Affinity Group Holding, Inc.
$130,000,000
11% Senior Notes due 2007
PURCHASE AGREEMENT
------------------
March 27, 1997
Citicorp Securities, Inc.
Citibank Canada Securities Limited
Citibank International plc
CIBC Wood Gundy Securities Corp.
c/o Citicorp Securities, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Affinity Group Holding, Inc., a Delaware corporation (the "COMPANY"),
proposes, subject to the terms and conditions set forth herein, to issue and
sell to Citicorp Securities, Inc., Citibank Canada Securities Limited, Citibank
International plc and CIBC Wood Gundy Securities Corp. (together, the "INITIAL
PURCHASERS") $130,000,000 aggregate principal amount of 11% Senior Notes due
2007 (the "NOTES") of the Company. The Notes are to be issued pursuant to an
indenture dated as of April 2, 1997 (the "INDENTURE") between the Company, as
issuer, and United States Trust Company of New York, as trustee (in such
capacity, the "TRUSTEE").
The Notes will be offered and sold to the Initial Purchasers without
registration under the Securities Act of 1933, as amended (the "ACT"), in
reliance upon an exemption from the registration requirements of the Act. In
connection with the sale of the Notes, the Company has prepared a preliminary
offering memorandum dated March 12, 1997 (the "PRELIMINARY OFFERING MEMORANDUM")
and a final offering memorandum dated March 27, 1997 (the "OFFERING
MEMORANDUM"), each setting forth certain information concerning the Company and
the Notes. The Company hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum and the Offering Memorandum in connection with
the offer and sale of the Notes by the Initial Purchasers in the manner and to
the persons contemplated herein and therein.
The Company understands that the Initial Purchasers propose to make an
offering of the Notes on the terms and in the manner set forth in the Offering
Memorandum
and Section 4 hereof, as soon as the Initial Purchasers deem advisable after
this Agreement has been executed and delivered, (i) to persons in the United
States whom the Initial Purchasers reasonably believe to be qualified
institutional buyers ("QUALIFIED INSTITUTIONAL BUYERS") as defined in Rule 144A
under the Act, as such rule may be amended from time to time ("RULE 144A"), in
transactions meeting the requirements of Rule 144A, (ii) to a limited number of
other institutional "accredited investors" (as defined in Rule 501(a)(1), (2),
(3) and (7) under Regulation D of the Act ("ACCREDITED INVESTORS")) in private
sales exempt from registration under the Act and/or (iii) to non-U.S. persons to
whom the Initial Purchasers reasonably believe offers and sales of the Notes may
be made in reliance upon Regulation S under the Act ("REGULATION S"), in
transactions meeting the requirements of Regulation S.
The Initial Purchasers and other holders of the Notes, the Exchange
Notes (as defined herein) and the Private Exchange Notes (as defined herein)
will have, with respect to the Notes, the Exchange Notes and the Private
Exchange Notes, the registration rights set forth in the Registration Rights
Agreement dated as of April 2, 1997 by and among the Company and the Initial
Purchasers (the "NOTES REGISTRATION RIGHTS AGREEMENT"). Pursuant to the Notes
Registration Rights Agreement, the Company has agreed, among other things, to
file with the Securities and Exchange Commission (the "COMMISSION") under the
circumstances set forth therein (i) a registration statement under the Act
relating to the Company's 11% Senior Notes due 2007 to be offered in exchange
(the "EXCHANGE NOTES") for the Notes and to use its best efforts to cause such
registration statement to be declared effective, and (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under the Act
relating to the resale of the Notes by holders thereof or, if applicable,
relating to the resale of the Notes or debt securities of the Company
substantially identical to the Notes (the "PRIVATE EXCHANGE NOTES"), issued
pursuant to an exchange for the Notes, and to use its best efforts to cause such
shelf registration statement to be declared effective.
The Notes are being offered and sold in connection with (i) the proposed
acquisition (the "CAMPING WORLD ACQUISITION") by Affinity Group, Inc., a
Delaware corporation and wholly-owned subsidiary of the Company ("AGI"), of all
of the outstanding capital stock of Camping World, Inc., a Kentucky corporation
("CAMPING WORLD"), pursuant to a Stock Purchase Agreement, dated February 25,
1997, among AGI and the selling securityholders of Camping World named therein
(as amended and supplemented to the Closing Date (as defined in Section 3) and
together with all ancillary documents entered into in connection therewith, the
"CWI STOCK PURCHASE AGREEMENT") and (ii) the acquisition by AGI of all of the
outstanding capital stock of Xxxxxx Publishing Group, Inc., a Minnesota
corporation ("EPG"), and Expositions Group, Inc., a Minnesota corporation
("EGI", and collectively with EPG, "XXXXXX"), pursuant to a Stock Purchase
Agreement, dated August 28, 1996, and amended January 7, 1997, among AGI, Xxxxxx
and the selling securityholders of Xxxxxx named therein. To effect the
transactions contemplated by the Offering Memorandum, the Company and AGI will
enter into a Credit Agreement, to be dated as of the Closing Date,
2
among AGI, Fleet National Bank, as agent and a lender thereunder, and the other
lender institutions party thereto, which will provide for a senior secured
financing facility of up to $75,000,000 (together with all ancillary documents
entered into in connection therewith, the "CREDIT AGREEMENT"). The CWI Stock
Purchase Agreement and the Credit Agreement are herein collectively referred to
as the "ACQUISITION DOCUMENTS").
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, each Initial Purchaser that:
(a) The Offering Memorandum and any amendment or supplement thereto as
of the date thereof and at all times subsequent thereto up to the Closing
Date (as defined in Section 3) did not, does not and will not include an
untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED that
this representation and warranty shall not apply to statements or omissions
made in reliance upon and in conformity with written information furnished
to the Company by the Initial Purchasers about to the Initial Purchasers
expressly for use in the Preliminary Offering Memorandum or the Offering
Memorandum or any amendment or supplement thereto.
(b) Each of the Company, the Subsidiaries (as defined herein) and the
Camping World Subsidiaries (as defined herein) has been duly incorporated
and each of the Company, the Subsidiaries and the Camping World
Subsidiaries is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation with authority and power,
corporate or otherwise, to own, lease and operate its properties and to
conduct its business as described or contemplated in the Offering
Memorandum; each of the Company, the Subsidiaries and the Camping World
Subsidiaries is duly qualified as a foreign corporation to transact
business in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property and
assets or the conduct of business or otherwise, except (i) where the
failure to so qualify would not have a material adverse effect on the
general affairs, condition, financial or otherwise, results of operations,
business, properties or assets of the Company, the Subsidiaries and the
Camping World Subsidiaries, taken as a whole or (ii) a material adverse
effect on the ability of the Company or any of the Subsidiaries or the
Camping World Subsidiaries to consummate the transactions contemplated by,
or perform their respective obligations under, this Agreement or the
Acquisition Documents (any such event described in (i) or (ii), a "MATERIAL
ADVERSE EFFECT").
(c) As of the date indicated in the Offering Memorandum, the Company
had the authorized, issued and outstanding capitalization as set forth
under the caption
3
"Actual" under the heading "Capitalization" in the Offering Memorandum; all of
the issued and outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable; and the
issuance of the Notes and the consummation of the transactions contemplated by
the Transaction Documents do not give any person the right to require
registration of any securities of the Company or any of the Subsidiaries or the
Camping World Subsidiaries except for the rights granted pursuant to the Notes
Registration Rights Agreement.
(d) The Company owns, either directly or indirectly, 100% of the
capital stock of the entities set forth on SCHEDULE I attached hereto
(collectively, the "SUBSIDIARIES"). All of the issued and outstanding
shares of each of the Subsidiaries have been validly issued and are fully
paid and non-assessable and were not issued in violation of preemptive or
similar rights; and are owned free and clear of any liens, claims or
encumbrances of any kind except for liens, claims and encumbrances arising
(i) as of the date hereof, under AGI's existing senior secured financing
facility and (ii) as of the Closing Date, under the Credit Agreement. As
of the date hereof, the Company has no direct or indirect subsidiaries
other than the Subsidiaries and, as of the date hereof, the Company does
not own, directly or indirectly, any equity interest or ownership interest
in any entity other than the Subsidiaries.
(e) Upon consummation of the Camping World Acquisition, the Company
will own, either directly or indirectly, 100% of the capital stock of
Camping World (which will be merged into CWI, Inc.), CWI, Inc., Camping
World Realty, Inc., CW Texas, LP and CW Michigan LP (collectively, the
"CAMPING WORLD SUBSIDIARIES"). All of the issued and outstanding shares of
each of the Camping World Subsidiaries have been validly issued and are
fully paid and non-assessable and were not issued in violation of
preemptive or similar rights; and upon consummation of the Camping World
Acquisition, will be owned free and clear of any liens, claims or
encumbrances of any kind except for liens, claims and encumbrances arising
under the Credit Agreement. As of the Closing Date, the Company will have
no direct or indirect subsidiaries other than the Subsidiaries and the
Camping World Subsidiaries, and the Company will not own, directly or
indirectly, any equity interest or ownership interest in any entity other
than the Subsidiaries and the Camping World Subsidiaries.
(f) Neither the Company nor any of the Subsidiaries or the Camping
World Subsidiaries is (i) in violation of its certificate or articles of
incorporation, or its by-laws or other charter documents (collectively,
"ORGANIZATION DOCUMENTS"), (ii) in breach of or default (or, with notice or
lapse of time or both, would be in default) in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan agreement, note,
lease, license, concession agreement, authorization, permit,
4
certificate or other agreement or instrument to which any of them is a
party, or to which any of their assets or properties are subject
("CONTRACTS"), or (iii) in violation of any law, statute, judgment, decree,
order, rule or regulation applicable to, or of any court or other
governmental or regulatory authority, agency or other body with
jurisdiction over, the Company or any of the Subsidiaries or the Camping
World Subsidiaries or any of their respective assets or properties ("LAWS")
other than, in the case of clauses (ii) and (iii), such defaults or
violations which, individually or in the aggregate, would not have or
result in a Material Adverse Effect.
(g) The issuance, sale and delivery of the Notes, the Exchange Notes
and, if issued, the Private Exchange Notes, the execution, delivery and
performance of this Agreement, the Notes Registration Rights Agreement and
the Indenture (collectively, the "TRANSACTION DOCUMENTS"), the consummation
by each of the Company and AGI of the transactions contemplated hereby and
thereby and the compliance by each of the Company and AGI with the terms of
the foregoing do not and will not conflict with or constitute or result in
a breach or violation by the Company or any of the Subsidiaries or the
Camping World Subsidiaries of (i) any of the terms or provision of, or
constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) by the Company or any of the Subsidiaries
or the Camping World Subsidiaries or give rise to any right to accelerate
the maturity or require the prepayment of any indebtedness under, or result
in the creation or imposition of any lien, charge, security interest or
other encumbrance upon any property or assets of the Company or any of the
Subsidiaries or the Camping World Subsidiaries under, any Contract, (ii)
the applicable Organization Documents of the Company or any of the
Subsidiaries or the Camping World Subsidiaries, or (iii) any Law other
than, in the case of clauses (i), (ii) or (iii), such conflicts, breaches
or violations which, individually or in the aggregate, would not have a
Material Adverse Effect.
(h) No event with respect to the Company or any of the Subsidiaries
or the Camping World Subsidiaries has occurred and is continuing which,
upon issuance of the Notes, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other requirement)
constitute a default or an event of default as described in the Indenture.
(i) Each of the Company and AGI has all requisite corporate power and
authority to execute, deliver and perform its respective obligations under
this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly and validly authorized, executed and delivered
by each of the Company and AGI and constitutes the legal, valid and binding
obligation of each of the Company and AGI, enforceable against each of them
in accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency,
5
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) (the "ENFORCEABILITY
EXCEPTIONS") and as to rights of indemnification or contribution thereunder
may be limited by principles of public policy or federal or state
securities laws relating thereto.
(j) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Indenture. The
Indenture has been duly and validly authorized by the Company and, when
duly executed and delivered by the Company (assuming the due execution and
delivery thereof by the Trustee), will constitute the legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except for the Enforceability Exceptions; the
Indenture conforms in all material respects to the description thereof
included in the Offering Memorandum and is in a form which qualifies under
the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT").
(k) The Company has all requisite corporate power and authority to
execute, deliver and perform each of its obligations under the Notes, the
Exchange Notes and the Private Exchange Notes. The Notes, when issued,
will be in the form contemplated by the Indenture. The Notes, the Exchange
Notes and the Private Exchange Notes have each been duly and validly
authorized by the Company and, when duly executed by the Company and
authenticated by the Trustee in accordance with the provisions of the
Indenture, and, in the case of the Notes, when delivered and paid for in
the manner provided for herein, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture and
will be enforceable against the Company in accordance with their terms,
except for the Enforceability Exceptions. The Notes conform in all
material respects to the description thereof included in the Offering
Memorandum.
(l) Each of the Company and AGI has all requisite corporate power and
authority to execute, deliver and perform its respective obligations under
the Notes Registration Rights Agreement. The Notes Registration Rights
Agreement has been duly and validly authorized by each of the Company and
AGI and, when duly executed and delivered by the Company and AGI (assuming
the due execution and delivery thereof by the Initial Purchasers), will
constitute the legal, valid and binding obligation of each of the Company
and AGI, enforceable against each of them in accordance with its terms
except for the Enforceability Exceptions and as to rights of
indemnification or contribution thereunder may be limited by principles of
public policy or federal or state securities laws relating thereto; and the
Notes Registration
6
Rights Agreement conforms in all material respects to the description
thereof included in the Offering Memorandum.
(m) Each of the Company, the Subsidiaries and the Camping World
Subsidiaries has all requisite corporate power and authority to execute,
deliver and perform its obligations under the Acquisition Documents (to the
extent a party thereto). The CWI Stock Purchase Agreement has been duly
and validly authorized, executed and delivered by AGI and (assuming the due
execution and delivery thereof by the other parties thereto), constitutes
the legal, valid and binding obligation of AGI, enforceable against it in
accordance with its terms except for the Enforceability Exceptions and as
to rights of indemnification or contribution thereunder may be limited by
principles of public policy or federal or state securities laws relating
thereto. The Credit Agreement has been duly and validly authorized by the
Company and the Subsidiaries and will be duly and validly authorized by the
Camping World Subsidiaries when acquired and, when duly executed and
delivered by the Company, the Subsidiaries and the Camping World
Subsidiaries (assuming the due execution and delivery thereof by Fleet
National Bank and the other lender institutions party thereto), will
constitute the legal, valid and binding obligation of the Company, the
Subsidiaries and the Camping World Subsidiaries, enforceable against each
of them in accordance with its terms except for the Enforceability
Exceptions.
(n) Except for such consents, approvals, authorizations, exemptions,
orders or decrees which have been obtained and are in full force and effect
or as may be required under (i) applicable state securities or "Blue Sky"
laws in connection with the purchase and resale of the Notes by the Initial
Purchasers, (ii) the Trust Indenture Act in connection with the issuance of
Exchange Notes or (iii) the Act and state securities or "Blue Sky" laws in
connection the actions contemplated by the Notes Registration Rights
Agreement, no consent, approval, authorization, exemption, order or decree
of any court or governmental or regulatory agency or body (including
without limitation, the Federal Trade Commission (the "FTC") and the United
States Department of Justice (the "DOJ")) is required (x) for the
execution, delivery and performance by the Company or AGI of this Agreement
or any other Transaction Document (to the extent a party thereto) or by the
Company or any of the Subsidiaries or the Camping World Subsidiaries of the
Acquisition Documents (to the extent a party thereto), (y) the valid
authorization, authentication, issuance, sale and delivery of the Notes,
the Exchange Notes or the Private Exchange Notes, or (z) to permit the
Company to effect payments of principal of, premium and interest on the
Notes, the Exchange Notes and, if issued, the Private Exchange Notes.
(o) Since the date of the most recent financial statements appearing
in the Offering Memorandum, except as described therein, (i) none of the
Company, the
7
Subsidiaries or the Camping World Subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into or agreed to enter into any
transactions or contracts (written or oral) not in the ordinary course of
business which liabilities, obligations, transactions or contracts would,
individually or in the aggregate, be material to the general affairs, condition,
financial or otherwise, results of operations, business, properties, assets or
business prospects of the Company, the Subsidiaries and the Camping World
Subsidiaries, taken as a whole, (ii) none of the Company, the Subsidiaries or
the Camping World Subsidiaries has purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock (other than with respect to any of such Subsidiaries,
the purchase of, or dividend or distribution on, capital stock owned by the
Company) and (iii) there shall not have been any change in the capital stock or
long-term indebtedness of the Company, the Subsidiaries or the Camping World
Subsidiaries.
(p) Each of the Company, the Subsidiaries and the Camping World
Subsidiaries has good and valid title to all property (real and personal,
movable or immovable) described in the Offering Memorandum as being owned
by it, free and clear of all liens, claims, security interests or other
encumbrances, except for such imperfections of title, liens, claims,
security interests or other encumbrances as are described in the Offering
Memorandum or which, individually and in the aggregate, would not have or
result in a Material Adverse Effect, and all of the property described in
the Offering Memorandum as being held under lease by any of them is held
under valid, subsisting and enforceable leases. All material leases,
contracts and agreements to which the Company or any of the Subsidiaries or
the Camping World Subsidiaries is a party or by which any of them is bound
are valid and enforceable against the Company or such Subsidiary or Camping
World Subsidiary, and, to the best knowledge of the Company, are valid and
enforceable against the other party or parties thereto and are in full
force and effect with only such exceptions as would not, individually or in
the aggregate, have a Material Adverse Effect. The Company, the
Subsidiaries and the Camping World Subsidiaries own or possess adequate
licenses or other rights to use all patents, trademarks, service marks,
trade names, copyrights and know-how necessary to conduct the businesses
now or proposed to be operated by them as described in the Offering
Memorandum, and none of the Company, the Subsidiaries or the Camping World
Subsidiaries has received any notice of infringement of or conflict with
(or knows of any such infringement of or conflict with) asserted rights of
others with respect to any patents, trademarks, service marks, trade names,
copyrights or know-how which, if such assertion of infringement or conflict
were sustained, would have a Material Adverse Effect.
8
(q) Each of the Company, the Subsidiaries and the Camping World
Subsidiaries owns, possesses or has obtained all permits, licenses,
consents, orders, approvals, franchises and authorizations of governmental
or regulatory authorities ("PERMITS"), as are necessary to own its
properties and to conduct its businesses in the manner described or
contemplated in the Offering Memorandum, except for such instances of
failure to own, possess or obtain such Permits which, individually or in
the aggregate, would not have a Material Adverse Effect; and each of the
Company, the Subsidiaries and the Camping World Subsidiaries has fulfilled
and performed in all material respects all of its obligations with respect
to such Permits and no event has occurred, or as a result of the
consummation of the transactions contemplated hereby or in the Offering
Memorandum would occur, which allows, or after notice or lapse of time or
both would allow, revocation or termination thereof or results or would
result in any other material impairment of the rights of the holder of any
such Permit; except as described in the Offering Memorandum, none of such
Permits contains any material limitation on the ability of the Company or
any of the Subsidiaries or the Camping World Subsidiaries to own its
respective properties or to conduct its business in the manner described in
the Offering Memorandum; and, none of the Company or any of the
Subsidiaries or the Camping World Subsidiaries has any knowledge of a
threatened revocation or modification relating to any such Permit.
(r) There is no legal action, suit, proceeding, inquiry or
investigation before or by any court or governmental or regulatory body or
agency or arbitrator (including without limitation the FTC and the DOJ)
(domestic or foreign) now pending or, to the best knowledge of the Company,
threatened, against or affecting the Company or any of the Subsidiaries or
the Camping World Subsidiaries or any of their respective properties which,
individually or in the aggregate, would have a Material Adverse Effect.
There are no legal or governmental proceedings involving or affecting the
Company or any Subsidiary or Camping World Subsidiary or any of their
respective properties or assets which would be required to be described in
a prospectus pursuant to the Act that are not described in the Offering
Memorandum, nor are there any material contracts or other documents which
would be required to be described in a prospectus pursuant to the Act that
are not described in the Offering Memorandum.
(s) Except as would not, individually or in the aggregate, have a
Material Adverse Effect (i) each of the Company, the Subsidiaries and the
Camping World Subsidiaries is in compliance with and not subject to
liability under applicable Environmental Laws (as defined below), (ii) each
of the Company, the Subsidiaries and the Camping World Subsidiaries has
made all filings and provided all notices required under any applicable
Environmental Law, and has been and is in compliance with all Permits
required under any applicable Environmental Laws and each of them
9
is in full force and effect, (iii) there is no civil, criminal or
administrative action, suit, demand, claim, hearing, notice of violation,
investigation, proceeding, notice or demand letter or request for
information pending or, to the knowledge of the Company or any of the
Subsidiaries or Camping World Subsidiaries, threatened against the Company
or any of the Subsidiaries or Camping World Subsidiaries under any
Environmental Law, and (iv) no lien, charge, encumbrance or restriction has
been recorded under any Environmental Law with respect to any assets,
facility or property owned, operated, leased or controlled by the Company
or any of the Subsidiaries or Camping World Subsidiaries.
For purposes of this Agreement, "Environmental Laws" means the common
law and all applicable federal, state and local laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder, relating to pollution or protection of public or
employee health and safety or the environment, including, without
limitation, laws relating to (i) emissions, discharges, releases or
threatened releases of hazardous materials into the environment (including,
without limitation, ambient air, surface water, ground water, land surface
or subsurface strata), (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of
hazardous materials, and (iii) underground and above ground storage tanks
and related piping, and emissions, discharges, releases or threatened
releases therefrom.
(t) Each of the Company, the Subsidiaries and the Camping World
Subsidiaries has such policies of insurance in full force and effect in
such amounts and covering such risks as are adequate for the conduct of its
business and the value of its properties.
(u) Each of the Company, the Subsidiaries and the Camping World
Subsidiaries has filed or caused to be filed all necessary tax returns
(income, franchise, VAT or otherwise) under all applicable jurisdictions,
except where the failure to so file such returns would not have a Material
Adverse Effect, and has discharged all taxes shown as due and payable
thereon; and, other than tax deficiencies which are being contested in good
faith and for which the Company reasonably believes that adequate reserves
have been provided, there is no tax deficiency that has been asserted
against the Company or any of the Subsidiaries or Camping World
Subsidiaries that would have a Material Adverse Effect. There are no
disputes pending or, to the best knowledge of the Company, threatened,
between the Company or any of the Subsidiaries or Camping World
Subsidiaries, on the one hand, and any governmental taxing authority, on
the other hand.
10
(v) No labor problem, dispute or disturbance with employees of the
Company or any of the Subsidiaries or the Camping World Subsidiaries exists
or, to the knowledge of the Company, is threatened which, individually or
in the aggregate, would have a Material Adverse Effect.
(w) The audited consolidated financial statements of the Company
included in the Offering Memorandum, together with the related notes
thereto, present fairly the financial position, results of operations and
cash flows of the Company, at the dates and for the periods to which they
relate, and have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, except as otherwise
stated therein. The summary and selected financial and statistical data in
the Offering Memorandum present fairly in all material respects the
information shown therein and have been prepared and compiled on a basis
consistent with the audited financial statements included therein, except
as otherwise stated therein. Deloitte & Touche LLP, which has examined
certain of such financial statements as set forth in its report included in
the Offering Memorandum, is an independent public accounting firm with
respect to the Company and its consolidated subsidiaries within the meaning
of the Act and the rules and regulations thereunder.
(x) The audited consolidated financial statements of Camping World
included in the Offering Memorandum, together with the related notes
thereto, present fairly the financial position, results of operations and
cash flows of Camping World, at the dates and for the periods to which they
relate, and have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, except as otherwise
stated therein. The unaudited consolidated financial statements of Camping
World and the related notes included in the Offering Memorandum present
fairly, in all material respects (on the basis presented), the consolidated
financial position, results of operations and cash flows of Camping World
at the dates and for the periods to which they relate, subject to year-end
audit adjustments, and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis, except as
otherwise stated therein. The summary and selected financial and
statistical data in the Offering Memorandum present fairly in all material
respects the information shown therein and have been prepared and compiled
on a basis consistent with the audited and unaudited financial statements
included therein, except as otherwise stated therein. Deloitte & Touche
LLP, which has examined certain of such financial statements as set forth
in its report included in the Offering Memorandum, is an independent public
accounting firm with respect to Camping World and its consolidated
subsidiaries within the meaning of the Act and the rules and regulations
thereunder.
11
(y) The financial statement information of Xxxxxx contained in the
pro forma condensed consolidated financial statements and other pro forma
financial information (including the notes thereto) included in Offering
Memorandum are derived from the audited financial statements of EPG, which
present fairly the financial position and results of operations of Xxxxxx,
at the dates and for the periods to which they relate, and have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis. Xxxxxx Xxxxx Weishair & Co., which has
examined the financial statements from which such audited consolidated
financial statement information was derived, is an independent public
accounting firm with respect to Xxxxxx and its consolidated subsidiaries
within the meaning of the Act and the rules and regulations thereunder.
(z) The pro forma condensed consolidated financial statements and
other pro forma financial information (including the notes thereto)
included in the Offering Memorandum (i) comply as to form in all material
respects with applicable requirements of Regulation S-X promulgated under
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and
(ii) have been computed on the bases described therein. The assumptions
used in the preparation of the pro forma financial statements and other pro
forma condensed consolidated financial information included in the Offering
Memorandum are reasonable and the adjustments used therein are reasonably
appropriate to give effect to the transactions or circumstances referred to
therein.
(aa) Each of the Company, the Subsidiaries and the Camping World
Subsidiaries maintains a system of internal accounting controls sufficient
to provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(ab) The statements in the Offering Memorandum under the headings
"Risk Factors--Holding Company Structure" and "Description of Other
Indebtedness" insofar as such statements purport to summarize particular
matters of law or particular provisions of the Credit Agreement and the AGI
Indenture (as defined in the Offering Memorandum) constitute accurate
summaries thereof in all material respects.
12
(ac) The statements in the Offering Memorandum under the headings
"Description of the Notes" and "Exchange Offer and Registration Rights"
insofar as such statements purport to summarize matters of law or the
material provisions of the Indenture, the Notes and the Notes Registration
Rights Agreement constitute accurate summaries thereof in all material
respects.
(ad) The Company is, and immediately after the Closing Date will be,
Solvent. As used herein, the term "SOLVENT" means, with respect to the
Company on a particular date, that on such date (i) the fair market value
of the assets of the Company is greater than the total amount of
liabilities (including contingent liabilities) of the Company, (ii) the
present fair salable value of the assets of the Company is greater than the
amount that will be required to pay the probable liabilities of the Company
on its debts as they become absolute and matured, (iii) the Company is able
to realize upon its assets and pay its debts and other liabilities,
including contingent obligations, as they mature and (iv) the Company does
not have unreasonably small capitalization to carry out its business as now
conducted and as proposed to be conducted including the capital needs of
the Company.
(ae) The Company has not taken nor will it take any action that might
cause this Agreement or the sale of the Notes to or by the Initial
Purchasers to violate Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System, in each case as in effect, or as the same may
hereafter be in effect, on the Closing Date.
(af) Neither the Company nor any of the Subsidiaries or the Camping
World Subsidiaries is now, nor will any of them be, after sale of the Notes
to be sold by the Company hereunder and application of the net proceeds
from such sale as described in the Offering Memorandum under the heading
"Use of Proceeds" and consummation of each of the transactions contemplated
by the Offering Memorandum, an "investment company" or a company
"controlled by" an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT").
(ag) Neither the Company nor any of its affiliates (as defined in
Rule 501(b) under the Act) has, directly or through any agent, sold,
offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Act) which could be integrated
with the sale of the Notes in a manner that would require the registration
of any of the Notes under the Act.
(ah) When the Notes are issued and delivered pursuant to this
Agreement and the Indenture, none of the Notes will be of the same class
(within the meaning of
13
Rule 144A) as securities of the Company which are listed on a national
securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system.
(ai) Neither the Company nor any person (other than the Initial
Purchasers, as to which the Company makes no representation) acting on its
behalf has engaged, in connection with the offering of the Notes, (i) in
any form of general solicitation or general advertising within the meaning
of Rule 502(c) under the Act, (ii) in any directed selling efforts within
the meaning of Rule 903 under the Act and the Commission's written releases
related thereto, (iii) in a public offering of the Notes within the meaning
of Section 4(2) under the Act or (iv) in any action which would require the
registration of the offering or sale of the Notes pursuant to this
Agreement.
(aj) Assuming the accuracy of the representations and warranties of
the Initial Purchasers contained in Section 4, it is not necessary in
connection with the offer, sale and delivery of the Notes to the Initial
Purchasers or the reoffer and resale by the Initial Purchasers in the
manner contemplated by Section 4 of this Agreement to register the Notes
under the Act or to qualify any indenture in respect of the Notes under the
Trust Indenture Act.
(ak) The Company has been advised by the National Association of
Securities Dealers, Inc. Private Offerings, Resales and Trading through
Automated Linkages market ("PORTAL") that the Notes have been designated
PORTAL eligible securities in accordance with the rules and regulations of
the National Association of Securities Dealers, Inc.
(al) None of the Company or the Subsidiaries or the Camping World
Subsidiaries has taken, nor will any of them take, directly or indirectly,
any action designed to, or that might be reasonably expected to, cause or
result in stabilization or manipulation of the price of the Notes.
(am) The statistical and market-related data included in the Offering
Memorandum are based on or derived from sources which the Company believes
to be reliable and accurate or represent the Company's good faith estimates
that are made on the basis of data derived from such sources.
(an) None of the Company, the Subsidiaries or any employee of the
Company or any of the Subsidiaries has made any payment of funds prohibited
by law, and no funds of the Company or any of the Subsidiaries have been
set aside to be used for any payment prohibited by law.
14
(ao) None of the Company, the Subsidiaries or the Camping World
Subsidiaries does business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of Section 517.075 of
Florida Statutes, as amended.
Any certificate signed by any director or officer of the Company or
any Subsidiary or Camping World Subsidiary and delivered to any Initial
Purchaser or to counsel for the Initial Purchasers shall be deemed a joint and
several representation and warranty by the Company and each of the Subsidiaries
to each Initial Purchaser as to the matters covered thereby.
2. PURCHASE AND SALE OF THE NOTES. Subject to the terms and conditions
and in reliance upon the representations and warranties set forth herein, the
Company agrees to issue and sell to the Initial Purchasers, severally and not
jointly, and the Initial Purchasers agree, severally and not jointly, to
purchase from the Company that principal amount of the Notes opposite such
Initial Purchaser's name on SCHEDULE II attached hereto, at a purchase price
equal to 97% of such principal amount.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Notes shall be
made at 9:00 A.M., New York City time, on April 2, 1997 at the offices of Weil,
Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such later
date and time, if any, as the Initial Purchasers and the Company shall agree
(such date and time of delivery and payment for the Notes being herein called
the "CLOSING DATE"). Delivery of the Notes shall be made to the Initial
Purchasers against payment by the Initial Purchasers of the purchase price
thereof to or upon the order of the Company by wire or book-entry transfer of
same-day funds to such account or accounts as the Company shall specify prior to
the Closing Date or by such other means as the parties hereto shall agree prior
to the Closing Date. Certificates for the Notes or interests therein shall be
registered in such names and in such denominations as the Initial Purchasers may
request not less than two full business days in advance of the Closing Date.
The Company agrees to make the Notes available for inspection,
checking and packaging by the Initial Purchasers in New York, New York, not
later than 9:00 A.M. on the business day prior to the Closing Date.
4. RESALE OF THE NOTES. The Initial Purchasers have advised the Company
that they propose to offer the Notes for resale upon the terms and conditions
set forth in this Agreement and in the Offering Memorandum. Each Initial
Purchaser, severally and not jointly, hereby represents and warrants to, and
agrees with, the Company that such Initial Purchaser (i) is a Qualified
Institutional Buyer or an institutional Accredited Investor, (ii) has not
solicited and, except pursuant to a registration statement which is effective
under the Act,
15
will not solicit offers for, or offer or sell, the Notes by means of any form of
general solicitation or general advertising within the meaning of Regulation D
under the Act or in any manner involving a public offering within the meaning of
Section 4(2) of the Act or by means of any directed selling efforts within the
meaning of Rule 903 under the Act and the Commission's written releases related
thereto and (iii) has solicited and will solicit offers for the Notes only from,
and has offered and will offer, sell or deliver the Notes only to, (A) persons
in the United States whom such Initial Purchaser reasonably believes in
accordance with Rule 144A(d)(1) to be Qualified Institutional Buyers or, if any
such person is buying for one or more institutional accounts for which such
person is acting as fiduciary or agent, only when such person has represented to
the Initial Purchasers that each such account is a Qualified Institutional
Buyer, to whom notice has been given that such sale or delivery is being made in
reliance on Rule 144A, and, in each case, in transactions meeting the
requirements of Rule 144A, (B) a limited number of other institutional investors
whom the Initial Purchasers reasonably believe to be Accredited Investors and
who provide to the Company and the Initial Purchasers a letter in the form of
Appendix A to the Offering Memorandum and (C) non-U.S. persons in reliance upon
Regulation S, in transactions meeting the requirements of Regulation S (which
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for non-U.S. persons (other than an estate or
trust)) who provide to the Company and the Initial Purchasers such
certifications and legal opinions as they may reasonably request. Each Initial
Purchaser also represents and warrants and agrees that it has offered and will
offer to sell the Notes only to, and has solicited and will solicit offers to
buy the Notes only from, persons that in purchasing such Notes will be deemed to
have represented and agreed as provided under "Notice to Investors" in the
Offering Memorandum.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Initial Purchasers that:
(a) The Company will furnish to the Initial Purchasers, without
charge, such number of copies of the Preliminary Offering Memorandum and
the Offering Memorandum and any amendments or supplements thereto as the
Initial Purchasers may reasonably request.
(b) The Company will not amend or supplement the Preliminary Offering
Memorandum or Offering Memorandum or any amendment or supplement thereto of
which the Initial Purchasers shall not previously have been advised and
furnished a copy for a reasonable period of time prior to the proposed
amendment or supplement and as to which the Initial Purchasers shall not
have given their consent. The Company will promptly, upon the reasonable
request of the Initial Purchasers or counsel for the Initial Purchasers,
make any amendments or supplements to the Preliminary Offering Memorandum
or the Offering Memorandum that may be
16
necessary or advisable in connection with the resale of the Notes by the
Initial Purchasers.
(c) If, at any time prior to completion of the distribution of the
Notes by the Initial Purchasers, any event shall occur or condition shall
exist as a result of which it is necessary, in the view of the Initial
Purchasers, to amend or supplement the Offering Memorandum in order that
the Offering Memorandum, as then amended or supplemented, will (i) not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or (ii) comply
with applicable law, then, in each such case, the Company will, subject to
paragraph (b) of this Section 5, promptly prepare such amendment or
supplement at its own expense as may be necessary to correct such untrue
statement or omission or to effect such compliance and furnish to the
Initial Purchasers such number of copies thereof as the Initial Purchasers
may reasonably request.
(d) For so long as any of the Notes, Exchange Notes or Private
Exchange Notes, if any, are outstanding, the Company shall furnish to the
Initial Purchasers copies of the reports and other documents and
information which the Company is required to deliver to the holders of the
Notes, Exchange Notes or Private Exchange Notes, if any, or the Trustee
pursuant to the Indenture.
(e) Neither the Company nor any of its affiliates (as defined in Rule
501(b) under the Act) will solicit any offer to buy or offer or sell Notes
(i) by means of any form of general solicitation or general advertising (as
such terms are used in Regulation D under the Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the Act
or (ii) by means of any directed selling efforts (as defined under
Regulation S and the Commission's written releases related thereto) prior
to the effectiveness of a registration statement with respect to the Notes
and, in any such case, only as contemplated by such effective registration
statement.
(f) Neither the Company nor any of its affiliates (as defined in
Rule 501(b) under the Act) will offer, sell or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act)
which could be integrated with the sale of any of the Notes in a manner
that would require the registration of any of the Notes under the Act.
(g) From and after the Closing Date, the Company will, so long as any
of the Notes are outstanding, either (i) file reports and other information
with the Commission under Section 13 or 15(d) of the Exchange Act, or
(ii) in the event they are not permitted to file reports and other
information under Section 13 or 15(d) of
17
the Exchange Act, furnish to holders of Notes and prospective purchasers
thereof designated by such holders, upon request of such holders or such
prospective purchasers, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in
connection with resales of any of the Notes.
(h) The Company will use its best efforts in cooperation with the
Initial Purchasers to (i) permit the Notes to be eligible for clearance and
settlement through The Depository Trust Company, and (ii) include quotation
of the Notes on PORTAL.
(i) The Company will cooperate with the Initial Purchasers and their
counsel in connection with the registration or qualification of the Notes
for offering and sale by the Initial Purchasers under the securities or
Blue Sky laws of such jurisdictions as the Initial Purchasers may designate
and the continuance of such qualifications in effect for as long as may be
necessary to complete the distribution of the Notes; PROVIDED that in
connection therewith the Company shall not be required to (i) qualify to do
business as a foreign corporation or (ii) execute a general consent to
service of process in any jurisdiction where it is not then so subject.
The Company shall promptly advise the Initial Purchasers of the receipt by
the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of the Notes for offering or
sale in any jurisdiction or the institution, threatening or contemplation
of any proceeding for such purpose.
(j) Prior to the Closing Date, the Company will furnish to the
Initial Purchasers, as soon as they have been prepared by or are available
to the Company, a copy of any unaudited interim consolidated financial
statements of the Company and the Subsidiaries and the Camping World
Subsidiaries for any period subsequent to the period covered by the most
recent financial statements of the Company and the Subsidiaries appearing
in the Offering Memorandum.
(k) The Company shall apply the net proceeds from the sale of the
Notes as set forth under the caption "Use of Proceeds" in the Offering
Memorandum.
(l) Neither the Company nor any of the Subsidiaries or the Camping
World Subsidiaries shall voluntarily claim, and shall actively resist any
attempt to claim, the benefit of any usury laws against the holders of the
Notes.
6. EXPENSES.
(a) The Company agrees to pay all costs and expenses incident to the
performance of its obligations under this Agreement whether or not the
transactions
18
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 10 hereof, including, but not limited to, all costs and expenses
incident to (i) the printing, word processing or other production of all
documents with respect to such transactions, including, but not limited to, any
costs of printing or producing (including word processing and duplication) the
Preliminary Offering Memorandum and the Offering Memorandum and any amendment or
supplement thereto and any Blue Sky or legal investment memoranda (which shall
include disbursements of counsel for the Initial Purchasers in respect thereof),
(ii) all arrangements relating to the delivery to the Initial Purchasers of the
foregoing documents, (iii) the fees and disbursements of counsel, accountants
and any other experts or advisors retained by the Company, (iv) preparation,
issuance and delivery to the Initial Purchasers of any certificates evidencing
the Notes, (v) the fees and expenses of the Trustee, including fees and expenses
of its counsel, (vi) the qualification of the Notes and determination of their
eligibility for investment under state securities and Blue Sky laws, including
filing fees and fees and disbursements of counsel for the Initial Purchasers
(including any local counsel retained to render any opinion required by any
state securities or Blue Sky authorities) relating thereto, (vii) all expenses
and listing fees in connection with the application for quotation of the Notes
on PORTAL, (viii) any meetings with prospective investors in the Notes and
(ix) any fees charged by investment rating agencies for the rating of the Notes.
(b) If the sale of the Notes provided for herein is not consummated
because any condition to the obligations of the Initial Purchasers set forth in
Section 7 hereof is not satisfied, because this Agreement is terminated pursuant
to Section 10 hereof or because of any failure, refusal or inability on the part
of the Company to perform all obligations and satisfy all conditions on its part
to be performed or satisfied hereunder other than by reason of a default by the
Initial Purchasers in payment for the Notes on the Closing Date, the Company
shall reimburse each Initial Purchaser promptly upon demand for all
out-of-pocket expenses (but excluding the fees and disbursements of counsel)
that shall have been incurred by each Initial Purchaser in connection with the
proposed purchase and sale of the Notes. If this Agreement is terminated
pursuant to Section 11 by reason of the default of one or more of the Initial
Purchasers, the Company shall not be obligated to reimburse such defaulting
Initial Purchaser on account of such expenses.
7. CONDITIONS OF THE INITIAL PURCHASERS' OBLIGATIONS. The obligation of
each Initial Purchaser to purchase and pay for the Notes shall be subject, in
each such Initial Purchaser's discretion, to the accuracy of the representations
and warranties of the Company contained herein as of the Closing Date as if made
on and as of the Closing Date, to the accuracy of the statements of the
Company's officers and representatives made pursuant to the provisions hereof,
to the performance by the Company of its covenants and agreements hereunder and
to the following additional conditions:
19
(a) The Initial Purchasers shall have received an opinion, in form
and substance satisfactory to the Initial Purchasers, dated the Closing
Date and addressed to the Initial Purchasers, of Xxxxxx, Xxxxxxxx and
Xxxxxx, P.A., counsel for the Company, substantially in the form of ANNEX A
hereto.
(b) The Initial Purchasers shall have received an opinion, dated the
Closing Date and addressed to the Initial Purchasers, of Weil, Gotshal &
Xxxxxx LLP, counsel for the Initial Purchasers, with respect to such
matters as the Initial Purchasers may reasonably require, and the Company
shall furnish to such counsel such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters.
(c) The Initial Purchasers shall have received from Deloitte & Touche
LLP comfort letters dated the date hereof and the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers and counsel for
the Initial Purchasers.
(d) Subsequent to the date hereof or, if earlier, the dates as of
which information is given in the Offering Memorandum (exclusive of any
amendment or supplement thereto), except as set forth in the Offering
Memorandum (i) the Company, the Subsidiaries or the Camping World
Subsidiaries shall not have incurred any liabilities or obligations, direct
or contingent, that are material to the Company, the Subsidiaries and the
Camping World Subsidiaries, taken as a whole, or entered into any
transactions that are material to the business, condition (financial or
other) or results of operations of the Company, the Subsidiaries and the
Camping World Subsidiaries, taken as a whole, and there shall not have been
any change in the capital stock or long-term indebtedness of the Company
that is material to the business, condition (financial or other) or results
of operations of the Company, the Subsidiaries and the Camping World
Subsidiaries, taken as a whole, and (ii) there shall not have been any
change or any development involving a prospective change, in or affecting
the general affairs, condition (financial or other), results of operations,
business, properties or assets of the Company, the Subsidiaries and the
Camping World Subsidiaries, taken as a whole, the effect of which, in any
case referred to in this clause (ii), is, in the sole judgment of the
Initial Purchasers, so material and adverse as to make it impractical or
inadvisable to proceed with the purchase and the delivery of the Notes as
contemplated by the Offering Memorandum.
(e) No order suspending the qualification or exemption from
qualification of any of the Notes in any jurisdiction shall have been
issued and no proceeding for that purpose shall have been commenced or
shall be pending or threatened.
20
(f) The Company shall have furnished to the Initial Purchasers a
certificate of the Chairman of the Board or the Chief Executive Officer and
the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Offering Memorandum, any amendment or supplement to
the Offering Memorandum, this Agreement and the other Transaction Documents
and that:
(i) The representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied on or prior to the Closing Date;
(ii) Since the date of the most recent financial statements in
the Offering Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), no event or development has occurred,
and no information has become known, that, individually or in the
aggregate, has or would be reasonably likely to have a Material
Adverse Effect; and
(iii) The sale of the Notes hereunder has not been enjoined
(temporarily or permanently).
(g) After the execution and delivery of this Agreement, there shall
not have been (i) any downgrading by Standard & Poor's Corporation ("S&P")
in the rating of the Notes; (ii) any downgrading by Xxxxx'x Investors
Service Inc. ("MOODY'S") in the rating of the Notes; or (iii) any notice
given by S&P or Moody's of any intended or potential downgrading in any
such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(h) On the Closing Date, the Initial Purchasers shall have received
the Notes Registration Rights Agreement substantially in the form of ANNEX
B hereto executed by the Company and AGI and such agreement shall be in
full force and effect at all times from and after the Closing Date.
(i) The Indenture shall have been duly executed and delivered by the
Company and the Trustee, and the Notes shall have been duly executed and
delivered by the Company and duly authenticated by the Trustee.
(j) The Initial Purchasers shall have received evidence, reasonably
satisfactory to them, that (i) the Camping World Acquisition shall have
been consummated in accordance with the terms of the CWI Stock Purchase
Agreement
21
and (ii) the initial funding shall have occurred under the Credit Agreement
and AGI shall have received gross cash proceeds therefrom sufficient to
effect the Camping World Acquisition and the replacement of the existing
AGI senior secured financing facility with the senior secured financing
facility provided under the Credit Agreement as set forth in the Offering
Memorandum.
(k) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(l) The representations and warranties of the Company contained in
this Agreement shall be true and correct in all material respects on and as
of the date hereof and on and as of the Closing Date as if made on and as
of the Closing Date; the statements of the Company's officers made pursuant
to any certificate delivered in accordance with the provisions hereof shall
be true and correct in all material respects on and as of the date made and
on and as of the Closing Date; the Company shall have performed in all
material respects all covenants and agreements and satisfied all conditions
on their part to be performed or satisfied hereunder at or prior to the
Closing Date; and, except as described in the Offering Memorandum
(exclusive of any amendment or supplement thereto after the date hereof),
subsequent to the date of the most recent financial statements in such
Offering Memorandum, there shall have been no event or development, and no
information shall have become known, that, individually or in the
aggregate, has or would be reasonably likely to have a Material Adverse
Effect.
(m) The Initial Purchasers shall have received copies of the executed
CWI Stock Purchase Agreement and the executed Credit Agreement, certified
by the Secretary or an Assistant Secretary of the Company as being true,
correct and complete. The Credit Agreement shall be in form and substance
reasonably satisfactory to the Initial Purchasers.
(n) On or before the Closing Date, the Initial Purchasers shall have
received such further certificates, documents or other information as it
may have reasonably requested from the Company.
If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
satisfactory in form and substance to the Initial Purchasers, this Agreement and
all obligations of the Initial Purchasers hereunder may be cancelled on, or any
time prior to, the Closing Date by the Initial Purchasers. Notice of such
cancellation shall be given to the Company in accordance with Section 13. The
Company shall furnish to the Initial Purchasers such conformed copies of such
opinions,
22
certificates, letters and documents in such quantities as the Initial Purchasers
shall reasonably request.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and AGI, jointly and severally, agree to indemnify
and hold harmless each Initial Purchaser, each person, if any, who controls each
Initial Purchaser within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act and the directors, officers, employees and agents of each
Initial Purchaser and each such controlling person against any losses, claims,
damages or liabilities, joint or several, to which each Initial Purchaser, such
controlling person or such director, officer, employee or agent may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions, suits or proceedings in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Preliminary Offering Memorandum
or the Offering Memorandum or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or otherwise based upon the matters contemplated herein,
and will reimburse, as incurred, each Initial Purchaser, each such controlling
person and each such director, officer, employee or agent for any legal or other
expenses incurred by such indemnified party in connection with investigating or
defending or preparing to defend against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action in respect
thereof; PROVIDED, that the Company and AGI shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission (i) made in the Preliminary Offering Memorandum or the Offering
Memorandum or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company or AGI by such
Initial Purchaser about such Initial Purchaser specifically for use therein or
(ii) made in the Preliminary Offering Memorandum that is corrected in the
Offering Memorandum (or any amendment or supplement thereto) if it is proven
that the person asserting any such loss, claim, damage or liability purchased
Notes from such Initial Purchaser and was not sent or given a copy of the
Offering Memorandum (as amended or supplemented), at or prior to the written
confirmation of the sale of such Notes to such person and the untrue statement
or alleged untrue statement of a material fact, or the omission or alleged
omission to state a material fact, that is found to be or is alleged to be the
basis of liability in such Preliminary Offering Memorandum was corrected in the
Offering Memorandum (as amended or supplemented) and if such Initial Purchaser
would not have been liable had a copy of such Offering Memorandum been so sent
or given unless such failure to deliver the Offering Memorandum (as amended or
supplemented) was a result of non-compliance by the Company with Section 5(a) of
this
23
Agreement. This indemnity agreement will be in addition to any liability which
the Company or AGI may otherwise have.
(b) The Initial Purchasers will, severally, indemnify and hold
harmless the Company, AGI, each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act and its
directors, officers, employees and agents against any losses, claims, damages or
liabilities to which the Company, AGI or any such director, officer, employee,
agent or controlling person may become subject under the Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions, suits or proceedings in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the Preliminary Offering Memorandum or the Offering Memorandum or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Initial Purchaser about such Initial Purchaser specifically for use therein;
and, subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Company, AGI or any such director, officer, employee, agent or controlling
person in connection with investigating or defending or preparing to defend
against or appearing as a third-party witness in connection with any such loss,
claim, damage, liability or any action in respect thereof. This indemnity
agreement will be in addition to any liability which the Initial Purchasers may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action or proceeding, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party (i) will not
relieve it from any liability under paragraph (a) or (b) above unless and to the
extent such failure results in the forfeiture by the indemnifying party of
substantial rights or defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such claim or action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it elects by delivery
of notice to the indemnified party promptly after receiving notice of the action
from the indemnified party, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party; PROVIDED, HOWEVER, that if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the
24
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have been advised by counsel
that there may be one or more legal defenses available to it and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, or (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after receipt by the indemnifying
party of notice of the institution of such action, then, in each such case, the
indemnifying party shall not have the right to direct the defense of such action
on behalf of such indemnified party or parties and such indemnified party or
parties shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the immediately
preceding sentence (it being understood, however, that in connection with such
action the indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to local counsel) in any one action or
separate but substantially similar actions in the same jurisdiction arising out
of the same general allegations or circumstances, designated by the Initial
Purchasers in the case of paragraph (a) of this Section 8 or the Company and AGI
in the case of paragraph (b) of this Section 8, representing the indemnified
parties under such paragraph (a) or paragraph (b), as the case may be, who are
parties to such action or actions) or (ii) the indemnifying party has authorized
in writing the employment of counsel for the indemnified party at the expense of
the indemnifying party.
After such notice from the indemnifying party to such indemnified
party, the indemnifying party will not be liable for the costs and expenses of
any settlement of such action effected by such indemnified party without the
consent of the indemnifying party (which consent shall not be unreasonably
withheld), unless such indemnified party waived its rights under this Section 8,
in which case the indemnified party may effect such a settlement without such
consent.
Notwithstanding the foregoing, neither the Company nor AGI will settle
or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought from the Company or AGI hereunder (whether or not an Initial
Purchaser or any person who controls an Initial Purchaser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act is a party to such
claim, action, suit or proceeding) without the prior written consent of the
Initial Purchasers (which consent shall not be unreasonably withheld). The
Company and AGI shall not, without the prior written consent of the Initial
Purchasers,
25
effect any settlement or compromise of any pending or threatened proceeding in
respect of which any Initial Purchaser is or could have been a party, or
indemnity could have been sought hereunder by any Initial Purchaser, unless such
settlement (A) includes an unconditional written release of the Initial
Purchasers, in form and substance reasonably satisfactory to the Initial
Purchasers, from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of any Initial Purchaser.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages,
expenses or liabilities (or actions, suits or proceedings in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions,
suits or proceedings in respect thereof) in such proportion as is appropriate to
reflect (i) the relative benefits received by the indemnifying party or parties
on the one hand and the indemnified party on the other from the offering of the
Notes or (ii) if the allocation provided by the foregoing clause (i) is not
permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions, suits or proceedings in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received by
the Company and AGI on the one hand and the Initial Purchasers on the other
shall be deemed to be in the same proportion as the total proceeds from the
offering (before deducting expenses) received by the Company or AGI bears to the
total purchase discounts and commissions received by the Initial Purchasers.
The relative fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Initial Purchasers, the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. Each of the Company and AGI and the Initial
Purchasers agrees that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Initial Purchaser
shall be obligated to make contributions hereunder that in the aggregate exceed
the amount of the purchase discount or commission applicable to the Notes
received by such Initial Purchaser under this Agreement, less the aggregate
amount of any damages that such Initial Purchaser has otherwise been required to
pay in respect of the same or any substantially similar claim, and no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
26
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this paragraph (d), each
director, officer, employee and agent of an Initial Purchaser and each person,
if any, who controls an Initial Purchaser within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Initial Purchaser, and each director and officer of the
Company and each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company.
9. SURVIVAL. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company and its officers and
the Initial Purchasers set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the Company,
any of its officers or directors, the Initial Purchasers, any director, officer,
employee or agent of an Initial Purchaser or any controlling person referred to
in Section 8 hereof, or (ii) delivery of and payment for the Notes.
Notwithstanding any other provision of this Agreement, the respective
agreements, covenants, indemnities and other statements set forth in Sections 6,
8, 13 and 15 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
10. TERMINATION.
(a) This Agreement may be terminated in the sole discretion of the
Initial Purchasers by notice to the Company given prior to delivery and payment
for the Notes in the event that the Company shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto or, if at or prior to
delivery and payment for the Notes:
(i) there has been, since the respective dates of which
information is given in the Offering Memorandum, any event or circumstance
which has had or could have a Material Adverse Effect, whether or not
arising in the ordinary course of business;
(ii) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ National Market System
shall have been suspended or minimum or maximum prices shall have been
established on any of such exchanges;
(iii) a general banking moratorium shall have been declared by
State of New York or United States authorities;
27
(iv) there shall have been an outbreak or escalation of
hostilities or any other calamity or crisis having an effect on the
financial markets or the market for the Notes and other similar securities
that, in the judgment of the Initial Purchasers, makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Notes as
contemplated by this Agreement and the Offering Memorandum;
(v) there has been, any change, or any development involving a
prospective change, in the United States or international financial,
political or economic conditions as would, in the Initial Purchasers'
judgment, be likely to prejudice the success of the proposed sale or
distribution of the Notes, whether in the primary market or in respect of
dealings in the secondary market; or
(vi) any securities of the Company shall have been downgraded or
placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating agency.
(b) Termination of this Agreement pursuant to this Section 10 shall
be without liability of any party to any other party except as provided in
Section 9 hereof.
11. DEFAULTING INITIAL PURCHASERS.
(a) If, on the Closing Date, any Initial Purchaser defaults in the
performance of its obligations under this Agreement, the non-defaulting Initial
Purchasers may make arrangements for the purchase of the Notes which such
defaulting Purchaser agreed but failed to purchase by other persons satisfactory
to the Company and the non-defaulting Initial Purchasers, but if no such
arrangements are made within 36 hours after such default, this Agreement shall
terminate without liability on the part of the non-defaulting Initial Purchasers
or the Company, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Section 6 and except that the
provisions of Sections 8, 13 and 15 shall not terminate and remain in effect.
As used in this Agreement, the term "Initial Purchasers" includes, for all
purposes of this Agreement unless the context otherwise requires, any party not
listed in Schedule I hereto that, pursuant to this Section 11, purchases Notes
which a defaulting Initial Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company or any non-defaulting
Initial Purchaser for damages caused by its default. If other persons agree to
purchase the Notes of a defaulting Initial Purchaser, either the non-defaulting
Initial Purchasers or the Company may postpone the Closing Date for up to seven
full business days in order to effect any changes that in the reasonable opinion
of counsel for the Company or counsel for the Initial Purchasers may be
28
necessary in the Offering Memorandum or in any other document or arrangement,
and the Company agrees to reasonably promptly prepare any amendment or
supplement to the Final Offering Memorandum that effects any such changes.
12. INFORMATION SUPPLIED BY THE INITIAL PURCHASERS. The statements set
forth in the last paragraph on the front cover page and under the heading "Plan
of Distribution" in the Preliminary Offering Memorandum and the Offering
Memorandum (to the extent such statements relate to an Initial Purchaser)
constitute the only information furnished by such Initial Purchaser to the
Company for the purposes of Sections 1(a) and 8 hereof. The Initial Purchasers
confirm that such statements (to such extent) are correct.
13. NOTICES. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered (a) to the
Company or AGI at:
Affinity Group Holding, Inc.
00 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
with a copy to:
Xxxxxx, Xxxxxxxx and Xxxxxx, P.A.
0000 Xxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
or (b) to the Initial Purchasers:
Citicorp Securities, Inc.
Citibank Canada Securities Limited
Citibank International plc
c/o Citicorp Securities, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: High-Yield Finance Group
and
29
CIBC Wood Gundy Securities Corp.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: High-Yield Finance Group
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Any notice given hereunder may be made by telecopier or telephone, but if so
made shall be subsequently confirmed in writing.
14. SUCCESSORS. This Agreement shall inure to the benefit of and shall be
binding upon the Initial Purchasers, the Company and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained, this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the indemnities
of the Company and AGI contained in Section 8 of this Agreement shall also be
for the benefit of the directors, officers, employees and agents of the Initial
Purchasers and any person or persons who control the Initial Purchasers within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act and
(ii) the indemnities of the Initial Purchasers contained in Section 8 of this
Agreement shall also be for the benefit of the directors and officers of the
Company and any person or persons who control the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of Notes
from an Initial Purchaser shall be deemed a successor to such Initial Purchaser
solely because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Initial Purchasers, AGI and the Company in accordance with its terms.
Very truly yours,
AFFINITY GROUP HOLDING, INC.
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
The undersigned is executed and delivered as of the date first written
above for the purpose of being bound by Sections 8, 9, 10, 13, 14, 15 and 16
hereof.
AFFINITY GROUP, INC.
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
Confirmed and accepted as of
the date first above written:
CITICORP SECURITIES, INC.
CITIBANK CANADA SECURITIES LIMITED
CITIBANK INTERNATIONAL PLC
CIBC WOOD GUNDY SECURITIES CORP.
By: Citicorp Securities, Inc.
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
31
SCHEDULE I
SUBSIDIARIES
Affinity Group, Inc.
Xxxxxx Publishing Group, Inc.
Expositions Group, Inc.
Affinity Insurance Group, Inc.
Affinity Brokerage, Inc.
Affinity Road and Travel Club, Inc.
Affinity Group Thrift Holding Corp.
Affinity Thrift and Loan
AGI Properties of Colorado, Inc.
A-B Development Co.
Camp Coast to Coast, Inc.
Golf Card Holding Corporation
Golf Card International Corp.
Golf Card Resort Services, Inc.
GSS Enterprises, Inc.
National Association for Female Executives, Inc.
TL Enterprises, Inc.
VBI, Inc.
Venture Enterprises, Inc. (being dissolved)
Xxxxxxx Publications Corporation
32
SCHEDULE II
Principal
Amount of
Initial Purchaser Notes
------------------------------------------------------------ -----
Citicorp Securities, Inc...................................... $ 34,666,667
Citibank Canada Securities Limited............................ 34,666,667
Citibank International plc.................................... 34,666,667
CIBC Wood Gundy Securities Corp............................... 26,000,000
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
33
Annex A
OPINION OF COUNSEL FOR THE COMPANY
All capitalized terms not defined herein have the meanings set forth
in the Purchase Agreement to which this Annex A is attached.
(1) Each of the Company, the Subsidiaries and the Camping World
Subsidiaries has been duly incorporated and each of the Company, the
Subsidiaries and the Camping World Subsidiaries is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation with authority and power, corporate or otherwise, to
own, lease and operate its properties and to conduct its business as
described or contemplated in the Offering Memorandum.
(2) As of the date indicated in the Offering Memorandum, the Company had
the authorized, issued and outstanding capital stock as set forth
under the caption "Actual" under the heading "Capitalization" in the
Offering Memorandum; all of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable; and, to such counsel's
knowledge, the issuance of the Notes and the consummation of the
transactions contemplated by the Transaction Documents do not give any
person the right to require registration of any securities of the
Company or any of the Subsidiaries or the Camping World Subsidiaries
except for the rights granted pursuant to the Notes Registration
Rights Agreement.
(3) Based solely on such counsel's review of stock records, the Company
owns of record and, to such counsel's knowledge, beneficially, either
directly or indirectly, 100% of the capital stock of the Subsidiaries
and the Camping World Subsidiaries. All of the issued and outstanding
shares of each of the Subsidiaries and the Camping World Subsidiaries
have been validly issued and are fully paid and non-assessable and
were not issued in violation of preemptive or similar rights; and, to
such counsel's knowledge, such shares are owned free and clear of any
liens, claims or encumbrances of any kind except for liens, claims or
encumbrances arising in respect of the Credit Agreement and
limitations on transfer arising in respect of federal or state
securities laws.
(4) The issuance, sale and delivery of the Notes, the Exchange Notes and,
if issued, the Private Exchange Notes, the execution, delivery and
performance of the Transaction Documents, the consummation by each of
the Company and AGI of the transactions contemplated hereby and
thereby and the compliance by each of the Company and
A-1
AGI with the terms of the foregoing do not and will not conflict with
or constitute or result in a breach or violation by the Company or any
of the Subsidiaries or the Camping World Subsidiaries of (A) any of
the terms or provision of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) by
the Company or any of the Subsidiaries or the Camping World
Subsidiaries or give rise to any right to accelerate the maturity or
require the prepayment of any indebtedness under, or result in the
creation or imposition of any lien, charge, security interest or other
encumbrance upon any property or assets of the Company or any of the
Subsidiaries or the Camping World Subsidiaries under, any Contract
known to such counsel, (B) the applicable Organization Documents of
the Company or any of the Subsidiaries or the Camping World
Subsidiaries, or (C) any Law applicable to the Company or any of the
Subsidiaries or the Camping World Subsidiaries.
(5) Each of the Company and AGI has all requisite corporate power and
authority to execute, deliver and perform its respective obligations
under the Agreement and to consummate the transactions contemplated
hereby. The Agreement has been duly and validly authorized, executed
and delivered by each of the Company and AGI and constitutes the
legal, valid and binding obligation of each of the Company and AGI,
enforceable against each of them in accordance with its terms, except
for the Enforceability Exceptions and as to rights of indemnification
or contribution thereunder may be limited by principles of public
policy or federal or state securities laws relating thereto.
(6) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Indenture. The
Indenture has been duly and validly authorized, executed and delivered
by the Company and (assuming the due execution and delivery thereof by
the Trustee) constitutes the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms, except for the Enforceability Exceptions; the Indenture is in
sufficient form for due qualification under the Trust Indenture Act.
(7) The Company has all requisite corporate power and authority to
execute, deliver and perform each of its obligations under the Notes,
the Exchange Notes and the Private Exchange Notes. The Notes, the
Exchange Notes and the Private Exchange Notes have each been duly and
validly authorized by the Company and, when duly executed by the
Company and authenticated by the Trustee in accordance with the
provisions of the Indenture, and, in the case of
A-2
the Notes, when delivered and paid for in the manner provided for
herein, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture and will be
enforceable against the Company in accordance with their terms, except
for the Enforceability Exceptions.
(8) Each of the Company and AGI has all requisite corporate power and
authority to execute, deliver and perform its respective obligations
under the Notes Registration Rights Agreement. The Notes Registration
Rights Agreement has been duly and validly authorized, executed and
delivered by each of the Company and AGI and (assuming the due
authorization, execution and delivery thereof by the Initial
Purchasers) constitutes the legal, valid and binding obligation of
each of the Company and AGI, enforceable against each of them in
accordance with its terms except for the Enforceability Exceptions and
as to rights of indemnification or contribution thereunder may be
limited by principles of public policy or federal or state securities
laws relating thereto.
(9) Each of the Company, the Subsidiaries and the Camping World
Subsidiaries has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Credit
Agreement (to the extent a party thereto). The CWI Stock Purchase
Agreement has been duly and validly authorized, executed and delivered
by AGI and (assuming the due execution and delivery thereof by the
other parties thereto), constitutes the legal, valid and binding
obligation of AGI, enforceable against it in accordance with its terms
except for the Enforceability Exceptions and as to rights and
indemnification or contribution thereunder may be limited by
principles of public policy or federal or state securities laws
relating thereto. The Credit Agreement has been duly and validly
authorized, executed and delivered by the Company, the Subsidiaries
and the Camping World Subsidiaries and (assuming the due execution and
delivery thereof by Fleet National Bank and the other lender
institutions party thereto) constitutes the legal, valid and binding
obligation of the Company, the Subsidiaries and the Camping World
Subsidiaries, enforceable against each of them in accordance with its
terms except for the Enforceability Exceptions.
(10) Except for such consents, approvals, authorizations, exemptions,
orders or decrees as may be required under (i) applicable state
securities or "Blue Sky" laws in connection with the purchase and
resale of the Notes by the Initial Purchasers, (ii) the Trust
Indenture Act in connection with the issuance of Exchange Notes or
(iii) the Act and state securities or "Blue Sky" laws in connection
the actions contemplated by the Notes Registration Rights
A-3
Agreement, as to which no opinion is expressed and except for such
consents, approvals, authorizations, exemptions, orders or decrees
which have been obtained and are in full force and effect, no consent,
approval, authorization, exemption, order or decree of any court or
governmental or regulatory agency or body (including without
limitation, the FTC and the DOJ) is required (x) for the execution,
delivery and performance by the Company or AGI of this Agreement or
any other Transaction Document (to the extent a party thereto) or by
the Company or any of the Subsidiaries or the Camping World
Subsidiaries of the Acquisition Documents (to the extent a party
thereto), (y) the valid authorization, authentication, issuance, sale
and delivery of the Notes, the Exchange Notes or the Private Exchange
Notes or (z) to permit the Company to effect payments of principal of,
premium and interest on the Notes, the Exchange Notes and, if issued,
the Private Exchange Notes.
(11) To such counsel's knowledge, (i) there is no legal action, suit,
proceeding, inquiry or investigation before or by any court or
governmental or regulatory body or agency or arbitrator (including
without limitation the FTC and the DOJ) (domestic or foreign) now
pending or threatened against or affecting the Company or any of the
Subsidiaries or the Camping World Subsidiaries or any of their
respective properties which, individually or in the aggregate, would
have a Material Adverse Effect except as may be disclosed in the
Offering Memorandum and (ii) there are no legal or governmental
proceedings involving or affecting the Company or any Subsidiary or
Camping World Subsidiary or any of their respective properties or
assets which would be required to be described in a prospectus
pursuant to the Act that are not described in the Offering Memorandum,
nor are there any material contracts or other documents which would be
required to be described in a prospectus pursuant to the Act that are
not described in the Offering Memorandum.
(12) The Company has not taken nor will it take any action that might cause
this Agreement or the sale of the Notes to or by the Initial
Purchasers to violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System, in each case as in effect, or
as the same may hereafter be in effect, on the Closing Date.
(13) The statements in the Offering Memorandum under the headings
"Description of the Notes" and "Exchange Offer and Registration
Rights" insofar as such statements purport to summarize matters of law
or the material provisions of the Indenture, the Notes, and the Notes
Registration Rights Agreement constitute accurate summaries thereof in
all material respects.
A-4
(14) Neither the Company nor any of the Subsidiaries or the Camping World
Subsidiaries is now, nor will any of them be, after sale of the Notes
to be sold by the Company hereunder and application of the net
proceeds from such sale as described in the Offering Memorandum under
the heading "Use of Proceeds" and consummation of each of the
transactions contemplated by the Offering Memorandum, an "investment
company" or a company "controlled by" an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(15) Assuming the accuracy of the representations and warranties of the
Initial Purchasers contained in Section 4 and the due performance by
the Initial Purchasers of their obligations under Section 4, it is not
necessary in connection with the offer, sale and delivery of the Notes
to the Initial Purchasers or the reoffer and resale by the Initial
Purchasers in the manner contemplated by Section 4 of this Agreement
to register the Notes under the Act or to qualify any indenture in
respect of the Notes under the Trust Indenture Act.
In addition such counsel shall also include within their opinion a
statement to the effect that such counsel has participated in conferences with
representatives of the Initial Purchasers, counsel to the Initial Purchasers,
officers and other representatives of the Company, and representatives of the
independent public accountants of the Company, at which conferences the contents
of the Offering Memorandum and related matters were discussed, and although such
counsel has not verified and does not pass upon or assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Offering Memorandum (except and only to the extent as set forth in paragraph 13
above), on the basis of the foregoing (relying as to materiality to a large
extent upon representations and opinions of officers and other representatives
of the Company), no facts have come to the attention of such counsel which lead
such counsel to believe that the Offering Memorandum at the date thereof or as
of the Closing Date, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED that such counsel need not express any comment
with respect to the financial statements including the notes thereto and
supporting schedules, any pro forma financial statements or any other financial
and statistical data set forth or referred to in the Offering Memorandum.
References to the Offering Memorandum in this Annex A include any
amendments or supplements made thereto in accordance with the terms of the
Purchase Agreement on or prior to the Closing Date.
A-5
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of laws of any jurisdiction other than
the Federal law of the United States and the laws of the State of Minnesota and
the General Corporation Law of the State of Delaware, (B) as to the laws of the
states of New York and Kentucky, such counsel may assume that such laws are
substantially the same as the laws of the State of Minnesota, and (C) may rely,
as to matters of fact, to the extent they deem proper on representations or
certificates of responsible officers of the Company and certificates of public
officials.
