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Exhibit 1.2
FLEETWOOD ENTERPRISES, INC.,
FLEETWOOD CAPITAL TRUST III
and
BANC OF AMERICA SECURITIES LLC
Distribution Agreement
dated as of _____________, 2001
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DISTRIBUTION AGREEMENT
December , 2001
BANC OF AMERICA SECURITIES LLC
9 West 57th Street
New York, New York 10019
Ladies and Gentlemen:
1. INTRODUCTORY. Fleetwood Enterprises, Inc., a Delaware corporation
(the "Company") proposes to offer for sale up to $___ million in aggregate
liquidation amount of ____% Convertible Trust III Preferred Securities due
February 15, 2013 (the "Cash Offer Preferred Securities") of Fleetwood Capital
Trust III (the "Trust"). The Cash Offer Preferred Securities will be guaranteed
by a guarantee (the "Guarantee") by the Company to the extent described in the
Prospectus (as hereinafter defined), and will be substantially identical in all
respects to the securities (the "Exchange Securities") offered in the Company's
exchange offer (the "Exchange Offer") as described in the Prospectus (as
hereinafter defined) except that the Cash Offer Preferred Securities will have a
different conversion price and a different liquidation amount and will be issued
by a different trust. The cash offer described above and in the Prospectus (as
hereinafter defined) is herein referred to as the "Cash Offer." In connection
with the Cash Offer, the Company will deposit in the Trust as trust assets its
____% Convertible Trust III Subordinated Debentures due February 15, 2013 (the
"Debentures") issued pursuant to an Indenture (the "Indenture") between the
Company and the Trustee (as defined in the Indenture) and the Trust will
transfer to the Company the proceeds from the sale of the Cash Offer Preferred
Securities and its common securities (the "Common Securities"), as set forth in
the Prospectus.
2. ENGAGEMENT AS PLACEMENT AGENT. By this Distribution Agreement (the
"Agreement"), each of the Company and the Trust hereby engages and appoints you
as the exclusive placement agent (the "Placement Agent") for the Cash Offer and
authorizes you to act as such in connection with the Cash Offer.
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(a) Subject to the terms and conditions stated herein, the Company
hereby agrees that the Cash Offer Preferred Securities issued in the Cash Offer
will be sold exclusively through the Placement Agent. Accordingly, the Company
agrees that it will not appoint any other agent to act on its behalf, or assist
it in the placement of the Cash Offer Preferred Securities in the Cash Offer.
Nothing in this Agreement shall constitute the Placement Agent a partner or
joint venturer with the Trust, the Company or any of its subsidiaries. On the
basis of the representations and warranties and agreements of each of the
Company and the Trust contained herein and subject to and in accordance with the
terms and conditions hereof and of the Cash Offer, the Placement Agent agrees to
use its best efforts to obtain purchases for any and all of the Cash Offer
Preferred Securities at a price of $____ per Cash Offer Preferred Security.
(b) The Company shall not sell or approve the solicitation of offers
for the purchase of Cash Offer Preferred Securities in excess of the amount
which shall be authorized by the Company or in excess of the aggregate offering
price of the Cash Offer Preferred Securities registered pursuant to the
Registration Statement (as hereinafter defined).
3. REGISTRATION STATEMENT AND PROSPECTUS. (a) The Company and the
Trust have prepared and filed with the Securities and Exchange Commission
(the "Commission"), under the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder (collectively,
the "Securities Act"), a combined registration statement on Form S-4 (Reg.
No. 333-62838) and Form S-3 (Reg. No. 333-62850), including a Prospectus (as
hereinafter defined), covering the registration of the Cash Offer Preferred
Securities, the Guarantee, the Debentures, the shares of the common stock,
par value $1.00 per share of the Company (the "Fleetwood Common Stock"),
issuable upon conversion of the Cash Offer Preferred Securities and the
Debentures (the "Conversion Shares"), and the shares of Fleetwood Common
Stock (the "Interest Shares" and together with the "Conversion Shares", the
"Shares") that may be issued solely at the Company's option as payment of
interest on the Debentures in accordance with the terms of the Indenture. The
term "Registration Statement," as used in this Agreement, shall mean such
registration statement, including the exhibits thereto and any documents
incorporated by reference therein, in the form in which it becomes effective
and, in the event of any amendment or supplement thereto or the filing of any
abbreviated registration statement pursuant to Rule 462(b) of the Securities
Act relating thereto after the effective date of such registration statement,
shall also mean (from and after the effectiveness of such abbreviated
registration statement) such registration statement as so amended or
supplemented, together with any such abbreviated registration statement. The
final prospectus included in the Registration Statement (including any
documents incorporated in the Prospectus by reference) is herein called the
"Prospectus," except that if the final prospectus furnished to the Placement
Agent for use in
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connection with the Cash Offer differs from the prospectus set forth in the
Registration Statement (whether or not such prospectus is required to be
filed pursuant to Rule 424(b)), the term "Prospectus" shall refer to the
final prospectus furnished to the Placement Agent for such use. The terms
"supplement" and "amendment" or "supplemented" and "amended" as used herein
with respect to the Prospectus shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Prospectus and prior to the termination of the Cash Offer by the
Company with the Commission pursuant to the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder (the "Exchange Act").
4. USE OF THE PROSPECTUS AND REGISTRATION STATEMENT. (a) The
Prospectus has been or will be prepared and approved by, and is the sole
responsibility of, the Company and the Trust. The Company shall, to the
extent permitted by law, use its best efforts to disseminate the Prospectus
to each registered holder of any of the outstanding 6% Convertible Preferred
Securities due February 15, 2028 (the "Existing Securities") of Fleetwood
Capital Trust (the "Existing Trust"), as soon as practicable after the date
of commencement of the Exchange (the "Commencement Date"), pursuant to Rule
13e-4 under the Exchange Act and comply in all material respects with its
obligations thereunder. The Company and the Trust acknowledge and agree that
you may use the Prospectus as specified herein without assuming any
responsibility for independent verification on your part and the Company and
the Trust represent and warrant to you that you may rely on the accuracy and
completeness of any information delivered to you by or on behalf of the
Company or the Trust without assuming any responsibility for independent
verification of such information or without performing or receiving any
appraisal or evaluation of the assets or liabilities of the Company or the
Trust.
(b) The Company and the Trust agree to provide you with as many
copies as you may reasonably request of the Prospectus and the Registration
Statement. The Company and the Trust agree that within a reasonable time
prior to using or filing with any federal, state or other governmental or
regulatory agency or instrumentality (an "Other Agency"), including the
National Association of Securities Dealers Inc. (the "NASD"), of the
Prospectus and Registration Statement, it will submit copies of such
materials to you and your counsel and will give reasonable consideration to
you and your counsel's comments, if any, thereon. The Company and the Trust
agree prior to the termination of the Cash Offer, before amending or
supplementing the Registration Statement, or the Prospectus, to furnish
copies of drafts to, and consult with, the Placement Agent and its counsel
within a reasonable time in advance of filing with the Commission of any
amendment or supplement to the Registration Statement or the Prospectus.
Neither the Company nor the Trust shall file any
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such amendment or supplement to which the Placement Agent shall reasonably
object.
(c) The Company has furnished or shall use its best efforts to
furnish to you, or cause the transfer agents or registrars for the Existing
Securities to furnish to you, as soon as practicable after the date hereof
(to the extent not previously furnished), cards or lists in reasonable
quantities or copies thereof showing the names of persons who were the
holders of record or, to the extent available, the beneficial owners of the
Existing Securities as of a recent date, together with their addresses and
the number of Existing Securities held by them. Additionally, the Company and
the Trust shall update, or cause the transfer agents or registrars referred
to above to update, such information from time to time during the term of
this Agreement as may be reasonably requested by you. Except as otherwise
provided herein, you agree to use such information only in connection with
the Cash Offer.
(d) The Company and the Trust authorize the Placement Agent to use
the Prospectus in connection with the Cash Offer and for such period of time
as any such materials are required by law to be delivered in connection
therewith.
(e) The Company and the Trust agree that any reference to the
Placement Agent in any Prospectus or in any newspaper announcement or press
release or other document or communication is subject to the Placement
Agent's prior consent, which consent shall not be unreasonably withheld.
5. WITHDRAWAL. In the event that either the Company or the Trust
(i) uses or permits the use of, or files with the Commission or any Other
Agency, any amendment or supplement to the Registration Statement and any
such document (a) has not been previously submitted to you for your and your
counsel's comments or (b) has been so submitted, and you or your counsel have
made comments which have not been reflected in a manner reasonably
satisfactory to you or your counsel; or (ii) shall have breached, in any
material respect, any of its representations, warranties, agreements or
covenants herein; or (iii) amend or revise the Cash Offer in a manner not
reasonably acceptable to you; then you shall be entitled upon written notice
to the Company or the Trust to withdraw as Placement Agent in connection with
the Cash Offer without any liability or penalty to you or any other
indemnified person (as defined in Section 11 below) and without loss of any
right to indemnification or contribution provided in Section 11 or to the
payment of all fees and expenses payable pursuant to Sections 6 and 7 below
which have accrued through the date of such withdrawal (it being agreed that
in the event of any such withdrawal, for the purpose of determining the fees
payable to you pursuant to Section 6, the aggregate liquidation amount of
Cash Offer Preferred Securities for which indications of interest have been
submitted pursuant to the Cash Offer as of the close of business on the date
of
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such withdrawal which is thereafter sold by the Trust, the Company or any of
its subsidiaries or affiliates pursuant to the Cash Offer or otherwise, shall
be deemed to have been sold as of the date of such withdrawal).
6. FEES. In connection with the Cash Offer, the Company and the
Trust, jointly and severally, agree to pay a fee to the Placement Agent in an
amount as set forth in a separate letter agreement, dated June 12, 2001,
between the Company and the Placement Agent (the "Engagement Letter").
7. EXPENSES AND REIMBURSEMENT OF EXPENSES. The Company and the
Trust, jointly and severally, agree to pay all costs, fees and expenses
incurred in connection with the performance of their obligations hereunder
and in connection with the transactions contemplated hereby, including
without limitation (i) all expenses incident to the preparation, issuance,
execution and delivery of the Cash Offer Preferred Securities, (ii) all
advertising expenses related to the Cash Offer and all fees and expenses
incurred in marketing the Cash Offer, including but not limited to road show
presentations, if any, (iii) all fees and expenses of the registrar and
transfer agent, the exchange agent and the information agent, (iv) all fees
and expenses of the Company's and the Trust's counsel, independent public or
certified public accountants and other advisors, (v) all fees, costs and
expenses incurred in connection with (a) the registration or qualification of
the Cash Offer Preferred Securities under the laws of such jurisdictions as
the Placement Agent may designate (including, without limitation, reasonable
fees of counsel for the Placement Agent and its reasonable disbursements),
and (b) any filing with the NASD, (vi) all costs and expenses incurred in
connection with the preparation, printing and filing under the Securities Act
of the Registration Statement and the Prospectus (including financial
statements, exhibits, schedules, consents and certificates of experts, and
amendments and supplements thereto), (vii) all costs and expenses incurred in
connection with the printing (including word processing and duplication
costs), shipping, distribution and delivery of the Prospectus and
Registration Statement (including, without limitation, any preliminary and
supplemental blue sky memoranda), (viii) all costs and expenses incurred by
dealers and brokers (including yourself), commercial banks, trust companies
and nominees for their customary mailing and handling expenses incurred in
forwarding the Prospectus to their customers, and (ix) the fees and expenses
of the trustees of the Trust under the Declaration (as hereinafter defined)
(the "Trustees") or the Debt Trustee under the Indenture, the Guarantee
Trustee under the Guarantee and any agents of such trustees, and the fees,
disbursements and other charges of counsel for such trustees in connection
with the Indenture, the Guarantee, the Declaration and the Debentures. In
addition, the Company and the Trust, jointly and severally, agree to
reimburse the reasonable documented out-of-pocket expenses of the Placement
Agent incurred in connection with the Cash Offer (including, without
limitation, the reasonable documented out-of-pocket
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legal fees and expenses of the Placement Agent's counsel in connection with
the Cash Offer).
8. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE
COMPANY AND THE TRUST. Each of the Company and the Trust jointly and
severally represents and warrants to you, and agrees with you, that as of the
Commencement Date and at all times on or prior to date when the Cash Offer is
consummated (the "Closing Date"):
(a) The Registration Statement, including the Prospectus, has been
prepared by the Company in conformity in all material respects with the
requirements of the Securities Act and has been filed with the Commission as
of the Commencement Date and will become effective not later than the
expiration date of the Exchange Offer. Such amendments to such Registration
Statement and Prospectus and such abbreviated registration statements
pursuant to Rule 462(b) of the Securities Act as may have been required prior
to the date hereof have been similarly prepared and filed with the
Commission; and the Company will file such additional amendments to such
Registration Statement and Prospectus and such abbreviated registration
statements as may hereafter be required. Copies of such Registration
Statement and Prospectus, including all amendments thereto and all documents
incorporated by reference therein, and of any abbreviated registration
statement pursuant to Rule 462(b) of the Securities Act have been or, if
filed after the Commencement Date, will be, delivered or made available to
you and your counsel. No stop order refusing or suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any
Prospectus is in effect, and no proceedings for such purpose have been
instituted or are pending before or are threatened by the Commission.
(b) (i) The Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply, in all material
respects, with the Securities Act, the Exchange Act and the Trust Indenture
Act of 1939, as amended, and the applicable rules and regulations of the
Commission thereunder (the "Trust Indenture Act"); (ii) the Registration
Statement, when it becomes effective, will not contain and as amended or
supplemented thereafter, if applicable, will not contain, any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
(iii) neither the Prospectus nor the Registration Statement contains, and, as
amended or supplemented, if applicable, will contain, any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; except that the representations and warranties set
forth in this paragraph 8(b) do not apply to statements or omissions in the
Registration Statement or the Prospectus, or, in each case, any amendment or
supplement thereto, based upon information relating to the Placement Agent
furnished to the
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Company in writing by the Placement Agent expressly for use therein; and (iv)
there are no agreements, leases, contracts or other documents required to be
described in the Prospectus or to be filed as exhibits to the Registration
Statement which have not been so described or filed.
(c) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement or the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the Exchange Act, and, when
read together with the other information in the Registration Statement or the
Prospectus, as the case may be, at the time the Registration Statement and
any amendments thereto become effective and at the Commencement Date and the
Closing Date, as the case may be, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d) The Company has not distributed and will not distribute, prior
to the later of the Closing Date and the completion of the Placement Agent's
distribution of the Cash Offer Preferred Securities pursuant to the Cash
Offer, any offering material in connection with the Cash Offer other than the
Prospectus.
(e) The Company and each of the Company's subsidiaries is, and at
the Closing Date will be, a corporation, a limited liability company, a
limited liability partnership or a statutory business trust duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation or formation, as applicable, and has, and at the Closing Date
will have, full power and authority to conduct all the activities conducted
by it, to own or lease all the assets owned or leased by it and to conduct
its business as described in the Prospectus; except where the failure to have
such power and authority would not have a Material Adverse Effect (as
hereinafter defined). The Company and each of its subsidiaries is, and at the
Closing Date will be, duly licensed or qualified to do business and in good
standing as a foreign corporation in all jurisdictions in which the nature of
the activities conducted by it or the character of the assets owned or leased
by it makes such licensing or qualification necessary, except for such
failures to be licensed or qualified as would not have a material and adverse
effect on the condition, financial or otherwise, or on the earnings,
business, operations or prospects, whether or not arising from transactions
in the ordinary course of business, of the Trust or of the Company and its
subsidiaries considered as one entity (any such effect called a "Material
Adverse Effect"). All of the outstanding shares of capital stock of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and nonassessable and are owned by the Company free and clear of
all liens, encumbrances and claims whatsoever, except for those pledged
shares of capital stock set forth on Schedule I of that certain
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Pledge Agreement by and among the Company, Fleetwood Holdings, Inc.
("Holdings"), Fleetwood Retail Corp. ("Retail") and certain subsidiaries of
the Company, Holdings and Retail (collectively with the Company, Holdings and
Retail, the "Pledgors"), in favor of Bank of America, N.A., as agent for the
lenders that may from time to time become parties to the Bank of America
Credit Agreement (as defined herein) (the "Lenders"). Complete and correct
copies of the certificate of incorporation and the by-laws of the Company
have been delivered to counsel to the Placement Agent and complete and
correct copies of the certificate of incorporation and of the by-laws of each
of its subsidiaries set forth on Schedule A hereto and all amendments thereto
have been made available to counsel to the Placement Agent, and no changes
therein will be made subsequent to the date hereof and prior to the Closing
Date.
(f) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act; all filings required
under the laws of the State of Delaware with respect to the creation and
valid existence of the Trust as a business trust have been made; under the
Delaware Act and upon execution and delivery of the Trust's Amended and
Restated Declaration of Trust in the form filed with the Registration
Statement (the "Declaration"), the Trust will have the business trust power
and authority to (x) own property and conduct its business, all as described
in the Prospectus, (y) enter into and perform its obligations under this
Agreement, and (z) issue and perform its obligations under the Cash Offer
Preferred Securities and the Common Securities, and is not required to be
authorized to do business in any jurisdiction other than Delaware; the Trust
is not a party to or otherwise bound by any agreement other than those
described in the Prospectus; the Trust does not have any consolidated or
unconsolidated subsidiaries; the Trust is and will be treated as a
consolidated subsidiary of the Company pursuant to generally accepted
accounting principles; and the Trust is not and, assuming compliance by the
Trust with the Declaration, will not be classified as an association taxable
as a corporation for United States federal income tax purposes.
(g) The Declaration has been duly and validly authorized by the
Company and, when executed and delivered by the Company and the Regular
Trustees (as defined in the Declaration) at the Closing Date, and assuming
due authorization, execution and delivery thereof by the Property Trustee and
the Delaware Trustee (as such terms are defined in the Declaration), will be
the valid and binding obligation of the Company and the Regular Trustees in
accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws
affecting creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law), and the Declaration
conforms to the description thereof contained in the Prospectus.
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(h) Each of the Trust and the Company has all trust and corporate
power, as the case may be, to enter into this Agreement. This Agreement has
been duly authorized, executed and delivered by each of the Trust and the
Company and upon such execution by each of the Trust and the Company
(assuming the due authorization, execution and delivery of such agreement by
the Placement Agent) this Agreement will constitute the valid and binding
obligations of each of the Trust and the Company enforceable against each of
the Trust and the Company in accordance with the terms hereof, subject to the
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from
time to time in concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at
law, and except as the enforcement of indemnification and contribution
provisions hereof may be limited by applicable law.
(i) The Indenture has been duly and validly authorized by the
Company, will be qualified under the Trust Indenture Act not later than the
date of effectiveness of the Registration Statement and, assuming due
authorization, execution and delivery of the Indenture by the Trustee, when
executed and delivered by the Company, will constitute a valid and legally
binding agreement of the Company, enforceable in accordance with its terms
(subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights
generally from time to time in effect and to general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether considered in a proceeding in
equity or at law); and the Indenture conforms to the description thereof
contained in the Prospectus.
(j) The Cash Offer Preferred Securities to be issued pursuant to
the Cash Offer will be duly authorized by the Declaration upon execution and
delivery of the Declaration in the form filed with the Registration
Statement, and, when issued and delivered by the Trust in accordance with the
terms of the Declaration for cash pursuant to the Cash Offer, will be validly
issued and fully paid and non- assessable undivided beneficial interests in
the assets of the Trust and will be entitled to the benefits of the
Declaration. The holders of the Cash Offer Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same limitation of
personal liability as that extended to stockholders of private corporations
for profit organized under the General Corporation Law of the State of
Delaware; under the Delaware Act and the Declaration, the issuance of the
Cash Offer Preferred Securities will not be subject to preemptive or other
similar rights; and the Cash Offer Preferred Securities will conform to the
description thereof in the Prospectus.
(k) The Debentures to be deposited in the Trust as Trust assets in
connection with the Cash Offer and to be issued and delivered thereafter from
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time to time in accordance with the terms of the Declaration and the
Indenture have been duly and validly authorized by the Company and, when
executed and authenticated in accordance with the terms of the Indenture and
delivered to the Trust pursuant to the terms of the Cash Offer, will
constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws
affecting creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law); and the Debentures
will be in the form contemplated by, and entitled to the benefits of, the
Indenture and will conform to the description thereof contained in the
Prospectus.
(l) The Guarantee has been duly and validly authorized by the
Company and, when executed and delivered by the Company at the Closing Date,
will constitute a valid and legally binding agreement of the Company
enforceable in accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law); and the Guarantee
will conform to the description thereof contained in the Prospectus.
(m) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company
against payment therefor in accordance with the Declaration, will be validly
issued and fully paid and non-assessable undivided beneficial interests in
the assets of the Trust; under the Delaware Act and the Declaration, the
issuance of the Common Securities will not be subject to preemptive or other
similar rights; and at the Closing Date, all of the issued and outstanding
Common Securities of the Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; and the Common Securities will conform to the description thereof
contained in the Prospectus.
(n) The Fleetwood Common Stock conforms in all material respects
to the description thereof in the Prospectus. The Shares have been duly
authorized and duly reserved for issuance and, upon issuance thereof upon
conversion of the Cash Offer Preferred Securities and the Debentures or as
payment of interest on the Debentures in accordance with the terms of the
Cash Offer Preferred Securities, the Declaration, the Debentures and the
Indenture, will be validly issued, fully paid and non-assessable shares of
Fleetwood Common Stock and will be issued free and clear of any pledge, lien,
security interest, encumbrance, claim or equitable interest and will not be
subject to any preemptive rights, co-sale
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rights, rights of first refusal or other rights to subscribe for or purchase
the Fleetwood Common Stock.
(o) The descriptions in the Prospectus of the Cash Offer Preferred
Securities, the Common Securities, the Guarantee, the Trust, the Declaration,
the Indenture and the Debentures, and of the Existing Securities, the
Existing Trust and the Existing Common Securities (as defined in the
Prospectus), Existing Guarantee (as defined in the Prospectus) and 6%
Convertible Subordinated Debentures due February 15, 2028 (the "Existing
Debentures") issued in connection with the issuance of the Existing
Securities, and the related indenture and declaration of trust are, and at
the Closing Date will be, complete and accurate in all material respects.
(p) The financial statements and schedules of the Company together
with the notes thereto included or incorporated by reference in the
Registration Statement and the Prospectus, and any amendments or supplements
thereto, present fairly the consolidated financial condition of the Company
as of the respective dates thereof and the consolidated results of operations
and cash flows of the Company for the respective periods covered thereby, all
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the entire period involved, except as otherwise
disclosed in the Registration Statement and the Prospectus. The interim
consolidated financial statements together with the notes thereto included or
incorporated by reference in the Registration Statement and the Prospectus,
and any amendments or supplements thereto, have been prepared on a basis
consistent with the audited consolidated financial statements except as
otherwise stated therein, and include in your opinion all adjustments,
including normal recurring adjustments necessary to present fairly the
financial information therein. The selected and summary consolidated
financial and statistical data included in the Registration Statement and the
Prospectus, and any amendments and supplements thereto, present fairly the
information shown therein and have been compiled on a basis consistent with
the audited financial statements presented therein. No financial statements
or schedules, other than the consolidated financial statements that are
included in the Registration Statement and the Prospectus, and any amendments
or supplements thereto, are required to be included therein. Arthur Andersen
LLP, who have reported on such financial statements and schedules, are
independent accountants within the meaning of the Securities Act.
(q) Each of the Trust and the Company maintains a system of
internal accounting control sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access
to assets if permitted only in
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accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(r) Subsequent to the respective dates as of which information is
given in the Prospectus and prior to the Closing Date, except as set forth in
or contemplated by the Prospectus, (i) there has not been and will not have
been any (a) change in the capitalization of the Trust or material adverse
change in the capitalization of the Company, or (b) any material adverse
change, or any development that could reasonably be expected to result in a
material adverse change, in the condition, financial or otherwise, or in the
earnings, business, operations or prospects, whether or not arising from
transactions in the ordinary course of business, of the Trust or the Company
and its subsidiaries, considered as one entity (any such change is called a
"Material Adverse Change"), (ii) neither the Trust nor the Company and its
subsidiaries, considered as one entity, has incurred any material liability
or obligation, indirect, direct or contingent, not in the ordinary course of
business, nor has it entered into any material transaction or agreement not
in the ordinary course of business, and (iii) there has been no dividend or
distribution of any kind declared, paid, or made by the Trust or the Company
or, except for dividends paid to the Company or other subsidiaries, any of
its subsidiaries on any class of its securities, or repurchase or redemption
by the Company or any of its subsidiaries of any class of capital stock.
(s) Except for subsequent issuances, if any, pursuant to the
Exchange Offer or the Cash Offer or upon issuance of capital stock or
exercise of stock options or warrants pursuant to employee benefit plans
described in the Prospectus, the Company has authorized, issued and
outstanding capitalization set forth in the Prospectus under the caption
"Capitalization"; all of the outstanding capital stock of the Company has
been duly authorized and validly issued, and is fully paid and
non-assessable; and the authorized capital stock of the Company conforms in
all material respects to the statements relating thereto in the Registration
Statement and the Prospectus.
(t) Neither the Company nor the Trust has taken and neither the
Company nor the Trust will take, directly or indirectly, any action
prohibited by Regulation M promulgated under the Exchange Act or designed to
or that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the distribution
of Cash Offer Preferred Securities in the Cash Offer.
(u) Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws and the Trust is not in violation of the
Declaration, and, except as specifically described in the Prospectus, none of
the Company, any of its subsidiaries or the Trust is in default (or, with
notice or lapse of time or both,
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would be in default) ("Default") in the performance or observance of any
obligation, agreement, covenant or condition contained in the Existing
Securities, the Existing Debentures, and the related indenture and guarantee,
the credit agreement dated as of July 27, 2001, as amended by that certain
First Amendment to Credit Agreement and Consent of Guarantors dated as of
December 4, 2001, that certain Second Amendment to Credit Agreement and
Security Agreement and Consent of Guarantors dated as of December 4, 2001,
and that certain Third Amendment to Credit Agreement and Consent of
Guarantors dated as of December 7, 2001, among the Company, as guarantor, the
financial institutions named therein, as the lenders, Bank of America, N. A.,
as administrative agent, Citicorp USA, Inc., as documentation agent, Heller
Financial, Inc., as syndication agent and Fleetwood Holdings, Inc., and
certain of its subsidiaries and Fleetwood Retail Corp., and certain of its
subsidiaries, as the borrowers, and the related mortgages and other security
documents (the "Bank of America Credit Agreement"), or any other contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or other
instrument to which it is a party or by which it is bound, or to which any of
its respective assets or properties is subject (each, an "Existing
Instrument"), except for such Defaults as would not, in the case of the
Company and its subsidiaries, individually or in the aggregate, have a
Material Adverse Effect.
(v) At the Closing Date, the Property Trustee will be the record
holder of the Debentures and no security interest, mortgage, pledge, lien,
encumbrance, claim or equity will be noted thereon or on the Debenture
register maintained by or on behalf of the Company.
(w) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Debentures, the Declaration and the Guarantee, and the
execution and delivery by the Trust of, and the performance by the Trust of
its obligations under, this Agreement and the Cash Offer Preferred
Securities, the performance by the Trust of its obligations under the
Declaration and the consummation of the Cash Offer and fulfillment of terms
herein contemplated (i) will not result in any violation of the provisions of
the charter or by-laws of the Company or of the Declaration, (ii) will not
conflict with or constitute a breach of, or Default, or a Debt Repayment
Triggering Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Trust or the Company or any of its subsidiaries pursuant to, or require
the consent of any other party to, any Existing Instrument, except for such
conflicts, breaches, Defaults, liens, charges or encumbrances as would not,
individually or in the aggregate, have a Material Adverse Effect and (iii)
will not result in any violation of any law, administrative regulation or
administrative or court decree applicable to the Trust, the Company or any
subsidiary. As used herein, a "Debt Repayment Triggering Event" means any
event or condition which gives, or with the giving of notice or
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lapse of time would give, the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries except as set forth in
Section 3.4 of the Bank of America Credit Agreement.
(x) Neither the Trust nor the Company is, and after giving effect
to the consummation of the Cash Offer, will not be an "investment company" or
an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act
of 1940, as amended.
(y) Except as set forth in the Prospectus, there are no actions,
suits or proceedings pending or, to the Company's knowledge, threatened
against or affecting the Trust or the Company or any of its subsidiaries or
any of their respective officers in their capacity as such, before or by any
federal or state court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, wherein an unfavorable ruling,
decision or finding would reasonably be expected to have a Material Adverse
Effect.
(z) Each of the Trust and the Company and each of its subsidiaries
has, and at the Closing Date will have, (i) all governmental licenses,
permits, consents, orders, approvals and other authorizations necessary to
carry on its business as described in the Prospectus and (ii) complied in all
respects with all laws, regulations and orders applicable to it or its
business, except, in case of (i) and (ii) above, for such failures to possess
or comply as would not, individually or in the aggregate, have a Material
Adverse Effect, and neither the Trust, nor the Company or any subsidiary, has
received any notice of proceedings relating to the revocation or modification
of, or non-compliance with, any such license, permit, consent, order,
approval or other authorization which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could have a Material
Adverse Effect.
(aa) No consent, approval, authorization, or order of, or any
filing, declaration, registration or qualification with, any court or
governmental agency or body is required in connection with the authorization,
issuance, transfer or delivery of the Cash Offer Preferred Securities by the
Trust or the Guarantee and the Debentures by the Company, in connection with
the consummation of the Cash Offer, or in connection with the execution,
delivery and performance of this Agreement by the Trust and the Company,
except such as may be required by the Securities Act or the Exchange Act, as
may be required by the securities or Blue Sky laws of the various states, and
as may be required from the NASD.
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(bb) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(cc) No statement, representation, warranty or covenant made by the
Trust or the Company in this Agreement, the Indenture, the Guarantee or the
Declaration or made in any certificate or document required by this Agreement
to be delivered to the Placement Agent was or will be, when made, inaccurate,
untrue or incorrect in any material respect.
(dd) None of the Trust, the Company or any of its subsidiaries is
involved in any material labor dispute nor, to the knowledge of the Trust or
the Company, is any such dispute threatened which could reasonably be
expected to have a Material Adverse Effect.
(ee) The Company and its subsidiaries own, or are licensed or
otherwise have the full right to use, all material trademarks and trade names
(collectively, the "Intellectual Property Rights") which are used in or
necessary for the conduct of their respective businesses as described in the
Prospectus. No claims have been asserted by any person to the use of any such
Intellectual Property Rights or challenging or questioning the validity or
effectiveness of any such Intellectual Property Rights except such claims as
would not reasonably be expected to have a Material Adverse Effect. The use,
in connection with the business and operations of the Company and its
subsidiaries of such Intellectual Property Rights does not, to the Company's
knowledge, infringe on the rights of any person except such infringements as
would not reasonably be expected to have a Material Adverse Effect.
(ff) Any certificate signed by any officer of the Company and
delivered to the Placement Agent or to counsel for the Placement Agent
pursuant to the terms of this Agreement shall be deemed a representation and
warranty by the Company to the Placement Agent as to the matters covered
thereby.
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(gg) The Company maintains insurance with respect to its properties
and business of the types and in amounts the Company reasonably deems
adequate for its business, all of which insurance is in full force and effect.
(hh) The Company has filed all material federal, state and foreign
income and franchise tax returns and has paid all taxes shown as due thereon,
other than taxes which are being contested in good faith and for which
adequate reserves have been established in accordance with generally accepted
accounting principles ("GAAP"); and the Company has no knowledge of any tax
deficiency which has been or might be asserted or threatened against the
Company. There are no tax returns of the Company or any of its subsidiaries
that are currently being audited by state, local or federal taxing
authorities or agencies (and with respect to which the Company or any
subsidiary of the Company has received notice), where the findings of such
audit, if adversely determined, would result in a Material Adverse Effect.
(ii) The Company and the Trust have not done anything and will not
do anything in connection with the Exchange Offer or the Cash Offer that is
violative of Regulations G, T, U or X of the Board of Governors of the
Federal Reserve System.
(jj) The Common Stock (including the Underlying Securities) is
registered pursuant to Section 12(b) of the Securities Exchange Act of 1934
(the "Exchange Act") and is listed on the New York Stock Exchange (the
"NYSE") and the Pacific Stock Exchange (the "PSE"), and the Company has taken
no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting the
Common Stock from the NYSE or the PSE, nor has the Company received any
notification that the Commission or the NYSE or PSE is contemplating
terminating such registration or listing.
(kk) There are no persons with registration or other similar rights
to have any equity or debt securities registered for sale under the
Registration Statement.
(ll) All written communications made during the period from the
first public announcement and to the earlier of either the expiration date of
the Exchange Offer or the Closing Date of the Cash Offer have been or will be
filed with the Commission in accordance with the Exchange Act and the
Commission's rules and regulations including Rule 13e-4 under the Exchange
Act.
(mm) Except as set forth in the Bank of America Credit Agreement, no
subsidiary of the Company is currently prohibited, directly or indirectly,
from making any distribution in respect of its partnership interests,
membership interests or shares of capital stock, as the case may be, from
repaying to the
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Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or
any other subsidiary of the Company, except as described in the Prospectus.
(nn) The Bank of America Credit Agreement has been duly and validly
authorized executed and delivered by the Company, and constitutes a valid and
legally binding obligation of the Company, enforceable in accordance with its
terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether considered
in a proceeding in equity or at law); and the Bank of America Credit
Agreement conforms to the description thereof contained in the Prospectus.
(oo) The Trust has complied with all provisions of Section 517.075
Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing business
with the Government of Cuba or with any person or affiliate located in Cuba.
9. CONDITIONS TO PLACEMENT AGENT'S OBLIGATIONS The obligations of
the Placement Agent hereunder are subject, as of the Commencement Date and at
all times on or prior to the Closing Date, to the accuracy of the
representations and warranties on the part of each of the Company and the
Trust herein, to the accuracy of the statements of officers of the Company
and of the Trust made pursuant to the provisions hereof, to the performance
by each of the Company and the Trust of their respective obligations
hereunder and to the following additional conditions:
(a) You shall have received, on the date hereof and the Closing
Date, letters, dated the date hereof and the Closing Date as the case may be,
from Arthur Andersen LLP, independent public or certified public accountants
for the Company, in form and substance satisfactory to you, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" delivered according to Statement of Auditing Standards No.
72 (or any successor bulletin), with respect to the audited and unaudited
consolidated financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(b) For the period from and after effectiveness of this Agreement
and prior to the Closing Date:
(i) the Company shall have filed the Registration Statement with the
Commission prior to the Commencement Date and the Registration
Statement shall become effective prior to the execution hereof; and
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(ii) no stop order refusing or suspending the effectiveness of the
Registration Statement or any post-effective amendment shall have been
issued or be in effect and no proceedings for such purpose shall have
been instituted or threatened by the Commission and any request for
additional information shall have been complied with to the reasonable
satisfaction of the Placement Agent's counsel.
(c) For the period from and after the date of this Agreement and prior
to the Closing Date:
(i) in the judgment of the Placement Agent, there shall not have
occurred any Material Adverse Change, or any development involving a
prospective Material Adverse Change;
(ii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating or preliminary rating accorded
the Cash Offer Preferred Securities or of any other securities of or
guaranteed by the Company or any of its subsidiaries by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
(iii) there shall not have been (A) (1) any liability or
obligations, indirect, direct or contingent, incurred by the Trust
or the Company or any of its subsidiaries, that is material to the
Trust or to the Company and its subsidiaries, considered as one
entity, except obligations incurred in the ordinary course of
business, or (2) any material transaction or agreement entered into
by the Trust or the Company and its subsidiaries, considered as one
entity, not in the ordinary course of business, (B) any change in
the capital stock or outstanding indebtedness of the Company, (C)
any dividend or distribution of any kind declared, paid or made on
the capital stock of the Company other than quarterly dividends
declared, paid or made in the ordinary course of business, or (D)
any loss or damage (whether or not insured) to the property of the
Trust, the Company or any of its subsidiaries which has been
sustained or will have been sustained, that either individually or
in the aggregate, in the Placement Agent's judgment, are material
and adverse and that make it, in the Placement Agent's judgment,
impracticable to solicit the tender of Existing Securities pursuant
to and in accordance with the terms of the Cash Offer on the terms
and in the manner contemplated in the Registration Statement.
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(d) On the Closing Date, you shall have received a written
certificate, dated such date and executed by the Chairman of the Board or the
Chief Executive Officer or the President of the Company, the Chief Financial
Officer or Chief Accounting Officer of the Company, and an authorized officer of
the Trust acceptable to you, to the effect set forth in clauses (b)(ii) and
(c)(ii) of this Section 9 and further to the effect that:
(i) the representations, warranties and covenants of each of the
Company and the Trust, as the case may be, contained in this Agreement
are true and correct with the same force and effect as though expressly
made on the Closing Date;
(ii) each of the Company and the Trust has complied to all of its
agreements hereunder and satisfied all the conditions on its part to be
performed or satisfied hereunder on or prior to the Closing Date; and
(iii) when the Registration Statement became effective and at
all times usbsequent thereto up to the date of such certificate,
the Registration Statement and the Prospectus, and any amendments
or supplements thereto, contained all material information required
to be included therein by the Securities Act or the Exchange Act,
as the case may be, and in all material respects conformed to the
requirements of the Securities Act or the Exchange Act, as the case
may be; the Registration Statement, and any amendment or supplement
thereto, did not and does not include any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; the Prospectus, and any amendment or supplement
thereto, did not and does not include any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading; and, since the effective date of the
Registration Statement, there has occurred no event required to be set
forth in an amended or supplemented Prospectus which has not been so
set forth.
The officers signing and delivering certificates described in this
Section 9(e) on behalf of each of the Company and the Trust may rely upon the
best of their knowledge as to proceedings threatened.
(e) Each of the Company and the Trust shall have furnished to you on
the Closing Date such additional certificates, opinions or other documents as
you shall reasonably request (including additional certificates of officers of
the Company) as to the accuracy of the representations and warranties of the
Trust and the Company herein, as to the performance by the Trust and the Company
of
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its obligations hereunder, and as to the other conditions concurrent and
precedent to your obligations hereunder.
(f) On the Closing Date, the Placement Agent shall have received the
favorable opinion of Gibson, Dunn & Crutcher LLP, special counsel for the Trust
and the Company, dated as of such date, the form of which is attached as EXHIBIT
A.
(g) On the Closing Date, the Placement Agent shall have received the
favorable opinion of Forrest Theobald, Vice President - General Counsel and
Secretary of the Company, dated as of such date, the form of which is attached
as EXHIBIT B.
(h) On the Closing Date, the Placement Agent shall have received the
favorable opinion of Morris, Nichols, Arsht & Tunnell, special Delaware counsel
to the Trust, dated as of such date, the form of which is attached as EXHIBIT C.
(i) On the Closing Date, the Placement Agent shall have received the
favorable opinion of Richards, Layton & Finger, P.A., with respect to the
Delaware Trustee (as defined in the Declaration), dated as of such date, the
form of which is attached as EXHIBIT D.
(j) On the Closing Date, the Placement Agent shall have received the
favorable opinion of Gibson, Dunn & Crutcher LLP, special tax counsel to the
Trust and the Company, dated as of such date, the form of which is attached as
EXHIBIT E.
(k) On the Closing Date, the Placement Agent shall have received the
favorable opinion of Davis Polk & Wardwell, counsel for the Placement Agent, in
form and substance satisfactory to the Placement Agent.
(l) On or prior to the date hereof, the Company shall have furnished to
the Placement Agent an agreement in the form of Annex A hereto from each
director and executive officer of the Company, and such agreement shall be in
full force and effect on each of the Commencement Date and the Closing Date.
Each of the Company and the Trust will furnish you with such executed
or conformed copies of such opinions, certificates, letters and documents as you
may reasonably request.
10. COVENANTS OF THE COMPANY AND THE TRUST. Each of the Company
and the Trust covenants and agrees with the Placement Agent:
(a) To use its reasonable best efforts to cause the Registration
Statement, and any amendment thereof, to become effective as soon as possible
but no later
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than the commencement of the Cash Offer; to use its reasonable best efforts
to cause any abbreviated registration statement pursuant to Rule 462(b) of
the Securities Act as may be required subsequent to the date the Registration
Statement is declared effective to become effective as promptly as possible;
to promptly advise the Placement Agent in writing (i) of the receipt of any
comments from the Commission relating to the Cash Offer, (ii) when the
Registration Statement, any post-effective amendment to the Registration
Statement or any abbreviated Registration Statement shall have become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (iii) of any request by the Commission to amend the
Registration Statement or amend or supplement the Prospectus or for
additional information relating to the Cash Offer and (iv) of (A) the
issuance by the Commission of any stop order refusing or suspending the use
of the Prospectus or any qualification of the Cash Offer Preferred Securities
for offering or sale in connection with the Cash Offer in any jurisdiction,
(B) the institution or threatening of any proceedings for any of such
purposes, (C) the occurrence of any event which could cause the Company or
the Trust to withdraw, rescind, terminate or modify the Cash Offer or would
permit the Company or the Trust to exercise any right not to accept Cash
Offer Preferred Securities tendered pursuant to the Cash Offer, or (D) the
institution of any proceedings to remove, suspend or terminate from listing
or quotation the Common Stock from any securities exchange upon which it is
listed for trading or included or designated for quotation, or the
threatening or initiation of any proceedings for any such purposes. Each of
the Company and the Trust will use its reasonable efforts to prevent the
issuance of any such stop order, the issuance of any order preventing or
suspending such use and the suspension of any such qualification and, if any
such order is issued or qualification suspended, to obtain the lifting of
such order or suspension at the earliest practicable time.
(b) To comply with the Securities Act, the Exchange Act and the Trust
Indenture Act in connection with the Cash Offer, the Registration Statement, the
Prospectus and the transactions contemplated hereby and thereby, as applicable.
If, at any time when the Prospectus is required by the Securities Act or the
Exchange Act to be delivered in connection with the Cash Offer, any event shall
occur or condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Placement Agent or counsel for the Company
or the Trust, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements in the Prospectus, in the light of the circumstances under which they
were made, not misleading or if, in the reasonable opinion of either such
counsel, it shall be necessary to amend the Registration Statement or amend or
supplement the Prospectus to comply with the requirements of the Securities Act
or Exchange Act, the Company and the Trust will promptly prepare, file with the
Commission, subject to Section 4(b) hereof, and furnish, at their own expense,
to the Placement
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Agent and to the dealers (whose names and addresses will be
furnished to the Company and the Trust by the Placement Agent) to which they are
required to furnish, such amendment or supplement as may be necessary to correct
such untrue statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements.
(c) During such period beginning on the date hereof and ending on
such date as in the opinion of counsel for the Placement Agent, the
Prospectus is no longer required by law to be delivered in connection with
the Cash Offer, the Company will file all documents required to be filed with
the Commission pursuant to Section 13, 14 or 15 of the Exchange Act in the
manner and within the time periods required by the Exchange Act.
(d) To cooperate with the Placement Agent and Placement Agent's
counsel to qualify or register the Cash Offer Preferred Securities for sale
under (or obtain exemptions from the application of) the state securities or
blue sky laws or Canadian provincial Securities laws of those jurisdictions
designated by the Placement Agent; to comply with such laws and continue such
qualifications, registrations and exemptions in effect so long as required
for the consummation of the Cash Offer; and in each jurisdiction in which the
Cash Offer Preferred Securities have been so qualified, the Trust will file
such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Registration Statement;
provided that neither the Company nor the Trust shall be required to qualify
as a foreign corporation or to take any action that would subject either the
Company or the Trust to general service of process in any such jurisdiction
where it is not presently qualified or where it would be subject to taxation
as a foreign corporation.
(e) To make generally available to its security holders and to the
Placement Agent an earnings statement covering a twelve-month period beginning
not later than the first day of the Trust's fiscal quarter next following the
effective date of the Registration Statement that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) [reserved]
(g) During the period of 90 days from the date of the Prospectus,
neither the Trust nor the Company will, without the Placement Agent's prior
written consent, directly or indirectly, offer, pledge, sell, sell any option or
contract to purchase any option or contract to sell, contract to sell, grant any
option to sell, establish an open "put equivalent position" within the meaning
of Rule 16a-1(h) of the Exchange Act, or otherwise transfer or dispose of (i)
any Cash Offer Preferred Securities, or any equity security convertible into or
exchangeable into
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or exercisable for, Cash Offer Preferred Securities, (ii) Debentures or any
debt securities substantially similar to the Debentures, (iii) any equity
securities substantially similar to the Cash Offer Preferred Securities,
except for the Debentures, Cash Offer Preferred Securities and the Common
Securities, (iv) any preferred stock or any other security of the Company
that is substantially similar to the Cash Offer Preferred Securities, (v) any
shares of any class of common stock of the Company (other than (A) shares of
Fleetwood Common Stock issuable upon conversion of the Cash Offer Preferred
Securities pursuant to the terms of the Declaration and the Indenture, for
payment of interest on the Debentures at the Company's option pursuant to the
terms of the Indenture, or pursuant to the exercise of options and warrants
outstanding as of the date hereof, (B) the grant of stock options or other
stock-based awards (and the exercise or vesting thereof) to directors,
officers and employees of the Company or its subsidiaries pursuant to any
stock option, stock bonus or other stock plan or arrangement described in the
Prospectus, or (vi) any other securities which are convertible into, or
exercisable or exchangeable for, any of such securities; or enter into any
swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of any equity securities of the Company,
the Trust or any similar trust, whether any such transaction is to be settled
by delivery of equity securities of the Company, the Trust or any similar
trust, cash or otherwise. For the avoidance of doubt, it is acknowledged that
debt securities substantially similar to the Debentures would be debt
securities that have substantially the same rate, maturity and other
provisions as the Debentures.
(h) Without limiting Sections 5, 7 and 12 of this Agreement, if
the transactions contemplated hereby are not consummated by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed hereunder or to fulfill any condition
of the obligations of the Placement Agent hereunder, each of the Company and
the Trust, jointly and severally, agrees to reimburse the Placement Agent for
all reasonable documented out-of-pocket expenses (including reasonable fees
and disbursements of the Placement Agent's counsel) incurred by the Placement
Agent in connection with the Cash Offer.
11. INDEMNIFICATION AND CONTRIBUTION; SETTLEMENT OF LITIGATION;
RELEASE. Each of the Company and the Trust jointly and severally agrees as
follows:
(a) Each of the Company and the Trust, jointly and severally,
agrees to indemnify and hold harmless the Placement Agent, its partners, its
officers and employees, and each person, if any, who controls the Placement
Agent within the meaning of the Securities Act and the Exchange Act against
any loss, claim, damage, liability or expense, as incurred, to which the
Placement Agent or such controlling person may become subject, under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, or at common law or
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otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Company), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based (i) upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (as amended or supplemented), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading; or (ii) upon any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; or (iii) in whole or in part upon any
inaccuracy in the representations and warranties of the Company or the Trust
contained herein; or (iv) in whole or in part upon any failure of the Company
or the Trust to perform their respective obligations hereunder or under law;
or (v) upon a withdrawal, rescission or modification of or a failure to make
or consummate the Cash Offer; or (vi) upon any act or failure to act or any
alleged act or failure to act by the Placement Agent in connection with, or
relating in any manner to, the Cash Offer Preferred Securities or the Cash
Offer and which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon any matter covered
by clause (i) or (ii) above, PROVIDED that neither the Trust nor the Company
shall be liable under this clause (vi) to the extent that a court of
competent jurisdiction shall have determined by a final judgment that such
loss, claim, damage, liability or action resulted directly from any such acts
or failures to act undertaken or omitted to be taken by the Placement Agent
through its bad faith or willful misconduct; and to reimburse the Placement
Agent and each such controlling person for any and all expenses (including
the reasonable fees and disbursements of counsel chosen by the Placement
Agent) as such expenses are reasonably incurred by the Placement Agent or
such controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; PROVIDED, HOWEVER, that the foregoing indemnity agreement
shall not apply to any loss, claim, damage, liability or expense to the
extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the
Company by the Placement Agent expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus. The indemnity
agreement set forth in this Section 11(a) shall be in addition to any
liabilities that the Company and the Trust may otherwise have.
(b) The Placement Agent agrees to indemnify and hold harmless the
Trust and the Company, each of their respective directors, each of their
respective officers who signed the Registration Statement, and each person, if
any, who
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controls the Company or the Trust within the meaning of the Securities Act or
the Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company or the Trust, or any such director, officer or
controlling person may become subject, under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, or at common law
or otherwise (including in settlement of any litigation, if such settlement
is effected with the written consent of the Placement Agent), insofar as such
loss, claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue or alleged
untrue statement of a material fact contained in the Registration Statement
or the Prospectus (or, in each case, any amendment or supplement thereto), or
arises out of or is based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement or the
Prospectus (or any amendments or supplements thereto), in reliance upon and
in conformity with written information furnished to the Company by the
Placement Agent expressly for use therein; and to reimburse the Company, the
Trust or any such director, officer or controlling person for any legal and
other expense reasonably incurred by the Company, the Trust or any such
director, officer or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. The indemnity agreement set forth in this
Section 11(b) shall be in addition to any liabilities that the Placement
Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 11 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 11, notify the indemnifying party in
writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have
to any indemnified party for contribution or otherwise than under the
indemnity agreement contained in this Section 11 or to the extent it is not
prejudiced as a proximate result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party; PROVIDED,
HOWEVER, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that a conflict may arise between the positions of the
indemnifying party and the indemnified party in conducting the defense of any
such action or that there may be legal defenses
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available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 11 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party, representing the indemnified
parties who are parties to such action) or (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement
of the action, in each of which cases the fees and expenses of counsel shall
be at the expense of the indemnifying party.
(d) The indemnifying party under this Section 11 shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified
party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by Section 11(c) hereof, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry
of judgment in any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding.
(e) (i) If the indemnification provided for above is for any reason
held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party
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in respect of any losses, claims, damages, liabilities or expenses referred
to therein, then each indemnifying party shall contribute to the aggregate
amount paid or payable by such indemnified party, as incurred, as a result of
any losses, claims, damages, liabilities or expenses referred to therein (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Trust, on the one hand, and the Placement
Agent, on the other hand, from the Cash Offer or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
and the Trust, on the one hand, and the Placement Agent, on the other hand,
in connection with the statements or omissions or inaccuracies in the
representations and warranties herein or any other matter which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Trust, on the one hand, and the Placement Agent, on the other
hand, in connection with the Cash Offer shall be deemed to be in the same
respective proportions as the maximum aggregate liquidation amount of the
Cash Offer Preferred Securities issuable pursuant to the Cash Offer bears to
the total Placement Agent's fee under the Engagement Letter attributable to
the Cash Offer payable to the Placement Agent pursuant to the Engagement
Letter. The relative fault of the Company and the Trust, on the one hand, and
the Placement Agent, on the other hand, shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact or any
such inaccurate or alleged inaccurate representation or warranty relates to
information supplied by the Company or the Trust, on the one hand, or the
Placement Agent, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(ii) The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth in
Section 11(c), any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending
any action or claim. The provisions set forth in Section 11(c) with
respect to notice of commencement of any action shall apply if a
claim for contribution is to be made under this Section 11(e);
PROVIDED, HOWEVER, that no additional notice shall be required
with respect to any action for which notice has been given under
Section 11(c) for purposes of indemnification.
(iii) The Company, the Trust and the Placement Agent
agree that it would not be just and equitable if contribution
pursuant to this Section 11(e) were determined by pro rata
allocation or by any other
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method of allocation which does not take account of the equitable
considerations referred to in this Section 11(e).
(iv) Notwithstanding the provisions of this Section 11(e), the
Placement Agent shall not be required to contribute any amount in
excess of the fee received by the Placement Agent in connection with
the Cash Offer as provided in the Engagement Letter. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 11(e), each officer and employee of the Placement Agent
and each person, if any, who controls the Placement Agent within the
meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as the Placement Agent, and each director of the
Company or the Trust, each officer of the Company or the Trust who
signed the Registration Statement, and each person, if any, who
controls the Company or the Trust within the meaning of the Securities
Act and the Exchange Act shall have the same rights to contribution as
the Company and the Trust.
(f) With respect to the Cash Offer (and for no other purpose), this
Section 11 shall supersede the indemnity agreement attached to the Engagement
Letter and with respect to the Cash Offer (and for no other purpose) such
indemnity agreement shall be of no further effect.
12. TERMINATION OF THIS AGREEMENT. (a) This Agreement shall
terminate upon the earliest to occur of (i) thirty days after the expiration
date of the Exchange Offer, (ii) any of the conditions specified in Section 9
has not been fulfilled as of any date such condition is required to be
fulfilled pursuant to Section 9 (and the Placement Agent shall have notified
the Trust and the Company thereof), (iii) the date on which the Company and
the Trust terminate or withdraw the Cash Offer for any reason, or (iv) any
modification to the business terms of the Cash Offer in the Company's and the
Trust's sole and absolute discretion that results in the Placement Agent
withdrawing pursuant to Section 5 hereof.
(b) Notwithstanding termination of this Agreement pursuant to
subsection (a) above, the obligations of the parties pursuant to Sections 6,
7 and 11 shall survive any termination of this Agreement.
13. REPRESENTATIONS, WARRANTIES, COVENANTS, INDEMNITIES AND AGREEMENTS
TO SURVIVE DELIVERY. All representations, warranties, covenants and agreements
of the Trust, the Company and the Placement Agent herein or in certificates
delivered pursuant hereto, and the indemnity and contribution
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agreements contained in Section 11 hereof shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Placement Agent or any person controlling the Placement Agent within the
meaning of the Securities Act or the Exchange Act, or by or on behalf of the
Trust, the Company or any of their respective officers, directors or
controlling persons within the meaning of the Securities Act or the Exchange
Act, and shall survive the consummation of the Cash Offer and the termination
of this Agreement.
14. NOTICES. All communications hereunder shall be in writing
and shall be mailed, hand delivered or telecopied and confirmed to the
parties hereto as follows:
If to the Placement Agent:
Banc of America Securities LLC
9 West 57th Street
New York, NY 10019
Facsimile: 212-583-8457
Attention: Eric Hambleton
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Facsimile: 212-450-4800
Attention: Winthrop B. Conrad, Jr.
If to the Company:
Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, California 92513
Facsimile: (909) 351-3776
Attention: General Counsel
with a copy to:
Gibson, Dunn & Crutcher LLP
Jamboree Center
4 Park Plaza
Irvine, CA 92614-8557
Facsimile: (949) 451-4220
Attention: Mark W. Shurtleff, Esq.
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If to the Trust:
Fleetwood Capital Trust III
Regular Trustees
c/o Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, California 92513
Facsimile: (909) 351-3776
Attention: General Counsel
with a copy to:
Gibson, Dunn & Crutcher LLP
Jamboree Center
4 Park Plaza
Irvine, CA 92614-8557
Facsimile: (949) 451-4220
Attention: Mark W. Shurtleff, Esq.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
15. SUCCESSORS. This agreement will inure to the benefit of and be
binding upon the parties hereto and to the benefit of the employees, agents,
officers and directors and controlling persons referred to in Section 11, and
in each case their respective successors, and personal representatives, and
no other person will have any right or obligation hereunder. The term
"successors" shall not include any holder of Existing Securities receiving
Exchange Securities upon exchange of such Existing Securities merely by
reason of such exchange.
16. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of
any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision
hereof. If any Section, paragraph or provision of this Agreement is for any
reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
17. GOVERNING LAW PROVISIONS. (a) THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
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(b) Any legal suit, action or proceeding arising out of or based
upon this Agreement, the Indenture, the Cash Offer Preferred Securities, the
Registration Statement or the Prospectus or the transactions contemplated
hereby ("Related Proceedings") may be instituted in the federal courts of the
United States of America located in the City and County of New York or the
courts of the State of New York in each case located in the City and County
of New York (collectively, the "Specified Courts"), and each party
irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
"Related Judgment"), as to which such jurisdiction is non-exclusive) of such
courts in any such suit, action or proceeding. Service of any process summons
notice or document by mail to such party's address set forth above shall be
effective service of process for any suit, action or other proceeding brought
in any such court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action or other proceeding in
the Specified Courts and irrevocably and unconditionally waive and agree not
to plead or claim in any such court that any such suit, action or other
proceeding brought in any such court has been brought in an inconvenient
forum.
18. GENERAL PROVISIONS. This Agreement, together with the
Engagement Letter (including all attachments or schedules thereto)
constitutes the entire agreement of the parties to this Agreement and
supersedes all prior written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter hereof.
This Agreement may be executed in two or more counterparts, each one of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement may not be amended or
modified unless in writing by all of the parties hereto, and no condition
herein (express or implied) may be waived unless waived in writing by each
party whom the condition is meant to benefit. The descriptive headings herein
are for the convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated
business person who was adequately represented by counsel during negotiations
regarding the provisions hereof, including, without limitation, the
indemnification and contribution provisions of Section 11 and is fully
informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Section 11 hereto fairly allocate the
risks in light of the ability of the parties to investigate the Company, its
affairs and its business in order to assure that adequate disclosure has been
made in the Registration Statement and the Prospectus (and any amendments or
supplements thereto), as required by the Securities Act and the Exchange Act.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company and the Trust the enclosed
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copies hereof, whereupon this instrument, along with all counterparts hereof,
shall become a binding agreement in accordance with its terms.
Very truly yours,
FLEETWOOD ENTERPRISES, INC.
By:
----------------------------------
Name:
Title:
FLEETWOOD CAPITAL TRUST III
By:
----------------------------------
Name:
Title:
The foregoing Distribution Agreement is hereby confirmed and accepted
by the Placement Agent in New York, New York as of the date first above written.
Accepted and agreed as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By:
------------------------------
Name:
Title:
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EXHIBIT A
FORM OF OPINION OF GIBSON, DUNN & CRUTCHER LLP
PURSUANT TO SECTION 9(f)
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of its jurisdiction of incorporation and has all
corporate power to own, lease and operate its properties and conduct its
business as described in the Registration Statement. The Company has all
requisite corporate power and authority to issue the Debentures pursuant to the
Indenture, to enter into the Distribution Agreement, the Guarantee, the
Indenture and the Declaration, to consummate the Cash Offer, and to perform its
obligations thereunder.
2. The Indenture has been duly qualified under the Trust Indenture Act,
the execution and delivery of the Indenture have been duly authorized by all
necessary corporate action of the Company, and the Indenture has been duly
executed and delivered by the Company, and is a legal, valid, binding and
enforceable agreement of the Company.
3. (i) The execution and delivery of the Debentures have been duly
authorized by all necessary corporate action of the Company; (ii) the Debentures
have been duly executed and delivered by the Company; (iii) the Debentures are
the legal, valid, binding and enforceable obligations of the Company, entitled
to the benefits of the Indenture.
4. The execution and delivery of the Declaration have been duly
authorized by all necessary corporate action of the Company, and the Declaration
has been duly executed and delivered by the Company.
5. The execution and delivery of the Guarantee have been duly
authorized by all necessary corporate action of the Company, and the Guarantee
has been duly executed and delivered by the Company, and is a legal, valid,
binding and enforceable agreement of the Company.
6. The authorized, issued and outstanding capital stock of the Company
(including the Fleetwood Common Stock) conforms to the descriptions thereof set
forth or incorporated by reference in the Prospectus. The form of certificate
used to evidence the Fleetwood Common Stock is in due and proper form and
complies with all applicable requirements of the Certificate of
Incorporation and By-laws of the Company and the General Corporation Law of the
State of Delaware.
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7. The holders of outstanding shares of capital stock of the Company
are not entitled to any preemptive rights, rights of first refusal or other
similar rights, under the Certificate of Incorporation or By-Laws of the
Company, the law of Delaware or to our knowledge, otherwise, to subscribe for
the Cash Offer Preferred Securities, the Debentures or the Fleetwood Common
Stock; the Fleetwood Common Stock into which the Debentures are convertible at
the initial conversion price has been duly authorized by all necessary corporate
action of the Company and reserved for issuance upon conversion and, upon
issuance thereof on conversion of the Debentures in accordance with the terms of
the Debentures and the Indenture, will be validly issued, fully paid and
non-assessable and free of preemptive rights under the Certificate of
Incorporation or By-laws of the Company or the General Corporation Law of the
State of Delaware, or to our knowledge, otherwise; and the Fleetwood Common
Stock to be issued as payment of interest on the Debentures has been duly
authorized by all necessary corporate action of the Company and reserved for
issuance, and upon issuance as payment of interest on the Debentures in
accordance with the terms of the Debentures and the Indenture, will be validly
issued, fully paid and non-assessable and free of preemptive rights under the
Certificate of Incorporation or By-laws of the Company or the General
Corporation Law of the State of Delaware, or to our knowledge, otherwise.
8. The statements set forth (i) in the Prospectus under the headings,
"The Cash Offer", "Fleetwood Capital Trust", "Fleetwood Capital Trust II",
"Fleetwood Capital Trust III", "Description of Preferred Securities",
"Description of Our Capital Stock", "United States Federal Income Tax
Considerations" and "Plan of Distribution", and (ii) in the Prospectus
describing the Distribution Agreement and Bank of America Credit Agreement, in
each case insofar as such statements constitute summaries of the legal matters,
documents or legal proceedings referred to therein, fairly present and summarize
in all material respects, the matter referred to therein.
9. The execution and delivery of the Distribution Agreement, the
performance by the Company of its obligations thereunder, [the issuance and
delivery by the Company of the Debentures pursuant to the Indenture and the
consummation of the Cash Offer have been duly authorized by all necessary
corporate action of the Company], and each of the Distribution Agreement and the
Bank of America Credit Agreement has been duly executed and delivered by, and is
a valid and binding agreement of, the Company, enforceable in accordance with
its terms.
10. Assuming the accuracy of the representations and warranties of the
Placement Agent and compliance by it of its agreements contained in the
Distribution Agreement, neither of the issuance of the Debentures, the
Guarantee, the Cash Offer Preferred Securities and the Common Securities, nor
the execution,
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delivery and performance by the Trust and the Company of their respective
obligations in the Distribution Agreement, the Indenture, the Debentures, the
Guarantee, the Declaration, the Cash Offer Preferred Securities and the
Common Securities, and the consummation of the Cash Offer, do or will
violate, or require any approval, authorization, consent, qualification,
registration or waiver of or with any governmental authority or regulatory
body of the State of New York or the United States of America under any law
or regulation of the State of New York or the United States of America
applicable to the Company or the Trust that is generally applicable to
transactions in the nature of those contemplated by the Registration
Statement and the Prospectus, or the General Corporation Law of the State of
Delaware, except for such approvals, authorizations, consents,
qualifications, registrations or waivers (i) as may be required under the
Securities Act, the Exchange Act, the Trust Indenture Act, (ii) as may be
required under any securities or Blue Sky laws, (iii) as already have been
made or obtained or (iv) that, if not made or obtained, would not have a
Material Adverse Effect on the Company and its subsidiaries taken as a whole.
11. Neither the Company nor the Trust is, or after giving effect to the
Cash Offer, will be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
12. The Registration Statement (i) has been filed under the Securities
Act prior to the Commencement Date and (ii) has been declared effective by the
Commission under the Securities Act. To the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has been
issued under the Securities Act and no proceedings for such purpose have been
instituted or threatened by the Commission. Any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time period required
by such Rule 424(b).
13. The Registration Statement and the Prospectus, and each amendment
or supplement to the Registration Statement and the Prospectus, as of the
effective date of the Registration Statement (other than the financial
statements and supporting schedules and other financial or statistical data
included or incorporated by reference therein or in exhibits to or excluded from
the Registration Statement or that part of the Registration Statement that
constitutes the Form T-1, as to which no opinion need be rendered) appear on
their face to comply as to form in all material respects with the applicable
requirements of the Securities Act.
14. The Registration Statement and the Prospectus (other than the
financial statements and notes thereto and related schedules and other financial
and statistical data contained therein, as to which such counsel expresses no
opinion), as of the time of filing with the Commission, appeared on their face
to comply as
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to form in all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission.
15. To such counsel's knowledge, there are no agreements, contracts,
leases or documents to which the Company is a party of a character required to
be described in the Registration Statement or to be filed as an exhibit to the
Registration Statement which are not described therein or filed as required.
16. The Schedule TO, and each amendment or supplement thereto, and the
documents required by Item 12 thereof (other than the financial statements and
supporting schedules and other financial or statistical data included or
incorporated by reference therein, as to which no opinion need be rendered)
comply as to form as of the date it was filed in all material respects with the
requirements of the Exchange Act.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company and the
Trust, representatives of the independent auditors of the Company and with
representatives of the Placement Agent at which the contents of the Registration
Statement and related matters were discussed. Such counsel may state that the
purposes of its professional engagement was not to establish or confirm factual
matters, that the scope of its examination of the affairs of the Company did not
permit it to verify the accuracy, completeness or fairness of the statements set
forth in the Registration Statement and that such counsel is not passing upon
and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement except to the
extent set forth in paragraph 9 of above. Such counsel shall state that on the
basis of the foregoing, and except for the financial statements and schedules
and other financial, statistical and accounting data included or incorporated by
reference in the Registration Statement and except for documents filed pursuant
to the Exchange Act annexed to or incorporated by reference in the Registration
Statement, as to which such counsel need not state an opinion, nothing has
come to such counsel's attention which would lead them to believe (i) that
either the Registration Statement or the Prospectus, at the time the
Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii)
that the Prospectus, as of the date of the Prospectus and at all times
subsequent thereto up to and on the date of such opinion, as the case may be,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no belief as to the financial
statements or schedules or other financial or statistical data derived
therefrom, included or incorporated by reference in the Registration
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Statement, the Prospectus, or any amendments or supplements thereto, or as to
that part of the Registration Statement that constitutes the Form T-1).
The foregoing opinions are limited to the federal law of the United
States of America, the law of the State of New York and the General Corporation
Law of the State of Delaware.
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EXHIBIT B
FORM OF OPINION OF FORREST THEOBALD,
VICE PRESIDENT-GENERAL COUNSEL AND SECRETARY
OF THE COMPANY PURSUANT TO SECTION 9(g)
1. The Company and each of the Company's Significant Subsidiaries has
been duly incorporated or formed and is validly existing as a corporation or
business trust in good standing under the laws of the jurisdiction of its
incorporation or formation, with corporate or trust power to own, lease and
operate its properties and conduct its business as described in the Registration
Statement, and is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in the United States where the ownership
or leasing of its respective assets or the conduct of its business as described
in the Prospectus requires such qualification, except where the failure to be so
qualified would not, individually or in the aggregate, have a Material Adverse
Effect;
2. All of the issued and outstanding capital stock of each of the
Company's subsidiaries has been duly authorized and validly issued, is fully
paid and non-assessable and, except as set forth in the Prospectus, is owned
beneficially and of record, directly or indirectly, by the Company, free and
clear of all security interests, pledges, liens, encumbrances, equities or, to
the knowledge of such counsel, any pending or threatened claims;
3. The holders of outstanding shares of capital stock of the Company
are not entitled to any preemptive rights, rights of first refusal or similar
rights under the Certificate of Incorporation or Bylaws of the Company, the
General Corporation Law of the State of Delaware, or to such counsel's
knowledge, otherwise, to subscribe for the Cash Offer Preferred Securities, the
Debentures or the Fleetwood Common Stock.
4. The statements in the Company's most recent Annual Report on Form
10-K, incorporated by reference in the Registration Statement, under the
caption "Legal Proceedings in Which We Are Involved" and in the Company's
most recent Quarterly Report on Form 10-Q, incorporated by reference in the
Registration Statement, under the caption "Legal Proceedings," insofar as
such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly summarize in all material respects
the matters referred to therein. Except as described in the Registration
Statement, there is not pending or, to such counsel's knowledge, threatened
any action, suit, proceeding, inquiry or investigation, before or brought by
any court or governmental agency or regulatory body, to which the Company or
any Significant Subsidiary or the property of the Company or any Significant
Subsidiary, is subject, which might reasonably be
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expected to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets thereof
or the consummation of the transactions contemplated in the Dealer Manager
Agreement or the performance by the Company of its obligations thereunder or
transactions contemplated by the Registration Statement.
5. The documents incorporated by reference in the Prospectus (except
for the financial statements and other financial or statistical data, as to
which such counsel expresses no opinion), as of the dates they were filed with
the Commission, appear on their face to comply as to form in all material
respects to the requirements of the Securities Act and the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
under both such Acts.
6. The execution, delivery and performance of the Documents and the
consummation of the transactions contemplated in the Registration Statement
(including the issuance of the Cash Offer Preferred Securities and the Common
Securities by the Trust) and compliance by the Company and the Trust with their
respective obligations under the Documents do not and will not, whether with or
without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Debt Repayment Triggering Event under or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Significant Subsidiary pursuant to the
Existing Securities, the Existing Debentures, and the related indenture and
guarantee, the Bank of America Credit Agreement, or any other any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument, required to be filed as an exhibit to the reports
of the Company filed pursuant to the Exchange Act to which the Company or any of
its Significant Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
Significant Subsidiary is subject (the "Material Contracts") (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any violation of
the provisions of the Certificate of Incorporation or Bylaws of the Company or
any of its Significant Subsidiaries, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to such counsel other than
state securities or Blue Sky laws, of any government, government instrumentality
or court, domestic or foreign, having jurisdiction over the Company or any of
its Significant Subsidiaries or any of their respective properties, assets or
operations.
7. To such counsel's knowledge after due inquiry and
reasonable investigation, (i) no default by the Company or its Significant
Subsidiaries exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any Material
Contract and (ii) none of the Company or any Significant Subsidiary is in
violation of any applicable law, statute, rule
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regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their respective
properties, assets or operations except, with respect to clauses (i) and
(ii), for such defaults or violations as would not have a Material Adverse
Effect.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public or certified public accountants for
the Company and with representatives of the Placement Agent at which the
contents of the Registration Statement and the Prospectus, and any supplements
or amendments thereto, and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (other than as specified above), and
any supplements or amendments thereto, on the basis of the foregoing, nothing
has come to their attention which would lead them to believe (i) that either the
Registration Statement or the Prospectus, at the time the Registration Statement
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) that the Prospectus, as of the date of
the Prospectus and at all times subsequent thereto up to an on the date of such
opinion, as the case may be, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no belief as to
the financial statements or schedules or other financial or statistical data
derived therefrom, included or incorporated by reference in the Registration
Statement, the Prospectus, or any amendments or supplements thereto).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of Delaware, the General Corporation Law of the
State of California or the federal law of the United States, to the extent
they deem proper and specified in such opinion, upon the opinion (which shall
be dated the Commencement Date or the Closing Date, as the case may be, shall
be satisfactory in form and substance to the Placement Agent, shall expressly
state that the Placement Agent may rely on such opinion as if it were
addressed to them and shall be furnished to the Placement Agent) of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Placement Agent; PROVIDED, HOWEVER, that such
counsel shall further state that they believe that they and the Placement
Agent is justified in relying upon such opinion of other counsel, and (B) as
to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials.
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EXHIBIT C
FORM OF OPINION OF MORRIS, NICHOLS, ARSHT & TUNNELL,
SPECIAL COUNSEL TO THE TRUST AND THE COMPANY
PURSUANT TO SECTION 9(i)
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, all filings
required under the laws of the State of Delaware with respect to the creation
and valid existence of the Trust as a business trust have been made, and the
Trust has the requisite business trust power and authority to conduct its
business as described in the Prospectus.
2. The Declaration constitutes a legal, valid and binding obligation of
the Company and each of the Regular Trustees, and is enforceable against the
Company and each of the Regular Trustees, in accordance with its terms, except
as such enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other laws of general
application relating to or affecting the enforcement of creditors' rights and
remedies, (B) application of equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (C)
considerations of public policy or the effects of applicable law relating to
fiduciary duties.
3. Under the Delaware Business Trust Act and the Declaration, the Trust
has the requisite business trust power and authority (A) to perform its
obligations under the Declaration, (B) issue the Cash Offer Preferred Securities
and the Common Securities and (C) purchase and hold the Debentures.
4. The execution and delivery of the Distribution Agreement and the
Common Securities Purchase Agreement by the Trust and the performance of its
obligations thereunder have been duly authorized by all necessary business trust
action on the part of the Trust.
5. The Common Securities have been duly authorized by the Declaration
for issuance and, when issued, delivered and paid for in accordance with the
terms of the Declaration, will be validly issued undivided beneficial interests
in the assets of the Trust.
6. The Cash Offer Preferred Securities have been duly
authorized by the Declaration for issuance and, when issued, delivered and
paid for in accordance with the terms of the Declaration will be validly
issued and, subject to the terms of the Declaration and the further
qualifications set forth herein, fully paid and
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non-assessable undivided beneficial interests in the assets of the
Trust. Under the Delaware Business Trust Act and the Declaration, the holders of
the Cash Offer Preferred Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
7. Under the Delaware Business Trust Act and the Declaration, the
issuance of the Cash Offer Preferred Securities and the Common Securities is not
subject to preemptive rights.
8. The issuance and sale by the Trust of the Cash Offer Preferred
Securities, the execution, delivery and performance by the Trust of the
Distribution Agreement, the consummation by the Trust of the transactions
contemplated thereby and compliance by the Trust with its obligations thereunder
do not (A) result in any violation of the Declaration or the Certificate of
Trust or any applicable Delaware law (statutory or decisional) or any rule or
regulation of any Delaware governmental agency or (B) require the approval of
any Delaware governmental agency.
9. No authorization, approval, consent or order of any Delaware
governmental authority or agency is required to be obtained by the Trust solely
in connection with the issuance and sale of the Cash Offer Preferred Securities,
except such as may be required under Delaware securities or Blue Sky laws.
10. Assuming that the Trust derives no income from or connected with
services provided within the State of Delaware and has no assets, activities
(other than maintaining the Delaware Trustee and the filing of documents with
the Secretary of State of the State of Delaware) or employees in the State of
Delaware, the Trust's security holders (other than holders of securities, or
persons who are partners or S corporation shareholders for federal income tax
purposes in such holders of securities, who reside or are domiciled in the State
of Delaware or who are otherwise subject to income taxation in the State of
Delaware) will have no liability for income taxes imposed by the State of
Delaware solely as a result of their participation in the Trust, and the Trust
will not be liable for any income tax imposed by the State of Delaware.
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EXHIBIT D
FORM OF OPINION OF RICHARDS, LAYTON & FINGER, P.A.
WITH RESPECT TO THE DELAWARE TRUSTEE
PURSUANT TO SECTION 9(i)
1. The BNY (DE) is duly incorporated and is validly existing in good
standing as a banking corporation with banking and trust powers under the laws
of the State of Delaware.
2. The BNY (DE) has the power and authority to execute, deliver and
perform its obligations under each of the Original Declaration of Trust and the
Amended and Restated Declaration of Trust.
3. The Original Declaration of Trust has been duly authorized, executed
and delivered by BNY (DE) and constitutes a legal, valid and binding agreement
of BNY (DE), enforceable against BNY (DE), in accordance with its terms.
4. Assuming due authorization, execution and delivery of the Amended
and Restated Declaration of Trust by each of the Sponsor, BNY (DE), the Property
Trustees and the Regular Trustees, and that each of the Sponsor, the Property
Trustee and the Regular Trustees has the power and authority to enter into and
perform its obligations under the Amended and Restated Declaration of Trust, the
Amended and Restated Declaration of Trust will constitute a legal, valid and
binding agreement of BNY (DE), enforceable against BNY (DE), in accordance with
its terms.
5. Neither the execution, delivery and performance by BNY (DE) of the
Original Declaration of Trust and the Amended and Restated Declaration of Trust,
nor the consummation by BNY (DE) of any of the transactions contemplated
thereby, requires the consent, authorization, order or approval of, the giving
of notice to, the registration with or the taking of any other action in respect
of any governmental authority or agency under the laws of the State of Delaware
or any law of the United States of America governing the banking or trust powers
of BNY (DE), other than the filing of the Certificate of Trust with the
Secretary of State (which Certificate of Trust has been duly filed).
6. Neither the execution, delivery and performance by BNY (DE) of the
Original Declaration of Trust or the Amended and Restated Declaration of Trust,
nor the consummation by BNY (DE) of any of the transactions contemplated
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thereby, (i) conflicts with or constitutes a breach of or default under the
Certificate of Trust, the Original Declaration of Trust, the Amended and
Restated Declaration of Trust, the certificate of incorporation or by-laws of
BNY (DE) or, to our knowledge without independent investigation and solely in
reliance on a certificate of an authorized officer of BNY (DE), any agreement,
indenture or other instrument to which BNY (DE) is a party or by which it or any
of its properties may be bound or (ii) violates any law, governmental rule or
regulation of the State of Delaware or any federal law of the United States of
America governing the banking or trust powers of BNY (DE) or, to our knowledge
without independent investigation and solely in reliance on a certificate of an
authorized officer of BNY (DE), any court decree of the State of Delaware
applicable to BNY (DE).
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EXHIBIT E
FORM OF OPINION OF GIBSON, DUNN & CRUTCHER LLP,
SPECIAL TAX COUNSEL TO THE TRUST AND THE COMPANY
PURSUANT TO SECTION 9(j)
1. The Trust will be characterized as a grantor trust for U.S.
federal income tax purposes and not as a partnership or as an association
subject to tax as a corporation;
2. The Debentures, when issued, authenticated and delivered in
accordance with the terms of the Indenture, will constitute indebtedness of the
Company; and
3. The discussion set forth in the Prospectus under the caption "United
States Federal Income Tax Considerations," to the extent it constitutes
summaries of legal matters or legal conclusions, is accurate in all material
respects.
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ANNEX A
[Date]
Banc of America Securities LLC
600 Montgomery Street
San Francisco, California 94111
RE: Fleetwood Enterprises, Inc. (the "Company")
Ladies & Gentlemen:
The undersigned understands that the Company proposes to offer to exchange up to
$____ million in aggregate liquidation amount of ____% Convertible Trust
Preferred Securities due February 15, 2013 (the "Exchange Securities") issued by
Fleetwood Capital Trust II, a statutory business trust formed under the laws of
the State of Delaware (the "Trust II") for up to $86.25 million in aggregate
liquidation amount of 6% Convertible Trust Preferred Securities due February 15,
2028, for which you will act as the Dealer Manager, and a public offering of up
to an ___ million in aggregate liquidation amount of ____% Convertible Trust
Preferred Securities due February 15, 2013 the "Cash Offer Preferred Securities"
of Fleetwood Capital Trust III (the "Trust III") for which you will act as the
Placement Agent (such exchange offer and cash offer hereinafter collectively
referred to as the "Offering"). The undersigned recognizes that the Offering
will be of benefit to the undersigned and will benefit the Company. The
undersigned acknowledges that you are relying on the representations and
agreements of the undersigned contained in this letter in carrying out the
Offering and in entering into dealer manager and distribution agreements with
the Company with respect to the Offering.
In consideration of the foregoing, the undersigned hereby agrees that the
undersigned will not, without the prior written consent of Banc of America
Securities LLC (which consent may be withheld in its sole discretion), (i)
directly or indirectly, sell, offer, contract or grant any option to sell
(including without limitation any short sale), pledge, transfer, establish an
open "put equivalent position" within the meaning of Rule 16a-1(h) under the
Securities Exchange Act of 1934, or otherwise dispose of any Exchange
Securities, any equity securities of the Company, the Trust or any similar
trust, any options or warrants to acquire any such securities, or securities
exchangeable or exercisable for or convertible into such securities, or (ii)
enter into any swap or other agreement that transfers, in whole or in part,
any of the economic consequences of ownership of any equity securities of the
Company, the Trust or any similar trust (whether any such
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transaction described in clause (i) or (ii) above is to be settled by delivery
of equity securities of the Company, the Trust or any similar trust, other
securities, cash or otherwise) currently or hereafter owned either of record or
beneficially (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended) by the undersigned, or publicly announce the undersigned's
intention to do any of the foregoing, for a period commencing on the date hereof
and continuing through the close of trading on the date 90 days after the date
of the final prospectus relating to the Offering. The undersigned also agrees
and consents to the entry of stop transfer instructions with the Company's
transfer agent and registrar against the transfer of shares of Common Stock or
securities convertible into or exchangeable or exercisable for Common Stock held
by the undersigned except in compliance with the foregoing restrictions.
With respect to the Offering only, the undersigned waives any registration
rights relating to registration under the Securities Act of any Common Stock
owned either of record or beneficially by the undersigned, including any rights
to receive notice of the Offering.
This agreement is irrevocable and will be binding on the undersigned and the
respective successors, heirs, personal representatives, and assigns of the
undersigned.
- --------------------------------------------------
Printed Name of Holder
By: --------------------------------------------
Signature
- --------------------------------------------------
Printed Name of Person Signing (AND INDICATE
CAPACITY OF PERSON SIGNING IF SIGNING AS CUSTODIAN,
TRUSTEE, OR ON BEHALF OF AN ENTITY)
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