<Page>
EXHIBIT 4.6
=====================================================
AMENDED AND RESTATED DECLARATION
OF TRUST
FLEETWOOD CAPITAL TRUST III
DATED AS OF _________________, 2001
=====================================================
<Page>
TABLE OF CONTENTS
<Table>
<Caption>
PAGE
----
ARTICLE I INTERPRETATION AND DEFINITIONS..........................................................................1
SECTION 1.1 DEFINITIONS...............................................................................1
ARTICLE II TRUST INDENTURE ACT....................................................................................7
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION..........................................................7
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES............................................................8
SECTION 2.3 REPORTS BY THE PROPERTY TRUSTEE...........................................................8
SECTION 2.4 PERIODIC REPORTS TO PROPERTY TRUSTEE......................................................8
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT..........................................8
SECTION 2.6 EVENT OF DEFAULT; WAIVER..................................................................9
SECTION 2.7 EVENT OF DEFAULT; NOTICE.................................................................10
ARTICLE III ORGANIZATION.........................................................................................11
SECTION 3.1 NAME.....................................................................................11
SECTION 3.2 OFFICE...................................................................................11
SECTION 3.3 PURPOSE..................................................................................11
SECTION 3.4 AUTHORITY................................................................................11
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST...........................................................12
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES................................................12
SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.....................................14
SECTION 3.8 LEGAL TITLE TO THE DEBENTURES............................................................15
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE..............................18
SECTION 3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE......................................................19
SECTION 3.11 DELAWARE TRUSTEE........................................................................21
SECTION 3.12 EXECUTION OF DOCUMENTS..................................................................21
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES..................................21
SECTION 3.14 DURATION OF TRUST.......................................................................22
SECTION 3.15 MERGERS.................................................................................22
ARTICLE IV SPONSOR...............................................................................................23
SECTION 4.1 SPONSOR'S PURCHASE OF COMMON SECURITIES..................................................23
SECTION 4.2 RESPONSIBILITIES OF THE SPONSOR..........................................................23
SECTION 4.3 CALCULATION OF ORIGINAL ISSUE DISCOUNT...................................................24
ARTICLE V TRUSTEES...............................................................................................24
SECTION 5.1 NUMBER OF TRUSTEES.......................................................................24
SECTION 5.2 DELAWARE TRUSTEE.........................................................................25
SECTION 5.3 PROPERTY TRUSTEE: ELIGIBILITY............................................................25
SECTION 5.4 QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE TRUSTEE GENERALLY........................26
SECTION 5.5 INITIAL TRUSTEES.........................................................................26
SECTION 5.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.........................................26
i
<Page>
SECTION 5.7 VACANCIES AMONG TRUSTEES.................................................................28
SECTION 5.8 EFFECT OF VACANCIES......................................................................28
SECTION 5.9 MEETINGS.................................................................................28
SECTION 5.10 DELEGATION OF POWER.....................................................................29
SECTION 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.............................29
ARTICLE VI DISTRIBUTIONS.........................................................................................29
SECTION 6.1 DISTRIBUTIONS............................................................................29
ARTICLE VII ISSUANCE OF SECURITIES...............................................................................30
SECTION 7.1 GENERAL PROVISIONS REGARDING SECURITIES..................................................30
SECTION 7.2 EXECUTION AND AUTHENTICATION.............................................................30
SECTION 7.3 FORM AND DATING..........................................................................31
SECTION 7.4 REGISTRAR, PAYING AGENT AND CONVERSION AGENT.............................................32
SECTION 7.5 PAYING AGENT TO HOLD MONEY IN TRUST......................................................32
SECTION 7.6 [RESERVED]...............................................................................33
SECTION 7.7 REPLACEMENT SECURITIES...................................................................33
SECTION 7.8 OUTSTANDING PREFERRED SECURITIES.........................................................33
SECTION 7.9 PREFERRED SECURITIES IN TREASURY.........................................................33
SECTION 7.10 TEMPORARY SECURITIES....................................................................34
SECTION 7.11 CANCELLATION............................................................................34
ARTICLE VIII DISSOLUTION AND TERMINATION OF TRUST................................................................35
SECTION 8.1 DISSOLUTION AND TERMINATION OF TRUST.....................................................35
ARTICLE IX TRANSFER AND EXCHANGE.................................................................................36
SECTION 9.1 GENERAL..................................................................................36
SECTION 9.2 TRANSFER PROCEDURES AND RESTRICTIONS.....................................................37
SECTION 9.3 DEEMED SECURITY HOLDERS..................................................................40
SECTION 9.4 BOOK ENTRY INTERESTS.....................................................................40
SECTION 9.5 NOTICES TO THE DEPOSITARY................................................................41
SECTION 9.6 APPOINTMENT OF SUCCESSOR DEPOSITARY......................................................41
ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS...................................41
SECTION 10.1 LIABILITY...............................................................................41
SECTION 10.2 EXCULPATION.............................................................................42
SECTION 10.3 FIDUCIARY DUTY..........................................................................42
SECTION 10.4 INDEMNIFICATION.........................................................................43
SECTION 10.5 OUTSIDE BUSINESSES......................................................................44
ARTICLE XI ACCOUNTING............................................................................................44
SECTION 11.1 FISCAL YEAR.............................................................................44
SECTION 11.2 CERTAIN ACCOUNTING MATTERS..............................................................44
SECTION 11.3 BANKING.................................................................................45
SECTION 11.4 WITHHOLDING.............................................................................45
ii
<Page>
ARTICLE XII AMENDMENTS AND MEETINGS..............................................................................45
SECTION 12.1 AMENDMENTS..............................................................................45
SECTION 12.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN CONSENT........................48
ARTICLE XIII REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE............................................49
SECTION 13.1 REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE......................................49
SECTION 13.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE......................................50
ARTICLE XIV [RESERVED]...........................................................................................50
ARTICLE XV MISCELLANEOUS.........................................................................................51
SECTION 15.1. NOTICES.................................................................................51
SECTION 15.2 GOVERNING LAW...........................................................................52
SECTION 15.3 INTENTION OF THE PARTIES................................................................52
SECTION 15.4 HEADINGS................................................................................52
SECTION 15.5 SUCCESSORS AND ASSIGNS..................................................................53
SECTION 15.6 PARTIAL ENFORCEABILITY..................................................................53
SECTION 15.7 COUNTERPARTS............................................................................53
ANNEXES
ANNEX I TERMS OF ____% CONVERTIBLE TRUST III PREFERRED SECURITIES
____% CONVERTIBLE COMMON SECURITIES
EXHIBITS
EXHIBIT A-1 FORM OF PREFERRED SECURITY
EXHIBIT A-2 FORM OF COMMON SECURITY
</Table>
iii
<Page>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
FLEETWOOD CAPITAL TRUST III
___________________, 2001
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of ________________, 2001, by the undersigned trustees (together
with all other Persons from time to time duly appointed and serving as trustees
in accordance with the provisions of this Declaration, the "Trustees"),
Fleetwood Enterprises, Inc., a Delaware corporation, as trust sponsor (the
"Sponsor"), and by the holders, from time to time, of undivided beneficial
interests in the Trust issued pursuant to this Declaration;
WHEREAS, certain of the Trustees and the Sponsor established Fleetwood
Capital Trust III (the "Trust"), a Delaware statutory business trust created
under the Business Trust Act, pursuant to a Declaration of Trust dated as of
December 7, 2001 (the "Original Declaration") and a Certificate of Trust filed
with the Secretary of State of Delaware on December 7, 2001, for the purposes of
issuing Preferred Securities and Common Securities for cash and investing the
cash proceeds therefrom in Debentures;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
desire to amend and restate each and every term and provision of the Original
Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a Delaware statutory business trust created under the
Business Trust Act and that this Declaration constitute the governing instrument
of such business trust, the Trustees declare that all assets contributed to the
Trust will be held in trust for the benefit of the holders, from time to time,
of the securities representing undivided beneficial interests in the assets of
the Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 DEFINITIONS.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
1
<Page>
(c) all references to "the Declaration" or "this Declaration" are
to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections
and Exhibits are to Articles and Sections of and Exhibits to this Declaration
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"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.
"AUTHORIZED OFFICER" of a Person means any Person that is authorized to
bind such Person.
"BOOK ENTRY INTEREST" means a beneficial interest in a global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Depositary as described in Section 9.4.
"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 Debenture Trustee's Corporate
Trust Office is closed for business.
"BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. Code Section 3801 et seq., as it may be amended from time to time or any
successor legislation.
"CERTIFICATE" means a certificate in global or definitive form
representing a Common Security or a Preferred Security.
"CLOSING DATE" means the date on which the Offering is consummated.
"CLOSING PRICE" has the meaning set forth in the Indenture.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON SECURITIES" has the meaning set forth in Section 7.1(a).
2
<Page>
"COMMON SECURITIES GUARANTEE" means the guarantee agreement(s) dated as
of [______________, 2001], of the Sponsor in respect of the Common Securities.
"CONVERSION AGENT" has the meaning set forth in Section 7.4.
"COVERED PERSON" means: (a) any officer, director, trustee,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"DEBENTURE ISSUER" means the Sponsor in its capacity as issuer of the
Debentures.
"DEBENTURE TRUSTEE" means The Bank of New York, not in its individual
capacity but solely as trustee under the Indenture, until a successor is
appointed thereunder, and thereafter means such successor trustee.
"DEBENTURES" means the ____% Convertible Trust III Subordinated
Debentures due ___________ to be issued by the Debenture Issuer under the
Indenture and held by the Property Trustee in trust for the benefit of the
Holders of the Securities.
"DEFINITIVE PREFERRED SECURITIES" means any Preferred Securities in
fully registered definitive form issued by the Trust.
"DELAWARE TRUSTEE" has the meaning set forth in Section 5.2.
"DEPOSITARY" means The Depository Trust Company.
"DIRECT ACTION" has the meaning set forth in Section 3.8(e).
"DISSOLUTION TAX OPINION" has the meaning set forth in paragraph 4(c)
of Annex I hereto.
"DISTRIBUTION" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"DISTRIBUTION AGREEMENT" means the agreement dated as of December
[____], 2001 among Banc of America Securities LLC, as Placement Agent, the
Company and the Trust.
"EVENT OF DEFAULT" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Debentures.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"EXCHANGE COMMON SECURITIES GUARANTEE" has the meaning given to that
term in the Indenture.
"EXCHANGE PREFERRED SECURITIES GUARANTEE" has the meaning given to that
term in the Indenture.
3
<Page>
"FLEETWOOD COMMON STOCK" means the common stock, par value $1.00 per
share, of the Sponsor.
"GLOBAL PREFERRED SECURITY" has the meaning set forth in Section
7.3(a).
"HOLDER" means a Person in whose name a Security is registered, such
Person being a beneficial owner within the meaning of the Business Trust Act.
"INDEMNIFIED PERSON" means (a) any Trustee; (b) any Affiliate of any
Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee; and (d) any employee or
agent of the Trust or its Affiliates.
"INDENTURE" means the Indenture dated as of [_____________, 2001],
between the Debenture Issuer and The Bank of New York, not in its individual
capacity but solely as Debenture Trustee, and any indenture supplemental thereto
pursuant to which the Debentures are to be issued.
"INVESTMENT COMPANY" means an investment company as defined in the
Investment Company Act.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"INVESTMENT COMPANY EVENT" means the Regular Trustees shall have
obtained an opinion of a nationally recognized independent counsel experienced
in practice under the Investment Company Act to the effect that, as a result of
the occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, which change is enacted,
promulgated, issued or becomes effective on or after the date of the Prospectus
(a "Change in 1940 Act Law"), there is more than an insubstantial risk that the
Trust is or will be considered an investment company which is required to be
registered under the Investment Company Act.
"LEGAL ACTION" has the meaning set forth in Section 3.6(g).
"MINISTERIAL ACTION" has the meaning set forth in the terms of the
Securities as set forth in Annex I.
"MAJORITY IN LIQUIDATION AMOUNT OF THE PREFERRED SECURITIES" means,
except as provided in the terms of the Preferred Securities and by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a single
class or, as the context may require, Holder(s) of outstanding Preferred
Securities or Holder(s) of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"NO RECOGNITION OPINION" has the meaning set forth in paragraph 4(c) of
Annex I.
4
<Page>
"OFFERING" means the offering for cash of up to $__________ in
aggregate liquidation amount of the Preferred Securities.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"PARTICIPANTS" has the meaning set forth in Section 7.3(b).
"PAYING AGENT" has the meaning set forth in Section 7.4.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"PREFERRED SECURITIES" has the meaning set forth in Section 7.1(a).
"PREFERRED SECURITIES GUARANTEE" means the guarantee agreement(s) dated
as of [_____________, 2001], of the Sponsor in respect of the Preferred
Securities.
"PREFERRED SECURITY BENEFICIAL OWNER" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Depositary, or on the books of a
Person maintaining an account with such Depositary (directly as a Participant or
as an indirect participant, in each case in accordance with the rules of such
Depositary).
"PROPERTY TRUSTEE" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"PROPERTY TRUSTEE ACCOUNT" has the meaning set forth in Section 3.8(c).
"PROSPECTUS" means the prospectus, as amended or supplemented from time
to time, relating to the Offering.
5
<Page>
"QUORUM" means a majority of the Regular Trustees or, if there are only
one or two Regular Trustees, all of the Regular Trustees.
"REGISTRAR" has the meaning set forth in Section 7.4.
"REGULAR TRUSTEES" means any Trustee other than the Property Trustee,
the Guarantee Trustee, the Debenture Trustee and the Delaware Trustee.
"RELATED PARTY" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"RESPONSIBLE OFFICER" means, with respect to the Property Trustee, any
vice-president, any assistant vice-president, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer or any other officer in
the Corporate Trust Department of the Property 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 that officer's knowledge of
and familiarity with the particular subject.
"SECURITIES" means the Common Securities and the Preferred Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES CUSTODIAN" means the custodian with respect to the Global
Preferred Security.
"66-2/3% IN LIQUIDATION AMOUNT OF THE SECURITIES" means, except as
otherwise provided in the terms of the Preferred Securities and by the Trust
Indenture Act, Holders of outstanding Securities voting together as a single
class or, as the context may require, Holder(s) of Preferred Securities or
Holder(s) of outstanding Common Securities voting separately as a class,
representing at least 66-2/3% of the aggregate stated liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"SPONSOR" means Fleetwood Enterprises, Inc., a Delaware corporation, or
any successor entity in a merger, consolidation or amalgamation, in its capacity
as sponsor of the Trust.
"SUPER MAJORITY" has the meaning set forth in Section 2.6(a)(ii).
"TAX EVENT" means that the Regular Trustees shall have received an
opinion of a nationally recognized independent tax counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or therein, (b) any amendment to, or change in, an interpretation or
application of any such laws or regulations by any legislative body, court or
governmental or regulatory agency or authority (including the enactment of any
legislation and the publication of any judicial decision or regulatory
determination) or (c) any official interpretation or pronouncement
6
<Page>
by any legislative body, court or governmental or regulatory agency or
authority that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position,
which amendment or change is enacted, promulgated, issued or announced or
which interpretation or pronouncement is issued or announced, in each case,
on or after the date of the Prospectus, there is more than an insubstantial
risk that (i) the Trust is, or will be within 90 days of the date thereof,
subject to United States federal income tax with respect to interest accrued
or received on the Debentures or (ii) the Trust is, or will be within 90 days
of the date thereof, subject to more than a DE MINIMIS amount of other taxes,
duties or other governmental charges.
"10% IN LIQUIDATION AMOUNT OF THE SECURITIES" means, except as
otherwise provided in the terms of the Preferred Securities or by the Trust
Indenture Act, Holders of outstanding Securities voting together as a single
class or, as the context may require, Holder(s) of outstanding Preferred
Securities or Holder(s) of outstanding Common Securities, voting separately as a
class, representing 10% of the aggregate stated liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
"TRADING DAY" has the meaning set forth in the Indenture.
"TREASURY REGULATIONS" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"TRUST II" means Fleetwood Capital Trust II, a Delaware statutory
business trust.
"TRUSTEE" or "TRUSTEES" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration, which are
incorporated by reference in and made part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee that is a
Trustee for the purposes of the Trust Indenture Act.
7
<Page>
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Property Trustee (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Property Trustee
may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of such record date, provided, that neither
the Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated
to provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust, and (ii) at any other
time, within 30 days of receipt by the Trust of a written request for a List of
Holders, a List of Holders as of a date no more than 14 days before such List of
Holders is given to the Property Trustee. The Property Trustee shall preserve,
in as current a form as is reasonably practicable, all information contained in
Lists of Holders given to it or which it receives in the capacity as Paying
Agent (if acting in such capacity); provided, however, that the Property Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE PROPERTY TRUSTEE.
Within 60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Preferred Securities such reports as are required
by Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Property Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO PROPERTY TRUSTEE.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information
(if any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust
8
<Page>
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act may be given in the
form of an Officers' Certificate.
SECTION 2.6 EVENT OF DEFAULT; WAIVER.
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, PROVIDED, that if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under the Declaration also shall not be waivable; or
(ii) requires the consent or vote of (x) holders of
Debentures representing a specified percentage greater than a majority
in principal amount of the Debentures (a "Super Majority") or (y) each
holder of Debentures affected thereby to be waived under the Indenture,
then the Event of Default under the Declaration may only be waived by
the vote of, in the case of (x) above, the Holders of at least the
proportion in liquidation amount of the outstanding Preferred
Securities that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding or, in the case of (y)
above, each Holder of outstanding Preferred Securities affected
thereby.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act. Upon such waiver, any
such default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holder(s) of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, PROVIDED, that if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under the Declaration as provided below in this Section
2.6(b), the Event of Default under the Declaration also shall not be
waivable; or
(ii) requires the consent or vote of (x) a Super Majority
or (y) each holder of Debentures affected thereby to be waived, except
where the Holders of the Common Securities are deemed to have waived
such Event of Default under the Declaration as
9
<Page>
provided below in this Section 2.6(b), the Event of Default under the
Declaration may only be waived by the vote of, in the case of clause
(x) above, the Holders of at least the proportion in aggregate
liquidation amount of the Common Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding or, in the case of clause (y) above, each holder of
outstanding Common Securities affected thereby; PROVIDED, FURTHER, each
Holder of Common Securities shall be deemed to have waived any such
Event of Default and all Events of Default with respect to the Common
Securities and its or their consequences until all Events of Default
with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Events of Default have been so
cured, waived or otherwise eliminated, the Property Trustee will be
deemed to be acting solely on behalf of the Holders of the Preferred
Securities and only the Holders of the Preferred Securities will have
the right to direct the Property Trustee in accordance with the terms
of the Securities. The foregoing provisions of this Section 2.6(b)
shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and
such Section 316(a)(1)(B) of the Trust Indenture Act is hereby
expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.6(b), upon such waiver, any such default
shall cease to exist and any Event of Default with respect to the
Common Securities arising therefrom shall be deemed to have been cured
for every purpose of this Declaration, but no such waiver shall extend
to any subsequent or other default or Event of Default with respect to
the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities
constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 2.6(c) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 EVENT OF DEFAULT; NOTICE.
(a) The Property Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Securities, notices of all defaults with respect
to the Securities actually known to Responsible Officer of the Property Trustee,
unless such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7(a) being hereby defined to be an
Event of Default as defined in the Indenture with respect to the Debentures, not
including any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); PROVIDED, that, except for a default in
the payment of principal of (or premium, if any), interest (including Compounded
Interest and Additional Interest, if any (each as defined in the Indenture)), or
Additional Redemption Distributions, if any, on any of the Debentures, the
Property Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Property Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
10
<Page>
(b) The Property Trustee shall not be deemed to have knowledge of
any default with respect to the Debentures except:
(i) a default under Sections 501(1) and 501(2) of the
Indenture; or
(ii) any default as to which the Property Trustee shall
have received written notice or of which a Responsible Officer of the
Property Trustee charged with the administration of the Declaration
shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 NAME.
The Trust is named "Fleetwood Capital Trust III," as such name may be
modified from time to time by the Regular Trustees following written notice to
the Holders of Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 OFFICE.
The address of the principal office of the Trust is c/o Fleetwood
Enterprises, Inc., 3125 Myers Street, Riverside, California, 92503, Attention:
General Counsel. On ten Business Days' written notice to the Holders of
Securities, the Regular Trustees may designate another principal office.
SECTION 3.3 PURPOSE.
The purposes and functions of the Trust are (a) to issue Preferred
Securities for cash, (b) to issue and sell Common Securities to the Sponsor, (c)
to purchase and own Debentures, and (d) except as specifically limited by this
Declaration, to engage in any other lawful business or activity that may be
engaged in by a business trust formed under the Business Trust Act.
Notwithstanding anything herein to the contrary, the Trust shall not borrow
money, issue securities other than Securities, issue debt, make investments
other than in the Debentures or reinvest proceeds derived from investments,
pledge any of its assets, or otherwise undertake (or permit to be undertaken)
any activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
SECTION 3.4 AUTHORITY.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. Any
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and any action taken by the
Property Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust. In dealing with the Trustees acting on behalf of the
Trust, no person shall be required to inquire into the authority of the Trustees
to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
11
<Page>
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the Debentures and
the Property Trustee Account or as otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES.
The Regular Trustees shall have the exclusive power, duty and authority
to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; PROVIDED, HOWEVER, that the
Trust may issue no more than one series of Preferred Securities and no more than
one series of Common Securities, and PROVIDED, FURTHER, that there shall be no
interests in the Trust other than the Securities, and the issuance of Securities
shall be limited to a one-time, simultaneous issuance of both Preferred
Securities and Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) prepare the Prospectus in preliminary and final form
prepared by the Sponsor and the registration statements and any
amendments thereto, in relation to the Offering and to execute and file
with the Commission, at such time as may be determined by the Sponsor
any forms or filings, or any amendments thereto, as may be required by
the Securities Act, the Exchange Act or the Trust Indenture Act, in
each case in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as may be determined by the Sponsor to be
necessary in order to qualify or register all or part of the Securities
in any State or foreign jurisdiction in which the Sponsor has
determined to qualify or register such Securities for sale;
(iii) execute and file, at such time as may be determined
by the Sponsor, an application, prepared on behalf of the Sponsor, to
the New York Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing or quotation of the Preferred
Securities;
(iv) execute and deliver letters or documents, of
instruments with, The Depository Trust Company ("DTC") relating to the
Preferred Securities;
(v) execute and file with the Commission, at such time as
may be determined by the Sponsor, a registration statement on Form 8-A,
including any amendments thereto, prepared by the Sponsor relating to
the registration of the Preferred Securities and the guarantee of the
Sponsor with respect to the Preferred Securities under the Exchange
Act;
(vi) obtain a CUSIP number for the Preferred Securities;
and
12
<Page>
(vii) execute and enter into the Distribution Agreement and
other agreements relating to the Offering;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; PROVIDED, HOWEVER, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Tax Event or an Investment Company Event;
PROVIDED, that the Regular Trustees shall consult with the Sponsor and the
Property Trustee before taking or refraining from taking any Ministerial Action
in relation to a Tax Event or an Investment Company Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders of Common Securities
as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required
of the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be executed
by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry
out any of the purposes of the Trust;
(1) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities
of any notice received from the Debenture Issuer of its election to defer
payments of interest on the Debentures by extending the interest payment period
under the Indenture, and the Property Trustee shall give such notice;
13
<Page>
(n) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for
the preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Preferred
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
(p) to conduct the affairs of the Trust and to take any action,
not inconsistent with this Declaration or with applicable law, that the Regular
Trustees determine in their discretion to be necessary or desirable in carrying
out the activities of the Trust as set out in this Section 3.6, including, but
not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the Investment
Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that
the Debentures will be treated as indebtedness of the Debenture Issuer
for United States federal income tax purposes, PROVIDED, that such
action does not adversely affect the interests of Holders; and
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf of
the Trust.
The Regular Trustees must exercise the powers set forth in this Section
3.6 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Regular Trustees shall not take any action that
is inconsistent with the purposes and functions of the Trust set forth in
Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.6 shall be reimbursed by the Sponsor.
SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall not on behalf of the Trust, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Property Trustee) shall cause the Trust not to:
14
<Page>
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such proceeds to
Holders of Securities pursuant to the terms of this Declaration and of
the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other than
loans represented by the Debentures;
(v) possess any power or otherwise act in such a way as
to vary the Trust assets or the terms of the Securities in any way
whatsoever, including the power to convert the Debentures;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) other than as provided in this Declaration, (A)
direct the time, method and place of exercising any trust or power
conferred upon the Debenture Trustee with respect to the Debentures,
(B) waive any past default that is waivable under the Indenture, (C)
exercise any right to rescind or annul any declaration that the
principal of all the Debentures shall be due and payable, or (D)
consent to any amendment, modification or termination of the Indenture
or the Debentures where such consent shall be required unless the Trust
shall have received an opinion of counsel to the effect that such
modification will not cause more than an insubstantial risk that (x)
the Trust will be deemed an Investment Company required to be
registered under the Investment Company Act, or (y) for United States
federal income tax purposes the Trust will not be classified as a
grantor trust.
SECTION 3.8 LEGAL TITLE TO THE DEBENTURES.
(a) The legal title to the Debentures shall be owned by and held
of record in the name of the Property Trustee in trust for the benefit of the
Holders of the Securities. The right, title and interest of the Property Trustee
to the Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 5.6. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Property Trustee does not also act as Delaware Trustee). The Trust and
the Trustee shall not convert any Debentures held by either of them except
pursuant to a notice of conversion delivered to the Conversion Agent by a Holder
of Trust Securities.
(c) The Property Trustee shall:
15
<Page>
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee Account") in the name of
and under the exclusive control of the Property Trustee on behalf of
the Holders of the Securities and, upon the receipt of payments of
funds made in respect of the Debentures held by the Property Trustee,
deposit such funds into the Property Trustee Account and make payments
to the Holders of the Preferred Securities and Holders of the Common
Securities from the Property Trustee Account in accordance with Section
6.1. Funds in the Property Trustee Account shall be held uninvested
until disbursed in accordance with this Declaration. The Property
Trustee Account shall be an account that is maintained with a banking
institution (which may be the Property Trustee) the rating on whose
long-term unsecured indebtedness is at least equal to the rating
assigned to the Preferred Securities by a "nationally recognized
statistical rating organization," as that term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as so directed
and as shall be necessary or appropriate to effect the redemption of
the Preferred Securities and the Common Securities to the extent the
Debentures are redeemed or accelerated or mature;
(iii) upon notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as so directed as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders of
Securities upon the occurrence of an Investment Company Event or a Tax
Event; and
(iv) take such ministerial action as may be directed in
writing by the Regular Trustees in connection with the winding up of
the affairs of or liquidation of the Trust in accordance with this
Declaration and the preparation, execution and filing of a certificate
of termination or other appropriate certificates with the Secretary of
State of the State of Delaware and other appropriate governmental
authorities.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Securities.
(e) The Property Trustee shall take any Legal Action which arises
out of or in connection with an Event of Default of which a Responsible Officer
of the Property Trustee has actual knowledge or the Property Trustee's duties
and obligations under this Declaration or the Trust Indenture Act. The Holders
of a Majority in liquidation amount of the Preferred Securities will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee or to direct the exercise of any trust
or power conferred upon the Property Trustee under the Declaration, including
the right to direct the Property Trustee to exercise the remedies available to
it as a holder of the Debentures. If the Property Trustee fails to enforce its
rights under the Debentures, a Holder of Preferred Securities, to the fullest
extent permitted by law, may institute a legal proceeding directly against the
Debenture Issuer to enforce the Property Trustee's rights under the Debentures
without first instituting any legal proceeding against the Property Trustee or
any other Person; PROVIDED, further, that, if an Event of Default has occurred
and is continuing and such event is attributable to the failure of the Debenture
Issuer to pay principal of, premium, if any, interest or Additional Redemption
Distributions, if any, on the Debentures on the date such principal, premium,
interest or
16
<Page>
Additional Redemption Distributions, if any, as the case may be, is
otherwise payable (or in the case of redemption, on the redemption date), then a
Holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such Holder directly of such principal amount equal to
the aggregate liquidation amount of the Preferred Securities of such Holder (a
"Direct Action") on or after the respective due date specified in the Debentures
or the Indenture. Notwithstanding any payments made to such Holder by the
Debenture Issuer, in connection with such Direct Action, the Debenture Issuer
shall remain obligated to pay the principal of, premium, if any, interest or
Additional Redemption Distributions, if any, on such Debentures, and the
Debenture Issuer shall be subrogated to the rights of such Holder of Preferred
Securities to the extent of any payment made by the Debenture Issuer to such
Holder of Preferred Securities to the extent of any payment made by the
Debenture Issuer to such Holder of Preferred Securities in such Direct Action.
Except as provided in the preceding sentences of this paragraph, the Holders of
Preferred Securities shall have no right or power to exercise directly any other
remedy available to the holders of the Debentures.
(f) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of Securities
pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and
has accepted that appointment in accordance with Section 5.6.
(g) The Property Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default occurs and is continuing, the Property
Trustee shall, for the benefit of Holders of the Securities, enforce its rights
as holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities. In no event, however, may the Property Trustee, in its
capacity as holder of the Debentures, have the power to convert the Debentures
unless instructed to do so on behalf of a Holder of Securities as herein
provided.
(h) The Property Trustee will act as Registrar, Paying Agent and
Conversion Agent and may authorize one or more persons (each, a "Paying Agent")
to pay Distributions, redemption payments or liquidation payments on behalf of
the Trust with respect to all Securities and any such Paying Agent shall comply
with Section 317(b) of the Trust Indenture Act. Any Paying Agent may be removed
by the Property Trustee at any time and a successor Paying Agent or additional
Paying Agents may be appointed at any time by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular Trustees
set forth in Section 3.6.
The Property Trustee must exercise the powers set forth in this Section
3.8 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Property Trustee shall not take any action that
is inconsistent with the purposes and functions of the Trust set out in Section
3.3.
17
<Page>
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE.
(a) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6) of which a Responsible Officer
of the Property Trustee has actual knowledge, the Property Trustee shall
exercise such of the rights and powers vested in it by this Declaration, 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.
(b) No provision of this Declaration shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Declaration and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Declaration,
and no implied covenants or obligations shall be read into
this Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of
the Property Trustee, the Property Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming to
the requirements of this Declaration; but in the case of any
such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Property Trustee,
the Property Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements
of this Declaration;
(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Property Trustee, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Property 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 not less than a
Majority in liquidation amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the
18
<Page>
performance of any of its duties or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured
to it under the terms of this Declaration or adequate indemnity against
such risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Property Trustee Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Declaration and
the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or sufficiency
of the Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
in writing with the Sponsor. Money held by the Property Trustee need
not be segregated from other funds held by it except in relation to the
Property Trustee Account maintained by the Property Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law;
and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the Property
Trustee be liable for the default or misconduct of the Regular Trustees
or the Sponsor.
SECTION 3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall
be fully 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, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration,
the Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Sponsor or the Regular Trustees;
19
<Page>
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or
other experts and the advice or opinion of such counsel and experts
with respect to legal matters or advice within the scope of such
experts' area of expertise 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 accordance with such advice or opinion,
and such counsel may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees; and the Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless such Holder shall
have provided to the Property Trustee adequate security and indemnity,
reasonably satisfactory to the Property Trustee, against the costs,
expenses (including attorneys' fees and expenses) and liabilities that
might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Property
Trustee; PROVIDED, that nothing contained in this Section 3.10(a)(vi)
shall be taken to relieve the Property Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise the rights and
powers vested in it by this Declaration;
(vii) the Property 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, security, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Property
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(viii) the Property 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 Property Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee or its agents
alone shall be sufficient and effective to perform any such action and
no third party shall be required to inquire as to the authority of the
Property Trustee to so act or as to its compliance with any of the
terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking
such action;
(x) whenever in the administration of this Declaration
the Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or
20
<Page>
taking any other action hereunder the Property Trustee (i) may request
instructions from the Holders of the Securities which instructions may
only be given by the Holders of the same proportion in liquidation
amount of the Securities as would be entitled to direct the Property
Trustee under the terms of the Securities in respect of such remedy,
right or action, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and
(iii) shall be protected in acting in accordance with such
instructions; and
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 DELAWARE TRUSTEE.
Notwithstanding any provision of this Declaration other than Section
5.2, the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees or the Property Trustee described in this Declaration. Except
as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act. The duties of the Delaware Trustee shall be limited to (a)
accepting legal process served on the Trust in the State of Delaware and (b) the
execution of any certificates required to be filed with the Delaware Secretary
of Sate which the Delaware Trustee is required to execute under Section 3811 of
the Business Trust Act.
SECTION 3.12 EXECUTION OF DOCUMENTS.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, any Regular Trustee is authorized
to execute on behalf of the Trust any documents that the Regular Trustees have
the power and authority to execute pursuant to Section 3.6; PROVIDED, that the
registration statement referred to in Section 3.6(b)(i), including any
amendments thereto, shall be signed by a majority of the Regular Trustees.
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The Trustees do not assume any responsibility for the correctness of
the recitals contained in this Declaration and the Securities. The Trustees make
no representations as to the value or condition of the property of the Trust or
any part thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration or the Securities.
21
<Page>
SECTION 3.14 DURATION OF TRUST.
The Trust, unless terminated pursuant to the provisions of Article VIII
hereof, shall exist until February 15, 2018.
SECTION 3.15 MERGERS.
(a) The Trust may not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c)
(b) The Trust may, with the consent of a majority of the Regular
Trustees, and without the consent of the Holders of the Securities, the Delaware
Trustee or the Property Trustee, consolidate, amalgamate, merge with or into, or
be replaced by a trust organized as such under the laws of any State or the
District of Columbia; PROVIDED, that:
(i) if the Trust is not the surviving entity, the
successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Preferred Securities
other securities having substantially the same terms as the
Preferred Securities (the "Successor Securities") as long as
the Successor Securities rank, with respect to Distributions
and payments upon liquidation, redemption and otherwise of the
Successor Entity, at least as high as the Preferred Securities
rank with respect to Distributions and payments upon
liquidation, redemption and otherwise of the Trust;
(ii) if the Trust is not the surviving entity, the
Debenture Issuer expressly acknowledges or appoints a trustee of such
Successor Entity that possesses the same powers and duties as the
Property Trustee, as holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities
are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or with
any other organization on which the Preferred Securities are then
listed or quoted;
(iv) such merger, consolidation, amalgamation or
replacement does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect (other than with respect
to any dilution of such Holders' interest in the Successor Entity);
22
<Page>
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel to the Trust experienced in such matters
to the effect that:
(A) such merger, consolidation, amalgamation or
replacement will not adversely affect the rights, preferences
and privileges of the Holders of the Securities (including any
Successor Securities) in any material respect (other than with
respect to any dilution of the Holders' interest in the
Successor Entity;
(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor the
Successor Entity will be required to register as an Investment
Company; and
(C) following such merger, consolidation,
amalgamation or replacement, the Successor Entity will be
treated as a grantor trust for United States federal income
tax purposes;
(viii) if the Trust is not the surviving entity, the Sponsor
provides a guarantee to the Holders of the Successor Securities with
respect to the Successor Entity having substantially the same terms as
the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other Person
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it, if such consolidation, amalgamation, merger or replacement would
cause the Trust or Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 SPONSOR'S PURCHASE OF COMMON SECURITIES.
On the Closing Date, the Sponsor will purchase that amount of
additional Common Securities such that the total amount of Common Securities
held by the Sponsor, which shall be all the Common Securities issued by the
Trust, shall equal approximately 3% of the total capital of the Trust, at the
same time as the Preferred Securities are issued in the Offering.
SECTION 4.2 RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare the Prospectus in preliminary and final form and
the registration statements and any amendments thereto in relation to the
Offering and to prepare for filing by the
23
<Page>
Trust with the Commission any forms or filings, including any amendments
thereto, as may be required by the Securities Act, the Exchange Act or the Trust
Indenture Act;
(b) to determine the states and foreign jurisdictions in which to
take appropriate action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed by the
Trust, as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such states and foreign jurisdictions;
(c) to prepare or cause to be prepared for filing by the Trust an
application to the New York Stock Exchange or any other national stock exchange
or the Nasdaq National Market for listing or quotation of the Preferred
Securities and, if deemed necessary or advisable by the Sponsor, the Preferred
Securities Guarantee;
(d) to prepare letters or documents to, or instruments for filing
with, DTC relating to the Preferred Securities;
(e) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the Preferred
Securities and the Preferred Securities Guarantee under the Exchange Act,
including any amendments thereto; and
(f) to negotiate the terms of the Distribution Agreement and other
agreements providing for or relating to the Offering.
SECTION 4.3 CALCULATION OF ORIGINAL ISSUE DISCOUNT.
The Sponsor shall file with the Property Trustee promptly at the end of
each calendar year (i) a written notice specifying the amount of original issue
discount (including daily portions and accrual periods) accrued on outstanding
Debentures as of the end of such year and (ii) such other specific information
the Property Trustee may reasonably request relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
ARTICLE V
TRUSTEES
SECTION 5.1 NUMBER OF TRUSTEES.
The number of Trustees shall initially be five (5) and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities:
the number of Trustees may be increased or decreased by vote of the
Holders of a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the
24
<Page>
Holders of the Common Securities; PROVIDED, HOWEVER, that the number of Trustees
shall in no event be less than two; PROVIDED, FURTHER, that (1) one Trustee
shall satisfy the requirements of Section 5.2; (2) there shall be at least one
Trustee who is an employee or officer of, or is affiliated with the Sponsor (a
"Regular Trustees"); and (3) one Trustee shall be the Property Trustee for so
long as this Declaration is required to qualify as an indenture under the Trust
Indenture Act, and such Trustee may also serve as Delaware Trustee if it meets
the applicable requirements; PROVIDED, FURTHER, that if the Property Trustee
does not also act as Delaware Trustee, the number of Trustees shall be at least
three.
SECTION 5.2 DELAWARE TRUSTEE.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be (a) a natural person who is a resident of the State of
Delaware; or (b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the requirements
of applicable law, PROVIDED, that if the Property Trustee has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable law, then the Property Trustee shall also be the Delaware Trustee
and Section 3.11 shall have no application.
SECTION 5.3 PROPERTY TRUSTEE: ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as
Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation or bank organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a corporation,
bank or Person permitted by the Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, state, territorial or District
of Columbia authority. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then for the
purposes of this Section 5.3(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Property Trustee shall cease to be eligible
to so act under Section 5.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
25
<Page>
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be: The Bank of New York.
SECTION 5.4 QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE TRUSTEE
GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers. The Delaware Trustee shall also meet the requirements set
forth in Section 5.2.
SECTION 5.5 INITIAL TRUSTEES.
The initial Regular Trustees shall be:
Boyd R. Plowman
c/o Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, California 92503;
Lyle N. Larkin
c/o Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, California 92503; and
Nelson W. Potter
c/o Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, California 92503
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
The initial Property Trustee shall be:
The Bank of New York
101 Barclay Street
21 West
New York, New York 10286
SECTION 5.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.6(b), Trustees may be appointed or
removed without cause at any time:
26
<Page>
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the
Holders of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common Securities.
(b) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 5.6(a) until a Successor Property Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the Regular Trustees and the
Sponsor.
(c) The Trustee that acts as Delaware Trustee shall not be removed
in accordance with this Section 5.6(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(d) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; PROVIDED, HOWEVER,
that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor and the resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the holders of the Securities;
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(e) The Holder(s) of the Common Securities shall use its or their
best efforts to promptly appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be, if the Property Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this Section
5.6.
(f) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted such appointment as provided in this
Section 5.6 within 60 days after removal or after delivery to the Sponsor and
the Trust of an instrument of resignation, the
27
<Page>
retiring Property Trustee or Delaware Trustee, as applicable, may petition
any court of competent jurisdiction for appointment of a Successor Property
Trustee or Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee.
SECTION 5.7 VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy shall
be filled with a Trustee appointed in accordance with Section 5.6.
SECTION 5.8 EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration. The Delaware Trustee may resign immediately upon notice to the
Sponsor if the Delaware Trustee is required to join in any filing or execute on
behalf of the Trust any document pursuant to the provisions of Section 4.2(a),
(b), (c) or (d) hereof and, upon giving such notice, the Delaware Trustee shall
not be required to join in any such filing or execute on behalf of the Trust any
document; provided, further, however, that no resignation of the Delaware
Trustee shall be effective until a successor Delaware Trustee has been appointed
and has accepted such appointment by instrument executed by such successor
Delaware Trustee and delivered to the Trust, the Sponsor, the Regular Trustees
and the resigning Delaware Trustee.
SECTION 5.9 MEETINGS.
Meetings of the Regular Trustees shall be held from time to time upon
the call of any Regular Trustee. Regular meetings of the Regular Trustees may be
held at a time and place fixed by resolution of the Regular Trustees. Notice of
any in-person meetings of the Regular Trustees shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a Regular
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where a Regular Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless
28
<Page>
provided otherwise in this Declaration, any action of the Regular Trustees
may be taken at a meeting by vote of a majority of the Regular Trustees
present (whether in person or by telephone) and eligible to vote with respect
to such matter, provided that a Quorum is present, or without a meeting by
the unanimous written consent of the Regular Trustees. In the event there is
only one Regular Trustee, any and all action of such Regular Trustee shall be
evidenced by a written consent of such Regular Trustee.
SECTION 5.10 DELEGATION OF POWER.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendments thereto filed with the
Commission, or making any other governmental filing; and
(b) The Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Person into which the Property Trustee or the Delaware Trustee, as
the case may be, may be merged or converted or with which either may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of the Property Trustee or the Delaware Trustee, as
the case may be, shall be the successor of the Property Trustee or the Delaware
Trustee, as the case may be, hereunder, provided such Person 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; PROVIDED,
HOWEVER, such successor shall notify the Sponsor and the Trust promptly of its
succession.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS.
Holders shall receive Distributions (as defined herein) in accordance
with the applicable terms of the relevant Holder's Securities. Distributions
shall be made on the Preferred Securities and the Common Securities in
accordance with the preferences set forth in their respective terms. If and to
the extent that the Debenture Issuer makes a payment of interest (including
Compounded Interest and Additional Interest (each as defined in the Indenture)),
principal or premium, if any, on the Debentures held by the Property Trustee
(the amount of any such payment being a "Payment Amount"), the Property Trustee
shall and is directed, to the extent funds are available for that purpose, to
make a distribution (a "Distribution") of the Payment Amount to Holders.
29
<Page>
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall on behalf of the Trust issue one
class of convertible preferred securities, representing undivided beneficial
interests in the assets of the Trust (the "Preferred Securities"), having such
terms (the "Terms") as are set forth in Annex I hereto and one class of
convertible common securities, representing undivided beneficial interests in
the assets of the Trust (the "Common Securities"), having such terms as are set
forth in Annex I hereto. The Trust shall have no securities or other interests
in the assets of the Trust other than the Preferred Securities and the Common
Securities. The Trust shall not issue any Securities in bearer form.
(b) The consideration received by the Trust for the issuance of
the Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and nonassessable, subject to Section 10.1 with respect to the Common
Securities.
(d) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
(e) The Securities shall have no preemptive rights.
SECTION 7.2 EXECUTION AND AUTHENTICATION.
(a) The Securities shall be signed on behalf of the Trust by one
Regular Trustee. In case any Regular Trustee of the Trust who shall have signed
any of the Securities shall cease to be such Regular Trustee before the
Securities so signed shall be delivered by the Trust, such Securities
nevertheless may be delivered as though the person who signed such Securities
had not ceased to be such Regular Trustee; and any Securities may be signed on
behalf of the Trust by such persons who, at the actual date of execution of such
Securities, shall be the Regular Trustees of the Trust, although at the date of
the execution and delivery of the Declaration any such person was not such a
Regular Trustee.
(b) One Regular Trustee shall sign the Preferred Securities for
the Trust by manual or facsimile signature. Unless otherwise determined by the
Trust, such signature shall, in the case of Common Securities, be a manual
signature.
A Preferred Security shall not be valid until authenticated by the
manual signature of an authorized officer of the Property Trustee. Such
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee,
together with an Officers' Certificate contemplated by Section 2.5, the Property
Trustee shall authenticate the
30
<Page>
Preferred Securities for original issue as set forth in paragraph 5 of the
Preferred Securities. The aggregate number of Preferred Securities
outstanding at any time shall not exceed the number set forth in the Terms in
Annex I hereto except as provided in Section 7.7.
The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Preferred Securities. An authenticating agent may
authenticate Preferred Securities whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. Any authenticating agent has the same rights as
the Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
SECTION 7.3 FORM AND DATING.
The Preferred Securities and the Property Trustee's certificate of
authentication shall be substantially in the forms of Exhibit A-1 and the Common
Securities shall be substantially in the form of Exhibit A-2, each of which is
hereby incorporated in and expressly made a part of this Declaration.
Certificates may be printed, lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the Regular Trustees, as
conclusively evidenced by their execution thereof. The Securities may have
letters, numbers, notations or other marks of identification or designation and
such legends or endorsements required by law, stock exchange rule, agreements to
which the Trust is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Trust). The Trust at the
direction of the Sponsor shall furnish any such legend not contained in Exhibit
A-1 to the Property Trustee in writing. Each Preferred Security shall be dated
the date of its authentication. The terms and provisions of the Securities set
forth in Annex I and the forms of Securities set forth in Exhibits A-1 and A-2
are part of the terms of this Declaration and to the extent applicable, the
Property Trustee and the Sponsor, by their execution and delivery of this
Declaration, expressly agree to such terms and provisions and to be bound
thereby.
(a) GLOBAL SECURITIES. The Preferred Securities shall be issued in
the form of one or more permanent global securities in definitive, fully
registered form without distribution coupons with the appropriate global legends
set forth in Exhibit A-1 hereto (each, a "Global Preferred Security"), which
shall be deposited on behalf of the purchasers of the Preferred Securities
represented thereby with the Property Trustee, at its Corporate Trust Office, as
custodian for the Depositary, and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Trust and authenticated by the
Property Trustee as hereinafter provided. The number of Preferred Securities
represented by a Global Preferred Security may from time to time be increased or
decreased by adjustments made on the records of the Property Trustee and the
Depositary or its nominee as hereinafter provided.
(b) BOOK-ENTRY PROVISIONS. The Trust shall execute and the
Property Trustee shall, in accordance with this Section 7.3, authenticate and
deliver initially one or more Global Preferred Securities that (a) shall be
registered in the name of Cede & Co. or other nominee of such Depositary and (b)
shall be delivered by the Property Trustee to such Depositary or pursuant to
such Depositary's instructions or held by the Property Trustee as custodian for
the Depositary.
Members of, or participants in, the Depositary ("Participants") shall
have no rights under this Declaration with respect to any Global Preferred
Security held on their behalf by the
31
<Page>
Depositary or by the Property Trustee, as the custodian of the Depositary, or
under such Global Preferred Security, and the Depositary will be treated by
the Trust, the Property Trustee and any agent of the Trust or the Property
Trustee as the absolute owner of such Global Preferred Security for all
purposes whatsoever during such period that the Depositary, or its nominee,
is the registered owner or holder of the Global Preferred Security.
Notwithstanding the foregoing, nothing herein shall prevent the Trust, the
Property Trustee or any agent of the Trust or the Property Trustee from
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 Preferred Security.
(c) CERTIFICATED SECURITIES. Except as otherwise provided in
Section 7.10, owners of beneficial interests in any Global Preferred Security
will not be entitled to receive physical delivery of certificated Preferred
Securities.
SECTION 7.4 REGISTRAR, PAYING AGENT AND CONVERSION AGENT.
The Trust shall maintain in the City of New York, (i) an office or
agency where Securities may be presented for registration of transfer or
exchange ("Registrar"), (ii) an office or agency where Securities may be
presented for payment ("Paying Agent") and (iii) an office or agency where
Securities may be presented for conversion ("Conversion Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Trust may appoint the Registrar, the Paying Agent and the Conversion Agent and
may appoint one or more co-registrars, one or more additional paying agents and
one or more additional conversion agents in such other locations as it shall
determine. The term "Paying Agent" includes any additional paying agent and the
term "Conversion Agent" includes any additional conversion agent. The Trust may
change any Paying Agent, Registrar, co-registrar or Conversion Agent without
prior notice to any Holder. The Paying Agent will be permitted to resign as
Paying Agent upon 30 days' written notice to the Regular Trustees. The Trust
shall notify the Property Trustee of the name and address of any Agent not a
party to this Declaration. If the Trust fails to appoint or maintain another
entity as Registrar, Paying Agent or Conversion Agent, the Property Trustee
shall act as such for the Preferred Securities. The Trust or any of its
Affiliates may act as Paying Agent, Registrar, or Conversion Agent. The Trust
shall act as Paying Agent, Registrar, co-registrar, and Conversion Agent for the
Common Securities. The Paying Agent, Registrar and Conversion Agent shall be
entitled to the rights and protections extended to the Property Trustee when
acting in such capacity.
The Trust initially appoints the Property Trustee, acting through its
Corporate Trust Office in New York, New York, as Registrar, Paying Agent, and
Conversion Agent for the Preferred Securities.
SECTION 7.5 PAYING AGENT TO HOLD MONEY IN TRUST.
The Trust shall require each Paying Agent other than the Property
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Property Trustee all money held by the Paying Agent
for the payment of principal or distribution on the Securities, and will notify
the Property Trustee if there are insufficient funds. While any such
insufficiency
32
<Page>
continues, the Property Trustee may require a Paying Agent to pay all money
held by it to the Property Trustee. The Trust at any time may require a
Paying Agent to pay all money held by it to the Property Trustee and to
account for any money disbursed by it. Upon payment over to the Property
Trustee, the Paying Agent (if other than the Trust or an Affiliate of the
Trust) shall have no further liability for the money. If the Trust or the
Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the
Holders all money held by it as Paying Agent.
SECTION 7.6 [RESERVED]
SECTION 7.7 REPLACEMENT SECURITIES.
If the holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken or if such Security is mutilated and is
surrendered to the Trust or in the case of the Preferred Securities to the
Property Trustee, the Trust shall issue and the Property Trustee shall
authenticate a replacement Security if the Property Trustee's and the Trust's
requirements, as the case may be, are met. If required by the Property Trustee
or the Trust, an indemnity bond must be posted in an amount sufficient in the
judgment of both to protect the Trustees, the Property Trustee, the Sponsor or
any authenticating agent from any loss which any of them may suffer if a
Security is replaced. The Trust may charge for its expenses in replacing a
Security.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by the
Sponsor pursuant to Article III hereof, the Sponsor in its discretion may,
instead of issuing a new Security, pay or purchase such Security, as the case
may be.
Every replacement Security is an additional obligation of the Trust.
SECTION 7.8 OUTSTANDING PREFERRED SECURITIES.
The Preferred Securities outstanding at any time are all the Preferred
Securities authenticated by the Property Trustee except for those canceled by
it, those delivered to it for cancellation, and those described in this Section
as not outstanding.
If a Preferred Security is replaced, paid or purchased pursuant to
Section 7.7 hereof, it ceases to be outstanding unless the Property Trustee
receives proof satisfactory to it that the replaced, paid or purchased Preferred
Security is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance with the
terms of this Declaration, they cease to be outstanding and interest on them
ceases to accrue.
A Preferred Security does not cease to be outstanding because one of
the Trust, the Sponsor or an Affiliate of the Sponsor holds the Security.
SECTION 7.9 PREFERRED SECURITIES IN TREASURY.
In determining whether the Holders of the required amount of Securities
have concurred in any direction, waiver or consent, Preferred Securities owned
by the Trust, the Sponsor or an
33
<Page>
Affiliate of the Sponsor, as the case may be, shall be disregarded and deemed
not to be outstanding, except that for the purposes of determining whether
the Property Trustee shall be protected in relying on any such direction,
waiver or consent, only Securities which a Responsible Officer of the
Property Trustee knows are so owned shall be so disregarded.
SECTION 7.10 TEMPORARY SECURITIES.
(a) Until definitive Securities are ready for delivery, the Trust
may prepare and, in the case of the Preferred Securities, the Property Trustee
shall authenticate, temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Trust considers appropriate for temporary Securities. Without unreasonable
delay, the Trust shall prepare and, in the case of the Preferred Securities, the
Property Trustee shall authenticate definitive Securities in exchange for
temporary Securities.
(b) A Global Preferred Security deposited with the Depositary or
with the Property Trustee as custodian for the Depositary pursuant to Section
7.3 shall be transferred to the beneficial owners thereof in the form of
certificated Preferred Securities only if such transfer complies with Section
9.2 and (i) the Depositary notifies the Sponsor that it is unwilling or unable
to continue as Depositary for such Global Preferred Security or if at any time
such Depositary ceases to be a "clearing agency" registered under the Exchange
Act and a successor depositary is not appointed by the Sponsor within 90 days of
such notice, (ii) the Regular Trustees, with the consent of the Sponsor, elect
to discontinue use of the Depositary's, or its successor's, system of book entry
transfer with respect to the Preferred Securities or (iii) an Event of Default
has occurred and is continuing.
(c) Any Global Preferred Security that is transferable to the
beneficial owners thereof in the form of certificated Preferred Securities
pursuant to this Section 7.10 shall be surrendered by the Depositary to the
Property Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Property Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Preferred Security, an equal
aggregate liquidation amount of Securities of authorized denominations in the
form of certificated Securities. Any portion of a Global Preferred Security
transferred pursuant to this Section shall be registered in such names as the
Depositary shall direct.
(d) Subject to the provisions of Section 7.10(c), the registered
holder of a Global Preferred Security may grant proxies and otherwise authorize
any person, including Participants and persons that may hold interests through
Participants, to take any action which a holder is entitled to take under this
Declaration or the Securities.
(e) In the event of the occurrence of either of the events
specified in Section 7.10(b), the Trust will promptly make available to the
Property Trustee a reasonable supply of certificated Preferred Securities in
definitive, fully registered form without distribution coupons.
SECTION 7.11 CANCELLATION.
The Trust at any time may deliver Securities to the Property Trustee
for cancellation. The Registrar, Paying Agent and Conversion Agent shall forward
to the Property Trustee any Securities surrendered to them for registration of
transfer, redemption, conversion, exchange or
34
<Page>
payment. The Property Trustee shall promptly cancel all Securities
surrendered for registration of transfer, redemption, conversion, exchange,
payment, replacement or cancellation and shall dispose of canceled Securities
as the Trust directs provided that the Property Trustee shall not be required
to destroy such canceled securities. The Trust may not issue new Securities
to replace Securities that it has paid or that have been delivered to the
Property Trustee for cancellation or that any holder has converted.
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 DISSOLUTION AND TERMINATION OF TRUST.
(a) The Trust shall dissolve upon the earliest to occur of the
following:
(i) the expiration of the term of the Trust on February
15, 2018;
(ii) the bankruptcy of the Holder of the Common Securities
or the Sponsor;
(iii) the filing of a certificate of dissolution or its
equivalent with respect to the Holder of the Common Securities or the
Sponsor, after receipt by the Trustee of the consent of the Holders of
at least a Majority in liquidation amount of the outstanding Securities
voting together as a single class to dissolve the Trust and file a
certificate of dissolution with respect to the Trust or the revocation
of the charter of the Holder of the Common Securities or the Sponsor
and the expiration of 90 days after the date of revocation without a
reinstatement thereof;
(iv) the occurrence and continuation of a Tax Event or
Investment Company Event pursuant to which the Trust shall be dissolved
in accordance with the terms of the Securities and, after satisfaction
of liabilities of creditors (whether by payment or reasonable provision
for payment), the Debentures held by the Property Trustee shall be
distributed to the Holders of Securities in exchange for all of the
Securities;
(v) the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(vi) all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the
Securities; or
(vii) upon the conversion of all outstanding Preferred
Securities into Fleetwood Common Stock or other cash, securities or
property, as the case may be.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), and upon the completion of the winding up-of the
Trust, one of the Trustees shall file a certificate of cancellation with the
Secretary of State of the State of Delaware and the Trust shall terminate.
(c) The provisions of Article X shall survive the termination of
the Trust.
35
<Page>
ARTICLE IX
TRANSFER AND EXCHANGE
SECTION 9.1 GENERAL.
(a) Where Preferred Securities are presented to the Registrar with
a request to register a transfer or to exchange them for an equal number of
Preferred Securities represented by different certificates, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Trust shall issue and the Property Trustee shall authenticate Preferred
Securities at the Registrar's request.
(b) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void.
Subject to this Article IX, the Sponsor and any Related Party may only
transfer Common Securities to the Sponsor or a Related Party of the Sponsor;
PROVIDED, that any such transfer is subject to the condition precedent that the
transferor obtain the written opinion of nationally recognized independent
counsel experienced in such matters that such transfer would not cause more than
an insubstantial risk that:
(i) the Trust would not be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company required to
register under the Investment Company Act or the transferee would
become an Investment Company required to register under the Investment
Company Act
(c) The Regular Trustees shall provide for the registration of
Securities and of transfers of Securities, which will be effected without charge
but only upon payment (with such indemnity as the Regular Trustees may require)
in respect of any tax or other governmental charges that may be imposed in
relation to it. Upon surrender for registration of transfer of any Securities,
the Regular Trustees shall cause one or more new Securities to be issued in the
name of the designated transferee or transferees. Every Security surrendered for
registration of transfer or exchange, or for conversion or redemption, shall be
accompanied by a written instrument of transfer in form satisfactory to the
Registrar and Regular Trustees duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Security surrendered for registration
of transfer or exchange, or for conversion or redemption, shall be canceled by
the Regular Trustees (in the case of the Common Securities) or by the Property
Trustee (in the case of Preferred Securities). A transferee of a Security shall
be entitled to the rights and subject to the obligations of a Holder hereunder
upon the receipt by such transferee of a Security. By acceptance of a Security,
each transferee shall be deemed to have agreed to be bound by this Declaration.
(d) The Property Trustee shall not be required (i) to issue,
register the transfer of, or exchange any Preferred Securities during a period
beginning at the opening of business 15 days before the day of any selection of
Preferred Securities to be redeemed (unless all of the
36
<Page>
outstanding Securities are called for Redemption) and ending at the close of
business on the day of selection, or (ii) to register the transfer or
exchange of any Preferred Security so selected for redemption in whole or in
part, except the unredeemed portion of any Preferred Security being redeemed
in part.
SECTION 9.2 TRANSFER PROCEDURES AND RESTRICTIONS.
(a) [reserved]
(b) [reserved]
(c) [reserved]
(d) TRANSFER AND EXCHANGE OF DEFINITIVE PREFERRED SECURITIES.
When Definitive Preferred Securities are presented to the Registrar or
co-registrar to register the transfer of such Definitive Preferred
Securities, or to exchange such Definitive Preferred Securities for an equal
number of Definitive Preferred Securities of another number, the Registrar
shall register the transfer or make the exchange as requested if its
reasonable requirements for such transaction are met; PROVIDED, HOWEVER, that
the Definitive Preferred Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Trust and the Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing.
(e) RESTRICTIONS ON TRANSFER OF A DEFINITIVE PREFERRED SECURITY
FOR A BENEFICIAL INTEREST IN A GLOBAL PREFERRED SECURITY. A Definitive
Preferred Security may not be exchanged for a beneficial interest in a Global
Preferred Security except upon satisfaction of the requirements set forth
below. Upon receipt by the Property Trustee of a Definitive Preferred
Security, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Property Trustee, together with written
instructions directing the Property Trustee to make, or to direct the
Depositary to make, an adjustment on its books and records with respect to
such Global Preferred Security to reflect an increase in the number of the
Preferred Securities represented by the Global Preferred Security, then the
Property Trustee shall cancel such Definitive Preferred Security and cause,
or direct the Depositary to cause, the aggregate number of Preferred
Securities represented by the Global Preferred Security to be increased
accordingly. If no Global Preferred Securities are then outstanding, the
Trust shall issue and the Property Trustee shall authenticate, upon written
order of any Regular Trustee, an appropriate number of Preferred Securities
in global form.
(f) TRANSFER AND EXCHANGE OF GLOBAL PREFERRED SECURITIES. The
transfer and exchange of Global Preferred Securities or beneficial interests
therein shall be effected through the Depositary, in accordance with this
Declaration (including applicable restrictions on transfer set forth herein, if
any) and the procedures of the Depositary therefor.
(g) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL PREFERRED
SECURITY FOR A DEFINITIVE PREFERRED SECURITY.
(i) Any person having a beneficial interest in a Global
Preferred Security that is being transferred or exchanged pursuant to
an effective registration statement under the
37
<Page>
Securities Act and in accordance with Section 7.10 of this Declaration
may upon request, and if accompanied by the information specified
below, exchange such beneficial interest for a Definitive Preferred
Security representing the same number of Preferred Securities. Upon
receipt by the Property Trustee from the Depositary or its nominee on
behalf of any Person having a beneficial interest in a Global Preferred
Security of written instructions or such other form of instructions as
is customary for the Depositary and a certification from the Person
designated by the Depositary as being the owner of a beneficial
interest in a Global Preferred Security to that effect (in the form set
forth on the reverse of the Preferred Security), all of which may be
submitted by facsimile, then the Property Trustee or the Securities
Custodian, at the direction of the Property Trustee, will cause, in
accordance with the standing instructions and procedures existing
between the Depositary and the Securities Custodian, the aggregate
principal amount of the Global Preferred Security to be reduced on its
books and records and, following such reduction, the Trust will
execute and the Property Trustee will authenticate and deliver to
the transferee a Definitive Preferred Security.
(ii) Definitive Preferred Securities issued in exchange
for a beneficial interest in a Global Preferred Security pursuant to
this Section 9.2(g) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions
from its Participants or indirect participants or otherwise, shall
instruct the Property Trustee. The Property Trustee shall deliver such
Preferred Securities to the persons in whose names such Preferred
Securities are so registered in accordance with the instructions of the
Depositary.
(h) RESTRICTIONS ON TRANSFER OF GLOBAL PREFERRED SECURITIES.
Notwithstanding any other provisions of this Declaration other than the
provisions set forth in Section 9.2(i), a Global Preferred Security may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary.
(i) AUTHENTICATION OF DEFINITIVE PREFERRED SECURITIES. If at any
time:
(i) the Depositary notifies the Trust that the Depositary
is unwilling or unable to continue as Depositary for the Global
Preferred Securities and a successor Depositary for the Global
Preferred Securities is not appointed by the Trust at the direction of
the Sponsor within 90 days after delivery of such notice; or
(ii) the Trust, in its sole discretion, notifies the
Property Trustee in writing that it elects to cause the issuance of
Definitive Preferred Securities under this Declaration,
then the Trust will execute, and the Property Trustee, upon receipt of a written
order of the Trust signed by one Regular Trustee requesting the authentication
and delivery of Definitive Preferred Securities to the Persons designated by the
Trust, will authenticate and deliver Definitive Preferred Securities, in an
aggregate principal amount equal to the principal amount of Global Preferred
Securities, in exchange for such Global Preferred Securities.
(j) [reserved]
38
<Page>
(k) CANCELLATION OR ADJUSTMENT OF GLOBAL PREFERRED SECURITY. At
such time as all beneficial interests in a Global Preferred Security have
either been exchanged for Definitive Preferred Securities to the extent
permitted by the Declaration or redeemed, repurchased or canceled in
accordance with the terms of this Declaration, such Global Preferred Security
shall be returned to the Depositary for cancellation or retained and canceled
by the Property Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Preferred Security is exchanged for
Definitive Preferred Securities, Preferred Securities represented by such
Global Preferred Security shall be reduced and an adjustment shall be made on
the books and records of the Property Trustee (if it is then the Securities
Custodian for such Global Preferred Security) with respect to such Global
Preferred Security, by the Property Trustee or the Securities Custodian, to
reflect such reduction.
(l) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
PREFERRED SECURITIES.
(i) To permit registrations of transfers and exchanges,
the Trust shall execute and the Property Trustee shall authenticate
Definitive Preferred Securities and Global Preferred Securities at the
Registrar's or co-registrar's request.
(ii) Registrations of transfers or exchanges will be
effected without charge, but only upon payment (with such indemnity as
the Trust or the Sponsor may require) in respect of any tax or other
governmental charge that may be imposed in relation to it.
(iii) The Registrar shall not be required to register the
transfer of or exchange of (a) any Definitive Preferred Security
selected for redemption in whole or in part pursuant to Article 3,
except the unredeemed portion of any Definitive Preferred Security
being redeemed in part, or (b) any Preferred Security for a period
beginning 15 Business Days before the mailing of a notice of an offer
to repurchase or redeem Preferred Securities or 15 Business Days before
a quarterly distribution date.
(iv) Prior to the due presentation for registration of
transfer of any Preferred Security, the Trust, the Property Trustee,
the Paying Agent, the Registrar or any co-registrar may deem and treat
the person in whose name a Preferred Security is registered as the
absolute owner of such Preferred Security for the purpose of receiving
Distributions on such Preferred Security and for all other purposes
whatsoever, and none of the Trust, the Property Trustee, the Paying
Agent or the Registrar shall be affected by notice to the contrary.
(v) All Preferred Securities issued upon any transfer or
exchange pursuant to the terms of this Declaration shall evidence the
same security and shall be entitled to the same benefits under this
Declaration as the Preferred Securities surrendered upon such transfer
or exchange.
(m) NO OBLIGATION OF THE PROPERTY TRUSTEE.
(i) The Property Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Preferred Security, a
Participant in the Depositary or other Person with respect to the
accuracy of the records of the Depositary or its nominee or of any
Participant thereof, with respect to any ownership interest in the
Preferred Securities
39
<Page>
or with respect to the delivery to any Participant, beneficial
owner or other Person (other than the Depositary) of any notice
(including any notice of redemption) or the payment of any amount,
under or with respect to such Preferred Securities. All notices and
communications to be given to the Holders and all payments to be
made to Holders under the Preferred Securities shall be given or
made only to or upon the order of the registered Holders (which
shall be the Depositary or its nominee in the case of a Global
Preferred Security). The rights of beneficial owners in any Global
Preferred Security shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary.
The Property Trustee may rely and shall be fully protected in
relying upon information furnished by the Depositary with respect
to its Participants and any beneficial owners.
(ii) The Property Trustee and Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Declaration or
under applicable law with respect to any transfer of any interest in
any Preferred Security (including any transfers between or among
Depositary Participants or beneficial owners in any Global Preferred
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Declaration, and to
examine the same to determine substantial compliance as to form with
the express requirements hereof.
SECTION 9.3 DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, to the extent permitted by applicable law, shall not be bound to
recognize any equitable or other claim to or interest in such Certificate or in
the Securities represented by such Certificate on the part of any Person,
whether or not the Trust, the Property Trustee or the Registrar shall have
actual or other notice thereof.
SECTION 9.4 BOOK ENTRY INTERESTS.
Global Preferred Securities shall initially be registered on the books
and records of the Trust in the name of Cede & Co., the nominee of the
Depositary, and no Preferred Security Beneficial Owner will receive a definitive
Preferred Security Certificate representing such Preferred Security Beneficial
Owner's interests in such Global Preferred Securities, except as provided in
Section 9.2(g). Unless and until definitive, fully registered Preferred
Securities Certificates have been issued to the Preferred Security Beneficial
Owners pursuant to Sections 7.10 or 9.2(g):
(a) the provisions of this Section 9.4 shall be in full
force and effect;
(b) the Trust and the Trustees shall be entitled to deal
with the Depositary for all purposes of this Declaration (including the
payment of Distributions on the relevant Global Preferred Securities
and receiving approvals, votes or consents hereunder) as the
40
<Page>
Holder of the Preferred Securities and the sole holder of the
Global Preferred Securities and shall have no obligation to the
Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions
of this Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial
Owners shall be exercised only through the Depositary and shall be
limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Depositary and/or the
Participants and receive and transmit payments of Distributions on the
Global Certificates to such Participants. The Depositary will make book
entry transfers among the Participants; PROVIDED, that solely for the
purposes of determining whether the Holders of the requisite amount of
Preferred Securities have voted on any matter provided for in this
Declaration, so long as Definitive Preferred Security Certificates have
not been issued, the Trustees may conclusively rely on, and shall be
protected in relying on, any written instrument (including a proxy)
delivered to the Trustees by the Depositary setting forth the Preferred
Security Beneficial Owners' votes or assigning the right to vote on any
matter to any other Persons either in whole or in part.
SECTION 9.5 NOTICES TO THE DEPOSITARY.
Whenever a notice or other communication to the Preferred Security
Holders is required under this Declaration, the Regular Trustees shall, in the
case of any Global Preferred Security, give all such notices and communications
specified herein to be given to the Preferred Security Holders to the
Depositary, and shall have no notice obligations to the Preferred Security
Beneficial Owners.
SECTION 9.6 APPOINTMENT OF SUCCESSOR DEPOSITARY.
If the Depositary elects to discontinue its services as securities
depositary with respect to the Preferred Securities, the Regular Trustees may,
in their sole discretion, appoint a successor Depositary with respect to such
Preferred Securities.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 LIABILITY.
(a) Except as expressly set forth in this Declaration, the Common
Securities Guarantee, the Preferred Securities Guarantee and the terms of the
Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; or
41
<Page>
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Sponsor shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803 (a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct (except as otherwise provided, in the case of the Property Trustee,
in the Trust Indenture Act) with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
SECTION 10.3 FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person; or
42
<Page>
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to any
interests of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express standard
and shall not be subject to any other or different standard imposed by
this Declaration or by applicable law.
SECTION 10.4 INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Declaration, except that
no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees and expenses) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Sponsor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Sponsor of an undertaking
by or on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 10.4(a). The indemnification shall survive the termination
of this Declaration.
43
<Page>
SECTION 10.5 OUTSIDE BUSINESSES.
Any Covered Person, the Sponsor, the Delaware Trustee and the Property
Trustee may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the business of the Trust, and the Trust and the Holders of Securities shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. No Covered Person, the Sponsor, the Delaware Trustee, or the
Property Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Property Trustee shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as a depositary for trustee or agent for,
or act on any committee or body of holders of, securities or other obligations
of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 11.2 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The financial statements of the Trust
for each of its Fiscal Year shall be audited in accordance with generally
accepted auditing standards by a firm of independent certified public
accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered
to each of the Holders of Securities, within 90 days after the end of each
Fiscal Year of the Trust, annual financial statements of the Trust, including a
balance sheet of the Trust as of the end of such Fiscal Year, and the related
statements of income or loss for each Fiscal Year;
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right
44
<Page>
under the Code to deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements within 30 days after
the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 11.3 BANKING.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; PROVIDED, HOWEVER, that all payments of funds in
respect of the Debentures held by the Property Trustee shall be made directly to
the Property Trustee Account and no other funds of the Trust shall be deposited
in the Property Trustee Account. The sole signatories for such accounts shall be
designated by the Regular Trustees; PROVIDED, HOWEVER, that the Property Trustee
shall designate the signatories for the Property Trustee Account.
SECTION 11.4 WITHHOLDING.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to Distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding (but not by the amount of any liability imposed
on the Trust as withholding agent).
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 AMENDMENTS.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
(i) the Regular Trustees or, if there are more than two
Regular Trustees, a majority of the Regular Trustees);
45
<Page>
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property
Trustee;
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee; and
(iv) if the amendment affects the rights, powers, duties,
obligations or immunities of the Sponsor, the Sponsor.
(b) No amendment shall be made, and a proposal of the Regular
Trustees may not otherwise effect such amendment, and any such purported
amendment or proposal shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration (including the terms
of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the
terms of the Securities); and
(B) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is permitted by,
and conforms to, the terms of this Declaration (including the
terms of the Securities);
(iii) to the extent the such amendment provides for, or
such proposal proposes to effect:
(A) any action that would adversely affect the
powers, preferences or special rights of the Securities,
whether by way of amendment to this Declaration or otherwise;
or
(B) the dissolution, winding-up or termination
of the Trust other than pursuant to the terms of this
Declaration;
unless, the Holders of the Securities voting together as a
single class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective
except with the approval of at least a 66-2/3% in liquidation
amount of the Securities affected thereby, voting together as
a single class; provided, that if any amendment or proposal
referred to in clause (A) above would adversely affect only
the Holders of the Preferred Securities or the Common
Securities, then only the affected class will be entitled to
vote on such amendment or proposal and such amendment or
proposal shall not be effective
46
<Page>
except with the approval of 66-2/3% in liquidation amount of
such class of the Securities; and
(iv) to the extent the result of such amendment would be
to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States federal income
taxation as a grantor trust;
(B) reduce or otherwise adversely affect the
powers of the Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under the
Investment Company Act.
(c) at such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities;
(f) the rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove Trustees
shall not be amended without the consent of the Holders of a Majority in
liquidation amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any other
provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of
the Sponsor;
(iv) modify, eliminate or add to any provision in this
Declaration to the extent deemed necessary or advisable by the Regular
Trustees to ensure that the Trust will be classified for United States
federal income tax purposes as a grantor trust or to ensure that the
Trust will not be required to register as an Investment Company under
the Investment Company Act; or
(v) conform to any change in Rule 3a-5 of the Investment
Company Act or written change in interpretation or application of Rule
3a-5 of the Investment Company Act by any legislative body, court,
government agency or regulatory authority which
47
<Page>
amendment does not have a material adverse effect on the rights,
preferences or privileges of the Holders.
SECTION 12.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN
CONSENT.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more requests in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities represented by the Certificates so specified
shall be counted for purposes of determining whether the required percentage set
forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days
and not more than 60 days before the date of such meeting. Whenever a
vote, consent or approval of the Holders of Securities is permitted or
required under this Declaration or the rules of any stock exchange on
which the Preferred Securities are listed or admitted for trading, such
vote, consent or approval may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum aggregate liquidation
amount of Securities that would be necessary to authorize or take such
action at a meeting at which all Holders of Securities having a right
to vote thereon were present and voting. Prompt notice of the taking of
action without a meeting shall be given to the Holders of Securities
entitled to vote who have not consented in writing. The Regular
Trustees may specify that any written ballot submitted to the Security
Holders for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Regular
Trustees;
(ii) each Holder of a Security may authorize any Person to
act for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of the
Holder of Securities executing it. Except as otherwise provided herein,
all matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as if the
48
<Page>
Trust were a Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall
be conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the Preferred Securities are then listed
or trading otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings
of Holders of Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration and at
the Closing Date, and each Successor Property Trustee represents and warrants to
the Trust and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Property Trustee that:
(a) the Property Trustee is a banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, with corporate power and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of, the Declaration;
(b) the execution, delivery and performance by the Property
Trustee of the Declaration have been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee and constitutes a legal, valid
and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) the execution, delivery and performance of the Declaration by
the Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Property Trustee;
(d) the Property Trustee will have valid ownership interest in the
Debentures for the benefit of the Holders of the Securities issued in connection
with the Offering, free from liens, encumbrances and defects; and
49
<Page>
(e) no consent, approval or authorization of, or registration with
or notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Property Trustee of the Declaration.
SECTION 13.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration and at
the time of Closing, and each Successor Delaware Trustee represents and warrants
to the Trust and the Sponsor at the time of the Successor Delaware Trustee's
acceptance of its appointment as Delaware Trustee that:
(a) The Delaware Trustee is a banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
the State of Delaware, with corporate power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, the
Declaration;
(b) the Delaware Trustee has been duly authorized by all necessary
corporate action on the part of the Delaware Trustee to execute and deliver the
Declaration and perform its obligations thereunder and under the Certificate of
Trust. The Declaration has been duly executed and delivered by the Delaware
Trustee, and under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(c) the execution, delivery and performance of the Declaration by
the Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Delaware Trustee;
(d) no consent, approval or authorization of, or registration with
or notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of the Declaration;
and
(e) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
ARTICLE XIV
[RESERVED]
50
<Page>
ARTICLE XV
MISCELLANEOUS
SECTION 15.1. NOTICES.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Holders of the Securities):
c/o Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, California 92513
Attention: General Counsel
(b) if given to the Property Trustee, at the mailing address set
forth below (or such other address as the Property Trustee may give notice of to
the Holders of the Securities):
The Bank of New York
101 Barclay Street
21 West
New York, New York 10286
Attention: Corporate Trust Administration
(c) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as the Delaware Trustee may give notice of to
the Holders of the Securities):
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
Attention: Corporate Trust Administration
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
c/o Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, California 92503
Attention: General Counsel
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust or the Registrar, as applicable.
51
<Page>
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 15.2 GOVERNING LAW.
THIS DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE
APPLICABLE TO THE PARTIES HEREUNDER OR THIS DECLARATION ANY PROVISIONS OF THE
LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT
RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE
FILING WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR
SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST
BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY
FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION,
HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS
PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE
ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS
OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST
INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF
HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER
STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES
THAT ARE INCONSISTENT WITH THE LIMITATIONS OR LIABILITIES OR AUTHORITIES AND
POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN THIS DECLARATION.
SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE TRUST.
SECTION 15.3 INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The provisions
of this Declaration shall be interpreted to further this intention of the
parties.
SECTION 15.4 HEADINGS.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
52
<Page>
SECTION 15.5 SUCCESSORS AND ASSIGNS.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 15.6 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 15.7 COUNTERPARTS.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
53
<Page>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
Lyle N. Larkin,
as Regular Trustee
---------------------------------------
Nelson W. Potter,
as Regular Trustee
---------------------------------------
Boyd R. Plowman,
as Regular Trustee
---------------------------------------
The Bank of New York (Delaware),
not in its individual capacity
but solely as Delaware Trustee
By:
--------------------------------------
Name:
Title:
The Bank of New York,
not in its individual capacity
but solely as Property Trustee
By:
--------------------------------------
Name:
Title:
FLEETWOOD ENTERPRISES, INC.,
as Sponsor
By:
--------------------------------------
Name: Forrest D. Theobald
Title: Vice President -- General Counsel
and Secretary
<Page>
ANNEX I
TERMS OF
____% CONVERTIBLE TRUST III PREFERRED SECURITIES
____% CONVERTIBLE COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of ___________, 2001 by and among Fleetwood Enterprises, Inc.,
as sponsor (the "Sponsor"), The Bank of New York, as Property Trustee, the Bank
of New York (Delaware), as Delaware Trustee, and the Regular Trustees listed on
the signature page thereto (as amended from time to time, the "Declaration"),
the designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Preferred Securities and the Common Securities are set out
below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration or, if not defined in such Declaration, as defined in
the Prospectus referred to below):
1. DESIGNATION AND NUMBER.
(a) "Preferred Securities." [_______] Preferred Securities of the
Trust with an aggregate liquidation amount with respect to the assets of the
Trust of [__________________] Dollars ($[_________]) and a liquidation amount
with respect to the assets of the Trust of $50 per Preferred Security, are
hereby designated for the purposes of identification only as "____% Convertible
Trust III Preferred Securities of Fleetwood Capital Trust III (liquidation
amount $50 per Preferred Security)" (the "Preferred Securities"). The
certificates evidencing the Preferred Securities shall be substantially in the
form attached hereto as Exhibit A-1, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice or
to conform to the rules of any stock exchange or quotation system on which the
Preferred Securities are listed or quoted, or as may be permitted by Section 7.3
of the Declaration.
(b) "Common Securities." [___] Common Securities of the Trust with
an aggregate liquidation amount with respect to the assets of the Trust of
[__________________] Dollars ($[_______]) and a liquidation amount with respect
to the assets of the Trust of $50 per Common Security, are hereby designated for
the purposes of identification only as "____% Convertible Common Securities of
Fleetwood Capital Trust III (liquidation amount $50 per Convertible Common
Security)" (the "Common Securities"). The certificates evidencing the Common
Securities shall be substantially in the form attached hereto as Exhibit A-2,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or as may be permitted by Section
7.3 of the Declaration.
I-1
<Page>
2. DISTRIBUTIONS.
(a) Distributions payable on each Security will be fixed at a rate
per annum of ____% (the "Coupon Rate") of the stated liquidation amount of $50
per Security, such rate being the rate of interest payable on the Debentures to
be held by the Property Trustee. Distributions on Preferred Securities shall be
paid in cash, or at the sole option of the Debenture Issuer, prior to February
15, 2004, in shares of Fleetwood Common Stock, PROVIDED that the Debenture
Issuer may elect to pay such Distributions by delivery of shares of Fleetwood
Common Stock if and only if the following conditions shall have been satisfied:
(i) The shares of Fleetwood Common Stock deliverable in
payment of the Distribution shall have a fair market value as of the
Distribution Payment Date of not less than the Distribution as
determined by this paragraph 2 hereof. For purposes of this paragraph
2, the fair market value of shares of Fleetwood Common Stock shall be
determined by the Debenture Issuer 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 Distribution
Payment Date;
(ii) Distributions shall be paid only in cash in the event
any shares of Fleetwood Common Stock to be issued for the payment of
Distributions on the Securities hereunder (A) 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 Distribution
Payment Date, and/or (B) 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 Distribution Payment Date;
(iii) 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 Distribution
Payment Date; and
(iv) 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 Debenture Issuer'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 Distribution required to be
paid or duly provided for by the Debenture Issuer pursuant to this paragraph 2
shall be paid by the Debenture
I-2
<Page>
Issuer only in cash. To the extent permitted by applicable law, Distributions
in arrears for more than one quarter will bear interest thereon at the Coupon
Rate compounded quarterly (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such distributions in cash or
shares of Fleetwood Common Stock and any such interest payable unless
otherwise stated plus any Compounded Interest (as defined in the Indenture)
or Additional Interest (as defined in the Indenture). A Distribution is
payable only to the extent that payments are made in respect of the
Debentures held by the Property Trustee and to the extent the Property
Trustee has funds available therefor. The amount of Distributions payable for
any period will be computed for any full quarterly Distribution period on the
basis of a 360-day year of twelve 30-day months, and, for any period shorter
than a full calendar month, the actual number of days elapsed per 30-day
month.
(b) Distributions on the Securities will be cumulative, will
accrue from [_____________], 2001 and will be payable quarterly in arrears on
February 15, May 15, August 15 and November 15 of each year, (each, a
"Distribution Payment Date") commencing on February 15, 2002, when, as and if
available for payment, except as otherwise described below. So long as the
Debenture Issuer shall not be in default on the payment of interest with respect
to the Debentures, the Debenture Issuer has the right under the Indenture, on or
after February 15, 2004 to defer payments of interest by extending the interest
payment period on the Debentures for successive periods not exceeding 20
consecutive quarters (each an "Extension Period"). No Extension Period shall
extend beyond the maturity date of the Debentures or end on other than a
Distribution Payment Date. As a consequence of such deferral, Distributions will
also be deferred. Despite such deferral, quarterly Distributions will continue
to accrue with interest thereon (to the extent permitted by applicable law) at
the Coupon Rate compounded quarterly during any such Extension Period. In the
event that the Debenture Issuer exercises this right, then (a) the Debenture
Issuer shall not declare or pay dividends on, make distributions with respect
to, or redeem, purchase or acquire, or make a liquidation payment with respect
to, any of its capital stock (other than (x) (i) purchases or acquisitions of
shares of the Debenture Issuer's capital stock (or capital stock equivalents) in
connection with the satisfaction by the Debenture Issuer of its obligations
under any officers, directors or employee benefit plans (or any options or other
instruments issued thereunder) or the satisfaction by the Debenture Issuer of
its obligations pursuant to any contract or security requiring the Debenture
Issuer to purchase shares of the Debenture Issuer's capital stock (or capital
stock equivalents), (ii) purchases of shares of the Debenture Issuer's capital
stock (or capital stock equivalents) from officers, directors or employees of
the Debenture Issuer or its subsidiaries pursuant to employment agreements or
upon termination of employment or retirement, (iii) as a result of a
reclassification, combination or subdivision of the Debenture Issuer's capital
stock or the exchange or conversion of one class or series of the Debenture
Issuer's capital stock for another class or series of the Debenture Issuer's
capital stock, (iv) dividends or distribution 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 stock of
another class, (v) the purchase of fractional interests in shares of the
Debenture Issuer's capital stock pursuant to the conversion or exchange
provisions of such capital stock or any security being converted
I-3
<Page>
or exchanged, (vi) purchases or other acquisitions of common stock in
connection with a dividend reinvestment or other similar plan, or (vii) 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 (y) guarantee payments
made with respect to any of the foregoing), (b) the Debenture Issuer shall
not make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Debenture Issuer that
rank PARI PASSU with or junior to the Debentures and (c) the Debenture Issuer
shall not make any guarantee payments with respect to the foregoing (other
than pursuant to the Preferred Securities Guarantee, the Common Securities
Guarantee, the Exchange Common Securities Guarantee or the Exchange Preferred
Securities Guarantee). Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided, that
such Extension Period together with all such further extensions thereof may
not exceed 20 consecutive quarters or extend beyond the maturity date of the
Debentures or end on other than a Distribution Payment Date. No interest
shall be due and payable during an Extension Period, except at the end
thereof, but the Debenture Issuer may prepay at any time all or any portion
of the interest accrued during an Extension Period. If Distributions are
deferred as aforesaid, the deferred accumulated Distributions and, to the
extent permitted by applicable law, accrued and unpaid interest thereon shall
be payable to Holders as they appear on the books and records of the Trust at
the close of business on the related record date for the Distribution Payment
Date upon which the Extension Period terminates. Upon the termination of any
Extension Period and the payment of all amounts then due on the Debentures,
the Debenture Issuer may commence a new Extension Period, subject to the
above requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust at the close of
business on the relevant record dates. Holders of Preferred Securities shall be
provided notice of the Debenture Issuer's election to pay a Distribution in
Fleetwood Common Stock instead of cash no later than the record date for such
Distribution. Subject to any applicable laws and regulations and the provisions
of the Declaration, the relevant record date in respect of Preferred Securities
will be 15 days prior to the relevant payment dates (whether or not such date is
a Business Day). Distributions payable on Preferred Securities which are held in
book-entry form through the Depository Trust Company (the "Depositary") will be
made as described under the heading "Description of Preferred Securities -
Description of the New Preferred Securities - Book-Entry Only Issuance; The
Depository Trust Company" in the Prospectus. Distributions payable on Preferred
Securities which are not in book-entry form may be made at the option of the
Trust 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
Distribution Payment Date; provided that such payment shall be made by wire
transfer if such instructions are given by a Holder of Preferred Securities
having an aggregate liquidation amount of $1,000,000 or more. Distributions
payable on any Securities that are not punctually paid on any Distribution
Payment Date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, will cease to be payable to the Person in whose
name such Securities are registered on the
I-4
<Page>
relevant record date, and such defaulted Distribution will instead be payable
to the Person in whose name such Securities are registered on the special
record date or other specified date determined in accordance with the
Indenture; PROVIDED, HOWEVER, that distributions shall not be considered
payable on any Distribution Payment Date falling within an Extension Period
unless the Debenture Issuer has elected to make a full or partial payment of
interest accrued on the Debentures on such Distribution Payment Date. Such
distributions will be paid through the Property Trustee, who will hold
amounts received in respect of the Debentures for the benefit of the Holders.
The relevant record dates for the Common Securities shall be the same record
dates as for the Preferred Securities. If any date on which Distributions are
payable on the Securities is not a Business Day, then payment of the
Distribution 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.
(d) In the event of the election of the Holder to convert its
Securities through the Conversion Agent into Common Stock, $1.00 par value per
share, of the Sponsor ("Fleetwood Common Stock"), Holders of Securities at the
close of business on a Distribution record date will be entitled to receive the
Distribution payable on such Securities on the corresponding Distribution
Payment Date notwithstanding the conversion of such Securities following such
record date but prior to such Distribution Payment Date. Except as provided in
the immediately preceding sentence, neither the Trust nor the Sponsor will make,
or be required to make, any payment, allowance or adjustment for any accumulated
and unpaid Distributions whether or not in arrears. The Sponsor 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.
(e) In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
In the event of any voluntary or involuntary dissolution of the Trust,
the Holders of the Securities on the date of the dissolution will be entitled to
receive out of the assets of the Trust available for distribution, after paying
or making reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act, an amount equal to
the aggregate of the stated liquidation amount of $50 per Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless such dissolution occurs in
connection with a Special Event in which, in accordance with Section 4(c),
Debentures in an aggregate principal amount equal to the aggregate stated
liquidation amount of such Securities, with an interest rate equal to the Coupon
Rate of, and bearing accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on, such Securities, shall be distributed on a
Pro Rata basis to the Holders of the Securities in exchange for such Securities.
I-5
<Page>
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis, except that if a
Declaration Event of Default has occurred and is continuing, the Preferred
Securities shall have a preference over the Common Securities with regard to
such Liquidation Distribution.
4. REDEMPTION AND DISTRIBUTION.
(a) Upon the repayment or payment of the Debentures in whole or in
part, whether at maturity or upon acceleration, redemption or otherwise, the
proceeds from such repayment or redemption shall be simultaneously applied to
the extent of such proceeds to redeem Securities having an aggregate liquidation
amount equal to the aggregate principal amount of the Debentures so repaid or
redeemed at the redemption price of the Debentures together with accrued and
unpaid Distributions thereon through the date of the redemption, payable in cash
(the "Redemption Price"). Except in the case of a redemption of Debentures prior
to February 15, 2004 with respect to which Holders will be given not less than
15 nor more than 30 days' notice of redemption, and except in the case of
redemption upon maturity of the Debentures, Holders will be given not less than
30 nor more than 60 days' notice of such redemption. The applicable redemption
price per Preferred Security shall be equal to the redemption price per $50
principal amount of Debentures.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata and the Preferred Securities to be redeemed will be determined as
described in Paragraph 4(e) (ii) below.
(c) If, at any time, a Tax Event shall occur and be continuing the
Regular Trustees may, with the prior written consent of the Sponsor, unless the
Debentures are redeemed in the limited circumstances described below, dissolve
the Trust and, after paying or making reasonable provisions to pay all claims
and obligations of the Trust in accordance with Section 3808(e) of the Business
Trust Act, cause Debentures to be distributed to the Holders of the Securities
in liquidation of the Trust within 90 days following the occurrence of such Tax
Event (the "90 Day Period"); PROVIDED, HOWEVER, that such dissolution,
liquidation and distribution shall be conditioned on (i) the Regular Trustees'
receipt of an opinion of a nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may rely
on published revenue rulings of the Internal Revenue Service, to the effect that
the Holders of the Securities will not recognize any income, gain or loss for
United States federal income tax purposes as a result of such dissolution and
distribution of Debentures, and (ii) the Trust being unable to avoid such Tax
Event within such 90-day period by taking some ministerial action or pursuing
some other reasonable measure that, in the sole
I-6
<Page>
judgment of the Sponsor, will have no adverse effect on the Trust, the
Sponsor or the Holders of the Securities and will involve no material cost
("Ministerial Action").
If the Regular Trustees shall have been informed by a nationally
recognized independent tax counsel (reasonably acceptable to the Regular
Trustees) experienced in such matters that it cannot deliver a No Recognition
Opinion, the Debenture Issuer shall have the right, upon not less than 30 nor
more than 60 days' notice, and within 90 days following the occurrence of such
Tax Event, to redeem the Debentures 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 to the redemption date, within 90 days following the
occurrence of a Tax Event, and, following such redemption, the Preferred
Securities will be redeemed by the Trust at the liquidation amount of $50 per
Preferred Security plus accumulated and unpaid Distributions; PROVIDED, HOWEVER,
that, if at the time there is available to the Debenture Issuer or the Trust the
opportunity to eliminate, within such 90-day period, the Tax Event by taking
some Ministerial Action, the Trust or the Debenture Issuer will pursue such
Ministerial Action in lieu of redemption. If the Sponsor declines to consent to
such a dissolution of the Trust and distribution of the Debentures or declines
to redeem to Debentures as described above, the Preferred Securities will remain
outstanding.
"Tax Event" means that the Regular Trustees shall have received an
opinion of a nationally recognized independent tax counsel experienced in such
matters (a "Dissolution Tax Opinion") to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment to, or
change in, an interpretation or application of any such laws or regulations by
any legislative body, court or governmental or regulatory agency or authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination) or (c) any official interpretation or
pronouncement by any legislative body, court or governmental or regulatory
agency or authority that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position, which
amendment or change is enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced, in each case, on or
after the date of the Prospectus, there is more than an insubstantial risk that
(i) the Trust is, or will be within 90 days of the date thereof, subject to
United States federal income tax with respect to interest accrued or received on
the Debentures or (ii) the Trust is, or will be within 90 days of the date
thereof, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
If, at any time, an Investment Company Event (as hereinafter defined)
shall occur and be continuing, the Regular Trustees may, with the prior written
consent of the Sponsor, dissolve the Trust and, after paying or making
reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act, cause the Debentures
to be distributed to the Holders of the Securities in liquidation of the Trust
within 90 days following the occurrence of such Investment Company Event.
I-7
<Page>
"Investment Company Event" means the Regular Trustees shall have
obtained an opinion from independent counsel experienced in practice under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), to
the effect that, as a result of the occurrence of a change in law or regulation
or a written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority, which
change is enacted, promulgated, issued or becomes effective on or after the date
of the Prospectus (a "Change in Investment Company Act Law"), there is more than
an insubstantial risk that the Trust is or will be considered an investment
company which is required to be registered under the Investment Company Act.
After the date fixed for any distribution of Debentures: (i) the
Preferred Securities will no longer be deemed to be outstanding, (ii) the
Depositary or its nominee (or any successor depositary or its nominee), as
record Holder of Preferred Securities represented by global certificates, will
receive a registered global certificate or certificates representing the
Debentures to be delivered upon such distribution and (iii) any certificates
representing Securities, except for certificates representing Preferred
Securities held by the Depositary or its nominee (or any successor depositary or
its nominee), will be deemed to represent Debentures having an aggregate
principal amount equal to the aggregate stated liquidation amount of such
Preferred Securities, with an interest rate equal to the Coupon Rate and accrued
and unpaid interest equal to accrued and unpaid Distributions on such Preferred
Securities until such certificates are presented to the Debenture Issuer or its
agent for transfer, exchange or reissuance.
(d) The Issuer shall not redeem fewer than all of the outstanding
Preferred Securities unless all accrued and unpaid Distributions have been or
contemporaneously are paid (or such payment is duly provided for) on all
Preferred Securities for all quarterly Distribution periods terminating on or
before the date of redemption.
(e) REDEMPTION OR DISTRIBUTION PROCEDURES.
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for the Securities (a "Redemption/Distribution Notice")
will be given by the Trust by mail to each Holder of Securities to be redeemed
or exchanged not fewer than 30 nor more than 60 days, or in the case of a
redemption prior to February 15, 2004, not less than 15 nor more than 30 days,
before the date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the Debentures. For
purposes of the calculation of the date of redemption or exchange and the dates
on which notices are given pursuant to this paragraph 4(e)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the books
and records of the Trust. Each Redemption/Distribution Notice with respect to a
redemption prior to February 15, 2004 shall state (A) the Redemption Date, (B)
whether the Additional Redemption Distribution (as defined in paragraph 5(a)),
if any, shall be paid in cash or by delivery of Fleetwood Common Stock, (C) the
procedures by which such Securities are to be surrendered for
I-8
<Page>
conversion and receipt of the Additional Redemption Distribution, if any, and
(D) the Conversion Price then in effect. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with
respect to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Securities
are to be redeemed, the Securities to be redeemed shall be redeemed Pro Rata it
being understood that, in respect of Preferred Securities registered in the name
of and held of record by the Depositary (or any successor depositary) or any
nominee, the distribution of the proceeds of such redemption will be made in
accordance with the procedures of such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this paragraph 4 (which notice will be
irrevocable), then (A) with respect to Preferred Securities held in book-entry
form, by 12:00 noon, New York City time, on the redemption date, provided that
the Debenture Issuer has paid the Property Trustee a sufficient amount of cash
in connection with the related redemption or maturity of the Debentures, the
Property Trustee will deposit irrevocably with the Depositary (or successor
depositary) funds sufficient to pay the amount payable on redemption with
respect to such Preferred Securities and will give the Depositary irrevocable
instructions and authority to pay the amount payable on redemption to the
Holders of such Preferred Securities, and (B) with respect to Preferred
Securities issued in certificated form and Common Securities, provided that the
Debenture Issuer has paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures, the
Property Trustee will irrevocably deposit with the Paying Agent funds sufficient
to pay the amount payable on redemption to the Holders of such Securities upon
surrender of their certificates. If a Redemption/Distribution Notice shall have
been given and funds deposited as required, then, immediately prior to the close
of business on the date fixed for redemption, Distributions will cease to
accumulate and all rights of Holders of such Preferred Securities so called for
redemption will cease, except the right of the Holders of such Preferred
Securities to receive the Redemption Price, but without interest on such
Redemption Price. If any date fixed for redemption of Preferred Securities is
not a Business Day, then payment of the amount payable on such date will be made
on the next succeeding day that is a Business Day (without any interest or other
payment in respect of any such delay) except that, if such Business Day falls in
the next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the redemption price in respect of any
Preferred Securities is improperly withheld or refused and not paid either by
the Trust or by the Sponsor as guarantor pursuant to the relevant Securities
Guarantee, Distributions on such Preferred Securities will continue to accrue at
the then applicable rate, from the original redemption date to the date of
payment, in which case the actual payment date will be considered the date fixed
for redemption for purposes of calculating the amount payable upon redemption
(other than for purposes of calculating any premium).
I-9
<Page>
(iv) In the event of any redemption in part, the Trust shall not be
required to (i) issue, register the transfer of or exchange any Security held in
certificated form during a period beginning at the opening of business 15 days
before any selection for redemption of Preferred Securities and ending at the
close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all holders of Preferred Securities
to be so redeemed or (ii) register the transfer of or exchange any Securities
held in certificated form so selected for redemption, in whole or in part,
except for the unredeemed portion of any Securities held in certificated form
being redeemed in part.
(v) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in the case of Preferred Securities held
in book-entry form, the Depositary and, in the case of Securities held in
certificated form, the Holders of such certificates and (B) in respect of the
Common Securities, the Holder(s) thereof.
(vi) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), the Sponsor or any
of its subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
5. CONVERSION RIGHTS.
The Holders of Securities shall have the right at any time prior to the
close of business on _____________ (or in the case of Preferred Securities
called for redemption, prior to the close of business on the Business Day prior
to the Redemption Date), at their option, to cause the Conversion Agent to
convert Securities, on behalf of the converting Holders, into shares of
Fleetwood Common Stock in the manner described herein on and subject to the
following terms and conditions:
(a) The Securities will be convertible at the office of the
Conversion Agent into fully paid and nonassessable shares of Fleetwood Common
Stock pursuant to the Holder's direction to the Conversion Agent to exchange
such Securities for a portion of the Debentures theretofore held by the Trust on
the basis of one Security per $50 principal amount of Debentures, and
immediately convert such amount of Debentures into fully paid and nonassessable
shares of Fleetwood Common Stock at an initial rate of [_______] shares of
Fleetwood Common Stock per $50 principal amount of Debentures (which is
equivalent to a conversion price of $[_______] per share of Fleetwood Common
Stock, subject to certain adjustments set forth in the terms of the Debentures
(as so adjusted, the "Conversion Price")); PROVIDED that in the event a Holder
of Securities converts such Securities to Fleetwood Common Stock during the
period following a notice of redemption and prior to the close of business on
the Business Day prior to a Redemption Date occurring prior to February 15,
2004, then an amount equal to the distributions payable on such Securities
through February 15, 2004, less any distributions actually paid with respect to
such Securities in accordance with the provisions of paragraph 2 hereof prior to
the applicable Conversion Date (the "Additional Redemption Distribution"), will
be payable, in cash or Fleetwood Common Stock, at the election of the Debenture
Issuer, PROVIDED FURTHER that the Debenture Issuer may elect to pay such
I-10
<Page>
Additional Redemption Distribution by delivery of shares of Fleetwood Common
Stock 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 paragraph 2
hereof. For purposes of this paragraph 2, the fair market value of
shares of Fleetwood Common Stock shall be determined by the Debenture
Issuer 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 Debenture Issuer'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 Additional Redemption
Distribution required to be paid or duly provided for by the Debenture Issuer
pursuant to this paragraph 5(a) shall be paid by the Debenture Issuer 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, a
certificate or certificates for the number of full shares of Fleetwood Common
Stock issuable upon conversion of the Securities shall be issued and delivered
and the Additional Redemption Distribution, if any, due on such Securities,
along with any cash in respect of any
I-11
<Page>
fractional shares of Fleetwood Common Stock otherwise issuable upon
conversion or in the event that the Debenture Issuer elects to pay Additional
Redemption Distribution, if any, in Fleetwood Common Stock instead of cash,
shall be delivered for payment to the Holder as promptly on or after the
applicable Conversion Date as practicable in accordance with the provisions
of this paragraph 5.
(b) In order to convert Securities into Fleetwood Common Stock the
Holder shall submit to the Conversion Agent at the office referred to above an
irrevocable request to convert Securities on behalf of such Holder (the
"Conversion Request"), together, if the Securities are in certificated form,
with such certificates. The Conversion Request shall (i) set forth the number of
Securities to be converted and the name or names, if other than the Holder, in
which the shares of Fleetwood Common Stock should be issued and (ii) direct the
Conversion Agent (a) to exchange such Securities for a portion of the Debentures
held by the Trust (at the rate of exchange specified in the preceding paragraph)
and (b) to immediately convert such Debentures on behalf of such Holder, into
Fleetwood Common Stock (at the conversion rate specified in the preceding
paragraph). The Conversion Agent shall notify the Trust of the Holder's election
to exchange Securities for a portion of the Debentures held by the Trust and the
Trust shall, upon receipt of such notice, deliver to the Conversion Agent the
appropriate principal amount of Debentures for exchange in accordance with this
Section. The Conversion Agent shall thereupon notify the Sponsor of the Holder's
election to convert such Debentures into shares of Fleetwood Common Stock.
Holders of Securities at the close of business on a Distribution record date
will be entitled to receive the Distribution payable on such securities on the
corresponding Distribution Payment Date notwithstanding the conversion of such
Securities following such record date but prior to such Distribution Payment
Date. Except as provided above, neither the Trust nor the Sponsor will make, or
be required to make, any payment, allowance or adjustment upon any conversion on
account of any accumulated and unpaid Distributions whether or not in arrears
accrued on the Securities surrendered for conversion, or on account of any
accumulated and unpaid dividends on the shares of Fleetwood Common Stock issued
upon such conversion. Securities shall be deemed to have been converted
immediately prior to the close of business on the day on which a Notice of
Conversion relating to such Securities is received by the Trust in accordance
with the foregoing provision (the "Conversion Date"). The Person or Persons
entitled to receive the Fleetwood Common Stock issuable upon conversion of the
Debentures shall be treated for all purposes as the record holder or holders of
such Fleetwood Common Stock at such time. As promptly as practicable on or after
the Conversion Date, the Sponsor shall issue and deliver at the office of the
Conversion Agent 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, unless otherwise directed by the Holder in the
notice of conversion and the Conversion Agent shall distribute such certificate
or certificates to such Person or Persons.
(c) Each Holder of a Security by his acceptance thereof appoints
The Bank of New York, not in its individual capacity but solely as Trustee as
conversion agent (the "Conversion Agent") for the purpose of effecting the
conversion of Securities in
I-12
<Page>
accordance with this Section. In effecting the conversion and transactions
described in this Section, the Conversion Agent shall be acting as agent of
the Holders of Securities directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized (i) to exchange
Securities from time to time for Debentures held by the Trust in connection
with the conversion of such Securities in accordance with this Section and
(ii) to convert all or a portion of the Debentures into Fleetwood Common
Stock and thereupon to deliver such shares of Fleetwood Common Stock in
accordance with the provisions of this Section and to deliver to the Trust a
new Debenture or Debentures for any resulting unconverted principal amount
provided, however, that the Conversion Agent shall not reflect any conversion
of Securities if, after giving effect to such conversion, the aggregate
liquidation amount of Common Securities outstanding shall be less than 3% of
the aggregate liquidation amount of Securities.
(d) No fractional shares of Fleetwood Common Stock will be issued
as a result of conversion, but in lieu thereof, such fractional interest will be
paid in cash by the Sponsor to the Trust in an amount equal to the Current
Market Price of the fractional share of the Fleetwood Common Stock, which in
turn will make such payment to the Holder or Holders of Securities so converted.
(e) The Sponsor shall at all times reserve and keep available out
of its authorized and unissued Fleetwood Common Stock, solely for issuance upon
the conversion of the Debentures, such number of shares of Fleetwood Common
Stock as shall from time to time be issuable upon the conversion of all the
Debentures then outstanding. Notwithstanding the foregoing, the Sponsor shall be
entitled to deliver upon conversion of Debentures, shares of Fleetwood Common
Stock reacquired and held in the treasury of the Sponsor (in lieu of the
issuance of authorized and unissued shares of Fleetwood Common Stock), so long
as any such treasury shares are free and clear of all liens, charges, security
interests or encumbrances. Any shares of Fleetwood Common Stock issued upon
conversion of the Debentures shall be duly authorized, validly issued and fully
paid and nonassessable. The Trust shall deliver the shares of Fleetwood Common
Stock received upon conversion of the Debentures to the converting Holder free
and clear of all liens, charges, security interests and encumbrances, except for
United States withholding taxes. Each of the Sponsor and the Trust shall prepare
and shall use its best efforts to obtain and keep in force such governmental or
regulatory permits or other authorizations as may be required by law, and shall
comply with all applicable requirements as to registration or qualification of
the Fleetwood Common Stock (and all requirements to list the Fleetwood Common
Stock issuable upon conversion of Debentures that are at the time applicable),
in order to enable the Sponsor to lawfully issue Fleetwood Common Stock to the
Trust upon conversion of the Debentures and the Trust to lawfully deliver the
Fleetwood Common Stock to each Holder upon conversion of the Securities.
(f) The Sponsor will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Fleetwood Common Stock on
conversion of Debentures and the delivery of the shares of Fleetwood Common
Stock by the Trust upon conversion of the Securities. Fleetwood shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of shares of
I-13
<Page>
Fleetwood Common Stock in a name other than that in which the Securities so
converted were registered, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the Trust the amount
of any such tax, or has established to the satisfaction of the Trust that
such tax has been paid.
(g) Nothing in the preceding Paragraph (f) shall limit the
requirement of the Trust to withhold taxes pursuant to the terms of the
Securities or set forth in this Annex I to the Declaration or to the Declaration
itself or otherwise require the Property Trustee or the Trust to pay any amounts
on account of such withholdings.
6. VOTING RIGHTS - PREFERRED SECURITIES.
(a) Except as provided under paragraph 6(b), in the Business Trust
Act, in the Trust Indenture Act, and as otherwise required by law, the Holders
of the Preferred Securities will have no voting rights. If at any time the
Sponsor elects to defer payments of interest on the Debentures as set forth in
this Annex I, the Holders of the Preferred Securities will have no right to
appoint a special representative or trustee.
(b) Subject to the requirements set forth in this paragraph, the
Holders of a majority in liquidation amount of the Preferred Securities, voting
separately as a class, may direct the time, method, and place of conducting any
proceeding for any remedy available to the Property Trustee, or direct the
exercise of any trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee, as holder of
the Debentures, to (i) exercise the remedies available under the Indenture with
respect to the Debentures, (ii) waive any past default and its consequences that
is waivable under Section 513 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures shall be
due and payable or (iv) consent to any amendment, modification or termination of
the Indenture or the Debentures requiring the consent of the holders of the
Debentures, PROVIDED, HOWEVER, that, if an event of default has occurred and is
continuing under the Indenture, the holders of 25% of the aggregate liquidation
amount of the Preferred Securities then outstanding may direct the Property
Trustee to declare the principal and interest of the Debentures immediately due
and payable; and provided, further, that where a consent or action under the
Indenture would require the consent of (a) Holders of Debentures representing a
specified percentage greater than a majority in principal amount of the
Debentures (a "Super-Majority") or (b) each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior consent of, in the case of clause (a) above, Holders of Preferred
Securities representing at least such specified percentage of the aggregate
liquidation amount of the Preferred Securities or, in the case of clause (b)
above, each Holder of Preferred Securities affected thereby.
The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of default received from the Debt Trustee with respect
to the Debentures. Such notice shall state that such event of default under the
Indenture also constitutes an event of default under the Declaration. Except
with respect to directing the time, method and place of conducting a proceeding
for a remedy, the Property Trustee shall not take any of the actions described
in clause (i) (ii), (iii) or (iv) above unless the Property
I-14
<Page>
Trustee has obtained an opinion of nationally recognized tax counsel
experienced in such matters to the effect that, as a result of such action,
the Trust will not be classified as other than a grantor trust for U.S.
federal income tax purposes and each Holder will be treated as owning an
undivided beneficial interest in the Debentures. The Property Trustee shall
not revoke any action previously authorized or approved by a vote of the
Holders of the Preferred Securities. If the Property Trustee fails to enforce
its rights, as holder of the Debentures, under the Indenture, any Holder of
Preferred Securities may, after a period of 30 days has elapsed from such
Holder's written request to the Property Trustee to enforce such rights,
institute a legal proceeding directly against the Debenture Issuer, to
enforce the rights of the Property Trustee, as holder of the Debentures,
under the Indenture, without first instituting any legal proceeding against
the Property Trustee or any other Person.
Any approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities in the Trust
or pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth the following information: (i) the date
of such meeting or the date by which such action is to be taken; (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought; and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Preferred Securities
will be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned by the Sponsor or any Affiliate of
the Sponsor shall not be entitled to vote or consent and shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
Holders of Preferred Securities will have no rights to
increase or decrease the number of the Regular Trustees or to appoint or remove
the Regular Trustees, who may be appointed, removed or replaced solely by the
Sponsor as the indirect or direct holder of all of the Common Securities.
7. VOTING RIGHTS - COMMON SECURITIES.
(a) Except as provided under paragraphs 7(b), 7(c) and 8 below, in
the Business Trust Act and as otherwise required by law and the Declaration, the
Holders of the Common Securities will have no voting rights.
I-15
<Page>
(b) The Holders of the Common Securities are entitled, in
accordance with Article V of the Declaration, to vote to appoint, remove or
replace any Trustee and to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after the
Event of Default with respect to the Preferred Securities has been cured,
waived, or otherwise eliminated and subject to the requirements of the second to
last sentence of this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property
Trustee under the Declaration, including (i) directing the time, method, place
of conducting any proceeding for any remedy waivable to the Debenture Trustee,
or exercising any trust or power conferred on the Property Trustee with respect
to the Debentures, (ii) waive any past default and its consequences that is
waivable under Section 606 of the Indenture, or (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures shall be
due and payable, PROVIDED, that where a consent or action under the Indenture
would require the consent or act of the Holders of greater than a majority in
principal amount of Debentures affected thereby (a "Super Majority"), the
Property Trustee may only give such consent or take such action at the direction
of the Holders of at least the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Pursuant to this paragraph 7(c),
the Property Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other than with
respect to directing the time, method and place of conducting any remedy
available to the Property Trustee or the Debenture Trustee as set forth above,
the Property Trustee shall not take any action in accordance with the directions
of the Holders of the Common Securities under this paragraph unless the Property
Trustee has been provided with an opinion of independent tax counsel to the
effect that, as a result of such action the Trust will not fail to be classified
as a grantor trust or a partnership for United States federal income tax
purposes and each Holder of Common Securities will be treated as owning
undivided beneficial interests in the Debentures. If the Property Trustee fails
to enforce its rights, as holder of the Debentures, under the Indenture, any
Holder of Common Securities may, after a period of 30 days has elapsed from such
Holder's written request to the Property Trustee to enforce such rights,
institute a legal proceeding directly against the Debenture Issuer, to enforce
the Property Trustee's rights, as holder of the Debentures, under the Indenture,
without first instituting any legal proceeding against the Property Trustee or
any other Person.
Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth the following information: (i) the date of
such meeting or the date by which such action is to be taken; (ii) a description
of
I-16
<Page>
any resolution proposed for adoption at such meeting on which such Holders
are entitled to vote or of such matter upon which written consent is sought; and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
8. AMENDMENTS TO DECLARATION AND INDENTURE.
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than as described in
Section 8.1 of the Declaration, then the Holders of outstanding Securities
voting together as a single class, will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least 66-2/3% in liquidation amount of the Securities affected thereby,
PROVIDED, however, that if any amendment or proposal referred to in clause (i)
above would adversely affect only the Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of 66-2/3% in liquidation amount of such class of
Securities.
(b) In the event the consent of the Property Trustee as the holder
of the Debentures is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the Property
Trustee shall request the direction of the Holders of the Securities with
respect to such amendment, modification or termination and shall vote with
respect to such amendment, modification or termination as directed by a Majority
in liquidation amount of the Securities voting together as a single class;
PROVIDED, HOWEVER, that where a consent under the Indenture would require the
consent of the holders of greater than a majority in aggregate principal amount
of the Debentures, the Property Trustee may only give such consent at the
direction of the Holders of at least the same proportion in aggregate stated
liquidation amount of the Securities; PROVIDED, FURTHER, that the Property
Trustee shall not take any action in accordance with the directions of the
Holders of the Securities under this paragraph 8(b) unless the Property Trustee
has obtained an opinion of tax counsel to the effect that for the purposes of
United States federal income tax the Trust will not be classified as other than
a grantor trust or partnership on account of such action. Notwithstanding the
foregoing, no amendment or modification may be made to the Declaration if such
amendment or modification would (i) cause the Trust to be classified for United
States federal income tax purposes as other than a grantor trust, (ii) reduce or
otherwise adversely affect the powers of the Property Trustee in contravention
of the Trust Indenture Act or cause the Trust to be deemed an "investment
company" which is required to be registered under the 1940 Act.
I-17
<Page>
9. PRO RATA.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, on any distribution date or redemption date
an Event of Default under the Declaration has occurred and is continuing, in
which case no payment of any distribution on, or amount payable upon redemption
of, any Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid distributions on all
outstanding Preferred Securities for all distribution periods terminating on or
prior thereto, or in the case of payment of the amount payable upon redemption
of the Preferred Securities, the full amount of such amount in respect of all
outstanding Preferred Securities shall have been made or provided for, and all
funds available to the Property Trustee shall first be applied to the payment in
full in cash of all Distributions on, or the amount payable upon redemption of
Preferred Securities then due and payable.
10. RANKING.
The Preferred Securities rank PARI PASSU and payment thereon shall be
made Pro Rata with the Common Securities except that, where an Event of Default
occurs and is continuing under the Indenture in respect of the Debentures held
by the Property Trustee, the rights of Holders of the Common Securities to
payment in respect of Distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights to payment of the Holders of the
Preferred Securities.
11. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
12. NO PREEMPTIVE RIGHTS.
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional securities.
13. MISCELLANEOUS.
The terms of this Annex I constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business.
I-18
<Page>
EXHIBIT A-1
FORM OF PREFERRED SECURITY
[FORM OF FACE OF SECURITY]
[Include if Preferred 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 Preferred 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 DECLARATION REFERRED TO
BELOW.]
Certificate Number Number of Preferred Securities
$____________ Aggregate Liquidation Amount
CUSIP NO. [ ]
Preferred Securities
of
Fleetwood Capital Trust III
____% Convertible Trust III Preferred Securities
(liquidation amount $50 per Preferred Security)
Fleetwood Capital Trust III, a statutory
business trust formed under the laws of the State of Delaware
(the "Trust"), hereby certifies that
- ------------------------------------------------------------------------------
A1-1
<Page>
(the "Holder") is the registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the ____% Convertible Trust III Preferred Securities of Fleetwood
Capital Trust III (liquidation amount $50 per Preferred Security) (the
"Preferred Securities"). The Preferred Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of [______________], 2001, as the
same may be amended from time to time (the "Declaration"), including the
designation of the terms of the Preferred Securities as set forth in Annex I to
the Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits of
the Preferred Securities Guarantee to the extent provided therein. The Sponsor
will provide a copy of the Declaration, the Preferred Securities Guarantee and
the Indenture to a Holder without charge upon written request to the Trust at
its principal place of business.
Reference is hereby made to select provisions of the Preferred
Securities set forth on the reverse hereof, which select provisions shall for
all purposes have the same effect as if set forth at this place.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
Unless the Property Trustee's Certificate of Authentication hereon has
been properly executed, these Preferred Securities shall not be entitled to any
benefit under the Declaration or be valid or obligatory for any purpose.
A1-2
<Page>
IN WITNESS WHEREOF, the Trust has executed this certificate this
[______] day of [_____________], 2001.
Fleetwood Capital Trust III
By: ___________________________________
Name: Boyd R. Plowman
Title: Regular Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
Dated: [_____________], 2001.
The Bank of New York,
not in its individual capacity
but solely as Property Trustee
By: ____________________________________
Authorized Signatory
A1-3
<Page>
[FORM OF REVERSE SECURITY]
Distributions payable on each Preferred Security will be fixed at a
rate per annum of _____% (the "Coupon Rate") of the stated liquidation amount of
$50 per Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions on Preferred
Securities shall be paid in cash, or at the sole option of the Debenture Issuer,
prior to February 15, 2004, in shares of Fleetwood Common Stock, as provided in
the Declaration. To the extent permitted by applicable law, Distributions in
arrears for more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such distributions of cash or
shares of Fleetwood Common Stock (as defined below) and any such interest
payable unless otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Debentures held by the Property Trustee
and to the extent the Property Trustee has funds available therefor. The amount
of Distributions payable for any period will be computed for any full quarterly
Distribution period 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.
Except as otherwise described below and in the Declaration,
distributions on the Preferred Securities will be cumulative, will accrue from
the date of original issuance and will be payable quarterly in arrears, on
February 15, May 15, August 15 and November 15 of each year, commencing on
February 15, 2002, to Holders of record on the date 15 days prior to such
payment dates (whether or not such day is a Business Day), which payment dates
shall correspond to the interest payment dates on the Debentures. Holders of
Preferred Securities shall be provided notice of the Debenture Issuer's election
to pay a Distribution in Fleetwood Common Stock instead of cash no later than
the record date for such Distributions. The Debenture Issuer has the right under
the Indenture to defer payments of interest by extending the interest payment
period from time to time on or following February 15, 2004 on the Debentures for
a period not exceeding 20 consecutive quarters (each an "Extension Period") and,
as a consequence of such deferral, Distributions will also be deferred. Despite
such deferral, quarterly Distributions will continue to accrue with interest
thereon (to the extent permitted by applicable law) at the Coupon Rate
compounded quarterly during any such Extension Period. Prior to the termination
of any such Extension Period, the Debenture Issuer may further extend such
Extension Period; PROVIDED THAT such Extension Period together with all such
previous and further extensions thereof may not exceed 20 consecutive quarters.
Payments of accrued Distributions will be payable to Holders as they appear on
the books and records of the Trust on the first record date after the end of the
Extension Period. Upon the termination of any Extension Period and the payment
of all amounts then due, the Debenture Issuer may commence a new Extension
Period, subject to the above requirements.
The Preferred Securities shall be redeemable as provided in the
Declaration.
The Preferred Securities shall be convertible into shares of Common
Stock of Fleetwood Enterprises, Inc. ("Fleetwood Common Stock"), through (i) the
exchange of Preferred Securities
A1-4
<Page>
for a portion of the Debentures and (ii) the immediate conversion of such
Debentures into Fleetwood Common Stock, in the manner and according to the
terms set forth in the Declaration.
A1-5
<Page>
CONVERSION REQUEST
To: The Bank of New York, not in its individual capacity
but solely as Property Trustee of Fleetwood Capital Trust III
The undersigned owner of these Preferred Securities hereby irrevocably
exercises the option to convert these Preferred Securities, or the portion below
designated, into Common Stock of Fleetwood Enterprises, Inc. (the "Fleetwood
Common Stock") in accordance with the terms of the Amended and Restated
Declaration of Trust (the "Declaration"), dated as of _______________, 2001, by
and among Boyd R. Plowman, Lyle N. Larkin and Nelson W. Potter, as Regular
Trustees, The Bank of New York (Delaware), not in its individual capacity but
solely as Delaware Trustee, The Bank of New York, not in its individual capacity
but solely as Property Trustee and Fleetwood Enterprises, Inc., as Sponsor.
Pursuant to the aforementioned exercise of the option to convert these Preferred
Securities, the undersigned hereby directs the Conversion Agent (as that term is
defined in Annex I to the Declaration) to (i) exchange such Preferred Securities
for a portion of the Debentures (as that term is defined in the Declaration)
held by the Trust (at the rate of exchange specified in the terms of the
Preferred Securities set forth as Annex I to the Declaration) and (ii)
immediately convert such Debentures on behalf of the undersigned, into Fleetwood
Common Stock (at the conversion rate specified in the terms of the Preferred
Securities set forth as Annex I to the Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, and, shares issuable and
deliverable or a check 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.
A1-6
<Page>
Date: _______________, ______
in whole ____ in part ____
Number of Preferred Securities to be
converted:
--------------------
If a name or names other than the
undersigned, please indicate in the
spaces below the name or names in
which the shares of Fleetwood Common
Stock are to be issued, along with
the address or addresses of such
person or persons
------------------------------------------------
------------------------------------------------
------------------------------------------------
------------------------------------------------
------------------------------------------------
------------------------------------------------
------------------------------------------------
(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"
that is, a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
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 of 1934, as amended.
A1-7
<Page>
------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
agent to transfer this Preferred Security on the books of the Trust. The
agent may substitute another to act for him or her.
Date: __________________, _________
Signature: ________________________
(Sign exactly as your name appears on the other side of this Preferred
Security Certificate)
Signature Guarantee:*****_________________________________
________________________
***** Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
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 of 1934, as amended.
A1-8
<Page>
EXHIBIT A-2
FORM OF COMMON SECURITY
[FORM OF FACE OF SECURITY]
THE COMMON SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE OF THE CONVERTIBLE SUBORDINATED DEBENTURES
UPON THE CONVERSION OF WHICH THE COMMON STOCK EVIDENCED HEREBY WAS ISSUED AND
THE LAST DATE ON WHICH FLEETWOOD ENTERPRISES, INC. (THE "COMPANY") OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE COMMON SECURITY EVIDENCED HEREBY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT,
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRANSFER AGENT'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
A2-1
<Page>
Certificate Number Number of Common Securities
$____________ Aggregate Liquidation Amount
Common Securities
of
Fleetwood Capital Trust III
____% Convertible Common Securities
(liquidation amount $50 per Convertible Common Security)
Fleetwood Capital Trust III, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
- ---------------------------------------------------------------------------
(the "Holder") is the registered owner of common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the ____% Convertible Common Securities of Fleetwood Capital Trust
III (liquidation amount $50 per Convertible Common Security) (the "Common
Securities"). The Common Securities are transferable on the books and records of
the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of ___________, 2001, as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the Common
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Common Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Common Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.
Reference is hereby made to select provisions of the Common Securities
set forth on the reverse hereof, which select provisions shall for all purposes
have the same effect as if set forth at this place.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat for United States federal
income tax purposes the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
A2-2
<Page>
IN WITNESS WHEREOF, the Trust has executed this certificate
this ____day of ________, 2001.
Fleetwood Capital Trust III
By:
------------------------------
Name: Boyd R. Plowman
Title: Regular Trustee
A2-3
<Page>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate
per annum of ____% (the "Coupon Rate") of the stated liquidation amount of $50
per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions in arrears for more
than one quarter will bear interest thereon compounded quarterly at the Coupon
Rate (to the extent permitted by applicable law). The term "Distributions" as
used herein includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent the Property Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period of less than a full month, the actual number of days elapsed in
such month.
Except as otherwise described below and in the Declaration,
distributions on the Common Securities will be cumulative, will accrue from the
date of original issuance and will be payable quarterly in arrears, on February
15, May 15, August 15 and November 15 of each year, commencing on February 15,
2002, to Holders of record on the date 15 days prior to such payment dates
(whether or not such day is a Business Day), which payment dates shall
correspond to the interest payment dates on the Debentures. The Debenture Issuer
has the right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Debentures for a period not
exceeding 20 consecutive quarters (each an "Extension Period") and, as a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accrue with interest thereon
(to the extent permitted by applicable law) at the Coupon Rate compounded
quarterly during any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such Extension Period;
PROVIDED THAT such Extension Period together with all such previous and further
extensions thereof may not exceed 20 consecutive quarters. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period, subject to the
above requirements.
The Common Securities shall be redeemable as provided in the
Declaration.
The Common Securities shall be convertible into shares of Common Stock
of Fleetwood Enterprises, Inc. ("Fleetwood Common Stock") through (i) the
exchange of Common Securities for a portion of the Debentures and (ii) the
immediate conversion of such Debentures into Fleetwood Common Stock, in the
manner and according to the terms set forth in the Declaration.
A2-4
<Page>
CONVERSION REQUEST
To: The Bank of New York,
not in its individual capacity
but solely as Property Trustee
of Fleetwood Capital Trust III
The undersigned owner of these Common Securities hereby irrevocably
exercises the option to convert these Common Securities, or the portion below
designated, into Common Stock of Fleetwood Enterprises, Inc. (the "Fleetwood
Common Stock") in accordance with the terms of the Amended and Restated
Declaration of Trust (the "Declaration"), dated as of _______________, 2001, by
and among Boyd R. Plowman, Lyle N. Larkin and Nelson W. Potter, as Regular
Trustees, The Bank of New York (Delaware), not in its individual capacity but
solely as Delaware Trustee, The Bank of New York, not in its individual capacity
but solely as Property Trustee, and Fleetwood Enterprises, Inc., as Sponsor.
Pursuant to the aforementioned exercise of the option to convert these Common
Securities, the undersigned hereby directs the Conversion Agent (as that term is
defined in Annex I to the Declaration) to (i) exchange such Common Securities
for a portion of the Debentures (as that term is defined in the Declaration)
held by the Trust (at the rate of exchange specified in the terms of the Common
Securities set forth as Annex I to the Declaration) and (ii) immediately convert
such Debentures on behalf of the undersigned, into Fleetwood Common Stock (at
the conversion rate specified in the terms of the Common Securities set forth as
Annex I to the Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, 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.
A2-5
<Page>
Date: _____________, ______
in whole ___ in part ___
Number of Common Securities to be
converted:
--------------
If a name or names other than the
undersigned, please indicate in the
spaces below the name or names in which
the shares of Fleetwood Common Stock are
to be issued, along with the address or
addresses of such person or persons
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
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" that is, a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or participation in
the Securities Transfer Agents 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 of 1934, as amended.
A2-6
<Page>
-------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
agent to transfer this Preferred Security on the books of the Trust. The agent
may substitute another to act for him or her.
Date: _______________________________
Signature: ___________________________
(Sign exactly as your name appears on the other side of this Preferred
Security Certificate)
Signature Guarantee:*******
- ------------------------------------
- --------
******* Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer
Agents 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 of 1934, as amended.
A2-7