EXHIBIT 10.3 - RECEIVABLES PURCHASE AGREEMENT
[EXECUTION COPY]
CARMAX AUTO SUPERSTORES, INC.,
as Seller,
and
CARMAX AUTO FUNDING LLC,
as Purchaser
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RECEIVABLES PURCHASE AGREEMENT
Dated as of October 1, 2003
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions......................................................1
SECTION 1.2 Other Definitional Provisions....................................3
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..........................................5
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.......................13
SECTION 4.2 Conditions to Obligation of the Seller..........................14
ARTICLE V
COVENANTS OF THE SELLER
SECTION 5.1 Protection of Right, Title and Interest in, to and
Under the Receivables...........................................15
SECTION 5.2 Security Interests..............................................16
SECTION 5.3 Delivery of Payments............................................16
SECTION 5.4 No Impairment...................................................17
SECTION 5.5 Costs and Expenses..............................................17
SECTION 5.6 Hold Harmless...................................................17
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 Amendment.......................................................17
SECTION 6.2 Termination.....................................................18
SECTION 6.3 Governing Law...................................................18
SECTION 6.4 Notices.........................................................18
SECTION 6.5 Severability of Provisions......................................18
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SECTION 6.6 Further Assurances..............................................18
SECTION 6.7 No Waiver; Cumulative Remedies..................................18
SECTION 6.8 Counterparts....................................................19
SECTION 6.9 Third-Party Beneficiaries.......................................19
SECTION 6.10 Headings and Table of Contents..................................19
SECTION 6.11 Representations, Warranties and Agreements to Survive...........19
SECTION 6.12 No Proceedings..................................................19
SECTION 6.13 Accountant's Letters............................................19
SECTION 6.14 Obligations of Purchaser........................................19
SCHEDULES
SCHEDULE A Receivables Schedule
EXHIBITS
EXHIBIT A Xxxx 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 October 1, 2003, 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 (the "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 $600,000,001.02 as of the close of business on October 20, 2003 (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 2003-2, as issuer (the
"Issuer") pursuant to a Sale and Servicing Agreement, dated as of October 1,
2003 (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 October 17, 2003,
of the Purchaser relating to the public offering by the Purchaser of the Notes.
"Xxxx of Sale" shall mean the Xxxx of Sale and Assignment,
substantially in the form attached 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.
"Class A Notes" shall mean the Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes and the Class A-4 Notes issued pursuant to the Indenture.
"Class B Notes" shall mean the Class B Notes issued pursuant to the
Indenture.
"Class C Notes" shall mean the Class C Notes issued pursuant to the
Indenture.
"Class D Notes" shall mean the Class D Notes issued pursuant to the
Indenture.
"Closing Date" shall mean October 30, 2003.
"Cutoff Date" shall mean October 20, 2003.
"Delaware Trustee" shall mean The Bank of New York (Delaware), a
Delaware banking corporation, as Delaware trustee under the Trust Agreement, and
its successors in such capacity.
"Depositor" shall mean CarMax Auto Funding LLC, a Delaware limited
liability company, as Depositor under the Trust Agreement, and its successors in
such capacity.
"Indenture" shall mean the Indenture, dated as of October 1, 2003,
between the Issuer and the Indenture Trustee, as amended, supplemented or
otherwise modified and in effect from time to time.
"Indenture Trustee" shall mean Xxxxx Fargo Bank Minnesota, National
Association, a national banking association, as indenture trustee under the
Indenture, and its successors in such capacity.
"Initial Reserve Account Deposit" shall mean $3,000,000.
"Issuer" shall mean CarMax Auto Owner Trust 2003-2, a Delaware
statutory trust, and its successors.
"Noteholders" shall mean the registered holders of the Notes.
"Notes" shall mean the Class A Notes, the Class B Notes, the Class C
Notes and the Class D Notes.
"Owner Trustee" shall mean The Bank of New York, a New York banking
corporation, as owner trustee under the Trust Agreement, and its successors in
such capacity.
"Prospectus Supplement" shall mean the final prospectus supplement,
dated October 22, 2003, of the Purchaser relating to the public offering by the
Purchaser of the Notes.
"Prospectus" shall mean the Prospectus Supplement and the Base
Prospectus of the Purchaser relating to the public offering by the Purchaser of
the Notes.
"Purchaser" shall mean CarMax Funding, in its capacity as purchaser of
the Receivables under this Agreement, and its successors in such capacity.
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"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 $618,000,000.
"Receivables Schedule" shall mean the schedule of receivables attached
as Schedule A, as amended, supplemented or otherwise modified and in effect from
time to time.
"Representative" shall mean Banc of America Securities LLC, a Delaware
limited liability company, as representative of the Underwriters.
"Sale and Servicing Agreement" shall have the meaning specified in the
recitals.
"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 or the
District of Columbia.
"Transaction Documents" shall mean this Agreement, the Trust
Agreement, the Sale and Servicing Agreement, the Indenture, the Administration
Agreement and the other documents and certificates delivered in 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
September 25, 2003, among CarMax Funding, the Delaware Trustee and the Owner
Trustee, as amended and restated by the Amended and Restated Trust Agreement,
dated as of October 1, 2003, among CarMax Funding, the Delaware Trustee 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
October 22, 2003, among CarMax Funding, CarMax and the Representative, relating
to the purchase of the Notes 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.
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(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) On the Closing Date, subject to the terms and conditions of this
Agreement, the Seller hereby agrees to sell, transfer, assign, set over and
otherwise convey to the Purchaser, and the Purchaser hereby agrees to purchase
from the Seller, without recourse (subject to the Seller's obligations hereunder
and the satisfaction of the conditions set forth in Section 4.1), all of the
right, title and interest of the Seller, whether now owned or hereafter
acquired, 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;
(iii) the security interests in the Financed Vehicles granted
by the Obligors pursuant to the Receivables and any other interest of the
Seller in such Financed Vehicles;
(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
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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 obligations secured
thereby to the Indenture Trustee.
(c) The Seller agrees to treat the transfer of the Receivables and
the related property contemplated by this Section 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, the Purchaser shall pay to the Seller the
Receivables Purchase Price. An amount equal to $595,631,120.10 of the
Receivables Purchase Price shall be paid by the Purchaser to the Seller in cash
or immediately available funds. The remainder of the Receivables Purchase Price
shall be paid by crediting the Seller with a contribution to the capital of the
Purchaser. The Purchaser shall deposit, from funds it receives from the issuance
of the Notes, an amount equal to the Initial Reserve Account Deposit into the
Reserve Account, which amount shall be an asset of the Trust.
(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 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 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.
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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 Purchaser in connection with the sale of the Notes, including
expenses which 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; Binding Obligation. 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. This
Agreement constitutes the legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other
similar laws and to general equitable principles.
(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 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.
(d) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of the Purchaser, threatened, against the
Purchaser before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over the
Purchaser or its properties (i) asserting the invalidity of this Agreement,
(ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or ruling
that, in the
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reasonable judgment of the Purchaser would materially and adversely affect
the performance by the Purchaser of its obligations under, or the validity
or enforceability of, this Agreement or the Receivables.
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; Binding Obligation. 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.
This Agreement constitutes the legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other
similar laws and to general equitable principles.
(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.
(iv) No Proceedings. There are no proceedings or
investigations pending, or, to the knowledge of the Seller, threatened,
against the Seller before any court, regulatory body, administrative agency
or other tribunal or governmental instrumentality having jurisdiction over
the Seller or its properties (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that, in the reasonable judgment of the Seller
would materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this Agreement or
the Receivables.
(v) No Tax Liens. The Seller is not aware of any material
judgment or tax lien filings against the Seller.
(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
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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 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
Noteholders:
(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) 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, (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 Noteholders 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
Xxxxxxxx-Xxxx 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
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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 or any State or from any agency, department or instrumentality of
the United States 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 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) No 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 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
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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, 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 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.
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(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 $60,000 and a remaining Principal
Balance as of the Cutoff Date of not less than $500.
(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.
(xix) New and Used Vehicles. As of the Cutoff Date, approximately
4.11% of the Pool Balance related to Receivables secured by new Financed
Vehicles and approximately 95.89% of the Pool Balance related to
Receivables secured by used Financed Vehicles.
(xx) Origination. Each Receivable was originated after April 17,
1998.
(xxi) Term to Maturity. Each Receivable had an original term to
maturity of not more than 72 months and not less than 12 months and a
remaining term to maturity as of the Cutoff Date of not more than 71 months
and not less than three 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 57 months.
(xxiii) Annual Percentage Rate. Each Receivable has an APR of at
least 4.95% and not more than 25.00%.
(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
represents 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
11
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.
(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 Noteholders 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 Noteholders 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 or the Owner Trustee
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. 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.
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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 the Seller 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 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
Bank of America, N.A. (and certain other parties) and CarMax Funding, LLC,
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
13
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 or Xxxxx'x in
connection with the purchase of the Receivables hereunder or the
issuance or sale of the Notes;
(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 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 Xxxx 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) Rating of the Notes. Xxxxx'x and Standard & Poor's, respectively,
shall have assigned ratings of (i) "Prime-1" and "A-1+" to the Class A-1
Notes, (ii) "Aaa" and "AAA" to the Class A-2 Notes, the Class A-3 Notes and
the Class A-4 Notes, (iii) "Aa1" and "AA" to the Class B Notes, (iv) "A1"
and "A" to the Class C Notes and (v) "Baa3" and "BBB" to the Class D Notes.
(g) No Unsolicited Ratings. There shall not have been issued an
unsolicited rating of any Class of Notes by any nationally recognized
statistical rating agency at a level that is lower than the ratings for
such Class of Notes from Xxxxx'x or Standard & Poor's specified in Section
4.1(f).
(h) 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
14
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 Date the Purchaser shall have paid to the
Seller the Receivables Purchase Price.
(c) Opinions of Purchaser. An opinion or opinions of counsel for the
Purchaser addressed to the Seller 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.
15
(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 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 Noteholders 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.
16
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 the Seller 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.
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 any Noteholder, 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 Noteholders.
(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 Noteholders 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 of the
Controlling Class.
17
(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, 0000 Xxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxxx 00000,
Attention: Treasurer and (ii) the Seller, to CarMax Auto Superstores, Inc., 0000
Xxx Xxxx, Xxxx Xxxxx, Xxxxxxxx 00000, 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 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.
18
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 Noteholders, 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 Noteholders.
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 described in
the Receivables Schedule and to compare those characteristics to the information
with respect to the Receivables contained 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.
(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 October 30, 2003, 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.
19
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: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
CARMAX AUTO FUNDING LLC,
as Purchaser
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Treasurer
S-1
SCHEDULE A
RECEIVABLES SCHEDULE
[ON FILE WITH THE SERVICER]
SA-1
EXHIBIT A
XXXX OF SALE AND ASSIGNMENT
For value received, in accordance with the receivables purchase
agreement, dated as of October 1, 2003 (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 and any other
interest of the undersigned in such Financed Vehicles; (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 Xxxx 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 Xxxx of Sale and
Assignment to be duly executed as of October 30, 2003.
CARMAX AUTO SUPERSTORES, INC.
By:
-------------------------------------
Name:
Title:
A-1
EXHIBIT B
FORM OF RETAIL INSTALLMENT SALE CONTRACT
[SEE ATTACHED]
B-1
