Exhibit 10.2
[EXECUTION COPY]
CARMAX AUTO OWNER TRUST 2002-2,
as Issuer,
CARMAX AUTO SUPERSTORES, INC.,
as Administrator,
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Indenture Trustee
-----------------------------
ADMINISTRATION AGREEMENT
Dated as of December 1, 2002
-----------------------------
ADMINISTRATION AGREEMENT, dated as of December 1, 2002 (as
amended, supplemented or otherwise modified and in effect from time to time,
this "Agreement"), by and among CARMAX AUTO OWNER TRUST 2002-2, a Delaware
statutory trust (the "Issuer"), CARMAX AUTO SUPERSTORES, INC., a Virginia
corporation, as administrator (in such capacity, the "Administrator"), and XXXXX
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 1.425% Class A-1 Asset-Backed
Notes, 1.92% Class A-2 Asset-Backed Notes, 2.67% Class A-3 Asset-Backed Notes
and 3.34% Class A-4 Asset-Backed Notes (collectively, the "Notes") pursuant to
the Indenture, dated as of December 1, 2002 (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 December 1, 2002 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Sale and Servicing Agreement"), by and among the
Issuer, Pooled Auto Securities Shelf LLC, a Delaware limited liability company,
as depositor (in such capacity, the "Depositor"), and CarMax Auto Superstores,
Inc., as seller and servicer, (ii) a Letter of Representations, dated December
5, 2002 (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);
(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
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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, the Insurer 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, the Insurer and the Rating Agencies of each Event of Default under
the Indenture and each default by the Depositor, the Seller 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);
(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);
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(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, the Insurer 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);
(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));
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(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); and
(FF) the preparation of Definitive Notes in accordance with the
instructions of the Clearing Agency (Section 2.13).
(ii) The 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 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
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claim or liability in connection with the or performance of any of
their powers or duties under 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 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, 2003, 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.
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(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 and the Insurer (if no Insurer
Default shall have occurred and be continuing) 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 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.
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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 Seller.
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.
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.
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(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 and (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.
(f) The appointment of any successor Administrator shall be effective only
with the consent of the Insurer (if no Insurer Default shall have occurred and
be continuing) and after satisfaction of the Rating Agency Condition with
respect to such appointment.
(g) Subject to Sections 9(e) and 9(f), 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
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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 the CarMax Auto Owner Trust 2002-2 c/o the Owner Trustee at the
following address: 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust Division, Asset Backed Securities Group, (ii) in the case of the
Administrator, at the following address: 0000 Xxx Xxxx, Xxxx Xxxxx, Xxxxxxxx
00000, Attention: Treasury Department, (iii) in the case of the Indenture
Trustee, at the following address: Xxxxx Fargo Center, MAC #9311-161, Sixth and
Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000, and (iv) in the case of the Insurer, at
the following address: 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000, Attention:
Insured Portfolio Management, Structured Finance, 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 and with the consent of the
Insurer (if no Insurer Default shall have occurred and be continuing) 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 Insurer (if no Insurer Default shall
have occurred and be continuing) and with the consent of the Holders of Notes
evidencing not less than 51% of the Note Balance or, if the Notes have been paid
in full, the Holders of Certificates evidencing not less than 51% of the
Certificate Balance, 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 Certificate Balance the consent of the Holders of which is required for
any
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amendment to this Agreement without the consent of all the Noteholders
and Certificateholders adversely affected by the 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, (x) no amendment to this
Agreement will be permitted without the consent of the Insurer if such amendment
would reasonably be expected to materially adversely affect the interests of the
Insurer and (y) 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, the Owner Trustee and the Insurer (if no Insurer Default shall
have occurred and be continuing) 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 OBLIGATION LAW).
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.
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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. In such event, the Indenture Trustee may appoint a
sub-administrator to perform such 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,
12
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 2002-2
By: THE BANK OF NEW YORK,
not in its individual capacity but solely
as Owner Trustee
By: /s/ Xxxxx Xxx
-------------------------------
Name: Xxxxx Xxx
Title: Assistant Treasurer
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
CARMAX AUTO SUPERSTORES, INC.,
as Administrator
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
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 2002-2, 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 December 1, 2002
(the "Administration Agreement"), among the Issuer, the Administrator and Xxxxx
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 5th day of December, 2002.
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 5th day of
December, 2002.
------------------------
Notary Public in and for
the State of New York
[SEAL]
My commission expires: ____________
A-2
