge shall
be made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any
A-1-11
<Page>
tax or other governmental charge payable in connection therewith. Prior to due
presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary. In the event of
redemption or conversion of this Security in part only, a new Security or
Securities for the unredeemed or unconverted portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
(14) PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as its owner for all purposes.
(15) UNCLAIMED MONEY. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its written request. After that, Holders of
Securities entitled to the money must look to the Company for payment unless an
abandoned property law designates another Person and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
(16) DEFAULTS AND REMEDIES. The Securities shall have the Events of
Default as set forth in Section 501 of the Indenture. Subject to certain
limitations in the Indenture, if an Event of Default occurs and is continuing,
then the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities, and
accrued and unpaid interest, if any (including any Additional Payments), and
Additional Redemption Distributions, if any, thereon to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders), and upon any such declaration such principal or such lesser
amount, as the case may be, and such accrued and unpaid interest (including any
Additional Payments) shall become immediately due and payable.
The Holders of not less than a majority in aggregate principal amount
of the Securities then outstanding by written notice to the Trustee may rescind
an acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration. Holders may not enforce the Indenture or the
Securities except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then outstanding
Securities issued under the Indenture may direct the Trustee in its exercise of
any trust or power. The Company must furnish annually compliance certificates to
the Trustee. The above description of Events of Default and remedies is
qualified in its entirety by reference to, and subject to, the more complete
description thereof contained in the Indenture.
(17) AMENDMENTS, SUPPLEMENTS AND WAIVERS. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to
A-1-12
<Page>
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange
heretofore or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
(18) TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its individual
or any other capacity may become the owner or pledgee of the Securities and may
otherwise deal with the Company or an Affiliate with the same rights it would
have, as if it were not Trustee, subject to certain limitations provided for in
the Indenture and in the TIA. Any Agent may do the same with like rights.
(19) NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Securities by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
(20) GOVERNING LAW. THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(21) AUTHENTICATION. The Securities shall not be valid until
authenticated by the manual signature of an authorized officer of the Trustee.
(22) ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
The Company will furnish to any Holder of the Securities upon written
request and without charge a copy of the Indenture. Request may be made to:
Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, CA 92503
Attn: General Counsel
A-1-13
<Page>
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint -------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Your Signature:
------------------------------------------------------
(Sign exactly as your name appears on the other side
of this Security)
Date:
-----------------------------------
Signature Guarantee:[*]
------------------------------------------------
- ---------------------
* Signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the [Registrar], which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
[Registrar] in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act, as amended.
A-1-14
<Page>
(TO BE ATTACHED TO GLOBAL SECURITIES)
SCHEDULE A
The initial principal amount of this Global Security shall be
$___________. The following increases or decreases in the principal amount of
this Global Security have been made:
<Table>
<Caption>
- ------------- ----------------- ----------------- ---------------- -------------
PRINCIPAL SIGNATURE OF
AMOUNT OF AMOUNT OF AMOUNT OF THIS AUTHORIZED
DATE MADE INCREASE IN DECREASE IN GLOBAL SECURITY OFFICER OF
PRINCIPAL AMOUNT PRINCIPAL AMOUNT FOLLOWING SUCH TRUSTEE OR
OF THIS GLOBAL OF THIS GLOBAL DECREASE OR SECURITIES
SECURITY SECURITY INCREASE CUSTODIAN
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
- ------------- ----------------- ----------------- ---------------- -------------
</Table>
A-1-15
<Page>
ELECTION TO CONVERT
To: Fleetwood Enterprises, Inc.
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or the portion below designated, into Common
Stock of FLEETWOOD ENTERPRISES, INC. ("Fleetwood Common Stock") in accordance
with the terms of the Indenture referred to in this Security, and directs that
the shares issuable and deliverable upon conversion, and shares issuable and
deliverable or a check issuable and deliverable in payment of Additional
Redemption Distributions, if any, together with any check in payment for
fractional shares, be issued in the name of and delivered to the undersigned,
unless a different name has been indicated in the assignment below. If shares
are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
Dated:
--------------,---------
in whole
----
Portions of Security to be converted
(or integral multiples thereof):
$
----------------------------------
------------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and
Address, Including Zip Code, and Social
Security or Other Identifying Number
------------------------------------
------------------------------------
------------------------------------
Signature Guarantee:[*]
--------------------
- ---------------------
* Signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the [Registrar], which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
[Registrar] in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act, as amended.
A-1-16