EXHIBIT 10.2 - ADMINISTRATION AGREEMENT
[EXECUTION COPY]
CARMAX AUTO OWNER TRUST 2003-2,
as Issuer,
CARMAX AUTO SUPERSTORES, INC.,
as Administrator,
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Indenture Trustee
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ADMINISTRATION AGREEMENT
Dated as of October 1, 2003
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ADMINISTRATION AGREEMENT, dated as of October 1, 2003 (as amended,
supplemented or otherwise modified and in effect from time to time, this
"Agreement"), by and among CARMAX AUTO OWNER TRUST 2003-2, a Delaware statutory
trust (the "Issuer"), CARMAX AUTO SUPERSTORES, INC., a Virginia corporation, as
administrator (in such capacity, the "Administrator"), and ▇▇▇▇▇ FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity but solely as indenture trustee (in such capacity, the
"Indenture Trustee").
WHEREAS, the Issuer is issuing 1.13% Class A-1 Asset-Backed Notes,
1.68% Class A-2 Asset-Backed Notes, 2.36% Class A-3 Asset-Backed Notes, 3.07%
Class A-4 Asset-Backed Notes, 2.50% Class B Asset-Backed Notes, 2.75% Class C
Asset-Backed Notes and 3.78% Class D Asset-Backed Notes (collectively, the
"Notes") pursuant to the Indenture, dated as of October 1, 2003 (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Indenture"), between the Issuer and the Indenture Trustee;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and the issuance of certain beneficial interests
in the Issuer, including (i) a Sale and Servicing Agreement, dated as of October
1, 2003 (as amended, supplemented or otherwise modified and in effect from time
to time, the "Sale and Servicing Agreement"), by and among the Issuer, CarMax
Auto Funding LLC, a Delaware limited liability company, as depositor (in such
capacity, the "Depositor"), and CarMax Auto Superstores, Inc., as servicer, (ii)
a Letter of Representations, dated October 30, 2003 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Note Depository
Agreement"), by and among the Issuer, the Indenture Trustee and The Depository
Trust Company relating to the Notes and (iii) the Indenture (collectively with
the Sale and Servicing Agreement and the Note Depository Agreement, the "Related
Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and The Bank
of New York, a New York banking corporation, not in its individual capacity but
solely as owner trustee (in such capacity, the "Owner Trustee"), are required to
perform certain duties in connection with (i) the Notes and the collateral
pledged to secure the Notes pursuant to the Indenture (the "Collateral") and
(ii) the beneficial interests in the Issuer;
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms used but not defined
in this Agreement shall have the respective meanings set forth in the Indenture.
SECTION 2. Duties of the Administrator.
(a) Duties with Respect to the Related Agreements.
(i) The Administrator shall perform all its duties as
Administrator under the Note Depository Agreement. In addition, the
Administrator shall consult with the Owner Trustee regarding the duties of
the Issuer or the Owner Trustee under the Related Agreements. The
Administrator shall monitor the performance of the Issuer and shall advise
the Owner Trustee when action is necessary to comply with the Issuer's or
the Owner Trustee's duties under the Related Agreements. The Administrator
shall prepare for execution by the Issuer or the Owner Trustee, or shall
cause the preparation by other appropriate persons of, all such documents,
reports, filings, instruments, certificates and opinions that it shall be
the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to the Related Agreements. In furtherance of the foregoing, the
Administrator shall take all appropriate action that the Issuer or the
Owner Trustee is obligated to take pursuant to the Indenture, including,
without limitation, such of the foregoing as are required with respect to
the following matters under the Indenture (references are to sections of
the Indenture):
(A) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note
Register (Section 2.5);
(B) the notification of Noteholders of the final principal
payment on their Notes (Section 2.8(e));
(C) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and delivery of
the same to the Indenture Trustee (Section 2.2, 2.3, 2.6 and 2.13);
(D) the preparation, obtaining or filing of the
instruments, opinions, certificates and other documents required for
the release of collateral (Section 2.10);
(E) the maintenance of an office or agency in the Borough
of Manhattan, The City of New York, where Notes may be surrendered for
registration of transfer or exchange (Section 3.2);
(F) the duty to cause newly appointed Paying Agents, if
any, to deliver to the Indenture Trustee the instrument specified in
the Indenture regarding funds held in trust (Section 3.3);
(G) the direction to the Indenture Trustee to deposit
monies with Paying Agents, if any, other than the Indenture Trustee
(Section 3.3);
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(H) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Collateral and each
other instrument or agreement included in the Trust Estate (Section
3.4);
(I) the preparation of all supplements and amendments to
the Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the taking
of such other action as is necessary or advisable to protect the Trust
Estate (Section 3.5);
(J) the delivery of the Opinion of Counsel on the Closing
Date and the annual delivery of Opinions of Counsel as to the Trust
Estate, and the annual delivery of the Officer's Certificate and
certain other statements as to compliance with the Indenture (Sections
3.6 and 3.9);
(K) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has contracted
to perform its duties under the Indenture (Section 3.7(b));
(L) the preparation and delivery of written notice to the
Indenture Trustee and the Rating Agencies of an Event of Servicing
Termination under the Sale and Servicing Agreement and, if such Event
of Servicing Termination arises from the failure of the Servicer to
perform any of its duties or obligations under the Sale and Servicing
Agreement with respect to the Receivables, the taking of all
reasonable steps available to remedy such failure (Section 3.7(d));
(M) the duty to cause the Servicer to comply with Sections
3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale
and Servicing Agreement (Section 3.14);
(N) the preparation and obtaining of documents and
instruments required for the conveyance or transfer by the Issuer of
its properties or assets (Section 3.10(b));
(O) the preparation and delivery of written notice to the
Indenture Trustee and the Rating Agencies of each Event of Default
under the Indenture and each default by the Depositor or the Servicer
under the Sale and Servicing Agreement or by the Seller or the
Depositor under the Receivables Purchase Agreement (Section 3.18);
(P) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinion of Counsel and
the Independent Certificate relating thereto (Section 4.1);
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(Q) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Trust Estate at one
or more public or private sales called and conducted in any manner
permitted by law if an Event of Default shall have occurred and be
continuing under the Indenture (Section 5.4);
(R) the preparation and delivery of written notice to the
Noteholders of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 6.8);
(S) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee
and any written instruments necessary in connection with the
resignation or removal of any co-trustee or separate trustee (Section
6.10);
(T) the furnishing to the Indenture Trustee of the names
and addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Section 7.1);
(U) the preparation and, after execution by the Issuer,
filing with the Commission, any applicable state agencies and the
Indenture Trustee of documents required to be filed on a periodic
basis with, and summaries thereof as may be required by the rules and
regulations of, the Commission and any applicable state agencies and
the transmission of such summaries, as necessary, to the Noteholders
(Section 7.3);
(V) the opening of one or more accounts in the Issuer's
name, the preparation and delivery of Issuer Orders, Officer's
Certificates and Opinions of Counsel and all other actions necessary
with respect to the investment and reinvestment of funds in the
Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(W) the preparation and delivery of an Issuer Request and
Officer's Certificate and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of the Trust
Estate (Sections 8.4 and 8.5);
(X) the preparation and delivery of Issuer Orders and the
obtaining of an Opinion of Counsel with respect to the execution of
supplemental indentures and the mailing to the Noteholders and the
Rating Agencies, as applicable, of notices with respect to such
supplemental indentures (Sections 9.1, 9.2 and 9.3);
(Y) the execution and delivery of new Notes conforming to
any supplemental indenture (Section 9.6);
(Z) the duty to notify Noteholders of redemption of the
Notes or to cause the Indenture Trustee to provide such notification
(Section 10.2);
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(AA) the preparation and delivery of Officer's
Certificates and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, with respect to any requests
by the Issuer to the Indenture Trustee to take any action under the
Indenture (Section 11.1(a));
(BB) the preparation and delivery of Officer's
Certificates and the obtaining of Opinions of Counsel and Independent
Certificates, if necessary, for the release of property from the lien
of the Indenture (Section 11.1(b));
(CC) the preparation and delivery of written notice to the
Rating Agencies, upon the failure of the Indenture Trustee to give
such notification, of the information required pursuant to the
Indenture (Section 11.4);
(DD) the preparation and delivery to the Noteholders and
the Indenture Trustee of any agreements with respect to alternate
payment and notice provisions (Section 11.6);
(EE) the recording of the Indenture, if applicable
(Section 11.15);
(FF) the preparation of Definitive Notes in accordance
with the instructions of the Clearing Agency (Section 2.13); and
(GG) the maintenance of the effectiveness of the sales
finance company licenses required under the Maryland Code and the
Pennsylvania Motor Vehicle Sales Finance Company Act (Section 6.13).
(ii) The Administrator (but not the Indenture Trustee if it is then
acting as successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such
compensation and fees for all services rendered by the Indenture
Trustee under the Indenture as have been agreed to in a separate fee
schedule between the Administrator and the Indenture Trustee (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Indenture Trustee in accordance with any provision of the
Indenture (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith;
(C) indemnify the Indenture Trustee and its agents for,
and hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on their part arising out of
or in connection with the
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acceptance or administration of the transactions contemplated by the
Indenture, including the reasonable costs and expenses of defending
themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties under the
Indenture; and
(D) indemnify the Owner Trustee and its agents for, and
hold them harmless against, any loss, liability or expense incurred
without negligence or bad faith on their part arising out of or in
connection with the acceptance or administration of the transactions
contemplated by the Trust Agreement, including the reasonable costs
and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties under the Trust Agreement.
(b) Additional Duties.
(i) In addition to the duties of the Administrator set forth
above, the Administrator shall perform such calculations and shall prepare
or shall cause the preparation by other appropriate persons of, and shall
execute on behalf of the Issuer or the Owner Trustee, all such documents,
reports, filings, instruments, certificates and opinions that the Issuer or
the Owner Trustee is obligated to prepare pursuant to the Related
Agreements or Section 5.5(i), (ii), (iii) or (iv) of the Trust Agreement,
and at the request of the Owner Trustee shall take all appropriate action
that the Issuer or the Owner Trustee is obligated to take pursuant to the
Related Agreements. In furtherance of the foregoing, the Owner Trustee
shall, on behalf of itself and the Issuer, execute and deliver to the
Administrator and to each successor Administrator appointed pursuant to the
terms hereof, one or more powers of attorney substantially in the form of
Exhibit A hereto, appointing the Administrator the attorney-in-fact of the
Owner Trustee and the Issuer for the purpose of executing on behalf of the
Owner Trustee and the Issuer all such documents, reports, filings,
instruments, certificates and opinions. Subject to Section 6 of this
Agreement, and in accordance with the directions of the Owner Trustee, the
Administrator shall administer, perform or supervise the performance of
such other activities in connection with the Collateral (including the
Related Agreements) as are not covered by any of the foregoing provisions
and as are expressly requested by the Owner Trustee and are reasonably
within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding tax
is imposed on the Issuer's payments (or allocations of income) to a
registered holder of the beneficial interests in the Issuer as contemplated
in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the
amount of any withholding tax required to be withheld by the Owner Trustee
pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Transaction Documents to the contrary, the Administrator shall be
responsible for performance of the duties of the Issuer or the Owner
Trustee set forth in Section 5.5(i), (ii), (iii) and (iv) and
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Section 5.6(a) of the Trust Agreement with respect to, among other things,
accounting and reports to the beneficial owners of the interests in the
Issuer.
(iv) The Administrator shall deliver to the Owner Trustee and
the Indenture Trustee, on or before February 15, 2004, a certificate of an
Authorized Officer in form and substance satisfactory to the Owner Trustee
as to whether any tax withholding is then required and, if required, the
procedures to be followed with respect thereto to comply with the
requirements of the Code. The Administrator shall update such certificate
if any additional tax withholding is subsequently required or any
previously required tax withholding shall no longer be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement required to
be performed in connection with the resignation or removal of the Owner
Trustee, and any other duties expressly required to be performed by the
Administrator under the Trust Agreement or any other Related Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its affiliates; provided,
however, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in
the Administrator's opinion, no less favorable to the Issuer than would be
available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) The Administrator shall not take any action with respect to
matters that, in the reasonable judgment of the Administrator, are
non-ministerial unless within a reasonable time before the taking of such
action the Administrator shall have notified the Issuer of the proposed
action and the Issuer shall not have withheld consent, which consent shall
not be unreasonably withheld or delayed, or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial"
matters shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer
or the compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the collection of
the Receivables or Permitted Investments);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars,
successor Paying Agents or successor Indenture Trustees pursuant to
the Indenture, the appointment of successor Administrators or
Successor Servicers or the consent to
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the assignment by the Note Registrar, the Paying Agent or the
Indenture Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not, (A)
make any payments to the Noteholders under the Related Agreements or (B)
take any other action that the Issuer directs the Administrator not to take
on its behalf.
SECTION 3. Records. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Issuer
and the Company at any time during normal business hours.
SECTION 4. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement, and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $500 per month,
which compensation shall be solely an obligation of the Servicer.
SECTION 5. Additional Information to be Furnished to the Issuer.
The Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer may reasonably request.
SECTION 6. Independence of the Administrator. For all purposes of
this Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or the
Owner Trustee in any way and shall not otherwise be deemed an agent of the
Issuer or the Owner Trustee.
SECTION 7. No Joint Venture. Nothing contained in this Agreement
(i) shall constitute the Administrator and either the Issuer or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
SECTION 8. Other Activities of Administrator. Nothing contained in
this Agreement shall prevent the Administrator or its affiliates from engaging
in other businesses or, in its sole discretion, from acting in a similar
capacity as an administrator for any other person or entity even though such
person or entity may engage in business activities similar to those of the
Issuer, the Owner Trustee or the Indenture Trustee.
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SECTION 9. Term of Agreement; Resignation and Removal of
Administrator.
(a) This Agreement shall continue in full force and effect until the
dissolution of the Issuer, upon which event this Agreement shall automatically
terminate.
(b) Subject to Sections 9(e) and 9(f), the Administrator may resign
its duties hereunder by providing the Issuer with at least sixty (60) days'
prior written notice.
(c) Subject to Sections 9(e) and 9(f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least sixty
(60) days' prior written notice; provided, however, that in the event the
Servicer is removed as the Servicer pursuant to Section 8.1 of the Sale and
Servicing Agreement following the occurrence of an Event of Servicing
Termination, the Servicer shall be simultaneously removed as Administrator
hereunder.
(d) Subject to Sections 9(e) and 9(f), at the sole option of the
Issuer, the Issuer may remove the Administrator immediately upon written notice
of termination from the Issuer to the Administrator if any of the following
events shall occur and be continuing:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such default, shall
not cure such default within ten (10) days (or, if such default cannot be
cured in such time, shall not give within ten (10) days such assurance of
cure as shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been
vacated within sixty (60) days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official for
the Administrator or any substantial part of its property or order the
winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, shall consent to the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official for the Administrator or any substantial part of its
property, shall consent to the taking of possession by any such official of
any substantial part of its property, shall make any general assignment for
the benefit of creditors or shall fail generally to pay its debts as they
become due.
If any of the events specified in clauses (ii) or (iii) of this
Section 9(d) shall occur, the Administrator shall give written notice thereof to
the Issuer and the Indenture Trustee within seven (7) days after the occurrence
of such event.
(e) No resignation or removal of the Administrator pursuant to
Section 9(d) shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer
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(ii) such successor Administrator shall have agreed in writing to be bound by
the terms of this Agreement in the same manner as the Administrator is bound
hereunder. In the event that the Indenture Trustee is the successor
Administrator, CarMax's payment obligations pursuant to Sections 5.16(a) and
6.7(a) of the Indenture shall survive any termination, resignation or removal of
CarMax as Administrator.
(f) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with respect to
such appointment.
(g) Subject to Sections 9(e), 9(f) and 20, the Administrator
acknowledges that upon the appointment of a Successor Servicer pursuant to the
Sale and Servicing Agreement the Administrator shall immediately resign and such
Successor Servicer shall automatically become the Administrator under this
Agreement.
SECTION 10. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to Section
9(a), the resignation of the Administrator pursuant to Section 9(b) or the
removal of the Administrator pursuant to Section 9(c) or (d), the Administrator
shall be entitled to be paid all fees and reimbursable expenses accruing to it
to the date of such termination, resignation or removal. The Administrator shall
forthwith upon such termination pursuant to Section 9(a) deliver to the Issuer
all property and documents of or relating to the Collateral then in the custody
of the Administrator. In the event of the resignation of the Administrator
pursuant to Section 9(b) or the removal of the Administrator pursuant to Section
9(c) or (d), the Administrator shall cooperate with the Issuer and take all
reasonable steps requested by the Issuer to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
SECTION 11. Notices. All demands, notices and other communications
under this Agreement shall be in writing, personally delivered, sent by
telecopier, overnight courier or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (i) in the
case of the Issuer, to CarMax Auto Owner Trust 2003-2 c/o the Owner Trustee at
the following address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Division, Asset Backed Securities Group, (ii) in the
case of the Administrator, at the following address: ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasury Department, and (iii) in the case of the
Indenture Trustee, at the following address: ▇▇▇▇▇ Fargo Center, MAC #9311-161,
Sixth and Marquette, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or, in each case, to such
other address as any party shall have provided to the other parties in writing.
SECTION 12. Amendments. This Agreement may be amended from time to
time by the Issuer, the Administrator and the Indenture Trustee, without the
consent of any of the Noteholders or the Certificateholders, to cure any
ambiguity, to correct or supplement any provision herein that may be
inconsistent with any other provision herein or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement which will not be inconsistent with other provisions of this
Agreement; provided, however, that no such amendment may materially adversely
affect the interests of any Noteholder or Certificateholder. This Agreement may
also be amended from time to time by the Issuer, the Administrator and the
Indenture Trustee, with the consent of the Holders of Notes
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evidencing not less than 51% of the Note Balance of the Controlling Class or, if
the Notes have been paid in full, the Holders of Certificates evidencing not
less than 51% of the aggregate Certificate Percentage Interest, for the purpose
of adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Agreement or modifying in any manner the rights of the
Noteholders or the Certificateholders; provided, however, that no such amendment
may:
(i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on or in respect
of the Receivables or distributions that are required to be made for the
benefit of the Noteholders or the Certificateholders without the consent of
all Noteholders and Certificateholders adversely affected by such
amendment; or
(ii) reduce the percentage of the Note Balance or the
percentage of the aggregate Certificate Percentage Interest the consent of
the Holders of which is required for any amendment to this Agreement
without the consent of all the Noteholders and Certificateholders adversely
affected by such amendment.
An amendment to this Agreement shall be deemed not to materially
adversely affect the interests of any Noteholder or Certificateholder if the
Person requesting such amendment obtains and delivers to the Owner Trustee and
the Indenture Trustee an Opinion of Counsel to that effect or the Rating Agency
Condition is satisfied. Notwithstanding the foregoing, the Administrator may not
amend this Agreement without the consent of the Depositor, which consent shall
not be unreasonably withheld.
SECTION 13. Successors and Assigns. This Agreement may not be
assigned by the Administrator unless such assignment is previously consented to
in writing by the Issuer and the Owner Trustee and the Rating Agency Condition
has been satisfied with respect to such assignment. An assignment with such
consent and satisfaction, if accepted by the assignee, shall bind the assignee
hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator; provided, however, that such
successor organization executes and delivers to the Issuer, the Owner Trustee
and the Indenture Trustee an agreement in which such corporation or other
organization agrees to be bound hereunder by the terms of such assignment in the
same manner as the Administrator is bound hereunder. Subject to the foregoing,
this Agreement shall bind any successors or assigns of the parties hereto.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS
PROVISIONS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
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SECTION 15. 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 but one
and the same instrument.
SECTION 16. Severability. If any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality, and enforceability
of the remaining provisions of this Agreement shall not in any way be affected
or impaired thereby.
SECTION 17. Not Applicable to CarMax Auto Superstores, Inc. in Other
Capacities. Nothing in this Agreement shall affect any obligation CarMax Auto
Superstores, Inc. may have in any other capacity.
SECTION 18. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by the Owner Trustee not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer, and in no
event shall the Owner Trustee in its individual capacity have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of the Issuer. For all purposes of this Agreement, in the performance
of any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by the Indenture Trustee not in its individual
capacity but solely as Indenture Trustee, and in no event shall the Indenture
Trustee in its individual capacity have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer.
SECTION 19. Third-Party Beneficiary. The Owner Trustee is a
third-party beneficiary of this Agreement and is entitled to the rights and
benefits hereunder and may enforce the provisions hereof as if it were a party
hereto.
SECTION 20. Successor Servicer and Administrator. The Administrator
shall undertake, as promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers pursuant to
Section 8.2 of the Sale and Servicing Agreement, to enforce the provisions of
such Section 8.2 with respect to the appointment of a successor Servicer. Such
successor Servicer shall, upon compliance with the second to last sentence of
Section 8.2 of the Sale and Servicing Agreement, become the successor
Administrator hereunder; provided, however, that if the Indenture Trustee shall
become such successor Administrator, the Indenture Trustee shall not be required
to perform any obligations or duties or conduct any activities as successor
Administrator that would be prohibited by law and not within the banking and
trust powers of the Indenture Trustee; and, provided further, that the Indenture
Trustee as successor Administrator shall not assume any of the obligations
specified in Section 2(a)(ii). In such event, the Indenture Trustee may appoint
a sub-administrator to perform such
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obligations and duties. Any transfer of servicing pursuant to Section 8.2 of the
Sale and Servicing Agreement and related succession as Administrator hereunder
shall not constitute an assumption by the related successor Administrator of any
liability of the related outgoing Administrator arising out of any breach by
such outgoing Administrator of such outgoing Administrator's duties hereunder
prior to such transfer.
SECTION 21. Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement, the
Depositor, the Administrator, the Owner Trustee and the Indenture Trustee shall
not at any time acquiesce, petition or otherwise invoke or cause the Issuer to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Issuer under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Issuer or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, the
Issuer, the Administrator, the Owner Trustee and the Indenture Trustee shall not
at any time acquiesce, petition or otherwise invoke or cause the Depositor to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Depositor under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Depositor or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Depositor.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers, thereunto duly authorized, all as
of the day and year first above written.
CARMAX AUTO OWNER TRUST 2003-2
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇ ▇▇▇
Title: Assistant Treasurer
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
CARMAX AUTO SUPERSTORES, INC.,
as Administrator
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
S-1
EXHIBIT A
POWER OF ATTORNEY
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, that THE BANK OF NEW YORK, a New York
banking corporation, not in its individual capacity but solely as owner trustee
(the "Owner Trustee") for CarMax Auto Owner Trust 2003-2, a Delaware statutory
trust (the "Issuer"), does hereby make, constitute and appoint CARMAX AUTO
SUPERSTORES, INC., a Virginia corporation (the "Administrator"), as
administrator under the Administration Agreement dated as of October 1, 2003
(the "Administration Agreement"), among the Issuer, the Administrator and ▇▇▇▇▇
Fargo Bank Minnesota, National Association, a national banking association, as
Indenture Trustee, as the same may be amended from time to time, and its agents
and attorneys, as attorneys-in-fact to execute on behalf of the Owner Trustee or
the Issuer all such documents, reports, filings, instruments, certificates and
opinions as the Owner Trustee or the Issuer is obligated to prepare, file or
deliver pursuant to the Related Agreements or pursuant to Section 5.5(i), (ii),
(iii) or (iv) of the Trust Agreement, including, without limitation, to appear
for and represent the Owner Trustee and the Issuer in connection with the
preparation, filing and audit of federal, state and local tax returns pertaining
to the Issuer, and with full power to perform any and all acts associated with
such returns and audits that the Owner Trustee could perform, including without
limitation, the right to distribute and receive confidential information, defend
and assert positions in response to audits, initiate and defend litigation, and
to execute waivers of restrictions on assessments of deficiencies, consents to
the extension of any statutory or regulatory time limit and settlements. All
powers of attorney for this purpose heretofore filed or executed by the Owner
Trustee are hereby revoked. All capitalized terms used but not defined in this
power of attorney shall have the respective meanings set forth in the
Administration Agreement.
A-1
EXECUTED this 30th day of October, 2003.
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee
By:
-------------------------------------
Name:
Title:
STATE OF NEW YORK )
) ss. :
COUNTY OF ___________ )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared ____________________, known to
me to be the person and officer whose name is subscribed to the foregoing
instrument, and acknowledged to me that the same was the act of The Bank of New
York, a New York banking corporation, and that said person executed the same for
the purpose and consideration therein expressed, and in the capacities therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 30th day of October,
2003.
----------------------------------------
Notary Public in and for the State of
New York
[SEAL]
My commission expires:
--------------
A-2
