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Exhibit 1.1
FLEETWOOD ENTERPRISES, INC.,
FLEETWOOD CAPITAL TRUST II
and
BANC OF AMERICA SECURITIES LLC
Amended Dealer Manager Agreement
dated as of December , 2001
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AMENDED DEALER MANAGER AGREEMENT
December , 2001
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BANC OF AMERICA SECURITIES LLC
9 West 57th Street
New York, New York 10019
Ladies and Gentlemen:
On the date hereof, the existing Dealer Manager Agreement dated December
5, 2001 by and between Fleetwood Enterprises Inc., a Delaware corporation (the
"Company"), Fleetwood Capital Trust II (the "Trust") and Banc of America
Securities LLC shall be and is hereby amended and restated in its entirety as
set forth herein.
1. INTRODUCTORY. The Company is to offer to exchange up to $___ million
in aggregate liquidation amount of___%Convertible Trust II Preferred Securities
due February 15, 2013 (the "Exchange Securities") of the Trust for up to $86.25
million in aggregate liquidation amount of the outstanding 6% Convertible Trust
Preferred Securities due February 15, 2028 (the "Existing Securities") of
Fleetwood Capital Trust (the "Existing Trust"). For each $50.0 in liquidation
amount of Existing Securities accepted for exchange, the holder of such Existing
Securities will receive $22.0 in liquidation amount of Exchange Securities,
subject to the terms and conditions set forth in the Prospectus (as hereinafter
defined). The Exchange Securities will be guaranteed by a guarantee (the
"Guarantee") by the Company to the extent described in the Prospectus. The
exchange offer described above and in the Prospectus is herein referred to as
the "Exchange Offer." In connection with the Exchange Offer, the Company will
deposit in the Trust as trust assets its ___% Convertible Trust II 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 Exchange
Securities and its common securities (the "Common Securities"), as set forth in
the Prospectus.
2. ENGAGEMENT AS DEALER MANAGER. By this Dealer Manager Agreement
(the "Agreement"), each of the Company and the Trust hereby engages and
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appoints you as the exclusive dealer manager (the "Dealer Manager") for the
Exchange Offer and authorizes you to act as such in connection with the Exchange
Offer. As Dealer Manager you agree, in accordance with your customary practice,
to perform in connection with the Exchange Offer those services as are
customarily performed by investment banking concerns in connection with similar
offers, including, without limitation, using all reasonable efforts to solicit
from individuals and institutions the tender of Existing Securities pursuant to
and in accordance with the terms and conditions of the Exchange Offer. You shall
act as an independent contractor in connection with the Exchange Offer with
duties solely to the Company and the Trust and nothing herein contained shall
constitute you as an agent of the Company or the Trust in connection with the
solicitation of such Existing Securities pursuant to and in accordance with the
terms and conditions of the Exchange Offer; PROVIDED, HOWEVER, that the Company
hereby authorizes the Dealer Manager, and/or one or more registered brokers or
dealers chosen by the Dealer Manager, to act as the Company's agent in making
the Exchange Offer to residents of any jurisdiction in which such agent
designation may be necessary to comply with applicable law. Nothing in this
Agreement shall constitute the Dealer Manager 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 Exchange Offer, the Dealer Manager agrees to act in
such capacity.
3. REGISTRATION STATEMENT, PROSPECTUS AND OFFERING MATERIALS. (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 Exchange
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 Exchange 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
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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 Dealer Manager for use in
connection with the Exchange 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 Dealer Manager 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 Exchange 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").
(b) The Company and the Trust have prepared and filed, or agree that
prior to or on the date of commencement of the Exchange Offer (the "Commencement
Date") they will file, with the Commission under the Exchange Act a Tender Offer
Statement on Schedule TO with respect to the Exchange Offer, including the
exhibits thereto and any documents incorporated by reference therein. The term
"Schedule TO" as used in this Agreement shall mean such Tender Offer Statement
on Schedule TO, including any amendment or supplement thereto.
(c) The Registration Statement, the Prospectus, Schedule TO, the related
letters from the Dealer Manager to securities brokers, dealers, commercial
banks, trust companies and other nominees, letters to beneficial owners of
Existing Securities, letters of transmittal, notice of guaranteed delivery and
any newspaper announcements, press releases and other offering materials and
information the Company may use, prepare, approve, publicly disseminate, provide
to registered or beneficial holders of Existing Securities or authorize for use
in connection with the Exchange Offer are herein collectively referred to as the
"Exchange Offer Materials."
4. USE OF EXCHANGE OFFER MATERIALS. (a) The Exchange Offer Materials
have been or will be prepared and approved by, and are 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 Exchange Offer Materials to each
registered holder of any Existing Securities, as soon as practicable after the
Commencement Date, pursuant to Rule 13e-4 under the Exchange Act and comply in
all material respects with its obligations thereunder. Thereafter, to the extent
practicable until three days prior to the expiration date of the Exchange Offer,
the Company shall use its best efforts to cause copies of such Exchange Offer
Materials and a return
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envelope to be mailed to each person who becomes a holder of record of any
Existing Securities. The Company and the Trust acknowledge and agree that you
may use the Exchange Offer Materials 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 Exchange Offer Materials. 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 any Exchange Offer Materials, 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 Exchange Offer, before amending or supplementing
the Registration Statement, or the Prospectus, to furnish copies of drafts to,
and consult with, the Dealer Manager and its counsel within a reasonable time in
advance of filing with the Commission of any amendment or supplement to the
Registration Statement, the Prospectus or the other Exchange Offer Materials.
Neither the Company nor the Trust shall file any such amendment or supplement to
which the Dealer Manager 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 Exchange Offer.
(d) The Company and the Trust authorize the Dealer Manager to use the
Exchange Offer Materials in connection with the Exchange Offer and for such
period of time as any such materials are required by law to be delivered in
connection therewith. The Dealer Manager shall not have any obligation to cause
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any Exchange Offer Materials to be transmitted generally to the holders of
Existing Securities.
(e) The Company and the Trust authorize the Dealer Manager to
communicate with any information agent (the "Information Agent") or exchange
agent (the "Exchange Agent") appointed by the Company or the Trust to act in
such capacity in connection with the Exchange Offer. The Company and the Trust
will arrange for the Exchange Agent to advise you, as necessary and at least
daily, as to such matters relating to the Exchange Offer as you may reasonably
request.
(f) The Company and the Trust agree that any reference to the Dealer
Manager in any Exchange Offer Materials or in any newspaper announcement or
press release or other document or communication is subject to the Dealer
Manager'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 Exchange 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 Dealer Manager in connection with the Exchange 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 (x) 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 Existing Securities tendered
pursuant to the Exchange Offer as of the close of business on the date of such
withdrawal which is thereafter acquired by the Trust, the Company or any of its
subsidiaries or affiliates pursuant to the Exchange Offer or otherwise, shall be
deemed to have been acquired as of the date of such withdrawal).
6. FEES. In connection with the Exchange Offer, the Company and the
Trust, jointly and severally, agree to pay a fee to the Dealer Manager in an
amount as set forth in a separate letter agreement, dated June 12, 2001, between
the Company and the Dealer Manager (the "Engagement Letter").
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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
Exchange Securities, (ii) all advertising expenses related to the Exchange Offer
and all fees and expenses incurred in marketing the Exchange Offer, including
but not limited to road show presentations, if any, (iii) all fees and expenses
of the registrar and transfer agent, the Information Agent and the Exchange
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 Exchange Securities under the laws of such jurisdictions as
the Dealer Manager may designate (including, without limitation, reasonable fees
of counsel for the Dealer Manager 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, the Prospectus (including financial statements,
exhibits, schedules, consents and certificates of experts, and amendments and
supplements thereto), and, under the Exchange Act, of the Schedule TO, (vii) all
costs and expenses incurred in connection with the printing (including word
processing and duplication costs), shipping, distribution and delivery of all
Exchange Offer Materials (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 Exchange Offer Materials 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 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 Dealer Manager incurred in
connection with the Exchange Offer (including, without limitation, the
reasonable documented out-of-pocket legal fees and expenses of the Dealer
Manager's counsel in connection with the Exchange 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 Exchange
Offer is consummated (the "Closing Date"):
(a) The Registration Statement, including the Prospectus, has been
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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) The Schedule TO has been prepared by the Company in conformity in
all material respects with the requirements of the Exchange Act and has been
filed with the Commission; such amendments to such Schedule TO 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
Schedule TO as may hereafter be required. Copies of such Schedule TO, including
all amendments thereto and all documents incorporated by reference therein have
been or, if filed after the Commencement Date, will be, delivered or made
available to you and your counsel.
(c) (i) The Exchange Offer Materials, including the Registration
Statement, the Prospectus and the Schedule TO, 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) none of the Prospectus or other
Exchange Offer Materials 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(c) do not apply to
statements or omissions in the Exchange Offer Materials, including the
Registration Statement or the Prospectus,
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or, in each case, any amendment or supplement thereto, based upon information
relating to the Dealer Manager furnished to the Company in writing by the Dealer
Manager expressly for use therein; and (iv) there are no agreements, leases,
contracts or other documents required to be described in the Prospectus or
Schedule TO or to be filed as exhibits to the Registration Statement or Schedule
TO which have not been so described or filed.
(d) 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.
(e) The Company has not distributed and will not distribute, prior to
the later of the Closing Date and the completion of the Dealer Manager's
distribution of the Exchange Securities in exchange for the Existing Securities
pursuant to the Exchange Offer, any offering material in connection with the
Exchange Offer other than the Exchange Offer Materials.
(f) The Company and each of the Company's subsidiaries is, and at the
Closing Date will be, a corporation, a limited liability company, a limited
liability partnership or a statutory business trust, duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or formation, as applicable, and has, and at the Closing Date will
have, full power and authority to conduct all the activities conducted by it, to
own or lease all the assets owned or leased by it and to conduct its business as
described in the Prospectus; except where the failure to have such power and
authority would not have a Material Adverse Effect (as hereinafter defined). The
Company and each of its subsidiaries is, and at the Closing Date will be, duly
licensed or qualified to do business and in good standing as a foreign
corporation in all jurisdictions in which the nature of the activities conducted
by it or the character of the assets owned or leased by it makes such licensing
or qualification necessary, except for such failures to be licensed or qualified
as would not have a material and adverse effect on the condition, financial or
otherwise, or on the earnings, business, operations or prospects, whether or not
arising from transactions in the ordinary course of business, of the Trust or of
the Company and its subsidiaries considered as one entity (any such effect
called a "Material Adverse Effect"). All of the outstanding shares of capital
stock of the Company's subsidiaries have been duly authorized
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and validly issued and are fully paid and nonassessable and are owned by the
Company free and clear of all liens, encumbrances and claims whatsoever, except
for those pledged shares of capital stock set forth on Schedule I of that
certain Pledge Agreement by and among the Company, Fleetwood Holdings, Inc.
("Holdings"), Fleetwood Retail Corp. ("Retail") and certain subsidiaries of the
Company, Holdings and Retail (collectively with the Company, Holdings and
Retail, the "Pledgors"), in favor of Bank of America, N.A., as agent for the
lenders that may from time to time become parties to the Bank of America Credit
Agreement (as defined herein) (the "Lenders"). Complete and correct copies of
the certificate of incorporation and the by-laws of the Company have been
delivered to counsel to the Dealer Manager 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 Dealer Manager, and no changes therein will be made
subsequent to the date hereof and prior to the Closing Date.
(g) 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 Exchange 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.
(h) 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,
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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.
(i) Each of the Trust and the Company has all trust and corporate power,
as the case may be, to enter into each of this Agreement, the Exchange Agent
Agreement (as hereinafter defined) and the Information Agent Agreement (as
hereinafter defined). Each of this Agreement, the Exchange Agent Agreement and
the Information Agent 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 Dealer Manager) 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.
(j) The Indenture has been duly and validly authorized by the Company,
will be qualified under the Trust Indenture Act not later than the expiration
date of the Exchange Offer and, assuming due authorization, execution and
delivery of the Indenture by the 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.
(k) The Exchange Securities to be issued pursuant to the Exchange Offer
will be duly authorized by the Declaration upon execution and delivery of the
Declaration in the form filed with the Registration Statement, and, when issued
and delivered by the Trust in accordance with the terms of the Declaration in
exchange for Existing Securities pursuant to the Exchange 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 Exchange 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
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Corporation Law of the State of Delaware; under the Delaware Act and the
Declaration, the issuance of the Exchange Securities will not be subject to
preemptive or other similar rights; and the Exchange Securities will conform to
the description thereof in the Prospectus.
(l) The Debentures to be deposited in the Trust as Trust assets in
connection with the Exchange Offer and to be issued and delivered thereafter
from time to time in accordance with the terms of the Declaration and the
Indenture have been duly and validly authorized by the Company and, when
executed and authenticated in accordance with the terms of the Indenture and
delivered to the Trust pursuant to the terms of the Exchange 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.
(m) 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.
(n) 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.
(o) The Fleetwood Common Stock conforms in all material respects to
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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
Exchange Securities and the Debentures or as payment of interest on the
Debentures in accordance with the terms of the Exchange Securities, the
Declaration, the Debentures and the Indenture, will be validly issued, fully
paid and non-assessable shares of Fleetwood Common Stock and will be issued free
and clear of any pledge, lien, security interest, encumbrance, claim or
equitable interest and will not be subject to any preemptive rights, co-sale
rights, rights of first refusal or other rights to subscribe for or purchase the
Fleetwood Common Stock.
(p) The descriptions in the Prospectus of the Exchange 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.
(q) The financial statements and schedules of the Company together with
the notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus, and any amendments or supplements thereto, present
fairly the consolidated financial condition of the Company as of the respective
dates thereof and the consolidated results of operations and cash flows of the
Company for the respective periods covered thereby, all in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the entire period involved, except as otherwise disclosed in the
Registration Statement and the Prospectus. The interim consolidated financial
statements together with the notes thereto included or incorporated by reference
in the Registration Statement and the Prospectus, and any amendments or
supplements thereto, have been prepared on a basis consistent with the audited
consolidated financial statements except as otherwise stated therein, and
include in your opinion all adjustments, including normal recurring adjustments
necessary to present fairly the financial information therein. The selected and
summary consolidated financial and statistical data included in the Registration
Statement and the Prospectus, and any amendments and supplements thereto,
present fairly the information shown therein and have been compiled on a basis
consistent with the audited financial statements presented therein. No financial
statements or schedules, other than the consolidated financial statements that
are included in the Registration Statement and the Prospectus, and any
amendments or supplements thereto, are required to be included therein. Arthur
Andersen LLP, who have reported on such financial statements and schedules, are
independent accountants within the meaning of the Securities Act.
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(r) Each of the Trust and the Company maintains a system of internal
accounting control sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to assets if
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(s) 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.
(t) Except for subsequent issuances, if any, pursuant to the Exchange
Offer or the offering for cash of up to $___ million (the "Cash Offer") in
aggregate liquidation amount of ___% Convertible Trust III Preferred Securities
due February 15, 2013 (the "Cash Offer Securities") described in the Prospectus
of Fleetwood Capital Trust III (the "Trust III") 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.
(u) Neither the Company nor the Trust has taken and neither the
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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 the Exchange
Securities in the Exchange Offer or the Cash Offer.
(v) Neither the Company nor any of its subsidiaries is in violation of
its charter or by-laws and the Trust is not in violation of the Declaration,
and, except as specifically described in the Prospectus, none of the Company,
any of its subsidiaries or the Trust is in default (or, with notice or lapse of
time or both, would be in default) ("Default") in the performance or observance
of any obligation, agreement, covenant or condition contained in the Existing
Securities, the Existing Debentures, and the related indenture and guarantee,
the credit agreement dated as of July 27, 2001, 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.
(w) 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.
(x) 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 Exchange Securities, the performance by the Trust of its
obligations under the Declaration and the consummation of the Exchange 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,
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(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 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 under Section 3.4 of the Bank of
America Credit Agreement.
(y) Neither the Trust nor the Company is, and after giving effect to the
consummation of the Exchange 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.
(z) 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.
(aa) 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 in writing
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.
(bb) No consent, approval, authorization, or order of, or any filing,
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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 Exchange Securities by the Trust or the Guarantee
and the Debentures by the Company, in connection with the consummation of the
Exchange 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.
(cc) 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.
(dd) 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 Dealer Manager was or will be, when made, inaccurate, untrue
or incorrect in any material respect.
(ee) 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.
(ff) 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
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infringements as would not reasonably be expected to have a Material Adverse
Effect.
(gg) Any certificate signed by any officer of the Company and delivered
to the Dealer Manager or to counsel for the Dealer Manager pursuant to the terms
of this Agreement shall be deemed a representation and warranty by the Company
to the Dealer Manager as to the matters covered thereby.
(hh) 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.
(ii) 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.
(jj) 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.
(kk) On or prior to the Commencement Date, each of the exchange agent
agreement between the Company and the Exchange Agent (the "Exchange Agent
Agreement") and the information agent agreement between the Company and the
Information Agent (the "Information Agent Agreement") shall be in full force and
effect.
(ll) 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.
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(mm) There are no persons with registration or other similar rights to
have any equity or debt securities registered for sale under the Registration
Statement.
(nn) All written communications, in addition to the Schedule TO, made
during the period from the first public announcement and to the earlier of
either the expiration date or the Closing Date of the Exchange 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.
(oo) 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
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.
(pp) 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.
(qq) 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 DEALER MANAGER'S OBLIGATIONS. The obligations of the
Dealer Manager hereunder are subject, as of the Commencement Date and at all
times on or prior to the Closing Date, to the accuracy of the representations
and warranties on the part of each of the Company and the Trust herein, to the
accuracy of the statements of officers of the Company and of the Trust made
pursuant to the provisions hereof, to the performance by each of the Company and
the Trust of their respective obligations hereunder and to the following
additional conditions:
(a) You shall have received, on the Commencement Date and the
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Closing Date, letters, dated the Commencement Date and the Closing Date as the
case may be, from Arthur Andersen LLP, independent public or certified public
accountants for the Company, in form and substance satisfactory to you,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" delivered according to Statement of Auditing
Standards No. 72 (or any successor bulletin), with respect to the audited and
unaudited consolidated financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(b) For the period from and after effectiveness of this Agreement and
prior to the Closing Date:
(i) the Company shall have filed the Registration Statement
with the Commission prior to the Commencement Date and the Registration
Statement shall become effective prior to the expiration date of the
Exchange Offer; and
(ii) no stop order refusing or suspending the effectiveness of
the Registration Statement or any post-effective amendment shall have
been issued or be in effect and no proceedings for such purpose shall
have been instituted or threatened by the Commission and any request for
additional information shall have been complied with to the reasonable
satisfaction of the Dealer Manager'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 Dealer Manager, 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
Exchange 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
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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 Dealer Manager's judgment, are material and adverse and that make
it, in the Dealer Manager's judgment, impracticable to solicit the
tender of Existing Securities pursuant to and in accordance with the
terms of the Exchange Offer on the terms and in the manner contemplated
in the Registration Statement.
(d) On each of the Commencement Date (except with respect to clause
(d)(iii) of this Section 9) and the Closing Date, you shall have received a
written certificate, dated such date and executed by the Chairman of the Board
or the Chief Executive Officer or the President of the Company, the Chief
Financial Officer or Chief Accounting Officer of the Company, and an authorized
officer of the Trust acceptable to you, to the effect set forth in clauses
(b)(ii) and (c)(ii) of this Section 9 and further to the effect that:
(i) the representations, warranties and covenants of each of
the Company and the Trust, as the case may be, contained in this
Agreement are true and correct with the same force and effect as though
expressly made on and as of the Commencement Date and the Closing Date,
as the case may be;
(ii) each of the Company and the Trust has complied to all of
its agreements hereunder and satisfied all the conditions on its part to
be performed or satisfied hereunder on or prior to the Closing Date; and
(iii) when the Registration Statement became effective and at
all times subsequent thereto up to the date of such certificate, the
Registration Statement and the Prospectus, and any amendments or
supplements thereto, contained all material information required to be
included therein by the Securities Act or the Exchange Act, as the case
may be, and in all material respects conformed to the requirements of
the Securities Act or the Exchange Act, as the case may be; the
Registration Statement, and any amendment or supplement thereto, did not
and does not include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading;
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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(d) 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
each of the Commencement Date and the Closing Date such additional certificates,
opinions or other documents as you shall reasonably request (including
additional certificates of officers of the Company) as to the accuracy of the
representations and warranties of the Trust and the Company herein, as to the
performance by the Trust and the Company of its obligations hereunder, and as to
the other conditions concurrent and precedent to your obligations hereunder.
(f) On the Commencement Date (except with respect to paragraphs 3, 4, 6,
13 and 14 and clause (i) of the next-to-last paragraph of EXHIBIT A) and the
Closing Date, the Dealer Manager shall have received the favorable opinion of
Gibson, Dunn & Crutcher LLP, special counsel for the Trust and the Company,
dated as of such date, the form of which is attached as EXHIBIT A.
(g) On the Commencement Date (except with respect to clause (i) of the
next-to-last paragraph of EXHIBIT B) and the Closing Date, the Dealer Manager
shall have received the favorable opinion of Forrest Theobald, Vice President -
General Counsel and Secretary of the Company, dated as of such date, the form of
which is attached as EXHIBIT B.
(h) On the Commencement Date (except with respect to paragraph 6 of
EXHIBIT C) and the Closing Date, the Dealer Manager shall have received the
favorable opinion of Morris, Nichols, Arsht & Tunnell, special Delaware counsel
to the Trust, dated as of such date, the form of which is attached as EXHIBIT C.
(i) On the Commencement Date and the Closing Date, the Dealer Manager
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.
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(j) On the Commencement Date and the Closing Date, the Dealer Manager
shall have received the favorable opinion of Gibson, Dunn & Crutcher LLP,
special tax counsel to the Trust and the Company, dated as of such date, the
form of which is attached as EXHIBIT E.
(k) On the Commencement Date and the Closing Date, the Dealer Manager
shall have received the favorable opinion of Davis Polk & Wardwell, counsel for
the Dealer Manager, in form and substance satisfactory to the Dealer Manager.
(l) On the date hereof, the Company shall have furnished to the Dealer
Manager 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 Dealer Manager:
(a) To use its reasonable best efforts to cause the Registration
Statement, and any amendment thereof, to become effective as soon as possible
but no later than the expiration date of the Exchange Offer; to use its
reasonable best efforts to cause any abbreviated registration statement pursuant
to Rule 462(b) of the Securities Act as may be required subsequent to the date
the Registration Statement is declared effective to become effective as promptly
as possible; to promptly advise the Dealer Manager in writing (i) of the receipt
of any comments from the Commission relating to the Exchange 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 or any amended or
additional Exchange Offer Materials shall have been filed, (iii) of any request
by the Commission to amend the Registration Statement or amend or supplement the
Prospectus or the other Exchange Offer Materials or for additional information
relating to the Exchange Offer and (iv) of (A) the issuance by the Commission of
any stop order refusing or suspending the use of any of the Exchange Offer
Materials or any qualification of the Exchange Securities for offering or sale
in connection with the Exchange 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 Exchange Offer or would permit the Company or the Trust
to exercise any right not to accept Exchange Securities tendered pursuant to the
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Exchange 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 Exchange Offer, the Exchange Offer
Materials 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 Exchange 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 Dealer Manager or counsel for the
Company or the Trust, to amend the Registration Statement or amend or supplement
the Prospectus or any other Exchange Offer Materials in order that the
Prospectus or such other Exchange Offer Materials 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 or such other Exchange Offer Materials,
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 or any
other Exchange Offer Materials 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 Dealer Manager and to the dealers (whose names and addresses
will be furnished to the Company and the Trust by the Dealer Manager) to which
Existing Securities may have been tendered for exchange, such amendment or
supplement as may be necessary to correct such untrue statement or omission or
to make the Registration Statement or the Prospectus or such other Exchange
Offer Materials 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 Dealer Manager, the Prospectus is no
longer required by law to be delivered in connection with the Exchange 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 Dealer Manager and Dealer Manager's counsel to
qualify or register the Exchange Securities for sale under (or obtain
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exemptions from the application of) the state securities or blue sky laws or
Canadian provincial Securities laws of those jurisdictions designated by the
Dealer Manager; to comply with such laws and continue such qualifications,
registrations and exemptions in effect so long as required for the consummation
of the Exchange Offer; and in each jurisdiction in which the Exchange 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
Dealer Manager an earnings statement covering a twelve-month period beginning
not later than the first day of the Trust's fiscal quarter next following the
effective date of the Registration Statement that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) To use its best efforts to advise or cause the Exchange Agent to
advise the Dealer Manager at 5:00 P.M., New York City time, or promptly
thereafter, daily (or more frequently if requested), by telephone or facsimile
transmission, with respect to Existing Securities tendered as follows: (i) the
aggregate number of Existing Securities validly tendered and represented by
certificates physically held by the Exchange Agent or confirmations of receipt
of book-entry transfer of Exchange Securities pursuant to the procedures set
forth in the Exchange Offer Materials on such day; (ii) the aggregate
liquidation amount of Existing Securities properly withdrawn on such day; and
(iii) the cumulative totals of the liquidation amount of Exchange Securities in
categories (i) and (ii) above.
(g) During the period of 90 days from the date of the Prospectus,
neither the Trust nor the Company will, without the Dealer Manager'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 Exchange Securities, or any equity security convertible into or exchangeable
into or exercisable for, Exchange Securities, (ii) Debentures or any debt
securities substantially similar to the Debentures, (iii) any equity securities
substantially similar to the Exchange Securities, except for the Debentures,
Exchange Securities and the Common Securities, (iv) any preferred stock or any
other security of the Company that is substantially similar to the Exchange
Securities, (v)
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any shares of any class of common stock of the Company (other than (A) shares of
Fleetwood Common Stock issuable upon conversion of the Exchange 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, or (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 Dealer Manager hereunder, each of the Company and the Trust, jointly and
severally, agrees to reimburse the Dealer Manager for all reasonable documented
out-of-pocket expenses (including reasonable fees and disbursements of the
Dealer Manager's counsel) incurred by the Dealer Manager in connection with the
Exchange 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 Dealer Manager, its partners, its officers and
employees, and each person, if any, who controls the Dealer Manager within the
meaning of the Securities Act and the Exchange Act against any loss, claim,
damage, liability or expense, as incurred, to which the Dealer Manager or such
controlling person may become subject, under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Company), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any
amendment thereto, the Schedule TO or any Exchange Offer Materials (as amended
or supplemented),
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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 Exchange Offer; or (vi) upon any act or failure to act
or any alleged act or failure to act by the Dealer Manager in connection with,
or relating in any manner to, the Exchange Securities or the Exchange 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 Dealer Manager through its bad
faith or willful misconduct; and to reimburse the Dealer Manager and each such
controlling person for any and all expenses (including the reasonable fees and
disbursements of counsel chosen by the Dealer Manager) as such expenses are
reasonably incurred by the Dealer Manager 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 Dealer Manager expressly for use in
the Registration Statement, any preliminary prospectus, the Prospectus, the
Schedule TO or any Exchange Offer Materials. 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 Dealer Manager 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 or the Schedule TO, and each
person, if any, who controls the Company or the Trust within the meaning of the
Securities Act or the Exchange Act, against any loss, claim, damage, liability
or expense, as incurred, to which the Company or the Trust, or any such
director, officer or controlling person may become subject, under the Securities
Act, the Exchange Act, or other federal or state statutory law or regulation,
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or at common law or otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of the Dealer Manager),
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, the Schedule TO, the Prospectus, or any Exchange Offer Materials (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, the Schedule TO, the Prospectus or any Exchange Offer
Materials (or any amendments or supplements thereto), in reliance upon and in
conformity with written information furnished to the Company by the Dealer
Manager 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 Dealer Manager may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 11
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section 11, notify the indemnifying party in writing of the commencement
thereof, but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party for
contribution or otherwise than under the indemnity agreement contained in this
Section 11 or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in, and, to the
extent that it shall elect, jointly with all other indemnifying parties
similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; PROVIDED, HOWEVER, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that a conflict may arise
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
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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 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,
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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 Dealer Manager, on the other
hand, from the Exchange 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
Dealer Manager, 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 Dealer
Manager, on the other hand, in connection with the Exchange Offer shall be
deemed to be in the same respective proportions as the maximum aggregate
liquidation amount of the Exchange Securities issuable pursuant to the Exchange
Offer bears to the total Dealer Manager's fee under the Engagement Letter
attributable to the Exchange Offer payable to the Dealer Manager pursuant to the
Engagement Letter. The relative fault of the Company and the Trust, on the one
hand, and the Dealer Manager, 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 Dealer Manager, 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 Dealer Manager agree that
it would not be just and equitable if contribution pursuant to this
Section 11(e) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in this Section 11(e).
(iv) Notwithstanding the provisions of this Section 11(e), the
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Dealer Manager shall not be required to contribute any amount in excess
of the fee received by the Dealer Manager in connection with the
Exchange 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 Dealer Manager and
each person, if any, who controls the Dealer Manager within the meaning
of the Securities Act and the Exchange Act shall have the same rights to
contribution as the Dealer Manager, and each director of the Company or
the Trust, each officer of the Company or the Trust who signed the
Registration Statement and the Schedule TO, 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 Exchange Offer (and for no other purpose), this
Section 11 shall supersede the indemnity agreement attached to the Engagement
Letter and with respect to the Exchange 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 Dealer Manager shall have notified the Trust and the Company
thereof), (iii) the date on which the Company and the Trust terminate or
withdraw the Exchange Offer for any reason, or (iv) any modification to the
business terms of the Exchange Offer in the Company's and the Trust's sole and
absolute discretion that results in the Dealer Manager 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 Dealer Manager herein or in certificates
delivered pursuant hereto, and the indemnity and contribution agreements
contained in Section 11 hereof shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Dealer
Manager or any person controlling the Dealer Manager within the meaning of the
Securities Act or the Exchange Act, or by or on behalf of the Trust, the Company
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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 Exchange 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 Dealer Manager:
Banc of America Securities LLC
9 West 57th Street
New York, NY 10019
Facsimile: 212-583-8457
Attention: Eric Hambleton
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Facsimile: 212-450-4800
Attention: Winthrop B. Conrad, Jr.
If to the Company:
Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, California 92513
Facsimile: (909) 351-3776
Attention: General Counsel
with a copy to:
Gibson, Dunn & Crutcher LLP
Jamboree Center
4 Park Plaza
Irvine, CA 92614-8557
Facsimile: (949) 451-4220
Attention: Mark W. Shurtleff, Esq.
If to the Trust:
Fleetwood Capital Trust II
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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.
(b) Any legal suit, action or proceeding arising out of or based upon
this Agreement, the Indenture, the Exchange Securities, the Exchange Offer
Materials or the transactions contemplated hereby ("Related Proceedings") may be
instituted in the federal courts of the United States of America located in the
City
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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, the Schedule TO, the Prospectus and any of the Exchange Offer
Materials (and any amendments or supplements thereto), as required by the
Securities Act and the Exchange Act.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company and the Trust the enclosed
copies hereof, whereupon this instrument, along with all counterparts hereof,
shall become a binding agreement in accordance with its terms.
Very truly yours,
FLEETWOOD ENTERPRISES, INC.
By:
-----------------------------------------------
Name:
Title:
FLEETWOOD CAPITAL TRUST II
By:
-----------------------------------------------
Name:
Title:
The foregoing Dealer Manager Agreement is hereby confirmed and accepted
by the Dealer Manager 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 Dealer Manager Agreement, the Exchange Agent
Agreement, the Information Agent Agreement, the Guarantee, the Indenture and the
Declaration, to consummate the Exchange 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 in all material respects 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
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Incorporation and By-laws of the Company and the General Corporation Law of the
State of Delaware.
7. The holders of outstanding shares of capital stock of the Company are
not entitled to any preemptive rights, rights of first refusal or other similar
rights, under the Certificate of Incorporation or By-Laws of the Company, the
law of Delaware or to our knowledge, otherwise, to subscribe for the Exchange
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 Exchange 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 Dealer Manager 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 Dealer Manager Agreement, the
Exchange Agent Agreement and the Information Agent 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
Exchange Offer have been duly authorized by all necessary corporate action of
the Company], and each of the Dealer Manager Agreement, the Exchange Agent
Agreement, the Information Agent Agreement and the Bank of America Credit
Agreement has been duly executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms.
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10. Assuming the accuracy of the representations and warranties of the
Dealer Manager and compliance by it of its agreements contained in the Dealer
Manager Agreement, neither of the issuance of the Debentures, the Guarantee, the
Exchange Securities and the Common Securities, nor the execution, delivery and
performance by the Trust and the Company of their respective obligations in the
Dealer Manager Agreement, the Indenture, the Debentures, the Guarantee, the
Declaration, the Exchange Securities, the Common Securities, the Exchange Agent
Agreement and the Information Agreement and the consummation of the Exchange
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 Exchange Offer
Materials, 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
Exchange Offer, will be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
12. The Registration Statement (i) has been filed under the Securities
Act prior to the Commencement Date and (ii) has been declared effective by the
Commission under the Securities Act. To the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has been
issued under the Securities Act and no proceedings for such purpose have been
instituted or threatened by the Commission. Any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time period required
by such Rule 424(b).
13. The Registration Statement and the Prospectus, and each amendment or
supplement to the Registration Statement and the Prospectus, as of the effective
date of the Registration Statement (other than the financial statements and
supporting schedules and other financial or statistical data included or
incorporated by reference therein or in exhibits to or excluded from the
Registration Statement or that part of the Registration Statement that
constitutes the Form T-1, as to which no opinion need be rendered) appear on
their face to comply as to form in all material respects with the applicable
requirements of the Securities Act.
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14. The Registration Statement and the Prospectus (other than the
financial statements and notes thereto and related schedules and other financial
and statistical data contained therein, as to which such counsel expresses no
opinion), as of the time of filing with the Commission, appeared on their face
to comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission.
15. To such counsel's knowledge, there are no agreements, contracts,
leases or documents to which the Company is a party of a character required to
be described in the Registration Statement or to be filed as an exhibit to the
Registration Statement which are not described therein or filed as required.
16. The Schedule TO, and each amendment or supplement thereto, and the
documents required by Item 12 thereof (other than the financial statements and
supporting schedules and other financial or statistical data included or
incorporated by reference therein, as to which no opinion need be rendered)
comply as to form as of the date it was filed in all material respects with the
requirements of the Exchange Act.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company and the
Trust, representatives of the independent auditors of the Company and with
representatives of the Dealer Manager 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, the Prospectus or other Exchange Offer Materials, 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 and Exchange Offer Materials, 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
4
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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, the
other Exchange Offer Materials, or any amendments or supplements thereto, or as
to that part of the Registration Statement that constitutes the Form T-1).
The foregoing opinions are limited to the federal law of the United
States of America, the law of the State of New York and the General Corporation
Law of the State of Delaware.
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EXHIBIT B
FORM OF OPINION OF FORREST THEOBALD,
VICE PRESIDENT-GENERAL COUNSEL AND SECRETARY
OF THE COMPANY PURSUANT TO SECTION 9(g)
1. The Company and each of the Company's Significant Subsidiaries has
been duly incorporated or formed and is validly existing as a corporation or
business trust in good standing under the laws of the jurisdiction of its
incorporation or formation, with corporate or trust power to own, lease and
operate its properties and conduct its business as described in the Registration
Statement and is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in the United States where the ownership
or leasing of its respective assets or the conduct of its business as described
in the Prospectus requires such qualification, except where the failure to be so
qualified would not, individually or in the aggregate, have a Material Adverse
Effect;
2. All of the issued and outstanding capital stock of each of the
Company's subsidiaries has been duly authorized and validly issued, is fully
paid and non-assessable and, except as set forth in the Prospectus, is owned
beneficially and of record, directly or indirectly, by the Company, free and
clear of all security interests, pledges, liens, encumbrances, equities or, to
the knowledge of such counsel, any pending or threatened claims;
3. The holders of outstanding shares of capital stock of the Company are
not entitled to any preemptive rights, rights of first refusal or similar rights
under the Certificate of Incorporation or Bylaws of the Company, the General
Corporation Law of the State of Delaware, or to such counsel's knowledge,
otherwise, to subscribe for the Exchange Securities, the Debentures or the
Fleetwood Common Stock.
4. The statements in the Company's most recent Annual Report on Form
10-K, incorporated by reference in the Registration Statement, under the caption
"Legal Proceedings in Which We Are Involved" and in the Company's most recent
Quarterly Report on Form 10-Q, incorporated by reference in the Registration
Statement, under the caption "Legal Proceedings," insofar as such statements
constitute summaries of the legal matters, documents or proceedings referred to
therein, fairly summarize in all material respects the matters referred to
therein. Except as described in the Registration Statement, there is not pending
or, to such counsel's knowledge, threatened any action, suit, proceeding,
inquiry or investigation, before or brought by any court or governmental agency
or regulatory body, to which the Company or any Significant Subsidiary or the
property of the Company or any Significant Subsidiary, is subject, which might
reasonably be expected to result in a Material Adverse Effect, or which might
reasonably be
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expected to materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated in the Dealer Manager
Agreement or the performance by the Company of its obligations thereunder or
transactions contemplated by the Registration Statement.
5. The documents incorporated by reference in the Prospectus (except for
the financial statements and other financial or statistical data, as to which
such counsel expresses no opinion), as of the dates they were filed with the
Commission, appear on their face to comply as to form in all material respects
to the requirements of the Securities Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations under both
such Acts
6. The execution, delivery and performance of the Documents and the
consummation of the transactions contemplated in the Registration Statement
(including the issuance of the Exchange Securities and the Common Securities by
the Trust) and compliance by the Company and the Trust with their respective
obligations under the Documents do not and will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute a breach
of, or default or Debt Repayment Triggering Event under or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Significant Subsidiary pursuant to the Existing
Securities, the Existing Debentures, and the related indenture and guarantee,
the Bank of America Credit Agreement, or any other any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, required to be filed as an exhibit to the reports of
the Company filed pursuant to the Exchange Act to which the Company or any of
its Significant Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
Significant Subsidiary is subject (the "Material Contracts") (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any violation of
the provisions of the Certificate of Incorporation or Bylaws of the Company or
any of its Significant Subsidiaries, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to such counsel other than
state securities or Blue Sky laws, of any government, government instrumentality
or court, domestic or foreign, having jurisdiction over the Company or any of
its Significant Subsidiaries or any of their respective properties, assets or
operations.
7. To such counsel's knowledge after due inquiry and reasonable
investigation, (i) no default by the Company or its Significant Subsidiaries
exists in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any Material Contract and (ii)
none of the Company or any Significant Subsidiary is in violation of any
applicable law, statute, rule regulation, judgment, order, writ or decree of any
government, government instrumentality or
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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 Dealer Manager at which the contents
of the Registration Statement, the Prospectus, and other Exchange Offer
Materials 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, the Prospectus, or the other Exchange
Offer Materials (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, the Prospectus or other Exchange Offer Materials, 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 and Exchange Offer Materials, 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, the other Exchange Offer Materials, 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 Dealer Manager, shall expressly state
that the Dealer Manager may rely on such opinion as if it were addressed to them
and shall be furnished to the Dealer Manager) of other counsel of good standing
whom they believe to be reliable and who are satisfactory to counsel for the
Dealer Manager; PROVIDED, HOWEVER, that such counsel shall further state that
they believe that they and the Dealer Manager 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(h)
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 Exchange Securities and the
Common Securities and (C) purchase and hold the Debentures.
4. The execution and delivery of the Dealer Manager 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, 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 Exchange 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 Exchange
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 Exchange Securities and the Common Securities is not subject to
preemptive rights.
8. The issuance and sale by the Trust of the Exchange Securities, the
execution, delivery and performance by the Trust of the Dealer Manager
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 Exchange 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
thereby, (i) conflicts with or constitutes a breach of or default under the
Certificate
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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 $___
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 transaction described
in clause (i) or (ii) above is to be settled by delivery of equity securities of
the
B-1
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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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