SALE AND SERVICING AGREEMENT



 EXHIBIT 10.1 – SALE AND SERVICING AGREEMENT 
  
 [EXECUTION COPY] 
  
 CARMAX AUTO OWNER TRUST 2004-1, 
 as Issuer, 
  
 CARMAX AUTO FUNDING
LLC, 
 as Depositor, 
  
 and 
  
 CARMAX AUTO SUPERSTORES, INC., 
 as Servicer 
  

  
 SALE AND SERVICING AGREEMENT 
 Dated as of May 1, 2004 
  

  









 TABLE OF CONTENTS 
  


					
	 	  	 	  	Page


	ARTICLE I
	DEFINITIONS
			
	 SECTION 1.1
	  	 Definitions
	  	1
	 SECTION 1.2
	  	 Other Definitional Provisions
	  	17
	
	ARTICLE II
	TRUST PROPERTY
			
	 SECTION 2.1
	  	 Conveyance of Trust Property
	  	18
	 SECTION 2.2
	  	 Representations and Warranties of the Seller as to the Receivables
	  	19
	 SECTION 2.3
	  	 Representations and Warranties of the Depositor as to the Receivables
	  	20
	 SECTION 2.4
	  	 Repurchase by Depositor upon Breach
	  	24
	 SECTION 2.5
	  	 Custody of Receivable Files
	  	24
	 SECTION 2.6
	  	 Duties of Servicer as Custodian
	  	25
	 SECTION 2.7
	  	 Instructions; Authority to Act
	  	26
	 SECTION 2.8
	  	 Indemnification of the Custodian
	  	26
	 SECTION 2.9
	  	 Effective Period and Termination
	  	26
	
	ARTICLE III
	 ADMINISTRATION AND SERVICING OF RECEIVABLES AND OTHER
 TRUST PROPERTY

			
	 SECTION 3.1
	  	 Duties of Servicer
	  	27
	 SECTION 3.2
	  	 Collection and Allocation of Receivable Payments
	  	28
	 SECTION 3.3
	  	 Realization upon Receivables
	  	28
	 SECTION 3.4
	  	 Physical Damage Insurance
	  	28
	 SECTION 3.5
	  	 Maintenance of Security Interests in Financed Vehicles
	  	29
	 SECTION 3.6
	  	 Amendment of Receivable Terms
	  	29
	 SECTION 3.7
	  	 Purchase by Servicer upon Breach
	  	29
	 SECTION 3.8
	  	 Servicing Compensation
	  	29
	 SECTION 3.9
	  	 Servicer’s Certificate
	  	30
	 SECTION 3.10
	  	 Annual Statement as to Compliance; Notice of Event of Servicing Termination
	  	30
	 SECTION 3.11
	  	 Annual Independent Certified Public Accountants’ Reports
	  	31
	 SECTION 3.12
	  	 Access to Certain Documentation and Information Regarding Receivables
	  	31
	 SECTION 3.13
	  	 Reports to the Commission
	  	31
	 SECTION 3.14
	  	 Reports to Rating Agencies
	  	32

  

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	ARTICLE IV
	 DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO NOTEHOLDERS
 AND CERTIFICATEHOLDERS

			
	 SECTION 4.1
	  	 Accounts
	  	32
	 SECTION 4.2
	  	 Collections
	  	33
	 SECTION 4.3
	  	 Application of Collections
	  	34
	 SECTION 4.4
	  	 Simple Interest Advances and Unreimbursed Servicer Advances
	  	34
	 SECTION 4.5
	  	 Additional Deposits
	  	35
	 SECTION 4.6
	  	 Determination Date Calculations; Application of Available Funds
	  	35
	 SECTION 4.7
	  	 Reserve Account
	  	36
	 SECTION 4.8
	  	 Net Deposits
	  	38
	 SECTION 4.9
	  	 Statements to Noteholders and Certificateholders
	  	38
	 SECTION 4.10
	  	 Control of Securities Accounts
	  	39
	
	ARTICLE V
	[RESERVED]
	
	ARTICLE VI
	THE DEPOSITOR
			
	 SECTION 6.1
	  	 Representations and Warranties of Depositor
	  	40
	 SECTION 6.2
	  	 Liability of Depositor; Indemnities
	  	41
	 SECTION 6.3
	  	 Merger or Consolidation of, or Assumption of the Obligations of, Depositor
	  	43
	 SECTION 6.4
	  	 Limitation on Liability of Depositor and Others
	  	43
	 SECTION 6.5
	  	 Depositor May Own Notes or Certificates
	  	43
	 SECTION 6.6
	  	 [RESERVED]
	  	44
	 SECTION 6.7
	  	 Certain Limitations
	  	44
	
	ARTICLE VII
	THE SERVICER
			
	 SECTION 7.1
	  	 Representations and Warranties of Servicer
	  	46
	 SECTION 7.2
	  	 Liability of Servicer; Indemnities
	  	47
	 SECTION 7.3
	  	 Merger or Consolidation of, or Assumption of the Obligations of, Servicer
	  	48
	 SECTION 7.4
	  	 Limitation on Liability of Servicer and Others
	  	49
	 SECTION 7.5
	  	 Delegation of Duties
	  	49
	 SECTION 7.6
	  	 Servicer Not to Resign
	  	49
	 SECTION 7.7
	  	 Servicer May Own Notes or Certificates
	  	50
	
	ARTICLE VIII
	SERVICING TERMINATION
			
	 SECTION 8.1
	  	 Events of Servicing Termination
	  	50
	 SECTION 8.2
	  	 Indenture Trustee to Act; Appointment of Successor Servicer
	  	52
	 SECTION 8.3
	  	 Effect of Servicing Transfer
	  	53

  

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	 SECTION 8.4
	  	 Notification to Noteholders, Certificateholders and Rating Agencies
	  	53
	 SECTION 8.5
	  	 Waiver of Past Events of Servicing Termination
	  	53
	 SECTION 8.6
	  	 Repayment of Advances
	  	53
	
	ARTICLE IX
	TERMINATION
			
	 SECTION 9.1
	  	 Optional Purchase of All Receivables
	  	54
	
	ARTICLE X
	MISCELLANEOUS PROVISIONS
			
	 SECTION 10.1
	  	 Amendment
	  	55
	 SECTION 10.2
	  	 Protection of Title to Trust
	  	56
	 SECTION 10.3
	  	 GOVERNING LAW
	  	58
	 SECTION 10.4
	  	 Notices
	  	59
	 SECTION 10.5
	  	 Severability of Provisions
	  	59
	 SECTION 10.6
	  	 Assignment
	  	59
	 SECTION 10.7
	  	 Further Assurances
	  	59
	 SECTION 10.8
	  	 No Waiver; Cumulative Remedies
	  	59
	 SECTION 10.9
	  	 Third-Party Beneficiaries
	  	59
	 SECTION 10.10
	  	 Actions by Noteholder or Certificateholders
	  	60
	 SECTION 10.11
	  	 Counterparts
	  	60
	 SECTION 10.12
	  	 No Bankruptcy Petition
	  	60
	 SECTION 10.13
	  	 Limitation of Liability of Owner Trustee and Indenture Trustee
	  	60
	
	SCHEDULES
			
	 SCHEDULE 1
	  	 Receivable Schedule
	  	 
	 SCHEDULE 2
	  	 Location of Receivable Files
	  	 
	
	EXHIBITS
			
	 EXHIBIT A
	  	 Form of Servicer’s Certificate
	  	 
	 EXHIBIT B
	  	 Form of Statement to Noteholders
	  	 
	 EXHIBIT C
	  	 Form of Statement to Certificateholders
	  	 

  
  

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 SALE AND SERVICING AGREEMENT, dated as of May 1, 2004 (as amended, supplemented or otherwise modified and
in effect from time to time, this “Agreement”), among CARMAX AUTO OWNER TRUST 2004-1, a Delaware statutory trust (the “Trust”), CARMAX AUTO FUNDING LLC, a Delaware limited liability company (the
“Depositor”), and CARMAX AUTO SUPERSTORES, INC., a Virginia corporation (“CarMax”), as servicer (in such capacity, the “Servicer”). 
  
 WHEREAS, the Trust desires to purchase certain motor vehicle retail installment sale contracts originated or acquired by
CarMax in the ordinary course of business and sold to the Depositor as of the date hereof; 
  
 WHEREAS, the Depositor is willing to sell such contracts to the Trust as of the date hereof; and 
  
 WHEREAS, the Servicer is willing to service such contracts on behalf of the Trust; 
  
 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: 
  
 ARTICLE I 
 DEFINITIONS 
  
 SECTION 1.1 Definitions. Whenever used in this Agreement, the following words and phrases, unless the context
otherwise requires, whenever capitalized shall have the following meanings: 
  
 “Additional Note Interest” shall mean, for any Distribution Date and any Class of Notes, the sum of (i) all accrued but unpaid Monthly Note Interest for previous Distribution Dates for such Class
plus (ii) to the extent permitted by law, interest on such accrued but unpaid Monthly Note Interest at the Note Rate applicable to such Class. 
  
 “Additional Servicing Fee” shall mean, for any Collection Period, if a successor Servicer has been appointed pursuant to Section 8.2, the
amount, if any, by which (i) the compensation payable to such successor Servicer for such Collection Period exceeds (ii) the Monthly Servicing Fee for such Collection Period. 
  
 “Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with such Person. For purposes of this definition, “control” when used with respect to any Person shall mean the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. 
  
 “Amount Financed” shall mean, with respect to any Receivable, the aggregate amount advanced under such Receivable toward the purchase
price of the related Financed Vehicle and any related costs, including accessories, extended warranty contracts, insurance 

  









 
premiums and other items customarily financed as part of a motor vehicle retail installment sale contract. 
  
 “Applicable Tax State” shall mean, as of any date, (i) any
State in which the Owner Trustee maintains the Corporate Trust Office, (ii) any State in which the Owner Trustee maintains its principal executive offices and (iii) any State in which the Servicer regularly conducts servicing and collection
activities (other than purely ministerial activities) with respect to a material portion of the Receivables. 
  
 “APR” shall mean, with respect to any Receivable, the annual percentage rate of interest stated in such Receivable. 
  
 “Authorized Officer” shall mean, as applicable, (i) any
officer within the Corporate Trust Office of the Indenture Trustee, including any vice president, assistant vice president, secretary or assistant secretary, or any financial services officer of the Indenture Trustee customarily performing functions
similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer of the Indenture Trustee to whom such matter is referred because of such officer’s knowledge of and familiarity
with the particular subject or (ii) any officer within the Corporate Trust Office of the Owner Trustee, including any senior vice president, vice president, assistant vice president, assistant secretary, assistant treasurer or trust officer of the
Owner Trustee customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer of the Owner Trustee to whom such matter is referred because of such
officer’s knowledge of and familiarity with the particular subject. 
  
 “Available Collections” shall mean, for any Distribution Date, (i) all Obligor payments received with respect to the Receivables during the preceding Collection Period, (ii) all Liquidation Proceeds
received with respect to the Receivables during the preceding Collection Period, (iii) all interest earned on funds on deposit in the Collection Account during the preceding Collection Period, (iv) the aggregate Purchase Amount deposited in the
Collection Account on the Business Day preceding such Distribution Date, (v) all prepayments received with respect to the Receivables during the preceding Collection Period attributable to any refunded item included in the Amount Financed (including
amounts received as a result of rebates of extended warranty contract costs and insurance premiums and proceeds received under physical damage, theft, credit life and credit disability insurance policies) and (vi) all Simple Interest Advances
deposited into the Collection Account by the Servicer on the Business Day preceding such Distribution Date; provided, however, that Available Collections for any Distribution Date shall not include any payments or other amounts
(including Liquidation Proceeds) received with respect to any Purchased Receivable the Purchase Amount for which was included in Available Collections for a previous Distribution Date; provided further, that Available Collections for
any Distribution Date shall not include any payments or other amounts (including Liquidation Proceeds) received with respect to any Receivable to the extent that the Servicer has made an unreimbursed Simple Interest Advance with respect to such
Receivable and is entitled to reimbursement from such payments or other amounts pursuant to Section 4.4; and, provided further, that Available Collections for any Distribution Date shall not include any payments or other amounts
(including Liquidation Proceeds) received with respect to the 

  

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Receivables that are retained by the Servicer as reimbursement for Unreimbursed Servicer Advances pursuant to Section 4.4. 
  
 “Available Funds” shall mean, for any Distribution Date, the
sum of (i) the Available Collections for such Distribution Date plus (ii) the Reserve Account Draw Amount, if any, for such Distribution Date (to the extent deposited in the Collection Account). 
  
 “Business Day” shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions or trust companies in New York, New York, Wilmington, Delaware, Minneapolis, Minnesota, Charlotte, North Carolina or Richmond, Virginia are authorized or obligated by law, executive order or governmental
decree to remain closed. 
  
 “CarMax” shall mean
CarMax Auto Superstores, Inc., a Virginia corporation, and its successors and assigns. 
  
 “CarMax, Inc.” shall mean CarMax, Inc., a Virginia corporation, and its successors and assigns. 
  
 “CarMax Fiscal Year” shall mean the period commencing on March 1 of any year and ending on February 28 (or February 29, if applicable) of
the following year. 
  
 “CarMax Funding” shall
mean CarMax Auto Funding LLC, a Delaware limited liability company, and its successors and assigns. 
  
 “Certificate” shall have the meaning specified in the Trust Agreement. 
  
 “Certificate Payment Account” shall mean the account established and maintained as such pursuant to Section
4.1(c). 
  
 “Certificate Percentage Interest”
shall mean, with respect to a Certificate, the percentage specified on such Certificate as the Certificate Percentage Interest, which percentage represents the beneficial interest of such Certificate in the Issuer. The initial Certificate Percentage
Interest held by the Depositor shall be 100%. 
  
 “Certificateholder” shall have the meaning specified in the Trust Agreement. 
  
 “Class” shall mean a class of Notes, which may be the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes, the Class C Notes or the Class D Notes. 
  
 “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. 
  
 “Class A-1 Final Distribution Date” shall mean the May 2005 Distribution Date. 
  
 “Class A-1 Monthly Interest” shall mean (i) for the initial
Distribution Date, $145,040.00, and (ii) for any Distribution Date thereafter, the product of (A) the actual number of days elapsed during the period from and including the preceding Distribution Date to but 

  

 3 








 
excluding such Distribution Date divided by 360, (B) the Class A-1 Rate and (C) the outstanding principal balance of the Class A-1 Notes as of the preceding
Distribution Date (after giving effect to all payments of principal made to the Holders of the Class A-1 Notes on or before such preceding Distribution Date). 
  

“Class A-1 Notes” shall mean the 1.176% Class A-1 Asset-Backed Notes issued by the Trust pursuant to the Indenture in the initial
aggregate principal amount of $111,000,000. 
  
 “Class A-1
Rate” shall mean 1.176% per annum. 
  
 “Class A-2
Final Distribution Date” shall mean the December 2006 Distribution Date. 
  
 “Class A-2 Monthly Interest” shall mean (i) for the initial Distribution Date, $271,461.67, and (ii) for any Distribution Date thereafter, one-twelfth of the product of (A) the Class A-2 Rate and (B)
the outstanding principal balance of the Class A-2 Notes as of the preceding Distribution Date (after giving effect to all payments of principal made to the Holders of the Class A-2 Notes on or before such preceding Distribution Date). 

 
 “Class A-2 Notes” shall mean the 1.87% Class A-2
Asset-Backed Notes issued by the Trust pursuant to the Indenture in the initial aggregate principal amount of $134,000,000. 
  
 “Class A-2 Rate” shall mean 1.87% per annum. 
  
 “Class A-3 Final Distribution Date” shall mean the May 2008 Distribution Date. 
  
 “Class A-3 Monthly Interest” shall mean (i) for the initial
Distribution Date, $463,948.33, and (ii) for any Distribution Date thereafter, one-twelfth of the product of (A) the Class A-3 Rate and (B) the outstanding principal balance of the Class A-3 Notes as of the preceding Distribution Date (after giving
effect to all payments of principal made to the Holders of the Class A-3 Notes on or before such preceding Distribution Date). 
  
 “Class A-3 Notes” shall mean the 2.66% Class A-3 Asset-Backed Notes issued by the Trust pursuant to the Indenture in the initial
aggregate principal amount of $161,000,000. 
  
 “Class A-3
Rate” shall mean 2.66% per annum. 
  
 “Class A-4
Final Distribution Date” shall mean the November 2010 Distribution Date. 
  
 “Class A-4 Monthly Interest” shall mean (i) for the initial Distribution Date, $472,853.33, and (ii) for any Distribution Date thereafter, one-twelfth of the product of (A) the Class A-4 Rate and (B)
the outstanding principal balance of the Class A-4 Notes as of the preceding Distribution Date (after giving effect to all payments of principal made to the Holders of the Class A-4 Notes on or before such preceding Distribution Date). 

 
 “Class A-4 Notes” shall mean the 3.41% Class A-4
Asset-Backed Notes issued by the Trust pursuant to the Indenture in the initial aggregate principal amount of $128,000,000. 
  

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 “Class A-4 Rate” shall mean 3.41% per annum. 
  
 “Class B Final Distribution Date” shall mean the November
2010 Distribution Date. 
  
 “Class B Monthly
Interest” shall mean (i) for the initial Distribution Date, $53,040.00, and (ii) for any Distribution Date thereafter, one-twelfth of the product of (A) the Class B Rate and (B) the outstanding principal balance of the Class B Notes as of
the preceding Distribution Date (after giving effect to all payments of principal made to the Holders of the Class B Notes on or before such preceding Distribution Date). 
  
 “Class B Notes” shall mean the 2.72% Class B Asset-Backed Notes issued by the Trust pursuant to the
Indenture in the initial aggregate principal amount of $18,000,000. 
  
 “Class B Rate” shall mean 2.72% per annum. 
  
 “Class C Final Distribution Date” shall mean the November 2010 Distribution Date. 
  
 “Class C Monthly Interest” shall mean (i) for the initial Distribution Date, $68,705.00, and (ii) for any Distribution Date thereafter,
one-twelfth of the product of (A) the Class C Rate and (B) the outstanding principal balance of the Class C Notes as of the preceding Distribution Date (after giving effect to all payments of principal made to the Holders of the Class C Notes on or
before such preceding Distribution Date). 
  
 “Class C
Notes” shall mean the 3.02% Class C Asset-Backed Notes issued by the Trust pursuant to the Indenture in the initial aggregate principal amount of $21,000,000. 
  
 “Class C Rate” shall mean 3.02% per annum. 
  
 “Class D Final Distribution Date” shall mean the November 2010 Distribution Date. 
  
 “Class D Monthly Interest” shall mean (i) for the initial
Distribution Date, $102,960.00, and (ii) for any Distribution Date thereafter, one-twelfth of the product of (A) the Class D Rate and (B) the outstanding principal balance of the Class D Notes as of the preceding Distribution Date (after giving
effect to all payments of principal made to the Holders of the Class D Notes on or before such preceding Distribution Date). 
  
 “Class D Notes” shall mean the 3.52% Class D Asset-Backed Notes issued by the Trust pursuant to the Indenture in the initial aggregate
principal amount of $27,000,000. 
  
 “Class D
Rate” shall mean 3.52% per annum. 
  
 “Class
Final Distribution Date” shall mean, as applicable, the Class A-1 Final Distribution Date, the Class A-2 Final Distribution Date, the Class A-3 Final Distribution Date, the Class A-4 Final Distribution Date, the Class B Final Distribution
Date, the Class C Final Distribution Date or the Class D Final Distribution Date. 
  

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 “Closing Date” shall mean May 6, 2004. 
  
 “Collection Account” shall mean the account established and
maintained as such pursuant to Section 4.1(a). 
  
 “Collection Period” shall mean each calendar month during the term of this Agreement or, in the case of the initial Collection Period, the period from but excluding the Cutoff Date to and including May 31, 2004. 

 
 “Commission” shall mean the Securities and Exchange
Commission, and its successors. 
  
 “Computer
Tape” shall mean any computer tape or compact disk generated by the Seller which provides information relating to the Receivables and which was used by the Seller in selecting the Receivables sold to the Depositor under the Receivables
Purchase Agreement on the Closing Date. 
  
 “Consolidated
Tangible Net Worth” shall mean, as of any date, all amounts which, in conformity with generally accepted accounting principles, would be included under stockholder’s equity on the consolidated balance sheet of CarMax, Inc. as of such
date; provided, however, that, in any event, such amounts shall be net of (i) amounts carried on the consolidated financial statements of CarMax, Inc. for any write-up in the book value of any assets of CarMax, Inc. resulting from the
revaluation thereof subsequent to February 29, 2004, (ii) treasury stock, (iii) intangible assets and (iv) indebtedness owing from officers, employees, shareholders or affiliates of CarMax, Inc. (but only if the aggregate amount of such indebtedness
exceeds $1,000,000). 
  
 “Controlling Class”
shall mean (i) the Class A Notes so long as any Class A Notes are Outstanding, (ii) thereafter the Class B Notes so long as any Class B Notes are Outstanding, (iii) thereafter the Class C Notes as long as any Class C Notes are Outstanding and (iv)
thereafter the Class D Notes as long as any Class D Notes are Outstanding. 
  
 “Corporate Trust Office” shall mean, as applicable, (i) the principal office of the Indenture Trustee at which at any particular time its corporate trust business shall be administered, which office
at the date of the execution of this Agreement is located at Sixth and Marquette, MAC # 9311—161, Minneapolis, Minnesota, 55479 Attention: Asset Backed Securities Department, or at such other address as the Indenture Trustee may designate from
time to time by notice to the Noteholders, the Owner Trustee, the Depositor, the Seller and the Servicer, or the principal corporate trust office of any successor Indenture Trustee at the address designated by such successor Indenture Trustee by
notice to the Noteholders, the Owner Trustee, the Depositor, the Seller and the Servicer or (ii) the principal office of the Owner Trustee at which at any particular time its corporate trust business shall be administered, which office at the date
of the execution of this Agreement is located at 101 Barclay Street, 8W, New York, New York, 10286, Attention: Corporate Trust Division, Asset Backed Securities Group, or at such other address as the Owner Trustee may designate from time to time by
notice to the Certificateholders, the Indenture Trustee, the Depositor, the Seller and the Servicer, or the principal corporate trust office of any successor Owner Trustee at the address designated by such 

  

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successor Owner Trustee by notice to the Certificateholders, the Indenture Trustee, the Depositor, the Seller and the Servicer. 
  
 “Cutoff Date” shall mean April 30, 2004. 
  
 “Defaulted Receivable” shall mean a Receivable as to which
(i) any payment, or any part of any payment, due under such Receivable has become 120 days or more delinquent (whether or not the Servicer has repossessed the related Financed Vehicle), (ii) the Servicer has repossessed and sold the related Financed
Vehicle or (iii) the Servicer has determined in accordance with its customary practices that such Receivable is uncollectible; provided, however, that a Receivable shall not be classified as a Defaulted Receivable until the last day of
the Collection Period during which one of the foregoing events first occurs; and, provided further, that a Purchased Receivable shall not be deemed to be a Defaulted Receivable. 
  
 “Delaware Trustee” shall mean The Bank of New York
(Delaware), a Delaware banking corporation, not in its individual capacity but solely as Delaware Trustee under the Trust Agreement, and any successor Delaware Trustee under the Trust Agreement. 
  
 “Depositor” shall mean CarMax Funding. 
  
 “Determination Date” shall mean the sixth day preceding each
Distribution Date or, if such sixth day is not a Business Day, the following Business Day, commencing on June 9, 2004. 
  
 “Distribution Date” shall mean the 15th day of each month or, if such 15th day is not a Business Day, the following Business Day,
commencing on June 15, 2004. 
  
 “Eligible
Institution” shall mean (i) the corporate trust department of the Indenture Trustee or the Owner Trustee or (ii) any other depository institution organized under the laws of the United States or any State or incorporated under the laws of a
foreign jurisdiction with a branch or agency located in the United States or any State qualified to take deposits and subject to supervision and examination by federal or state banking authorities which at all times has either a long-term unsecured
debt rating of at least Baa3 from Moody’s or a long-term unsecured debt rating, a short-term unsecured debt rating or a certificate of deposit rating acceptable to Moody’s and whose deposits are insured by the Federal Deposit Insurance
Corporation; provided, however, that (A) the commercial paper, short-term debt obligations or other short-term deposits of the depository institution described in clause (ii) above must be rated at least Prime-1 by Moody’s and at
least A-1+ by Standard & Poor’s if deposits are to be held in an account maintained with such depository institution pursuant to this Agreement for fewer than 30 days and (B) the long-term unsecured debt obligations of the depository
institution described in clause (ii) above must be rated at least AA- by Standard & Poor’s if deposits are to be held in an account maintained with such depository institution pursuant to this Agreement for more than 30 days. 
  
 “Eligible Servicer” shall mean a Person which, at the time
of its appointment as Servicer, (i) has a net worth of not less than $50,000,000, (ii) is servicing a portfolio of motor vehicle retail installment sale contracts and/or motor vehicle loans, (iii) is legally qualified, and has the capacity, to
service the Receivables, (iv) has demonstrated the ability to service a 

  

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portfolio of motor vehicle retail installment sale contracts and/or motor vehicle loans similar to the Receivables professionally and competently in
accordance with standards of skill and care that are consistent with prudent industry standards and (v) is qualified and entitled to use pursuant to a license or other written agreement, and agrees to maintain the confidentiality of, the software
which the Servicer uses in connection with performing its duties and responsibilities under this Agreement or obtains rights to use, or develops at its own expense, software which is adequate to perform its duties and responsibilities under this
Agreement. 
  
 “ERISA” shall mean the Employee
Retirement Income Security Act of 1974, as amended. 
  
 “Event of Servicing Termination” shall mean an event specified in Section 8.1. 
  
 “Excess Collections” shall have the meaning specified in Section 2.8(a)(xii) of the Indenture. 
  
 “Final Scheduled Maturity Date” shall mean the November 2010
Distribution Date. 
  
 “Financed Vehicle” shall
mean a new or used motor vehicle, together with all accessions thereto, securing an Obligor’s indebtedness under a Receivable. 
  
 “Fiscal Quarter” shall mean a fiscal quarter of a CarMax Fiscal Year. 
  
 “Holder” shall mean a Noteholder or a Certificateholder, as the case may be. 
  
 “Indenture” shall mean the Indenture, dated as of May 1,
2004, between the Trust and the Indenture Trustee, as amended, supplemented or otherwise modified and in effect from time to time. 
  
 “Indenture Trustee” shall mean Wells Fargo Bank, National Association, a national banking association, not in its individual capacity but
solely as Indenture Trustee under the Indenture, and any successor Indenture Trustee under the Indenture. 
  
 “Initial Note Balance” shall mean, as the context may require, (i) with respect to all of the Notes, $600,000,000, or (ii) with respect
to any Note, an amount equal to the initial denomination of such Note. 
  
 “Initial Reserve Account Deposit” shall mean $3,000,000. 
  
 “Insolvency Event” shall mean, with respect to any Person, (i) the making by such Person of a general assignment for the benefit of creditors, (ii) the filing by such Person of a voluntary petition in
bankruptcy, (iii) such Person being adjudged bankrupt or insolvent, or having had entered against such Person an order for relief in any bankruptcy or insolvency proceeding, (iv) the filing by such Person of a petition or answer seeking
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation, (v) the filing by such Person of an answer or other pleading admitting or failing to contest the material
allegations of a petition filed against such Person in any 

  

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proceeding specified in clause (vii) below, (vi) seeking, consenting to or acquiescing in the appointment of a trustee, receiver or liquidator of such Person
or of all or any substantial part of the assets of such Person or (vii) the failure to obtain dismissal within 60 days of the commencement of any proceeding against such Person seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law or regulation, or the entry of any order appointing a trustee, liquidator or receiver of such Person of all or any substantial portion of the assets of such Person. 
  
 “Lien” shall mean a security interest, lien, charge, pledge,
equity or encumbrance of any kind, other than tax liens, mechanics’ or materialmen’s liens, judicial liens and any liens that may attach to a Financed Vehicle by operation of law. 
  
 “Liquidation Proceeds” shall mean all amounts received by
the Servicer with respect to any Defaulted Receivable, net of the sum of (i) any expenses incurred by the Servicer in connection with collection of such Receivable and the disposition of the related Financed Vehicle (to the extent
determinable by the Servicer and not previously reimbursed) plus (ii) any amounts required by law to be remitted to the related Obligor. 
  
 “Monthly Note Interest” shall mean, for any Distribution Date, the sum of the Class A-1 Monthly Interest, the Class A-2 Monthly Interest,
the Class A-3 Monthly Interest, the Class A-4 Monthly Interest, the Class B Monthly Interest, the Class C Monthly Interest and the Class D Monthly Interest, in each case for such Distribution Date. 
  
 “Monthly P&I” shall mean, with respect to any
Receivable, the amount of each monthly installment of principal and interest payable with respect to such Receivable in accordance with the terms thereof, exclusive of any charges allocable to the financing of any insurance premium and charges which
represent late payment charges or extension fees. 
  
 “Monthly Remittance Condition” shall have the meaning specified in Section 4.2. 
  
 “Monthly Servicing Fee” shall mean, for any Collection Period, the fee payable to the Servicer on the following Distribution Date for
services rendered during such Collection Period as determined pursuant to Section 3.8. 
  
 “Moody’s” shall mean Moody’s Investors Service, Inc., and its successors. 
  
 “Motor Vehicle Receivables” shall have the meaning specified in Section 6.7(a). 
  
 “Net Losses” shall mean, with respect to any Collection
Period, the excess, if any, of (i) the aggregate Principal Balance of all Receivables that became Defaulted Receivables during such Collection Period over (ii) the aggregate Liquidation Proceeds received by the Servicer during such Collection
Period. 
  
 “Note Balance” shall mean, at any
time, as the context may require, (i) with respect to all of the Notes, an amount equal to, initially, the Initial Note Balance and, thereafter, an amount equal to the Initial Note Balance as reduced from time to time by all amounts allocable to
principal previously distributed to the Noteholders or (ii) with respect to any Note, an amount equal to, initially, the initial denomination of such Note and, thereafter, an amount 

  

 9 








 
equal to such initial denomination as reduced from time to time by all amounts allocable to principal previously distributed in respect of such Note;
provided, however, that in determining whether the Holders of Notes evidencing the requisite percentage of the Note Balance have given any request, demand, authorization, direction, notice, consent or waiver hereunder or under any
other Transaction Document, Notes owned by the Trust, any other obligor upon the Notes, the Depositor, the Seller, the Servicer or any Affiliate of any of the foregoing Persons shall be disregarded and deemed to be excluded from the Note Balance
(unless such Persons own 100% of the Note Balance), except that, in determining whether the Indenture Trustee or the Owner Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver, only
Notes that a Responsible Officer of the Indenture Trustee or the Owner Trustee, as applicable, knows to be so owned shall be so disregarded; and, provided further, that Notes that have been pledged in good faith may be regarded as
included in the Note Balance if the pledgee establishes to the satisfaction of the Indenture Trustee or the Owner Trustee, as applicable, the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Trust, any other
obligor upon the Notes, the Depositor, the Seller, the Servicer or any Affiliate of any of the foregoing Persons. 
  
 “Note Payment Account” shall mean the account established and maintained as such pursuant to Section 4.1(b). 
  
 “Note Pool Factor” shall mean, with respect to any Class of
Notes as of any Distribution Date, a seven-digit decimal figure equal to the outstanding principal balance of such Class as of such Distribution Date (after giving effect to any reductions of such outstanding principal balance to be made on such
Distribution Date) divided by the original outstanding principal balance of such Class. 
  
 “Note Rate” shall mean, in the case of the Class A-1 Notes, the Class A-1 Rate, in the case of the Class A-2 Notes, the Class A-2 Rate, in the case of the Class A-3 Notes, the Class A-3 Rate, in the
case of the Class A-4 Notes, the Class A-4 Rate, in the case of the Class B Notes, the Class B Rate, in the case of the Class C Notes, the Class C Rate and in the case of the Class D Notes, the Class D Rate. 
  
 “Noteholder” shall mean a Person in whose name a Note is
registered on the Note Register. 
  
 “Obligor”
shall mean the purchaser or co-purchasers of a Financed Vehicle purchased in whole or in part by the execution and delivery of a Receivable or any other Person who owes or may be liable for payments under a Receivable. 
  
 “Officer’s Certificate” shall mean a certificate signed
by the chairman, the president, any executive vice president, any senior vice president, any vice president or the treasurer of the Depositor or the Servicer, as the case may be, and delivered to the Owner Trustee and the Indenture Trustee.

  
 “Opinion of Counsel” shall mean one or more
written opinions of counsel who may, except as otherwise expressly provided in this Agreement, be an employee of, or outside 

  

 10 








 
counsel to, the Depositor or the Servicer and who shall be acceptable to the Indenture Trustee, the Owner Trustee or the Rating Agencies, as applicable.

  
 “Overcollateralization Target Amount” shall
mean, for any Distribution Date, 1.75% of the Pool Balance as of the last day of the preceding Collection Period; provided, however, that such amount shall not be less than $4,500,000. 
  
 “Owner Trust Estate” shall have the meaning specified in the
Trust Agreement. 
  
 “Owner Trustee” shall mean
The Bank of New York, a New York banking corporation, not in its individual capacity but solely as Owner Trustee under the Trust Agreement, and any successor Owner Trustee under the Trust Agreement. 
  
 “Permitted Investments” shall mean, on any date of
determination, book-entry securities, negotiable instruments or securities represented by instruments in bearer or registered form which evidence: 
  
 (i) direct obligations of, and obligations fully guaranteed by, the United States or any agency or instrumentality thereof the obligations
of which are backed by the full faith and credit of the United States; 
  
 (ii) demand deposits, time deposits, bankers’ acceptances or certificates of deposit of any depository institution or trust company incorporated under the laws of the United States or any State (or any domestic
branch of a foreign bank) and subject to supervision and examination by federal or state banking or depository institution authorities; provided, however, that such investment shall not have an “r” highlighter affixed to its
rating and its terms shall have a predetermined fixed dollar amount of principal due at maturity that cannot vary or change; and, provided further, that, at the time of the investment, the commercial paper or other short-term unsecured debt
obligations (other than such obligations the rating of which is based on the credit of a Person other than such depository institution or trust company) of such depository institution or trust company shall have a rating from Standard &
Poor’s of at least “A-1+” and from Moody’s of at least “Prime-1”; 
  
 (iii) repurchase obligations with respect to any security that is a direct obligation of, or fully guaranteed by, the United States or any
agency or instrumentality thereof the obligations of which are backed by the full faith and credit of the United States, in either case entered into with a depository institution or trust company (acting as principal) described in clause (ii) above;

  
 (iv) short-term corporate securities bearing
interest or sold at a discount issued by any corporation incorporated under the laws of the United States or any state thereof; provided, however, that such investment shall not have an “r” highlighter affixed to its rating
and its terms shall have a predetermined fixed dollar amount of principal due at maturity that cannot vary or change; and, provided further, that, at the time of the investment, the short-term unsecured debt obligations (other than
such obligations the rating of which is based on the credit of a Person other than such corporation) of such 

  

 11 








 
corporation shall have a rating from Standard & Poor’s of at least “AAA” and from Moody’s of at least “Aaa”; 
  
 (v) commercial paper having, at the time of the investment,
a rating from Standard & Poor’s of at least “A-1+” and from Moody’s of at least “Prime-1”; provided, however, that such investment shall not have an “r” highlighter affixed to its rating and
its terms shall have a predetermined fixed dollar amount of principal due at maturity that cannot vary or change; 
  
 (vi) guaranteed investment contracts issued by an insurance company or other corporation as to which the Rating Agency Condition shall
have been satisfied; 
  
 (vii) investments in
money market funds having a rating from Standard & Poor’s of at least “AAA-m” or “AAAm-G” and from Moody’s of at least “Aaa” (including funds for which the Indenture Trustee or the Owner Trustee or any of
their respective Affiliates is investment manager or advisor); and 
  
 (viii) any other investment as to which the Rating Agency Condition shall have been satisfied. 
  
 “Person” shall mean a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, limited liability partnership, trust, unincorporated organization, or government or any agency or political subdivision thereof, or any other entity of whatever nature. 
  
 “Pool Balance” shall mean, as of the last day of any
Collection Period, the aggregate Principal Balance of the Receivables as of such last day; provided, however, that if the Receivables are purchased by the Servicer pursuant to Section 9.1(a) or are sold or otherwise liquidated by the
Indenture Trustee following an Event of Default pursuant to Section 5.4(a) of the Indenture, the Pool Balance shall be deemed to be zero as of the last day of the Collection Period during which such purchase, sale or other liquidation occurs.

  
 “Principal Balance” shall mean, with respect
to any Receivable as of any date, the Amount Financed under such Receivable minus the sum of (i) that portion of all Scheduled Payments actually received on or prior to such date allocable to principal using the Simple Interest Method (to the
extent collected) plus (ii) any rebates of extended warranty contract costs or physical damage, theft, credit life or credit disability insurance premiums included in the Amount Financed plus (iii) any full or partial prepayment
applied to reduce the unpaid principal balance of such Receivable; provided, however, that (i) the Principal Balance of a Defaulted Receivable shall be zero as of the last day of the Collection Period during which it became a Defaulted
Receivable and (ii) the Principal Balance of a Purchased Receivable shall be zero as of the last day of the Collection Period during which it became a Purchased Receivable. 
  
 “Priority Principal Distributable Amount” shall mean, with respect to any Distribution Date, the excess, if
any, of the Note Balance of the Class A Notes as of the day preceding such Distribution Date over the Pool Balance as of the last day of the preceding Collection Period; provided, however, that the Priority Principal Distributable
Amount for each Distribution Date on or after the Class Final Distribution Date for any Class of Class A Notes 

  

 12 








 
shall equal the greater of (i) the amount otherwise calculated pursuant to this definition and (ii) the outstanding principal balance of the Class A Notes of
such Class as of the day preceding such Distribution Date. 
  
 “Purchase Amount” shall mean, with respect to any Distribution Date and any Receivable to be repurchased by the Depositor or purchased by the Servicer on such Distribution Date, an amount equal to the sum of (i) the
Principal Balance of such Receivable plus (ii) the amount of accrued but unpaid interest on such Principal Balance at the related APR to but excluding such Distribution Date. 
  
 “Purchased Receivable” shall mean a Receivable as to which payment of the Purchase Amount has been made by
the Depositor pursuant to Section 2.4 or by the Servicer pursuant to Section 3.7 or 9.1. 
  
 “Rating Agencies” shall mean Moody’s and Standard & Poor’s and their respective successors; provided, however, that if no such organization or successor is any longer in
existence, Rating Agency shall mean a nationally recognized statistical rating organization or other comparable Person designated by the Trust, notice of which designation shall have been given to the Indenture Trustee, the Owner Trustee and the
Servicer. 
  
 “Rating Agency Condition” shall
mean, with respect to any action, that each Rating Agency shall have been given prior notice of such action and shall have notified the Depositor, the Seller, the Servicer, the Indenture Trustee and the Owner Trustee in writing that such action will
not result in a reduction or withdrawal of the then current rating assigned by such Rating Agency to any Class of Notes. 
  
 “Receivable” shall mean a motor vehicle retail installment sale contract identified on the Receivable Schedule (as such contract may be
amended, supplemented or otherwise modified and in effect from time to time). 
  
 “Receivable File” shall mean, with respect to any Receivable, the electronic entries, documents, instruments and writings with respect to such Receivable specified in Section 2.5. 
  
 “Receivable Schedule” shall mean the list identifying the
Receivables attached as Schedule 1 to this Agreement (which list may be in the form of microfiche or compact disk). 
  
 “Receivables Purchase Agreement” shall mean the Receivables Purchase Agreement, dated as of May 1, 2004, between the Seller and the
Depositor, as amended, supplemented or otherwise modified and in effect from time to time. 
  
 “Record Date” shall mean, with respect to any Distribution Date, the close of business on the Business Day preceding such Distribution Date; provided, however, that (i) if Definitive
Notes have been issued with respect to any Class of Notes, Record Date shall mean, with respect to any Distribution Date for such Class, the last Business Day of the calendar month preceding such Distribution Date and (ii) if Definitive Certificates
have been issued, Record Date shall mean, with respect to any Distribution Date for the Certificates, the last Business Day of the calendar month preceding such Distribution Date. 
  

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 “Regular Principal Distributable Amount” shall mean, with respect to any Distribution
Date, the lesser of (i) the Note Balance as of the day preceding such Distribution Date and (ii) (A) the excess, if any, of (x) the sum of the Note Balance as of the day preceding such Distribution Date and the Overcollateralization Target Amount
for such Distribution Date over (y) the Pool Balance as of the last day of the preceding Collection Period minus (B) the sum of the Priority Principal Distributable Amount, if any, the Secondary Principal Distributable Amount, if any, and the
Tertiary Principal Distributable Amount, if any, in each case for such Distribution Date; provided, however, that the Regular Principal Distributable Amount for each Distribution Date on or after the Class D Final Distribution Date
shall equal the greater of (i) the amount otherwise calculated pursuant to this definition and (ii) the outstanding principal balance of the Class D Notes as of the day preceding such Distribution Date. 
  
 “Related Fiscal Quarter” shall mean (i) for any Distribution
Date occurring in August, September or October, the Fiscal Quarter ending on the last day of the preceding May, (ii) for any Distribution Date occurring in November, December or January, the Fiscal Quarter ending on the last day of the preceding
August, (iii) for any Distribution Date occurring in February, March, April or May, the Fiscal Quarter ending on the last day of the preceding November and (iv) for any Distribution Date occurring in June or July, the Fiscal Quarter ending on the
last day of the preceding February. 
  
 “Relevant
UCC” shall mean the Uniform Commercial Code as in effect from time to time in any relevant jurisdiction. 
  
 “Required Payment Amount” shall have, for any Distribution Date, the meaning specified for such Distribution Date in Section 4.6(a).

  
 “Required Rating” shall mean a short-term
unsecured debt rating of Prime-1 by Moody’s and A-1+ by Standard & Poor’s. 
  
 “Required Reserve Account Amount” shall mean, for any Distribution Date, $3,000,000; provided, however, that, for any Distribution Date on which a Required Reserve Account Increase Event
has occurred and is continuing, Required Reserve Account Amount shall mean $4,500,000; provided further, that the Required Reserve Account Amount for any Distribution Date shall not exceed the Note Balance as of such Distribution Date
(after giving effect to all payments of principal made to the Noteholders on such Distribution Date); and, provided further, that, if the Pool Balance as of the last day of the preceding Collection Period is zero, the Required Reserve
Account Amount for the related Distribution Date shall be $0. 
  
 “Required Reserve Account Increase Event” shall mean, for any Distribution Date on which CarMax, Inc. shall not have a long-term senior unsecured debt rating of at least Ba1 from Moody’s (commencing with the August
2004 Distribution Date), the failure of CarMax, Inc. to have, as of the last day of the Related Fiscal Quarter, a Consolidated Tangible New Worth of at least $600,000,000 plus an amount equal to 50% of CarMax, Inc.’s positive net income
for each Fiscal Quarter ending on or after February 29, 2004 plus an amount equal to 100% of the net proceeds of any public offering completed after February 29, 2004 by CarMax, Inc. of (i) its common stock, (ii) any securities convertible
into or exercisable for, or any rights, warrants or options to acquire, any such common stock or any such convertible or exchangeable securities or 

  

 14 








 
(iii) any derivative or synthetic securities the value of which is determined with respect to such common stock, in each case it being understood that the
effect of any such offering must be to increase the Consolidated Tangible Net Worth in order for any such net proceeds to be included in the preceding calculation. 
  
 “Reserve Account” shall mean the account established and maintained as such pursuant to Section 4.7(a).

  
 “Reserve Account Amount” shall mean, for any
Distribution Date, the amount on deposit in and available for withdrawal from the Reserve Account on such Distribution Date (after giving effect to all deposits to and withdrawals from the Reserve Account on the preceding Distribution Date, or, in
the case of the initial Distribution Date, the Closing Date), including all interest and other income (net of losses and investment expenses) earned on such amount during the preceding Collection Period. 
  
 “Reserve Account Deficiency” shall have, for any
Distribution Date, the meaning specified for such Distribution Date in Section 4.6(b). 
  
 “Reserve Account Draw Amount” shall have the meaning specified in Section 4.6(b). 
  
 “Reserve Account Property” shall have the meaning specified in Section 4.7(a). 
  
 “Responsible Officer” shall mean (i) in the case of the
Indenture Trustee, any managing director, principal, vice president, assistant vice president, assistant secretary, assistant treasurer or trust officer of the Indenture Trustee or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers and, with respect to a particular corporate trust matter, any other officer of the Indenture Trustee to whom such matter is referred because of such officer’s
knowledge of and familiarity with the particular subject and (ii) in the case of the Owner Trustee, any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or financial services officer of the Owner
Trustee or any other officer of the Owner Trustee customarily performing functions similar to those performed by any of the above designated officers and with direct responsibility for the administration of the Trust and, with respect to a
particular corporate trust matter, any other officer of the Owner Trustee to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject. 
  
 “Scheduled Payment” shall mean, for any Receivable, each
payment required to be made by the related Obligor in accordance with the terms of such Receivable (after giving effect to any deferral of payments pursuant to Section 3.2 or any rescheduling of payments as a result of any Insolvency Event with
respect to such Obligor). 
  
 “Secondary Principal
Distributable Amount” shall mean, with respect to any Distribution Date, (i) the excess, if any, of the sum of the Note Balance of the Class A Notes and the Note Balance of the Class B Notes, in each case as of the day preceding such
Distribution Date, over the Pool Balance as of the last day of the preceding Collection Period minus (ii) the Priority Principal Distributable Amount, if any, for such Distribution Date; provided, however, that the Secondary
Principal Distributable Amount for each Distribution Date on or after the 

  

 15 








 
Class B Final Distribution Date shall equal the greater of (i) the amount otherwise calculated pursuant to this definition and (ii) the outstanding principal
balance of the Class B Notes as of the day preceding such Distribution Date. 
  
 “Securities” shall have the meaning specified in Section 6.7(a). 
  
 “Securitization Trust” shall have the meaning specified in Section 6.7(a). 
  
 “Seller” shall mean CarMax, in its capacity as seller of the
Receivables under the Receivables Purchase Agreement, and its successors in such capacity. 
  
 “Servicer” shall mean CarMax, in its capacity as servicer of the Receivables under this Agreement, and its successors in such capacity. 
  
 “Servicer’s Certificate” shall have the meaning specified in Section 3.9. 
  
 “Servicing Officer” shall mean any officer of the Servicer
involved in, or responsible for, the administration and servicing of the Receivables whose name appears on a list of servicing officers attached to an Officer’s Certificate furnished on the Closing Date to the Owner Trustee and the Indenture
Trustee by the Servicer, as such list may be amended from time to time by the Servicer in writing. 
  
 “Servicing Rate” shall mean 1.00% per annum. 
  
 “Simple Interest Advance” shall mean, with respect to a Simple Interest Receivable, the amount, as of the last day of a Collection
Period, which is advanced with respect to such Simple Interest Receivable by the Servicer pursuant to Section 4.4(a). 
  
 “Simple Interest Method” shall mean the method of allocating a fixed level payment between principal and interest, pursuant to which a
portion of such payment is allocated to interest in an amount equal to the product of the APR of the related Receivable multiplied by the unpaid Principal Balance of such Receivable multiplied by the period of time (expressed as a fraction of a
year, based on the actual number of days in the applicable calendar month and a 365-day year) elapsed since the preceding payment was made and the remainder of such payment is allocated to principal. 
  
 “Simple Interest Receivable” shall mean any Receivable under
which each payment is allocated between principal and interest in accordance with the Simple Interest Method. 
  
 “Standard & Poor’s” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and
its successors. 
  
 “State” shall mean any of the
50 states of the United States or the District of Columbia. 
  
 “Tertiary Principal Distributable Amount” shall mean, with respect to any Distribution Date, (i) the excess, if any, of the sum of the Note Balance of the Class A Notes, the 

  

 16 








 
Note Balance of the Class B Notes and the Note Balance of the Class C Notes, in each case as of the day preceding such Distribution Date, over the Pool
Balance as of the last day of the preceding Collection Period minus (ii) the sum of the Priority Principal Distributable Amount, if any, and the Secondary Principal Distributable Amount, if any, in each case for such Distribution Date;
provided, however, that the Tertiary Principal Distributable Amount for each Distribution Date on or after the Class C Final Distribution Date shall equal the greater of (i) the amount otherwise calculated pursuant to this definition
and (ii) the outstanding principal balance of the Class C Notes as of the day preceding such Distribution Date. 
  
 “Total Note Interest” shall mean, for any Distribution Date and any Class of Notes, the sum of (i) the Monthly Note Interest for such
Distribution Date for such Class plus (ii) the Additional Note Interest for such Distribution Date for such Class. 
  
 “Total Servicing Fee” shall mean, for any Collection Period, the sum of (i) the Monthly Servicing Fee for such Collection Period
plus (ii) all accrued but unpaid Monthly Servicing Fees for previous Collection Periods. 
  
 “Transition Costs” shall have the meaning specified in Section 8.1(a) . 
  
 “Trust” shall mean the CarMax Auto Owner Trust 2004-1, a Delaware statutory trust. 
  
 “Trust Agreement” shall mean the Amended and Restated Trust
Agreement, dated as of May 1, 2004, among the Depositor, the Delaware Trustee and the Owner Trustee, as amended, supplemented or otherwise modified and in effect from time to time. 
  
 “Trust Fiscal Year” shall mean the period commencing on March 1 of any year and ending on February 28 (or
February 29, if applicable) of the following year. 
  
 “Trust Property” shall mean the Receivables and the other related property sold, transferred, assigned and otherwise conveyed by the Depositor to the Trust pursuant to Section 2.1(a). 
  
 “United States” shall mean the United States of America.

  
 “Unreimbursed Servicer Advance” shall mean a
Simple Interest Advance which the Servicer determines in its sole discretion is unrecoverable. 
  
 SECTION 1.2 Other Definitional Provisions. 
  
 (a) Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Indenture. 
  
 (b) All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein. 
  

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 (c) As used in this Agreement and in any certificate or other document made or delivered pursuant hereto
or thereto, accounting terms not defined in this Agreement or in any such certificate or other document, and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, shall have the
respective meanings assigned to them under generally accepted accounting principles. To the extent that the definitions of accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such
terms under generally accepted accounting principles, the definitions contained in this Agreement or in any such certificate or other document shall control. 
  
 (d) 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. Article, Section, Schedule and Exhibit references contained in this Agreement are references to Articles, Sections, Schedules and Exhibits in or to this Agreement
unless otherwise specified. The term “including” shall mean “including without limitation.” 
  
 (e) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as
to the feminine and neuter genders of such terms. 
  
 (f) Any
agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in
the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns. 
  
 ARTICLE II 
 TRUST
PROPERTY 
  
 SECTION 2.1 Conveyance of Trust Property.

  
 (a) In consideration of the Trust’s delivery to, or upon
the written order of, the Depositor of authenticated Notes, in authorized denominations in aggregate principal amounts equal to the Initial Note Balance, and authenticated Certificates, the Depositor hereby irrevocably sells, transfers, assigns and
otherwise conveys to the Trust, without recourse (subject to the obligations herein), all right, title and interest of the Depositor, 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 after the Cutoff Date; 
  
 (iii) the
security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables; 
  

 18 








 (iv) all proceeds from claims on or refunds of premiums with respect to physical damage,
theft, credit life or credit disability insurance policies relating to the Financed Vehicles or the Obligors; 
  
 (v) the Receivable Files; 
  
 (vi) the Collection Account, the Note Payment Account, the Certificate Payment Account, and the Reserve Account and all amounts,
securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; 
  
 (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase
Receivables from the Depositor; and 
  
 (viii)
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 accounts, general intangibles, chattel paper, instruments, documents, money, investment property, deposit accounts, letters of
credit, letter-of-credit rights, insurance proceeds, condemnation awards, rights to payment of any and every kind and other forms of obligations; and all other property which at any time constitutes all or part of or is included in the proceeds of
any of the foregoing. 
  
 (b) The Depositor and the Trust intend
that the transfer of the Trust Property contemplated by Section 2.1(a) constitute a sale of the Trust Property, conveying good title to the Trust Property, from the Depositor to the Trust. If such transfer is deemed to be a pledge to secure the
payment of the Notes, however, the Depositor hereby grants to the Trust a first priority security interest in all of the Depositor’s right, title and interest in, to and under the Trust Property, and all proceeds thereof, to secure the payment
of the Notes, and in such event, this Agreement shall constitute a security agreement under applicable law. 
  
 (c) The sale, transfer, assignment and conveyance of the Trust Property made under Section 2.1(a) shall not constitute and is not intended to result in an
assumption by the Trust of any obligation of the Depositor or the Seller to the Obligors or any other Person in connection with the Receivables and the other Trust Property or any obligation of the Depositor or the Seller under any agreement,
document or instrument related thereto. 
  
 SECTION 2.2
Representations and Warranties of the Seller as to the Receivables. The Seller has made to the Depositor the representations and warranties as to the Receivables set forth in Section 3.2(b) of the Receivables Purchase Agreement. The Trust
shall be deemed to have relied on such representations and warranties in accepting the Receivables. The representations and warranties set forth in Section 3.2(b) of the Receivables Purchase Agreement speak as of the execution and delivery of this
Agreement, except to the extent otherwise provided, but shall survive the sale, transfer, assignment and conveyance of the Receivables to the Trust pursuant to this Agreement and the pledge of the Receivables to the 

  

 19 








 
Indenture Trustee pursuant to the Indenture. Pursuant to Section 2.1, the Depositor has sold, transferred, assigned and otherwise conveyed to the Trust, as
part of the Trust Property, its rights under the Receivables Purchase Agreement, including its right to require the Seller to repurchase Receivables in accordance with the Receivables Purchase Agreement upon a breach of the representations and
warranties set forth in Section 3.2(b) of the Receivables Purchase Agreement. 
  
 SECTION 2.3 Representations and Warranties of the Depositor as to the Receivables. The Depositor makes the following representations and warranties as to the Receivables on which the Trust shall be deemed to
have relied in accepting the Receivables. The representations and warranties speak as of the execution and delivery of this Agreement, except to the extent otherwise provided, but shall survive the sale, transfer, assignment and conveyance of the
Receivables to the Trust pursuant to this Agreement and the pledge of the Receivables to the Indenture Trustee pursuant to the Indenture. 
  
 (a) 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 to the Receivables Purchase Agreement, (vi) is secured by a new or used motor vehicle that had not been repossessed as of the Cutoff Date, (vii) is a Simple Interest Receivable, (viii) relates to an Obligor who has made at least one payment under
such Receivable as of the Cutoff Date and (ix) relates to an Obligor whose mailing address is located in any State. 
  
 (b) 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. 
  
 (c) Compliance with
Law. Each Receivable and the sale of the related Financed Vehicle complied, at the time such Receivable was originated and complies, as of the Closing Date, in all material respects with all requirements of applicable federal, state and local
laws, and regulations thereunder, including usury laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the Magnuson-Moss
Warranty Act, the Federal Reserve 

  

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Board’s Regulations B and Z, the Servicemembers Civil Relief Act, 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. 
  
 (d) Binding Obligation. Each Receivable represents the genuine, legal, valid and binding payment obligation in writing of the related Obligor,
enforceable by the holder thereof in all material respects in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation or other similar laws affecting the enforcement of
creditors’ rights generally and by general principles of equity. 
  
 (e) 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. 
  
 (f) 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). 
  
 (g) 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. 
  
 (h)
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 Depositor in this Section 2.3 with respect thereto. 
  
 (i) 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 Depositor has no knowledge of any such right of rescission, setoff, counterclaim or defense being asserted or threatened with respect to any Receivable.

  
 (j) No Liens. The Depositor 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. 
  
 (k) No Default.
Except for payment defaults continuing for a period of not more than 30 days, the Depositor 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, 

  

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violation or event permitting acceleration under the terms of any Receivable has arisen, and the Depositor has not waived any such event or condition.

  
 (l) Title. The Depositor has purchased the Receivables
from the Seller. The Depositor intends that the transfer of the Receivables contemplated by Section 2.1 constitute a sale of the Receivables from the Depositor to the Trust and that the beneficial interest in, and title to, the Receivables not be
part of the Depositor’s estate in the event of the filing of a bankruptcy petition by or against the Depositor under any bankruptcy law. The Depositor has not sold, transferred, assigned or pledged any Receivable to any Person other than the
Trust. The Depositor has not created, incurred or suffered to exist any Lien, encumbrance or security interest on any Receivable except for the Lien of the Indenture. 
  
 (m) 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 Trust, which security interest is prior to all other Liens and is enforceable as such as against creditors of and purchasers from the Depositor. 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 Depositor owns and
has good and marketable title to the Receivables free and clear of any Lien, claim or encumbrance of any Person. The Depositor 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 Trust under this Agreement. Other than the security interest granted to the Trust under this Agreement, the
Depositor has not pledged, assigned, sold, granted a security interest in or otherwise conveyed any of the Receivables. The Depositor has not authorized the filing of and is not aware of any financing statements against the Depositor that include a
description of collateral covering the Receivables other than any financing statement relating to the security interest granted to the Trust under this Agreement or that has been terminated. The Depositor is not aware of any judgment or tax lien
filings against the Depositor. The security interest of the Seller in each Financed Vehicle has been validly assigned by the Depositor to the Trust. 
  
 (n) Financing Statements. All financing statements filed or to be filed against the Depositor 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.” 
  
 (o) 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 the Receivables Purchase Agreement or this 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 Depositor has not entered into any agreement with any account debtor that prohibits,
restricts or conditions the assignment of the Receivables. 
  
 (p)
One Original. There is only one original executed copy of each Receivable. 
  

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 (q) 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. 
  
 (r) 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. 
  
 (s) New and Used Vehicles. As of the Cutoff Date, approximately 4.53%
of the Pool Balance related to Receivables secured by new Financed Vehicles and approximately 95.47% of the Pool Balance related to Receivables secured by used Financed Vehicles. 
  
 (t) Origination. Each Receivable was originated after October 20, 1998. 
  
 (u) 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. 
  
 (v) Weighted Average Remaining Term to Maturity. As of the Cutoff Date, the weighted average remaining term to
maturity of the Receivables was approximately 56.3 months. 
  
 (w)
Annual Percentage Rate. Each Receivable has an APR of at least 4.95% and not more than 25.00%. 
  
 (x) Location of Receivable Files. The Receivable Files are maintained at the location listed in Schedule 2 to this Agreement. 
  
 (y) Simple Interest Method. All payments with respect to the
Receivables have been allocated consistently in accordance with the Simple Interest Method. 
  
 (z) No Delinquent Receivables. As of the Cutoff Date, no payment due under any Receivable was more than 30 days past due. 
  

(aa) 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. 
  
 (bb) Fair Market Value. The Receivables Purchase Price represents the fair market value of the Receivables. 
  
 (cc) Custodial Agreements. Immediately prior to the transfer of the
Receivables by the Seller to the Depositor, the Seller or an Affiliate of the Seller had possession of the Receivable Files and there were no, and there will not be any, custodial agreements in effect materially adversely affecting the right or
ability of the Seller to make, or cause to be made, any delivery required under this Agreement. 
  

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 (dd) Bulk Transfer Laws. The transfer of the Receivables and the Receivable Files by the Depositor
to the Trust pursuant to this Agreement is not subject to the bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction. 
  

(ee) No Transfer Restrictions. The Depositor has not created, incurred or suffered to exist any restriction on transferability of the
Receivables except for the restrictions on transferability imposed by this Agreement. 
  
 SECTION 2.4 Repurchase by Depositor upon Breach. The Depositor, the Servicer or the Owner Trustee, as the case may be, shall inform the other parties to this Agreement, the Seller and the Indenture Trustee
promptly, in writing, upon the discovery of any breach or failure to be true of the representations and warranties set forth in Section 2.3. If such breach or failure shall not have been cured by the close of business on the last day of the
Collection Period which includes the thirtieth (30th) day after the date on which the Depositor becomes aware of, or receives written notice from the Seller, the Servicer or the Owner Trustee of, such breach or failure, and such breach or failure
materially and adversely affects the interest of the Trust in a Receivable, the Depositor shall repurchase such Receivable from the Trust on the Distribution Date immediately following such Collection Period. In consideration of the repurchase of a
Receivable hereunder, the Depositor shall remit the Purchase Amount of such Receivable in the manner specified in Section 4.5. The sole remedy of the Trust, the Owner Trustee, the Indenture Trustee, the Noteholders and the Certificateholders with
respect to a breach or failure to be true of the representations and warranties set forth in Section 2.3 shall be to require the Depositor to repurchase Receivables pursuant to this Section 2.4. Neither the Owner Trustee nor the Indenture Trustee
shall have any duty to conduct an affirmative investigation as to the occurrence of any condition requiring the repurchase of any Receivable pursuant to this Section 2.4 or the eligibility of any Receivable for purposes of this Agreement.

  
 SECTION 2.5 Custody of Receivable Files. To assure
uniform quality in servicing the Receivables and to reduce administrative costs, the Trust, upon the execution and delivery of this Agreement, hereby revocably appoints the Servicer as its agent, and the Servicer hereby accepts such appointment, to
act as custodian on behalf of the Trust and the Indenture Trustee of the following documents or instruments, which are hereby constructively delivered to the Indenture Trustee, as pledgee of the Trust pursuant to the Indenture with respect to each
Receivable (collectively, a “Receivable File”): 
  
 (i) the original, executed copy of such Receivable; 
  
 (ii) the original credit application with respect to such Receivable fully executed by the related Obligor or a photocopy thereof or a
record thereof on a computer file or disc or on microfiche; 
  
 (iii) the original certificate of title for the related Financed Vehicle or such other documents that the Seller or the Servicer shall keep on file, in accordance with its customary practices and procedures,
evidencing the security interest of the Seller in such Financed Vehicle; 
  

 24 








 (iv) documents evidencing the commitment of the related Obligor to maintain physical
damage insurance covering the related Financed Vehicle; and 
  
 (v) any and all other documents (including any computer file or disc or microfiche) that the Seller or the Servicer shall keep on file, in accordance with its customary practices and procedures, relating to such
Receivable, the related Obligor or the related Financed Vehicle. 
  
 On the Closing Date, the Servicer shall deliver to the Trust and the Indenture Trustee an Officer’s Certificate confirming that the Servicer has received, on behalf of the Trust and the Indenture Trustee, all the documents and
instruments necessary for the Servicer to act as the agent of the Trust and the Indenture Trustee for the purposes set forth in this Section 2.5, including the documents referred to herein, and the Trust, the Owner Trustee and the Indenture Trustee
are hereby authorized to rely on such Officer’s Certificate. In addition, within 180 days after the Closing Date, the Servicer shall deliver to the Trust and the Indenture Trustee an Officer’s Certificate certifying that the Servicer has
received the original certificate of title for each Financed Vehicle except each Financed Vehicle securing an outstanding Receivable for which the Servicer has not received the original certificate of title as shall be identified in such
Officer’s Certificate (and indicating whether such Financed Vehicle is subject to a certificate of title statute or motor vehicle registration law that requires that the original certificate of title for such Financed Vehicle be delivered to
the Seller). 
  
 SECTION 2.6 Duties of Servicer as
Custodian. 
  
 (a) Safekeeping. The Servicer, in its
capacity as custodian, shall hold the Receivable Files for the benefit of the Trust and the Indenture Trustee and maintain such accurate and complete accounts, records and computer systems pertaining to each Receivable File as shall enable the
Servicer and the Trust to comply with the terms and provisions of this Agreement and the Indenture Trustee to comply with the terms and conditions of the Indenture. In performing its duties as custodian, the Servicer shall act with reasonable care,
using that degree of skill and attention that the Servicer exercises with respect to the files relating to comparable motor vehicle retail installment sale contracts that the Servicer services for itself or others. The Servicer shall conduct, or
cause to be conducted, in accordance with its customary practices and procedures, periodic audits of the Receivable Files held by it under this Agreement, and of the related accounts, records and computer systems, in such a manner as shall enable
the Trust or the Indenture Trustee to verify the accuracy of the Servicer’s record keeping. The Servicer shall promptly report to the Owner Trustee and the Indenture Trustee any failure on its part to hold the Receivable Files and maintain its
accounts, records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. Nothing herein shall be deemed to require an initial review or any periodic review by the Trust, the Owner Trustee or the
Indenture Trustee of the Receivable Files, and none of the Trust, the Owner Trustee or the Indenture Trustee shall be liable or responsible for any action or failure to act by the Servicer in its capacity as custodian hereunder. 
  
 (b) Maintenance of and Access to Records. The Servicer shall maintain
each Receivable File at the location listed in Schedule 2 or at such other location as shall be specified to the Trust and the Indenture Trustee by written notice not later than ninety (90) days after any 

  

 25 








 
change in location. The Servicer shall make available to the Trust and the Indenture Trustee, or its duly authorized representatives, attorneys or auditors,
a list of locations of the Receivable Files, the Receivable Files, and the related accounts, records, and computer systems maintained by the Servicer, at such times as the Trust or the Indenture Trustee shall instruct. 
  
 (c) Release of Documents. As soon as practicable after receiving
written instructions from the Indenture Trustee, the Servicer shall release any document in the Receivable Files to the Indenture Trustee, the Indenture Trustee’s agent or the Indenture Trustee’s designee, as the case may be, at such place
as the Indenture Trustee may reasonably designate. 
  
 (d)
Title to Receivables. The Servicer shall not at any time have or in any way attempt to assert any interest in any Receivable held by it as custodian hereunder or in the related Receivable File other than for collecting or enforcing such
Receivable for the benefit of the Trust. The entire equitable interest in such Receivable and the related Receivable File shall at all times be vested in the Trust. 
  
 SECTION 2.7 Instructions; Authority to Act. The Servicer shall be deemed to have received proper instructions
with respect to the Receivable Files upon its receipt of written instructions signed by an Authorized Officer. A certified copy of excerpts of authorizing resolutions of the Board of Directors of the Indenture Trustee shall constitute conclusive
evidence of the authority of any such Authorized Officer to act and shall be considered in full force and effect until receipt by the Servicer of written notice to the contrary given by the Indenture Trustee. 
  
 SECTION 2.8 Indemnification of the Custodian. The Servicer, in its
capacity as custodian, shall indemnify and hold harmless the Trust, the Owner Trustee and the Indenture Trustee and each of their respective officers, directors, employees and agents from and against any and all liabilities, obligations, losses,
compensatory damages, payments, costs or expenses (including legal fees if any) of any kind whatsoever that may be imposed on, incurred or asserted against the Trust, the Owner Trustee or the Indenture Trustee or any of their respective officers,
directors, employees and agents as the result of any act or omission by the Servicer relating to the maintenance and custody of the Receivable Files; provided, however, that the Servicer shall not be liable hereunder to the Owner
Trustee to the extent that such liabilities, obligations, losses, compensatory damages, payments, costs or expenses result from the willful misfeasance, bad faith or negligence of the Owner Trustee and shall not be liable hereunder to the Indenture
Trustee to the extent that such liabilities, obligations, losses, compensatory damages, payments, costs or expenses result from the willful misfeasance, bad faith or negligence of the Indenture Trustee. 
  
 SECTION 2.9 Effective Period and Termination. The Servicer’s
appointment as custodian shall become effective as of the Cutoff Date and shall continue in full force and effect until terminated pursuant to this Section 2.9. If the Servicer shall resign as Servicer under Section 7.6, or if all of the rights and
obligations of the Servicer shall have been terminated under Section 8.1, the appointment of the Servicer as custodian hereunder may be terminated (i) by the Trust, with the consent of the Indenture Trustee, (ii) by the Holders of Notes evidencing
not less than 25% of the Note Balance of the Controlling Class or, if the Notes have been paid in full, by the Holders of Certificates evidencing not less than 25% of the aggregate Certificate 

  

 26 








 
Percentage Interest or (iii) by the Owner Trustee, with the consent of the Holders of Notes evidencing not less than 25% of the Note Balance of the
Controlling Class, in each case by notice then given in writing to the Depositor and the Servicer (with a copy to the Indenture Trustee and the Owner Trustee if given by the Noteholders or the Certificateholders). As soon as practicable after any
termination of such appointment, the Servicer shall deliver, or cause to be delivered, the Receivable Files and the related accounts and records maintained by the Servicer to the Indenture Trustee, the Indenture Trustee’s agent or the Indenture
Trustee’s designee, as the case may be, at such place as the Indenture Trustee may reasonably designate or, if the Notes have been paid in full, at such place as the Owner Trustee may reasonably designate. 
  
 ARTICLE III 
 ADMINISTRATION AND SERVICING OF RECEIVABLES AND 
 OTHER TRUST PROPERTY 
  
 SECTION 3.1 Duties of Servicer. The Servicer shall administer the
Receivables with reasonable care. The Servicer’s duties shall include, but not be limited to, the collection and posting of all payments, responding to inquiries by Obligors on the Receivables, or by federal, state or local governmental
authorities, investigating delinquencies, reporting tax information to Obligors, furnishing monthly and annual statements to the Owner Trustee and the Indenture Trustee with respect to distributions and providing collection and repossession services
in the event of Obligor default. In performing its duties as Servicer hereunder, the Servicer shall use reasonable care and exercise that degree of skill and attention that the Servicer exercises with respect to all comparable motor vehicle retail
installment sale contracts that it services for itself or others. Subject to the foregoing and to Section 3.2, the Servicer shall follow its customary standards, policies, practices and procedures in performing its duties hereunder as Servicer.
Without limiting the generality of the foregoing, the Servicer is hereby authorized and empowered to execute and deliver, on behalf of itself, the Depositor, the Trust, the Owner Trustee, the Indenture Trustee, the Certificateholders, the
Noteholders or any one or more of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Receivables or the Financed Vehicles, all in
accordance with this Agreement; provided, however, that, notwithstanding the foregoing, the Servicer shall not, except pursuant to an order from a court of competent jurisdiction, release an Obligor from payment of any unpaid amount
under any Receivable or waive the right to collect the unpaid balance (including accrued interest) of any Receivable from the related Obligor, except in connection with a de minimis deficiency which the Servicer would not attempt to collect in
accordance with its customary procedures, in which event the Servicer shall indemnify the Trust for such deficiency. If the Servicer shall commence a legal proceeding to enforce a Receivable, the Owner Trustee shall thereupon be deemed to have
automatically assigned such Receivable to the Servicer, which assignment shall be solely for purposes of collection. If in any enforcement suit or legal proceeding it shall be held that the Servicer may not enforce a Receivable on the ground that it
shall not be a real party in interest or a holder entitled to enforce such Receivable, the Owner Trustee shall, at the Servicer’s expense and written direction, take steps to enforce such Receivable, including bringing suit in its name or the
names of the Indenture Trustee, the Certificateholders, the Noteholders or any of them. The Owner Trustee shall execute and deliver to the Servicer any powers of attorney and other documents as shall be prepared by the Servicer and reasonably
necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder. The Servicer, at its 

  

 27 








 
expense, shall obtain on behalf of the Trust or the Owner Trustee all licenses, if any, required by the laws of any jurisdiction to be held by the Trust or
the Owner Trustee in connection with ownership of the Receivables and shall make all filings and pay all fees as may be required in connection therewith during the term hereof. 
  
 SECTION 3.2 Collection and Allocation of Receivable Payments. The Servicer shall make reasonable efforts to collect
all payments called for under the terms and provisions of the Receivables as and when the same shall become due and otherwise act with respect to the Receivables and the other Trust Property in such manner as will, in the reasonable judgment of the
Servicer, maximize the amount to be received by the Trust with respect thereto and in accordance with the standard of care required by Section 3.1. The Servicer shall allocate collections on or in respect of the Receivables between principal and
interest in accordance with the customary servicing practices and procedures it follows with respect to all comparable motor vehicle retail installment sale contracts that it services for itself or others. The Servicer shall not increase or decrease
the number or amount of any Scheduled Payment, the Amount Financed under any Receivable or the APR of any Receivable, or extend, rewrite or otherwise modify the payment terms of any Receivable; provided, however, that the Servicer may
extend the due date for one or more payments due on any Receivable for credit-related reasons that would be acceptable to the Servicer with respect to comparable motor vehicle retail installment sale contracts that it services for itself or others
and in accordance with its customary standards, policies, practices and procedures if the cumulative extensions with respect to any Receivable shall not cause the term of such Receivable to extend beyond the Final Scheduled Maturity Date. If the
Servicer fails to comply with the provisions of the preceding sentence, the Servicer shall be required to purchase each Receivable affected thereby for the related Purchase Amount, in the manner specified in Section 3.7, as of the close of the
Collection Period during which such failure occurs. The Servicer may, in its discretion (but only in accordance with its customary standards, policies, practices and procedures), waive any late payment charge or any other fee that may be collected
in the ordinary course of servicing a Receivable. 
  
 SECTION 3.3
Realization upon Receivables. The Servicer shall use reasonable efforts on behalf of the Trust, in accordance with the standard of care required under Section 3.1, to repossess or otherwise convert the ownership of each Financed Vehicle
securing a Defaulted Receivable. In taking such action, the Servicer shall follow such customary practices and procedures as it shall deem necessary or advisable in its servicing of comparable motor vehicle retail installment sale contracts and as
are otherwise consistent with the standard of care required under Section 3.1. The Servicer shall be entitled to recover all reasonable expenses incurred by it in the course of repossessing and liquidating a Financed Vehicle into cash proceeds, but
only out of the cash proceeds of such Financed Vehicle and any deficiency obtained from the related Obligor. If a Financed Vehicle shall have suffered damage, the Servicer shall not expend funds in connection with the repair or the repossession of
such Financed Vehicle unless it shall determine in its discretion that such repair and/or repossession will increase the Liquidation Proceeds received with respect to the related Receivable. 
  
 SECTION 3.4 Physical Damage Insurance. The Servicer shall follow its
customary practices and procedures to determine whether or not each Obligor shall have maintained physical damage insurance covering the related Financed Vehicle. 
  

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 SECTION 3.5 Maintenance of Security Interests in Financed Vehicles. The Servicer shall take such
steps, in accordance with the standard of care required under Section 3.1, as are necessary to maintain perfection of the security interest created by each Receivable in the related Financed Vehicle. The Trust hereby authorizes the Servicer, and the
Servicer hereby agrees, to take such steps as are necessary to re-perfect such security interest on behalf of the Trust and the Indenture Trustee in the event the Servicer receives notice of, or otherwise has actual knowledge of, the fact that such
security interest is not perfected as a result of the relocation of a Financed Vehicle or for any other reason. The Servicer shall not release, in whole or in part, any security interest in a Financed Vehicle created by the related Receivable except
as permitted herein or in accordance with its customary standards, policies, practices and procedures. 
  
 SECTION 3.6 Amendment of Receivable Terms. The Servicer shall not impair in any material respect the rights of the Depositor, the Trust, the Owner
Trustee, the Indenture Trustee, the Certificateholders or the Noteholders in the Receivables or, except as permitted under Section 3.2, otherwise amend or alter the terms of the Receivables if, as a result of such amendment or alteration, the
interests of the Depositor, the Trust, the Owner Trustee, the Indenture Trustee, the Certificateholders or the Noteholders hereunder would be materially adversely affected. 
  
 SECTION 3.7 Purchase by Servicer upon Breach. The Depositor, the Servicer or the Owner Trustee, as the case may be,
shall inform the other parties to this Agreement, the Seller and the Indenture Trustee promptly, in writing, upon the discovery of any breach of Section 3.2, 3.5 or 3.6. If such breach shall not have been cured by the close of business on the last
day of the Collection Period which includes the thirtieth (30th) day after the date on which the Servicer becomes aware of, or receives written notice from the Depositor, the Seller, or the Owner Trustee of, such breach, and such breach materially
and adversely affects the interest of the Trust in a Receivable, the Servicer shall purchase such Receivable from the Trust on the Distribution Date following such Collection Period; provided, however, that, with respect to a breach of
Section 3.2, the Servicer shall purchase the affected Receivable from the Trust at the end of the Collection Period in which such breach occurs. In consideration of the purchase of a Receivable hereunder, the Servicer shall remit the Purchase Amount
of such Receivable in the manner specified in Section 4.5. The sole remedy of the Trust, the Owner Trustee, the Indenture Trustee, the Noteholders and the Certificateholders with respect to a breach of Section 3.2, 3.5 or 3.6 shall be to require the
Servicer to purchase Receivables pursuant to this Section 3.7. Neither the Owner Trustee nor the Indenture Trustee shall have any duty to conduct an affirmative investigation as to the occurrence of any condition requiring the purchase of any
Receivable pursuant to this Section 3.7. 
  
 SECTION 3.8
Servicing Compensation. The Servicer shall receive the Monthly Servicing Fee for servicing the Receivables. The Monthly Servicing Fee for any Collection Period shall equal the product of one-twelfth (1/12) of the Servicing Rate and the Pool
Balance as of the first day of such Collection Period (or, in the case of the initial Collection Period, as of the Cutoff Date). The Servicer shall pay all expenses incurred by it in connection with its activities hereunder (including the fees and
expenses of the Owner Trustee and the Indenture Trustee, including the reasonable fees and expenses of their attorneys, and any custodian appointed by the Owner Trustee and the Indenture Trustee, the fees and expenses of 

  

 29 








 
independent accountants, taxes imposed on the Servicer and expenses incurred in connection with distributions and reports to the Certificateholders and the
Noteholders), except expenses incurred in connection with realizing upon Receivables under Section 3.3. 
  
 SECTION 3.9 Servicer’s Certificate. On or before the Determination Date immediately preceding each Distribution Date, the Servicer shall
deliver to the Depositor, the Seller, the Owner Trustee, the Indenture Trustee and each Paying Agent, with a copy to the Rating Agencies, a certificate of a Servicing Officer substantially in the form of Exhibit A (a “Servicer’s
Certificate”) and attached to a Servicer’s report containing all information necessary to make the transfers and distributions pursuant to Sections 4.5, 4.6 and 4.7, together with the written statements to be furnished by the Owner
Trustee to the Certificateholders pursuant to Section 4.9 and by the Indenture Trustee to the Noteholders pursuant to Section 4.9 and pursuant to Section 6.6 of the Indenture. The Servicer shall separately identify (by account number) in a written
notice to the Depositor, the Owner Trustee and the Indenture Trustee the Receivables to be repurchased by the Depositor or to be purchased by the Servicer, as the case may be, on the Business Day preceding such Distribution Date, and, upon request
of one of the foregoing parties, each Receivable which became a Defaulted Receivable during the related Collection Period. The Servicer shall deliver to the Rating Agencies any information, to the extent it is available to the Servicer, that the
Rating Agencies reasonably request in order to monitor the Trust. 
  
 SECTION 3.10 Annual Statement as to Compliance; Notice of Event of Servicing Termination. 
  
 (a) On or before May 31 of each year (commencing with the year 2005), the Servicer shall deliver to the Depositor, the Owner Trustee and the Indenture
Trustee an Officer’s Certificate stating, as to the officer signing such Officer’s Certificate, that: 
  
 (i) a review of the activities of the Servicer during the preceding Trust Fiscal Year (or, in the case of the Officer’s Certificate
to be delivered in the year 2005, during the period beginning on the Closing Date and ending on February 28, 2005) and of its performance under this Agreement has been made under such officer’s supervision; and 
  
 (ii) to the best of such officer’s knowledge, based on
such review, the Servicer has fulfilled all its obligations under this Agreement throughout such Trust Fiscal Year (or, in the case of the Officer’s Certificate to be delivered in the year 2005, such period) or, if there has been a default in
the fulfillment of any such obligation, specifying each such default known to such officer and the nature and status thereof. 
  
 A copy of such certificate may be obtained by any Certificateholder by a request in writing to the Owner Trustee, or by any Noteholder or Person
certifying that it is a Note Owner by a request in writing to the Indenture Trustee, in either case addressed to the applicable Corporate Trust Office. Upon the written request of the Owner Trustee, the Indenture Trustee shall promptly furnish the
Owner Trustee a list of Noteholders as of the date specified by the Owner Trustee. 
  

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 (b) The Servicer shall deliver to the Depositor, the Owner Trustee, the Indenture Trustee and the Rating
Agencies, promptly after having obtained knowledge thereof, but in no event later than five (5) Business Days thereafter, an Officer’s Certificate specifying any event which constitutes or, with the giving of notice or lapse of time or both,
would become an Event of Servicing Termination. 
  
 SECTION 3.11
Annual Independent Certified Public Accountants’ Reports. On or before May 31 of each year (commencing with the year 2005), the Servicer shall cause a firm of independent certified public accountants (who may also render other services
to the Servicer or its Affiliates) to deliver to the Depositor, the Owner Trustee and the Indenture Trustee a report addressed to the Board of Directors of the Servicer with respect to the preceding CarMax Fiscal Year (or, in the case of the report
to be delivered in the year 2005, with respect to the period beginning on the Closing Date and ending on February 28, 2005) to the effect that (i) such firm has audited the financial statements of the Servicer and issued its report thereon, (ii)
such firm has audited the reports delivered by the Servicer pursuant to Section 3.9 and the records relating to the servicing of the Receivables and the distributions on the Notes and the Certificates under this Agreement, (iii) such audit was made
in accordance with generally accepted auditing standards and (iv) except as described in the report, such audit disclosed no exceptions or errors in the records relating to motor vehicle loans serviced for others. Such report shall also indicate
that the firm is independent with respect to the Depositor, the Seller and the Servicer within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants. A copy of such report may be obtained by any
Certificateholder by a request in writing to the Owner Trustee, or by any Noteholder or Person certifying that it is a Note Owner by a request in writing to the Indenture Trustee, in either case addressed to the applicable Corporate Trust Office. In
the event such firm requires the Indenture Trustee to agree to the procedures performed by such firm, the Servicer shall direct the Indenture Trustee in writing to so agree, it being understood and agreed that the Indenture Trustee will deliver such
letter of agreement in conclusive reliance upon the direction of the Servicer, and the Indenture Trustee makes no independent inquiry or investigation as to, and shall have no obligation or liability in respect of, the sufficiency, validity or
correctness of such procedures. 
  
 SECTION 3.12 Access to
Certain Documentation and Information Regarding Receivables. The Servicer shall provide the Depositor, the Owner Trustee, the Indenture Trustee, the Certificateholders and the Noteholders with access to the Receivable Files in the cases where
the Depositor, the Owner Trustee, the Indenture Trustee, the Certificateholders or the Noteholders shall be required by applicable statutes or regulations to have access to such documentation. Such access shall be afforded without charge, but only
upon reasonable request and during normal business hours at the offices of the Servicer. Nothing in this Section 3.12 shall affect the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the
Obligors, and the failure of the Servicer to provide access to information as a result of such obligation shall not constitute a breach of this Section 3.12. Each Certificateholder or Noteholder, by its acceptance of a Certificate or Note, as the
case may be, shall be deemed to have agreed to keep any information obtained by it pursuant to this Section 3.12 confidential, except as may be required by applicable law. 
  
 SECTION 3.13 Reports to the Commission. The Servicer shall, on behalf of the Trust, cause to be filed with the
Commission any periodic reports required to be filed under 

  

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the provisions of the Exchange Act, and the rules and regulations of the Commission thereunder. The Servicer shall, or shall cause the Administrator to,
prepare, execute and deliver all certificates and other documents required to be delivered by the Trust pursuant to the Sarbanes-Oxley Act of 2002 or the rules and regulations promulgated thereunder. The Depositor shall, at its expense, cooperate in
any reasonable request made by the Servicer in connection with such filings. The Servicer shall provide or cause to be provided to the Depositor copies of all documents filed by the Servicer after the Closing Date with the Commission pursuant to the
Securities Act of 1933, as amended, or the Securities Act of 1934, as amended, that relate specifically to the Trust, the Notes or the Certificates. 
  
 SECTION 3.14 Reports to Rating Agencies. The Servicer shall deliver to each Rating Agency, at such address as such Rating Agency may request, a
copy of all reports or notices furnished or delivered pursuant to this Article III and a copy of any amendments, supplements or modifications to this Agreement and any other information reasonably requested by such Rating Agency to monitor this
transaction. 
  
 ARTICLE IV 
 DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO 
 NOTEHOLDERS AND CERTIFICATEHOLDERS 
  
 SECTION 4.1
Accounts. 
  
 (a) The Servicer shall establish, on or
before the Closing Date, and maintain in the name of the Indenture Trustee at an Eligible Institution (which shall initially be the Indenture Trustee) a segregated trust account designated as the Collection Account (the “Collection
Account”). The Collection Account shall be held in trust for the benefit of the Noteholders and the Certificateholders. The Collection Account shall be under the sole dominion and control of the Indenture Trustee; provided,
however, that the Servicer may make deposits to and direct the Indenture Trustee in writing to make withdrawals from the Collection Account in accordance with this Agreement, the Indenture and the Trust Agreement. All monies deposited from
time to time in the Collection Account pursuant to this Agreement shall be held by the Indenture Trustee as part of the Trust Property and shall be applied as provided in this Agreement. All deposits to and withdrawals from the Collection Account
shall be made only upon the terms and conditions of the Transaction Documents. 
  
 If the Servicer is required to remit collections on a daily basis pursuant to the first sentence of Section 4.2, all amounts held in the Collection Account shall, to the extent permitted by applicable law, rules and
regulations, be invested, as directed in writing by the Servicer, by the bank or trust company then maintaining the Collection Account in Permitted Investments that mature not later than the Business Day preceding the Distribution Date following the
Collection Period during which such investment is made. All such Permitted Investments shall be held to maturity. If the Collection Account is no longer to be maintained at the Indenture Trustee, the Servicer shall, with the Indenture Trustee’s
assistance as necessary, promptly (and in any case within ten (10) calendar days or such longer period not to exceed thirty (30) calendar days as to which each Rating Agency shall consent) cause the Collection Account to be moved to an Eligible
Institution. The Servicer shall promptly notify the Indenture Trustee and the Owner Trustee of any change in the account number or location of the Collection Account. 
  

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 (b) The Servicer shall establish, on or before the Closing Date, and maintain in the name of the
Indenture Trustee at an Eligible Institution (which shall initially be the Indenture Trustee) a segregated trust account designated as the Note Payment Account (the “Note Payment Account”). The Note Payment Account shall be held in
trust for the benefit of the Noteholders. The Note Payment Account shall be under the sole dominion and control of the Indenture Trustee; provided, however, that the Servicer may make deposits to and direct the Indenture Trustee in
writing to make withdrawals from the Note Payment Account in accordance with this Agreement and the Indenture. All monies deposited from time to time in the Note Payment Account pursuant to this Agreement and the Indenture shall be held by the
Indenture Trustee as part of the Trust Property and shall be applied as provided in this Agreement and the Indenture. The amounts on deposit in the Note Payment Account shall not be invested. If the Note Payment Account is no longer to be maintained
at the Indenture Trustee, the Servicer shall, with the Indenture Trustee’s assistance as necessary, promptly (and in any case within ten (10) calendar days or such longer period not to exceed thirty (30) calendar days as to which each Rating
Agency may consent) cause the Note Payment Account to be moved to an Eligible Institution. The Servicer shall promptly notify the Indenture Trustee and the Owner Trustee of any change in the account number or location of the Note Payment Account.

  
 (c) The Servicer shall establish, on or before the Closing
Date, and maintain in the name of the Owner Trustee at an Eligible Institution (which shall initially be the Owner Trustee) a segregated trust account designated as the “CarMax Auto Owner Trust 2004-1 Trust Account” (the
“Certificate Payment Account”). The Certificate Payment Account shall be held in trust for the benefit of the Certificateholders. The Certificate Payment Account shall be under the sole dominion and control of the Owner Trustee;
provided, however, that the Servicer may direct the Indenture Trustee in writing to make deposits to the Certificate Payment Account in accordance with this Agreement and the Indenture and may direct the Owner Trustee to make
withdrawals from the Certificate Payment Account in accordance with this Agreement and the Trust Agreement. All monies deposited from time to time in the Certificate Payment Account pursuant to this Agreement and the Indenture shall be held by the
Owner Trustee as part of the Trust Property and shall be applied as provided in this Agreement and the Trust Agreement. The amounts on deposit in the Certificate Payment Account shall not be invested. If the Certificate Payment Account is no longer
to be maintained at the Owner Trustee, the Servicer shall, with the Owner Trustee’s assistance as necessary, promptly (and in any case within ten (10) calendar days or such longer period not to exceed thirty (30) calendar days as to which each
Rating Agency may consent) cause the Certificate Payment Account to be moved to an Eligible Institution. The Servicer shall promptly notify the Indenture Trustee and the Owner Trustee in writing of any change in the account number or location of the
Certificate Payment Account. 
  
 SECTION 4.2 Collections.
The Servicer shall remit to the Collection Account all amounts received by the Servicer on or in respect of the Receivables (including Liquidation Proceeds and all amounts received by the Servicer in connection with the repossession and sale of a
Financed Vehicle (whether or not the related Receivable has been classified as a Defaulted Receivable) but excluding payments with respect to Purchased Receivables) as soon as practicable and in no event after the close of business on the second
Business day after such receipt; provided, however, that for so long as (i) CarMax is the Servicer, (ii) no Event of Servicing Termination shall have occurred and be continuing and (iii) the Rating Agency Condition shall have been
satisfied (each, a “Monthly Remittance Condition”), the Servicer may 

  

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remit any such amounts received during any Collection Period to the Collection Account in immediately available funds on the Business Day preceding the
Distribution Date following such Collection Period (it being understood that the Monthly Remittance Condition has not been satisfied as of the Closing Date); provided further, that if any such amounts (including Liquidation Proceeds
and all amounts received by the Servicer in connection with the repossession and sale of a Financed Vehicle (whether or not the related Receivable has been classified as a Defaulted Receivable)) are received in respect of a Receivable as to which
there is an unreimbursed Simple Interest Advance, the Servicer shall retain such amounts to the extent of such unreimbursed Simple Interest Advance (and shall apply the amount retained to reimburse itself for such unreimbursed Simple Interest
Advance) and shall remit the balance of such amounts to the Collection Account; and, provided further, that the Servicer shall, if it determines that it has made an Unreimbursed Servicer Advance, retain amounts received on or in
respect of the Receivables to the extent set forth in Section 4.4(b). The Owner Trustee and the Indenture Trustee shall not be deemed to have knowledge of any event or circumstance under clause (ii) or (iii) of the definition of Monthly Remittance
Condition that would require daily remittance by the Servicer to the Collection Account unless the Owner Trustee or the Indenture Trustee, as applicable, has received notice of such event or circumstance from the Depositor or the Servicer in an
Officer’s Certificate or written notice of such event or circumstance from the Holders of Notes evidencing not less than 25% of the Note Balance of the Controlling Class or unless a Responsible Officer of the Owner Trustee or the Indenture
Trustee, as applicable, has actual knowledge of such event or circumstance. The Servicer shall remit to the Collection Account on the Closing Date all amounts received by the Servicer on or in respect of the Receivables (including Liquidation
Proceeds and all amounts received by the Servicer in connection with the repossession and sale of a Financed Vehicle (whether or not the related Receivable has been classified as a Defaulted Receivable)) during the period from but excluding the
Cutoff Date to and including the second Business Day preceding the Closing Date. 
  
 SECTION 4.3 Application of Collections. For purposes of this Agreement, all amounts received on or in respect of a Receivable during any Collection Period (including Liquidation Proceeds and all amounts
received by the Servicer in connection with the repossession and sale of a Financed Vehicle (whether or not the related Receivable has been classified as a Defaulted Receivable) but excluding payments with respect to Purchased Receivables) shall be
applied by the Servicer, as of the last day of such Collection Period, to interest and principal on such Receivable in accordance with the Simple Interest Method. 
  
 SECTION 4.4 Simple Interest Advances and Unreimbursed Servicer Advances. 
  
 (a) If, as of the end of any Collection Period, one or more payments of
Monthly P&I due under any Receivable (other than a Defaulted Receivable) outstanding at the end of such Collection Period shall not have been received by the Servicer and remitted to the Collection Account pursuant to Section 4.2, the Servicer
may, at its option, make, on the Business Day preceding the Distribution Date immediately following such Collection Period, a Simple Interest Advance with respect to such Receivable by depositing in or crediting to the Collection Account the amount
of Monthly P&I allocable to interest scheduled to have been paid during such Collection Period, assuming that such Receivable was paid on its due date, minus 

  

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the amount of Monthly P&I actually received and allocated to interest, if any, with respect to such Receivable during such Collection Period. 

 
 (b) If the Servicer determines that it has made an Unreimbursed Servicer
Advance, the Servicer shall reimburse itself for such Unreimbursed Servicer Advance from unrelated amounts received by the Servicer on or in respect of the Receivables (including Liquidation Proceeds and all amounts received by the Servicer in
connection with the repossession and sale of a Financed Vehicle (whether or not the related Receivable has been classified as a Defaulted Receivable)); provided, however, that the Servicer shall furnish to the Indenture Trustee and the
Owner Trustee, on or before the Distribution Date following the Collection Period during which such reimbursement is taken, a certificate of a Servicing Officer setting forth the basis for such determination, the amount of such Unreimbursed Servicer
Advance, the Receivable with respect to which such Unreimbursed Servicer Advance was made and the installments or other proceeds with respect to which such reimbursement was taken. 
  
 SECTION 4.5 Additional Deposits. The Depositor and the Servicer shall deposit or cause to be deposited in the
Collection Account the aggregate Purchase Amount with respect to Purchased Receivables pursuant to Section 2.4, 3.7 or 9.1. All such deposits with respect to a Collection Period shall be made in immediately available funds no later than 5:00 p.m.,
New York City time, on the Business Day preceding the Distribution Date following such Collection Period. 
  
 SECTION 4.6 Determination Date Calculations; Application of Available Funds. 
  
 (a) On each Determination Date, the Servicer shall calculate the following amounts: 
  
 (i) the Available Collections for the following Distribution
Date; 
  
 (ii) the Total Servicing Fee for the
preceding Collection Period; 
  
 (iii) the Total
Note Interest for each Class of Class A Notes for the following Distribution Date; 
  
 (iv) the Priority Principal Distributable Amount for the following Distribution Date; 
  
 (v) the Total Note Interest for the Class B Notes for the
following Distribution Date; 
  
 (vi) the
Secondary Principal Distributable Amount for the following Distribution Date; 
  
 (vii) the Total Note Interest for the Class C Notes for the following Distribution Date; 
  

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 (viii) the Tertiary Principal Distributable Amount for the following Distribution Date;

  
 (ix) the Total Note Interest for the Class D
Notes for the following Distribution Date; 
  
 (x) the sum of the amounts described in clauses (ii) through (ix) above (the “Required Payment Amount”); and 
  
 (xi) the Regular Principal Distributable Amount for the following Distribution Date. 
  
 (b) On each Determination Date, the Servicer shall calculate the following
amounts: 
  
 (i) the lesser of (A) the amount, if
any, by which the Required Payment Amount for the following Distribution Date exceeds the Available Collections for such Distribution Date and (B) the Reserve Account Amount for such Distribution Date (before giving effect to any deposits to or
withdrawals from the Reserve Account on such Distribution Date) (such lesser amount, the “Reserve Account Draw Amount”); provided, however, that if on the last day of the preceding Collection Period the Pool Balance is
zero, the Reserve Account Draw Amount for such Distribution Date shall equal the Reserve Account Amount for such Distribution Date; 
  
 (ii) the Reserve Account Amount for the following Distribution Date (after giving effect to the withdrawal of the Reserve Account Draw
Amount for such Distribution Date); and 
  
 (iii)
the amount, if any, by which the Required Reserve Account Amount for the following Distribution Date exceeds the Reserve Account Amount for such Distribution Date (after giving effect to the withdrawal of the Reserve Account Draw Amount for such
Distribution Date) (such excess, the “Reserve Account Deficiency”). 
  
 On each Distribution Date, the Servicer shall instruct the Indenture Trustee to transfer the Reserve Account Draw Amount, if any, for such Distribution Date from the Reserve Account to the Collection Account.

  
 (c) [RESERVED]. 
  
 (d) On each Distribution Date, the Servicer shall instruct the Indenture
Trustee in writing to apply the Available Funds for such Distribution Date to make the payments and deposits set forth in Section 2.8(a) of the Indenture. 
  
 SECTION 4.7 Reserve Account. 
  
 (a) The Servicer shall establish, on or before the Closing Date, and maintain in the name of the Indenture Trustee at an Eligible Institution (which shall
initially be the Indenture Trustee) a segregated trust account designated as the Reserve Account (the “Reserve  

  

 36 








 
Account”). The Reserve Account shall be held in trust for the benefit of the Noteholders and the Certificateholders. The Reserve Account shall be
under the sole dominion and control of the Indenture Trustee; provided, however, that the Servicer may make deposits to and direct the Indenture Trustee in writing to make withdrawals from the Reserve Account in accordance with this
Agreement and the Indenture. On the Closing Date, the Depositor shall deposit the Initial Reserve Account Deposit into the Reserve Account from the net proceeds of the sale of the Notes. The Reserve Account and all amounts, securities, investments,
financial assets and other property deposited in or credited to the Reserve Account (the “Reserve Account Property”) has been conveyed by the Depositor to the Trust pursuant to Section 2.1. Pursuant to the Indenture, the Trust will
pledge all of its right, title and interest in, to and under the Reserve Account and the Reserve Account Property to the Indenture Trustee on behalf of the Noteholders and the Certificateholders to secure its obligations under the Notes and the
Indenture. 
  
 (b) The Reserve Account Property shall, to the
extent permitted by applicable law, rules and regulations, be invested, as directed in writing by the Servicer, by the bank or trust company then maintaining the Reserve Account in Permitted Investments that mature not later than the Business Day
preceding the next Distribution Date. All such Permitted Investments shall be held to maturity. All interest and other income (net of losses and investment expenses) on funds on deposit in the Reserve Account shall, at the written direction of the
Servicer, be paid to the Certificateholders, on any Distribution Date to the extent that funds on deposit therein, as certified by the Servicer, exceed the Required Reserve Account Amount. If the Reserve Account is no longer to be maintained at the
Indenture Trustee, the Servicer shall, with the Indenture Trustee’s assistance as necessary, promptly (and in any case within ten (10) calendar days or such longer period not to exceed thirty (30) calendar days as to which each Rating Agency
may consent) cause the Reserve Account to be moved to an Eligible Institution. The Servicer shall promptly notify the Indenture Trustee and the Owner Trustee in writing of any change in the account number or location of the Reserve Account.

  
 (c) With respect to any Reserve Account Property: 

 
 (i) any Reserve Account Property that is a
“financial asset” (as defined in Section 8-102(a)(9) of the Relevant UCC) shall be physically delivered to, or credited to an account in the name of, the Eligible Institution maintaining the Reserve Account, in accordance with such
institution’s customary procedures such that such institution establishes a “securities entitlement” in favor of the Indenture Trustee with respect thereto; 
  
 (ii) any Reserve Account Property that is held in deposit accounts shall be held solely in the name of the
Indenture Trustee at one or more depository institutions having the Required Rating and each such deposit account shall be subject to the exclusive custody and control of the Indenture Trustee and the Indenture Trustee shall have sole signature
authority with respect thereto; and 
  
 (iii)
except for any deposit accounts specified in clause (ii) above, the Reserve Account shall only be invested in securities or in other assets which the Eligible Institution maintaining the Reserve Account agrees to treat as “financial
assets” (as defined in Section 8-102(a)(9) of the Relevant UCC). 
  

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 (d) If any Class of Notes has not been paid in full on any Distribution Date on or after its Final
Scheduled Distribution Date (after giving effect to the distribution of Available Funds on such Distribution Date), the Servicer shall instruct the Indenture Trustee to distribute to the Holders of that Class of Notes, from amounts on deposit in the
Reserve Account, an amount equal to the lesser of (i) the amount on deposit in the Reserve Account and (ii) the outstanding principal amount of that Class of Notes. If the Reserve Account Amount for any Distribution Date (after giving effect to the
withdrawal of the Reserve Account Draw Amount for such Distribution Date and the distribution described in the preceding sentence) exceeds the Required Reserve Account Amount for such Distribution Date, the Servicer shall instruct the Indenture
Trustee in writing to distribute the amount of such excess to the Certificate Payment Account for payment to the Certificateholders. The Indenture Trustee and the Owner Trustee hereby release, on each Distribution Date, their security interest in,
to and under Reserve Account Property distributed to the Certificateholders. 
  
 (e) If the Note Balance, and all other amounts owing or to be distributed hereunder or under the Indenture or the Trust Agreement to the Noteholders, or the Certificateholders, have been paid in full and the Trust has
been terminated, any remaining Reserve Account Property shall be distributed to the Certificateholders. 
  
 SECTION 4.8 Net Deposits. As an administrative convenience, unless the Servicer is required to remit collections on a daily basis pursuant to the
first sentence of Section 4.2, the Depositor and the Servicer may make any remittance pursuant to this Article IV with respect to a Collection Period net of distributions or reimbursements to be made to the Depositor or the Servicer with respect to
such Collection Period; provided, however, that such obligations shall remain separate obligations, no party shall have a right of offset and each such party shall account for all of the above described remittances and distributions as
if the amounts were deposited and/or transferred separately. 
  
 SECTION 4.9 Statements to Noteholders and Certificateholders. On or prior to each Distribution Date, the Servicer shall provide to the Indenture Trustee (with copies to the Depositor, the Rating Agencies and each Paying Agent), for
the Indenture Trustee to forward to each Noteholder of record as of the most recent Record Date and to the Owner Trustee (with copies to the Depositor, the Rating Agencies and each Paying Agent) for the Owner Trustee to forward to each
Certificateholder of record as of the most recent Record Date, a statement in substantially the form of Exhibit B or Exhibit C, as applicable. Each such statement shall set forth at least the following information as to the Notes and the
Certificates (to the extent applicable) with respect to the distribution to be made on such Distribution Date: 
  
 (i) the amount of such distribution allocable to principal for each Class of Notes; 
  
 (ii) the Priority Principal Distributable Amount for such
Distribution Date; 
  
 (iii) the Secondary
Principal Distributable Amount for such Distribution Date; 
  

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 (iv) the Tertiary Principal Distributable Amount for such Distribution Date; 

 
 (v) the Regular Principal Distributable Amount for such
Distribution Date; 
  
 (vi) the amount of such
distribution allocable to current and overdue interest (including any interest on overdue interest) for each Class of Notes; 
  
 (vii) the Total Servicing Fee for the preceding Collection Period; 
  
 (viii) the aggregate outstanding principal balance of each Class of Notes and the Note Pool Factor with
respect to each Class of Notes (in each case after giving effect to payments allocated to principal reported under clause (i) above); 
  
 (ix) the Pool Balance as of the close of business on the last day of the preceding Collection Period; 
  
 (x) the Reserve Account Amount on such Distribution Date
(after giving effect to all deposits to or withdrawals from the Reserve Account on such Distribution Date); 
  
 (xi) the aggregate Purchase Amount of Receivables repurchased by the Depositor or purchased by the Servicer, if any, with respect to the
preceding Collection Period; 
  
 (xii) the number
and aggregate Principal Balance of Receivables that were 31-60 days, 61-90 days or 91 days or more delinquent as of the last day of the preceding Collection Period; 
  
 (xiii) the Net Losses with respect to the preceding Collection Period; 
  
 (xiv) the Overcollateralization Target Amount for such
Distribution Date and the amount by which the Pool Balance exceeds the Note Balance as of such Distribution Date (after giving effect to any payments made to the Holders of the Notes on such Distribution Date); 
  
 (xv) the amount of Available Collections for the preceding
Collection Period; and 
  
 (xvi) the amount of
Excess Collections with respect to such Distribution Date. 
  
 SECTION 4.10 Control of Securities Accounts. Notwithstanding anything to the contrary contained herein, the Trust agrees that each of the Collection Account, the Note Payment Account, the Certificate Payment Account and the Reserve
Account will only be established at an Eligible Institution that agrees substantially as follows: (i) it will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the Relevant UCC) relating to such accounts issued by the
Indenture Trustee without further consent by the Trust; (ii) until the 

  

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termination of the Indenture, it will not enter into any other agreement relating to any such account pursuant to which it agrees to comply with entitlement
orders of any Person other than the Indenture Trustee; and (iii) all assets delivered or credited to it in connection with such accounts and all investments thereof will be promptly credited to such accounts. 
  
 ARTICLE V 
 [RESERVED] 
  
 ARTICLE VI 
 THE DEPOSITOR 
  
 SECTION 6.1 Representations and Warranties of Depositor. The Depositor makes the following representations and warranties on which the Trust shall
be deemed to have relied in accepting the Trust Property. The representations and warranties speak as of the execution and delivery of this Agreement and shall survive the sale, transfer, assignment and conveyance of the Trust Property to the Trust
pursuant to this Agreement and the pledge of the Trust Property to the Indenture Trustee pursuant to the Indenture: 
  
 (a) Organization and Good Standing. The Depositor has been duly organized and is validly existing as a limited liability company in good standing
under the laws of the State of Delaware, has the power, authority and legal right to own its properties and to conduct its business as such properties are currently owned and such business is currently conducted, and has the power, authority and
legal right to acquire, own and sell the Receivables. 
  
 (b)
Due Qualification. The Depositor is duly qualified to do business as a foreign limited liability company in good standing and has obtained all necessary licenses and approvals in each jurisdiction in which the failure to so qualify or to
obtain such licenses and approvals would, in the reasonable judgment of the Depositor, materially and adversely affect the performance by the Depositor of its obligations under, or the validity or enforceability of, this Agreement, any of the other
Transaction Documents to which the Depositor is a party, the Receivables, the Notes or the Certificates. 
  
 (c) Power and Authority. The Depositor has the power and authority to execute, deliver and perform its obligations under this Agreement and the
other Transaction Documents to which it is a party. The Depositor has the power and authority to sell, assign, transfer and convey the property to be transferred to and deposited with the Trust and has duly authorized such transfer and deposit by
all necessary limited liability company action, and the execution, delivery and performance of this Agreement and the other Transaction Documents to which the Depositor is a party have been duly authorized by the Depositor by all necessary limited
liability company action. 
  
 (d) Valid Transfer; Binding
Obligation. This Agreement effects a valid sale, transfer, assignment and conveyance to the Trust of the Receivables and the other Trust Property enforceable against all creditors of and purchasers from the Depositor. This Agreement and the
other Transaction Documents to which the Depositor is a party constitute legal, valid and binding obligations of the Depositor, enforceable against the Depositor in accordance with their terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, 

  

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conservatorship, receivership, liquidation and other similar laws and to general equitable principles. 
  
 (e) No Violation. The execution, delivery and performance by the
Depositor of this Agreement and the other Transaction Documents to which the Depositor is a party, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms hereof and thereof will not conflict with,
result in a breach of any of the terms and provisions of or constitute (with or without notice or lapse of time or both) a default under the certificate of formation or limited liability company agreement of the Depositor or any material indenture,
agreement, mortgage, deed of trust or other instrument to which the Depositor is a party or by which the Depositor is bound or to which any of its properties are subject, or result in the creation or imposition of any lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to this Agreement), or violate any law, order, rule or regulation applicable to the Depositor or its properties of any federal
or state regulatory body, court, administrative agency or other governmental instrumentality having jurisdiction over the Depositor or any of its properties. 
  
 (f) No Proceedings. There are no proceedings or investigations pending or, to the knowledge of the Depositor, threatened against the Depositor
before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Depositor or its properties (i) asserting the invalidity of this Agreement, the Indenture, the Trust Agreement, any of the
other Transaction Documents, the Notes or the Certificates, (ii) seeking to prevent the issuance of the Notes or the Certificates or the consummation of any of the transactions contemplated by this Agreement, the Indenture, the Trust Agreement or
any of the other Transaction Documents, (iii) seeking any determination or ruling that, in the reasonable judgment of the Depositor, would materially and adversely affect the performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, the Trust Agreement, any of the other Transaction Documents, the Receivables, the Notes or the Certificates, or (iv) that, in the reasonable judgment of the Depositor, would adversely affect the
federal or Applicable Tax State income, excise, franchise or similar tax attributes of the Trust or of the Notes or the Certificates. 
  
 SECTION 6.2 Liability of Depositor; Indemnities. 
  
 (a) The Depositor shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Depositor under this
Agreement. 
  
 (b) The Depositor shall indemnify, defend and hold
harmless the Trust, the Owner Trustee and the Indenture Trustee from and against any taxes that may at any time be asserted against any such Person with respect to, and as of the date of, the transfer of the Receivables to the Trust or the issuance
and original sale of the Notes or the Certificates, including any sales, gross receipts, general corporation, tangible personal property, privilege or license taxes (but, in the case of the Trust, not including any taxes asserted with respect to
ownership of the Receivables or federal or other Applicable Tax State income taxes arising out of the transactions contemplated by this Agreement and the other Transaction Documents), and all costs and expenses in defending against such taxes.

  

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 (c) The Depositor shall indemnify, defend and hold harmless the Trust, the Owner Trustee, the Indenture
Trustee, the Noteholders and the Certificateholders from and against any loss, liability or expense incurred by reason of (i) the Depositor’s willful misfeasance, bad faith or gross negligence in the performance of its duties under this
Agreement or any other Transaction Document to which it is a party or by reason of a reckless disregard of its obligations and duties under this Agreement or any other Transaction Document to which it is a party and (ii) the Depositor’s
violation of federal or state securities laws in connection with the registration or the sale of the Notes. 
  
 (d) The Depositor shall indemnify, defend and hold harmless the Owner Trustee and the Indenture Trustee and their respective officers, directors,
employees and agents from and against all costs, expenses, losses, claims, damages and liabilities arising out of or incurred in connection with the acceptance or performance of the trusts and duties contained herein and in the Trust Agreement, in
the case of the Owner Trustee, and in the Indenture, in the case of the Indenture Trustee, except to the extent that such cost, expense, loss, claim, damage or liability (i) shall be due to the willful misfeasance, bad faith or gross negligence
(except for errors in judgment) of the Owner Trustee or the Indenture Trustee, as applicable, (ii) in the case of the Owner Trustee, shall arise from the breach by the Owner Trustee of any of its representations or warranties set forth in the Trust
Agreement, (iii) in the case of the Indenture Trustee, shall arise from the breach by the Indenture Trustee of any of its representations and warranties set forth in the Indenture or (iv) relates to any tax other than the taxes with respect to which
either the Depositor or the Servicer shall be required to indemnify the Owner Trustee or the Indenture Trustee, as applicable. 
  
 (e) The Depositor shall pay any and all taxes levied or assessed upon all or any part of the Owner Trust Estate. 
  
 Indemnification under this Section 6.2 shall survive the resignation or
removal of the Owner Trustee or the Indenture Trustee and the termination of this Agreement and shall include reasonable fees and expenses of counsel and expenses of litigation. If the Depositor shall have made any indemnity payments pursuant to
this Section 6.2 and the Person to or on behalf of whom such payments are made thereafter shall collect any of such amounts from others, such Person shall promptly repay such amounts to the Depositor, without interest. Notwithstanding anything to
the contrary contained herein, the Depositor shall only be required to pay (i) any fees, expenses, indemnities or other liabilities that it may incur under the Transaction Documents from funds available pursuant to, and in accordance with, the
payment priorities set forth in this Agreement and (ii) to the extent the Depositor has additional funds available (other than funds described in the preceding clause (i)) that would be in excess of amounts that would be necessary to pay the debt
and other obligations of the Depositor in accordance with the Depositor’s certificate of formation, operating agreement and all financing documents to which the Depositor is a party. The agreement set forth in the preceding sentence shall
constitute a subordination agreement for purposes of Section 510(a) of the Bankruptcy Code. In addition, no amount owing by the Depositor hereunder in excess of liabilities that it is required to pay in accordance with the preceding sentence shall
constitute a “claim” (as defined in Section 101(5) of the Bankruptcy Code) against it. 
  

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 SECTION 6.3 Merger or Consolidation of, or Assumption of the Obligations of, Depositor. Any Person
(i) into which the Depositor shall be merged or consolidated, (ii) resulting from any merger, conversion or consolidation to which the Depositor shall be a party or (iii) that shall succeed by purchase and assumption to all or substantially all of
the business of the Depositor, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Depositor under this Agreement, shall be the successor to the Depositor under this Agreement without the
execution or filing of any other document or any further act on the part of any of the parties to this Agreement; provided, however, that (x) the Depositor shall have delivered to the Owner Trustee and the Indenture Trustee an
Officer’s Certificate and an Opinion of Counsel each stating that such merger, conversion, consolidation or succession and such agreement of assumption comply with this Section 6.3, (y) the Depositor shall have delivered to the Owner Trustee
and the Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion of such counsel, all financing statements and continuation statements and amendments thereto have been authorized and filed that are necessary to fully preserve
and protect the interest of the Trust and the Indenture Trustee, respectively, in the Receivables, and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given, or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to fully preserve and protect such interest and (z) the Rating Agency Condition shall have been satisfied. Notwithstanding anything to the contrary contained herein, the execution of the
foregoing agreement of assumption and compliance with clauses (x), (y) and (z) above shall be conditions to the consummation of the transactions referred to in clauses (i), (ii) and (iii) above. 
  
 SECTION 6.4 Limitation on Liability of Depositor and Others.

  
 (a) Neither the Depositor nor any of the directors, officers,
employees or agents of the Depositor shall be under any liability to the Trust, the Noteholders or the Certificateholders for any action taken or for refraining from the taking of any action pursuant to this Agreement or for errors in judgment;
provided, however, that this provision shall not protect the Depositor or any such Person against any liability that would otherwise be imposed by reason of willful misfeasance or bad faith in the performance of duties or by reason of
reckless disregard of obligations and duties under this Agreement, or by reason of gross negligence in the performance of duties under this Agreement (except for errors in judgment). The Depositor, and its directors, officers, employees and agents,
may rely in good faith on the advice of counsel or on any document of any kind prima facie properly executed and submitted by any Person in respect of any matters arising under this Agreement. 
  
 (b) The Depositor shall not be under any obligation to appear in, prosecute
or defend any legal action that shall not be incidental to its obligations under this Agreement and that in its opinion may involve it in any expense or liability. 
  
 SECTION 6.5 Depositor May Own Notes or Certificates. The Depositor, and any Affiliate of the Depositor, may, in its
individual or any other capacity, become the owner or pledgee of Notes or Certificates with the same rights as it would have if it were not the Depositor or an Affiliate of the Depositor, except as otherwise expressly provided herein (including in
the definitions of “Note Balance”) or in the other 

  

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Transaction Documents. Except as otherwise expressly provided herein (including the definition of “Note Balance”) or in the other Transaction
Documents, Notes and Certificates so owned by or pledged to the Depositor or such Affiliate shall have an equal and proportionate benefit under the provisions of this Agreement and the other Transaction Documents, without preference, priority or
distinction as among the Notes and the Certificates. 
  
 SECTION
6.6 [RESERVED]. 
  
 SECTION 6.7 Certain Limitations.

  
 (a) The purpose of the Depositor shall be limited to the
conduct or promotion of the following activities: (i) to acquire, lease, own, hold, sell, transfer, convey, dispose of, pledge, assign, borrow money against, grant a security interest in, finance, refinance or otherwise deal with, publicly or
privately and whether with unrelated third parties or with affiliated entities, automotive installment sale contracts and service contracts originated or acquired by CarMax or its Affiliates or interests therein, the related motor vehicles or
interests therein and the related documentation and monies due or to become due thereunder, proceeds from claims on insurance policies related thereto and all related rights and the proceeds of any of the foregoing (collectively, the
“Assets”), (ii) to perform its obligations under the Basic Documents (as defined in the limited liability company agreement of the Depositor (the “LLC Agreement”)), (iii) to act as settlor or grantor of one or more
trusts or special purpose entities (each, a “Securitization Trust”) formed pursuant to a trust agreement or other agreement, which Securitization Trust may issue one or more series or classes of certificates, bonds, notes or other
evidences of interest or indebtedness (collectively, “Securities”) secured by or representing beneficial interests in the Assets, (iv) to acquire Securities or other property of a Securitization Trust (including remainder interests
in collateral or reserve accounts) or any interest in any of the foregoing, (v) to cause the issuance of, authorize, sell and deliver Securities or other instruments secured or collateralized by Securities, (vi) to own equity interests in other
limited liability companies or partnerships whose purposes are substantially restricted to those described in clauses (i) through (v) above, (vii) to borrow money other than pursuant to clause (i) above, but only to the extent that such borrowing is
permitted by the terms of the transactions contemplated by clauses (i) through (vi) above, (viii) to loan or otherwise invest funds received as a result of the Depositor’s interest in any Securitization Trust or Securities and any other income,
as determined by the Member (as defined in the LLC Agreement) of the Depositor from time to time, and (ix) to (A) negotiate, authorize, execute, deliver or assume or perform the obligations under any agreement, instrument or document relating to the
activities set forth in clauses (i) through (viii) above, including the Basic Documents (as defined in the LLC Agreement) and (B) engage in any lawful act or activity and to exercise any powers permitted to limited liability companies organized
under the laws of the State of Delaware that are incidental to and necessary, convenient or advisable for the accomplishment of the above-mentioned purposes, including the entering into of (x) interest rate or basis swap, cap, floor or collar
agreements, currency exchange agreements or similar hedging transactions, (y) any agreement providing for the funding of any amount due under any of the Securities through direct borrowings, letters of credit, insurance or otherwise and (z)
referral, management, servicing and administration agreements. Capitalized terms used in the following sentence, other than the terms “Depositor” and “LLC Agreement”, have the respective meanings assigned to them in the LLC
Agreement. So long as any Obligation is outstanding, the Depositor shall not (i) except as contemplated in the Basic Documents, guarantee any obligation of any Person, including any Affiliate, (ii) engage, directly or indirectly, in any business
other than the 

  

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activities required or permitted to be performed under Article Three of the LLC Agreement, the Basic Documents or Section 4.10 of the LLC Agreement, (iii)
incur, create or assume any indebtedness other than as expressly permitted under Article Three of the LLC Agreement, the Basic Documents or Section 4.10 of the LLC Agreement, (iv) make or permit to remain outstanding any loan or advance to, or own
or acquire any stock or securities of, any Person, except that the Depositor may invest in those investments permitted under Article Three of the LLC Agreement, the Basic Documents or Section 4.10 of the LLC Agreement and may make any advance
required or expressly permitted to be made pursuant to any provision of Article Three of the LLC Agreement, the Basic Documents or Section 4.10 of the LLC Agreement and permit the same to remain outstanding in accordance with such provisions, (v) to
the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of Article Three of the
LLC Agreement, the Basic Documents or Section 4.10 of the LLC Agreement or (vi) except as contemplated by Article Three of the LLC Agreement or the Basic Documents, form, acquire or hold any subsidiary (whether a corporation, partnership, limited
liability company or other entity). 
  
 (b) Notwithstanding any
other provision of this Section and any provision of law, the Depositor shall not do any of the following: 
  
 (i) engage in any business or activity other than as set forth in clause (a) above; or 
  
 (ii) without the unanimous written consent of the members of
the Depositor and the members of the Board of Directors of the Depositor (including all independent directors of the Depositor), (A) consolidate or merge the Depositor with or into any Person or sell all or substantially all of the assets of the
Depositor, (B) institute proceedings to have the Depositor be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against Depositor, (C) file a petition seeking, or consent to, reorganization or
relief with respect to the Depositor under any applicable federal or state law relating to bankruptcy, (D) consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Depositor or a
substantial part of its property, (E) make any assignment for the benefit of creditors of the Depositor, (F) admit in writing the Depositor’s inability to pay its debts generally as they become due, (G) take any action in furtherance of any
action set forth in clauses (A) through (F) above or (H) to the fullest extent permitted by law, dissolve or liquidate the Depositor. 
  
 (c) The Depositor shall not amend its organizational documents except in accordance with the provisions thereof. 
  

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 ARTICLE VII 
 THE SERVICER 
  
 SECTION 7.1
Representations and Warranties of Servicer. The Servicer makes the following representations and warranties on which the Trust shall be deemed to have relied in accepting the Trust Property. The representations and warranties speak as of the
execution and delivery of this Agreement and shall survive the sale, transfer, assignment and conveyance of the Trust Property to the Trust pursuant to this Agreement and the pledge of the Trust Property to the Indenture Trustee pursuant to the
Indenture: 
  
 (a) Organization and Good Standing. The
Servicer has been duly organized and is validly existing as a corporation in good standing under the laws of the state of its incorporation, has the power, authority and legal right to own its properties and to conduct its business as such
properties are currently owned and such business is currently conducted and has the power, authority and legal right to acquire, own, sell and service the Receivables and to hold the Receivable Files as custodian on behalf of the Trust. 

 
 (b) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing and has obtained all necessary licenses and approvals in each jurisdiction in which the failure to so qualify or to obtain such licenses and approvals would, in the reasonable judgment of the
Depositor, materially and adversely affect the performance by the Depositor of its obligations under, or the validity or enforceability of, this Agreement, the Indenture, the Trust Agreement, any of the other Transaction Documents, the Receivables,
the Notes or the Certificates. 
  
 (c) Power and Authority.
The Servicer has the power and authority to execute, deliver and perform its obligations under this Agreement and the other Transaction Documents to which it is a party, and the execution, delivery and performance of this Agreement and the other
Transaction Documents to which the Servicer is a party have been duly authorized by the Servicer by all necessary corporate action. 
  
 (d) Binding Obligation. This Agreement and the other Transaction Documents to which the Servicer is a party constitute legal, valid and binding
obligations of the Servicer, enforceable against the Servicer in accordance with their terms, subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, conservatorship, receivership, liquidation and other similar laws and
to general equitable principles. 
  
 (e) No Violation. The
execution, delivery and performance by the Servicer of this Agreement and the other Transaction Documents to which the Servicer is a party, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms hereof
and thereof will not conflict with, result in a breach of any of the terms and provisions of or constitute (with or without notice or lapse of time or both) a default under the articles of incorporation or bylaws of the Servicer or any material
indenture, agreement, mortgage, deed of trust or other instrument to which the Servicer is a party or by which the Servicer is bound or to which any of its properties are subject, or result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument, or violate any law, order, rule or 

  

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regulation applicable to the Servicer or its properties of any federal or state regulatory body, court, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or any of its properties. 
  
 (f) No Proceedings. There are no proceedings or investigations pending, or, to the knowledge of the Servicer, threatened, against the Servicer before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over the Servicer 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 Servicer would materially and adversely affect the performance by the Servicer of its obligations under, or the validity or enforceability of, this Agreement or the
Receivables. 
  
 (g) Security Interest Matters. The
Servicer has in its possession all original copies of the motor vehicle retail installment sale contracts that constitute or evidence the Receivables. 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. 
  
 SECTION 7.2 Liability of Servicer; Indemnities. 
  
 (a) The Servicer shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the
Servicer under this Agreement. 
  
 (b) The Servicer shall
indemnify, defend and hold harmless the Trust, the Owner Trustee, the Indenture Trustee, the Noteholders, the Certificateholders and the Depositor from and against all costs, expenses, losses, claims, damages and liabilities arising out of or
incurred in connection with the use, ownership or operation by the Servicer or any Affiliate of the Servicer of a Financed Vehicle. 
  
 (c) The Servicer shall indemnify, defend and hold harmless the Trust, the Owner Trustee and the Indenture Trustee from and against any taxes that may at
any time be asserted against any such Person with respect to the transactions contemplated in this Agreement or the other Transaction Documents, including any sales, gross receipts, general corporation, tangible personal property, privilege or
license taxes (but, in the case of the Trust, not including any taxes asserted with respect to, and as of the date of, the transfer of the Receivables to the Trust or the issuance and original sale of the Notes or the Certificates or asserted with
respect to ownership of the Receivables or federal or other Applicable Tax State income taxes arising out of the transactions contemplated by this Agreement and the other Transaction Documents), and all costs and expenses in defending against such
taxes. 
  
 (d) The Servicer shall indemnify, defend and hold
harmless the Trust, the Owner Trustee, the Indenture Trustee, the Noteholders, the Certificateholders and the Depositor from and against any loss, liability or expense incurred by reason of the Servicer’s willful misfeasance, bad faith or gross
negligence in the performance of its duties under this Agreement or any other Transaction Document to which it is a party or by reason of a reckless disregard of 

  

 47 








 
its obligations and duties under this Agreement or any other Transaction Document to which it is a party. 
  
 (e) The Servicer shall indemnify, defend and hold harmless the Owner Trustee
and the Indenture Trustee and their respective officers, directors, employees and agents from and against all costs, expenses, losses, claims, damages and liabilities arising out of or incurred in connection with the acceptance or performance of the
trusts and duties contained herein and in the Trust Agreement, in the case of the Owner Trustee, and in the Indenture, in the case of the Indenture Trustee, except to the extent that such cost, expense, loss, claim, damage or liability (i) shall be
due to the willful misfeasance, bad faith or gross negligence (except for errors in judgment) of the Owner Trustee or the Indenture Trustee, as applicable, (ii) in the case of the Owner Trustee, shall arise from the breach by the Owner Trustee of
any of its representations or warranties set forth in the Trust Agreement, (iii) in the case of the Indenture Trustee, shall arise from the breach by the Indenture Trustee of any of its representations and warranties set forth in the Indenture or
(iv) relates to any tax other than the taxes with respect to which either the Depositor or the Servicer shall be required to indemnify the Owner Trustee or the Indenture Trustee, as applicable. 
  
 (f) For purposes of this Section 7.2, in the event of a termination of the
rights and obligations of CarMax (or any successor Servicer) as Servicer pursuant to Section 8.1 or a resignation by CarMax (or any successor Servicer) as Servicer pursuant to Section 7.6, CarMax (or any successor Servicer) shall be deemed to be the
Servicer pending appointment of a successor Servicer (other than the Indenture Trustee) pursuant to Section 8.2. Indemnification under this Section 7.2 by CarMax (or any successor Servicer) as Servicer, with respect to the period such Person was (or
was deemed to be) the Servicer, shall survive the termination of such Person as Servicer or a resignation by such Person as Servicer as well as the resignation or removal of the Owner Trustee or the Indenture Trustee and the termination of this
Agreement and shall include reasonable fees and expenses of counsel and expenses of litigation and the fees and expenses of the Owner Trustee and the Indenture Trustee. If the Servicer shall have made any indemnity payments pursuant to this Section
7.2 and the Person to or on behalf of whom such payments are made thereafter shall collect any of such amounts from others, such Person shall promptly repay such amounts to the Servicer, without interest. 
  
 SECTION 7.3 Merger or Consolidation of, or Assumption of the Obligations
of, Servicer. Any Person (i) into which the Servicer shall be merged or consolidated, (ii) resulting from any merger, conversion or consolidation to which the Servicer shall be a party or (iii) that shall succeed by purchase and assumption to
all or substantially all of the business of the Servicer, which Person in any of the foregoing cases is an Eligible Servicer and executes an agreement of assumption to perform every obligation of the Servicer under this Agreement, shall be the
successor to the Servicer under this Agreement without the execution or filing of any other document or any further act on the part of any of the parties to this Agreement; provided, however, that (x) the Servicer shall have delivered
to the Depositor, the Owner Trustee and the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such merger, conversion, consolidation or succession and such agreement of assumption comply with this Section
7.3 and (y) the Servicer shall have delivered to the Depositor, the Owner Trustee and the Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion of such counsel, all financing statements and continuation statements and
amendments thereto have been 

  

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authorized and filed that are necessary to fully preserve and protect the interest of the Trust and the Indenture Trustee, respectively, in the Receivables,
and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given, or (B) stating that, in the opinion of such counsel, no such action shall be necessary to fully preserve and protect such interest.
The Servicer shall provide prior written notice of any merger, conversion, consolidation or succession pursuant to this Section 7.3 to the Rating Agencies. Notwithstanding anything to the contrary contained herein, the execution of the foregoing
agreement of assumption and compliance with clauses (x) and (y) above shall be conditions to the consummation of the transactions referred to in clauses (i), (ii) and (iii) above. 
  
 SECTION 7.4 Limitation on Liability of Servicer and Others. 
  
 (a) Neither the Servicer nor any of the directors, officers, employees or
agents of the Servicer shall be under any liability to the Trust, the Noteholders or the Certificateholders for any action taken or for refraining from the taking of any action pursuant to this Agreement or for errors in judgment; provided,
however, that this provision shall not protect the Servicer or any such Person against any liability that would otherwise be imposed by reason of willful misfeasance or bad faith in the performance of duties or by reason of reckless disregard
of obligations and duties under this Agreement, or by reason of negligence in the performance of duties under this Agreement (except for errors in judgment). The Servicer, and its directors, officers, employees and agents, may rely in good faith on
the advice of counsel or on any document of any kind prima facie properly executed and submitted by any Person in respect of any matters arising under this Agreement. 
  
 (b) The Servicer shall not be under any obligation to appear in, prosecute or defend any legal action that shall not be
incidental to its duties to service the Receivables in accordance with this Agreement and that in its opinion may involve it in any expense or liability; provided, however, that the Servicer may undertake any reasonable action that it
may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties to this Agreement and the interests of the Noteholders and the Certificateholders under this Agreement. In such event, the legal expenses and costs
of such action and any liability resulting therefrom shall be expenses, costs and liabilities of the Servicer. 
  
 SECTION 7.5 Delegation of Duties. The Servicer may at any time delegate its duties as servicer under this Agreement to third parties;
provided, however, that no such delegation shall relieve the Servicer of its responsibilities with respect to such duties and the Servicer shall be solely responsible for the fees of any such third party. 
  
 SECTION 7.6 Servicer Not to Resign. Subject to the provisions of
Section 7.3, the Servicer shall not resign from its obligations and duties under this Agreement except (i) upon a determination that the performance of its duties is no longer permissible under applicable law or (ii) upon the appointment of a
successor Servicer and satisfaction of the Rating Agency Condition with respect to such resignation and appointment. Any such determination permitting the resignation of the Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the Depositor, the Owner Trustee and the Indenture Trustee. No such resignation shall become effective until the Indenture Trustee or a successor Servicer shall have (i) assumed 

  

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the obligations and duties of the Servicer in accordance with Section 8.2 and (ii) become the Administrator under the Administration Agreement pursuant to
Section 8 thereof. 
  
 SECTION 7.7 Servicer May Own Notes or
Certificates. The Servicer, and any Affiliate of the Servicer, may, in its individual or any other capacity, become the owner or pledgee of Notes or Certificates with the same rights as it would have if it were not the Servicer or an Affiliate
of the Servicer, except as otherwise expressly provided herein (including in the definitions of “Note Balance”) or in the other Transaction Documents. Except as otherwise expressly provided herein (including in the definitions of
“Note Balance”) or in the other Transaction Documents, Notes and Certificates so owned by or pledged to the Servicer or such Affiliate shall have an equal and proportionate benefit under the provisions of this Agreement and the other
Transaction Documents, without preference, priority or distinction as among the Notes and the Certificates. 
  
 ARTICLE VIII 
 SERVICING TERMINATION 
  
 SECTION 8.1 Events of Servicing Termination. 
  
 (a) The occurrence of any one of the following events shall constitute an
event of servicing termination hereunder (each, an “Event of Servicing Termination”): 
  
 (i) any failure by the Servicer to deliver to the Owner Trustee or the Indenture Trustee the Servicer’s Certificate for any
Collection Period, which failure shall continue unremedied beyond the earlier of three (3) Business Days following the date such Servicer’s Certificate was required to be delivered and the Business Day preceding the related Distribution Date,
or any failure by the Servicer to make any required payment or deposit under this Agreement, which failure shall continue unremedied beyond the earlier of five (5) Business Days following the date such payment or deposit was due and, in the case of
a payment or deposit to be made no later than a Distribution Date or the Business Day preceding a Distribution Date, such Distribution Date or preceding Business Day, as applicable; or 
  
 (ii) any failure by the Servicer duly to observe or perform in any material respect any other covenant or
agreement in this Agreement, which failure shall materially and adversely affect the rights of the Depositor or the Noteholders and shall continue unremedied for a period of sixty (60) days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by the Depositor, the Owner Trustee or the Indenture Trustee or to the Depositor, the Seller, the Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Notes
evidencing not less than 25% of the Note Balance of the Controlling Class; or 
  
 (iii) any representation or warranty of the Servicer made in this Agreement or in any certificate delivered pursuant hereto or in connection herewith, other than any representation and warranty relating to a
Receivable that has been purchased by the Servicer, proving to have been incorrect in any material respect as of the time when the same shall have been made, and the circumstance or condition in respect of which such 

  

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representation or warranty was incorrect shall not have been eliminated or otherwise cured for a period of thirty (30) days after the date on which written
notice of such circumstance or condition, requiring the same to be eliminated or cured, shall have been given to the Servicer by the Depositor, the Owner Trustee or the Indenture Trustee or to the Depositor, the Seller, the Servicer, the Owner
Trustee and the Indenture Trustee by the Holders of Notes evidencing not less than 25% of the Note Balance of the Controlling Class; or 
  
 (iv) the entry of a decree or order by a court or agency or supervisory authority of competent jurisdiction for the appointment of a
conservator, receiver, liquidator or trustee for the Servicer in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceeding, or for the winding up or liquidation of its affairs, which decree or
order continues unstayed and in effect for a period of sixty (60) consecutive days; or 
  
 (v) the consent by the Servicer to the appointment of a conservator, receiver, liquidator or trustee in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar proceeding of or relating to the Servicer or relating to substantially all of its property, the admission in writing by the Servicer of its inability to pay its debts generally
as they become due, the filing by the Servicer of a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, the making by the Servicer of an assignment for the benefit of its creditors or the voluntary
suspension by the Servicer of payment of its obligations. 
  
 If
an Event of Servicing Termination shall have occurred and be continuing, the Indenture Trustee or the Holders of Notes evidencing not less than 51% of the Note Balance of the Controlling Class, in each case by notice then given in writing to the
Depositor and the Servicer (with a copy to the Indenture Trustee and the Owner Trustee if given by the Noteholders), may terminate all of the rights and obligations of the Servicer under this Agreement; provided, however, that the
indemnification obligations of the Servicer under Section 7.2 shall survive such termination. On or after the receipt by the Servicer of such written notice, all authority and power of the Servicer under this Agreement, whether with respect to the
Notes, the Certificates, the Trust Property or otherwise, shall pass to and be vested in the Indenture Trustee or a successor Servicer appointed under Section 8.2 and, without limitation, the Indenture Trustee and the Owner Trustee shall be
authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and endorsement of the Receivable Files or the certificates of title to the Financed Vehicles or otherwise. The Servicer shall cooperate with the Indenture Trustee, the Owner
Trustee and such successor Servicer in effecting the termination of its responsibilities and rights as Servicer under this Agreement, including the transfer to the Indenture Trustee or such successor Servicer for administration of all cash amounts
that are at the time held by the Servicer for deposit or thereafter shall be received with respect to a Receivable, all Receivable Files and all information or documents that the Indenture Trustee or such successor Servicer may require. In addition,
the Servicer shall transfer its electronic records relating to the Receivables to the successor Servicer in such electronic form as the successor Servicer may reasonably request. All reasonable costs 

  

 51 








 
and expenses (including reasonable attorneys’ fees) incurred or payable by the successor Servicer in connection with the transfer of servicing (whether
due to termination, resignation or otherwise), including allowable compensation of employees and overhead costs incurred or payable in connection with the transfer of the Receivable Files or any amendment to this Agreement required in connection
with the transfer of servicing, (the “Transition Costs”) shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of
reasonable documentation of such costs and expenses. 
  
 (b) The
Indenture Trustee and the Owner Trustee shall have no obligation to notify the Noteholders, the Certificateholders or any other Person of the occurrence of any event specified in Section 8.1(a) prior to the continuance of such event through the end
of any cure period specified in Section 8.1(a). 
  
 SECTION 8.2
Indenture Trustee to Act; Appointment of Successor Servicer. Upon the resignation of the Servicer pursuant to Section 7.6 or the termination of the Servicer pursuant to Section 8.1, the Indenture Trustee shall be the successor in all respects
to the Servicer in its capacity as Servicer under this Agreement and shall be subject to all the obligations and duties placed on the Servicer by the terms and provisions of this Agreement; provided, however, that the Indenture
Trustee, as successor Servicer or as successor Administrator, shall not, in any event, make any Simple Interest Advances pursuant to Section 4.4 and shall have no obligations pursuant to Section 3.8 with respect to the fees and expenses of the Owner
Trustee or the Indenture Trustee, the fees and expenses of the Owner Trustee’s attorneys or the Indenture Trustee’s attorneys, the fees and expenses of any custodian appointed by the Owner Trustee or the Indenture Trustee, the fees and
expenses of independent accountants or expenses incurred in connection with distributions and reports to the Certificateholders or the Noteholders. As compensation therefor, the Indenture Trustee shall be entitled to such compensation (whether
payable out of the Collection Account or otherwise) as the Servicer would have been entitled to under this Agreement if no such resignation or termination had occurred, except that all collections on or in respect of the Receivables shall be
deposited in the Collection Account within two (2) Business Days of receipt and shall not be retained by the Servicer. Notwithstanding the foregoing, the Indenture Trustee may, if it shall be unwilling so to act, or shall, if it is legally unable so
to act, appoint, or petition a court of competent jurisdiction to appoint, an Eligible Servicer as the successor to the terminated Servicer under this Agreement. In connection with such appointment, the Indenture Trustee may make such arrangements
for the compensation of such successor Servicer out of collections on or in respect of the Receivables as it and such successor shall agree; provided, however, that such compensation shall not be greater than that payable to CarMax as
Servicer hereunder without the prior consent of the Holders of Notes evidencing at least 51% of the Note Balance of the Controlling Class. The Indenture Trustee and such successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. The Indenture Trustee shall not be relieved of its duties as successor Servicer under this Section 8.2 until a newly appointed Servicer shall have assumed the obligations and duties of the terminated
Servicer under this Agreement. Notwithstanding anything to the contrary contained herein, in no event shall the Indenture Trustee be liable for any servicing fee or for any differential in the amount of the servicing fee paid hereunder and the
amount necessary to induce any successor Servicer to act as successor Servicer hereunder. 
  

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 SECTION 8.3 Effect of Servicing Transfer. 
  
 (a) After a transfer of servicing hereunder, the Indenture Trustee or
successor Servicer shall notify the Obligors to make directly to the successor Servicer payments that are due under the Receivables after the effective date of such transfer. 
  
 (b) Except as provided in Section 8.2, after a transfer of servicing hereunder, the outgoing Servicer shall have no further
obligations with respect to the administration, servicing, custody or collection of the Receivables and the successor Servicer shall have all of such obligations, except that the outgoing Servicer will transmit or cause to be transmitted directly to
the successor Servicer for its own account, promptly on receipt and in the same form in which received, any amounts or items held by the outgoing Servicer (properly endorsed where required for the successor Servicer to collect any such items)
received as payments upon or otherwise in connection with the Receivables. 
  
 (c) Any successor Servicer shall provide the Depositor with access to the Receivable Files and to the successor Servicer’s records (whether written or automated) with respect to the Receivable Files. Such access
shall be afforded without charge, but only upon reasonable request and during normal business hours at the offices of the successor Servicer. Nothing in this Section 8.3 shall affect the obligation of the successor Servicer to observe any applicable
law prohibiting disclosure of information regarding the Obligors, and the failure of the Servicer to provide access to information as a result of such obligation shall not constitute a breach of this Section 8.3. 
  
 (d) Any transfer of servicing hereunder shall not constitute an assumption by
the related successor Servicer of any liability of the related outgoing Servicer arising out of any breach by such outgoing Servicer of such outgoing Servicer’s duties hereunder prior to such transfer of servicing. 
  
 SECTION 8.4 Notification to Noteholders, Certificateholders and Rating
Agencies. Upon any notice of an Event of Servicing Termination or upon any termination of, or any appointment of a successor to, the Servicer pursuant to this Article VIII, the Indenture Trustee shall give prompt written notice thereof to the
Noteholders and the Owner Trustee shall give prompt written notice thereof to the Certificateholders and to the Rating Agencies. 
  
 SECTION 8.5 Waiver of Past Events of Servicing Termination. The Holders of Notes evidencing not less than 51% of the Note Balance of the
Controlling Class may, on behalf of all Noteholders, waive any Event of Servicing Termination and its consequences, except an event resulting from the failure to make any required deposits to or payments from the Collection Account, the Note Payment
Account, the Certificate Payment Account, or the Reserve Account in accordance with this Agreement. Upon any such waiver of an Event of Servicing Termination, such event shall cease to exist, and shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or other event or impair any right arising therefrom, except to the extent expressly so waived. 
  
 SECTION 8.6 Repayment of Advances. If the identity of the Servicer shall change, the predecessor Servicer shall be
entitled to receive reimbursement for outstanding and 

  

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unreimbursed Simple Interest Advances made pursuant to Section 4.4 by the predecessor Servicer. 
  
 ARTICLE IX 
 TERMINATION 
  
 SECTION 9.1 Optional Purchase of All
Receivables. 
  
 (a) If, as of the last day of any Collection
Period, the Pool Balance shall be less than or equal to 10% of the initial Pool Balance, the Servicer shall have the option to purchase on the following Distribution Date the Owner Trust Estate, other than the Collection Account, the Note Payment
Account, the Certificate Payment Account or the Reserve Account. To exercise such option, the Servicer shall notify the Depositor, the Owner Trustee, the Indenture Trustee and the Rating Agencies no later than ten (10) days prior to the Distribution
Date on which such repurchase is to be effected and shall deposit into the Collection Account on the Business Day preceding such Distribution Date an amount equal to the aggregate Purchase Amount for the Receivables, plus the appraised value
of any other Trust Property, other than the Collection Account, the Note Payment Account, the Certificate Payment Account or the Reserve Account, such value to be determined by an appraiser mutually agreed upon by the Servicer, the Owner Trustee and
the Indenture Trustee; provided, however, that the Servicer shall not be permitted to exercise such option unless the amount to be deposited in the Collection Account pursuant to this Section 9.1(a) is at least equal to the sum of all
amounts due to the Servicer under this Agreement plus the Note Balance plus all accrued but unpaid interest (including any overdue interest) on the Notes plus all amounts due to the Servicer in any outstanding and unreimbursed
Simple Interest Advances and any outstanding and unreimbursed Unreimbursed Servicer Advances. Upon such payment, the Servicer shall succeed to and own all interests in and to the Trust. The aggregate Purchase Amount for such Distribution Date,
plus, to the extent necessary, all amounts in the Reserve Account, shall be used to make payments in full to the Noteholders in the manner set forth in Article IV. 
  
 (b) If, at the time the Servicer exercises its purchase option hereunder, the Servicer’s long-term unsecured debt has a
rating lower than investment grade by the Rating Agencies, the Servicer shall deliver to the Depositor, the Owner Trustee and the Indenture Trustee on such Distribution Date (i) a letter from an Independent investment bank or an Independent public
accountant to the effect that the price paid by the Servicer for the Receivables at the time of transfer pursuant to such purchase option represented a fair market price for such Receivables or (ii) a letter from the Rating Agencies to the effect
that no such letter is required. 
  
 (c) Following the
satisfaction and discharge of the Indenture and the payment in full of the principal of and interest on the Notes, the Certificateholders shall succeed to the rights of the Noteholders hereunder and the Indenture Trustee shall continue to carry out
its obligations hereunder with respect to the Certificateholders, including making distributions from the Collection Account in accordance with Section 4.6(d) and making withdrawals from the Reserve Account in accordance with Sections 4.6(b) and
4.7. 
  

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 ARTICLE X 
 MISCELLANEOUS PROVISIONS 
  
 SECTION 10.1 Amendment. 
  
 (a) This Agreement may
be amended from time to time by the Depositor, the Servicer and the Owner Trustee, on behalf of the Trust, with the consent of the Indenture Trustee, but without the consent of any of the Noteholders, to cure any ambiguity, to correct or supplement
any provision in this Agreement that may be inconsistent with any other provisions in this Agreement or any offering document used in connection with the initial offer and sale of the Notes or to add, change or eliminate any other provisions with
respect to matters or questions arising under this Agreement that are not inconsistent with the provisions of this Agreement; provided, however, that (i) no such amendment may materially adversely affect the interests of any Noteholder
and (ii) no such amendment will be permitted unless an Opinion of Counsel is delivered to the Depositor, the Owner Trustee and the Indenture Trustee to the effect that such amendment will not cause the Trust to be characterized for federal income
tax purposes as an association taxable as a corporation or otherwise have any material adverse impact on the federal income taxation of any Notes Outstanding or any Noteholder. 
  
 (b) This Agreement may also be amended from time to time by the Depositor, the Servicer and the Owner Trustee, on behalf of
the Trust, with the consent of the Indenture Trustee and the consent of the Holders of Notes evidencing at least 66 2/3% of the Note Balance of the Controlling Class, for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement, or of modifying in any manner the rights of the Noteholders; provided, however, that (x) no such amendment will be permitted unless an Opinion of Counsel is delivered to the
Depositor, the Owner Trustee and the Indenture Trustee to the effect that such amendment will not cause the Trust to be characterized for federal income tax purposes as an association taxable as a corporation or otherwise have any material adverse
impact on the federal income taxation of any Notes Outstanding or any Noteholder and (y) that no such amendment may: 
  
 (i) increase or reduce in any manner the amount of, or accelerate or delay the timing of, or change the allocation or priority 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 change any Note Rate, without the consent of all Noteholders adversely affected by such amendment;

  
 (ii) reduce the percentage of the Note
Balance of the Controlling Class the consent of the Holders of which is required for any amendment to this Agreement without the consent of all the Noteholders adversely affected by such amendment; or 
  
 (iii) modify or alter the definition of the term
“Required Reserve Account Amount” without the consent of all the Noteholders adversely affected by such amendment. 
  
 (c) An amendment to this Agreement shall be deemed not to materially adversely affect the interests of any Noteholder if (i) the Person requesting such
amendment 

  

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obtains and delivers to the Indenture Trustee and the Owner Trustee an Opinion of Counsel to that effect or (ii) the Rating Agency Condition is satisfied.

  
 (d) Prior to the execution of any amendment or consent
pursuant to Section 10.1, the Servicer shall provide written notification of the substance of such amendment or consent to each Rating Agency. 
  
 (e) Promptly after the execution of any amendment or consent pursuant to Section 10.1(b), the Owner Trustee shall furnish written notification of the
substance of such amendment or consent to each Certificateholder. It shall not be necessary for the consent of the Noteholders pursuant to Section 10.1(b) to approve the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents (and any other consents of the Noteholders provided for in this Agreement) and of evidencing the authorization of the execution thereof by the
Noteholders shall be subject to such reasonable requirements as the Owner Trustee and the Indenture Trustee may prescribe. 
  
 (f) Prior to the execution of any amendment pursuant to Section 10.1, the Depositor, the Owner Trustee and the Indenture Trustee shall be entitled to
receive and rely upon (i) an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and (ii) an Officer’s Certificate of the Servicer that all conditions precedent provided for in this
Agreement to the execution of such amendment have been complied with. The Owner Trustee or the Indenture Trustee may, but shall not be obligated to, enter into any such amendment which affects such Owner Trustee’s or Indenture Trustee’s
own rights, duties or immunities under this Agreement or otherwise. 
  
 (g) The representations and warranties set forth in Sections 2.3(m), 2.3(n) and Section 7.1(g) may not be amended or waived. 
  
 SECTION 10.2 Protection of Title to Trust. 
  
 (a) The Depositor or the Servicer, or both, shall authorize and file such financing statements and cause to be authorized and filed such continuation
statements, all in such manner and in such places as may be required by law fully to preserve, maintain and protect the interest of the Trust and the Indenture Trustee for the benefit of the Noteholders in the Receivables and the proceeds thereof.
The Depositor or the Servicer, or both, shall deliver (or cause to be delivered) to the Owner Trustee and the Indenture Trustee file-stamped copies of, or filing receipts for, any document filed as provided above as soon as available following such
filing. 
  
 (b) Neither the Depositor nor the Servicer shall
change its name, identity or organizational structure in any manner that would make any financing statement or continuation statement filed by the Depositor or the Servicer in accordance with Section 10.2(a) seriously misleading within the meaning
of Section 9-506 of the Relevant UCC, unless it shall have given the Owner Trustee and the Indenture Trustee at least sixty (60) days’ prior written notice thereof and shall have promptly filed such amendments to previously filed financing
statements or continuation statements or such new financing statements as may be necessary to continue the 

  

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perfection of the interest of the Trust and the Indenture Trustee for the benefit of the Noteholders in the Receivables and the proceeds thereof. 

 
 (c) Each of the Depositor and the Servicer shall give the Owner Trustee
and the Indenture Trustee at least sixty (60) days’ prior written notice of any change in its name, identity, organizational structure or jurisdiction of organization or any relocation of its principal place of business or chief executive
office if, as a result of such change or relocation, the applicable provisions of the Relevant UCC would require the filing of any amendment to any previously filed financing statement or continuation statement or of any new financing statement and
shall promptly file any such amendment, continuation statement or new financing statement. The Depositor shall at all times maintain its jurisdiction of organization, its principal place of business and its chief executive office within the United
States. The Servicer shall at all times maintain each office from which it shall service Receivables and each office at which the Receivable Files are located within the United States. 
  
 (d) The Servicer 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
and the amounts from time to time deposited in the Collection Account and the Reserve Account in respect of such Receivable. 
  
 (e) The Servicer shall maintain its computer systems so that, from and after the time of the transfer of the Receivables to the Trust pursuant to this
Agreement, the Servicer’s master computer records (including any back-up archives) that refer to a Receivable shall indicate clearly and unambiguously the interest of the Trust and the Indenture Trustee in such Receivable and that such
Receivable is owned by the Trust and has been pledged to the Indenture Trustee pursuant to the Indenture. Indication of the Trust’s and the Indenture Trustee’s interest in a Receivable shall be deleted from or modified on the
Servicer’s computer systems when, and only when, such Receivable shall have been paid in full or repurchased by the Depositor or purchased by the Servicer. 
  

(f) If at any time the Depositor or the Servicer 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 Servicer 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 Trust and has been pledged to the Indenture Trustee
(unless such Receivable has been paid in full or repurchased by the Depositor or purchased by the Servicer). 
  
 (g) The Servicer shall permit the Owner Trustee, the Indenture Trustee and their respective agents at any time during normal business hours to inspect,
audit and make copies of and abstracts from the Servicer’s records regarding any Receivable. 
  
 (h) If the Depositor has repurchased one or more Receivables from the Trust pursuant to Section 2.4 or the Servicer has purchased one or more Receivables
from the Trust 

  

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pursuant to Section 3.7, the Servicer shall, upon request, furnish to the Owner Trustee and the Indenture Trustee, within ten (10) Business Days, a list of
all Receivables (by contract number and name of Obligor) then held as part of the Trust, together with a reconciliation of such list to the Receivable Schedule and to each of the Servicer’s Certificates furnished before such request indicating
removal of Receivables from the Trust. 
  
 (i) The Servicer shall
deliver to the Depositor and the Depositor shall deliver to the Owner Trustee and the Indenture Trustee: 
  
 (1) promptly after the authorization and delivery of each amendment to any financing statement, an Opinion of Counsel either (A) stating
that, in the opinion of such counsel, all financing statements and continuation statements have been authorized and filed that are necessary fully to preserve and protect the interest of the Depositor (in the case of an opinion delivered by the
Servicer) or the Trust and the Indenture Trustee (in the case of an opinion delivered by the Depositor) in the Receivables, and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given, or (B)
stating that, in the opinion of such counsel, no such action shall be necessary to preserve and protect such interest; and 
  
 (2) within ninety (90) days after the beginning of each calendar year (beginning with the year 2005), an Opinion of Counsel, dated as of a
date during such 90-day period, either (A) stating that, in the opinion of such counsel, all financing statements and continuation statements have been authorized and filed that are necessary fully to preserve and protect the interest of the
Depositor (in the case of an opinion delivered by the Servicer) or the Trust and the Indenture Trustee (in the case of an opinion delivered by the Depositor) in the Receivables, and reciting the details of such filings or referring to prior Opinions
of Counsel in which such details are given, or (B) stating that, in the opinion of such counsel, no such action shall be necessary to preserve and protect such interest. 
  
 Each Opinion of Counsel referred to in clause (i)(1) or (i)(2) above shall specify any action necessary (as of the date of
such opinion) to be taken on or before March 31 of the following year to preserve and protect such interest. 
  
 (j) The Depositor shall, to the extent required by applicable law, cause the Notes to be registered with the Commission pursuant to Section 12(b) or
Section 12(g) of the Exchange Act within the time periods specified in such sections. 
  
 SECTION 10.3 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

  

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 SECTION 10.4 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 Depositor, at the following address: 4900
Cox Road, Suite 200, Glen Allen, Virginia 23060, Attention: Treasurer, (ii) in the case of the Seller or the Servicer, at the following address: 4900 Cox Road, Glen Allen, Virginia 23060, Attention: Treasury Department, (iii) in the case of the
Owner Trustee, at the related Corporate Trust Office, (iv) in the case of the Indenture Trustee, at the related Corporate Trust Office, (v) in the case of Moody’s, at the following address: Moody’s Investors Service, Inc., ABS Monitoring
Department, 99 Church Street, New York, New York 10007, and (vi) in the case of Standard & Poor’s, at the following address: Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., 55 Water Street, 43rd
Floor, New York, New York 10041, Attention: Asset Backed Surveillance Department. 
  
 SECTION 10.5 Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement, or of the Notes or the
Certificates, or the rights of the Holders thereof. 
  
 SECTION
10.6 Assignment. Notwithstanding anything to the contrary contained herein, except as provided in Sections 7.3 and 8.2 and as provided in the provisions of this Agreement concerning the resignation of the Servicer, this Agreement may not be
assigned by the Depositor or the Servicer without the prior written consent of the Owner Trustee, the Indenture Trustee and the Holders of Notes evidencing not less than 66 2/3% of the Note Balance of the Controlling Class. 
  
 SECTION 10.7 Further Assurances. The Depositor, the Servicer and the
Trust agree to do and perform, from time to time, any and all acts and to authorize and/or execute any and all further instruments required or reasonably requested by the Owner Trustee or the Indenture Trustee more fully to effect the purposes of
this Agreement, including the authorization of any financing statements or continuation statements relating to the Receivables for filing under the provisions of the Relevant UCC of any applicable jurisdiction. 
  
 SECTION 10.8 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Depositor, the Owner Trustee, the Indenture Trustee, the Noteholders or the Certificateholders, 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 provided in this
Agreement are cumulative and not exhaustive of any rights, remedies, powers and privileges provided by law. 
  
 SECTION 10.9 Third-Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto, the Owner Trustee, the
Noteholders, the Certificateholders and their respective successors and permitted assigns. Except as otherwise 

  

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provided in this Article X, no other Person shall have any right or obligation hereunder. The parties hereto hereby acknowledge and consent to the pledge of
this Agreement by the Trust to the Indenture Trustee for the benefit of the Noteholders pursuant to the Indenture. 
  
 SECTION 10.10 Actions by Noteholder or Certificateholders. 
  

(a) Wherever in this Agreement a provision is made that an action may be taken or a notice, demand or instruction given by the Noteholders or the
Certificateholders, such action, notice or instruction may be taken or given by any Noteholder or any Certificateholder, as applicable, unless such provision requires a specific percentage of the Noteholders or the Certificateholders. 
  
 (b) Any request, demand, authorization, direction, notice, consent, waiver or
other act by a Noteholder or a Certificateholder shall bind such Noteholder or Certificateholder and every subsequent Holder of such Note or Certificate issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or omitted to be done by the Owner Trustee, the Indenture Trustee or the Servicer in reliance thereon, whether or not notation of such action is made upon such Note or Certificate. 
  
 SECTION 10.11 Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which counterparts shall constitute but one and
the same instrument. 
  
 SECTION 10.12 No Bankruptcy
Petition. The Owner Trustee, the Indenture Trustee, the Trust and the Servicer each covenants and agrees that it will not at any time institute against, or join any other Person in instituting against, the Depositor or the Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other proceedings under any federal or state bankruptcy or similar law. This Section 10.12 shall survive the resignation or removal of the Owner Trustee under the Trust Agreement
and the Indenture Trustee under the Indenture and shall survive the termination of the Trust Agreement and the Indenture. 
  
 SECTION 10.13 Limitation of Liability of Owner Trustee and Indenture Trustee. 
  
 (a) Notwithstanding anything to the contrary contained herein, this Agreement has been countersigned by the Owner Trustee
not in its individual capacity but solely in its capacity as Owner Trustee of the Trust, 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 Trust 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 Trust. For all purposes of this Agreement, in the performance of
its duties or obligations hereunder or in the performance of any duties or obligations of the Trust 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 to the contrary
contained herein, this Agreement has been accepted 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 

  

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liability for the representations, warranties, covenants, agreements or other obligations of the Trust 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 Trust. 
  
 [SIGNATURE PAGES FOLLOW] 
  

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 IN WITNESS WHEREOF, the Trust, the Depositor and the Servicer 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 2004-1
		
	By:	 	THE BANK OF NEW YORK,
	 	 	 not in its individual capacity but solely
 as Owner
Trustee

		
	By:	 	 /s/ Anna Bourtman

	 	 	

	 	 	 Name: Anna Bourtman
 Title: Assistant Treasurer



  

			
	 CARMAX AUTO FUNDING LLC,
 as
Depositor

		
	By:	 	 /s/ Thomas W. Reedy

	 	 	

	 	 	 Name: Thomas W. Reedy
 Title: Treasurer



  

			
	 CARMAX AUTO SUPERSTORES, INC.,
 as
Servicer

		
	By:	 	 /s/ Keith D. Browning

	 	 	

	 	 	 Name: Keith D. Browning
 Title: Chief Financial Officer



  
 Accepted and agreed: 

 
 WELLS FARGO BANK, 
 NATIONAL ASSOCIATION, 
 not in its individual capacity 
 but solely as Indenture Trustee 
  

			
		
	By:	 	 /s/ Marianna C. Stershic

	 	 	

	 	 	 Name: Marianna C. Stershic
 Title: Vice President


  

 S-1