Exhibit 10.2
EXECUTION COPY
AMERICREDIT FINANCIAL SERVICES,
INC.
NOTE PURCHASE
AGREEMENT
Fairholme Funds, Inc.
4400 Biscayne
Boulevard, 9 th Floor
Miami, Florida 33137
November 24, 2008
Ladies and Gentlemen:
AmeriCredit Financial Services,
Inc., a corporation organized and existing under the laws of
Delaware (the “ Sponsor ”), AFS SenSub Corp., a
Nevada corporation (the “ Seller ”), and
AmeriCredit Corp. (“ AmeriCredit ”) (the
Sponsor, the Seller and AmeriCredit, collectively, the “
Companies ” and each a “ Company
”), agree with you as follows:
Section 1. Issuance of
Notes . On or after the date of this Note Purchase Agreement
(this “ Agreement ”), the Companies will
authorize, sponsor and/or arrange the issuance and sale of certain
classes of asset-backed notes (the “ Notes ”) by
AmeriCredit Automobile Receivables Trust 2008-2, a Delaware
statutory trust (the “ Trust ”), pursuant to an
indenture between the Trust and the trustee and trust collateral
agent named therein (the “ Trustee ”). The Notes
will be issued on the date (the “ Closing Date
”) specified in the Indenture and shall be comprised of
AmeriCredit Automobile Receivables Trust 2008-2 Class B
Asset-Backed Notes (the “ Class B Notes ”),
AmeriCredit Automobile Receivables Trust 2008-2 Class C
Asset-Backed Notes (the “ Class C Notes ” and,
together with the Class B Notes, the “ Offered Notes
”) and certain additional classes of Notes as described in
the Indenture (the Indenture, together with the PPM (as defined
below) and any supplements or amendments related thereto, this
Agreement, the Registration Rights Agreement (as defined below),
the Offered Notes, the AmeriCredit Guaranty (as defined below) and
the related transaction documents, collectively, the “
Transaction Documents ”). The assets of the Trust will
include a pool of retail installment sale contracts secured by new
or used automobiles, light duty trucks and vans (the “
Receivables ”) and certain monies due thereunder. The
Trust will enter into a Sale and Servicing Agreement among the
Trust, the Sponsor, as servicer, the Seller and the entity named
therein as trust collateral agent and backup servicer (the “
Sale and Servicing Agreement ”) pursuant to which the
Receivables will be serviced. The Offered Notes will be delivered
by J.P. Morgan Securities Inc., as placement agent (the “
Placement Agent ”) under a placement agent agreement,
dated as of November 24, 2008 (the “ Placement Agent
Agreement ”) by and among the Sponsor, the Seller and the
Placement Agent and the remaining Notes (the “ Publicly
Offered Notes ”) will be offered and delivered by the
underwriters named in an underwriting agreement (the “
Underwriting Agreement ” and, together with the
Placement Agent Agreement, the “ Placement Agreements
”) by and among the Sponsor, the Seller and the
representative .
Section 2. Purchase and Sale
of Offered Notes . (a) In consideration of the issuance of
common stock in AmeriCredit Corp. to be made to Fairholme Funds,
Inc. (the “ Purchaser ”) pursuant to the
Exchange Agreement (the “ Exchange Agreement ”),
on the Closing
Date the Purchaser shall purchase $50,645,000
principal amount of the Class B Notes that are issued by the Trust
(or, if less, 100% of the principal amount of the Class B Notes
that are so issued) and $72,581,000 of the Class C Notes that are
issued by the Trust (or, if less, 100% of the principal amount of
the Class C Notes that are so issued) so long as such Offered Notes
meet the following criteria on the Closing Date:
(i) all such Offered Notes shall be
issued in book-entry form through the facilities of the Depository
Trust Company;
(ii) all such Offered Notes shall
bear a CUSIP number indicating issuance by the Trust;
(iii) the Offered Notes and the
transaction pursuant to which the Offered Notes are issued will
have the characteristics substantially as set forth in the
Preliminary Private Placement Memorandum, dated November 20,
2008 (including the Preliminary Prospectus Supplement that is dated
the same date, that is referenced therein and that was delivered to
the Purchaser therewith) that was delivered to the Purchaser on
November 20, 2008 (the “ PPM ”);
provided , that if prior to November 24, 2008 (the
“ Pricing Date ”) one or more classes of notes
issued by AmeriCredit Automobile Receivables Trust 2008-1 have been
downgraded or placed on a negative watch list or the equivalent by
either Standard & Poor’s, a division of The McGraw
Hill Companies, Inc. (“ S&P ”) or
Moody’s Investors Service, Inc. (“ Moody’s
”), then the Offered Notes and the transaction pursuant to
which the Offered Notes are issued will instead have the
characteristics set forth in a Preliminary Private Placement
Memorandum that will be delivered to the Purchaser at least two
(2) Business Days prior to the Closing Date that reflects any
revisions to the Offered Notes or the Transaction that are required
by either S&P or Moody’s to ensure that the Class B Notes
are rated at least “AA” by S&P and
“Aa2” by Moody’s on the Closing Date and the
Class C Notes are rated at least “A” by S&P and
“A3” by Moody’s on the Closing Date;
and
(iv) the interest rate on the
Offered Notes and the initial price to be paid by the Purchaser for
the Offered Notes (the “ Purchase Price ”) shall
have been set on the Pricing Date (and reflected in the Placement
Agent Agreement) at levels that, giving effect to the final
interest rates established for the other Notes, are reasonably
agreed upon by the Purchaser and the Companies to provide the
Purchaser with an annual yield of 18% (or, if consented to by the
Companies in their sole discretion, a greater annual yield) on each
Offered Note.
(b) The parties to this Agreement
acknowledge and agree that the Seller may elect to structure a
transaction for the purpose of issuing Offered Notes to be sold to
the Purchaser hereunder and that such intent shall not affect the
Purchaser’s obligation to purchase the related Offered Notes
(but such obligation will be subject to all of the terms and
conditions of this Agreement).
Section 3. Conditions of the
Obligations of the Purchaser . The obligation of the Purchaser
to purchase the Offered Notes pursuant to this Agreement is subject
to (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the
Companies
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set forth in Section 5 hereof,
(ii) the accuracy of the statements of officers of the
Companies made pursuant hereto, (iii) the performance by the
Companies of all of their respective obligations hereunder, and
(iv) the satisfaction of the following conditions as of the
date of this Note Purchase Agreement (the “ Execution
Date ”) and/or as of the Closing Date, as
applicable:
(a) On the Closing Date, all
conditions to the obligations of (i) the underwriters set
forth in the Underwriting Agreement with respect to the Publicly
Offered Notes and (ii) the Placement Agent set forth in the
Placement Agent Agreement with respect to the Offered Notes shall
have been complied with, and all such Notes shall have been duly
and validly issued.
(b) On the Closing Date, the
Purchaser shall have received copies of all opinions of counsel
delivered by or on behalf of the Companies, the Trustee, the Hedge
Counterparty, if applicable, the Owner Trustee and the Trust
pursuant to the terms of the Placement Agreements with such
opinions of counsel either addressed to the Purchaser or
accompanied by a letter permitting the Purchaser to rely on such
opinions as if the same were addressed to the Purchaser.
(c) On the Closing Date, the
Purchaser shall have received copies of the ratings letters
delivered by S&P and Moody’s indicating that the Class B
Notes are rated at least “AA” by S&P and
“Aa2” by Moody’s on the Closing Date and that the
Class C Notes are rated at least “A” by S&P and
“A3” by Moody’s on the Closing Date.
(d) On the Closing Date, the
Purchaser shall have received a true and complete copy of all
documents, letters and certificates delivered at the closing under
the Placement Agreements.
(e) On or prior to the Execution
Date, the Purchaser shall have received from Dewey &
LeBoeuf LLP, counsel for the Companies, a favorable opinion, dated
the Execution Date and satisfactory in form and substance to the
Purchaser and counsel for the Purchaser, to the effect
that:
(i) This Agreement has been duly
authorized, executed and delivered by the Sponsor and constitutes
the valid, legal and binding agreement of the Sponsor, enforceable
against the Sponsor in accordance with its terms.
(ii) This Agreement has been duly
authorized, executed and delivered by the Seller and constitutes
the valid, legal and binding agreement of the Seller, enforceable
against the Seller in accordance with its terms.
(iii) This Agreement and the
Exchange Agreement have been duly authorized, executed and
delivered by AmeriCredit Corp. and constitute the valid, legal and
binding agreement of AmeriCredit Corp., enforceable against
AmeriCredit Corp. in accordance with their terms.
(iv) No consent, approval,
authorization or order of, registration or filing with, or notice
to, courts, governmental agency or body or other tribunal is
required under federal laws or the laws of the State of New York,
for the execution, delivery and performance by the Sponsor, the
Seller and AmeriCredit Corp. of this Agreement, or by AmeriCredit
Corp. of the Exchange Agreement, except such as have been
obtained.
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(v) None of the execution, delivery
or performance by each of the Sponsor, the Seller and AmeriCredit
Corp. of this Agreement, or by AmeriCredit Corp. of the Exchange
Agreement (a) conflicts or will conflict with or results or
will result in a breach of, or constitutes or will constitute a
default under, any organizational document of the Companies or any
law, rule or regulation of the State of New York or the federal
government presently in effect, (b) to such counsel’s
knowledge, results in, or will result in the creation or imposition
of any lien, charge or encumbrance upon any Offered Notes, or
(c) by operation of law, results in, or will result in the
creation or imposition of any lien, charge or encumbrance upon any
Offered Notes.
(f) On or prior to the Closing Date,
the Purchaser shall have received from Dewey & LeBoeuf
LLP, counsel for the Companies, a favorable opinion, dated the
Closing Date and satisfactory in form and substance to the
Purchaser and counsel for the Purchaser, to the effect
that:
(i) The Registration Rights
Agreement has been duly authorized, executed and delivered by the
Sponsor and constitutes the valid, legal and binding agreement of
the Sponsor, enforceable against the Sponsor in accordance with its
terms.
(ii) The Registration Rights
Agreement has been duly authorized, executed and delivered by the
Seller and constitutes the valid, legal and binding agreement of
the Seller, enforceable against the Seller in accordance with its
terms.
(iii) The Registration Rights
Agreement and the AmeriCredit Guaranty have been duly authorized,
executed and delivered by AmeriCredit Corp. and constitute the
valid, legal and binding agreement of AmeriCredit Corp.,
enforceable against AmeriCredit Corp. in accordance with their
terms.
(iv) No consent, approval,
authorization or order of, registration or filing with, or notice
to, courts, governmental agency or body or other tribunal is
required under federal laws or the laws of the State of New York,
for the execution, delivery and performance by the Sponsor, the
Seller and AmeriCredit Corp. of the Registration Rights Agreement,
or by AmeriCredit Corp. of the AmeriCredit Guaranty, except such as
have been obtained.
(v) None of the execution, delivery
or performance by each of the Sponsor, the Seller and AmeriCredit
Corp. of the Registration Rights Agreement, or by AmeriCredit Corp.
of the AmeriCredit Guaranty (a) conflicts or will conflict
with or results or will result in a breach of, or constitutes or
will constitute a default under, any organizational document of the
Companies or any law, rule or regulation of the State of New York
or the federal government presently in effect, (b) to such
counsel’s knowledge, results in, or will result in the
creation or imposition of any lien, charge or encumbrance upon any
Offered Notes, or (c) by operation of law, results in, or will
result in the creation or imposition of any lien, charge or
encumbrance upon any Offered Notes.
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(vi) The sale of the Offered Notes
to the Purchaser is exempt from the registration requirements of
the Securities Act of 1933, as amended (the “ Securities
Act ”).
(vii) The Purchaser will have, upon
payment of the purchase price for the Class B Notes and Class C
Notes in the manner set forth in the Placement Agent Agreement,
good and marketable title to the Class B Notes and Class C Notes
free and clear of all liens, charges or encumbrances of any nature
whatsoever (other than any such liens, charges or encumbrances
created by the Purchaser).
(g) On the Closing Date, the
Purchaser shall have received from the Sponsor a certificate dated
as of the Closing Date executed by an authorized officer of the
Sponsor to the effect that the signer of such certificate has
carefully examined this Agreement and that: (i) the
representations and warranties of the Sponsor in this Agreement are
true and correct at and as of the Closing Date with the same effect
as if made on the Closing Date and (ii) the Sponsor has
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing
Date.
(h) On the Closing Date, the
Purchaser shall have received from the Seller a certificate dated
as of the Closing Date executed by an authorized officer of the
Seller to the effect that the signer of such certificate has
carefully examined this Agreement and that: (i) the
representations and warranties of the Seller in this Agreement are
true and correct at and as of the Closing Date with the same effect
as if made on the Closing Date and (ii) the Seller has
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing
Date.
(i) On the Closing Date, the
Purchaser shall have received from AmeriCredit a certificate dated
as of the Closing Date executed by an authorized officer of
AmeriCredit to the effect that the signer of such certificate has
carefully examined this Agreement and that: (i) the
representations and warranties of AmeriCredit in this Agreement are
true and correct at and as of the Closing Date with the same effect
as if made on the Closing Date and (ii) AmeriCredit has
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing
Date.
(j) On or prior to the Execution
Date, the Purchaser shall have received from J. Michael May, Esq.,
corporate counsel of the Companies, a favorable opinion, dated the
Execution Date and satisfactory in form and substance to the
Purchaser and counsel for the Purchaser to the effect
that:
(i) AmeriCredit has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Texas. The Sponsor has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware. The Seller has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Nevada. Each of
AmeriCredit, the Sponsor and the Seller has full corporate power to
own its property or assets and to conduct its business as presently
conducted by it, and is in good standing in each jurisdiction in
which the conduct of its business or the ownership of its property
or
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assets requires such qualification
or where the failure to be so qualified would have a material
adverse effect on its general affairs, business, management,
financial condition, stockholders’ equity, results of
operations, regulatory situation or business prospects.
(ii) This Agreement has been duly
authorized, executed and delivered by authorized officers or
signers of AmeriCredit, the Sponsor and the Seller, as
applicable.
(iii) The execution, delivery and
performance of this Agreement by AmeriCredit will not conflict with
or result in a material breach of (1) any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien upon any of the property or
assets of AmeriCredit, (2) the terms of the certificate of
incorporation or the by-laws of the AmeriCredit, (3) any
statute, rule, regulation or order of any governmental agency or
body of the State of Texas, or any Texas state court having
jurisdiction over AmeriCredit or its property or assets, or
(4) any material agreement or instrument known to such counsel
to which AmeriCredit is a party or by which AmeriCredit or any of
its property or assets is bound.
(iv) The execution, delivery and
performance of this Agreement by the Sponsor will not conflict with
or result in a material breach of (1) any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien upon any of the property or
assets of the Sponsor, (2) the terms of the certificate of
incorporation or the by-laws of the Sponsor, (3) any statute,
rule, regulation or order of any governmental agency or body of the
State of Delaware, or any Delaware state court having jurisdiction
over the Sponsor or its property or assets, or (4) any
material agreement or instrument known to such counsel to which the
Sponsor is a party or by which the Sponsor or any of its property
or assets is bound.
(v) The execution, delivery and
performance of this Agreement by the Seller will not conflict with
or result in a material breach of (1) any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien upon any of the property or
assets of the Seller, (2) the terms of the articles of
incorporation or the by-laws of the Seller, (3) any statute,
rule, regulation or order of any governmental agency or body of the
State of Nevada, or any Nevada state court having jurisdiction over
the Seller or its property or assets or (4) any material
agreement or instrument known to such counsel, to which the Seller
is a party or by which the Seller or any of its property or assets
is bound.
(vi) No authorization, approval,
consent or order of, or filing with, any court or governmental
agency or authority of the State of Texas is necessary in
connection with the execution, delivery and perfo
