Amended and Restated Trust Agreement



 EXHIBIT 4.1 – AMENDED AND RESTATED TRUST AGREEMENT 
  
 [EXECUTION COPY] 
  
 CARMAX AUTO FUNDING LLC, 
 as Depositor, 
  
 THE BANK OF NEW YORK (DELAWARE),

 as Delaware Trustee 
  
 and 
  
 THE BANK OF NEW YORK, 
 as Owner Trustee 
  

  
 AMENDED AND RESTATED TRUST AGREEMENT 
 Dated as of October 1, 2004 
  

  









 TABLE OF CONTENTS 
  


					
	 	 	 	  	Page


	 ARTICLE I
 DEFINITIONS
	  	 
	SECTION 1.1	 	Definitions	  	1
	SECTION 1.2	 	Other Definitional Provisions	  	4
		
	 ARTICLE II
 ORGANIZATION OF THE TRUST
	  	 
			
	SECTION 2.1	 	Name	  	5
	SECTION 2.2	 	Office	  	5
	SECTION 2.3	 	Purposes and Powers	  	5
	SECTION 2.4	 	Appointment of Owner Trustee	  	6
	SECTION 2.5	 	Initial Capital Contribution of Owner Trust Estate	  	6
	SECTION 2.6	 	Declaration of Trust	  	6
	SECTION 2.7	 	Liability of Certificateholders	  	6
	SECTION 2.8	 	Title to Trust Property	  	6
	SECTION 2.9	 	Situs of Trust	  	7
	SECTION 2.10	 	Representations and Warranties of the Depositor	  	7
	SECTION 2.11	 	Federal Income Tax Matters	  	8
		
	 ARTICLE III
 CERTIFICATES AND TRANSFER OF INTERESTS
	  	 
			
	SECTION 3.1	 	Initial Ownership	  	9
	SECTION 3.2	 	The Certificates	  	9
	SECTION 3.3	 	Authentication of Certificates	  	9
	SECTION 3.4	 	Registration of Certificates; Transfer and Exchange of Certificates	  	9
	SECTION 3.5	 	Mutilated, Destroyed, Lost or Stolen Certificates	  	12
	SECTION 3.6	 	Persons Deemed Owners	  	12
	SECTION 3.7	 	Access to List of Certificateholders’ Names and Addresses	  	13
	SECTION 3.8	 	Maintenance of Office or Agency	  	13
	SECTION 3.9	 	Appointment of Paying Agent	  	13
		
	 ARTICLE IV
 ACTIONS BY OWNER TRUSTEE
	  	 
			
	SECTION 4.1	 	Prior Notice to Certificateholders with Respect to Certain Matters	  	14
	SECTION 4.2	 	Action by Certificateholders with Respect to Certain Matters	  	14
	SECTION 4.3	 	Action by Certificateholders with Respect to Bankruptcy	  	15
	SECTION 4.4	 	Restrictions on Certificateholders’ Power	  	15
	SECTION 4.5	 	Majority Control	  	15
	SECTION 4.6	 	Certain Litigation Matters	  	15

  

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	 ARTICLE V
 APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
	  	 
			
	SECTION 5.1	 	Establishment of Certificate Payment Account	  	15
	SECTION 5.2	 	Application of Trust Funds	  	16
	SECTION 5.3	 	Method of Payment	  	16
	SECTION 5.4	 	No Segregation of Monies; No Interest	  	17
	SECTION 5.5	 	Accounting and Reports to the Noteholders, Certificateholders, the Internal Revenue Service and Others	  	17
	SECTION 5.6	 	Signature on Returns; Tax Matters Partner	  	17
		
	 ARTICLE VI
 AUTHORITY AND DUTIES OF OWNER TRUSTEE
	  	 
			
	SECTION 6.1	 	General Authority	  	18
	SECTION 6.2	 	General Duties	  	18
	SECTION 6.3	 	Action upon Instruction	  	18
	SECTION 6.4	 	No Duties Except as Specified in this Agreement or in Instructions	  	19
	SECTION 6.5	 	No Action Except Under Specified Documents or Instructions	  	20
	SECTION 6.6	 	Restrictions	  	20
		
	 ARTICLE VII
 REGARDING THE OWNER TRUSTEE
	  	 
			
	SECTION 7.1	 	Acceptance of Trusts and Duties	  	20
	SECTION 7.2	 	Furnishing of Documents	  	22
	SECTION 7.3	 	Representations and Warranties	  	22
	SECTION 7.4	 	Reliance; Advice of Counsel	  	23
	SECTION 7.5	 	Not Acting in Individual Capacity	  	23
	SECTION 7.6	 	Owner Trustee Not Liable for Certificates or Receivables	  	23
	SECTION 7.7	 	Owner Trustee May Own Certificates and Notes	  	24
		
	 ARTICLE VIII
 COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE
	  	 
			
	SECTION 8.1	 	Owner Trustee’s Fees and Expenses	  	24
	SECTION 8.2	 	Indemnification	  	24
	SECTION 8.3	 	Payments to the Owner Trustee	  	25
		
	 ARTICLE IX
 TERMINATION
	  	 
			
	SECTION 9.1	 	Termination of Trust Agreement	  	25

  

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	 ARTICLE X
 SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
	  	 
			
	 SECTION 10.1
	  	Eligibility Requirements for Owner Trustee and Delaware Trustee	  	26
	 SECTION 10.2
	  	Resignation or Removal of Owner Trustee	  	26
	 SECTION 10.3
	  	Successor Owner Trustee	  	27
	 SECTION 10.4
	  	Merger or Consolidation of Owner Trustee	  	27
	SECTION 10.5	  	Appointment of Co-Trustee or Separate Trustee	  	28
	SECTION 10.6	  	Delaware Trustee	  	29
		
	 ARTICLE XI
 MISCELLANEOUS
	  	 
			
	SECTION 11.1	  	Supplements and Amendments	  	32
	SECTION 11.2	  	No Legal Title to Owner Trust Estate in Certificateholders	  	33
	SECTION 11.3	  	Limitation on Rights of Others	  	33
	SECTION 11.4	  	Notices	  	34
	SECTION 11.5	  	Severability	  	34
	SECTION 11.6	  	Separate Counterparts	  	34
	SECTION 11.7	  	Successors and Assigns	  	34
	SECTION 11.8	  	Covenants of the Depositor	  	34
	SECTION 11.9	  	No Petition	  	35
	SECTION 11.10	  	No Recourse	  	35
	SECTION 11.11	  	Headings	  	35
	SECTION 11.12	  	Governing Law	  	35
	SECTION 11.13	  	Depositor Payment Obligation	  	35
	SECTION 11.14	  	Certificates Nonassessable and Fully Paid	  	35
	SECTION 11.15	  	Ratification of Prior Actions	  	35
		
	EXHIBITS	  	 
			
	EXHIBIT A	  	Form of Certificate	  	 
	EXHIBIT B	  	Form of Certificate of Trust	  	 

  

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 AMENDED AND RESTATED TRUST AGREEMENT, dated as of October 1, 2004 (as amended, supplemented or otherwise
modified and in effect from time to time, this “Agreement”), among CARMAX AUTO FUNDING LLC, a Delaware limited liability company, as depositor (the “Depositor”), THE BANK OF NEW YORK (DELAWARE), a Delaware banking
corporation, as Delaware trustee and not in its individual capacity (in such capacity, the “Delaware Trustee”), and THE BANK OF NEW YORK, a New York banking corporation, as owner trustee and not in its individual capacity (in such
capacity, the “Owner Trustee”). 
  
 WHEREAS, the
CarMax Auto Owner Trust 2004-2 was created on August 12, 2004 pursuant to (i) a Trust Agreement dated as of August 12, 2004 among the Depositor, the Delaware Trustee and the Owner Trustee (the “Initial Trust Agreement”), and (ii)
the filing of a certificate of trust with the Secretary of State of the State of Delaware on August 12, 2004; and 
  
 WHEREAS, the Depositor, the Delaware Trustee and the Owner Trustee wish to amend and restate the Initial Trust Agreement on the terms and conditions
hereinafter set forth; 
  
 NOW, THEREFORE, in consideration of the
premises and mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Depositor, the Delaware Trustee and the Owner Trustee hereby agree as follows: 
  
 ARTICLE I 
 DEFINITIONS 
  
 SECTION 1.1 Definitions. Except as otherwise specified herein or as the context may otherwise require, the following terms shall have the respective meanings set forth below for all purposes of this Agreement. 
  
 “Accountants” shall have the meaning specified in Section
5.5. 
  
 “CarMax” shall mean CarMax Auto
Superstores, Inc., a Virginia corporation, and its successors and assigns. 
  
 “CarMax Funding” shall mean CarMax Auto Funding LLC, a Delaware limited liability company, and its successors and assigns. 
  
 “Certificate” shall mean a physical certificate evidencing the beneficial interest of a Certificateholder
in the Owner Trust Estate, substantially in the form of Exhibit A. Such certificate shall entitle the Holder thereof to distributions pursuant to this Agreement from collections and other proceeds in respect of the Owner Trust Estate;
provided, however, that the Owner Trust Estate has been pledged to the Indenture Trustee to secure payment of the Notes and that the rights of the Certificateholders to receive distributions on the Certificates are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement and the Indenture. 
  
 “Certificate of Trust” shall mean the Certificate of Trust in the form of Exhibit B filed for the Trust pursuant to Section 3810(a) of the Statutory Trust Statute. 
  









 “Certificate Payment Account” shall have the meaning specified in Section 5.1.

  
 “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 Trust. The initial Certificate Percentage Interest
held by the Depositor shall be 100%. 
  
 “Certificate
Register” shall have the meaning specified in Section 3.4. 
  
 “Certificate Registrar” shall have the meaning specified in Section 3.4. 
  
 “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the Treasury Regulations promulgated thereunder.

  
 “Corporate Trust Office” shall mean the
principal office of the Owner Trustee at which at any particular time its corporate trust business shall be administered, which office at date of execution of this Agreement is located at The Bank of New York, 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 and the Servicer,
or the principal corporate trust office of any successor Owner Trustee at the address designated by such successor Owner Trustee by notice to the Certificateholders, the Indenture Trustee, the Depositor and the Servicer. 
  
 “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 this Agreement, and any successor Delaware Trustee under this Agreement. 
  
 “Depositor” shall mean CarMax Funding in its capacity as depositor under this Agreement. 
  
 “ERISA” shall mean the Employee Retirement Income Security
Act of 1974, as amended. 
  
 “Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended. 
  
 “Expenses” shall have the meaning specified in Section 8.2. 
  
 “Final Distribution Date” shall mean the September 2011 Distribution Date. 
  
 “Holder” or “Certificateholder” shall mean a Person in whose name a Certificate is registered in the Certificate
Register. 
  
 “Indemnified Parties” shall have
the meaning specified in Section 8.2. 
  
 “Indenture” shall mean the Indenture, dated as of October 1, 2004, between the Trust and the Indenture Trustee, as amended, supplemented or otherwise modified and in effect from time to time. 
  

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 “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. 
  
 “Owner Trust Estate” shall mean all right, title and interest of the Trust in, to and under the property
and rights assigned to the Trust pursuant to Article II of the Sale and Servicing 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 this Agreement, and any successor Owner Trustee under
this Agreement. 
  
 “Paying Agent” shall mean the
Owner Trustee or any successor paying agent or co-paying agent appointed pursuant to Section 3.9 who is authorized by the Owner Trustee to make distributions from the Certificate Payment Account on behalf of the Trust. 
  
 “Plan” shall have the meaning specified in Section 3.4.

  
 “Plan Asset Regulation” shall mean 29 C.F.R.
Section 2510.3-101 issued by the United States Department of Labor concerning the definition of what constitutes the assets of a Plan with respect to such Plan’s investment in an entity for purposes of the fiduciary responsibility provisions of
Title I of ERISA and Section 4975 of the Code. 
  
 “PTCE
95-60” shall have the meaning specified in Section 3.4. 
  
 “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 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. 
  
 “Record Date” shall mean, with respect to any Distribution Date, the close of business on the Business Day preceding such Distribution
Date. 
  
 “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. 
  

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 “Sale and Servicing Agreement” shall mean the Sale and Servicing Agreement, dated as of
October 1, 2004, by and among the Trust, the Depositor and the Servicer, as amended, supplemented or otherwise modified and in effect from time to time. 
  
 “Secretary of State” shall mean the Secretary of State of the State of Delaware. 
  
 “Securities Act” shall mean the Securities Act of 1933, as
amended. 
  
 “Statutory Trust Statute” shall mean
Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code section 3801 et seq., as the same may be amended, supplemented or otherwise modified and in effect from time to time. 
  
 “Transfer” shall mean a sale, transfer, assignment, participation, pledge or other disposition of a
Certificate. 
  
 “Treasury Regulations” shall
mean regulations, including proposed or temporary regulations, promulgated under the Code. All references herein to specific provisions of proposed or temporary Treasury Regulations shall include analogous provisions of final Treasury Regulations or
other successor Treasury Regulations. 
  
 “Trust”
shall mean the CarMax Auto Owner Trust 2004-2 created as a Delaware statutory trust pursuant to this Agreement and the filing of the Certificate of Trust. 
  
 SECTION 1.2 Other Definitional Provisions. 
  
 (a) Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Sale and Servicing Agreement or, if not
defined therein, 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. 
  
 (c) As used in this Agreement and in any certificate or other documents 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 and Exhibit references contained in this Agreement are references to Articles, Sections and Exhibits in or to this Agreement unless otherwise specified. The
term “including” shall mean “including without limitation.” 
  

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 (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

 ORGANIZATION OF THE TRUST 
  
 SECTION 2.1 Name. The Trust shall be known as “CarMax Auto Owner Trust 2004-2,” in which name the Owner Trustee may conduct the business
of the Trust, make and execute contracts and other instruments on behalf of the Trust and sue and be sued on behalf of the Trust. 
  
 SECTION 2.2 Office. The office of the Trust shall be in care of the Owner Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Certificateholders and the Depositor. 
  
 SECTION 2.3 Purposes and Powers. The purpose of the Trust is, and the Trust shall have the power and authority, to engage solely in the following activities: 
  
 (i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell the Notes upon the written order of the Depositor; 
  
 (ii) to use the proceeds of the sale of the Notes, at the direction of the Depositor, to fund the Reserve Account, to pay the
organizational, start-up and transactional expenses of the Trust and to pay the balance to the Depositor pursuant to the Sale and Servicing Agreement; 
  
 (iii) to pay interest on and principal of the Notes and to pay Excess Collections to the Certificateholders; 
  
 (iv) to assign, grant, transfer, pledge, mortgage and convey
the Owner Trust Estate (other than the Certificate Payment Account and the proceeds thereof) to the Indenture Trustee pursuant to the Indenture; 
  
 (v) to enter into and perform its obligations under the Transaction Documents to which it is to be a party; 
  
 (vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or connected therewith; and 
  

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 (vii) subject to compliance with the Transaction Documents, to engage in such other
activities as may be required in connection with conservation of the Owner Trust Estate and the making of distributions to the Noteholders and the Certificateholders. 
  
 The Trust is hereby authorized to engage in the foregoing activities. The Trust shall not engage in any activity other than
in connection with the foregoing or other than as required or authorized by the terms of this Agreement or the other Transaction Documents. 
  
 SECTION 2.4 Appointment of Owner Trustee. The Depositor hereby appoints the Owner Trustee as trustee of the Trust effective as of the date hereof,
to have all the rights, powers and duties set forth herein and in the Statutory Trust Statute. 
  
 SECTION 2.5 Initial Capital Contribution of Owner Trust Estate. The Depositor has sold, assigned, transferred, conveyed and set over to the Owner Trustee the sum of $1,000. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor of such amount, which amount constituted the initial Owner Trust Estate and was deposited in the Certificate Payment Account. The Depositor shall pay organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the Owner Trustee. 
  
 SECTION 2.6 Declaration of Trust. The Owner Trustee hereby declares that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders, subject to the obligations of the Trust under the Transaction Documents. It is the intention of the parties hereto that (i) the Trust constitute a statutory trust under
the Statutory Trust Statute and that this Agreement constitute the governing instrument of such statutory trust and (ii) solely for income and franchise tax purposes, the Trust shall be treated (A) if it has one beneficial owner, as a non-entity and
(B) if it has more than one beneficial owner, as a partnership, with the assets of the partnership being the Receivables and other assets held by the Trust, the partners of the partnership being the Certificateholders and the Notes constituting
indebtedness of the partnership. Unless otherwise required by the appropriate tax authorities, the Trust shall file or cause to be filed annual or other necessary returns, reports and other forms consistent with the characterization of the Trust
either as a nonentity or as a partnership for such tax purposes. Effective as of the date hereof, the Owner Trustee shall have all rights, powers and duties set forth herein and in the Statutory Trust Statute with respect to accomplishing the
purposes of the Trust. The parties have caused the filing of the Certificate of Trust with the Secretary of State. 
  
 SECTION 2.7 Liability of Certificateholders. The Certificateholders shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations organized under the general corporation law of the State of Delaware. 
  
 SECTION 2.8 Title to Trust Property. Legal title to the entirety of the Owner Trust Estate shall be vested at all times in the Trust as a separate
legal entity, except where applicable law in any jurisdiction requires title to any part of the Owner Trust Estate to be vested in a trustee or trustees, in which case title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be. 
  

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 SECTION 2.9 Situs of Trust. The Trust shall be located and administered in the State of Delaware
or the State of New York. All bank accounts maintained by the Owner Trustee on behalf of the Trust shall be located in the State of Delaware or the State of New York. The Trust shall not have any employees in any state other than the State of
Delaware; provided, however, that nothing herein shall restrict or prohibit the Owner Trustee from having employees within or without the State of Delaware. Payments will be received by the Trust only in the State of Delaware or the
State of New York, and payments will be made by the Trust only from the State of Delaware or the State of New York. The principal office of the Trust will be at the Corporate Trust Office in the State of New York. 
  
 SECTION 2.10 Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that: 
  
 (i) 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; 
  
 (ii) 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 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; 
  
 (iii) 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, and the Depositor has the power and authority to sell, assign, transfer and convey the property to be sold and 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; 
  
 (iv) 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, 

  

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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; 
  
 (v) 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 (A) asserting the invalidity of this Agreement, the Sale and Servicing Agreement, the Indenture, any of the
other Transaction Documents, the Notes or the Certificates, (B) seeking to prevent the issuance of the Notes or the Certificates or the consummation of any of the transactions contemplated by this Agreement, the Sale and Servicing Agreement, the
Indenture or any of the other Transaction Documents, (C) seeking any determination or ruling that would materially and adversely affect the performance by the Depositor of its obligations under, or the validity or enforceability of, this Agreement,
the Sale and Servicing Agreement, the Indenture, any of the other Transaction Documents, the Receivables, the Notes or the Certificates, or (D) that would adversely affect the federal tax attributes or Applicable Tax State franchise or income tax
attributes of the Trust or of the Notes or the Certificates; and 
  
 (vi) the representations and warranties of the Depositor in Section 3.1 of the Receivables Purchase Agreement are true and correct. 
  
 SECTION 2.11 Federal Income Tax Matters. The Certificateholders acknowledge that it is their intent and that they
understand it is the intent of the Depositor and the Servicer that, for purposes of federal income, state and local income and franchise tax and any other income taxes, the Trust will be treated either as a disregarded entity under Treasury
Regulation Section 301.7701-3 or as a partnership, and that the Certificateholders will be treated as partners in that partnership. The Certificateholders by acceptance of a Certificate agree to such treatment and agree to take no action
inconsistent with such treatment. For each calendar quarter, other than periods in which there is only one Certificateholder: 
  
 (i) net income of the Trust for any calendar quarter as determined for federal income tax purposes (and each item of income, gain, credit,
loss or deduction entering into the computation thereof) shall be allocated among the Certificateholders as of the first day following the end of such quarter in proportion to their Certificate Percentage Interest on such date; and 
  
 (ii) net losses of the Trust, if any, for any calendar
quarter as determined for federal income tax purposes (and each item of income, gain, credit, loss or deduction entering into the computation thereof) shall be allocated among the Certificateholders as of the first day following the end of such
quarter in proportion to their Certificate Percentage Interest on such date. 
  

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 The Certificateholders are authorized to modify the allocations in this Section 2.11 if necessary or
appropriate, in their sole discretion, for the allocations to reflect fairly the economic income, gain, credit, loss or deduction to the Certificateholders or as otherwise required by the Code. 
  
 ARTICLE III 
 CERTIFICATES AND TRANSFER OF INTERESTS 
  
 SECTION 3.1 Initial Ownership. Upon the formation of the Trust by the contribution by the Depositor pursuant to Section 2.5 and until the issuance of the Certificates, the Depositor shall be the sole
beneficiary of the Trust. 
  
 SECTION 3.2 The Certificates.
The Certificates shall be issued in one or more registered, definitive, physical certificates, substantially in the form set forth in Exhibit A. The Certificates may be in printed or typewritten form and shall be executed on behalf of the Trust by
manual or facsimile signature of an authorized officer of the Owner Trustee. Certificates bearing the manual or facsimile signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be validly issued and entitled to the benefits of this Agreement, notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of authentication and delivery of such Certificates. 
  
 If Transfer of the Certificates is permitted pursuant to this Section 3.2 and Section 3.4, a transferee of a Certificate shall become a Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such transferee’s acceptance of a Certificate duly registered in such transferee’s name pursuant to Section 3.4. 
  
 SECTION 3.3 Authentication of Certificates. Concurrently with the initial sale of the Receivables to the Trust
pursuant to the Sale and Servicing Agreement, the Owner Trustee shall cause the Certificates to be executed on behalf of the Trust, authenticated and delivered to or upon the written order of the Depositor, signed by its president, any vice
president, any assistant vice president, its treasurer, any assistant treasurer, its secretary or any assistant secretary, without further limited liability company action by the Depositor. No Certificate shall entitle its Holder to any benefit
under this Agreement, or shall be valid for any purpose, unless there shall appear on such Certificate a certificate of authentication substantially in the form set forth in Exhibit A executed by the Owner Trustee by manual signature, which
authentication shall constitute conclusive evidence that such Certificate shall have been duly authenticated and delivered hereunder. All Certificates shall be dated the date of their authentication. Upon issuance, authentication and delivery
pursuant to the terms hereof, the Certificates will be entitled to the benefits of this Agreement. 
  
 SECTION 3.4 Registration of Certificates; Transfer and Exchange of Certificates. 
  
 (a) The Owner Trustee initially shall be the registrar (the “Certificate Registrar”) for the purpose of
registering Certificates and Transfers of Certificates as herein provided. The Certificate Registrar shall cause to be kept, at the office or agency maintained 

  

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pursuant to Section 3.8, a register (the “Certificate Register”) in which, subject to such reasonable regulations as it may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and the registration of Transfers of Certificates. Upon any resignation of any Certificate Registrar, the Owner Trustee shall, upon receipt of written instructions from the
Depositor, promptly appoint a successor. 
  
 (b) The Certificates
may not be acquired by or for the account of (i) an employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii) any entity whose
underlying assets include plan assets by reason of a plan’s investment in the entity (each, a “Plan”). Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have represented and warranted that such
Certificateholder (A) is not a Plan and is not a Person acting on behalf of a Plan or a Person using the assets of a Plan to effect the transfer of such Certificate, and (B) is not an insurance company purchasing a Certificate with funds contained
in an “insurance company general account” (as defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) that includes the assets of a Plan for purposes of the Plan Asset Regulation.

  
 Any person who is not an affiliate of the Seller and acquires
more than 49.9% of the Certificates will be deemed to represent that it is not a party in interest (within the meaning of ERISA) or a disqualified person (within the meaning of Section 4975(e)(2) of the Code) with respect to any Plan, other than a
Plan that it sponsors for the benefit of its employees, and that no Plan with respect to which it is a party in interest has or will acquire any interest in the Notes. 
  
 To the extent permitted under applicable law (including, but not limited to, ERISA), neither the Owner Trustee nor the
Certificate Registrar shall be under any liability to any Person for any registration of transfer of any Certificate that is in fact not permitted or for taking any other action with respect to such Certificate under the provisions of this Agreement
so long as such transfer was registered by the Owner Trustee or the Certificate Registrar in accordance with this Agreement. 
  
 (c) Upon surrender for registration of Transfer of any Certificate at the office or agency of the Certificate Registrar to be maintained as provided in
Section 3.8, and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute on behalf of the Trust and the Owner Trustee shall authenticate and deliver to the Certificateholder making such
surrender, in the name of the designated transferee or transferees, one or more new Certificates in any authorized denomination evidencing the same aggregate interest in the Trust. Each Certificate presented or surrendered for registration of
Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8 BEN, W-8 ECI or W-9, as applicable, in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the
Certificateholder or his attorney duly authorized in writing. Each Certificate presented or surrendered for registration of Transfer or exchange shall be canceled and subsequently disposed of by the Certificate Registrar in accordance with its
customary practice. No service charge shall be made for any registration of Transfer or exchange of Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any Transfer or exchange of Certificates. 
  

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 (d) As a condition to the registration of any Transfer of any Certificate, the prospective transferee
shall be required to represent in writing to the Owner Trustee, the Depositor and the Certificate Registrar that: 
  
 (i) it has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or
any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that
regularly disseminates firm buy or sell quotations; 
  
 (ii) it either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for United States federal income tax purposes or (B) is such an entity, but none of the direct or indirect beneficial owners of any of
the interests in such transferee have allowed or caused, or will allow or cause, 50% or more (or such other percentage as the transferor may establish prior to the time of such proposed transfer) of the value of such interests to be attributable to
such transferee’s ownership of Certificates; and 
  
 (iii) it is not a Plan and is not a Person acting on behalf of a Plan or a Person using the assets of a Plan to effect the transfer of such Certificate, and (B) is not an insurance company purchasing a Certificate with funds contained in an
“insurance company general account” (as defined in Section V(e) of PTCE 95-60) that includes the assets of a Plan for purposes of the Plan Asset Regulation. 
  
 (e) No Certificateholder shall Transfer any Certificate initially held by it unless such Transfer is made pursuant to an
effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such
registration or qualification. If a Transfer is to be made in reliance upon an exemption from the Securities Act and under applicable state securities laws, (i) the Certificate Registrar may require an Opinion of Counsel reasonably satisfactory to
the Certificate Registrar and the Depositor substantially to the effect that such Transfer may be made pursuant to an exemption from the Securities Act and applicable state securities laws and describing the applicable exemption and the basis
therefor, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Owner Trustee, and (ii) the Certificate Registrar may require the transferee to execute a certification acceptable to and in form and
substance satisfactory to the Certificate Registrar and the Depositor setting forth the facts surrounding such Transfer. 
  
 (f) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which
consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of such Transfer will be, a
Certificateholder. 
  

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 SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates. 
  
 (a) If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate, and (ii) there is delivered to the Certificate Registrar and the Owner Trustee such security or indemnity as may be
required by them to hold each of the Trust, the Certificate Registrar and the Owner Trustee harmless, then, in the absence of notice to the Trust, the Certificate Registrar or the Owner Trustee that such Certificate has been acquired by a
“protected purchaser” (as defined in the Relevant UCC), the Owner Trustee shall execute on behalf of the Trust and the Owner Trustee shall authenticate and deliver, in exchange for, or in lieu of, any such mutilated, destroyed, lost or
stolen Certificate, as the case may be, a replacement Certificate, as the case may be, of like tenor and Certificate Percentage Interest. If, after the delivery of such replacement Certificate or payment of a destroyed, lost or stolen Certificate
pursuant to the proviso to the preceding sentence, a “protected purchaser” (as defined in the Relevant UCC) of the original Certificate in lieu of which such replacement Certificate was issued presents for payment such original
Certificate, the Trust and the Owner Trustee shall be entitled to recover such replacement Certificate (or such payment) from the Person to whom such replacement Certificate was delivered or any Person taking such replacement Certificate from such
Person to whom such replacement Certificate was delivered or any assignee of such Person, except a “protected purchaser” (as defined in the Relevant UCC), and shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the Trust or the Owner Trustee in connection therewith. 
  
 (b) Upon the issuance of any replacement Certificate under this Section, the Trust may require the payment by the Holder of such Certificate of a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection with such issuance and any other reasonable expenses (including the fees and expenses of the Owner Trustee) related thereto. 
  
 (c) Every replacement Certificate issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Certificate shall constitute an original additional contractual obligation of the Trust, whether or not the mutilated, destroyed, lost or stolen Certificate shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Certificates duly issued hereunder. 
  
 (d) The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates. 
  
 SECTION 3.6 Persons Deemed Owners. Prior to due presentation of a Certificate for registration of transfer, the Owner Trustee, the Certificate Registrar and any Paying Agent may treat the Person in whose name such Certificate is
registered in the Certificate Register (as of the day of determination) as the owner of such Certificate for the purpose of receiving distributions pursuant to Section 5.2 and for all other purposes whatsoever, and none of the Owner Trustee, the
Certificate Registrar or any Paying Agent shall be bound by any notice to the contrary. 
  

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 SECTION 3.7 Access to List of Certificateholders’ Names and Addresses. The Certificate
Registrar shall furnish or cause to be furnished to the Servicer and the Depositor, or to the Indenture Trustee or the Owner Trustee, within fifteen (15) days after receipt by the Certificate Registrar of a written request therefor from the
Servicer, the Depositor or the Indenture Trustee or the Owner Trustee, as the case may be, a list, in such form as the requesting party may reasonably require, of the names and addresses of the Certificateholders as of the most recent Record Date.
If three or more Certificateholders or one or more Holders of Certificates evidencing not less than 25% of the aggregate Certificate Percentage Interest apply in writing to the Certificate Registrar, and such application states that the applicants
desire to communicate with other Certificateholders with respect to their rights under this Agreement or under the Certificates and such application is accompanied by a copy of the communication that such applicants propose to transmit, then the
Certificate Registrar shall, within five (5) Business Days after the receipt of such application, afford such applicants access during normal business hours to the current list of Certificateholders. Each Certificateholder, by receiving and holding
a Certificate, shall be deemed to have agreed not to hold any of the Depositor, the Certificate Registrar or the Owner Trustee accountable by reason of the disclosure of its name and address, regardless of the source from which such information was
derived. 
  
 SECTION 3.8 Maintenance of Office or Agency.
The Certificate Registrar shall maintain in the Borough of Manhattan, The City of New York, an office or offices or agency or agencies where Certificates may be surrendered for registration of Transfer or exchange and where notices and demands to or
upon the Certificate Registrar in respect of the Certificates and the Transaction Documents may be served. The Certificate Registrar shall give prompt written notice to the Depositor, the Owner Trustee and the Certificateholders of any change in the
location of the Certificate Registrar or any such office or agency. 
  
 SECTION 3.9 Appointment of Paying Agent. The Paying Agent shall make distributions to Certificateholders from the Certificate Payment Account pursuant to Section 5.2 and shall report the amounts of such distributions to the Owner
Trustee. Any Paying Agent shall have the revocable power to withdraw funds from the Certificate Payment Account for the purpose of making the distributions referred to above. The Owner Trustee may revoke such power and remove the Paying Agent if the
Owner Trustee determines in its sole discretion that the Paying Agent shall have failed to perform its obligations under this Agreement in any material respect. The Paying Agent shall initially be the Owner Trustee and any co-paying agent chosen by
the Owner Trustee. The Owner Trustee shall be permitted to resign as Paying Agent upon thirty (30) days’ written notice to the Depositor. In the event that the Owner Trustee shall no longer be the Paying Agent, the Owner Trustee, upon receipt
of written instructions from the Depositor, shall appoint a successor to act as Paying Agent (which shall be a bank or trust company). The Owner Trustee shall direct such successor Paying Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which such successor Paying Agent or additional Paying Agent shall agree with the Owner Trustee that as Paying Agent, such successor Paying Agent or additional Paying Agent will
hold all sums, if any, held by it for payment to the Certificateholders in trust for the benefit of the Certificateholders entitled thereto until such sums shall be paid to such Certificateholders. The Paying Agent shall return all unclaimed funds
to the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall also return all funds in its possession to the Owner Trustee. The provisions of Sections 7.1, 7.3 and 8.1 shall apply to the Owner Trustee also in its 

  

 13 








 
role as Paying Agent, for so long as the Owner Trustee shall act as Paying Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise. 
  
 ARTICLE IV 
 ACTIONS BY OWNER TRUSTEE

  
 SECTION 4.1 Prior Notice to Certificateholders with Respect
to Certain Matters. With respect to the following matters, the Owner Trustee shall not take action unless (i) at least thirty (30) days before the taking of such action, the Owner Trustee shall have notified the Certificateholders and the Rating
Agencies in writing of the proposed action and (ii) the Holders of Certificates evidencing not less than 51% of the aggregate Certificate Percentage Interest shall not have notified the Owner Trustee in writing prior to the 30th day after such
notice is given that the Holders have withheld consent or provided alternative direction: 
  
 (i) the initiation of any claim or lawsuit by the Trust (except claims or lawsuits brought by the Servicer in connection with the
collection of the Receivables) and the settlement of any action, proceeding, investigation, claim or lawsuit brought by or against the Trust (except with respect to the aforementioned claims or lawsuits for collection by the Servicer of the
Receivables); 
  
 (ii) the election by the Trust
to file an amendment to the Certificate of Trust (unless such amendment is required to be filed under the Statutory Trust Statute); 
  
 (iii) the amendment of the Indenture by a supplemental indenture in circumstances where the consent of any Noteholder is required;

  
 (iv) the amendment of the Indenture by a
supplemental indenture in circumstances where the consent of any Noteholder is not required and such amendment materially adversely affects the interests of the Certificateholders; 
  
 (v) the amendment, change or modification of the Sale and Servicing Agreement or the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision in a manner or add any provision that would not materially adversely affect the interests of the Certificateholders; or 
  
 (vi) the appointment pursuant to the Indenture of a
successor Note Registrar, Paying Agent for the Notes or Indenture Trustee or pursuant to this Agreement of a successor Certificate Registrar, or the consent to the assignment by the Note Registrar, Paying Agent for the Notes or Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this Agreement, as applicable. 
  
 SECTION 4.2 Action by Certificateholders with Respect to Certain Matters. The Owner Trustee may not, except upon the occurrence of an Event of Servicing Termination subsequent to the payment in full of the
Notes and in accordance with the written direction of the Holders of Certificates evidencing not less than 51% of the aggregate Certificate Percentage Interest, (i) remove the Servicer pursuant to Article VIII of the Sale and Servicing Agreement,


  

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(ii) appoint a successor Servicer pursuant to Article VIII of the Sale and Servicing Agreement, (iii) remove the Administrator pursuant to Section 9 of the
Administration Agreement, (iv) appoint a successor Administrator pursuant to Section 9 of the Administration Agreement or (v) sell the Receivables after the termination of the Indenture, except as expressly provided in the Transaction Documents.

  
 SECTION 4.3 Action by Certificateholders with Respect to
Bankruptcy. The Owner Trustee shall not have the power to commence a voluntary proceeding in bankruptcy relating to the Trust unless (i) the Notes have been paid in full and (ii) each Certificateholder approves of such commencement in writing in
advance and delivers to the Owner Trustee a certificate certifying that such Person reasonably believes that the Trust is insolvent. 
  
 SECTION 4.4 Restrictions on Certificateholders’ Power. The Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation of the Trust or the Owner Trustee under this Agreement or any of the other Transaction Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given. 
  
 SECTION 4.5
Majority Control. Except as expressly provided herein, any action that may be taken by the Certificateholders under this Agreement may be taken by the Holders of Certificates evidencing not less than 51% of the aggregate Certificate
Percentage Interest. Except as expressly provided herein, any written notice of the Certificateholders delivered pursuant to this Agreement shall be effective if signed by the Holders of Certificates evidencing not less than 51% of the aggregate
Certificate Percentage Interest at the time of the delivery of such notice. 
  
 SECTION 4.6 Certain Litigation Matters. The Owner Trustee and the Delaware Trustee shall provide prompt written notice to the Depositor, the Seller and the Servicer of any action, proceeding or investigation
known to the Owner Trustee or the Delaware Trustee that could reasonably be expected to adversely affect the Trust or the Owner Trust Estate. 
  
 ARTICLE V 
 APPLICATION OF TRUST FUNDS; CERTAIN
DUTIES 
  
 SECTION 5.1 Establishment of Certificate Payment
Account. Pursuant to Section 4.1(c) of the Sale and Servicing Agreement, the Servicer has agreed to 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 2004-2 Trust Account” (the “Certificate Payment Account”). The Certificate Payment Account shall be held in trust for the benefit of the
Certificateholders. Except as expressly provided in Section 3.9, the Certificate Payment Account shall be under the sole dominion and control of the Owner Trustee. All monies deposited from time to time in the Certificate Payment Account pursuant to
the Sale and Servicing Agreement or the Indenture shall be applied as provided in this Agreement, the Sale and Servicing Agreement and the Indenture. 
  

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 SECTION 5.2 Application of Trust Funds. 
  
 (a) On each Distribution Date, upon receipt of written instructions from the
Servicer pursuant to Section 4.6(d) of the Sale and Servicing Agreement, the Owner Trustee shall, or, if the Owner Trustee is not the Paying Agent, shall direct the Paying Agent to, distribute to the Certificateholders, in proportion to each
Certificateholder’s Certificate Percentage Interest, amounts deposited in the Certificate Payment Account on such Distribution Date pursuant to Section 4.1(c) of the Sale and Servicing Agreement and Section 2.8 of the Indenture with respect to
such Distribution Date. 
  
 (b) On each Distribution Date, the
Owner Trustee shall, or, if the Owner Trustee is not the Paying Agent, the Owner Trustee shall direct the Paying Agent to, send to each Certificateholder the statement provided to the Owner Trustee by the Servicer pursuant to Section 4.9 of the Sale
and Servicing Agreement with respect to such Distribution Date. 
  
 (c) In the event that any withholding tax is imposed on any Trust payment (or any allocation of income) to a Certificateholder, such tax shall reduce the amount otherwise distributable to the Certificateholder in accordance with this
Section 5.2. The Owner Trustee and each Paying Agent are hereby authorized and directed to retain from amounts otherwise distributable to the Certificateholders sufficient funds for the payment of any such withholding tax that is legally owed by the
Trust (but such authorization shall not prevent the Owner Trustee from contesting any such tax in appropriate proceedings, and withholding payment of such tax, if permitted by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be treated as cash distributed to such Certificateholder at the time it is withheld by the Trust and remitted to the appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution (such as a distribution to a non-U.S. Certificateholder), the Owner Trustee may withhold such amounts in accordance with this Section 5.2. If a Certificateholder wishes to apply for a refund
of any such withholding tax, the Owner Trustee shall reasonably cooperate with such Certificateholder in making such claim so long as such Certificateholder agrees to reimburse the Owner Trustee for any out-of-pocket expenses incurred. 

 
 SECTION 5.3 Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Distribution Date shall be made to each Certificateholder of record on the preceding Record Date either by wire transfer, in immediately available funds, to the account of such Holder at
a bank or other entity having appropriate facilities therefor, if such Certificateholder shall have provided to the Certificate Registrar and the Paying Agent appropriate written instructions at least five (5) Business Days prior to such
Distribution Date and such Certificateholder is the Depositor or, if not, by check mailed to such Certificateholder at the address of such Holder appearing in the Certificate Register. Notwithstanding the foregoing, the final distribution in respect
of any Certificate (whether on the Final Distribution Date or otherwise) will be payable only upon presentation and surrender of such Certificate at the office or agency maintained for that purpose by the Certificate Registrar pursuant to Section
3.8. 
  

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 SECTION 5.4 No Segregation of Monies; No Interest. Subject to Sections 5.1 and 5.2, monies
received by the Owner Trustee hereunder need not be segregated in any manner except to the extent required by law, the Indenture or the Sale and Servicing Agreement and may be deposited under such general conditions as may be prescribed by law, and
the Owner Trustee shall not be liable for any interest thereon. 
  
 SECTION 5.5 Accounting and Reports to the Noteholders, Certificateholders, the Internal Revenue Service and Others. The Owner Trustee shall, based on information provided by the Seller, (i) maintain (or cause to be maintained) the
books of the Trust on the basis of a fiscal year ending December 31 and based on the accrual method of accounting, (ii) deliver to each Certificateholder, as may be required by the Code and applicable Treasury Regulations, such information as may be
required (including Schedule K-1) to enable such Certificateholder to prepare its federal and state income tax returns, (iii) file such tax returns relating to the Trust (including a partnership information return, IRS Form 1065) and make such
elections as may from time to time be required or appropriate under any applicable state or federal statute or rule or regulation thereunder so as to maintain the Trust’s characterization as a partnership for federal income tax purposes, (iv)
cause such tax returns to be signed in the manner required by law and (v) collect or cause to be collected any withholding tax as described in and in accordance with Section 5.2(c) with respect to income or distributions to Certificateholders. The
Owner Trustee, on behalf of the Trust, shall elect under Section 1278 of the Code to include in income currently any market discount that accrues with respect to the Receivables. The Owner Trustee, on behalf of the Trust, shall not make the election
provided under Section 754 of the Code. 
  
 The Owner Trustee may
satisfy its obligations with respect to this Section 5.5 by retaining, at the expense of the Seller, a firm of independent public accountants (the “Accountants”) selected by the Seller. The Owner Trustee may require the Accountants
to provide to the Owner Trustee, on or before March 15, 2005, a letter in form and substance satisfactory to the Owner Trustee as to whether any federal tax withholding on Certificates is then required and, if required, the procedures to be followed
with respect thereto to comply with the requirements of the Code. The Accountants shall be required to update such letter in each instance that any additional tax withholding is subsequently required or any previously required tax withholding shall
no longer be required. The Owner Trustee shall be deemed to have discharged its obligations pursuant to this Section 5.5 upon its retention of the Accountants, and the Owner Trustee shall not have any liability with respect to the default or
misconduct of the Accountants. 
  
 SECTION 5.6 Signature on
Returns; Tax Matters Partner. 
  
 (a) The Owner Trustee shall
sign, on behalf of the Trust, the tax returns of the Trust. 
  
 (b) The Depositor, as a Certificateholder, shall be designated the “tax matters partner” of the Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury Regulations. 
  

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 ARTICLE VI 
 AUTHORITY AND DUTIES OF OWNER TRUSTEE 
  
 SECTION 6.1 General Authority. The Owner Trustee is authorized and directed to execute and deliver the Transaction Documents to which the Trust is to be a party and each certificate or other document attached as an exhibit to or
contemplated by the Transaction Documents to which the Trust is to be a party, in each case in such form as the Depositor shall approve, as evidenced conclusively by the Owner Trustee’s execution thereof and the Depositor’s execution of
this Agreement, and to direct the Indenture Trustee to authenticate and deliver Notes in the aggregate principal amount of $550,000,000 (comprised of $111,000,000 in aggregate principal amount of Class A-1 Notes, $141,000,000 in aggregate principal
amount of Class A-2 Notes, $115,000,000 in aggregate principal amount of Class A-3 Notes, $125,200,000 in aggregate principal amount of Class A-4 Notes, $20,600,000 in aggregate principal amount of Class B Notes, $17,900,000 in aggregate principal
amount of Class C Notes and $19,300,000 in aggregate principal amount of Class D Notes). In addition to the foregoing, the Owner Trustee is authorized to take all actions required of the Trust pursuant to the Transaction Documents. The Owner Trustee
is further authorized from time to time to take such action on behalf of the Trust as is permitted by the Transaction Documents and which the Certificateholders, the Servicer or the Administrator recommends in writing with respect to the Transaction
Documents, except to the extent that this Agreement expressly requires the consent of Certificateholders for such action. 
  
 SECTION 6.2 General Duties. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all of its responsibilities pursuant
to the terms of this Agreement and to administer the Trust for the benefit of the Certificateholders, subject to the lien of the Indenture and in accordance with the provisions of this Agreement. Notwithstanding the foregoing, the Owner Trustee
shall be deemed to have discharged (or caused to be discharged) its duties and responsibilities hereunder to the extent the Administrator is required in the Administration Agreement to perform any act or to discharge such duty of the Owner Trustee
or the Trust hereunder or under any other Transaction Document, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. 
  
 SECTION 6.3 Action upon Instruction. 
  
 (a) Subject to Article IV, and in accordance with the terms of the
Transaction Documents, the Certificateholders may, by written instruction, direct the Owner Trustee in the management of the Trust. 
  
 (b) The Owner Trustee shall not be required to take any action under this Agreement or any other Transaction Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action is likely to result in liability on the part of the Owner Trustee or is contrary to the terms of this Agreement or any other Transaction Document or is otherwise contrary
to law. 
  
 (c) Subject to Article IV, whenever the Owner Trustee
is unable to decide between alternative courses of action permitted or required by the terms of this Agreement or 

  

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any other Transaction Document, the Owner Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be adopted, and to the extent the Owner Trustee acts in good faith in accordance with any written instruction of the Certificateholders received, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not have received appropriate written instruction within ten (10) days of such notice (or within such shorter period of time as reasonably may be specified in such notice or
may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action, not inconsistent with this Agreement or the other Transaction Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or inaction. 
  
 (d) Subject to Article IV, in the event the Owner Trustee is unsure as to the application of any provision of this Agreement or any other Transaction Document or any such provision is ambiguous as to its application,
or is, or appears to be, in conflict with any other applicable provision, or in the event that this Agreement permits any determination by the Owner Trustee or is silent or is incomplete as to the course of action that the Owner Trustee is required
to take with respect to a particular set of facts, the Owner Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Certificateholders requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction received, the Owner Trustee shall not be liable, on account of such action or inaction, to any Person. If the Owner Trustee shall not have received appropriate written
instruction within ten (10) days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such
action not inconsistent with this Agreement or the other Transaction Documents, as it shall deem to be in the best interests of the Certificateholders and shall have no liability to any Person for such action or inaction. 
  
 SECTION 6.4 No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage, make any payment with respect to, register, record, sell, dispose of or otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated hereby to which the Owner Trustee or the Trust is a party, except as expressly provided by the terms of this Agreement or in any document or written instruction received by the Owner
Trustee pursuant to Section 6.3, and no implied duties or obligations shall be read into this Agreement or any other Transaction Document against the Owner Trustee. The Owner Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or otherwise to perfect or maintain the perfection of any security interest or lien granted to it hereunder or to prepare or file any Commission filing for the Trust or to record this Agreement
or any other Transaction Document. The Owner Trustee shall, however, at its own cost and expense, promptly take all action as may be necessary to discharge any lien (other than the lien of the Indenture) on any part of the Owner Trust Estate that
results from actions by, or claims against, the Owner Trustee in its individual capacity that are not related to the ownership or the administration of the Owner Trust Estate. 
  

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 SECTION 6.5 No Action Except Under Specified Documents or Instructions. The Owner Trustee shall
not manage, control, use, sell, dispose of or otherwise deal with any part of the Owner Trust Estate except (i) in accordance with the powers granted to and the authority conferred upon the Owner Trustee pursuant to this Agreement, (ii) in
accordance with the other Transaction Documents to which the Trust is a party and (iii) in accordance with any document or written instruction delivered to the Owner Trustee pursuant to Section 6.3. 
  
 SECTION 6.6 Restrictions. The Owner Trustee shall not take any action
(i) that is inconsistent with the purposes of the Trust set forth in Section 2.3 or (ii) that, to the actual knowledge of the Owner Trustee, would (A) affect the treatment of the Notes as indebtedness for federal income or Virginia income or
franchise tax purposes, (B) be deemed to cause a taxable exchange of the Notes for federal income or Virginia income or franchise tax purposes or (C) cause the Trust or any portion thereof to be taxable as an association or publicly traded
partnership taxable as a corporation for federal income or Virginia income or franchise tax purposes. The Certificateholders, the Depositor, the Administrator and the Servicer shall not direct the Owner Trustee to take action that would violate the
provisions of this Section 6.6. 
  
 ARTICLE VII 
 REGARDING THE OWNER TRUSTEE 
  
 SECTION 7.1 Acceptance of Trusts and Duties. The Owner Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Owner Trust Estate upon the terms of this Agreement. The Owner Trustee shall not
be answerable or accountable hereunder or under any other Transaction Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty
contained in Section 7.3 expressly made by the Owner Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence): 
  
 (i) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a responsible officer of the Owner Trustee unless it is proved that the Owner Trustee was negligent in ascertaining the pertinent facts; 
  
 (ii) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken in good
faith by it in accordance with the provisions of this Agreement at the instructions of any Certificateholder, the Indenture Trustee, the Depositor, the Administrator or the Servicer; 
  
 (iii) no provision of this Agreement or any other Transaction Document shall require the Owner Trustee to
expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Transaction Document if the Owner Trustee shall have
reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; 
  

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 (iv) the Owner Trustee shall not be liable for any indebtedness evidenced by or arising
under any of the Transaction Documents, including the principal of and interest on the Notes or payments of Excess Collections to the Certificateholders; 
  
 (v) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Owner Trust Estate or for or in respect of the validity or sufficiency of the other Transaction Documents, other than the certificate of
authentication on the Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty, or obligation to any Noteholder or to any Certificateholder, other than as expressly provided for herein and in the other Transaction
Documents; 
  
 (vi) the Owner Trustee shall not
be liable for the default or misconduct of the Servicer, the Administrator, the Depositor or the Indenture Trustee under any of the Transaction Documents or otherwise, and the Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the other Transaction Documents that are required to be performed by the Administrator under the Administration Agreement, the Servicer under the Sale and Servicing Agreement or the Indenture Trustee
under the Indenture; 
  
 (vii) the Owner Trustee
shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement or any other Transaction
Document, at the request, order or direction of any of the Certificateholders, unless such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred
by the Owner Trustee therein or thereby; 
  
 (viii) the right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or any other Transaction Document shall not be construed as a duty, and the Owner Trustee shall not be answerable other than for its willful
misconduct, bad faith or negligence in the performance of any such act; 
  
 (ix) in no event shall the Owner Trustee be personally liable (A) for special, consequential or punitive damages, (B) for the acts or omissions of clearing agencies or securities depositories or any of their
respective nominees or correspondents, (C) for acts or omissions of brokers or dealers or (D) for any losses due to forces beyond the control of the Owner Trustee, including strikes, work stoppages, acts of war or terrorism, insurrection,
revolution, nuclear or natural catastrophes or acts of God and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services provided by third parties selected by the Owner Trustee with reasonable
care; 
  
 (x) the Owner Trustee shall have no
responsibility for the accuracy of any information provided to Certificateholders or any other person that has been obtained from, or provided to the Owner Trustee by, any other Person; and 
  

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 (xi) the Owner Trustee shall not be liable for any failure to anticipate incurring
Expenses (as defined in Section 8.2) as long as the Owner Trustee acts in good faith based on the facts reasonably available to it at the time of such determination. 
  
 SECTION 7.2 Furnishing of Documents. The Owner Trustee shall furnish to the Certificateholders promptly upon receipt
of a written request therefor, duplicates or copies of all reports, notices, requests, demands, certificates, financial statements and any other instruments furnished to the Owner Trustee under the Transaction Documents. 
  
 SECTION 7.3 Representations and Warranties. 
  
 (a) The Delaware Trustee, in its individual capacity, hereby represents and
warrants to the Depositor, for the benefit of the Certificateholders, that: 
  
 (i) it is a Delaware banking corporation duly organized and validly existing in good standing under the laws of the State of Delaware and has all requisite power and authority to execute, deliver and perform its
obligations under this Agreement; 
  
 (ii) it has
taken all action necessary to authorize the execution and delivery by it of this Agreement, and this Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver this Agreement on its behalf; and

  
 (iii) neither the execution nor the delivery
by it of this Agreement, nor the consummation by it of the transactions contemplated hereby nor compliance by it with any of the terms or provisions hereof will contravene any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Delaware Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound. 
  
 (b) The Owner Trustee, in
its individual capacity, hereby represents and warrants to the Depositor, for the benefit of the Certificateholders, that: 
  
 (i) it is a New York banking corporation duly organized and validly existing in good standing under the laws of the State of New York and
has all requisite power and authority to execute, deliver and perform its obligations under this Agreement; 
  
 (ii) it has taken all action necessary to authorize the execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute and deliver this Agreement on its behalf; and 
  
 (iii) neither the execution nor the delivery by it of this Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene any federal or New York law, governmental rule or regulation governing the banking or trust powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound. 
  

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 SECTION 7.4 Reliance; Advice of Counsel. 
  
 (a) The Owner Trustee may rely upon, shall be protected in relying upon, and
shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper believed by it to be genuine and believed by it to be signed by
the proper party or parties. The Owner Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact or matter the method of the determination of which is not specifically prescribed herein, the Owner Trustee may for all purposes hereof rely on a certificate, signed by the president or any
vice president or by the treasurer or other authorized officers of the relevant party, as to such fact or matter and such certificate shall constitute full protection to the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon. 
  
 (b) In the exercise or
administration of the trusts hereunder and in the performance of its duties and obligations under this Agreement or the other Transaction Documents, the Owner Trustee (i) may act directly or through its agents or attorneys pursuant to agreements
entered into with any of them, and the Owner Trustee shall not be liable for the conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Owner Trustee with reasonable care and (ii) may consult
with counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it. The Owner Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the written opinion or
advice of any such counsel, accountants or other such Persons and not contrary to this Agreement or any other Transaction Document. 
  
 SECTION 7.5 Not Acting in Individual Capacity. Except as provided in Section 7.3, in accepting the trusts hereby created, The Bank of New York acts
solely as Owner Trustee hereunder and not in its individual capacity, and all Persons having any claim against the Owner Trustee by reason of the transactions contemplated by this Agreement or any other Transaction Document shall look only to the
Owner Trust Estate for payment or satisfaction thereof. 
  
 SECTION 7.6 Owner Trustee Not Liable for Certificates or Receivables. The recitals contained herein and in the Certificates (other than the signature and countersignature of the Owner Trustee on the Certificates) shall be taken as
the statements of the Depositor, and the Owner Trustee assumes no responsibility for the correctness thereof. The Owner Trustee makes no representations as to the validity or sufficiency of this Agreement, any other Transaction Document, the
Certificates (other than the signature and countersignature of the Owner Trustee on the Certificates) or the Notes, or of any Receivable or related documents. The Owner Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Receivable, or the perfection and priority of any security interest created by any Receivable in any Financed Vehicle or the maintenance of any such perfection and priority, or for or with
respect to the sufficiency of the Owner Trust Estate or its ability to generate the payments to be distributed to the Certificateholders under this Agreement or to the Noteholders under the Indenture, including, without limitation, the existence,
condition and ownership of any Financed Vehicle, the existence and enforceability of any insurance thereon, the existence and 

  

 23 








 
contents of any Receivable on any computer or other record thereof, the validity of the assignment of any Receivable to the Trust or any intervening
assignment, the completeness of any Receivable, the performance or enforcement of any Receivable, the compliance by the Depositor or the Servicer with any warranty or representation made under any Transaction Document or in any related document, or
the accuracy of any such warranty or representation or any action of the Indenture Trustee, the Administrator or the Servicer taken in the name of the Owner Trustee. 
  
 SECTION 7.7 Owner Trustee May Own Certificates and Notes. The Owner Trustee, in its individual or any other capacity,
may become the owner or pledgee of Certificates or Notes and may deal with the Depositor, the Servicer, the Administrator and the Indenture Trustee in banking transactions with the same rights as it would have if it were not Owner Trustee.

  
 ARTICLE VIII 
 COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE 
  
 SECTION 8.1 Owner Trustee’s Fees and Expenses. Each of the Owner Trustee and the Delaware Trustee shall receive as compensation for its
services hereunder such fees as have been separately agreed upon before the date hereof between the Servicer and such trustee, and each of the Owner Trustee and the Delaware Trustee shall be reimbursed by the Servicer for its other reasonable
expenses hereunder, including the reasonable compensation, expenses and disbursements of such agents, representatives, experts and counsel as such trustee may employ in connection with the exercise and performance of its rights and its duties
hereunder. 
  
 SECTION 8.2 Indemnification. To the fullest
extent permitted by applicable law, the initial Servicer shall be liable as prime obligor for, and shall indemnify each of the Owner Trustee and the Delaware Trustee and its successors, assigns, agents and servants (collectively, the
“Indemnified Parties”) from and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable costs, expenses and disbursements (including reasonable legal fees and
expenses) of any kind and nature whatsoever (collectively, “Expenses”) which may at any time be imposed on, incurred by, or asserted against the Owner Trustee, the Delaware Trustee or any other Indemnified Party in any way relating
to or arising out of this Agreement, the other Transaction Documents, the Owner Trust Estate, the administration of the Owner Trust Estate or the action or inaction of the Owner Trustee or the Delaware Trustee hereunder; provided,
however, that the initial Servicer shall not be liable for or required to indemnify an Indemnified Party from and against Expenses arising or resulting from any of the matters described in the third sentence of Section 7.1. In no event will
the initial Servicer, the Owner Trustee or the Delaware Trustee be entitled to make any claim upon the Owner Trust Estate for the payment or reimbursement of any Expenses. The indemnities contained in this Section 8.2 shall survive the resignation
or termination of the Owner Trustee and the Delaware Trustee or the termination of this Agreement. In the event of any claim, action or proceeding for which indemnity will be sought pursuant to this Section 8.2, the Owner Trustee’s and the
Delaware Trustee’s choice of legal counsel shall be subject to the approval of the initial Servicer, which approval shall not be unreasonably withheld. 
  

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 SECTION 8.3 Payments to the Owner Trustee. Any amounts paid to the Owner Trustee or the Delaware
Trustee pursuant to this Article VIII shall be deemed not to be a part of the Owner Trust Estate immediately after such payment. 
  
 ARTICLE IX 
 TERMINATION 
  
 SECTION 9.1 Termination of Trust Agreement. 
  
 (a) This Agreement (other than the provisions of Article VIII) shall
terminate and be of no further force or effect and the Trust shall dissolve upon the earlier of (i) the payment to the Servicer, the Noteholders and the Certificateholders of all amounts required to be paid to them pursuant to the terms of the
Indenture, the Sale and Servicing Agreement and Article V and (ii) the Distribution Date next succeeding the month which is one year after the maturity or other liquidation of the last Receivable and the disposition of any amounts received upon
liquidation of any property remaining in the Trust. The bankruptcy, liquidation, dissolution, death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust, entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of all or any part of the Trust or Owner Trust Estate or otherwise affect the rights, obligations and liabilities of the
parties hereto. 
  
 (b) No Certificateholder shall be entitled to
revoke or terminate the Trust. 
  
 (c) Notice of any termination
of the Trust, specifying the Distribution Date upon which the Certificateholders shall surrender their Certificates to the Paying Agent for payment of the final distribution and cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five (5) Business Days of receipt of notice of such termination from the Servicer, stating (i) the Distribution Date upon or with respect to which final payment of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of the Paying Agent therein specified, (ii) the amount of any such final payment and (iii) that the Record Date otherwise applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the office of the Paying Agent therein specified. The Owner Trustee shall give such notice to the Certificate Registrar (if other than the Owner Trustee) and the Paying Agent at the time such
notice is given to Certificateholders. Upon presentation and surrender of the Certificates, the Paying Agent shall cause to be distributed to the Certificateholders, subject to Section 3808 of the Statutory Trust Statute, amounts distributable on
such Distribution Date pursuant to Section 5.2. In the event that all of the Certificateholders shall not surrender their Certificates for cancellation within six (6) months after the date specified in the above mentioned written notice, the Owner
Trustee shall give a second written notice to the remaining Certificateholders to surrender their Certificates for cancellation and receive the final distribution with respect thereto. If within one year after the second notice all the Certificates
shall not have been surrendered for cancellation, the Owner Trustee may take appropriate steps, or may appoint an agent to take appropriate steps, to contact the remaining Certificateholders concerning surrender of their Certificates and the cost
thereof shall be paid out of the funds and other assets that shall remain subject to this Agreement. Subject to applicable escheat laws, any funds remaining in the Trust 

  

 25 








 
after exhaustion of such remedies shall be distributed by the Owner Trustee to the Certificateholders in proportion to each Certificateholder’s
Certificate Percentage Interest. 
  
 (d) Upon the winding up of
the Trust, in accordance with Section 3808 of the Statutory Trust Statute, and its termination, the Owner Trustee shall cause the Certificate of Trust to be canceled by filing a certificate of cancellation with the Secretary of State in accordance
with the provisions of Section 3810 of the Statutory Trust Statute. 
  
 ARTICLE X 
 SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 
  
 SECTION 10.1 Eligibility Requirements for Owner Trustee and Delaware Trustee. The Owner Trustee shall at all times
(i) be authorized to exercise corporate trust powers, (ii) have a combined capital and surplus of at least $50,000,000 and be subject to supervision or examination by federal or state authorities and (iii) have (or have a parent that has) a
long-term debt rating of investment grade by each of the Rating Agencies or otherwise be acceptable to each of the Rating Agencies. The Delaware Trustee shall at all times (i) be a corporation or banking association satisfying the provisions of
Section 3807(a) of the Statutory Trust Statute, (ii) be authorized to exercise corporate trust powers, (iii) have a combined capital and surplus of at least $50,000,000 and be subject to supervision or examination by federal or state authorities and
(iv) have (or have a parent that has) a long term debt rating of investment grade by each of the Rating Agencies or otherwise be acceptable to each of the Rating Agencies. If such corporation or banking association shall publish reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purpose of this Section 10.1 the combined capital and surplus of such corporation or banking association shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Owner Trustee shall cease to be eligible in accordance with the provisions of this Section 10.1, the Owner Trustee shall resign
immediately in the manner and with the effect specified in Section 10.2. 
  
 SECTION 10.2 Resignation or Removal of Owner Trustee. The Owner Trustee may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Administrator and the
Depositor. Upon receiving such notice of resignation, the Administrator shall promptly appoint a successor Owner Trustee (acceptable to the Depositor) by written instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner Trustee shall have been so appointed and have accepted appointment within thirty (30) days after the giving of such notice of resignation, the resigning Owner
Trustee may petition any court of competent jurisdiction for the appointment of a successor Owner Trustee. 
  
 If at any time the Owner Trustee shall cease to be eligible in accordance with the provisions of Section 10.1 and shall fail to resign after written
request therefor by the Administrator, or if at any time the Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Owner Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, or the Owner Trustee shall otherwise become incapable of acting, then the Administrator may remove the


  

 26 








 
Owner Trustee. If the Administrator shall remove the Owner Trustee under the authority of the immediately preceding sentence, the Administrator shall
promptly appoint a successor Owner Trustee (acceptable to the Depositor) by written instrument, in duplicate, one copy of which instrument shall be delivered to the removed Owner Trustee and one copy to the successor Owner Trustee. 
  
 Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to this Section 10.2 shall not become effective until acceptance of appointment by the successor Owner Trustee pursuant to Section 10.3 and payment of all fees and expenses owed to the outgoing Owner Trustee. The
Administrator shall provide notice of such resignation or removal of the Owner Trustee to the Depositor, the Certificateholders, the Indenture Trustee, the Noteholders and the Rating Agencies. 
  
 SECTION 10.3 Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the Administrator and to its predecessor Owner Trustee an instrument accepting such appointment under this Agreement, and thereupon, subject to the payment of all fees and
expenses owed to the predecessor Owner Trustee, the resignation or removal of the predecessor Owner Trustee shall become effective and such successor Owner Trustee, without any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as Owner Trustee. The predecessor Owner Trustee shall, upon payment of its fees and expenses, deliver to the successor Owner
Trustee all documents, statements and monies held by it under this Agreement, and the Administrator and the predecessor Owner Trustee shall execute and deliver such instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee all such rights, powers, duties and obligations. 
  
 No successor Owner Trustee shall accept appointment as provided in this Section 10.3 unless, at the time of such acceptance, such successor Owner Trustee
shall be eligible pursuant to Section 10.1. 
  
 Any successor
Owner Trustee appointed pursuant to this Section 10.3 shall file an amendment to the Certificate of Trust with the Secretary of State reflecting the name and principal place of business of such successor in the State of Delaware. 
  
 Upon acceptance of appointment by a successor Owner Trustee pursuant to this
Section 10.3, the Administrator shall mail notice of such appointment to all Certificateholders, the Indenture Trustee, the Noteholders and the Rating Agencies. If the Administrator shall fail to mail such notice within ten (10) days after
acceptance of appointment by the successor Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed at the expense of the Administrator. 
  

SECTION 10.4 Merger or Consolidation of Owner Trustee. 
  

(a) If the Owner Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or transferee corporation or banking association without any 

  

 27 








 
further act, except the filing of an amendment to the Certificate of Trust, if required under the Statutory Trust Statute, shall be the successor Owner
Trustee; provided, however, that such corporation or banking association must be otherwise qualified and eligible under Section 10.1. The Owner Trustee shall provide the Rating Agencies with prior written notice of any such
transaction. 
  
 (b) If at the time such successor or successors
by consolidation, merger or conversion to the Owner Trustee shall succeed to the trusts created by this Agreement any of the Certificates shall have been authenticated but not delivered, any such successor to the Owner Trustee may adopt the
certificate of authentication of any predecessor trustee and deliver such Certificates so authenticated, and in case at that time any of the Certificates shall not have been authenticated, any such successor to the Owner Trustee may authenticate
such Certificates either in the name of any predecessor trustee or in the name of the successor to the Owner Trustee. In all such cases such certificates shall have the full force which the Certificates or this Agreement provide that the certificate
of the Owner Trustee shall have. 
  
 SECTION 10.5 Appointment
of Co-Trustee or Separate Trustee. 
  
 (a) Notwithstanding any
other provisions of this Agreement to the contrary, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any part of the Owner Trust Estate or any Financed Vehicle may at the time be located, the Administrator
and the Owner Trustee acting jointly shall have the power and may execute and deliver an instrument to appoint one or more Persons approved by the Owner Trustee to act as co-trustee or co-trustees, jointly with the Owner Trustee, or separate trustee
or separate trustees, of all or any part of the Owner Trust Estate, and to vest in such Person or Persons, in such capacity and for the benefit of the Certificateholders, such title to the Owner Trust Estate, or any part thereof, and, subject to the
other provisions of this Section 10.5, such powers, duties, obligations, rights and trusts as the Administrator and the Owner Trustee may consider necessary or desirable. If the Administrator shall not have joined in such appointment within fifteen
(15) days after the receipt by it of a request so to do, the Owner Trustee alone shall have the power to make such appointment. No co-trustee or separate trustee under this Agreement shall be required to meet the terms of eligibility as a successor
trustee under Section 10.1 and no notice of the appointment of any co-trustee or separate trustee shall be required under Section 10.3. 
  
 (b) Each separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:

  
 (i) all rights, powers, duties and
obligations conferred or imposed upon the Owner Trustee shall be conferred or imposed upon and exercised or performed by the Owner Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee
shall not be authorized to act separately without the Owner Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Owner Trust Estate or any portion thereof in any such jurisdiction) shall be exercised and performed 

  

 28 








 
singly by such separate trustee or co-trustee, but solely at the direction of the Owner Trustee; 
  
 (ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this Agreement; and 
  
 (iii) the Administrator and the Owner Trustee acting jointly may at any time accept the resignation of or remove any separate trustee or
co-trustee. 
  
 (c) Any notice, request or other writing given to
the Owner Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article X. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Owner Trustee.
Each such instrument shall be filed with the Owner Trustee and a copy thereof given to the Administrator. 
  
 (d) Any separate trustee or co-trustee may at any time constitute the Owner Trustee its agent or attorney-in-fact with full power and authority, to the
extent permitted by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Owner Trustee, to the extent permitted by law, without the appointment of a new or successor trustee. 
  
 SECTION 10.6 Delaware Trustee. 
  
 (a) The Delaware Trustee has been appointed solely for the purpose of complying with the requirements of the Statutory Trust
Statute that the Trust have one trustee, which, in the case of a natural person, is a resident of the State of Delaware, or which in all other cases, has its principal place of business in the State of Delaware. The duties and responsibilities of
the Delaware Trustee shall be limited solely to (i) accepting legal process served on the Trust in the State of Delaware, (ii) the execution and delivery of all documents, and the maintenance of all records, necessary to form and maintain the
existence of the Trust under the Statutory Trust Statute and (iii) monitoring the Trust’s compliance with the Statutory Trust Statute and advising the Administrator when action is necessary to comply with the Statutory Trust Statute. Except for
the purpose set forth in the foregoing sentence, the Delaware Trustee shall not be deemed a trustee of, shall have no management responsibilities with respect to or owe any fiduciary duties to the Trust or the Certificateholders. 
  
 (b) By its execution hereof, the Delaware Trustee accepts the trust created
herein. Except as otherwise expressly required by clause (a) above, the Delaware Trustee shall not have any duty or liability with respect to the administration of the Trust, the investment of any of the Trust Property or the payment of dividends or
other distributions of income or principal with respect to the Trust. 
  

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 (c) The Delaware Trustee shall not be liable for the acts or omissions of the Owner Trustee or the
Administrator, nor shall the Delaware Trustee be liable for supervising or monitoring the performance of the duties and obligations of the Owner Trustee or the Trust under this Agreement. The Delaware Trustee shall not be answerable or accountable
hereunder or under any other Transaction Document under any circumstances, except (x) for its own willful misconduct, bad faith or negligence or (y) in the case of the inaccuracy of any representation or warranty contained in Section 7.3 expressly
made by the Delaware Trustee, in its individual capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence): 
  
 (i) the Delaware Trustee shall not be liable for any error of judgment made in good faith by a responsible
officer of the Delaware Trustee unless it is proved that the Delaware Trustee was negligent in ascertaining the pertinent facts; 
  
 (ii) no provision of this Agreement or any other Transaction Document shall require the Delaware Trustee to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder or under any other Transaction Document if the Delaware Trustee shall have reasonable grounds to
believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it; 
  
 (iii) under no circumstances shall the Delaware Trustee be personally liable for any representation, warranty, covenant, agreement or
indebtedness of the Trust; 
  
 (iv) the Delaware
Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor, the Owner Trustee, the Servicer or the Certificate Registrar; 
  
 (v) the Delaware Trustee shall incur no liability to anyone
in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper believed by it to be genuine and believed by it to be signed by the proper party or parties. The
Delaware Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of determination of which is not specifically prescribed herein, the Delaware Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to such fact or matter and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance
thereon; 
  
 (vi) in the exercise or
administration of the trust hereunder, the Delaware Trustee (A) may act directly or through agents or attorneys pursuant to agreements entered into with any of them, and the Delaware Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee with reasonable care and (B) may consult with 

  

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counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it, and the Delaware Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the written opinion or advice of any such counsel, accountants or other such Persons and not contrary to this Agreement or any other Transaction Document; and 
  
 (vii) except as expressly provided in this Section 10.6, in
accepting and performing the trust hereby created, The Bank of New York (Delaware) acts solely as Delaware Trustee hereunder and not in its individual capacity, and all Persons having any claim against the Delaware Trustee by reason of the
transactions contemplated by this Agreement or any other Transaction Document shall look only to the Owner Trust Estate for payment or satisfaction thereof. 
  
 (d) The Delaware Trustee (or any successor trustee) shall be entitled to receive compensation from the Servicer for its services in accordance with such
schedules as shall have been separately agreed to from time to time by the Delaware Trustee and the Servicer. The Delaware Trustee may consult with counsel (who may be counsel for the Owner Trustee or for the Delaware Trustee). The reasonable legal
fees incurred in connection with such consultation shall be reimbursed to the Delaware Trustee pursuant to Article 8. 
  
 (e) The Delaware Trustee shall serve for the duration of the Trust and until the earlier of (i) the effective date of the Delaware Trustee’s
resignation or (ii) the effective date of the removal of the Delaware Trustee. The Delaware Trustee may resign at any time by giving thirty (30) days written notice to the Administrator and the Depositor; provided, however, that such
resignation shall not be effective until such time as a successor Delaware Trustee has accepted such appointment. The Delaware Trustee may be removed at any time by the Administrator by providing thirty (30) days written notice to the Delaware
Trustee; provided, however, that such removal shall not be effective until such time as a successor Delaware Trustee has accepted such appointment. Upon the resignation or removal of the Delaware Trustee, the Administrator shall
appoint a successor Delaware Trustee. If no successor Delaware Trustee shall have been appointed and shall have accepted such appointment within forty-five (45) days after the giving of such notice of resignation or removal, the Delaware Trustee may
petition any court of competent jurisdiction for the appointment of a successor Delaware Trustee. Any successor Delaware Trustee appointed pursuant to this Section 10.6 shall be eligible to act in such capacity in accordance with this Agreement and,
following compliance with this Section, shall become fully vested with the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as Delaware Trustee. 
  
 (f) The Delaware Trustee shall not be obligated to give any bond or other
security for the performance of any of its duties hereunder. 
  

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 ARTICLE XI 
 MISCELLANEOUS 
  
 SECTION 11.1
Supplements and Amendments. 
  
 (a) This Agreement may be
amended from time to time by the Depositor and the Owner Trustee with prior written notice to the Rating Agencies, without the consent of any of the Noteholders or the Certificateholders to cure any ambiguity, to correct or supplement any provision
herein that may be inconsistent with any other provision herein or in any offering document used in connection with the initial offer and sale of the Notes or the Certificates or for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement which will not be inconsistent with other provisions of this Agreement; provided, however, that (i) no such amendment may materially adversely affect the interests of any
Noteholder or Certificateholder and (ii) no such amendment will be permitted unless an Opinion of Counsel is delivered to the Owner 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 outstanding Certificates or any Noteholder or Certificateholder. 
  
 (b) This Agreement may be amended from time to time by the Depositor and the
Owner Trustee with prior written notice to the Rating Agencies, with the consent of the Holders (as defined in the Indenture) of Notes evidencing not less than 51% of the Note Balance or, if the Notes have been paid in full, the Holders of
Certificates evidencing not less than 51% of the aggregate Certificate Percentage Interest, for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Agreement or modifying in any manner the
rights of the Noteholders or the Certificateholders; provided, however, that (x) no such amendment will be permitted unless an Opinion of Counsel is delivered to the Owner 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 outstanding Certificates or any Noteholder
or Certificateholder and (y) 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 the Certificateholders, or change any Note Rate, without the consent of all Noteholders and Certificateholders adversely affected by such amendment; 
  
 (ii) reduce the percentage of the Note Balance or the percentage of the aggregate Certificate Percentage
Interest the consent of the Holders of which is required for any amendment to this Agreement without the consent of all the Noteholders and Certificateholders adversely affected by the amendment; or 
  
 (iii) adversely affect the rating assigned by any Rating
Agency to any Class of Notes without the consent of the Holders (as defined in the Indenture) of Notes 

  

 32 








 
evidencing not less than 66 2/3% of the aggregate principal amount of the then outstanding Notes of such Class. 
  
 (c) An amendment to this Agreement shall be deemed not to materially
adversely affect the interests of any Noteholder or Certificateholder if (i) the Person requesting such amendment obtains and delivers to the Owner Trustee an Opinion of Counsel to that effect or (ii) the Rating Agency Condition is satisfied.

  
 (d) Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification of the substance of such amendment or consent to each Certificateholder and the Depositor shall furnish written notice of the substance of such amendment or consent to the Indenture
Trustee and the Rating Agencies. 
  
 (e) It shall not be necessary
for the consent of the Certificateholders, the Noteholders or the Indenture Trustee pursuant to this Section 11.1 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 Certificateholders provided for in this Agreement or in any other Transaction Document) and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the Owner Trustee may prescribe. 
  
 (f) Promptly after the execution of any amendment to the Certificate of Trust, the Owner Trustee shall file such amendment or cause such amendment to be
filed with the Secretary of State. 
  
 (g) The Owner Trustee may,
but shall not be obligated to, enter into any such amendment that affects the Owner Trustee’s own rights, duties, liabilities or immunities under this Agreement or otherwise. 
  
 (h) Prior to the execution of any amendment to this Agreement or any amendment to any other agreement to which the Trust is
a party, the Owner Trustee shall be entitled to receive and shall be fully protected in relying upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and that all conditions precedent in
this Agreement to the execution and delivery of such amendment have been satisfied. 
  
 SECTION 11.2 No Legal Title to Owner Trust Estate in Certificateholders. The Certificateholders shall not have legal title to any part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided beneficial interest therein only in accordance with Articles V and IX. No transfer, by operation of law or otherwise, of any right, title or interest of the Certificateholders in and to their
beneficial interest in the Owner Trust Estate shall operate to terminate this Agreement or the trusts hereunder or entitle any transferee to an accounting or to the transfer to it of legal title to any part of the Owner Trust Estate. 
  
 SECTION 11.3 Limitation on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the Administrator, the Certificateholders, the Servicer and, to the extent expressly provided herein, the Indenture 

  

 33 








 
Trustee and the Noteholders, and nothing in this Agreement or in the Certificates, whether express or implied, shall be construed to give to any other Person
any legal or equitable right, remedy or claim in the Owner Trust Estate or under or in respect of this Agreement or any covenants, conditions or provisions contained herein. 
  
 SECTION 11.4 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 Owner Trustee, at the Corporate Trust Office, (ii) in
the case of the Depositor, at the following address: 4900 Cox Road, Suite 200, Glen Allen, Virginia 23060, Attention: Treasurer, (iii) in the case of the Indenture Trustee, at the Corporate Trust Office (as defined in the Indenture), (iv) 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 (v) 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. Any notice required or permitted to be mailed to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such Holder as shown in the Certificate Register. Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given,
whether or not the Certificateholder shall receive such notice. 
  
 SECTION 11.5 Severability. If any provision of this Agreement or the Certificates shall be held for any reason whatsoever invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of
this Agreement and the Certificates shall not in any way be affected or impaired thereby. 
  
 SECTION 11.6 Separate Counterparts. This Agreement may be executed in any number of counterparts, each of which counterparts when so executed shall be deemed to be an original, and all of which counterparts
shall together constitute but one and the same instrument. 
  
 SECTION 11.7 Successors and Assigns. All covenants and agreements in this Agreement and the Certificates shall be binding upon, and inure to the benefit of, the Depositor, the Owner Trustee and its successors and each
Certificateholder and its successors and permitted assigns, all as herein provided. Any request, notice, direction, consent, waiver or other instrument or action by a Certificateholder shall bind the successors and assigns of such Certificateholder.

  
 SECTION 11.8 Covenants of the Depositor. The Depositor
shall not at any time institute against the Trust, or join in any institution against the Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the Certificates, the Notes, this Agreement or any of the other Transaction Documents. 
  

 34 








 SECTION 11.9 No Petition. To the fullest extent permitted by applicable law, the Owner Trustee
(not in its individual capacity but solely as Owner Trustee), by entering into this Agreement, each Certificateholder, by accepting a Certificate, and the Indenture Trustee and each Noteholder, by accepting the benefits of this Agreement, hereby
covenant and agree that they will not at any time institute against the Depositor or the Trust, or join in any institution against the Depositor or the Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Certificates, the Notes, this Agreement or any of the other Transaction Documents. 
  
 SECTION 11.10 No Recourse. Each Certificateholder, by accepting a
Certificate, acknowledges that the Certificates represent beneficial interests in the Trust only and do not represent interests in or obligations of the Depositor, the Servicer, the Administrator, the Owner Trustee, the Indenture Trustee or any
Affiliate thereof, and no recourse may be had against such parties or their assets, except as may be expressly set forth or contemplated in this Agreement, the Certificates or the other Transaction Documents. 
  
 SECTION 11.11 Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not define or limit any of the terms or provisions hereof. 
  
 SECTION 11.12 Governing Law. This Agreement shall be construed in accordance with the laws of the State of Delaware and the obligations, rights and
remedies of the parties under this Agreement shall be determined in accordance with such laws. 
  
 SECTION 11.13 Depositor Payment Obligation. The Depositor shall be responsible for payment of the Administrator’s compensation under the Administration Agreement and shall reimburse the Administrator for
all expenses and liabilities of the Administrator incurred under the Administration Agreement. 
  
 SECTION 11.14 Certificates Nonassessable and Fully Paid. The Certificateholders shall not be personally liable for the obligations of the Trust. The interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any reason whatsoever, and, upon the authentication thereof by the Owner Trustee pursuant to Section 3.3, 3.4 or 3.5, the Certificates are and shall be deemed fully paid. 
  
 SECTION 11.15 Ratification of Prior Actions. Any actions taken by the
Owner Trustee or the Delaware Trustee in connection with the opening of bank accounts, deposit of monies into such accounts, obtaining of sales finance company licenses on behalf of the Trust and any actions related thereto are hereby confirmed and
ratified in all respects, and the Owner Trustee and the Delaware Trustee shall be entitled to the indemnity provided for in Section 8.2 with respect to such actions. 
  
 [SIGNATURE PAGE FOLLOWS] 
  

 35 








 IN WITNESS WHEREOF, the Depositor, the Delaware Trustee and the Owner Trustee have caused this Agreement
to be duly executed by their respective officers, thereunto duly authorized and duly attested, all as of the day and year first above written. 
  

			
	 CARMAX AUTO FUNDING LLC,
 as Depositor

		
	 By:
	 	/s/ Thomas W. Reedy
	 	 	Name: Thomas W. Reedy
	 	 	Title: Treasurer
	
	 THE BANK OF NEW YORK (DELAWARE),
 as Delaware
Trustee

		
	 By:
	 	/s/ William T. Lewis
	 	 	Name: William T. Lewis
	 	 	Title: Senior Vice President
	
	 THE BANK OF NEW YORK,
 as Owner
Trustee

		
	 By:
	 	/s/ Anna Bourtman
	 	 	Name: Anna Bourtman
	 	 	Title: Assistant Treasurer


  
 Accepted and agreed: 

 

			
	 CARMAX AUTO SUPERSTORES, INC.,
 as
Servicer

		
	 By:
	 	/s/ Keith D. Browning
	 	 	Name: Keith D. Browning
	 	 	Title: Chief Financial Officer

  

 S-1 








 Exhibit A 
 Form of Certificate 
  
 THIS ASSET BACKED CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES TO THE EXTENT DESCRIBED IN THE TRUST AGREEMENT, THE SALE AND SERVICING AGREEMENT AND THE INDENTURE REFERRED TO HEREIN. 
  

					
	 REGISTERED
	 	 	 	NO. R-1

  
 CARMAX AUTO OWNER TRUST
2004-2 
  
 ASSET-BACKED CERTIFICATE 
  
 evidencing a beneficial interest in the property of CarMax Auto Owner Trust 2004-2, a
Delaware statutory trust (the “Trust”), which property includes a pool of retail installment sale contracts secured by new and used motor vehicles sold by CarMax Auto Superstores, Inc., a Virginia corporation (the
“Seller”), to CarMax Auto Funding LLC, a Delaware limited liability company (the “Depositor”), and sold by the Depositor to the Trust. The property of the Trust (other than the Certificate Payment Account and the
proceeds thereof) has been pledged by the Trust to The Bank of New York, a New York banking corporation, as Indenture Trustee (in such capacity, the “Indenture Trustee”), pursuant to an Indenture dated as of October 1, 2004 (as
amended, supplemented or otherwise modified from time to time, the “Indenture”) between the Trust and the Indenture Trustee to secure the payment of the Notes issued thereunder. 
  
 This certifies that CARMAX AUTO FUNDING LLC is the registered owner of a 100%
Certificate Percentage Interest nonassessable, fully paid, beneficial interest in the Trust. The Trust was created pursuant to a Trust Agreement dated as of August 12, 2004 among the Depositor, The Bank of New York (Delaware), not in its individual
capacity but solely as Delaware Trustee (in such capacity, the “Delaware Trustee”), and The Bank of New York, not in its individual capacity but solely as Owner Trustee (in such capacity, the “Owner Trustee”), and
as amended and restated by an Amended and Restated Trust Agreement dated as of October 1, 2004 (as amended, supplemented or otherwise modified and in effect from time to time, the “Trust Agreement”) among the Depositor and the Owner
Trustee, a summary of certain of the pertinent provisions of which is set forth below. Capitalized terms used but not defined herein have the meanings assigned to them in the Trust Agreement or in the Sale and Servicing Agreement dated as of October
1, 2004 (as amended, supplemented or otherwise modified and in effect from time to time, the “Sale and Servicing Agreement”) among the Trust, the Depositor, and CarMax Auto Superstores, Inc., as servicer (in such capacity, the
“Servicer”). 
  
 This Certificate is issued under
and is subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. The property of the 

  

 A-1 








 
Trust includes: (i) a pool of retail installment sale contracts originated in connection with the sale of new or used motor vehicles (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 and any other interest of
the Seller or the Depositor in such Financed Vehicles; (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, the Reserve Account and the Secondary 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;
(viii) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Trust; and (ix) 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. 
  
 THE RIGHTS OF THE TRUST IN THE FOREGOING PROPERTY OF THE TRUST (OTHER THAN
THE CERTIFICATE PAYMENT ACCOUNT AND THE PROCEEDS THEREOF) HAVE BEEN PLEDGED TO THE INDENTURE TRUSTEE TO SECURE THE PAYMENT OF THE NOTES. 
  
 Pursuant to the Trust Agreement, there will be distributed on each Distribution Date to the person in whose name this Certificate is registered at the
close of business on the Business Day preceding such Distribution Date such Certificateholder’s Certificate Percentage Interest in the amount to be distributed to Certificateholders on such Distribution Date. 
  
 “Distribution Date” means the 15th day of each month or, if
such 15th day is not a Business Day, the following Business Day, commencing on November 15, 2004. 
  
 THE HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND AGREES THAT ITS RIGHTS TO RECEIVE DISTRIBUTIONS IN RESPECT OF THIS CERTIFICATE ARE SUBORDINATED TO THE
RIGHTS OF THE NOTEHOLDERS AS DESCRIBED IN THE TRUST AGREEMENT, THE SALE AND SERVICING AGREEMENT AND THE INDENTURE. 
  
 It is the intent of the Depositor, the Seller, the Servicer and the Certificateholders that, for purposes of federal income taxes, state and local income
taxes and any other income taxes, the Trust will be treated either as a disregarded entity under Treasury Regulation Section 301.7701-3 or as a partnership, and that the Certificateholders (including the Depositor) will be 

  

 A-2 








 
treated as partners in that partnership. The Certificateholders, by acceptance of a Certificate, agree to such treatment and agree to take no action
inconsistent with such treatment. 
  
 Each Certificateholder, by
its acceptance of a Certificate, covenants and agrees that such Certificateholder will not at any time institute against the Depositor or the Trust, or join in any institution against the Depositor or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, the Certificates, the Trust Agreement or any of the other Transaction
Documents. 
  
 Distributions on this Certificate will be made as
provided in the Trust Agreement by the Paying Agent by wire transfer or check mailed to the Certificateholder of record in the Certificate Register without the presentation or surrender of this Certificate or the making of any notation hereon.
Except as otherwise provided in the Trust Agreement and notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Owner Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency of the Certificate Registrar maintained for that purpose in the Borough of Manhattan, The City of New York. 
  
 Reference is hereby made to the further provisions of this Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if fully set forth on the face of this Certificate. 
  
 Unless the certificate of authentication hereon has been executed by an authorized officer of the Owner Trustee, by manual signature, this Certificate
shall not entitle the Holder hereof to any benefit under the Trust Agreement or the Sale and Servicing Agreement or be valid for any purpose. 
  
 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 
  

 A-3 








 In WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its individual capacity, has
caused this Certificate to be duly executed as of the date set forth below. 
  
 Dated: October 6, 2004 
  

			
	 CARMAX AUTO OWNER TRUST 2004-2,

		
	 By:
	 	 THE BANK OF NEW YORK,
 not in its individual capacity but solely as
 Owner Trustee

		
	 By:
	 	 
	 	 	 Name:

	 	 	 Title:



  
 OWNER
TRUSTEE’S CERTIFICATE OF AUTHENTICATION 
  
 This is one of
the Certificates referred to in the within-mentioned Trust Agreement. 
  
 Dated:
October 6, 2004 
  

			
	 THE BANK OF NEW YORK,
 not in its individual capacity but solely as Owner
 Trustee

		
	 By:
	 	 
	 	 	 Name:

	 	 	 Title:



  

 A-4 








 [REVERSE OF CERTIFICATE] 
  
 This Certificate does not represent an obligation of, or an interest in, the Depositor, the Seller, the Servicer, the
Administrator, the Owner Trustee or any Affiliates of any of them, and no recourse may be had against such parties or their assets, except as may be expressly set forth or contemplated herein, in the Trust Agreement or in the other Transaction
Documents. In addition, this Certificate is not guaranteed by any governmental agency or instrumentality and is limited in right of payment to certain collections with respect to the Receivables (and certain other amounts), all as more specifically
set forth herein and in the Sale and Servicing Agreement. 
  
 The
Trust Agreement permits the Depositor and the Owner Trustee, on behalf of the Trust, with certain exceptions therein provided, to amend or waive from time to time certain terms and conditions set forth in the Trust Agreement without the consent of
the Holders of the Certificates. The Trust Agreement also permits the Depositor and the Owner Trustee, on behalf of the Trust, with certain exceptions as therein provided, to amend or waive certain terms and conditions set forth in the Trust
Agreement with the consent of the Holders of the Notes evidencing not less than 51% of the Note Balance and the Holders of Certificates evidencing not less than 51% of the aggregate Certificate Percentage Interest. Any such consent or waiver by the
Holder of this Certificate shall be conclusive and binding on such Holder and on all future Holders of this Certificate and of any Certificate issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Certificate. 
  
 As provided in the Trust Agreement and subject to certain limitations therein set forth, the Transfer of this Certificate may be registered in the Certificate Register upon surrender of this Certificate for registration of Transfer at the
office or agency of the Certificate Registrar maintained for that purpose in the Borough of Manhattan, The City of New York and a written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates in any authorized denomination and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service
charge shall be made for any registration of Transfer or exchange of Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection
therewith. The initial Certificate Registrar appointed under the Trust Agreement is the Owner Trustee. 
  
 Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have represented and warranted that such Certificateholder (A) is not an
employee benefit plan or arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code (a “Plan”), nor a person acting on behalf of a Plan nor using the assets of a Plan to effect the transfer of such
Certificate, and (B) is not an insurance company purchasing a Certificate with funds contained in an “insurance company general account” (as defined in Section V(e) of Prohibited Transaction Class Exemption 95-60) that includes the assets
of a Plan for purposes of the Plan Asset Regulation. 
  

 A-5 








 Any person who is not an affiliate of the Seller and acquires more than 49.9% of the Certificates will be
deemed to represent that it is not a party in interest (within the meaning of ERISA) or a disqualified person (within the meaning of Section 4975(e)(2) of the Code) with respect to any Plan, other than a Plan that it sponsors for the benefit of its
employees, and that no Plan with respect to which it is a party in interest has or will acquire any interest in the Notes. 
  
 The Certificates are issuable only in registered form in denominations as provided in the Trust Agreement, subject to certain limitations therein set
forth. 
  
 The Owner Trustee, the Certificate Registrar and any
Paying Agent may treat the Person in whose name this Certificate is registered in the Certificate Register (as of the day of determination) as the owner of this Certificate for the purpose of receiving distributions pursuant to the Trust Agreement
and for all other purposes whatsoever, and none of the Owner Trustee, the Certificate Registrar or any Paying Agent shall be bound by any notice to the contrary. 
  
 The Trust Agreement, with certain exceptions therein provided, and the Trust shall terminate and be of no further force or
effect upon the earlier of (i) the payment to the Servicer, the Noteholders and the Certificateholders of all amounts required to be paid to them pursuant to the terms of the Indenture, the Sale and Servicing Agreement and the Trust Agreement and
(ii) the Distribution Date next succeeding the month which is one year after the maturity or other liquidation of the last Receivable and the disposition of any amounts received upon liquidation of any property remaining in the Trust. 
  
 This Certificate shall be governed by, and construed in accordance with, the
laws of the State of Delaware, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 
  

 A-6 








 ASSIGNMENT 
  
 SOCIAL SECURITY NUMBER 
 OR OTHER IDENTIFICATION 
 NUMBER OF ASSIGNEE:                      
  
 FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
___________________________________ 
                                       
                                        
                                        
                                        
                                        
                                        
                    
                                       
                                        
                                        
                                        
                                        
                                        
                    
 (name and address of
assignee) 
  
 the within Certificate and all rights thereunder, and hereby
irrevocably constitutes and appoints
                                    , attorney, to transfer
said Certificate on the Certificate Register, with full power of substitution in the premises. 
  
 Dated: 
  

			
		
	 	 	*/
		
	 Signature Guaranteed:
	 	 
		
	 	 	*/


  

	*/	NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Certificate in every particular, without
alteration, enlargement or any change whatsoever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Certificate Registrar. 

  

 A-7 








 Exhibit B 
 Form of Certificate of Trust 
  
 Certificate of Trust of CarMax Auto Owner Trust 2004-2 
  
 This Certificate of Trust of CarMax Auto Owner Trust 2004-2 (the “Trust”) is being duly executed and filed by The Bank of New York, a New York banking corporation, as owner trustee (the “Owner Trustee”), and The Bank of
New York (Delaware), a Delaware banking corporation, as Delaware trustee (the “Delaware Trustee”), to form a statutory trust under the Delaware Statutory Trust Act (12 Del. Code, § 3801 et seq.) (the “Act”).

  
 1. Name. The name of the statutory trust formed hereby
is CarMax Auto Owner Trust 2004-2. 
  
 2. Delaware Trustee.
The name and business address of a trustee of the Trust having its principal place of business in the State of Delaware is The Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711. 
  
 3. Effective Date. This Certificate of Trust shall be effective upon
its filing with the Secretary of State of the State of Delaware. 
  
 IN WITNESS WHEREOF, the undersigned has executed this Certificate of Trust in accordance with Section 3811(a)(1) of the Act. 
  

			
	 THE BANK OF NEW YORK,
 as Owner Trustee

		
	 By:
	 	 
	 	 	 Name:

	 	 	 Title:



  

			
	 THE BANK OF NEW YORK (DELAWARE),
 as Delaware Trustee

		
	 By:
	 	 
	 	 	 Name:

	 	 	 Title:



  

 B-1