Exhibit 10.3.2 - Form of Receivables Purchase Agreement for Insured Offerings
CARMAX AUTO SUPERSTORES, INC.,
as Seller,
and
CARMAX AUTO FUNDING LLC,
as Purchaser
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RECEIVABLES PURCHASE AGREEMENT
Dated as of [__________], 20[__]
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.....................................................1
SECTION 1.2 Other Definitional Provisions...................................4
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 Sale and Conveyance of Receivables..............................4
SECTION 2.2 Receivables Purchase Price; Payments on the
Receivables.....................................................5
SECTION 2.3 Transfer of Receivables.........................................6
SECTION 2.4 Examination of Receivable Files.................................6
SECTION 2.5 Expenses........................................................6
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of the Purchaser.................6
SECTION 3.2 Representations and Warranties of the Seller....................7
ARTICLE IV
CONDITIONS
SECTION 4.1 Conditions to Obligation of the Purchaser.......................8
SECTION 4.2 Conditions to Obligation of the Seller.........................10
ARTICLE V
COVENANTS OF THE SELLER
SECTION 5.1 Protection of Right, Title and Interest in, to and
Under the Receivables..........................................10
SECTION 5.2 Security Interests.............................................12
SECTION 5.3 Delivery of Payments...........................................12
SECTION 5.4 No Impairment..................................................12
SECTION 5.5 Costs and Expenses.............................................12
SECTION 5.6 Hold Harmless..................................................12
SECTION 5.7 Merger, Consolidation or Assumption of the
Obligations of the Seller......................................13
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 Amendment......................................................13
SECTION 6.2 Termination....................................................13
SECTION 6.3 Governing Law..................................................13
SECTION 6.4 Notices........................................................14
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SECTION 6.5 Severability of Provisions.....................................14
SECTION 6.6 Further Assurances.............................................14
SECTION 6.7 No Waiver; Cumulative Remedies.................................14
SECTION 6.8 Counterparts...................................................14
SECTION 6.9 Third-Party Beneficiaries......................................14
SECTION 6.10 Headings and Table of Contents.................................14
SECTION 6.11 Representations, Warranties and Agreements to Survive..........15
SECTION 6.12 No Proceedings.................................................15
SECTION 6.13 Accountant's Letters...........................................15
SECTION 6.14 Obligations of Purchaser.......................................15
SCHEDULES
Schedule A Receivables Schedule
EXHIBITS
Exhibit A Bill of Sale and Assignment
Exhibit B Form of Retail Installment Sale Contract
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RECEIVABLES PURCHASE AGREEMENT
This Receivables Purchase Agreement, dated as of [__________], 20[__],
is between CarMax Auto Superstores, Inc., a Virginia corporation ("CarMax"), as
seller (the "Seller"), and CarMax Auto Funding LLC, a Delaware limited liability
company ("CarMax Funding"), as purchaser.
WHEREAS, in the regular course of business, the Seller and certain
affiliates of the Seller originate motor vehicle retail installment sale
contracts secured by new and used motor vehicles;
WHEREAS, the Seller intends to convey all of its right, title and
interest in and to contracts having an aggregate outstanding principal balance
of $[_______________] as of the close of business on [__________], 20[__] (the
"Receivables") to the Purchaser and, concurrently with its purchase of the
Receivables, the Purchaser shall convey all of its right, title and interest in
and to the Receivables to CarMax Auto Owner Trust 20[__]-[__], as issuer (the
"Issuer") pursuant to a Sale and Servicing Agreement, dated as of [__________],
20[__] (the "Sale and Servicing Agreement"), among the Issuer, CarMax Funding,
as depositor, and CarMax, as servicer; and
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which the Receivables are to be sold by the Seller to the Purchaser;
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
"Agreement" shall mean this Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"Base Prospectus" shall mean the prospectus, dated [__________],
20[__], of the Purchaser relating to the public offering by the Purchaser of the
Securities.
"Bill of Sale" shall mean the Bill of Sale and Assignment,
substantially in the form attached hereto as Exhibit A.
"CarMax" shall mean CarMax Auto Superstores, Inc., a Virginia
corporation, and its successors.
"CarMax Funding" shall mean CarMax Auto Funding LLC, a Delaware
limited liability company, and its successors.
"Certificateholders" shall mean the registered holders of the
Certificates.
"Certificates" shall have the meaning specified in the Trust
Agreement.
"Class A-1 Notes" shall mean the Class A-1 Notes issued pursuant to
the Indenture.
"Class A-2 Notes" shall mean the Class A-2 Notes issued pursuant to
the Indenture.
"Class A-3 Notes" shall mean the Class A-3 Notes issued pursuant to
the Indenture.
"Class A-4 Notes" shall mean the Class A-4 Notes issued pursuant to
the Indenture.
"Closing Date" shall mean [__________], 20[__].
"Cutoff Date" shall mean [__________], 20[__].
"Depositor" shall mean CarMax Auto Funding LLC, a Delaware limited
liability company, as Depositor under the Trust Agreement, and its successors in
such capacity.
"Indemnification Agreement" shall mean the Indemnification Agreement,
dated as of [__________], 20[__], among the Insurer, the Seller, CarMax Funding
and the Underwriters, as amended, supplemented or otherwise modified and in
effect from time to time.
"Indenture" shall mean the Indenture, dated as of [__________],
20[__], between the Issuer and the Indenture Trustee, as amended, supplemented
or otherwise modified and in effect from time to time.
"Indenture Trustee" shall mean [____________________], as indenture
trustee under the Indenture, and its successors in such capacity.
"Initial Reserve Account Deposit" shall mean $[_______________].
"Insurance Agreement" shall mean the Insurance and Reimbursement
Agreement, dated [__________], 20[__], among the Insurer, the Depositor, and
CarMax, in its individual capacity, as seller and as servicer, as amended or
supplemented from time to time.
"Insurance Policy" shall mean the Financial Guaranty Insurance Policy,
dated the Closing Date, issued by the Insurer relating to the Securities.
"Insurer" shall mean [____________________], and its successors.
"Issuer" shall mean CarMax Auto Owner Trust 20[__]-[__], a Delaware
statutory trust, and its successors.
"Noteholders" shall mean the registered holders of the Notes.
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"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes.
"Owner Trustee" shall mean [____________________], as owner trustee
under the Trust Agreement, and its successors in such capacity.
"Prospectus Supplement" shall mean the final prospectus supplement,
dated [__________], 20[__], of the Purchaser relating to the public offering by
the Purchaser of the Securities.
"Prospectus" shall mean the Prospectus Supplement and the Base
Prospectus of the Purchaser relating to the public offering by the Purchaser of
the Securities.
"Purchaser" shall mean CarMax Funding, in its capacity as purchaser of
the Receivables under this Agreement, and its successors in such capacity.
"Receivables" shall mean the motor vehicle retail installment sale
contracts sold by the Seller to the Purchaser pursuant to this Agreement and
identified on the Receivables Schedule.
"Receivables Purchase Price" shall mean $[_______________].
"Receivables Schedule" shall mean the schedule of receivables attached
as Schedule A hereto, as amended, supplemented or otherwise modified and in
effect from time to time.
"Representative" shall mean [____________________], as representative
of the Underwriters.
"Residual Interest" shall have the meaning specified in the Trust
Agreement.
"Sale and Servicing Agreement" shall have the meaning specified in the
recitals.
"SEC" shall mean the Securities and Exchange Commission, and its
successors.
"Securities" shall mean the Notes and the Certificates.
"Securityholders" shall mean the Noteholders and the
Certificateholders.
"Seller" shall mean CarMax, in its capacity as seller of the
Receivables under this Agreement, and its successors in such capacity.
"State" shall mean any of the 50 states of the United States of
America or the District of Columbia.
"Transaction Documents" shall mean this Agreement, the Trust
Agreement, the Sale and Servicing Agreement, the Indenture, the Administration
Agreement, the Insurance Agreement, the Indemnification Agreement and the other
documents and certificates delivered in
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connection therewith, in each case as amended, supplemented or otherwise
modified and in effect from time to time.
"Trust Agreement" shall mean the Trust Agreement, dated as of
[__________], 20[__], between CarMax Funding and the Owner Trustee, as amended
and restated by the Amended and Restated Trust Agreement, dated as of
[__________], 20[__], between CarMax Funding and the Owner Trustee.
"Trustee" shall mean either the Owner Trustee or the Indenture
Trustee, as the context requires.
"UCC" shall mean the Uniform Commercial Code as in effect in the
applicable jurisdiction.
"Underwriters" shall mean the underwriters named in Schedule A to the
Underwriting Agreement.
"Underwriting Agreement" shall mean the Underwriting Agreement, dated
[__________], 20[__], between CarMax Funding and the Representative, relating to
the purchase of the Securities by the Underwriters from CarMax Funding.
SECTION 1.2 Other Definitional Provisions.
(a) Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the Sale and Servicing Agreement.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, subsection, Schedule
and Exhibit references contained in this Agreement are references to Sections,
subsections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; the term "proceeds" shall have the meaning set forth in the
applicable UCC; and the word "including" shall mean including without
limitation.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 Sale and Conveyance of Receivables.
(a) The Seller hereby sells, transfers, assigns, sets over and
otherwise conveys to the Purchaser, and the Purchaser hereby purchases from the
Seller, without recourse (subject to the Seller's obligations hereunder), all of
the right, title and interest of the Seller in, to and under the following:
(i) the Receivables;
(ii) all amounts received on or in respect of the Receivables
(including proceeds of the repurchase of Receivables by the Seller pursuant
to Section 3.2(f)) after the Cutoff Date;
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(iii) the security interests in the Financed Vehicles granted by
the Obligors pursuant to the Receivables;
(iv) all proceeds from claims on or refunds of premiums of any
physical damage or theft insurance policies covering the Financed Vehicles
and any proceeds or refunds of premiums of any credit life or credit
disability insurance policies relating to the Financed Vehicles or the
Obligors;
(v) the Receivable Files;
(vi) the right to realize upon any property (including the
right to receive future Liquidation Proceeds) that shall have secured a
Receivable and have been repossessed by or on behalf of the Issuer; and
(vii) all present and future claims, demands, causes of action
and choses in action in respect of any or all of the foregoing and all
payments on or under and all proceeds of every kind and nature whatsoever
in respect of any or all of the foregoing, including all proceeds of the
conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which
at any time constitute all or part of or are included in the proceeds of
any of the foregoing.
(b) The parties hereto intend that the conveyance of the Receivables
and related property hereunder be a sale and not a loan. In the event that the
conveyance hereunder is not for any reason considered a sale, the Seller hereby
grants to the Purchaser a first priority perfected security interest in all of
the Seller's right, title and interest in, to and under the Receivables, and all
other property conveyed hereunder and listed in this Section and all proceeds of
any of the foregoing. The parties intend that this Agreement constitute a
security agreement under applicable law. Such grant is made to secure the
payment of all amounts payable hereunder, including the Receivables Purchase
Price. If such conveyance is for any reason considered to be a loan and not a
sale, the Seller consents to the Purchaser transferring such security interest
in favor of the Indenture Trustee and transferring the obligation secured
thereby to the Indenture Trustee.
(c) The Seller agrees to treat the transfer of the Receivables and
the related property contemplated by Section 2.1(a) for all purposes (including
tax and financial accounting purposes) as an absolute transfer on all relevant
books, records, tax returns, financial statements and other applicable
documents.
SECTION 2.2 Receivables Purchase Price; Payments on the
Receivables.
(a) On the Closing Date, in exchange for the Receivables and other
assets described in Section 2.1(a), the Purchaser shall pay the Seller, in
immediately available funds, the Receivables Purchase Price. The Purchaser shall
deposit, from funds it receives from the issuance of the Securities, an amount
equal to the Initial Reserve Account Deposit into the Reserve Account, which
amount shall be an asset of the Trust. The Seller, upon consummation
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of the transactions contemplated by the Transaction Documents, shall be the
holder of the Residual Interest.
(b) The Purchaser shall be entitled to, and shall convey such right
to the Owner Trustee pursuant to the Sale and Servicing Agreement, all payments
of principal and interest on or in respect of the Receivables received after the
Cutoff Date.
SECTION 2.3 Transfer of Receivables. Pursuant to the Sale and
Servicing Agreement, the Purchaser will assign all of its right, title and
interest in, to and under the Receivables and other assets described in Section
2.1(a) to the Issuer. The parties hereto acknowledge that the Issuer will pledge
its rights in, to and under the Receivables and other assets described in
Section 2.1(a) to the Indenture Trustee pursuant to the Indenture. The Purchaser
has the right to assign its interest under this Agreement as may be required to
effect the purposes of the Sale and Servicing Agreement, without the consent of
the Seller, and the Owner Trustee as assignee shall succeed to the rights and
obligations hereunder of the Purchaser.
SECTION 2.4 Examination of Receivable Files. The Seller will make
the Receivable Files available to the Purchaser or its agent for examination
during normal business hours at the Seller's offices or such other location as
otherwise shall be agreed upon by the Purchaser and the Seller.
SECTION 2.5 Expenses. The Seller will reimburse the Purchaser for
expenses of the Underwriters in connection with the sale of the Securities,
which expenses are reimbursable to the Underwriters by the Purchaser pursuant to
the Underwriting Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of the Purchaser. The
Purchaser hereby makes the following representations and warranties to the
Seller as of the date of this Agreement and as of the Closing Date:
(a) Organization and Good Standing. The Purchaser is a limited
liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has power and authority to own
its properties and to conduct its business as such properties are currently
owned and such business is presently conducted, and had at all relevant
times, and shall have, power, authority and legal right to acquire, own and
sell the Receivables.
(b) Power and Authority. The Purchaser has the power and authority to
execute and deliver this Agreement and to carry out its terms; and the
execution, delivery and performance of this Agreement has been duly
authorized by the Purchaser by all necessary action.
(c) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof shall not
conflict with, result in any breach of any of the terms and provisions of,
nor constitute (with or without notice or lapse of time) a default under,
the limited liability company agreement or certificate of
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formation of the Purchaser, or conflict with or breach any of the material
terms or provisions of, or constitute (with or without notice or lapse of
time) a default under, any indenture, agreement or other instrument to
which the Purchaser is a party or by which it may be bound.
SECTION 3.2 Representations and Warranties of the Seller.
(a) The Seller hereby makes the following representations and
warranties to the Purchaser as of the date of this Agreement and as of the
Closing Date:
(i) Organization and Good Standing. The Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the Commonwealth of Virginia, and has power and authority to own
its properties and to conduct its business as such properties are currently
owned and such business is presently conducted, and had at all relevant
times, and shall have, power, authority and legal right to acquire, own and
sell the Receivables.
(ii) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and to carry out its terms;
and the execution, delivery and performance of this Agreement has been duly
authorized by the Seller by all necessary action.
(iii) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time) a
default under, the articles of incorporation or bylaws of the Seller, or
conflict with or breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default under, any
indenture, agreement or other instrument to which the Seller is a party or
by which it may be bound.
(b) The Seller hereby makes the following representations and
warranties to the Purchaser as of the date of this Agreement and as of the
Closing Date, which representations and warranties shall remain operative and in
full force and effect, shall survive the transfer and conveyance of the
Receivables and other assets described in Section 2.1(a) by the Seller to the
Purchaser and by the Purchaser to the Issuer and shall inure to the benefit of
the Purchaser, the Trustees and the Securityholders:
(i) Characteristics of Receivables. Each Receivable (i)
has been originated by the Seller or an Affiliate of the Seller in the
ordinary course of business in connection with the sale of a new or used
motor vehicle and has been fully and properly executed by the parties
thereto, (ii) contains customary and enforceable provisions such that the
rights and remedies of the holder thereof are adequate for realization
against the collateral of the benefits of the security, (iii) provides for
level monthly payments that fully amortize the Amount Financed by maturity
(except that the period between the date of such Receivable and the date of
the first Scheduled Payment may be less than or greater than one month and
the amount of the first and last Scheduled Payments may be less than or
greater than the level payments) and yield interest at the related APR,
(iv)
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provides for, in the event that such Receivable is prepaid, a prepayment
that fully pays the Principal Balance of such Receivable with interest at
the related APR through the date of payment, (v) is a retail installment
sale contract substantially in the form of Exhibit B to this Agreement,
(vi) is secured by a new or used motor vehicle that had not been
repossessed as of the Cutoff Date, (vii) is a Simple Interest Receivable,
(viii) relates to an Obligor who has made at least one payment under such
Receivable as of the Cutoff Date and (ix) relates to an Obligor whose
mailing address is located in any State.
(ii) Receivable Schedule. The information set forth in the
Receivable Schedule was true and correct in all material respects as of the
opening of business on the Cutoff Date, and no selection procedures
believed to be adverse to the Depositor and/or the Securityholders were
utilized in selecting the Receivables from those retail installment sale
contracts which met the criteria contained in this Agreement. The
information set forth in the compact disk or other listing regarding the
Receivables made available to the Depositor and its assigns (which compact
disk or other listing is required to be delivered as specified herein) is
true and correct in all material respects.
(iii) Compliance with Law. Each Receivable and the sale of
the related Financed Vehicle complied, at the time such Receivable was
originated and complies, as of the Closing Date, in all material respects
with all requirements of applicable federal, state and local laws, and
regulations thereunder, including usury laws, the Federal Truth-in-Lending
Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the
Fair Debt Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, the Federal Reserve Board's Regulations B and
Z, the Soldiers' and Sailors' Civil Relief Act of 1940, state adaptations
of the National Consumer Act and the Uniform Consumer Credit Code and any
other consumer credit, equal opportunity and disclosure laws applicable to
such Receivable and sale.
(iv) Binding Obligation. Each Receivable represents the
genuine, legal, valid and binding payment obligation in writing of the
related Obligor, enforceable by the holder thereof in all material respects
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
(v) No Government Obligor. No Receivable is due from the
United States of America or any State or from any agency, department or
instrumentality of the United States of America or any State.
(vi) Security Interest in Financed Vehicles. Immediately
prior to the transfer of the Receivables by the Seller to the Depositor,
each Receivable was secured by a valid, binding and enforceable first
priority perfected security interest in favor of the Seller in the related
Financed Vehicle, which security interest has been validly assigned by the
Seller to the Depositor. The Servicer has received, or will receive within
180 days after the Closing Date, the original certificate of title for each
Financed Vehicle (other than any Financed Vehicle that is subject to a
certificate of title statute or motor vehicle
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registration law that does not require that the original certificate of
title for such Financed Vehicle be delivered to the Seller).
(vii) Receivables in Force. No Receivable has been
satisfied, subordinated or rescinded, nor has any Financed Vehicle been
released in whole or in part from the Lien granted by the related
Receivable.
(viii) No Waiver. No provision of any Receivable has been
waived in such a manner that such Receivable fails to meet all of the
representations and warranties made by the Seller in this Section 3.2(b)
with respect thereto.
(ix) No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense, including the defense of
usury, and the operation of any of the terms of any Receivable, or the
exercise of any right thereunder, will not render such Receivable
unenforceable in whole or in part or subject to any right of rescission,
setoff, counterclaim or defense, including the defense of usury, and the
Seller has no knowledge of any such right of rescission, setoff,
counterclaim or defense being asserted or threatened with respect to any
Receivable.
(x) Liens. The Seller has no knowledge of any liens or
claims that have been filed, including liens for work, labor or materials
or for unpaid state or federal taxes, relating to any Financed Vehicle that
are prior to, or equal or coordinate with, the security interest in such
Financed Vehicle created by the related Receivable.
(xi) No Default. Except for payment defaults continuing for a
period of not more than 30 days, the Seller has no knowledge that any
default, breach, violation or event permitting acceleration under the terms
of any Receivable has occurred or that any continuing condition that with
notice or the lapse of time or both would constitute a default, breach,
violation or event permitting acceleration under the terms of any
Receivable has arisen, and the Seller has not waived any such event or
condition.
(xii) Title. The Seller intends that the transfer of the
Receivables contemplated by Section 2.1(a) constitute a sale of the
Receivables from the Seller to the Depositor and that the beneficial
interest in, and title to, the Receivables not be part of the Seller's
estate in the event of the filing of a bankruptcy petition by or against
the Seller under any bankruptcy law. The Seller has not sold, transferred,
assigned or pledged any Receivable to any Person other than the Depositor.
Immediately prior to the transfer of the Receivables contemplated by
Section 2.1(a), the Seller had good and marketable title to the Receivables
free and clear of any Lien, claim or encumbrance of any Person and,
immediately upon such transfer, the Depositor shall have good and
marketable title to the Receivables free and clear of any Lien, claim or
encumbrance of any Person.
(xiii) Security Interest Matters. This Agreement creates a
valid and continuing "security interest" (as defined in the Relevant UCC)
in the Receivables in favor of the Depositor, which security interest is
prior to all other Liens and is enforceable as such as against creditors of
and purchasers from the Seller. With respect to each Receivable, the Seller
has taken all steps necessary to perfect its security interest
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against the related Obligor in the related Financed Vehicle. The
Receivables constitute "tangible chattel paper" (as defined in the Relevant
UCC). The Seller has caused or will cause prior to the Closing Date the
filing of all appropriate financing statements in the proper filing offices
in the appropriate jurisdictions under applicable law necessary to perfect
the security interest in the Receivables granted to the Depositor under
this Agreement. Other than the security interest granted to the Depositor
under this Agreement, the Seller has not pledged, assigned, sold, granted a
security interest in or otherwise conveyed any of the Receivables. The
Seller has not authorized the filing of and is not aware of any financing
statements against the Seller that include a description of collateral
covering the Receivables other than any financing statement relating to the
security interest granted to the Depositor under the Sale and Servicing
Agreement or that has been terminated. The motor vehicle retail installment
sale contracts that constitute or evidence the Receivables do not have any
marks or notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than the Depositor, the Trust or the
Indenture Trustee. The Seller is not aware of any judgment or tax lien
filings against the Seller.
(xiv) Financing Statements. All financing statements filed
or to be filed against the Seller in favor of the Trust (as assignee of the
Depositor) contain a statement substantially to the following effect: "A
purchase of or security interest in any collateral described in this
financing statement will violate the rights of the Trust." All financing
statements filed or to be filed against the Seller in favor of the
Indenture Trustee (as assignee of the Trust) contain a statement
substantially to the following effect: "A purchase of or security interest
in any collateral described in this financing statement will violate the
rights of the Indenture Trustee."
(xv) Valid Assignment. No Receivable has been originated
in, or is subject to the laws of, any jurisdiction under which the sale,
transfer, assignment and conveyance of such Receivable under this Agreement
or the Sale and Servicing Agreement or the pledge of such Receivable under
the Indenture is unlawful, void or voidable or under which such Receivable
would be rendered void or voidable as a result of any such sale, transfer,
assignment, conveyance or pledge. The Seller has not entered into any
agreement with any account debtor that prohibits, restricts or conditions
the assignment of the Receivables.
(xvi) One Original. There is only one original executed copy
of each Receivable.
(xvii) Principal Balance. Each Receivable had an original
Principal Balance of not more than $[__________] and a remaining Principal
Balance as of the Cutoff Date of not less than $[__________].
(xviii) No Bankrupt Obligors. As of the Cutoff Date, no
Receivable was due from an Obligor that was the subject of a proceeding
under the Bankruptcy Code of the United States or was bankrupt.
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(xix) New and Used Vehicles. As of the Cutoff Date,
approximately [____]% of the Pool Balance related to Receivables secured by
new Financed Vehicles and approximately [____]% of the Pool Balance related
to Receivables secured by used Financed Vehicles.
(xx) Origination. Each Receivable was originated after
[__________], 20[__].
(xxi) Term to Maturity. Each Receivable had an original
term to maturity of not more than [____] months and not less than [____]
months and a remaining term to maturity as of the Cutoff Date of not more
than [____] months and not less than [____] months.
(xxii) Weighted Average Remaining Term to Maturity. As of
the Cutoff Date, the weighted average remaining term to maturity of the
Receivables was approximately [____] months.
(xxiii) Annual Percentage Rate. Each Receivable has an APR
of at least [____]% and not more than [____]%.
(xxiv) Location of Receivable Files. The Receivable Files are
maintained at the location listed in Schedule 2 to the Sale and Servicing
Agreement.
(xxv) Simple Interest Method. All payments with respect to the
Receivables have been allocated consistently in accordance with the Simple
Interest Method.
(xxvi) No Delinquent Receivables. As of the Cutoff Date,
no payment due under any Receivable was more than 30 days past due.
(xxvii) Insurance. Each Obligor has obtained or agreed to obtain
physical damage insurance (which insurance shall not be force placed
insurance) covering the related Financed Vehicle in accordance with the
Seller's normal requirements.
(xxviii) Fair Market Value. The Receivables Purchase Price and
the value of the Residual Interest represent the fair market value of the
Receivables.
(xxix) Custodial Agreements. Immediately prior to the
transfer of the Receivables by the Seller to the Depositor, the Seller or
an Affiliate of the Seller had possession of the Receivable Files and there
were no, and there will not be any, custodial agreements in effect
materially adversely affecting the right or ability of the Seller to make,
or cause to be made, any delivery required under this Agreement.
(xxx) Bulk Transfer Laws. The transfer of the Receivables
and the Receivable Files by the Seller to the Depositor pursuant to this
Agreement is not subject to the bulk transfer laws or any similar statutory
provisions in effect in any applicable jurisdiction.
11
(c) The Seller shall indemnify the Purchaser and hold the Purchaser
harmless against any losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and other costs and expenses resulting from any third
party claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Seller's representations and warranties set
forth in Section 3.2(b). The Trustees shall also have the remedies provided in
the Sale and Servicing Agreement.
(d) Any cause of action against the Seller relating to or arising out
of the breach of any of its representations and warranties set forth in Section
3.2(b) shall accrue as to any Receivable upon (i) discovery of such breach by
the Purchaser or either Trustee or notice thereof by the Seller to the
Purchaser, (ii) failure by the Seller to cure such breach and (iii) demand upon
the Seller by the Purchaser for all amounts payable in respect of such
Receivable under this Agreement.
(e) The Purchaser or the Seller, as the case may be, shall inform the
other parties promptly, in writing, upon discovery of any breach of the Seller's
representations and warranties set forth in Section 3.2(b) which materially and
adversely affects the interests of the Securityholders in any Receivable.
(f) If a breach of any representation or warranty set forth in
Section 3.2(b) which materially and adversely affects the interests of the
Purchaser, the Trust or the Securityholders in any Receivable shall not have
been cured by the close of business on the last day of the Collection Period
which includes the thirtieth day after the date on which the Seller becomes
aware of, or receives written notice from the Servicer, the Purchaser, the Owner
Trustee or the Insurer of, such breach or failure, the Seller shall repurchase
such Receivable from the Purchaser on the Distribution Date following such
Collection Period. In consideration for the repurchase of any such Receivable,
the Seller shall remit the Purchase Amount of such Receivable to the Purchaser.
Upon any such repurchase, the Purchaser shall, without further action, be deemed
to transfer, assign, set-over and otherwise convey to the Seller, without
recourse, representation or warranty, all the right, title and interest of the
Purchaser in, to and under such repurchased Receivable and all other related
assets described in Section 2.1(a). The Purchaser shall execute such documents
and instruments of transfer or assignment and take such other actions as shall
reasonably be requested by the Seller to effect the conveyance of such
Receivable pursuant to this section. The sole remedy of the Purchaser with
respect to a breach of the Seller's representations and warranties set forth in
Section 3.2(b) shall be to require the Seller to repurchase the related
Receivables pursuant to this section.
ARTICLE IV
CONDITIONS
SECTION 4.1 Conditions to Obligation of the Purchaser. The
obligation of the Purchaser to purchase the Receivables from the Seller on the
Closing Date is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of CarMax contained herein and in the other Transaction
Documents shall be true and correct on the Closing Date with the same
effect as if made on the Closing Date, and each
12
of the Seller and the Servicer shall have performed all obligations to be
performed by it hereunder and under the other Transaction Documents on or
before the Closing Date.
(b) Computer Files Marked. The Seller shall, at its own expense, on
or before the Closing Date, indicate in its computer files that the
Receivables have been sold to the Purchaser pursuant to this Agreement and
deliver to the Purchaser the Receivables Schedule, certified by an officer
of the Seller to be true, correct and complete.
(c) Release of Lenders. The Seller shall obtain executed release
agreements and UCC partial releases with respect to the Receivables from
[____________________] and [____________________], in each case in form and
substance satisfactory to the Purchaser.
(d) Documents to be Delivered. The Purchaser shall have received the
following, all of which shall be dated as of the Closing Date or such other
date as specified:
(i) the Receivables Schedule;
(ii) an Officer's Certificate of the Seller, in form and
substance previously approved by the Purchaser and its counsel, as to,
among other things, the representations and warranties of the Seller
and satisfaction of conditions precedent;
(iii) an opinion or opinions of counsel for the Seller, in form
and substance previously approved by the Purchaser and its counsel,
addressed to the Purchaser;
(iv) [RESERVED];
(v) copies of resolutions of the board of directors of the
Seller approving the execution, delivery and performance of the
Transaction Documents to which the Seller is a party, and the
performance of the transactions contemplated hereunder and thereunder,
certified by the Secretary or an Assistant Secretary of the Seller;
(vi) copies of the articles of incorporation of the Seller,
together with all amendments, revisions and supplements thereto,
certified by the Virginia State Corporation Commission as of a recent
date, and a certificate of fact from the Virginia State Corporation
Commission, dated as of a recent date, to the effect that the Seller
has been duly incorporated, is in good standing and has a legal
corporate existence;
(vii) UCC search reports from the appropriate offices in
Virginia as to the Seller;
(viii) reliance letters to each opinion of counsel to the Seller
or the Servicer delivered to Standard & Poor's, Moody's or the Insurer
in connection
13
with the purchase of the Receivables hereunder or the issuance or sale
of the Securities;
(ix) a financing statement to be filed with the Virginia State
Corporation Commission, naming the Seller, as seller or debtor, the
Purchaser, as purchaser or secured party, and the Trust, as assignee,
naming the Receivables and the related property described in Section
2.1(a) as collateral and meeting the requirements of the laws of each
such jurisdiction and in such manner as is necessary to perfect the
sale, transfer, assignment and conveyance of the Receivables to the
Purchaser;
(x) the Bill of Sale; and
(xi) such other documents, certificates and opinions as may be
reasonably requested by the Purchaser or its counsel.
(e) Execution of Transaction Documents. The Transaction Documents
shall have been executed and delivered by the parties thereto.
(f) Insurance Policy Issued. The Insurance Policy shall have been
issued and delivered by the Insurer.
(g) Rating of the Securities. Moody's and Standard & Poor's,
respectively, shall have assigned ratings of (i) "Prime-1" and "A-1+" to
the Class A-1 Notes and (ii) "Aaa" and "AAA" to the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes and the Certificates.
(h) No Unsolicited Ratings. There shall not have been issued an
unsolicited rating of any Class of Notes or the Certificates by any
nationally recognized statistical rating agency at a level that is lower
than the ratings for such Class of Notes or the Certificates from Moody's
or Standard & Poor's specified in Section 4.1(g).
(i) Other Transactions. The transactions contemplated by the
Transaction Documents and the Underwriting Agreement shall be consummated
on the Closing Date.
SECTION 4.2 Conditions to Obligation of the Seller. The
obligation of the Seller to sell the Receivables to the Purchaser on the Closing
Date is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Purchaser contained herein and in the other Transaction
Documents shall be true and correct on the Closing Date with the same
effect as if then made, and the Purchaser shall have performed all
obligations to be performed by it hereunder and under the other Transaction
Documents on or before the Closing Date.
(b) Payment of Receivables Purchase Price. In consideration of the
sale of the Receivables from the Seller to the Purchaser as provided in
Section 2.1, on the Closing
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Date the Purchaser shall have paid the Seller an amount equal to the
Receivables Purchase Price.
(c) Opinions of Purchaser. An opinion or opinions of counsel for the
Purchaser addressed to the Seller, the Insurer and the Underwriters shall
have been delivered.
ARTICLE V
COVENANTS OF THE SELLER
SECTION 5.1 Protection of Right, Title and Interest in, to and Under
the Receivables.
(a) The Seller, at its expense, shall cause all financing statements
and continuation statements and any other necessary documents covering the
Purchaser's right, title and interest in, to and under the Receivables and other
property conveyed by the Seller to the Purchaser hereunder to be promptly
authorized, recorded, registered and filed, and at all times to be kept
recorded, registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and interest of
the Purchaser hereunder to the Receivables and such other property. The Seller
shall deliver to the Purchaser file-stamped copies of, or filing receipts for,
any document recorded, registered or filed as provided above, as soon as
available following such recording, registration or filing. The Purchaser shall
cooperate fully with the Seller in connection with the obligations set forth
above and will execute any and all documents reasonably required to fulfill the
intent of this subsection.
(b) Within five days after the Seller makes any change in its name,
identity or organizational structure which would make any financing statement or
continuation statement filed in accordance with Section 4.1(d) seriously
misleading within the meaning of the UCC as in effect in the applicable state,
the Seller shall give the Purchaser notice of any such change and, within 30
days after such change, shall authorize and file such financing statements or
amendments as may be necessary to continue the perfection of the Purchaser's
security interest in the Receivables and the proceeds thereof.
(c) The Seller shall give the Purchaser written notice within five
days of any relocation of the state of organization of the Seller or any office
in which the Seller keeps records concerning the Receivables and whether, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and, within 30 days after such
relocation, shall authorize and file such financing statements or amendments as
may be necessary to continue the perfection of the interest of the Purchaser in
the Receivables and the proceeds thereof. The Seller shall at all times maintain
its state of organization, its principal place of business and its chief
executive office and the location of the office where the Receivables Files and
any accounts and records relating to the Receivables are kept within the United
States of America.
(d) The Seller shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of
15
such Receivable, including payments and recoveries made and payments owing (and
the nature of each) and (ii) reconciliation between payments or recoveries on
(or with respect to) each Receivable.
(e) The Seller shall maintain its computer systems so that, from and
after the time of the transfer of the Receivables to the Purchaser pursuant to
this Agreement, the Seller's master computer records (including any back-up
archives) that refer to a Receivable shall indicate clearly and unambiguously
that such Receivable is owned by the Purchaser (or, upon transfer of the
Receivables to the Issuer, by the Issuer). Indication of the Purchaser's
ownership of a Receivable shall be deleted from or modified on the Seller's
computer systems when, and only when, such Receivable shall have been paid in
full or repurchased by the Seller.
(f) If at any time the Seller shall propose to sell, grant a security
interest in or otherwise transfer any interest in any motor vehicle retail
installment sale contract to any prospective purchaser, lender or other
transferee, the Seller shall give to such prospective purchaser, lender or other
transferee computer tapes, compact disks, records or print-outs (including any
restored from back-up archives) that, if they shall refer in any manner
whatsoever to any Receivable, shall indicate clearly and unambiguously that such
Receivable has been sold and is owned by the Purchaser (or, upon transfer of the
Receivables to the Issuer, the Issuer), unless such Receivable has been paid in
full or repurchased by the Seller.
(g) The Seller shall permit the Purchaser and its agents at any time
during normal business hours to inspect, audit and make copies of and abstracts
from the Seller's records regarding any Receivable.
(h) If the Seller has repurchased one or more Receivables from the
Purchaser or the Issuer pursuant to Section 3.2(f), the Seller shall, upon
request, furnish to the Purchaser, within ten days, a list of all Receivables
(by receivable number and name of Obligor) then owned by the Purchaser, together
with a reconciliation of such list to the Receivables Schedule.
SECTION 5.2 Security Interests. Except for the conveyances
hereunder, the Seller covenants that it will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist
any Lien on any Receivable, whether now existing or hereafter created, or any
interest therein; the Seller will immediately notify the Purchaser of the
existence of any Lien on any Receivable and, in the event that the interests of
the Securityholders in such Receivable are materially and adversely affected,
such Receivable shall be repurchased from the Purchaser by the Seller in the
manner and with the effect specified in Section 3.2(f), and the Seller shall
defend the right, title and interest of the Purchaser in, to and under the
Receivables, whether now existing or hereafter created, against all claims of
third parties claiming through or under the Seller.
SECTION 5.3 Delivery of Payments. The Seller covenants and agrees
to deliver in kind upon receipt to the Servicer under the Sale and Servicing
Agreement all payments received by the Seller in respect of the Receivables as
soon as practicable after receipt thereof by the Seller.
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SECTION 5.4 No Impairment. The Seller covenants that it shall take
no action, nor omit to take any action, which would impair the rights of the
Purchaser in any Receivable, nor shall it, except as otherwise provided in this
Agreement or the Sale and Servicing Agreement, reschedule, revise or defer
payments due on any Receivable.
SECTION 5.5 Costs and Expenses. The Seller shall pay all
reasonable costs and expenses incurred in connection with the perfection of the
Purchaser's right, title and interest in, to and under the Receivables.
SECTION 5.6 Hold Harmless. The Seller shall protect, defend,
indemnify and hold the Purchaser and the Issuer and their respective assigns and
their attorneys, accountants, employees, officers and directors harmless from
and against all losses, costs, liabilities, claims, damages and expenses of
every kind and character, as incurred, resulting from or relating to or arising
out of (i) the inaccuracy, nonfulfillment or breach of any representation,
warranty, covenant or agreement made by CarMax in this Agreement, (ii) any legal
action, including any counterclaim, that has either been settled by the
litigants (which settlement, if the Seller is not a party thereto shall be with
the consent of the Seller) or has proceeded to judgment by a court of competent
jurisdiction, in either case to the extent it is based upon alleged facts that,
if true, would constitute a breach of any representation, warranty, covenant or
agreement made by the Seller in this Agreement, (iii) any actions or omissions
of the Seller or any employee or agent of the Seller occurring prior to the
Closing Date with respect to any Receivable or Financed Vehicle or (iv) any
failure of a Receivable to be originated in compliance with all requirements of
law. These indemnity obligations shall be in addition to any obligation that the
Seller may otherwise have.
SECTION 5.7 Merger, Consolidation or Assumption of the Obligations
of the Seller. The Seller shall not transfer or otherwise assign its obligations
as Servicer under the Sale and Servicing Agreement nor enter into any merger,
conversion or consolidation to which the Servicer is a party, unless the Insurer
shall otherwise consent in writing to any such transfer, assignment or
succession; provided, however, that the consent of the Insurer shall not be
required if the Servicer shall be the surviving entity in any such merger,
conversion or consolidation.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 Amendment.
(a) This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Purchaser and the Seller, without
the consent of the Securityholders, to cure any ambiguity, to correct or
supplement any provision herein which may be inconsistent with any other
provision herein or to add any other provision with respect to matters or
questions arising under this Agreement which shall not be inconsistent with the
provisions of this Agreement or the Sale and Servicing Agreement; provided,
however, that any such amendment shall not, as evidenced by an Opinion of
Counsel to the Seller delivered to the Indenture Trustee, adversely affect in
any material respect the interests of the Securityholders or the Insurer.
17
(b) This Agreement may also be amended from time to time for any
other purpose by a written amendment duly executed and delivered by the Seller
and by the Purchaser; provided, however, that any such amendment that materially
adversely affects the interests of the Securityholders under the Indenture, the
Sale and Servicing Agreement or the Trust Agreement must be consented to by the
Holders of Notes evidencing not less than 51% of the Note Balance and the
Holders of Certificates evidencing not less than 51% of the Certificate Balance;
and, provided further, that no such amendment shall be effective without the
consent of the Insurer if such amendment would reasonably be expected to have a
material adverse effect on the interests of the Insurer.
(c) Promptly after the execution of any amendment to this Agreement,
the Seller shall furnish written notification of the substance of such amendment
to the Owner Trustee, the Indenture Trustee and the Rating Agencies.
SECTION 6.2 Termination. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall terminate,
except for the indemnity obligations of the Seller as provided herein, upon the
termination of the Issuer as provided in the Trust Agreement.
SECTION 6.3 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 6.4 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or sent by telecopier, overnight courier or mailed by
registered mail, return receipt requested, in the case of (i) the Purchaser, to
CarMax Auto Funding LLC, 4900 Cox Road, Suite 200, Glen Allen, Virginia 23060,
Attention: Treasurer and (ii) the Seller, to CarMax Auto Superstores, Inc., 4900
Cox Road, Glen Allen, Virginia 23060, Attention: Treasury Department; or, as to
either of such Persons, at such other address as shall be designated by such
Person in a written notice to the other Persons.
SECTION 6.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions and terms of this Agreement and shall in no way affect the validity
or enforceability of the other covenants, agreements, provisions and terms of
this Agreement or any amendment or supplement hereto.
SECTION 6.6 Further Assurances. The Seller and the Purchaser agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the other party
hereto or by the Issuer or the Indenture Trustee more fully to effect the
purposes of this Agreement, including the execution of any financing statements,
amendments, continuation statements or releases relating to the
18
Receivables for filing under the provisions of the UCC or other law of any
applicable jurisdiction.
SECTION 6.7 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Purchaser, the Issuer or the
Seller, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 6.8 Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
SECTION 6.9 Third-Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties hereto, the Issuer and the
Indenture Trustee for the benefit of the Securityholders and the Insurer, who
shall be considered to be third-party beneficiaries hereof. Except as otherwise
provided in this Agreement, no other Person will have any right or obligation
hereunder.
SECTION 6.10 Headings and Table of Contents. The Table of Contents
and headings herein are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.
SECTION 6.11 Representations, Warranties and Agreements to Survive.
The respective agreements, representations, warranties and other statements by
the Seller and by the Purchaser set forth in or made pursuant to this Agreement
shall remain in full force and effect and will survive the closing hereunder of
the transfers and assignments by the Seller to the Purchaser and by the
Purchaser to the Issuer and shall inure to the benefit of the Purchaser, the
Trustees and the Securityholders.
SECTION 6.12 No Proceedings. The Seller covenants and agrees that
so long as this Agreement is in effect, and for one year plus one day following
its termination, it will not file any involuntary petition or otherwise
institute any bankruptcy, reorganization arrangement, insolvency or liquidation
proceeding or other proceedings under any federal or state bankruptcy law or
similar law against the Issuer or the Owner Trustee.
SECTION 6.13 Accountant's Letters.
(a) The Seller shall cause a firm of independent certified public
accountants (who may also render other services to the Seller) to perform
certain procedures regarding the characteristics of the receivables as of the
Statistical Calculation Date (as defined in the Prospectus). The Seller shall
cooperate with the Purchaser and such accountants in making available all
information and taking all steps reasonably necessary to permit such accountants
to complete such procedures and to deliver the letters required of them under
the Underwriting Agreement.
19
(b) The Seller shall cause a firm of independent certified public
accountants (who may also render other services to the Seller) to deliver to the
Purchaser a letter, dated [__________], 20[__], in the form previously agreed to
by the Seller and the Purchaser, with respect to the financial and statistical
information contained in the Prospectus under the caption "CarMax--Delinquency,
Credit Loss and Recovery Information" and with respect to such other information
as may be agreed in the forms of such letters.
SECTION 6.14 Obligations of Purchaser. The obligations of the
Purchaser under this Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any Receivable.
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first above
written.
CARMAX AUTO SUPERSTORES, INC.,
as Seller
By:
-----------------------------------
Name:
Title:
CARMAX AUTO FUNDING LLC,
as Purchaser
By:
-----------------------------------
Name:
Title:
Receivables Purchase Agreement
SCHEDULE A
RECEIVABLES SCHEDULE
[ON FILE WITH THE SERVICER]
SA-1
EXHIBIT A
BILL OF SALE AND ASSIGNMENT
For value received, in accordance with the receivables purchase
agreement, dated as of [__________], 20[__] (the "Receivables Purchase
Agreement"), between the undersigned and CarMax Auto Funding LLC (the
"Purchaser"), the undersigned does hereby sell, assign, transfer and otherwise
convey unto the Purchaser, without recourse, all right, title and interest of
the undersigned in and to (i) the Receivables listed on Schedule A hereto (the
"Receivables"); (ii) all amounts received on or in respect of the Receivables
(including proceeds of the repurchase of Receivables by the Seller pursuant to
the Receivables Purchase Agreement) after the Cutoff Date; (iii) the security
interests in the Financed Vehicles granted by the Obligors pursuant to the
Receivables; (iv) all proceeds from claims on or refunds of premiums of any
physical damage or theft insurance policies covering the Financed Vehicles and
any proceeds or refunds of premiums of any credit life or credit disability
insurance policies relating to the Financed Vehicles or the Obligors; (v) the
Receivable Files; (vi) the right to realize upon any property (including the
right to receive future Liquidation Proceeds) that shall have secured a
Receivable and have been repossessed by or on behalf of the Issuer; and (vii)
all present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing.
This Bill of Sale and Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Receivables Purchase Agreement and is to be governed by the
Receivables Purchase Agreement.
Capitalized terms used and not otherwise defined herein shall have the
meaning assigned to them in the Receivables Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Bill of Sale and
Assignment to be duly executed as of [__________], 20[__].
CARMAX AUTO SUPERSTORES, INC.
By:
-----------------------------------
Name:
Title:
A-1
EXHIBIT B
FORM OF RETAIL INSTALLMENT SALE CONTRACT
[SEE ATTACHED]
B-1