EXECUTION COPY
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FLEETWOOD ENTERPRISES, INC.
TO
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
---------------
Indenture
Dated as of February 10, 1998
---------------
$296,400,000
(including $38,650,000 pursuant to the exercise
of an over-allotment option)
6% Convertible Subordinated Debentures Due 2028
- --------------------------------------------------------------------------------
Fleetwood Enterprises, Inc.
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
- ------------------- ---------------
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 608, 610
Section 311 (a) . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . 613
Section 312 (a) . . . . . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a) . . . . . . . . . . . . . . . . . . . 703(a)
(a)(4) . . . . . . . . . . . . . . . . . . . 101, 1004
(b) . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . 703(b)
Section 314 (a) . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . 102
Section 315 (a) . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . 514
Section 316 (a) . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . 104(c)
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . . . . . 107
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Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . 11
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . 11
SECTION 104. Acts of Holders; Record Dates. . . . . . . . . . . . . . . . . 12
SECTION 105. Notices, Etc., to Trustee and the Company. . . . . . . . . . . 13
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . . 14
SECTION 107. Conflict with Trust Indenture Act. . . . . . . . . . . . . . . 14
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . 14
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . 14
SECTION 110. Separability Clause. . . . . . . . . . . . . . . . . . . . . . 15
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . 15
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 202. Initial Issuance to Property Trustee . . . . . . . . . . . . . 16
ARTICLE THREE
The Securities
SECTION 301. Title and Terms. . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . 19
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . 19
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . 21
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . 22
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . 24
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 310. Right of Setoff. . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 311. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 312. Extension of Interest Payment Period; Notice of
Extension. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 313. Paying Agent, Security Registrar and Conversion
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
i
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . . . . . . 26
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . 28
ARTICLE FIVE
Remedies
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . 31
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . 32
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . 33
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . 33
SECTION 508. Unconditional Right of Holders to Receive Principal
and any Premium and Interest and to Convert. . . . . . . . . . 34
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . 34
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . 35
SECTION 511. Delays or Omission Not Waiver. . . . . . . . . . . . . . . . . 35
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . 36
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . 36
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . 37
SECTION 516. Enforcement by Holders of Preferred Securities . . . . . . . . 37
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities. . . . . . . . . . . . . . 37
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . . 38
SECTION 604. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . . . . . . . . 40
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . 40
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . 40
SECTION 608. Disqualification; Conflicting Interest . . . . . . . . . . . . 40
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . . . . . . 41
SECTION 610. Resignation and Removal; Appointment of Successor. . . . . . . 41
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . 42
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ii
SECTION 613. Preferential Collection of Claims Against Company. . . . . . . 43
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 702. Preservation of Information: Communications to
Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 802. Successor Substituted. . . . . . . . . . . . . . . . . . . . . 46
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures without Consent of
Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 902. Supplemental Indentures with Consent of Holders. . . . . . . . 48
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . 49
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . . . . 50
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . . . . . . 50
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. Payment of Principal and Interest. . . . . . . . . . . . . . . 50
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . . . . . . 50
SECTION 1003. Money for Security Payments to Be Held in Trust. . . . . . . . 51
SECTION 1004. Statement by Officers as to Default. . . . . . . . . . . . . . 52
SECTION 1005. Limitation on Dividends; Covenants as to the
Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 1006. Payment of Expenses of the Trust . . . . . . . . . . . . . . . 54
SECTION 1007. Registration Rights. . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1008. Limitation of Transactions . . . . . . . . . . . . . . . . . . 55
SECTION 1009. Listing of Securities. . . . . . . . . . . . . . . . . . . . . 56
iii
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption. . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1102. Applicability of Article . . . . . . . . . . . . . . . . . . . 57
SECTION 1103. Election to Redeem; Notice to Trustee. . . . . . . . . . . . . 57
SECTION 1104. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1105. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1106. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . 59
SECTION 1107. Securities Payable on Redemption Date. . . . . . . . . . . . . 59
SECTION 1108. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . 59
SECTION 1109. Optional Redemption. . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1110. Tax Event Redemption . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1111. Certain Limitations on Redemption. . . . . . . . . . . . . . . 62
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . 62
SECTION 1202. Default on Senior Indebtedness . . . . . . . . . . . . . . . . 62
SECTION 1203. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . 63
SECTION 1204. Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1205. Trustee to Effectuate Subordination. . . . . . . . . . . . . . 66
SECTION 1206. Notice by the Company. . . . . . . . . . . . . . . . . . . . . 66
SECTION 1207. Rights of the Trustee; Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1208. Subordination May Not Be Impaired. . . . . . . . . . . . . . . 68
ARTICLE THIRTEEN
Conversion of Securities
SECTION 1301. Conversion Rights. . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1302. Conversion Procedures. . . . . . . . . . . . . . . . . . . . . 69
SECTION 1303. Conversion Price Adjustments . . . . . . . . . . . . . . . . . 72
SECTION 1304. Adjustment of Conversion Price -- Fundamental
Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1305 Notice of Adjustments of Conversion Price. . . . . . . . . . . 85
SECTION 1306. Company to Provide Stock . . . . . . . . . . . . . . . . . . . 87
SECTION 1307. Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . 87
SECTION 1308. Certain Additional Rights. . . . . . . . . . . . . . . . . . . 88
SECTION 1309. Restrictions on Common Stock Issuable upon
Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 1310. Trustee Not Responsible for Determining Conversion
Price or Adjustments . . . . . . . . . . . . . . . . . . . . . 90
ARTICLE FOURTEEN
Meetings of Holders of Securities
SECTION 1401. Purposes for Which Meetings May Be Called. . . . . . . . . . . 91
iv
SECTION 1402. Call, Notice and Place of Meetings . . . . . . . . . . . . . . 91
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . 92
SECTION 1404. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 1405. Determination of Voting Rights; Conduct
and Adjournment of Meetings. . . . . . . . . . . . . . . . . . 93
SECTION 1406. Counting Votes and Recording Action of Meetings. . . . . . . . 94
v
EXHIBIT A-1 Form of the Security
EXHIBIT A-2 Form of the Exchange Security
ANNEX A Form of Amended and Restated Declaration of Trust among the
Company, as Sponsor, The Bank of New York (Delaware), as Delaware
Trustee, and Nelson W. Potter, Paul M. Bingham and Lyle N.
Larkin, each as Regular Trustees, dated as of February 10, 1998.
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
vi
INDENTURE, dated as of February 10, 1998, between Fleetwood
Enterprises, Inc., a corporation duly organized and existing under the laws of
the State of Delaware ("Fleetwood" or the "Company"), having its principal
office at 3125 Myers Street, Riverside, California 92513, and The Bank of New
York, not in its individual capacity but solely as Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, Fleetwood Capital Trust, a Delaware business trust (the
"Trust") formed under the Amended and Restated Declaration of Trust among the
Company, as Sponsor, The Bank of New York, not in its individual capacity but
solely in its capacities as property trustee (the "Property Trustee") and
Delaware trustee (the "Delaware Trustee"), and Nelson W. Potter, Paul M.
Bingham, and Lyle N. Larkin, as trustees (the "Regular Trustees"), dated as of
February 10, 1998 (the "Declaration"), pursuant to the Purchase Agreement (the
"Purchase Agreement") dated February 4, 1998, among the Company, the Trust and
the Initial Purchaser named therein, will issue and sell 5,750,000 (including
750,000 pursuant to the exercise of the over-allotment option granted to the
Initial Purchaser) of its 6% Convertible Trust Preferred Securities (the
"Preferred Securities"), with a liquidation amount of $50 per Preferred Security
and having an aggregate liquidation amount with respect to the assets of the
Trust of $287,500,000 (including $37,500,000 pursuant to the exercise of the
over-allotment option);
WHEREAS, the trustees of the Trust, on behalf of the Trust, will
execute and deliver to the Company common securities evidencing an ownership
interest in the Trust (the "Common Securities"), registered in the name of the
Company, in an aggregate amount equal to approximately three percent (3%) of the
capitalization of the Trust, equivalent to 178,000 Common Securities (including
23,000 pursuant to the exercise of the over-allotment option), with a
liquidation amount of $50 per Common Security and having an aggregate
liquidation amount with respect to the assets of the Trust of $8,900,000
(including $1,150,000 pursuant to the exercise of the over-allotment option);
WHEREAS, the Trust will use the proceeds from the sale of the
Preferred Securities and the Common Securities to purchase, from the Company,
Securities (as defined below) in an aggregate principal amount of $296,400,000
(including $38,650,000 pursuant to the exercise of the over-allotment option);
WHEREAS, the Company is guaranteeing the payment of all distributions
(including Additional Interest, Compounded Interest
and Liquidated Damages, if any) on the Preferred Securities, payment of the
Redemption Price, as applicable, and payments on liquidation with respect to the
Preferred Securities, to the extent provided in the Preferred Securities
Guarantee Agreement (the "Preferred Securities Guarantee") between the Company
and The Bank of New York, not in its individual capacity but solely in its
capacity as guarantee trustee, for the benefit of the holders from time to time
of the Preferred Securities;
WHEREAS, the Company has duly authorized the creation of an issue of
its 6% Convertible Subordinated Debentures Due 2028 (the "Securities") of
substantially the tenor and amount hereinafter set forth and, to provide
therefor, the Company has duly authorized the execution and delivery of this
Indenture; and
WHEREAS, so long as the Trust is a Holder (as defined below) of
Securities and any Preferred Securities are outstanding, the Declaration
provides that the holders of Preferred Securities may cause the Conversion Agent
to (a) exchange such Preferred Securities for Securities held by the Trust and
(b) immediately convert such Securities into Fleetwood Common Stock (as defined
below);
WHEREAS, all things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
2
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section, Clause or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Interest" has the meaning specified in Section 301.
"Additional Payments" means Compounded Interest, Additional Interest
and Liquidated Damages, if any.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
3
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Property Trustee's corporate trust office or the Trustee's Corporate Trust
Office is closed for business.
"Change in 1940 Act Law" has the meaning specified in the Declaration.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities" has the meaning specified in the Recitals to this
Indenture.
"Common Securities Guarantee" means the guarantee agreement dated as
of February 10, 1998, of the Sponsor in respect of the Common Securities.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Compounded Interest" has the meaning specified in Section 312.
"Conversion Agent" means the Person or Persons appointed to act on
behalf of the holders of Preferred Securities and/or on behalf of the holders of
Common Securities in effecting the conversion of Preferred Securities and/or
Common Securities as and in the manner set forth in the Declaration and Section
1302 hereof.
"Conversion Date" has the meaning specified in Section 1302.
4
"Conversion Price" has the meaning specified in Section 1301.
"Corporate Trust Office" means the principal office of The Trustee at
which at any particular time its corporate trust business shall be administered
and which at the date of this Indenture is at 101 Barclay Street, 21 West, New
York, New York, 10286, Attention: Corporate Trust Administration.
"Current Market Price" has the meaning specified in Section
1303(a)(vii).
"Declaration" has the meaning specified in the Recitals to this
Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Delaware Trustee" has the meaning specified in the Recitals to this
Indenture.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Declaration, and the Securities held by the Property Trustee are to be
distributed to the holders of the Trust Securities issued by the Trust pro rata
in accordance with the Declaration.
"Dissolution Tax Opinion" has the meaning specified in the
Declaration.
"Event of Default" has the meaning specified in Section 501.
"Exchanged Securities" means the 6% Convertible Subordinated
Debentures Due 2028 to be issued in connection with sales of such Securities
pursuant to an effective Shelf Registration Statement.
"Extension Period" has the meaning specified in Section 312.
"Fleetwood Common Stock" has the meaning specified in Section
1303(a)(x).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or
5
amended by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof, including, for all purposes of this instrument
and any such supplemental indenture, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively.
"Initial Purchaser", with respect to the Preferred Securities, means
PaineWebber Incorporated.
"Interest Payment Date" has the meaning specified in Section 301.
"Investment Company Event" has the meaning specified in the
Declaration.
"Liquidated Damages" has the meaning specified in Section 1007.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"90 Day Period" has the meaning specified in Section 1110.
"No Recognition Opinion" has the meaning specified in the Declaration.
"Notice of Conversion" means the notice to be given by a holder of
Preferred Securities or Common Securities to the Conversion Agent directing the
Conversion Agent to exchange such Preferred Securities or Common Securities for
Securities and to convert such Securities into Fleetwood Common Stock on behalf
of such holder.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee.
6
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT: (i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation; (ii) Securities for whose
payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made; and (iii) Securities which have been paid pursuant to Section 306,
converted into Fleetwood Common Stock pursuant to Section 1301, or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company; provided, however, that upon any
distribution of the Securities to the holders of the Preferred Securities in
accordance with the Declaration, in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum purposes, Securities
beneficially owned by the Company or any other obligor upon the Securities, or
any Affiliate of the Company or such other obligor, shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making any such determination or relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, company, partnership,
joint venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
7
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" has the meaning specified in the Recitals to
this Indenture.
"Preferred Securities Guarantee" has the meaning specified in the
Recitals to this Indenture.
"Property Trustee" has the meaning specified in the Recitals to this
Indenture.
"Purchase Agreement" has the meaning specified in the Recitals to this
Indenture.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Redemption Tax Opinion" has the meaning specified in the Declaration.
"Reference Date" has the meaning specified in Section 1303(a)(iv).
"Registration Rights Agreement" has the meaning specified in Section
1007.
"Regular Record Date" has the meaning specified in Section 301.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
8
"Restricted Securities Legend" has the meaning specified in Section
202.
"Securities" has the meaning specified in the Recitals to this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means (a) any liability of the Company (1) for
borrowed money or under any reimbursement obligation relating to a letter of
credit, surety bond or similar instrument, or (2) evidenced by a bond, note,
debenture or similar instrument, or (3) for obligations to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, or (4) for the payment of money relating to a
capitalized lease obligation, or (5) for the payment of money under any Swap
Agreement; (b) any liability of others described in the preceding clause (a)
that the Company has guaranteed or that is otherwise its legal liability; and
(c) any deferral, renewal, extension or refunding of any liability of the types
referred to in clauses (a) and (b) above, unless, in the instrument creating or
evidencing any such liability referred to in clause (a) or (b) above or any such
deferral, renewal, extension or refunding referred to in clause (c) above or
pursuant to which the same is outstanding, it is expressly provided that such
liability, deferral, renewal, extension or refunding is subordinate in right of
payment to all other indebtedness of the Company or is not senior or prior in
right of payment to the Securities or ranks PARI PASSU with or subordinate to
the Securities in right of payment; PROVIDED that the Securities shall not
constitute Senior Indebtedness; and PROVIDED, FURTHER, that Senior Indebtedness
shall not include any indebtedness or guarantees between or among the Company or
its affiliates, including all debt securities or guarantees in respect of those
debt securities issued to any trust (including the Trust), trustee of a trust
(including the Trust), partnership, limited liability company or other person
affiliated with the Company that is a financing vehicle of the Company
(a"Financing Entity") in connection with the issuance by such Financing Entity
of preferred securities unless otherwise expressly provided in the instrument
creating or evidencing such indebtedness, debt securities or guarantees, as the
case may be, or pursuant to which the same is outstanding.
"Shelf Registration Statement" has the meaning specified in Section
1007.
9
"Special Event" means either a Tax Event or an Investment Company
Event.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal, together with any accrued and unpaid
interest (including Compounded Interest), of such Security or such installment
of interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"Swap Agreement" means any financial agreement designed to manage the
Company's exposure to fluctuations in interest rates or credit conditions,
currency exchange rates or commodity prices, including without limitation swap
agreements, option agreements, cap agreements, floor agreements, collar
agreements, credit swaps and forward purchase agreements.
"Tax Event" has the meaning specified in the Declaration.
"Trading Day" means a day on which Fleetwood Common Stock is traded on
the national securities exchange or the quotation system used to determine the
Current Market Price.
"Trust" has the meaning specified in the Recitals to this Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; PROVIDED, HOWEVER,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
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"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Securities" means Common Securities and Preferred Securities.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" of any Person means capital stock of such Person which
ordinarily has voting power for the election of directors (or Persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act or reasonably requested by the Trustee in connection with such
application or request. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
applicable requirements of the Trust Indenture Act and any other applicable
requirement set forth in this Indenture.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless
11
such officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee or the Company, as the case may be, deems
sufficient.
12
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard to
any record date, only the Holders on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND THE COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
13
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
14
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness, the holders of Preferred
Securities (to the extent provided herein) and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or the last date on which a Holder has the right to
convert his Securities shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal or conversion of the Securities need not be made on such date, but may
be made on the next succeeding Business Day (except that, if such Business Day
is in the next succeeding calendar year, such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, shall be the immediately preceding
Business Day) with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity or on such last day for
conversion, PROVIDED, that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
15
ARTICLE TWO
Security Forms
SECTION 201. FORMS GENERALLY.
The Securities and the Trustee's certificates of authentication shall
be substantially in the form of EXHIBIT A-1 which is hereby incorporated in and
expressly made a part of this Indenture. The Exchanged Securities and the
Trustee's certificates of authentication shall be substantially in the form of
EXHIBIT A-2, which is hereby incorporated by reference and expressly made a part
of this Indenture. The Securities may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). The Company shall furnish
any such legend not contained in EXHIBIT A-1 to the Trustee in writing. Each
Security shall be dated the date of its authentication. The terms and
provisions of the Securities set forth in EXHIBITS A-1 and A-2 are part of the
terms of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
The definitive Securities shall be typewritten or printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as conclusively evidenced by their execution
of such Securities.
SECTION 202. INITIAL ISSUANCE TO PROPERTY TRUSTEE.
The Securities initially issued to the Property Trustee of the Trust
shall be in the form of one or more individual certificates in definitive, fully
registered form without distribution coupons and shall bear the restricted
securities legend set forth in Exhibit A-1 (the "Restricted Securities Legend")
unless the Company determines otherwise in accordance with applicable law.
16
ARTICLE THREE
The Securities
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is limited to $296,400,000 (including
$38,650,000 purchased by the Trust pursuant to an over-allotment option in
accordance with the terms and provisions of the Purchase Agreement), except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Section 304, 305, 306,
906, 1108 or 1301.
The Securities shall be known and designated as the "6% Convertible
Subordinated Debentures Due 2028" of the Company. Their Stated Maturity shall
be February 15, 2028, and they shall bear interest at the rate of 6% per annum,
from February 10, 1998, or from the most recent Interest Payment Date (as
defined below) to which interest has been paid or duly provided for, as the case
may be, payable quarterly (subject to deferral as set forth herein), in arrears,
on February 15, May 15, August 15 and November 15 (each an "Interest Payment
Date") of each year, commencing May 15, 1998, until the principal thereof is
paid or made available for payment, and they shall be paid to the Person in
whose name the Security is registered at the close of business on the regular
record date for such interest installment, which shall be the date that is 15
days prior to the Interest Payment Date (whether or not a Business Day) (the
"Regular Record Date"). Interest will compound quarterly and will accrue at the
rate of 6% per annum on any interest installment in arrears for more than one
quarter or during an extension of an interest payment period as set forth in
Section 312 hereof.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months, and, for any period of less
than a full calendar month, the actual number of days elapsed in such month. In
the event that any date on which interest is payable on the Securities is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
If at any time while the Property Trustee is the Holder of any
Securities, the Trust or the Property Trustee is required
17
to pay any taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any such case, the Company will pay as additional interest
("Additional Interest") on the Securities held by the Property Trustee, to the
extent permitted by applicable law, such additional amounts as shall be required
so that the net amounts received and retained by the Trust and the Property
Trustee after paying such taxes, duties, assessments or other governmental
charges will be equal to the amounts the Trust and the Property Trustee would
have received had no such taxes, duties, assessments or other government charges
been imposed.
The principal of and interest on the Securities shall be payable at
the office or agency of the Company in the United States maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; PROVIDED,
HOWEVER, that payment of interest may be made at the option of the Company by
check mailed to the address of the holder entitled thereto or by wire transfer
to an account in the United States appropriately designated by the holder
entitled thereto prior to the record date for the corresponding interest payment
date. Notwithstanding the foregoing, so long as the holder of any Securities is
the Property Trustee, the payment of principal and interest on the Securities
held by the Property Trustee will be made by wire transfer at such place and to
such account in the United States as may be designated by the Property Trustee.
The Securities shall be redeemable as provided in Article Eleven
hereof.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Twelve hereof.
The Securities shall be convertible as provided in Article Thirteen
hereof.
SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $50 and integral multiples thereof.
18
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall manually authenticate and make available for
delivery such Securities as in this Indenture provided and not otherwise.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive
19
Securities upon surrender of the temporary Securities, at any office or agency
of the Company designated pursuant to Section 1002, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and
make available for delivery in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) GENERAL.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
20
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1108 or 1301 not involving any transfer.
The Company shall not be required (i) in the case of a partial
redemption of the Securities, to issue, register the transfer of or exchange any
Security during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities selected for
redemption under Section 1104 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
(b) TRANSFER PROCEDURES AND RESTRICTIONS.
The Securities may not be transferred except in compliance with the
Restricted Securities Legend, unless otherwise determined by the Company in
accordance with applicable law. Upon any distribution of the Securities to the
holders of the Preferred Securities in accordance with the Declaration, the
Company and the Trustee shall enter into a supplemental indenture pursuant to
Section 901(6) to provide for transfer procedures and restrictions with respect
to the Securities substantially similar to those contained in the Declaration to
the extent applicable in the circumstances existing at the time of such
distribution.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity
21
as may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
22
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest, which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and, if so
listed, upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to
23
accrue (including in each such case Compounded Interest), which were carried by
such other Security.
In the case of any Security that is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security that is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable, and the Company shall
not make nor be required to make any other payment, adjustment or allowance with
respect to accrued but unpaid interest (including Additional Payments, if any)
on the Securities being converted, which shall be deemed to be paid in full.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 307) interest (including Additional Payments, if any) on such Security
and for all other purposes whatsoever, whether or not such Security is overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order; PROVIDED, HOWEVER, that the Trustee
24
shall not be required to destroy the certificates representing such cancelled
Securities.
SECTION 310. RIGHT OF SETOFF.
Notwithstanding anything to the contrary in this Indenture, the
Company shall have the right to set off any payment it is otherwise required to
make hereunder to the extent the Company has theretofore made, or is
concurrently on the date of such payment making, a payment under the Preferred
Securities Guarantee.
SECTION 311. CUSIP NUMBERS.
At any time when the Securities are not held solely by the Trust, the
Company shall obtain and use "CUSIP" numbers, and the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; PROVIDED, that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
SECTION 312. EXTENSION OF INTEREST PAYMENT PERIOD; NOTICE OF EXTENSION.
(a) So long as the Company shall not be in default in the payment of
interest on the Securities, the Company shall have the right, at any time and
from time to time during the term of the Securities, to defer payments of
interest (including Additional Interest and Liquidated Damages (as defined in
Section 1007), if any) by extending any interest payment period for successive
periods not exceeding 20 consecutive quarters for each such period (an
"Extension Period"). To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 312, will bear interest at the per annum
rate specified in Section 301 compounded quarterly for each quarter of the
Extension Period ("Compounded Interest"); PROVIDED, that during an Extension
Period, the Company shall be subject to the provisions of Section 1008 hereof.
At the end of the Extension Period, the Company shall pay all interest then
accrued and unpaid on the Securities, including any Additional Payments, that
shall be payable to the Holders of the Securities in whose names the Securities
are registered in the Security Register on the first Regular Record Date after
the end of the Extension Period. Before the termination of any Extension
Period, the Company may further extend such period, PROVIDED, that such period
together
25
with all such further extensions thereof shall not exceed 20 consecutive
quarters or extend beyond the maturity of the Securities or end other than on an
Interest Payment Date. Upon the termination of any Extension Period and upon
the payment of all amounts then due on the Securities, including any Additional
Payments, the Company may commence a new Extension Period, subject to the
foregoing requirements. No interest shall be due and payable during an
Extension Period except at the end thereof.
(b) The Company must give the Property Trustee, the Regular Trustees
and the Trustee notice of its election to begin an Extension Period at least one
Business Day Prior to the earliest of (i) the date the Distribution on the
Preferred Securities would have been payable except for the election to begin
such Extension Period or (ii) if applicable, the date the Regular Trustees are
required to give notice to the NYSE, the Nasdaq National Market or other
applicable self-regulatory organization or to holders of such Preferred
Securities of the record date or (iii) the date such Distribution is payable,
but in any event not less than one Business Day prior to the record date. The
Trustee shall give notice of the Company's election to begin an Extension Period
to the holders of the Securities and the Regular Trustees shall give notice of
the Company's election to the holders of the Preferred Securities.
(c) The quarter in which any notice is given pursuant to paragraphs
(b) hereof shall be counted as one of the 20 quarters permitted in the maximum
Extension Period permitted under paragraph (a) hereof.
SECTION 313. PAYING AGENT, SECURITY REGISTRAR AND CONVERSION AGENT.
The Trustee will initially act as Paying Agent, Security Registrar and
Conversion Agent. The Company may change any Paying Agent, Security Registrar,
co-registrar or Conversion Agent without prior notice. The Company or any of
its Affiliates may act in any such capacity.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
On demand and at the expense of the Company this Indenture shall cease
to be of further effect (except as to the obligations to pay Additional Payments
and the rights of
26
conversion, registration of transfer or exchange of Securities herein provided
for), and the Trustee, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities that have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation (i) have become due and payable, or (ii) will
become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company; and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount in U.S. Dollars sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee, for cancellation, for principal (and
premium, if any) and interest (including Compounded Interest,
Additional Interest and Liquidated Damages, if any) to the date of
such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations
27
of the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive. The Company will also continue to be obligated to pay Additional
Payments to the extent the amount thereof exceeds the amount so deposited.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee. All moneys
deposited with the Trustee pursuant to Section 401 (and held by it or any Paying
Agent) for the payment of Securities subsequently converted shall be returned to
the Company upon Company Request.
ARTICLE FIVE
Remedies
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest on the Securities (including
Additional Payments, if any, in respect thereof), when the same shall become due
and payable, and continuance of such default for a period of 30 days, provided
that a valid extension of an interest payment period will not constitute a
default in the payment of any interest (including Additional Interest or
Compounded Interest, if any) for this purpose; or
(2) default in the payment of the principal of or premium, if any, on any
Security when due upon Maturity (whether upon redemption or otherwise);
(3) failure by the Company to deliver any shares of Fleetwood Common Stock
upon an appropriate election by a registered holder of Securities to convert
such Securities,
28
provided that such election is made in accordance with applicable provisions of
the Indenture;
(4) default by the Company in the performance, or breach,
of any other covenant or warranty of the Company in this Indenture or a
Security, and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) the voluntary or involuntary dissolution, winding up or termination of
the Trust, except in connection with the distribution of Securities to holders
of Trust Securities in liquidation of the Trust upon the occurrence of a Special
Event, upon the redemption of all of the outstanding Trust Securities, upon the
conversion of all the outstanding Trust Securities, or upon any merger,
consolidation or amalgamation, each as permitted by the Declaration;
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to
29
the appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default occurs and is continuing, then the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
may declare the principal of all the Securities, and accrued and unpaid
interest, if any (including any Additional Payments), thereon to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal or such
lesser amount, as the case may be, and such accrued and unpaid interest shall
become immediately due and payable.
At any time after Securities have been accelerated and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(a) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay
(i) all overdue interest on any Securities that have become due
otherwise than by such declaration of acceleration and any Additional
Payments with respect thereto,
(ii) the principal of and any premium on any Securities that have
become due otherwise than by such declaration of acceleration and any
Additional Payments with respect thereto and, to the extent permitted by
applicable law, interest thereon at the rate borne by the Securities,
(iii) to the extent permitted by applicable law, interest upon
installments of any interest, if any, that has become due otherwise than by
such declaration of acceleration and any Additional Payments with respect
thereto at the rate borne by or provided for in the Securities, and
30
(iv) all sums paid or advanced by the Trustee hereunder and the
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and all other amounts due the Trustee under Section 607;
and
(b) all Events of Default, other than the non-payment of the principal of,
any premium and interest on, and any Additional Payments with respect to the
Securities that shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest (including any
Additional Payments) on any Security when such interest becomes due and
payable and such default continues for a period of 30 days (provided that a
valid extension of the interest payment period by the Company pursuant to
this Indenture shall not constitute a default in the payment of any
interest (including any Additional Payments) for this purpose), or
(2) default is made in the payment of the principal of any Security at
the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal and interest (including any Additional
Payments) and, to the extent that payment thereof shall be legally enforceable,
interest on any overdue principal, any premium and on any overdue interest
(including any Additional Interest or Liquidated Damages), at the rate borne by
the Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and all other amounts due to the Trustee under Section 607.
If the Company fails to pay the money it is required to pay the
Trustee pursuant to the preceding paragraph forthwith upon the demand of the
Trustee, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the money so due and
unpaid, and
31
may prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company or any other obligor upon the Securities and collect
the moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or any other obligor upon the Securities,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee
32
without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Subject to Article Twelve, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal or interest (including any Additional Payments), upon presentation
of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of, any premium and interest (including any Additional Payments)
on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal and premium and interest (including any Compounded Interest),
respectively; and
THIRD: Any remaining amounts shall be repaid to the Company.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities shall have made written request to the Trustee
to institute proceedings
33
in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity satisfactory to the Trustee has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60 day period by the Holders of a majority in
aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND ANY
PREMIUM AND INTEREST AND TO CONVERT.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, any premium, if any, and (subject to
Section 307) interest (including any Additional Payments) on such Security on
the respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to convert such Security in accordance
with Article Thirteen and to institute suit for the enforcement of any such
payment and right to convert, and such rights shall not be impaired without the
consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their
34
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAYS OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee; PROVIDED, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction; and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities not joining in such action.
35
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 902 hereof, the Holders of not less than 662/3% in
aggregate principal amount of the Outstanding Securities may, on behalf of the
Holders of all the Securities, waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of, premium, if any, or interest
(including any Additional Payments) on any Security (unless such default
has been cured and a sum sufficient to pay all matured installments of
interest (including any Additional Payments) and principal due otherwise
than by acceleration has been deposited with the Trustee); or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
However, while any Preferred Securities are outstanding, an Event of
Default with respect to the Securities may not be waived without the consent of
662/3% in aggregate liquidation amount of the Preferred Securities.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; PROVIDED, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Trustee or in
any suit for the enforcement of the right to receive the principal of and
interest (including any Additional Payments) on any Security or to convert any
Security in accordance with Article Thirteen.
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SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 516. ENFORCEMENT BY HOLDERS OF PREFERRED SECURITIES.
Notwithstanding anything to the contrary contained herein, an event of
default under the Declaration has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest, including any
Additional Payments, or principal on the Securities on the date such interest
and principal is otherwise payable (or in the case of redemption, the redemption
date), a holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of or interest, including
any Additional Payments, on the Securities having a principal amount equal to
the aggregate liquidation amount of the Preferred Securities of such holder on
or after the due date specified in the Securities. In connection with such a
direct proceeding, the Company will remain obligated to pay the principal and
interest on the Securities and will be subrogated to the rights of such holders
of Preferred Securities under the Declaration to the extent of any payment made
by the Company to such holder of Preferred Securities in such a direct
proceeding.
ARTICLE SIX
The Trustee
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
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expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default hereunder as
and to the extent provided by the Trust Indenture Act; PROVIDED, HOWEVER, that
in the case of any default of the character specified in Section 501(4), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
that is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) shall, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders
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pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to reasonable examination of the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with the prior
written consent of the Company and with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture, unless it shall be proven that the Trustee was negligent in
ascertaining the pertinent facts.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of the Securities or the proceeds thereof.
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SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar, or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or willful
misconduct; and
(3) to indemnify the Trustee, its agents and counsel and any
predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
SECTION 608. DISQUALIFICATION; CONFLICTING INTEREST.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall; either eliminate such
interest or resign, to the
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extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in aggregate principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the
Trustee within 30 days after the giving of such notice of removal, the
retiring Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee, or (ii) subject
to Section 514, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by the
Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the
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rights, powers, trusts and duties of the retiring Trustee; PROVIDED, that on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder. Upon request of any
such successor Trustee, the Company shall execute any and all instruments
required to more fully and certainly vest in and confirm to such successor
Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not later than February 15 and August 15 in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of a date not more than 15 days prior
to the delivery thereof, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION: COMMUNICATIONS TO
HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
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SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year, commencing May 15, 1998,
the Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust
Indenture Act in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; PROVIDED, that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge with or into any other
Person or, directly or indirectly, convey, transfer or lease all or
substantially all of its properties and assets on a consolidated basis to any
Person, unless:
45
(1) in case the Company shall consolidate with or merge with or into
another Person or convey, transfer or lease all or substantially all of its
properties and assets on a consolidated basis to any Person, the Person
formed by such consolidation or into which the Company is merged or the
Person that acquires by conveyance, transfer or lease, all or substantially
all of the properties and assets of the Company on a consolidated basis
shall be a corporation organized and validly existing under the laws of the
United States of America, any state thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee,
the due and punctual payment of the principal of, premium, if any, and
interest (including Additional Payments), if any, on all the Securities
outstanding under this Indenture and the performance or observance of the
Company's obligations under this Indenture and the Securities outstanding
hereunder on the part of the Company to be performed or observed and shall
have provided for conversion rights in accordance with Article Thirteen;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event of Default, and
no event that, after notice or lapse of time or both, would become an Event
of Default, shall have happened and be continuing;
(3) such consolidation or merger or conveyance, transfer or lease of
assets of the Company is permitted under, and does not give rise to any
breach or violation of, the Declaration or the Preferred Securities
Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture, comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of all or
substantially all the properties and assets of
46
the Company on a consolidated basis in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the Events of Default or the covenants of the Company
for the benefit of the Holders, or to surrender any right or power herein
conferred upon the Company; or
(3) to make provision with respect to the conversion rights of Holders
pursuant to the requirements of Article Thirteen; or
(4) to cure any ambiguity, to correct or supplement any provision
herein that may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture; PROVIDED, that such action pursuant to this clause (4) shall not
adversely affect the interests of the Holders of the Securities or, so long
as any of the Preferred Securities shall remain outstanding, the holders of
the Preferred Securities; or
47
(5) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act; or
(6) to make provision for transfer procedures, certification,
book-entry provisions, the form of restricted securities legends, if any,
to be placed on Securities, and all other matters required pursuant to
Section 305(b) or otherwise necessary, desirable or appropriate in
connection with the issuance of Securities to holders of Preferred
Securities in the event of a distribution of Securities by the Trust if a
Special Event occurs and is continuing; or
(7) to comply with the requirements of the New York Stock Exchange or
such other national securities exchange or automated quotation system, if
any, on which the Securities are then listed.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or premium, if
any, or (except as permitted by Section 312) any installment of interest
(including any Additional Payments) on, any Security, or reduce the
principal amount thereof, or reduce the rate or (except as permitted by
Section 312) extend the time for payment of interest thereon, or reduce any
premium payable upon the redemption thereof, or change the place of payment
where, or the coin or currency in which, any Security or interest thereon
is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date), or adversely affect the
right to convert any Security as provided in Article Thirteen,
(2) reduce the percentage in aggregate principal amount of the
Outstanding Securities, the consent of whose Holders is required for any
such modification or amendment
48
or the consent of whose holders is required for any waiver under this
Indenture or reduce the requirements for a quorum or voting at a meeting of
Holders of the Securities,
(3) modify any of the provisions of Article 12 hereof or the
definition of Senior Indebtedness in a manner adverse to the Holders of the
Securities, or
(4) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
PROVIDED, that so long as any of the Preferred Securities remains outstanding,
no waiver of any Event of Default shall be effective, without the prior consent
of the holders of at least 662/3% of the aggregate liquidation amount of the
outstanding Preferred Securities.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; PROVIDED, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Trustee's
49
own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. No such supplemental indenture shall directly or
indirectly modify the provisions of Article Twelve in any manner that might
terminate or impair the rights of the Senior Indebtedness pursuant to such
subordination provisions.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
The Company will duly and punctually pay the principal of, premium, if
any, and interest (including any Additional Payments) on the Securities when due
in accordance with the terms of the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the United States an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration
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of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
United States for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon
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the written request of the Trustee, forthwith pay to the Trustee all sums held
in trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of any such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the
material terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1005. LIMITATION ON DIVIDENDS; COVENANTS AS TO THE
TRUST.
(a) The Company covenants that, so long as any Securities are
outstanding, if (x) there shall have occurred and be continuing an Event of
Default or event that, with the giving of notice or the lapse of time or both,
would constitute an Event of Default or (y) the Company shall be in default with
respect to its payment of any obligations under the Preferred Securities
Guarantee, then (a) the Company shall not declare or pay dividends on, make any
distribution with respect to, or redeem,
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purchase, acquire or make a liquidation payment with respect to any of its
capital stock (other than (i) purchases or acquisitions of Fleetwood Common
Stock in connection with the satisfaction by the Company of its obligations
under any existing employee benefit plans or future employee benefit plans
established in the ordinary course or the satisfaction by the Company of its
obligations pursuant to any existing contract or security requiring the Company
to purchase Fleetwood Common Stock, (ii) as a result of a reclassification of
the Company's capital stock or the exchange or conversion of one class or series
of the Company's capital stock for another class or series of the Company's
capital stock, or (iii) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged (or make any guarantee payments with respect to the
foregoing)) and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company that rank pari passu with or junior to the
Securities; PROVIDED, FURTHER, that the Company may declare and pay a stock
dividend where the dividend stock is the same stock as that on which the
dividend is paid.
(b) The Company also covenants and agrees that, for so long as the
Trust Securities remain outstanding, the Company shall (i) directly or
indirectly maintain 100% ownership of the Common Securities of the Trust;
PROVIDED, HOWEVER, that any permitted successor of the Company hereunder may
succeed to the Company's ownership of such Common Securities, (ii) not cause, as
sponsor of the Trust, or permit, as the holder of the Common Securities, the
termination, dissolution or winding up of the Trust, except in connection with a
distribution of Securities, as provided in the Declaration and in connection
with certain mergers, consolidations or amalgamations as permitted by the
Declaration, and (iii) use its reasonable efforts, consistent with the terms and
provisions of the Declaration, to cause the Trust to (x) remain a statutory
business trust, except in connection with the distribution of the Securities to
the holders of Trust Securities in liquidation of the Trust, the redemption of
all of the Trust Securities of the Trust, or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration, and (y) otherwise continue
to be classified as a grantor trust for United States federal income tax
purposes.
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SECTION 1006. PAYMENT OF EXPENSES OF THE TRUST.
In connection with the offering, sale and issuance of the Securities
to the Property Trustee in connection with the sale of the Trust Securities by
the Trust, the Company shall:
(a) pay for all fees and expenses relating to the offering, sale and
issuance of the Securities and the Preferred Securities, including commissions
to the Initial Purchaser payable pursuant to the Purchase Agreement and
compensation of the Trustee in accordance with the provisions of Section 607;
(b) be responsible for and pay for all debts and obligations (other
than with respect to the Trust Securities) of the Trust, pay for all fees and
expenses of the Trust (including, but not limited to, fees and expenses relating
to the organization of the Trust, the offering, sale and issuance of the Trust
Securities, the fees and expenses of the Property Trustee and the Delaware
Trustee, the fees and expenses relating to the operation of the Trust, including
without limitation, fees and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and fees
and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets); and
(c) pay for all fees and expenses related to the retention of the
Property Trustee;
(d) pay for all fees and expenses related to the enforcement by the
Property Trustee of the rights of the holders of the Preferred Securities; and
(e) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
SECTION 1007. REGISTRATION RIGHTS.
The holders of the Preferred Securities, the Preferred Securities
Guarantee, the Securities and the Fleetwood Common Stock issuable upon
conversion thereof (collectively, the "Registrable Securities") are entitled to
the benefits of a Registration Rights Agreement, dated as of February 10, 1998,
among the Trust, the Company and the Initial Purchaser (the "Registration Rights
Agreement"). Pursuant to the Registration Rights Agreement, the Trust and the
Company have agreed for the
54
benefit of the holders from time to time of the Registrable Securities that they
will, at the Company's expense, (i) within 90 days after the date of original
issuance of the Preferred Securities, file a shelf registration statement (the
"Shelf Registration Statement") with the Commission with respect to resales of
the Registrable Securities, (ii) use their best efforts to cause the Shelf
Registration Statement to be declared effective by the Commission under the
Securities Act within 150 days of the date of original issuance of the Preferred
Securities, and (iii) use their best efforts to maintain such Shelf Registration
Statement continuously effective under the Securities Act until the date two
years after the date of original issuance of the Preferred Securities or such
earlier date as all Registrable Securities shall have been disposed of or on
which all Registrable Securities held by persons that are not affiliates of the
Company or the Trust may be resold without registration pursuant to Rule 144(k)
under the Securities Act (the "Effectiveness Period").
If (i) on or prior to 90 days following the date of original issuance
of the Preferred Securities, the Shelf Registration Statement has not been filed
with the Commission, (ii) on or prior to the date 150 days following the date of
original issuance of the Preferred Securities, the Shelf Registration Statement
is not declared effective by the Commission, or (iii) after the Shelf
Registration Statement has been declared effective, it ceases to be effective or
usable (subject to certain exceptions specified in the Registration Rights
Agreement) in connection with resales of the Registrable Securities in
accordance with and during the periods specified in the Registration Rights
Agreement (each, a "Registration Default"), additional interest ("Liquidated
Damages") will accrue on the Securities from and including the day following
such Registration Default to but excluding the day on which such Registration
Default has been cured. Liquidated Damages will be paid quarterly in arrears,
with the first quarterly payment due on the first interest payment date in
respect of the Securities following the date on which such Liquidated Damages
begin to accrue, and will accrue at a rate per annum equal to an additional
one-half of one percent (0.50%) of the principal amount of the Securities.
SECTION 1008. LIMITATION OF TRANSACTIONS.
If the Company shall exercise its right to defer payment of interest
as provided in Section 312, then during the Extension Period, (a) the Company
shall not declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect to,
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any of its capital stock (other than (A)(i) purchases or acquisitions of shares
of the Company's capital stock (or capital stock equivalents) in connection with
the satisfaction by the Company of its obligations under any officers, directors
or employee benefit plans existing on the date of hereof or future officers,
direct or employee benefit plans established in the ordinary course (or any
options or other instruments issued thereunder) or the satisfaction by the
Company of its obligations pursuant to any contract or security requiring the
Company to purchase shares of the Company's capital stock (or capital stock
equivalents), (ii) purchases of shares of the Company's capital stock (or
capital stock equivalents) from officers, directors or employees of the Company
or its subsidiaries pursuant to employment agreements or upon termination of
employment or retirement, (iii) as a result of a reclassification, combination
or subdivision of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock, (iv) dividends or distributions of shares of
common stock on common stock, (v) the purchase of fractional interests in shares
of the Company's capital stock pursuant to the conversion or exchange provisions
of such capital stock or any security being converted or exchanged into such
capital stock, (vi) dividends or distributions in shares of its capital stock of
the same class on which such dividend or distribution is being made and
conversions or exchanges of common stock of one class into common shares of
another class, (vii) purchases or other acquisitions of common stock in
connection with a dividend reinvestment or other similar plan, or (viii) any
dividend or distribution of capital stock (or capital stock equivalents) in
connection with the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, or (B) guarantee payments made
with respect to any of the foregoing), (b) the Company shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by the Company that rank PARI PASSU with or
junior to the Securities and (c) the Company shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Common
Securities Guarantee or the Preferred Securities Guarantee).
SECTION 1009. LISTING OF SECURITIES
If the Securities are distributed to the holders of the Preferred
Securities, the Company will use its best efforts to have the Securities listed
on the New York Stock Exchange or on such other national securities exchange or
similar organization, if any.
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ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. RIGHT OF REDEMPTION.
(a) The Securities may be redeemed at the election of the Company, as
a whole or in part, at any time or from time to time on or after February 15,
2001, at the Redemption Prices set forth in Section 1109 below.
(b) The Securities may be redeemed as provided in Section 1110 of this
Article Eleven as a whole but not in part at the election of the Company at any
time within 90 days following the occurrence of a Tax Event; PROVIDED, HOWEVER,
that, subject to Section 1110 of this Article Eleven, if, at the time there is
available to the Company or the Trust the opportunity to eliminate, within such
90-day period, the Tax Event by taking some ministerial action, including but
not limited to filing a form or making an election, or pursuing some other
similar reasonable measure, which, in the sole judgment of the Company, has or
will cause no adverse effect on the Trust, the Company or the Holders of the
Trust Securities and involves or will involve no material cost, then the Company
or the Trust shall pursue such measure in lieu of redemption.
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company, as permitted
by Section 1101, shall be made in accordance with such provision and this
Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem Securities pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days and no more than 90
days prior to the Redemption Date fixed by the Company, notify the Trustee of
such Redemption Date and of the principal amount of Securities to be redeemed
and provide a copy of the notice of redemption given to Holders of Securities to
be redeemed pursuant to Section 1104.
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from
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the Outstanding Securities not previously called for redemption, on a pro rata
basis, in portions equal to $50 (or any integral multiple thereof) of the
principal amount of the Securities.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities that has been or is to be
redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at such Holder's address
appearing in the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including the CUSIP number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(4) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(5) a description of all material conversion features.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at
58
the Company's request, by the Trustee in the name and at the expense of the
Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest (including Additional
Payments, if any) on, all the Securities that are to be redeemed on that date.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
(including Additional Payments, if any) to the Redemption Date; PROVIDED,
HOWEVER, that installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to the terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Security.
SECTION 1108. SECURITIES REDEEMED IN PART.
In the event of any redemption in part, the Company shall not be
required to (i) issue, register the transfer of or exchange any Security during
a period beginning at the opening of business 15 days before any selection for
redemption of Securities and ending at the close of business on the earliest
date on which the relevant notice of redemption is deemed to have been given to
all holders of Securities to be so redeemed and (ii) register the transfer of or
exchange any Securities so selected for redemption, in whole or in part, except
for the unredeemed portion of any Securities being redeemed in part.
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Any Security that is to be redeemed only in part shall be surrendered
at a place of payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
SECTION 1109. OPTIONAL REDEMPTION.
(a) Except as provided in Section 1110, the Securities shall not be
subject to redemption at the option of the Company prior to February 15, 2001.
(b) Subject to the provisions of this Article Eleven, the Company
shall have the right to redeem the Securities, in whole or in part, from time to
time, on or after February 15, 2001, upon not less than 30 nor more than 60 days
notice to the Holders of the Securities, at the following prices (expressed as
percentages of the principal amount of the Securities), together (except as
provided below) with accrued and unpaid interest, including, to the extent
permitted by applicable law, Additional Payments, if any, to, but excluding, the
Redemption Date, if redeemed during the 12-month period beginning February 15:
Year Redemption Price
---- ----------------
2001 . . . . . . . . . . . . . . . . . . 103.75%
2002 . . . . . . . . . . . . . . . . . . 103.00%
2003 . . . . . . . . . . . . . . . . . . 102.25%
2004 . . . . . . . . . . . . . . . . . . 101.50%
2005 . . . . . . . . . . . . . . . . . . 100.75%
and 100% if redeemed on or after February 15, 2006. Notwithstanding the
foregoing provisions of this Section 1109(b), if the Company shall redeem any
Securities pursuant to Section 1110 hereof on or after February 15, 2001, then
the Redemption Price of such Securities shall be the Redemption Price set forth
in Section 1110 and not the Redemption Price set forth in this Section 1109(b).
Without limitation to the proviso to the first paragraph of Section
1107 hereof, if Securities are redeemed on any date in the period beginning on
any record date and ending on
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the next February 15, May 15, August 15 or November 15, accrued and unpaid
interest that is due and payable on such Interest Payment Date shall be payable
to the Holders of record at the close of business on the relevant Regular Record
Date.
So long as any Trust Securities are outstanding, the proceeds from the
redemption of the Securities will be used to redeem Trust Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Securities so redeemed.
The Redemption Price for the Securities to be redeemed shall be paid
on the Redemption Date or at such earlier time as the Company determines;
provided that the Company shall deposit with the Trustee an amount sufficient to
pay the Redemption Price on the date such Redemption Price is to be paid.
SECTION 1110. TAX EVENT REDEMPTION.
If a Tax Event has occurred and is continuing and:
(a) the Regular Trustees have received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the Regular Trustees
shall have been informed by tax counsel rendering the Dissolution Tax Opinion
that a No Recognition Opinion cannot be delivered to the Trust, then the Company
shall have the right, upon not less than 30 days nor more than 60 days notice to
the Holders of the Securities, to redeem the Securities, in whole or in part for
cash, at a redemption price equal to 100% of the principal amount thereof plus
accrued and unpaid interest thereon (including, to the extent permitted by
applicable law, Additional Payments, if any) to but excluding the date of such
redemption, within 90 days following the occurrence of such Tax Event (the
"90-Day Period"); PROVIDED, HOWEVER, that if at the time there is available to
the Company or the Trust the opportunity to eliminate, within such 90-Day
Period, the Tax Event by taking some ministerial action, such as filing a form
or making an election, or pursuing some other similar reasonable measure that in
the sole judgment of the Company has or will cause no adverse effect on the
Company, the Trust or the holders of the Trust Securities and will involve no
material costs, the Company or the Trust will pursue such ministerial action in
lieu of redemption.
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SECTION 1111. CERTAIN LIMITATIONS ON REDEMPTION.
(a) If a partial redemption of the Securities would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
listed, the Company shall not be permitted to effect such partial redemption and
may only redeem the Securities in whole.
(b) The Company may not redeem any Securities unless all accrued and
unpaid interest thereon (including, to the extent permitted by law, Additional
Payments, if any) has been or is contemporaneously paid (or duly provided for)
for all quarterly interest payment periods terminating on or prior to the date
of notice of redemption.
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. AGREEMENT TO SUBORDINATE.
The Company covenants and agrees, and each Holder of Securities by
such Holder's acceptance thereof likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this Article Twelve; and
each Holder of a Security, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such provisions. The
payment by the Company of the principal of, premium, if any, and interest
(including any Additional Payments) on all Securities issued hereunder shall, to
the extent and in the manner hereinafter set forth, be subordinated and junior
in right of payment to the prior payment in full of all Senior Indebtedness,
whether outstanding at the date of this Indenture or thereafter incurred;
PROVIDED, HOWEVER, that no provision of this Article Twelve shall prevent the
occurrence of any default or Event of Default hereunder.
SECTION 1202. DEFAULT ON SENIOR INDEBTEDNESS.
No payment of principal (including redemption payments) of, or
premium, if any, or interest (including any Additional Interest or Compound
Interest) on the Securities may be made if there shall have occurred and be
continuing (i) a default in the payment when due of principal of, premium, if
any, sinking funds, if any, or interest, if any, on any Senior Indebtedness of
the Company and any applicable grace period with respect to such default shall
have ended without such default having been cured or waived or ceasing to exist
or (ii) an event of default with respect to any Senior Indebtedness of the
Company resulting in
62
the acceleration of the maturity thereof without such acceleration having been
rescinded or annulled.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 1202, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days of such payment
of the amounts then due and owing on the Senior Indebtedness and only the
amounts specified in such notice to the Trustee shall be paid to the holders of
Senior Indebtedness.
SECTION 1203. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution winding up, liquidation or reorganization of the
Company, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other proceedings, all amounts (including principal, premium, if
any, and interest) due or to become due upon all Senior Indebtedness shall first
be paid in full, or payment thereof provided for in money in accordance with its
terms, before any payment is made on account of the principal (and premium, if
any) or interest (including any Additional Payments) on the Securities; and upon
any such dissolution winding up, liquidation or reorganization, any payment by
the Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee would be entitled, except for the provisions of this Article
Twelve, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness (pro rata
to such holders on the basis of the respective amounts of Senior Indebtedness
held by such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay such
Senior Indebtedness in full, in money or money's worth, after giving effect to
any concurrent payment or distribution to
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or for the holders of such Senior Indebtedness, before any payment or
distribution is made to the Holders of Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Securities before all Senior Indebtedness is paid
in full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior Indebtedness or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay such Senior Indebtedness in full
in money in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article Twelve, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article Twelve with
respect to the Securities to the payment of all Senior Indebtedness that may at
the time be outstanding; PROVIDED, that (i) such Senior Indebtedness is assumed
by the new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of such Senior Indebtedness are
not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company with or into, another Person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of all or substantially all
its properties and assets on a consolidated basis to another Person upon the
terms and conditions provided for in Article Eight hereof shall not be deemed a
dissolution, winding up, liquidation or reorganization for the purposes of this
Section 1203 if such other Person shall, as a part of such consolidation,
merger, conveyance, transfer or lease, comply with the conditions stated in
Article Eight hereof. Nothing in Section 1202 or in this Section 1203 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section 607
hereof.
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SECTION 1204. SUBROGATION.
Subject to the payment in full of all Senior Indebtedness, the rights
of the Holders of the Securities shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company, as the case may be, applicable to
such Senior Indebtedness until the principal of (and premium, if any) and
interest (including any Additional Payments) on the Securities shall be paid in
full; and, for the purposes of such subrogation, no payments or distributions to
the holders of such Senior Indebtedness of any cash, property or securities to
which the Holders of the Securities or the Trustee would be entitled except for
the provisions of this Article Twelve, and no payment over pursuant to the
provisions of this Article Twelve, to or for the benefit of the holders of such
Senior Indebtedness by Holders of the Securities or the Trustee, shall, as
between the Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Securities, be deemed to be a payment by the Company to
or on account of such Senior Indebtedness. It is understood that the provisions
of this Article Twelve are and are intended solely for the purposes of defining
the relative rights of the Holders of the Securities, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest (including any Additional Payments) on the
Securities as and when the same shall become due and payable in accordance with
their terms (except as permitted by Section 312), or is intended to or shall
affect the relative rights of the Holders of the Securities and creditors of the
Company, as the case may be, other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Twelve of the holders of such Senior Indebtedness in respect of cash, property
or securities of the Company, as the case may be, received upon the exercise of
any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article Twelve, the Trustee, subject to the provisions of Section 603,
and the Holders of the Securities shall be entitled to rely upon any order or
decree
65
made by any court of competent jurisdiction in which such dissolution, winding
up, liquidation or reorganization proceedings are pending, or a certificate of
the receiver, trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of the Securities, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Twelve.
SECTION 1205. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of Securities, by such Holder's acceptance thereof,
authorizes and directs the Trustee, on such Holder's behalf, to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article Twelve and appoints the Trustee as such Holder's attorney-in-fact
for any and all such purposes.
SECTION 1206. NOTICE BY THE COMPANY.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of moneys to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article Twelve. Notwithstanding the
provisions of this Article Twelve or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of moneys to or by the Trustee in
respect of the Securities pursuant to the provision of this Article Twelve,
unless and until a Responsible Officer of the Trustee shall have received
written notice thereof at the Corporate Trust Office of the Trustee from the
Company or a holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 603 hereof, shall be entitled in all
respects to assume that no such facts exist; PROVIDED, HOWEVER, that if the
Trustee shall not have received the notice provided for in this Section 1206 at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (and premium, if any) or interest (including any
Additional Payments) on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they were
received, and shall not
66
be affected by any notice to the contrary that may be received by it within two
Business Days prior to such date.
The Trustee, subject to the provisions of Section 603, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of such Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Twelve, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
right of such Person under this Article Twelve, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 1207. RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Twelve in respect of any Senior Indebtedness at
any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are set forth in this Article Twelve, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of such Senior Indebtedness and,
subject to the provisions of Section 603, the Trustee shall not be liable to any
holder of such Senior Indebtedness if it shall pay over or deliver to Holders of
Securities, the Company or any other Person money or assets to which any holder
of such Senior Indebtedness shall be entitled by virtue of this Article Twelve
or otherwise. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article Twelve and no implied covenants or
obligations with respect to holders of Senior
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Indebtedness shall be read into this Indenture against the Trustee.
SECTION 1208. SUBORDINATION MAY NOT BE IMPAIRED.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the holders of the Securities
and without impairing or releasing the subordination provided in this Article
Twelve or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, such Senior Indebtedness, or otherwise amend or supplement in any
manner such Senior Indebtedness or any instrument evidencing the same or any
agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
ARTICLE THIRTEEN
Conversion of Securities
SECTION 1301. CONVERSION RIGHTS.
Subject to and upon compliance with the provisions of this Article
Thirteen, the Securities are convertible, at the option of the Holders, at any
time prior to the close of business on February 15, 2028 (or in the case of
Securities called for redemption, prior to the close of business on the Business
Day prior to the corresponding Redemption Date), into shares of Fleetwood Common
Stock at an initial conversion price of $48.72 per share of Fleetwood Common
Stock, subject to adjustment as described in this Article Thirteen (the
"Conversion Price"). A
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Holder of Securities may convert any portion of the principal amount of the
Securities (provided that such principal amount is $50 or an integral multiple
thereof) into that number of fully paid and nonassessable shares of Fleetwood
Common Stock obtained by dividing the principal amount of the Convertible
Debentures to be converted by the Conversion Price in effect at the close of
business on the Conversion Date. All calculations under this Article Thirteen
shall be made to the nearest cent or to the nearest 1/100th of a share, as the
case may be, with one-half of a cent and 0.005 of a share being rounded upwards
to the nearest cent and 1/100th of a share, respectively.
SECTION 1302. CONVERSION PROCEDURES.
(a) In order to convert all or a portion of the Securities (provided
that such principal amount is $50 or an integral multiple thereof) the Holder
thereof shall deliver to the Conversion Agent an irrevocable notice of
conversion in substantially the form appearing as part of Exhibit A-1 or A-2
hereto or, in the case of a notice of conversion delivered by a holder of Trust
Securities, in substantially the form appearing in Exhibit A-1 or A-2, as the
case may be, of the Declaration (each, a "Notice of Conversion") setting forth
the principal amount of Securities to be converted, together with the name or
names, if other than the Holder, in which the shares of Fleetwood Common Stock
should be issued upon conversion and, if such Securities are definitive
Securities, surrender to the Conversion Agent the Securities to be converted,
duly endorsed or assigned to the Company or in blank. In addition, a holder of
Trust Securities may exercise its right under the Declaration to convert such
Trust Securities into Fleetwood Common Stock by delivering to the Conversion
Agent an irrevocable Notice of Conversion setting forth the number of Trust
Securities to be redeemed and the other information called for by the preceding
sentence and directing the Conversion Agent (i) to exchange such Trust
Securities for a portion of the Securities held by the Trust (at an exchange
rate of $50 principal amount of Securities for each Trust Security) and (ii) to
convert such Securities as soon as practicable, on behalf of such holder, into
Fleetwood Common Stock pursuant to this Article Thirteen and, if such Trust
Securities are in definitive form, surrendering to the Conversion Agent such
Trust Securities, duly endorsed or assigned to the Company or in blank. So long
as any Trust Securities are outstanding, the Trust shall not convert any
Securities except pursuant to a Notice of Conversion delivered to the Conversion
Agent by a holder of Trust Securities.
(b) If a Security is surrendered for conversion after the close of
business on any record date for payment of interest thereon and before the
opening of business on the corresponding
69
payment date (other than a Security or portion of a Security called for
redemption on a Redemption Date occurring after such record date and prior to
such payment date), then, notwithstanding such conversion, the interest payable
on such payment date will be paid to the Trust which will distribute such
interest to the holder of the applicable Trust Securities at the close of
business on the record date or to such other Person in whose name such Security
is registered at the close of business on such record date, as the case may be,
despite such conversion, and (other than a Security or a portion of a Security
called for redemption on a Redemption Date occurring after such record date and
on or prior to such payment date) when so surrendered for conversion, the
Security need not be accompanied by payment of an amount in cash equal to the
interest payable on such payment date. Except as otherwise provided in the
immediately preceding sentence, in the case of any Security that is converted,
interest that would otherwise be due and payable after the date of conversion of
such Security shall not be payable, and the Company shall not make nor be
required to make any other payment, adjustment or allowance with respect to
accrued but unpaid interest on the Securities being converted, which shall be
deemed to be paid in full. Each conversion shall be deemed to have been
effected immediately prior to the close of business on the day (the "Conversion
Date") on which the Notice of Conversion (together with, if required by the
preceding paragraph, certificates, duly endorsed or assigned to the Company or
in blank, evidencing the Trust Securities or Securities, as the case may be,
being surrendered for conversion) was received by the Conversion Agent from (x)
a holder of the Trust Securities effecting a conversion thereof pursuant to its
conversion rights under the Declaration or (y) if the Securities shall have been
distributed to holders of Trust Securities following the occurrence of a Special
Event, when received by the Conversion Agent from the Holder effecting the
conversion thereof pursuant to its conversion rights under the Indenture, as the
case may be. The Person or Persons entitled to receive the Fleetwood Common
Stock issuable upon such conversion shall be treated for all purposes as the
record holder or holders of such Fleetwood Common Stock as of the Conversion
Date. As promptly as practicable on or after the Conversion Date, the Company
shall issue and deliver at the office of the Conversion Agent, unless otherwise
directed in the Notice of Conversion, a certificate or certificates for the
number of full shares of Fleetwood Common Stock issuable upon such conversion,
together with the cash payment, if any, in lieu of any fraction of any share to
the Person or Persons entitled to receive the same. The Conversion Agent shall
deliver such certificate or certificates to such Person or Persons.
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(c) The Company's delivery upon conversion of the fixed number of
shares of Fleetwood Common Stock into which the Securities are convertible
(together with the cash payment, if any, in lieu of fractional shares) shall be
deemed to satisfy the Company's obligation to pay the principal amount at
maturity of the Securities so converted and any unpaid interest (including
Additional Interest) accrued on such Securities at the time of such conversion;
PROVIDED, that if any Security is surrendered for conversion after the close of
business on a record date for payment of interest and before the opening of
business on the corresponding interest payment date, the interest payable on
such interest payment date with respect to such Security shall be paid to the
Trust (which will distribute such interest to the holder of the applicable Trust
Securities at the close of business on such record date) or to such other person
in whose name the Securities are registered at the close of business on such
record date, as the case may be, despite such conversion. The Company will make
no payment or allowance for distributions on the shares of Fleetwood Common
Stock issued upon such conversion, except to the extent that such shares of
Fleetwood Common Stock are held of record on the record date for any such
distributions. Each conversion will be deemed to have been effected immediately
prior to the close of business on the day on which the related conversion notice
was received by the Conversion Agent.
(d) No fractional shares of Fleetwood Common Stock will be issued as
a result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of
the Closing Price of such fractional interest on the applicable Conversion Date,
or, if such day is not a Trading Day, on the preceding Trading Day, and the
Conversion Agent in turn will make such payment, if any, to the Holder of the
Securities or the holder of the Trust Securities, as the case may be, so
converted.
(e) In the event of the conversion of any Security in part only, a
new Security or Securities for the unconverted portion thereof will be issued in
the name of the Holder thereof upon the cancellation thereof.
(f) In effecting the conversion transactions described in this
Section 1302, the Conversion Agent is acting as agent of the holders of Trust
Securities (in the exchange of Trust Securities for Securities) and as agent of
the Holders of Securities (in the conversion of Securities into Fleetwood Common
Stock), as the case may be. The Conversion Agent is hereby authorized (i) to
exchange Securities held by the Trust from time to time for Trust Securities in
connection with the conversion of such Trust Securities in accordance with this
Article Thirteen and (ii) to convert all or a portion of the Securities into
71
Fleetwood Common Stock and thereupon to deliver such shares of Fleetwood Common
Stock in accordance with the provisions of this Article Thirteen and to deliver
to the Person entitled thereto a new Security or Securities for any resulting
unconverted principal amount.
SECTION 1303. CONVERSION PRICE ADJUSTMENTS.
(a) The Conversion Price shall be adjusted from time to time as
follows:
(i) In case the Company shall pay or make a dividend or other
distribution on Fleetwood Common Stock in shares of Fleetwood Common Stock,
then the Conversion Price in effect at the opening of business on the day
following the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution shall be reduced by multiplying
such Conversion Price by a fraction the numerator of which shall be the
number of shares of Fleetwood Common Stock outstanding at the close of
business on the date fixed for such determination and the denominator of
which shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such reduction to
become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
subparagraph (i), the number of shares of Fleetwood Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company (except to the extent such dividend or distribution is being made
with respect to such shares) but shall include shares issuable in respect
of scrip certificates issued in lieu of fractions of shares of Fleetwood
Common Stock. In the event that an adjustment is made pursuant to this
subparagraph (i) and, thereafter, the relevant distribution or dividend is
not made, the Conversion Price shall again be adjusted to be the Conversion
Price that would then be in effect if no such adjustment had been made.
(ii) In case the outstanding shares of Fleetwood Common Stock
shall be subdivided or reclassified (in a reclassification that does not
constitute a Fundamental Change) into a greater number of shares of
Fleetwood Common Stock, then the Conversion Price in effect at the opening
of business on the day following the day upon which such subdivision
becomes effective shall be proportionately reduced, and, conversely, in
case the outstanding shares of Fleetwood Common Stock shall be combined
into a smaller amount of shares of Fleetwood Common Stock, then the
Conversion Price in effect at the opening of
72
business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase,
as the case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or
combination becomes effective.
(iii) In case the Company shall issue rights or warrants to all
holders of Fleetwood Common Stock entitling them (for a period expiring
within 45 days after the record date fixed for a distribution of such
rights or warrants) to subscribe for or purchase shares of Fleetwood Common
Stock at a price per share less than the Current Market Price (as
hereinafter defined) per share (determined as provided in subparagraph
(vii) below) of Fleetwood Common Stock on the date fixed for the
determination of shareholders entitled to receive such rights or warrants
(other than pursuant to a dividend reinvestment or similar plan), then the
Conversion Price in effect at the opening of business on the day following
the date fixed for such determination shall be reduced by multiplying such
Conversion Price by a fraction the numerator of which shall be the number
of shares of Fleetwood Common Stock outstanding at the close of business on
the date fixed for such determination plus the number of shares of
Fleetwood Common Stock which the aggregate of the offering price of the
total number of shares of Fleetwood Common Stock so offered for
subscription or purchase would purchase at such Current Market Price and
the denominator shall be the number of shares of Fleetwood Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Fleetwood Common Stock so
offered for subscription or purchase, such reduction to become effective
immediately after the opening of business on the day following the date
fixed for such determination. For the purposes of this subparagraph (iii),
the number of shares of Fleetwood Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall
include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Fleetwood Common Stock. The Company agrees not to
issue any rights or warrants in respect of shares of Fleetwood Common Stock
held in the treasury of the Company. To the extent that shares of
Fleetwood Common Stock are not delivered after the expiration or redemption
by the Company of such rights or warrants, the Conversion Price shall be
readjusted to the Conversion Price which would then be in effect had the
adjustments made in respect of the issuance of such rights or warrants been
made on the basis of delivery of
73
only the number of shares of Fleetwood Common Stock actually delivered.
(iv) Subject to the second sentence of this subparagraph (iv),
in case the Company shall, by dividend or otherwise, distribute to all
holders of Fleetwood Common Stock (A) shares of capital stock of the
Company (other than Fleetwood Common Stock), (B) evidences of indebtedness
of the Company and/or (C) other assets (including securities, but excluding
(1) any rights or warrants referred to in subparagraph (iii) above, (2) any
rights or warrants to acquire capital stock of any Person other than the
Company or any subsidiary of the Company, (3) any dividends or
distributions in connection with the liquidation, dissolution or winding-up
of the Company, (4) any dividends or distributions payable solely in cash
that may from time to time be fixed by the Board of Directors, and (5) any
dividends or distributions referred to in subparagraph (i) or (ii) above,
then in each case (unless the Company makes the election referred to in the
next sentence) the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the effectiveness of the Conversion Price
adjustment contemplated by this subparagraph (iv) by a fraction the
numerator of which shall be the Current Market Price per share (determined
as provided in subparagraph (vii) below) of the Fleetwood Common Stock on
the date fixed for payment of such distribution (the "Reference Date"),
less the fair market value on the Reference Date (as determined in good
faith by the Board of Directors, whose determination shall be conclusive
and shall be described in a statement filed with the Trustee) of the
portion of the shares of capital stock of the Company, evidences of
indebtedness or other assets so distributed (and for which an adjustment to
the Conversion Price has not been made previously pursuant to the terms of
this Article Thirteen) applicable to one share of Fleetwood Common Stock
and the denominator shall be such Current Market Price per share of the
Fleetwood Common Stock, such adjustment to become effective immediately
prior to the opening of business on the day following the Reference Date.
However, the Company may elect, in its sole discretion, in lieu of the
foregoing adjustment, to make adequate provision so that each Holder of
Securities shall have the right to receive upon conversion thereof the
amount and kind of shares of capital stock, evidences of indebtedness or
other assets such Holder would have received had such Holder converted such
shares immediately prior to the Reference Date. In the event that no such
dividend or distribution is so paid or made, the Conversion Price shall
again be
74
adjusted to be the Conversion Price that would then be in effect if such
dividend or distribution had not occurred. If the Board of Directors
determines the fair market value of any distribution for purposes of this
subparagraph (iv) by reference to the actual or when issued trading market
for any securities (including shares of capital stock or evidence of
indebtedness of the Company) comprising such distribution, it must in doing
so consider the price in such market over the period used in computing the
Current Market Price of the Fleetwood Common Stock or, if shorter, the
portion of such period during which a trading market for such securities
existed. For purposes of this subparagraph (iv), any dividend or
distribution that includes both (x) any of the items described in clauses
(A), (B) or (C) of the first sentence of this subparagraph (iv) and (y)
Fleetwood Common Stock or rights or warrants to subscribe for or purchase
Fleetwood Common Stock of the type referred to in subparagraph (iii) shall
be deemed to be (1) a dividend or distribution of shares of capital stock
of the Company (other than Fleetwood Common Stock), evidences of
indebtedness of the Company or other assets of the type referred to in
clause (C) of the first sentence of this subparagraph (iv) (making any
Conversion Price reduction required by this subparagraph (iv)) immediately
followed by (2) a dividend or distribution of such Fleetwood Common Stock
or rights or warrants to purchase Fleetwood Common Stock of the type
referred to in subparagraph (iii) (making any further Conversion Price
reduction required by subparagraph (i) or (iii) of this Section 1303(a)),
except (A) the Reference Date of such dividend or distribution as defined
in this subparagraph (iv) shall be substituted for "the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution", "the date fixed for the determination of shareholders
entitled to receive such rights or warrants" and "the date fixed for such
determination" within the meaning of subparagraphs (i) and (iii) of this
Section 1303(a) and (B) any shares of Fleetwood Common Stock included in
such dividend or distribution shall not be deemed "outstanding at the close
of business on the date fixed for such determination" within the meaning of
subparagraph (i) of this Section 1303(a).
(v) In case the Company shall, by dividend or otherwise, at
any time distribute cash to all holders of Fleetwood Common Stock,
excluding (A) any cash dividends on Fleetwood Common Stock to the extent
that the aggregate cash dividends per share of Fleetwood Common Stock in
any consecutive 12-month period do not exceed the greater of (x) the amount
per share of Fleetwood Common Stock of the cash
75
dividends paid on the Fleetwood Common Stock in the immediately preceding
12-month period, to the extent that such dividends for the immediately
preceding 12-month period did not require an adjustment to the Conversion
Price pursuant to this subparagraph (v) (as adjusted to reflect
subdivisions or combinations of the Fleetwood Common Stock) and (y) 15% of
the average of the Current Market Price per share of Fleetwood Common Stock
for the ten consecutive Trading Days immediately prior to the date of
declaration of such dividend and (B) any dividend or distribution in
connection with the liquidation, dissolution or winding-up of the Company,
whether voluntary or involuntary, or any redemption of Rights (as defined
in subparagraph (viii) below); PROVIDED, HOWEVER, that no adjustment shall
be made pursuant to this subparagraph (v) if such distribution would
otherwise constitute a Fundamental Change (as hereinafter defined)) in
which case (unless the Company makes the election referred to in the
proviso following this clause), the Conversion Price shall be reduced so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the effectiveness of the
Conversion Price reduction contemplated by this subparagraph (v) by a
fraction the numerator of which shall be the Closing Price of a share of
Fleetwood Common Stock on the date fixed for the payment of such
distribution less the amount of cash so distributed (to the extent not
excluded as provided above) applicable to one share of Fleetwood Common
Stock, and the denominator shall be such Closing Price of a share of
Fleetwood Common Stock, such reduction to become effective immediately
prior to the opening of business on the day following the date fixed for
the payment of such distribution; PROVIDED, HOWEVER, that the Company may
elect, in its sole discretion, in lieu of the foregoing adjustment, to make
adequate provision so that each Holder of Securities shall thereafter have
the right to receive upon conversion the amount of cash such Holder would
have received had such Holder converted such Securities immediately prior
to the record date for such distribution of cash. If any adjustment is
required to be made as set forth in this subparagraph (v) as a result of a
distribution that is a dividend described in clause (A) of this
subparagraph (v), such adjustment will be based upon the amount by which
such distribution exceeds the amount of the dividend permitted to be
excluded pursuant to such clause (A) of this subparagraph (v). If an
adjustment is required to be made pursuant to this subparagraph (v) as a
result of a distribution that is not such a dividend, such adjustment would
be based upon the full amount of such distribution. In the event that an
adjustment is made pursuant to this subparagraph (v) and, thereafter, the
relevant distribution or dividend is not
76
made, the Conversion Price shall again be adjusted to be the Conversion
Price that would then be in effect if no such adjustment had been made.
(vi) In case of the consummation of a public tender offer or
public exchange offer (other than an odd lot tender offer) made by the
Company or any subsidiary of the Company for Fleetwood Common Stock to the
extent that the cash and fair market value (as determined in good faith by
the Board of Directors, whose determination shall be conclusive and shall
be described in a resolution of such Board) of any other consideration
included in such payment per share of Fleetwood Common Stock at the last
time (the "Expiration Time") tenders or exchanges may be made pursuant to
such tender or exchange offer (as amended if applicable) exceed by more
than 10% (with any smaller excess being disregarded in computing the
adjustment to the Conversion Price provided in this subparagraph (vi)) the
first reported sale price (on the principal national securities exchange or
quotation system on which the Fleetwood Common Stock is then traded) per
share of Fleetwood Common Stock on the Trading Day next succeeding the
Expiration Time, then the Conversion Price shall be reduced so that the
same shall equal the price determined by multiplying the Conversion Price
in effect immediately prior to the Expiration Time by a fraction the
numerator of which shall be the number of shares of Fleetwood Common Stock
outstanding (including any tendered or exchanged shares) at the Expiration
Time multiplied by the first reported sale price (on such principal
exchange or quotation system) of the Fleetwood Common Stock on the Trading
Day next succeeding the Expiration Time and the denominator shall be the
sum of (x) the fair market value (determined as aforesaid and subject to
the last sentence of this paragraph) of the aggregate consideration payable
to shareholders based on the acceptance (up to any maximum specified in the
terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of shares of Fleetwood Common
Stock outstanding (less any Purchased Shares) at the Expiration Time and
the first reported sale price (on such principal exchange or quotation
system) of the Fleetwood Common Stock on the Trading Day next succeeding
the Expiration Time, such reduction to become effective immediately prior
to the opening of business on the day following the Expiration Time. If an
adjustment is required to be made as set forth in this subparagraph (vi),
the fair market value of the aggregate consideration payable to
shareholders referred to
77
in clause (x) of the preceding sentence shall be calculated by including
only that portion of such fair market value of such consideration per share
of Fleetwood Common Stock which exceeds 110% of the first reported sale
price (determined as aforesaid) per share of Fleetwood Common Stock on the
Trading Day next succeeding the Expiration Time.
(vii) For the purpose of any computation under this Article
Thirteen, the "Current Market Price per share" of Fleetwood Common Stock on
any day shall be deemed to be the average of the daily Closing Prices (as
hereinafter defined) per share of Fleetwood Common Stock for the ten
consecutive Trading Days ending on the earlier of the day in question and,
if applicable, the day before the "ex" date (as defined below) with respect
to the issuance or distribution requiring such computation; PROVIDED,
HOWEVER, that if more than one event occurs that would require an
adjustment pursuant to subparagraphs (i) through (vi), inclusive, of this
Section 1303(a), the Board of Directors may make such adjustments to the
Closing Prices during such ten Trading Day period as it deems appropriate
to effectuate the intent of the adjustments in this Section 1303, in which
case any such determination by the Board of Directors shall be set forth in
a Board Resolution and shall be conclusive. For purposes of this
paragraph, the term "ex" date, (1) when used with respect to any issuance
or distribution, means the first date on which the Fleetwood Common Stock
trades regular way on the New York Stock Exchange or on such successor
principal securities exchange as the Fleetwood Common Stock may be listed
or in the relevant market from which the Closing Prices were obtained
without the right to receive such issuance or distribution, and (2) when
used with respect to any tender or exchange offer, means the first date on
which the Fleetwood Common Stock trades regular way on such principal
securities exchange or in such market after the Expiration Time of such
offer.
(viii) No adjustment in the Conversion Price shall be required
pursuant to this Section 1303(a) unless the adjustment would require a
change of at least 1% in the Conversion Price then in effect; PROVIDED,
HOWEVER, that any adjustment that by reason of this subparagraph (viii) is
not required to be made shall be carried forward and taken into account in
any subsequent adjustment. In addition, anything herein to the contrary
notwithstanding, no adjustment to the Conversion Price will be required in
connection with the issuance of rights or other similar instruments
("Rights") pursuant to a shareholder rights plan or similar plan or the
repurchase or redemption of those rights or the issuance of common stock,
options or other securities under any officer,
78
director or employee benefit plan in existence on February 4, 1998. Except
as otherwise expressly provided in subparagraph (iv) above, if any action
pursuant to this Section 1303 would require adjustment of the Conversion
Price pursuant to more than one of the provisions described above, only one
adjustment shall be made and such adjustment shall be the amount of the
adjustment that has the highest absolute value to the Holders of the
Securities. All calculations shall be made to the nearest cent (with 1/2
of a cent being rounded upward) or to the nearest 1/100th of a share (with
.005 of a share being rounded upward), as the case may be. Notwithstanding
anything to the contrary in this Article Thirteen, the Company from time to
time may, to the extent permitted by law, reduce the Conversion Price by
any amount for any period of at least 20 Business Days, in which case the
Company shall give at least 15 days' notice of such reduction to the
holders of Securities and the Trustee. In particular, the Company may, at
its option, make such reductions in the Conversion Price in addition to
those set forth in this Article Thirteen, as it considers to be advisable
in order to avoid or diminish any income tax to any holder of shares of
Fleetwood Common Stock resulting from any dividend or distribution of stock
or issuance of rights or warrants to purchase or subscribe for stock or
from any event treated as such for income tax purposes or for any other
reasons. Except as otherwise provided in this Section 1303(a), the
Conversion Price will not be adjusted for the issuance of Fleetwood Common
Stock or any securities convertible into or exchangeable for Fleetwood
Common Stock or carrying the right to purchase any of the foregoing.
(ix) In any case in which this Article Thirteen provides that
an adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (A) issuing
to the holder of any Securities converted after such record date and before
the occurrence of such event the additional shares of Fleetwood Common
Stock or other securities, cash or property issuable upon such conversion
by reason of the adjustment required by such event over and above the
Fleetwood Common Stock issuable upon such conversion before giving effect
to such adjustment and (B) paying to such holder any amount in cash in lieu
of any fractional shares pursuant to this Article Thirteen.
(x) For purposes of this Indenture, "Fleetwood Common Stock"
includes any stock of any class of the Company that has no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and
79
which is not subject to redemption by the Company. However, subject to the
provisions of this Article Thirteen, shares issuable on conversion of
Securities shall include only shares of the class designated as the common
stock of the Company on the date of this Indenture or shares of any class
or classes resulting from any reclassification or reclassifications thereof
and that have no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution or
winding-up of the Company and that are not subject to redemption by the
Company; PROVIDED, HOWEVER, that if at any time there shall be more than
one such resulting class, the shares of each such class then so issuable
shall be substantially in the proportion that the total number of shares of
such class resulting from all such reclassifications bears to the total
number of shares of all such classes resulting from all such
reclassifications.
(b) Whenever the Conversion Price is adjusted as herein provided:
(i) the Company shall compute the adjusted Conversion Price
and shall prepare a certificate signed by the Chief Financial Officer or
the Treasurer of the Company setting forth the adjusted Conversion Price
and showing in reasonable detail the facts upon which such adjustment is
based, and such certificate shall forthwith be filed with the Trustee and,
if different, the transfer agent for the Preferred Securities and the
Securities; and
(ii) a notice stating the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall as soon as
practicable be mailed by the Company to all record holders of Preferred
Securities and the Securities at their last addresses as they appear upon
the stock transfer books of the Company and the Trust.
SECTION 1304. ADJUSTMENT OF CONVERSION PRICE -- FUNDAMENTAL CHANGE.
(a) In the event that the Company shall be a party to any
transaction or series of transactions constituting a Fundamental Change (as
hereinafter defined) (including, without limitation, (i) any recapitalization or
reclassification of Fleetwood Common Stock (other than a change in par value or
a change from par value to no par value or from no par value to par value, or as
a result of a subdivision or combination of the Fleetwood Common Stock); (ii)
any consolidation or merger of the Company with or into another corporation as a
result of which holders of Fleetwood Common Stock shall be entitled to receive
80
securities or other property or assets (including cash) with respect to or in
exchange for Fleetwood Common Stock (other than a merger that does not result in
a reclassification, conversion, exchange or cancellation of the outstanding
Fleetwood Common Stock); (iii) any sale or transfer of all or substantially all
of the assets of the Company; or (iv) any compulsory share exchange) pursuant to
which holders of Fleetwood Common Stock shall be entitled to receive other
securities, cash or other property, then appropriate provision shall be made so
that the holder of each Security then outstanding shall have the right
thereafter to convert such Security only into (A) if any such transaction does
not constitute a Common Stock Fundamental Change (as hereinafter defined), the
kind and amount of the securities, cash or other property that would have been
receivable upon such recapitalization, reclassification, consolidation, merger,
sale, transfer or share exchange by a holder of the number of shares of
Fleetwood Common Stock issuable upon such conversion of such Security
immediately prior to such recapitalization, reclassification, consolidation,
merger, sale, transfer or share exchange, after, in the case of a Non-Stock
Fundamental Change, giving effect to any adjustment in the Conversion Price in
accordance with subparagraph (i) of Section 1304(c), and (B) if any such
transaction constitutes a Common Stock Fundamental Change (as hereinafter
defined), shares of common stock of the kind received by holders of Fleetwood
Common Stock as a result of such Common Stock Fundamental Change in an amount
determined in accordance with subparagraph (ii) of Section 1304(c). The company
formed by such consolidation or resulting from such merger or which acquires
such assets or which acquires the Fleetwood Common Stock, as the case may be,
shall enter into a supplemental indenture with the Trustee, reasonably
satisfactory in form to the Trustee and executed and delivered to the Trustee,
the provisions of which shall establish such right. Such supplemental indenture
shall provide for adjustments that, for events subsequent to the effective date
of such supplemental indenture, shall be as nearly equivalent as practicable to
the relevant adjustments provided for in this Article Thirteen. The above
provisions shall similarly apply to successive recapitalizations,
reclassifications, consolidations, mergers, sales, transfers or share exchanges.
(b) Notwithstanding any other provisions in this Article Thirteen to
the contrary, if any Fundamental Change (as hereinafter defined) occurs, then
the Conversion Price in effect will be adjusted immediately after such
Fundamental Change as described below in Section 1304(c). In addition, in the
event of a Common Stock Fundamental Change, each Security shall be convertible
solely into common stock of the kind received by holders of Fleetwood Common
Stock as the result of such Common
81
Stock Fundamental Change as more specifically provided below in Section 1304(c).
(c) For purposes of calculating any adjustment to be made pursuant
to this Article Thirteen in the event of a Fundamental Change, immediately
following such Fundamental Change (and for such purposes a Fundamental Change
shall be deemed to occur on the earlier of (a) the occurrence of such
Fundamental Change and (b) the date, if any, fixed for determination of
shareholders entitled to receive the cash, securities, property or other assets
distributable in such Fundamental Change to holders of the Fleetwood Common
Stock):
(i) in the case of a Non-Stock Fundamental Change, the
Conversion Price per share of Fleetwood Common Stock immediately following
such Non-Stock Fundamental Change shall be the lower of (A) the Conversion
Price in effect immediately prior to such Non-Stock Fundamental Change, but
after giving effect to any other adjustments effected pursuant to this
Article Thirteen, and (B) the product obtained by multiplying the greater
of the Applicable Price (as hereinafter defined) or the then applicable
Reference Market Price (as hereinafter defined) by a fraction of which the
numerator shall be 100.0 and the denominator of which shall be the amount
set forth below based on the date on which such Non-Stock Fundamental
Change occurs. For the twelve month period beginning February 10, 1998 and
ending on February 14, 1999, the denominator shall be 106.0, and for each
succeeding twelve month period beginning February 15 shall be as follows:
Year Denominator
---- -----------
1999 . . . . . . . . . . . . . . . . 105.25
2000 . . . . . . . . . . . . . . . . 104.50
2001 . . . . . . . . . . . . . . . . 103.75
2002 . . . . . . . . . . . . . . . . 103.00
2003 . . . . . . . . . . . . . . . . 102.25
2004 . . . . . . . . . . . . . . . . 101.50
2005 . . . . . . . . . . . . . . . . 100.75
2006 and thereafter . . . . . . . . 100.00
(ii) in the case of a Common Stock Fundamental Change, the
Conversion Price per share of Fleetwood Common Stock immediately following
the Common Stock Fundamental Change shall be the Conversion Price in effect
immediately prior to such Common Stock Fundamental Change, but after giving
effect to any other adjustments effected pursuant to this
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Article Thirteen, multiplied by a fraction, the numerator of which is the
Purchaser Stock Price (as hereinafter defined) and the denominator of which
is the Applicable Price; PROVIDED, HOWEVER, that in the event of a Common
Stock Fundamental Change in which (A) 100% of the value of the
consideration received by a holder of Fleetwood Common Stock is common
stock of the successor, acquiror or other third party (and cash, if any,
paid with respect to any fractional interests in such common stock
resulting from such Common Stock Fundamental Change) and (B) all of the
Fleetwood Common Stock shall have been exchanged for, converted into, or
acquired for common stock (and cash, if any, with respect to fractional
interests) of the successor, acquiror or other third party, the Conversion
Price per share of Fleetwood Common Stock immediately following such Common
Stock Fundamental Change shall be the Conversion Price in effect
immediately prior to such Common Stock Fundamental Change divided by the
number of shares of common stock of the successor, acquiror, or other third
party received by a holder of one share of Fleetwood Common Stock as a
result of such Common Stock Fundamental Change.
(d) The following definitions shall apply to terms used in this
Article Thirteen:
"Applicable Price" means (A) in the event of a
Non-Stock Fundamental Change in which the holders of Fleetwood Common Stock
receive only cash, the amount of cash receivable by a holder of one share
of Fleetwood Common Stock; and (B) in the event of any other Fundamental
Change, the average of the Closing Prices (as hereinafter defined) for one
share of Fleetwood Common Stock during the ten Trading Days immediately
prior to the record date for the determination of the holders of Fleetwood
Common Stock entitled to receive cash, securities, property or other assets
in connection with such Fundamental Change or, if there is no such record
date, prior to the date upon which the holders of Fleetwood Common Stock
shall have the right to receive such cash, securities, property or other
assets.
"Closing Price" with respect to any securities on any day
shall mean the last reported sale price, regular way, on such day or, in
case no such sale takes place on such day, the average of the last reported
closing bid and asked prices on such day, regular way, in each case on the
New York Stock Exchange or, if such security is not listed or admitted to
trading on the New York Stock Exchange, on the principal national
securities exchange or quotation system on which such security is quoted or
listed or admitted to trading or, if not quoted or
83
listed or admitted to trading on any national securities exchange or
quotation system, the average of the closing bid and asked prices of such
security in the over-the-counter market on the date in question as reported
by the National Quotation Bureau Incorporated, or a similarly generally
accepted reporting service or, if not so available in such manner, as
furnished by any New York Stock Exchange member firm selected from time to
time by the Board of Directors for that purpose or a price determined in
good faith by the Board of Directors.
"Common Stock Fundamental Change" means any Fundamental
Change in which more than 50% of the value (as determined in good faith by
the Board of Directors) of the consideration received by the holders of
Fleetwood Common Stock pursuant to such transactions consists of shares of
common stock that, for the ten consecutive Trading Days immediately prior
to such Fundamental Change, has been admitted for listing or admitted for
listing subject to notice of issuance on a national securities exchange or
quoted on the Nasdaq National Market; PROVIDED, HOWEVER, that a Fundamental
Change shall not be a Common Stock Fundamental Change unless either (A) the
Company continues to exist after the occurrence of such Fundamental Change
and the outstanding Preferred Securities continue to exist as outstanding
Preferred Securities (or, if the Securities have been distributed to
holders of Trust Securities following a Dissolution Event, the outstanding
Securities continue to exist as outstanding Securities), or (B) the
outstanding Preferred Securities continue to exist as Preferred Securities
and are convertible into shares of common stock of the successor to the
Company (or, if the Securities have been distributed as aforesaid, the
outstanding Securities continue to exist as Securities and are convertible
into shares of common stock of the successor to the Company).
"Fundamental Change" means the occurrence of any transaction
or event or series of transactions or events pursuant to which all or
substantially all of the Fleetwood Common Stock shall be exchanged for,
converted into, acquired for or constitutes solely the right to receive
cash, securities, property or other assets (whether by means of an exchange
offer, liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise); PROVIDED, HOWEVER, in the
case of any such series of transactions or events for purposes of
adjustment of the Conversion Price, such Fundamental Change shall be deemed
to have occurred when substantially all of the Fleetwood Common Stock had
been exchanged for, converted into, or acquired for or
84
constitutes solely the right to receive cash, securities, property or other
assets, but the adjustment shall be based upon the consideration the
holders of Fleetwood Common Stock received in such transaction or event as
a result of which more than 50% of the Fleetwood Common Stock shall have
been exchanged for, converted into, or acquired for, or shall constitute
solely the right to receive cash, securities, property or other assets.
"Non-Stock Fundamental Change" means any Fundamental Change
other than a Common Stock Fundamental Change.
"Purchaser Stock Price" means, with respect to any Common
Stock Fundamental Change, the average of the Closing Prices for one share
of the common stock received by holders of Fleetwood Common Stock in such
Common Stock Fundamental Change during the ten Trading Days immediately
prior to the record date for the determination of the holders of Fleetwood
Common Stock entitled to receive such shares of common stock or, if there
is no such record date, prior to the date upon which the holders of
Fleetwood Common Stock shall have the right to receive such shares of
common stock.
"Reference Market Price" shall initially mean $26.625 and,
in the event of any adjustment to the Conversion Price other than as a
result of a Fundamental Change, the Reference Market Price shall also be
adjusted so that the ratio of the Reference Market Price to the Conversion
Price after giving effect to any such adjustment shall always be the same
as the ratio of the initial Reference Market Price of $26.625 to the
initial Conversion Price of $4872.
(e) In determining the amount and type of consideration received by a
holder of Fleetwood Common Stock in the event of a Fundamental Change,
consideration received by a holder of Fleetwood Common Stock pursuant to a
statutory right of appraisal will be disregarded.
SECTION 1305. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
In case:
(i) the Company shall declare a dividend (or any other
distribution) on Fleetwood Common Stock that would cause an adjustment to
the Conversion Price of the Securities pursuant to Section 1303 (including
such an
85
adjustment that would occur but for the terms of the first sentence of
Section 1303(a)(viii) above); or
(ii) the outstanding shares of Fleetwood Common Stock
shall be subdivided into a greater number of shares of Fleetwood Common
Stock or combined into a smaller number of shares of Fleetwood Common
Stock; or
(iii) the Company shall authorize the granting to the
holders of Fleetwood Common Stock generally of rights or warrants (for a
period expiring within 45 days after the record date fixed for a
distribution of such rights and warrants) to subscribe for or purchase any
shares of the Company's capital stock or other capital stock of any class
or of any other rights (excluding any Rights); or
(iv) of any reclassification of Fleetwood Common Stock
(other than a subdivision or combination of the outstanding shares of
Fleetwood Common Stock), or of any consolidation, merger or share exchange
to which the Company is a party and for which approval of any shareholders
of the Company is required, or of the sale or transfer of all or
substantially all of the assets of the Company or a compulsory share
exchange; or
(v) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
then the Company shall (a) if any Preferred Securities are outstanding, cause to
be filed with the transfer agent for the Preferred Securities and, except in a
case described in paragraph (i) above, cause to be mailed to the holders of
record of the Preferred Securities, at their last addresses as they shall appear
upon the stock transfer books of the Trust, or (b) if the Securities shall have
been distributed to holders of the Trust Securities in accordance with the terms
of the Declaration following a Dissolution Event, cause to be mailed to all
Holders at their last addresses as they shall appear in the Security Register,
at least 15 days prior to the applicable record or effective date hereinafter
specified, a notice stating (I) the date on which a record (if any) is to be
taken for the purpose of such dividend, distribution, rights or warrants or, if
a record is not to be taken, the date as of which the holders of Fleetwood
Common Stock of record to be entitled to such dividend, distribution, rights or
warrants are to be determined or (II) the date on which such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding-up is expected to become effective, and the date as of which it is
expected that holders of Fleetwood Common Stock of record shall be entitled to
exchange their shares of Fleetwood Common Stock
86
for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding-up (but no failure to mail such notice or any defect therein or in
the mailing thereof shall affect the validity of the corporate action required
to be specified in such notice).
SECTION 1306. COMPANY TO PROVIDE STOCK.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares to provide for the conversion
of the Securities from time to time as such Securities are presented for
conversion, provided, that nothing contained herein shall be construed to
preclude the Company from satisfying its obligations in respect of the
conversion of Securities by delivery of repurchased shares of Fleetwood Common
Stock that are held in the treasury of the Company.
If any shares of Fleetwood Common Stock to be reserved for the purpose
of conversion of Securities hereunder require registration with or approval of
any governmental authority under any federal or state law before such shares may
be validly issued or delivered upon conversion, then the Company covenants that
it will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be, provided, however, that nothing in
this Section 1306 shall be deemed to affect in any way the obligations of the
Company to convert Securities into Fleetwood Common Stock as provided in this
Article Thirteen.
Before taking any action that would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Fleetwood Common
Stock, the Company will take all corporate action that may, in the Opinion of
Counsel, be necessary in order that the Company may validly and legally issue
fully paid and nonassessable shares of Fleetwood Common Stock at such adjusted
Conversion Price.
The Company covenants that all shares of Fleetwood Common Stock that
may be issued upon conversion of Securities will upon issue be fully paid and
nonassessable by the Company and free of preemptive rights.
SECTION 1307. EMPLOYEE BENEFIT PLANS.
Notwithstanding the provisions of this Article Thirteen, the issuance
of any shares of Fleetwood Common Stock or options or other securities pursuant
to any option, warrant, right or exercisable, exchangeable or convertible
security
87
outstanding as of the date of this Indenture or pursuant to any present or
future officer, director or employee benefit plan or program of the Company
shall not give rise to an adjustment in the Conversion Price pursuant to this
Article Thirteen. There shall also be no adjustment of the Conversion Price (i)
in case of the issuance of any stock (or securities convertible into or
exchangeable for stock) of the Company except as specifically described in this
Article Thirteen, (ii) as the result of the issuance of Fleetwood Common Stock
upon conversion of the Trust Securities or the Securities or (iii) as the result
of the issuance or redemption of Rights.
SECTION 1308. CERTAIN ADDITIONAL RIGHTS.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on the Fleetwood Common Stock referred to in Section 1303(a)(iv)
and (v) (including, without limitation, dividends or distributions referred to
in the last sentence of Section 1303(a)(iv)), the Holder of the Securities, upon
the conversion thereof subsequent to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution and
prior to the effectiveness of the Conversion Price adjustment in respect of such
distribution, shall also be entitled to receive for each share of Fleetwood
Common Stock into which the Convertible Debentures are converted, the portion of
the shares of Fleetwood Common Stock, rights, warrants, evidences of
indebtedness, shares of capital stock, cash and assets so distributed applicable
to one share of Fleetwood Common Stock; PROVIDED, HOWEVER, that, at the election
of the Company (whose election shall be evidenced by a resolution of the Board
of Directors) with respect to all Holders so converting, the Company may, in
lieu of distributing to such Holders any portion of such distribution not
consisting of cash or securities of the Company, pay such Holders an amount in
cash equal to the fair market value thereof (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors). If any conversion of Securities
described in the immediately preceding sentence occurs prior to the payment date
for a distribution to holders of Fleetwood Common Stock that the Holder of
Securities so converted is entitled to receive in accordance with the
immediately preceding sentence, the Company may elect (such election to be
evidenced by a resolution of the Board of Directors) to distribute to such
Holder a due bill for the shares of Fleetwood Common Stock, rights, warrants,
evidences of indebtedness, shares of capital stock, cash or assets to which such
Holder is so entitled, provided, that such due bill (a) meets any applicable
requirements of the principal national securities exchange or other principal
securities market on which
88
the Fleetwood Common Stock is then traded and (b) requires payment or delivery
of such shares of Fleetwood Common Stock, rights, warrants, evidences of
indebtedness, shares of capital stock, cash or assets no later than the date of
payment or delivery thereof to holders of shares of Fleetwood Common Stock
receiving such distribution.
SECTION 1309. RESTRICTIONS ON COMMON STOCK ISSUABLE UPON CONVERSION.
(a) Shares of Fleetwood Common Stock to be issued upon conversion of
a Security in respect of Restricted Preferred Securities (as defined in the
Declaration) shall bear a restrictive legend to the following effect:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER
OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE CONVERTIBLE
SUBORDINATED DEBENTURES UPON THE CONVERSION OF WHICH THE COMMON STOCK
EVIDENCED HEREBY WAS ISSUED AND THE LAST DATE ON WHICH FLEETWOOD
ENTERPRISES, INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
"RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
COMMON STOCK EVIDENCED HEREBY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
89
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR", FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRANSFER AGENT'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER
AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
(b) If shares of Fleetwood Common Stock to be issued upon conversion
of a Security in respect of Restricted Preferred Securities are to be registered
in a name other than that of the Holder of such Restricted Preferred Security,
then the Person in whose name such shares of Fleetwood Common Stock are to be
registered must deliver to the Conversion Agent a certificate satisfactory to
the Company and signed by such Person, as to compliance with the restrictions on
transfer applicable to such Restricted Preferred Security. Neither the Trustee
nor any Conversion Agent or Registrar shall be required to register in a name
other than that of such Holder shares of Fleetwood Common Stock issued upon
conversion of any such Security in respect of such Preferred Securities not so
accompanied by a properly completed certificate.
SECTION 1310. TRUSTEE NOT RESPONSIBLE FOR DETERMINING CONVERSION PRICE OR
ADJUSTMENTS.
Neither the Trustee nor any Conversion Agent shall at any time be
under any duty or responsibility to any Holder of any Security to determine
whether any facts exist that may require any adjustment of the conversion price,
or with respect to the nature or extent of any such adjustment when made, or
with respect to the method employed herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any
Conversion Agent shall be accountable with respect to the validity or value (or
the kind of account) of any shares of Fleetwood Common Stock or of any
securities or property, which may at any time be issued or delivered upon the
conversion of any Security; and neither the Trustee nor any Conversion Agent
makes any representation with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible
90
for any failure of the Company to make any cash payment or to issue, transfer or
deliver any shares of Fleetwood Common Stock or stock certificates or other
securities or property upon the surrender of any Security for the purpose of
conversion, or, except as expressly herein provided, to comply with any of the
covenants of the Company contained in Article Ten or this Article Thirteen.
ARTICLE FOURTEEN
Section 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of the Securities may be called at any time and from
time to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act provided by this
Indenture to be made, given or taken by Holders of the Securities.
Section 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(1) The Trustee may at any time call a meeting of Holders of Securities
for any purpose specified in Section 1401, to be held at such time and at such
place in the Borough of Manhattan, The City of New York as the Trustee shall
determine. Notice of every meeting of Holders of Securities, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner provided in Section 106,
not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board Resolution)
or the Holders of at least 10% in principal amount of the Outstanding Securities
shall have requested the Trustee to call a meeting of the Holders of Securities
for any purpose specified in Section 1401, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed notice of or made the first publication of the
notice of such meeting within 21 days after receipt of such request (whichever
shall be required pursuant to Section 106) or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the Holders
of Securities in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York and may
call such meeting for such purposes by giving notice thereof as provided in
clause (1) of this Section.
91
Section 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities, a Person
shall be (1) a Holder of one or more Outstanding Securities, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of
Securities shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities shall constitute a quorum for a meeting of Holders of
Securities; PROVIDED, HOWEVER, that if any action is to be taken at such
meeting with respect to a consent or waiver which this Indenture expressly
provides may be given by the Holders of at least 66-2/3% in principal amount of
the Outstanding Securities, the Persons entitled to vote 66-2/3% in principal
amount of the Outstanding Securities shall constitute a quorum. In the absence
of a quorum within 30 minutes after the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1402(1), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities which shall constitute a
quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities; PROVIDED, HOWEVER,
that, except as limited by the proviso to Section 902, any resolution with
respect to any consent or waiver which this Indenture expressly provides may be
given by the Holders of at least 66-2/3% in principal amount of the Outstanding
Securities
92
may be adopted at a meeting or an adjourned meeting duly convened and at which a
quorum is present as aforesaid only by the affirmative vote of the Holders of at
least 66-2/3% in principal amount of the Outstanding Securities; and PROVIDED,
FURTHER, that, except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities, whether or not such Holders were present or represented
at the meeting.
Section 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(1) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities in regard to proof of the holding of Securities and of the
appointment of proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in
the manner specified in Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104. Such regulations may provide
that written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104 or other
proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1402(2), in which
case the Company or the Holders of Securities calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Securities
represented at the meeting.
93
(3) At any meeting, each Holder of a Security or proxy shall be entitled
to one vote for each $1,000 principal amount of Securities held or represented
by him; PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. A Holder of a Security in a
principal amount of less than $1,000 shall be entitled to a fraction of one vote
which is equal to the fraction that the principal amount of such Security bears
to $1,000. The chairman of the meeting shall have no right to vote, except as a
Holder of a Security or proxy.
(4) Any meeting of Holders of Securities duly called pursuant to Section
1402 at which a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in principal amount of the Outstanding Securities
represented at the meeting; and the meeting may be held as so adjourned without
further notice.
Section 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the meeting.
A record, at least in triplicate, of the proceedings of each meeting of Holders
of Securities shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on
any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
94
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
FLEETWOOD ENTERPRISES, INC.
By: /s/ Nelson W. Potter
------------------------------------
Name: Nelson W. Potter
Title: President
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By: /s/ Mary Beth Lewicki
------------------------------------
Name: Mary Beth Lewicki
Title: Assistant Vice President
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
FLEETWOOD ENTERPRISES, INC.
By: /s/ Nelson W. Potter
------------------------------------
Name: Nelson W. Potter
Title: President
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By: /s/ Mary Beth Lewicki
------------------------------------
Name: Mary Beth Lewicki
Title: Assistant Vice President
EXHIBIT A-1
FORM OF SECURITY
[FORM OF FACE OF SECURITY]
THIS SECURITY AND ANY COMMON STOCK TO BE ISSUED ON CONVERSION HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH FLEETWOOD ENTERPRISES, INC. (THE "COMPANY")
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THE SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION DATE"), ONLY
(A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER
THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(l), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR", FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRANSFER AGENT'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR (F), TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
FLEETWOOD ENTERPRISES, INC.
6% Convertible Subordinated Debenture Due 2028
No.________ $_____
CUSIP No. _____
FLEETWOOD ENTERPRISES, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _______________, or registered
assigns, the principal sum [indicated on Schedule A hereof]* [of ___________
Dollars** ($ )] on February 15, 2028.
Interest Payment Dates: February 15, May 15, August 15 and November 15,
commencing May 15, 1998
Regular Record Dates: except as otherwise provided in the Indenture, the
date 15 days prior to each Interest Payment Date
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
- ---------------
* Applicable to Global Securities only.
** Applicable to certificated Securities only.
A-1-2
IN WITNESS WHEREOF, the Company has caused this instrument to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto or imprinted hereon.
FLEETWOOD ENTERPRISES, INC.
By:
-------------------------------------
Name:
Dated: ,
-------- ----
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
not in its individual
capacity but solely
as Trustee
By:
----------------------
Authorized Signatory
Dated: , 1998
-------------
A-1-3
[FORM OF REVERSE OF SECURITY]
FLEETWOOD ENTERPRISES, INC.
6% Convertible Subordinated Debenture Due 2028
(1) INTEREST. Fleetwood Enterprises, Inc., a Delaware corporation
(the "Company"), is the issuer of this 6% Convertible Subordinated Debenture Due
2028 (the "Security") limited in aggregate principal amount to $296,400,000
(including $38,900,000 pursuant to the exercise of the over-allotment option),
issued under the Indenture hereinafter referred to. The Company promises to pay
interest on the Securities in cash from February 10, 1998 or from the most
recent interest payment date to which interest has been paid or duly provided
for, quarterly (subject to deferral for up to 20 consecutive quarters as
described in Section 3 hereof) in arrears on February 15, May 15, August 15 and
November 15 of each year (each such date, an "Interest Payment Date"),
commencing May 15, 1998, at the rate of 6% per annum (subject to increase as
provided in Section 12 hereto) plus Additional Interest (as defined below) and
Liquidated Damages (as defined in the Indenture (as defined below)), if any,
until the principal hereof shall have become due and payable.
The amount of interest payable for any period will be computed on the
basis of twelve 30-day months and a 360-day year. To the extent lawful, the
Company shall pay interest on overdue installments of interest (without regard
to any applicable grace period) at the rate borne by the Securities, compounded
quarterly. Any interest paid on this Security shall be increased to the extent
necessary to pay Additional Interest as set forth in this Security.
(2) ADDITIONAL INTEREST. The Company shall pay to Fleetwood Capital
Trust (and its permitted successors or assigns under the Declaration) (the
"Trust") such additional amounts as may be necessary in order that the amount of
dividends or other distributions then due and payable by the Trust on the
Preferred Securities that at any time remain outstanding in accordance with the
terms thereof shall not be reduced as a result of any taxes, duties, assessments
or governmental charges of whatever nature (other than withholding taxes)
imposed by the United States or any other taxing authority ("Additional
Interest").
(3) EXTENSION OF INTEREST PAYMENT PERIOD. The Company shall have the
right, at any time during the term of this Security, from time to time to defer
payments of interest (including Compounded Interest (as defined below),
Additional Interest and Liquidated Damages (as defined below), if any) by
A-1-4
extending the interest payment period of such Security for up to 20 consecutive
quarters (each an "Extension Period"). To the extent permitted by applicable
law, interest, the payment of which has been deferred because of the extension
of the interest payment period pursuant to Section 312 of the Indenture, will
bear interest thereon at 6% compounded quarterly for each quarter of the
Extension Period ("Compounded Interest"); provided, that during an Extension
Period the Company, the Company shall be subject to the provisions of Section
1008 of the Indenture. At the end of the Extension Period, the Company shall
pay all interest then accrued and unpaid on the Securities, including any
Additional Payments, that shall be payable to the holders of the Securities in
whose names the Securities are registered in the Security Register ("Holders")
on the first Regular Record Date after the end of the Extension Period. Before
the termination of any Extension Period, the Company may further extend such
period, provided that such period together with all such further extensions
thereof shall not exceed 20 consecutive quarters or extend beyond the maturity
of the Securities or end other than on an Interest Payment Date. Upon the
termination of any Extension Period and upon the payment of all amounts then due
on the Securities, including any Additional Payments, the Company may commence a
new Extension Period, subject to the foregoing requirements. No interest shall
be due and payable during an Extension Period except at the end thereof.
The Company must give the Property Trustee, the Regular Trustees and the
Trustee notice of its election to begin an Extension Period at least one
Business Day Prior to the earliest of (i) the date the distribution on the
Preferred Securities would have been payable except for the election to begin
such Extension Period or (ii) if applicable, the date the Regular Trustees are
required to give notice to the New York Stock Exchange, the Nasdaq National
Market or other applicable self-regulatory organization or to holders of such
Preferred Securities of the record date or (iii) the date such distribution is
payable, but in any event not less than one Business Day prior to the record
date. The Trustee shall give notice of the Company's election to begin an
Extension Period to the holders of the Securities and the Regular Trustees shall
give notice of the Company's election to the holders of the Preferred
Securities.
The quarter in which any notice is given pursuant to the second paragraph
of this Section 3 shall be counted as one of the 20 quarters permitted in the
maximum Extension Period permitted under the first paragraph of this Section 3.
(4) METHOD OF PAYMENT. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in
A-1-5
whose name this Security (or one or more Predecessor Securities (as defined in
the Indenture)) is registered at the close of business on the Regular Record
Date for such interest installment, which, except as otherwise provided in the
Indenture, shall be the date 15 days prior to each Interest Payment Date
(whether or not a Business Day) (the "Regular Record Date"), commencing May 15,
1998. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
The principal of and interest on the Securities shall be payable at
the office or agency of the Company in the United States maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; PROVIDED,
HOWEVER, that payment of interest may be made at the option of the Company by
check mailed to the address of the holder entitled thereto or by wire transfer
to an account in the United States appropriately designated by the holder
entitled thereto prior to the record date for the corresponding interest payment
date. Notwithstanding the foregoing, so long as the holder of any Securities is
the Property Trustee, the payment of principal and interest on the Securities
held by the Property Trustee will be made by wire transfer at such place and to
such account in the United States as may be designated by the Property Trustee.
(5) PAYING AGENT AND SECURITY REGISTRAR. The Trustee will act as
Paying Agent, Security Registrar and Conversion Agent. The Company may change
any Paying Agent, Security Registrar, co-registrar or Conversion Agent without
prior notice. The Company or any of its Affiliates (as defined in the
Indenture) may act in any such capacity.
(6) INDENTURE. The Company issued the Securities under an indenture,
dated as of February 10, 1998 (the "Indenture"), between the Company and The
Bank of New York, not in its individual capacity but solely as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures
A-1-6
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Trustee,
the Company and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb)
("TIA") as in effect on the date of the Indenture. The Securities are subject
to, and qualified by, all such terms, certain of which are summarized herein,
and Holders are referred to the Indenture and the TIA for a more complete
statement of such terms. The Securities are unsecured general obligations of
the Company limited to $296,400,000 in aggregate principal amount (including
$38,900,000 pursuant to the exercise of the over-allotment option) and
subordinated in right of payment to all existing and future Senior Indebtedness
of the Company. No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security when due at the times, place and rate, and in the coin
or currency, herein prescribed or to convert this Security as provided in the
Indenture.
(7) OPTIONAL REDEMPTION. The Securities are redeemable, in whole or
in part, at the Company's option at any time and from time to time after
February 15, 2001, upon not less than 30 or more than 60 days' notice, at the
following Redemption Prices, expressed as a percentage of the principal amount
of the Securities, if redeemed during the 12-month period beginning February 15
of the applicable year set forth below:
Redemption
Year Price
---- ----------
2001 . . . . . . . . . . . . . . . . . . . . . . . . . 103.75%
2002 . . . . . . . . . . . . . . . . . . . . . . . . . 103.00%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . 102.25%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . 101.50%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . 100.75%
2006 and thereafter. . . . . . . . . . . . . . . . . . 100.00%
plus, in each case, accrued and unpaid interest, including Additional Payments,
if any, to the Redemption Date (subject to the right of Holders of record on the
relevant record date to receive interest due on the Interest Payment Date).
From and after the Redemption Date, interest will cease to accrue on the
Securities, or portion thereof, called for redemption.
A-1-7
(8) OPTIONAL REDEMPTION UPON TAX EVENT. The Securities are subject
to redemption in whole, but not in part, at the Company's option at any time
within 90 days, if a Tax Event (as defined in the Declaration) shall occur and
be continuing, at a redemption price equal to 100% of the principal amount
thereof plus accrued but unpaid interest thereon (including, to the extent
permitted by applicable law, Additional Payments, if any) to the Redemption
Date. Any redemption pursuant to this Section 8 will be made upon not less than
30 nor more than 60 days' notice.
(9) NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of the Securities to be redeemed at his address of record. In the event
of a redemption of less than all of the Securities, the Securities will be
chosen for redemption by the Trustee in accordance with the Indenture. On and
after the Redemption Date, interest ceases to accrue on the Securities or
portions thereof called for redemption.
If this Security is redeemed subsequent to a Regular Record Date with
respect to any Interest Payment Date specified above and on or prior to such
Interest Payment Date, then any accrued interest will be paid to the person in
whose name this Security is registered at the close of business on such record
date.
(10) MANDATORY REDEMPTION. The Securities will mature on February 15,
2028. There are no sinking fund payments with respect to the Securities.
(11) SUBORDINATION. The payment of the principal of, premium (if
any), interest on or any other amounts due on the Securities is subordinated and
junior in right of payment to all existing and future Senior Indebtedness (as
defined below) of the Company, as described in the Indenture. Each Holder, by
accepting a Security, agrees to such subordination and authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to effectuate the subordination so provided and appoints the Trustee as its
attorney-in-fact for such purpose.
In addition, no payment of principal (including redemption payments)
of, premium, if any, or interest (including any Additional Interest or
Compounded Interest) on the Securities may be made if there shall have occurred
and be continuing (i) a default in the payment when due of principal of,
premium, if any, sinking funds, if any, or interest, if any, on any Senior
Indebtedness of the Company and any applicable grace period with respect to such
default shall have ended without such default
A-1-8
having been cured or waived or ceasing to exist or (ii) an event of default with
respect to any Senior Indebtedness of the Company resulting in the acceleration
of the maturity thereof without such acceleration having been rescinded or
annulled.
"Senior Indebtedness" means (a) any liability of the Company (1) for
borrowed money or under any reimbursement obligation relating to a letter of
credit, surety bond or similar instrument, or (2) evidenced by a bond, note,
debenture or similar instrument, or (3) for obligations to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, or (4) for the payment of money relating to a
capitalized lease obligation, or (5) for the payment of money under any Swap
Agreement, (b) any liability of others described in the preceding clause (a)
that the Company has guaranteed or that is otherwise its legal liability; and
(c) any deferral, renewal, extension or refunding of any liability of the types
referred to in clauses (a) and (b) above, unless, in the instrument creating or
evidencing any such liability referred to in clause (a) or (b) above or any such
deferral, renewal, extension or refunding referred to in clause (c) above or
pursuant to which the same is outstanding, it is expressly provided that such
liability, deferral, renewal, extension or refunding is subordinate in right of
payment to all other indebtedness of the Company or is not senior or prior in
right of payment to the Securities or ranks PARI PASSU with or subordinate to
the Securities in right of payment; PROVIDED that the Securities shall not
constitute Senior Indebtedness; and PROVIDED, FURTHER, the Senior Indebtedness
shall not include any indebtedness or guarantees between or among the Company or
its affiliates, including all debt securities or guarantees in respect of those
debt securities issued to any trust (including the Trust), trustee of a trust
(including the Trust), partnership, limited liability company or other person
affiliated with the Company that is a financing vehicle of the Company
(a"Financing Entity") in connection with the issuance by such Financing Entity
of preferred securities unless otherwise expressly provided in the instrument
creating or evidencing such indebtedness, debt securities or guarantees, as the
case may be, or pursuant to which the same is outstanding.
(12) CONVERSION. Subject to and in compliance with the
provisions of the Indenture, the Holder of any Security has the right,
exercisable at any time prior to the close of business (New York time) on the
date of the Security's maturity (or, in the case of Securities called for
redemption, prior to the close of business on the Business Day prior to the
corresponding Redemption Date), to convert the principal amount thereof (or any
portion thereof that is an integral multiple of $50) into shares of Fleetwood
Common Stock at the initial
A-1-9
conversion price of $48.72 per share of Fleetwood Common Stock, subject to
adjustment under certain circumstances.
To convert a Security, a Holder must (1) complete and sign a conversion
notice substantially in the form attached hereto, (2) surrender the Security to
a Conversion Agent, (3) furnish appropriate endorsements or transfer documents
if required by the Security Registrar or Conversion Agent and (4) pay any
transfer or similar tax, if required. Upon conversion, no adjustment or payment
will be made for interest or dividends, but if any Holder surrenders a Security
for conversion after the close of business on the Regular Record Date for the
payment of an installment of interest and prior to the opening of business on
the next Interest Payment Date, then, notwithstanding such conversion, the
interest payable on such Interest Payment Date will be paid to the Trust (which
will distribute such interest to the holder of the applicable Trust Securities
at the close of business on such record date) or to such other person in whose
name the Securities are registered at the close of business on such record date,
as the case may be, despite such conversion. In such event, such Security, when
surrendered for conversion, need not be accompanied by payment of an amount
equal to the interest payable on such Interest Payment Date on the portion so
converted. The number of shares issuable upon conversion of a Security is
determined by dividing the principal amount of the Security converted by the
conversion price in effect on the Conversion Date. No fractional shares will be
issued upon conversion but a cash adjustment will be made for any fractional
interest. The outstanding principal amount of any Security shall be reduced by
the portion of the principal amount thereof converted into shares of Common
Stock.
(13) REGISTRATION RIGHTS. The holders of the Preferred Securities,
the Preferred Securities Guarantee, the Securities and the Fleetwood Common
Stock issuable upon conversion thereof (collectively, the "Registrable
Securities") are entitled to the benefits of a Registration Rights Agreement,
dated as of February 10, 1998, among the Trust, the Company and the Initial
Purchaser (the "Registration Rights Agreement"). Pursuant to the Registration
Rights Agreement, the Trust and the Company have agreed for the benefit of the
holders from time to time of the Registrable Securities that they will, at the
Company's expense, (i) within 90 days after the date of original issuance of the
Preferred Securities, file a shelf registration statement (the "Shelf
Registration Statement") with the Commission with respect to resales of the
Registrable Securities, (ii) use their best efforts to cause the Shelf
Registration Statement to be declared effective by the Commission under the
Securities Act within 150 days of the date of original issuance of the Preferred
Securities, and (iii) use their best efforts to
A-1-10
maintain such Shelf Registration Statement continuously effective under the
Securities Act until the date two years after the date of original issuance of
the Preferred Securities or such earlier date as is provided in the Registration
Rights Agreement.
If (i) on or prior to 90 days following the date of original issuance
of the Preferred Securities, the Shelf Registration Statement has not been filed
with the Commission, (ii) on or prior to the 150th day following the filing of
such Shelf Registration Statement, such Shelf Registration Statement is not
declared effective or (iii) after the Shelf Registration Statement has been
declared effective, it ceases to be effective or usable (subject to certain
exceptions specified in the Registration Rights Agreement) in connection with
resales of the Registrable Securities in accordance with and during the periods
specified in the Registration Rights Agreement (each, a "Registration Default"),
additional interest ("Liquidated Damages") will accrue on the Securities from
and including the day following such Registration Default to but excluding the
day on which such Registration Default has been cured. Liquidated Damages will
be paid quarterly in arrears, with the first quarterly payment due on the first
interest payment date in respect of the Securities following the date on which
such Liquidated Damages begin to accrue, and will accrue at a rate per annum
equal to an additional one-half of one percent (0.50%) of the principal amount
of the Securities.
Each Holder of Securities, by its acceptance thereof, agrees to be
bound by the terms of the Registration Rights Agreement relating to the
Securities and the Fleetwood Common Stock issuable upon conversion thereof.
(14) REGISTRATION, TRANSFER EXCHANGE AND DENOMINATIONS. As provided
in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company designated for such purpose, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $50 and integral multiples thereof. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other
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governmental charge payable in connection therewith. Prior to due presentment
of this Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary. In the event of redemption or
conversion of this Security in part only, a new Security or Securities for the
unredeemed or unconverted portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
(15) PERSONS DEEMED OWNERS. The registered Holder of a Security may
be treated as its owner for all purposes.
(16) UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent shall
pay the money back to the Company at its written request. After that, Holders
of Securities entitled to the money must look to the Company for payment unless
an abandoned property law designates another Person and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
(17) DEFAULTS AND REMEDIES. The Securities shall have the Events of
Default as set forth in Section 501 of the Indenture. Subject to certain
limitations in the Indenture, if an Event of Default occurs and is continuing,
then the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities, and
accrued and unpaid interest, if any (including any Additional Payments), thereon
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders), and upon any such declaration such
principal or such lesser amount, as the case may be, and such accrued and unpaid
interest (including any Additional Payments) shall become immediately due and
payable.
The Holders of not less than a majority in aggregate principal amount
of the Securities then outstanding by written notice to the Trustee may rescind
an acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration. Holders may not enforce the Indenture or the
Securities except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then outstanding
Securities issued under the Indenture may direct the Trustee in its exercise of
any trust or power. The Company must
A-1-12
furnish annually compliance certificates to the Trustee. The above description
of Events of Default and remedies is qualified in its entirety by reference to,
and subject to, the more complete description thereof contained in the
Indenture.
(18) AMENDMENTS, SUPPLEMENTS AND WAIVERS. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange heretofore or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
(19) TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its
individual or any other capacity may become the owner or pledgee of the
Securities and may otherwise deal with the Company or an Affiliate with the same
rights it would have, as if it were not Trustee, subject to certain limitations
provided for in the Indenture and in the TIA. Any Agent may do the same with
like rights.
(20) NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Securities by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
(21) GOVERNING LAW. THE INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(22) AUTHENTICATION. The Securities shall not be valid until
authenticated by the manual signature of an authorized officer of the Trustee.
A-1-13
(23) ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
The Company will furnish to any Holder of the Securities upon written
request and without charge a copy of the Indenture. Request may be made to:
Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, CA 92513
Attn: General Counsel
A-1-14
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Your Signature:
-----------------------------------------------------------
(Sign exactly as your name appears on the other side of this
Security)
Date:
------------------------
Signature Guarantee:*
--------------------------------------------------
[Include the following if the Security bears a Restricted Securities Legend --
In connection with any transfer of any of the Securities evidenced by this
certificate, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW
(1) / / exchanged for the undersigned's own account without transfer; or
(2) / / transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933; or
- ---------------
* Signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the [Registrar], which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
[Registrar] in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
A-1-15
(3) / / transferred pursuant to and in compliance with Regulation S under
the Securities Act of 1933; or
(4) / / transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; PROVIDED, HOWEVER, that if box (3) or (4) is
checked, the Trustee may require, prior to registering any such transfer of the
Securities such legal opinions, certifications and other information as the
Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the exemption
provided by Rule 144 under such Act.
----------------------------------
Signature
Signature Guarantee:*
- ---------------------------- ----------------------------------]
Signature must be guaranteed Signature
- --------------------------------------------------------------------------------
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
- ------------------
* Signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the [Registrar], which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
[Registrar] in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
A-1-16
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
---------------------- -----------------------------------
NOTICE: To be executed by an executive
officer]
A-1-17
(TO BE ATTACHED TO GLOBAL SECURITIES)
SCHEDULE A
The initial principal amount of this Global Security shall be $______.
The following increases or decreases in the principal amount of this Global
Security have been made:
- ----------------------------------------------------------------------------------------------------------------------
| Amount of increase in | | | |
| Principal Amount of this | | Principal Amount of | |
| Global Security including | Amount of decrease in | this Global Security | Signature of authorized |
| upon exercise of over- | Principal Amount of | following such | officer of Trustee or |
Date Made | allotment option | this Global Security | decrease or increase | Securities Custodian |
- ----------------------------------------------------------------------------------------------------------------------
| | | | |
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A-1-18
ELECTION TO CONVERT
To: Fleetwood Enterprises, Inc.
The undersigned owner of this Security hereby irrevocably exercises
the option to convert this Security, or the portion below designated, into
Common Stock of FLEETWOOD ENTERPRISES, INC. ("Fleetwood Common Stock") in
accordance with the terms of the Indenture referred to in this Security, and
directs that the shares issuable and deliverable upon conversion, together with
any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Any Holder, upon the exercise of its conversion rights in accordance
with the terms of the Indenture and the Security, agrees to be bound by the
terms of the Registration Rights Agreement relating to the Fleetwood Common
Stock issuable upon conversion of the Securities.
Date: __ , ____
in whole __
Portions of Security to be converted (or
integral multiples thereof):
$_________
-------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number
-------------------------------
-------------------------------
-------------------------------
Signature Guarantee:*
- -------------------
* Signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the [Registrar], which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
[Registrar] in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
A-1-19
EXHIBIT A-2
FORM OF EXCHANGE SECURITY
[FORM OF FACE OF SECURITY]
FLEETWOOD ENTERPRISES, INC.
6% Convertible Subordinated Debenture Due 2028
No.________ $________
CUSIP No. _____
FLEETWOOD ENTERPRISES, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _______________, or registered
assigns, the principal sum [indicated on Schedule A hereof]* [of ___________
Dollars** ($ )] on February 15, 2028.
Interest Payment Dates: February 15, May 15, August 15 and November 15,
commencing May 15, 1998
Regular Record Dates: except as otherwise provided in the Indenture, the date
15 days prior to each Interest Payment Date
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
- -----------------
* Applicable to Global Securities only.
** Applicable to certificated Securities only.
IN WITNESS WHEREOF, the Company has caused this instrument to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto or imprinted hereon.
FLEETWOOD ENTERPRISES, INC.
By:
------------------------------------
Name:
Dated: ,
--------- -----
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
not in its individual
capacity but solely
as Trustee
By:
---------------------------
Authorized Signatory
Dated: , 1998
-------------
A-2-2
[FORM OF REVERSE OF SECURITY]
FLEETWOOD ENTERPRISES, INC.
6% Convertible Subordinated Debenture Due 2028
(1) INTEREST. Fleetwood Enterprises, Inc., a Delaware corporation
(the "Company"), is the issuer of this 6% Convertible Subordinated Debenture Due
2028 (the "Security") limited in aggregate principal amount to $296,400,000
(including $38,900,000 pursuant to the exercise of the over-allotment option),
issued under the Indenture hereinafter referred to. The Company promises to pay
interest on the Securities in cash from February 10, 1998 or from the most
recent interest payment date to which interest has been paid or duly provided
for, quarterly (subject to deferral for up to 20 consecutive quarters as
described in Section 3 hereof) in arrears on February 15, May 15, August 15 and
November 15 of each year (each such date, an "Interest Payment Date"),
commencing May 15, 1998, at the rate of 6% per annum (subject to increase as
provided in Section 12 hereto) plus Additional Interest (as defined below) and
Liquidated Damages (as defined in the Indenture (as defined below)), if any,
until the principal hereof shall have become due and payable.
The amount of interest payable for any period will be computed on the
basis of twelve 30-day months and a 360-day year. To the extent lawful, the
Company shall pay interest on overdue installments of interest (without regard
to any applicable grace period) at the rate borne by the Securities, compounded
quarterly. Any interest paid on this Security shall be increased to the extent
necessary to pay Additional Interest as set forth in this Security.
(2) ADDITIONAL INTEREST. The Company shall pay to Fleetwood Capital
Trust (and its permitted successors or assigns under the Declaration) (the
"Trust") such additional amounts as may be necessary in order that the amount of
dividends or other distributions then due and payable by the Trust on the
Preferred Securities that at any time remain outstanding in accordance with the
terms thereof shall not be reduced as a result of any taxes, duties, assessments
or governmental charges of whatever nature (other than withholding taxes)
imposed by the United States or any other taxing authority ("Additional
Interest").
(3) EXTENSION OF INTEREST PAYMENT PERIOD. The Company shall have the
right, at any time during the term of this Security, from time to time to defer
payments of interest (including Compounded Interest (as defined below),
Additional Interest and Liquidated Damages (as defined below), if any) by
A-2-3
extending the interest payment period of such Security for up to 20 consecutive
quarters (each an "Extension Period"). To the extent permitted by applicable
law, interest, the payment of which has been deferred because of the extension
of the interest payment period pursuant to Section 312 of the Indenture, will
bear interest thereon at 6% compounded quarterly for each quarter of the
Extension Period ("Compounded Interest"); provided, that during an Extension
Period the Company, the Company shall be subject to the provisions of Section
1008 of the Indenture. At the end of the Extension Period, the Company shall
pay all interest then accrued and unpaid on the Securities, including any
Additional Payments, that shall be payable to the holders of the Securities in
whose names the Securities are registered in the Security Register ("Holders")
on the first Regular Record Date after the end of the Extension Period. Before
the termination of any Extension Period, the Company may further extend such
period, provided that such period together with all such further extensions
thereof shall not exceed 20 consecutive quarters or extend beyond the maturity
of the Securities or end other than on an Interest Payment Date. Upon the
termination of any Extension Period and upon the payment of all amounts then due
on the Securities, including any Additional Payments, the Company may commence a
new Extension Period, subject to the foregoing requirements. No interest shall
be due and payable during an Extension Period except at the end thereof.
The Company must give the Property Trustee, the Regular Trustees and the
Trustee notice of its election to begin an Extension Period at least one
Business Day Prior to the earliest of (i) the date the distribution on the
Preferred Securities would have been payable except for the election to begin
such Extension Period or (ii) if applicable, the date the Regular Trustees are
required to give notice to the New York Stock Exchange, the Nasdaq National
Market or other applicable self-regulatory organization or to holders of such
Preferred Securities of the record date or (iii) the date such distribution is
payable, but in any event not less than one Business Day prior to the record
date. The Trustee shall give notice of the Company's election to begin an
Extension Period to the holders of the Securities and the Regular Trustees shall
give notice of the Company's election to the holders of the Preferred
Securities.
The quarter in which any notice is given pursuant to the second paragraph
of this Section 3 shall be counted as one of the 20 quarters permitted in the
maximum Extension Period permitted under the first paragraph of this Section 3.
(4) METHOD OF PAYMENT. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in
A-2-4
whose name this Security (or one or more Predecessor Securities (as defined in
the Indenture)) is registered at the close of business on the Regular Record
Date for such interest installment, which, except as otherwise provided in the
Indenture, shall be the date 15 days prior to each Interest Payment Date
(whether or not a Business Day) (the "Regular Record Date"), commencing May 15,
1998. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
The principal of and interest on the Securities shall be payable at
the office or agency of the Company in the United States maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; PROVIDED,
HOWEVER, that payment of interest may be made at the option of the Company by
check mailed to the address of the holder entitled thereto or by wire transfer
to an account in the United States appropriately designated by the holder
entitled thereto prior to the record date for the corresponding interest payment
date. Notwithstanding the foregoing, so long as the holder of any Securities is
the Property Trustee, the payment of principal and interest on the Securities
held by the Property Trustee will be made by wire transfer at such place and to
such account in the United States as may be designated by the Property Trustee.
(5) PAYING AGENT AND SECURITY REGISTRAR. The Trustee will act as
Paying Agent, Security Registrar and Conversion Agent. The Company may change
any Paying Agent, Security Registrar, co-registrar or Conversion Agent without
prior notice. The Company or any of its Affiliates (as defined in the
Indenture) may act in any such capacity.
(6) INDENTURE. The Company issued the Securities under an indenture,
dated as of February 10, 1998 (the "Indenture"), between the Company and The
Bank of New York, not in its individual capacity but solely as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures
A-2-5
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Trustee,
the Company and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb)
("TIA") as in effect on the date of the Indenture. The Securities are subject
to, and qualified by, all such terms, certain of which are summarized herein,
and Holders are referred to the Indenture and the TIA for a more complete
statement of such terms. The Securities are unsecured general obligations of
the Company limited to $296,400,000 in aggregate principal amount (including
$38,900,000 pursuant to the exercise of the over-allotment option) and
subordinated in right of payment to all existing and future Senior Indebtedness
of the Company. No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security when due at the times, place and rate, and in the coin
or currency, herein prescribed or to convert this Security as provided in the
Indenture.
(7) OPTIONAL REDEMPTION. The Securities are redeemable, in whole or
in part, at the Company's option at any time and from time to time after
February 15, 2001, upon not less than 30 or more than 60 days' notice, at the
following Redemption Prices, expressed as a percentage of the principal amount
of the Securities, if redeemed during the 12-month period beginning February 15
of the applicable year set forth below:
Redemption
Year Price
---- ----------
2001 . . . . . . . . . . . . . . . . . . . . . . . . . . 103.75%
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . 103.00%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . 102.25%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . 101.50%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . . 100.75%
2006 and thereafter. . . . . . . . . . . . . . . . . . . 100.00%
plus, in each case, accrued and unpaid interest, including Additional Payments,
if any, to the Redemption Date (subject to the right of Holders of record on the
relevant record date to receive interest due on the Interest Payment Date).
From and after the Redemption Date, interest will cease to accrue on the
Securities, or portion thereof, called for redemption.
A-2-6
(8) OPTIONAL REDEMPTION UPON TAX EVENT. The Securities are subject
to redemption in whole, but not in part, at the Company's option at any time
within 90 days, if a Tax Event (as defined in the Declaration) shall occur and
be continuing, at a redemption price equal to 100% of the principal amount
thereof plus accrued but unpaid interest thereon (including, to the extent
permitted by applicable law, Additional Payments, if any) to the Redemption
Date. Any redemption pursuant to this Section 8 will be made upon not less than
30 nor more than 60 days' notice.
(9) NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of the Securities to be redeemed at his address of record. In the event
of a redemption of less than all of the Securities, the Securities will be
chosen for redemption by the Trustee in accordance with the Indenture. On and
after the Redemption Date, interest ceases to accrue on the Securities or
portions thereof called for redemption.
If this Security is redeemed subsequent to a Regular Record Date with
respect to any Interest Payment Date specified above and on or prior to such
Interest Payment Date, then any accrued interest will be paid to the person in
whose name this Security is registered at the close of business on such record
date.
(10) MANDATORY REDEMPTION. The Securities will mature on February 15,
2028. There are no sinking fund payments with respect to the Securities.
(11) SUBORDINATION. The payment of the principal of, premium (if
any), interest on or any other amounts due on the Securities is subordinated and
junior in right of payment to all existing and future Senior Indebtedness (as
defined below) of the Company, as described in the Indenture. Each Holder, by
accepting a Security, agrees to such subordination and authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to effectuate the subordination so provided and appoints the Trustee as its
attorney-in-fact for such purpose.
In addition, no payment of principal (including redemption payments)
of, premium, if any, or interest (including any Additional Interest or
Compounded Interest) on the Securities may be made if there shall have occurred
and be continuing (i) a default in the payment when due of principal of,
premium, if any, sinking funds, if any, or interest, if any, on any Senior
Indebtedness of the Company and any applicable grace period with respect to such
default shall have ended without such default
A-2-7
having been cured or waived or ceasing to exist or (ii) an event of default with
respect to any Senior Indebtedness of the Company resulting in the acceleration
of the maturity thereof without such acceleration having been rescinded or
annulled.
"Senior Indebtedness" means (a) any liability of the Company (1) for
borrowed money or under any reimbursement obligation relating to a letter of
credit, surety bond or similar instrument, or (2) evidenced by a bond, note,
debenture or similar instrument, or (3) for obligations to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, or (4) for the payment of money relating to a
capitalized lease obligation, or (5) for the payment of money under any Swap
Agreement, (b) any liability of others described in the preceding clause (a)
that the Company has guaranteed or that is otherwise its legal liability; and
(c) any deferral, renewal, extension or refunding of any liability of the types
referred to in clauses (a) and (b) above, unless, in the instrument creating or
evidencing any such liability referred to in clause (a) or (b) above or any such
deferral, renewal, extension or refunding referred to in clause (c) above or
pursuant to which the same is outstanding, it is expressly provided that such
liability, deferral, renewal, extension or refunding is subordinate in right of
payment to all other indebtedness of the Company or is not senior or prior in
right of payment to the Securities or ranks PARI PASSU with or subordinate to
the Securities in right of payment; PROVIDED that the Securities shall not
constitute Senior Indebtedness; and PROVIDED, FURTHER, the Senior Indebtedness
shall not include any indebtedness or guarantees between or among the Company or
its affiliates, including all debt securities or guarantees in respect of those
debt securities issued to any trust (including the Trust), trustee of a trust
(including the Trust), partnership, limited liability company or other person
affiliated with the Company that is a financing vehicle of the Company
(a "Financing Entity") in connection with the issuance by such Financing Entity
of preferred securities unless otherwise expressly provided in the instrument
creating or evidencing such indebtedness, debt securities or guarantees, as the
case may be, or pursuant to which the same is outstanding.
(12) CONVERSION. Subject to and in compliance with the
provisions of the Indenture, the Holder of any Security has the right,
exercisable at any time prior to the close of business (New York time) on the
date of the Security's maturity (or, in the case of Securities called for
redemption, prior to the close of business on the Business Day prior to the
corresponding Redemption Date), to convert the principal amount thereof (or any
portion thereof that is an integral multiple of $50) into shares of Fleetwood
Common Stock at the initial
A-2-8
conversion price of $48.72 per share of Fleetwood Common Stock, subject to
adjustment under certain circumstances.
To convert a Security, a Holder must (1) complete and sign a conversion
notice substantially in the form attached hereto, (2) surrender the Security to
a Conversion Agent, (3) furnish appropriate endorsements or transfer documents
if required by the Security Registrar or Conversion Agent and (4) pay any
transfer or similar tax, if required. Upon conversion, no adjustment or payment
will be made for interest or dividends, but if any Holder surrenders a Security
for conversion after the close of business on the Regular Record Date for the
payment of an installment of interest and prior to the opening of business on
the next Interest Payment Date, then, notwithstanding such conversion, the
interest payable on such Interest Payment Date will be paid to the Trust (which
will distribute such interest to the holder of the applicable Trust Securities
at the close of business on such record date) or to such other person in whose
name the Securities are registered at the close of business on such record date,
as the case may be, despite such conversion. In such event, such Security, when
surrendered for conversion, need not be accompanied by payment of an amount
equal to the interest payable on such Interest Payment Date on the portion so
converted. The number of shares issuable upon conversion of a Security is
determined by dividing the principal amount of the Security converted by the
conversion price in effect on the Conversion Date. No fractional shares will be
issued upon conversion but a cash adjustment will be made for any fractional
interest. The outstanding principal amount of any Security shall be reduced by
the portion of the principal amount thereof converted into shares of Common
Stock.
(13) REGISTRATION, TRANSFER EXCHANGE AND DENOMINATIONS. As provided
in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company designated for such purpose, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $50 and integral multiples thereof. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other
A-2-9
governmental charge payable in connection therewith. Prior to due presentment
of this Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary. In the event of redemption or
conversion of this Security in part only, a new Security or Securities for the
unredeemed or unconverted portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
(14) PERSONS DEEMED OWNERS. The registered Holder of a Security may
be treated as its owner for all purposes.
(15) UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent shall
pay the money back to the Company at its written request. After that, Holders
of Securities entitled to the money must look to the Company for payment unless
an abandoned property law designates another Person and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
(16) DEFAULTS AND REMEDIES. The Securities shall have the Events of
Default as set forth in Section 501 of the Indenture. Subject to certain
limitations in the Indenture, if an Event of Default occurs and is continuing,
then the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities, and
accrued and unpaid interest, if any (including any Additional Payments), thereon
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders), and upon any such declaration such
principal or such lesser amount, as the case may be, and such accrued and unpaid
interest (including any Additional Payments) shall become immediately due and
payable.
The Holders of not less than a majority in aggregate principal amount
of the Securities then outstanding by written notice to the Trustee may rescind
an acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration. Holders may not enforce the Indenture or the
Securities except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then outstanding
Securities issued under the Indenture may direct the Trustee in its exercise of
any trust or power. The Company must
A-2-10
furnish annually compliance certificates to the Trustee. The above description
of Events of Default and remedies is qualified in its entirety by reference to,
and subject to, the more complete description thereof contained in the
Indenture.
(17) AMENDMENTS, SUPPLEMENTS AND WAIVERS. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange heretofore or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
(18) TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its
individual or any other capacity may become the owner or pledgee of the
Securities and may otherwise deal with the Company or an Affiliate with the same
rights it would have, as if it were not Trustee, subject to certain limitations
provided for in the Indenture and in the TIA. Any Agent may do the same with
like rights.
(19) NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Securities by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
(20) GOVERNING LAW. THE INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(21) AUTHENTICATION. The Securities shall not be valid until
authenticated by the manual signature of an authorized officer of the Trustee.
A-2-11
(22) ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
The Company will furnish to any Holder of the Securities upon written
request and without charge a copy of the Indenture. Request may be made to:
Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, CA 92513
Attn: General Counsel
A-2-12
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
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(Insert assignee's social security or tax I.D. no.)
- --------------------------------------------------------------------------------
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(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Your Signature:
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(Sign exactly as your name appears on the other side of this Security)
Date:
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Signature Guarantee:*
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* Signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the [Registrar], which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
[Registrar] in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
A-2-13
(TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security shall be $______.
The following increases or decreases in the principal amount of this Global
Security have been made:
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| Amount of increase in | | | |
| Principal Amount of this | | Principal Amount of | |
| Global Security including | Amount of decrease in | this Global Security | Signature of authorized |
| upon exercise of over- | Principal amount of | following such | officer of Trustee or |
Date Made | allotment option | this Global Security | decrease or increase | Securities Custodian |
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A-2-14
ELECTION TO CONVERT
To: Fleetwood Enterprises, Inc.
The undersigned owner of this Security hereby irrevocably exercises
the option to convert this Security, or the portion below designated, into
Common Stock of FLEETWOOD ENTERPRISES, INC. ("Fleetwood Common Stock") in
accordance with the terms of the Indenture referred to in this Security, and
directs that the shares issuable and deliverable upon conversion, together with
any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Any Holder, upon the exercise of its conversion rights in accordance
with the terms of the Indenture and the Security, agrees to be bound by the
terms of the Registration Rights Agreement relating to the Fleetwood Common
Stock issuable upon conversion of the Securities.
Date: ,
------- ----
in whole __
Portions of Security to be converted ($__ or
integral multiples thereof):
$
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Signature (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number
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Signature Guarantee:*
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* Signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the [Registrar], which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
[Registrar] in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
A-2-15