TABLE OF CONTENTS Sample Clauses: 18k Samples

TABLE OF CONTENTS. Article I DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Indenture (CarMax Auto Owner Trust 2023-3), Indenture (CarMax Auto Owner Trust 2023-3)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 ~~Article~~ ARTICLE II THE NOTES 3 4 Section 2.1 Form 3 4 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 ~~Article~~ ARTICLE III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 ~~Article~~ ARTICLE IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 ~~Article~~ ARTICLE V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; ~~Priorities~~ Priorities. 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 ~~Article~~ ARTICLE VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 ~~Article~~ ARTICLE VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 ~~Article~~ ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 ~~Article~~ ARTICLE IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 ~~Article~~ ARTICLE X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 ~~Article~~ ARTICLE XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.72

Appears in 2 contracts

Sources: Indenture (CarMax Auto Owner Trust 2024-4), Indenture (Carmax Auto Funding LLC)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I ~~DEFINITIONS AND INCORPORATION BY REFERENCE~~ THE OFFER 2 Section 1.1 ~~Definitions~~ The Offer 2 Section 1.2 ~~Incorporation by Reference of Trust Indenture Act 2~~ Company Actions 4 Section 1.3 ~~Rules~~ Top-Up Option 6 Section 1.4 Stockholder Meeting 7 Section 1.5 Offer Documents; Schedule 13E-3; Schedule 14D9; Proxy Statement 8 Section 1.6 Transfer of ~~Construction 2 Article~~ Five Star Note to Parent or Purchaser; Conversion of Five Star Note. 8 ARTICLE II THE ~~NOTES 3~~ MERGER 9 Section 2.1 ~~Form 3~~ The Merger 9 Section 2.2 ~~Execution, Authentication and Delivery 4~~ Closing 9 Section 2.3 ~~Temporary Notes 5~~ Effective Time 9 Section 2.4 ~~Tax Treatment 5~~ Effects of the Merger 9 Section 2.5 ~~Registration; Registration~~ Certificate of ~~Transfer~~ Incorporation and ~~Exchange 6~~ By-laws of the Surviving Corporation 9 Section 2.6 ~~Mutilated, Destroyed, Lost or Stolen Notes 7~~ Directors and Officers of the Surviving Corporation 9 Section 2.7 ~~Persons Deemed Owners 8~~ Conversion of Securities 10 Section 2.8 ~~Payments 8~~ Exchange of Certificates 10 Section 2.9 ~~Cancellation~~ Appraisal Rights 13 Section 2.10 ~~Release of Collateral~~ Company Equity Awards 13 Section 2.11 Rule 16b-3 14 ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY 14 Section ~~2.11 Book-Entry Notes~~ 3.1 Organization, Standing and Corporate Power 14 Section ~~2.12 Notices to Clearing Agency~~ 3.2 Capitalization 15 Section ~~2.13 Definitive Notes 15~~ 3.3 Authority; Noncontravention; Voting Requirements 16 Section ~~2.14 Authenticating Agents 15~~ 3.4 Governmental Approvals 18 Section ~~2.15 Retained Notes 16 Article III COVENANTS~~ 3.5 Company SEC Documents; Undisclosed Liabilities 18 Section 3.6 Absence of Certain Changes or Events 20 Section ~~3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement~~ 3.7 Legal Proceedings 20 Section ~~3.2 Maintenance of Office or Agency~~ 3.8 Compliance With Laws; Permits 20 Section 3.9 Information Supplied 21 Section 3.10 Tax Matters 22 Section ~~3.3 Money for Payments To Be Held in Trust~~ 3.11 Opinion of Financial Advisor 22 Section ~~3.4 Existence~~ 3.12 Brokers and Other Advisors 22 Section 3.13 State Takeover Statutes 23 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER 23 Section ~~3.5 Protection of Trust Estate~~ 4.1 Organization 23 Section 4.2 Authority; Noncontravention 23 Section 4.3 Government Approvals 24 Section ~~3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables~~ 4.4 Information Supplied 25 Section ~~3.8 Negative Covenants 27~~ 4.5 Ownership and Operations of Purchaser 25 Section ~~3.9 Annual Statement as to Compliance 28~~ 4.6 Financing 25 Section ~~3.10 Issuer May Consolidate, etc., Only on Certain Terms 28~~ 4.7 Legal Proceedings 25 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co4.8 Material Non-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.Public Information 26

Appears in 2 contracts

Sources: Tender Offer and Merger Agreement (National Patent Development Corp), Tender Offer and Merger Agreement (Five Star Products Inc)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trusts and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 22 ~~Section 3.3 Money~~ SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 25 SECTION 7.1. Owner Trustee’s Fees and Expenses 25 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 26 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 29 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 33 SECTION 10.6. Separate Counterparts 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 33 SECTION 10.10. GOVERNING LAW 33 SECTION 10.11. Servicer 34 SECTION 10.12. Nonpetition Covenants 34 SECTION 10.13. Regulation AB 34 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 35 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 36 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~June 12, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2019, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of April 17, 2019, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (AmeriCredit Automobile Receivables Trust 2019-2), Trust Agreement (AmeriCredit Automobile Receivables Trust 2019-2)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 5 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 11 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 16 SECTION 5.1. General Authority 16 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trusts and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 21 SECTION 6.4. Reliance; Advice of Counsel 22 ~~Section 3.3 Money~~ SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 24 SECTION 6.12. Beneficial Ownership and Control of Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 25 SECTION 7.1. Owner Trustee’s Fees and Expenses 25 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 26 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 26 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance~~ Agreement 26 ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 29 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~29 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 32 SECTION 10.6. Separate Counterparts 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 33 SECTION 10.10. GOVERNING LAW 33 SECTION 10.11. Servicer 33 SECTION 10.12. Nonpetition Covenants 34 SECTION 10.13. Regulation AB 34 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 35 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 36 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~October 16, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2019, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of August 29, 2019, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2019-4), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2019-4)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trusts and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 22 ~~Section 3.3 Money~~ SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 25 SECTION 7.1. Owner Trustee’s Fees and Expenses 25 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 26 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 29 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 33 SECTION 10.6. Separate Counterparts 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 33 SECTION 10.10. GOVERNING LAW 33 SECTION 10.11. Servicer 34 SECTION 10.12. Nonpetition Covenants 34 SECTION 10.13. Regulation AB 34 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 35 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 36 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~March 13, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2019, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of January 23, 2019, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (AmeriCredit Automobile Receivables Trust 2019-1), Trust Agreement (AmeriCredit Automobile Receivables Trust 2019-1)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 ~~Article~~ ARTICLE II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 ~~Article~~ ARTICLE III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 ~~Article~~ ARTICLE IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 ~~Article~~ ARTICLE V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 ~~Article~~ ARTICLE VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 ~~Article~~ ARTICLE VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 ~~Article~~ ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 ~~Article~~ ARTICLE IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 ~~Article~~ ARTICLE X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 ~~Article~~ ARTICLE XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 74 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of ~~July~~ January 1, ~~2023~~ 2025 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST ~~2023~~2025-31, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s ~~5.631~~4.408% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), ~~5.72~~4.63% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), ~~5.28~~4.84% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), ~~5.26~~4.95% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), ~~5.47~~5.11% Class B Asset-backed Notes (the “Class B Notes”), ~~5.61~~5.26% Class C Asset-backed Notes (the “Class C Notes”) and ~~6.44~~5.60% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Indenture (CarMax Auto Owner Trust 2025-1), Indenture (Carmax Auto Funding LLC)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 4 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 5 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 6 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 7 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 12 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 20 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 22 ~~Section 3.3 Money~~ SECTION 6.3. Representations and Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 24 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 24 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 25 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 26 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 27 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 29 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 33 SECTION 10.4. Notices 33 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 34 SECTION 10.8. No Recourse 34 SECTION 10.9. Headings 34 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 34 SECTION 10.13. Nonpetition Covenants 35 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 36 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 36 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~October 11, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2023, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of August 22, 2023, between the ~~“Indenture Trustee”). Each party agrees as follows for~~ Seller and the ~~benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Owner Trustee (the “~~Class A-1 Notes~~Initial Trust Agreement”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2023-4), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2023-4)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 5 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 11 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power. 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trusts and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 22 ~~Section 3.3 Money~~ SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 25 SECTION 7.1. Owner Trustee’s Fees and Expenses 25 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 26 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 29 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 33 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 34 SECTION 10.13. Nonpetition Covenants 34 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 36 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~October 14, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2020, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of August 27, 2020, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2020-4), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2020-4)

TABLE OF CONTENTS. ~~Article I~~ ARTICLE I. DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 4 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 5 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 6 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust. 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 7 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 12 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 15 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 20 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 22 ~~Section 3.3 Money~~ SECTION 6.3. Representations and Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 24 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 24 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 25 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 26 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 27 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 29 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 33 SECTION 10.4. Notices 33 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 34 SECTION 10.8. No Recourse 34 SECTION 10.9. Headings 34 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 34 SECTION 10.13. Nonpetition Covenants 35 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 36 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 36 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~January 17, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2024, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of November 28, 2023, between the ~~“Indenture Trustee”). Each party agrees as follows for~~ Seller and the ~~benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Owner Trustee (the “~~Class A-1 Notes~~Initial Trust Agreement”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2024-1), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2024-1)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2~~ 1 Section 1.1 Definitions 2 1 Section 1.2 ~~Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of~~ Construction ~~2 Article~~ 4 ARTICLE II ~~THE NOTES 3~~ ORGANIZATION 4 Section 2.1 ~~Form 3~~ Formation 4 Section 2.2 ~~Execution, Authentication and Delivery~~ Name 4 Section 2.3 ~~Temporary Notes~~ Registered Office; Registered Agent; Principal Office; Other Offices 4 Section 2.4 Purposes 4 Section 2.5 Qualification in Other Jurisdictions 4 Section 2.6 Powers 4 Section 2.7 Power of Attorney 5 Section ~~2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange~~ 2.8 Term 6 Section ~~2.6 Mutilated, Destroyed, Lost or Stolen Notes~~ 2.9 Certificate of Formation 6 ARTICLE III MEMBERS AND UNITS 6 Section 3.1 Members 6 Section 3.2 Authorization to Issue Units 7 Section ~~2.7 Persons Deemed Owners~~ 3.3 Certificates 7 Section 3.4 Record Holders 7 Section 3.5 Registration and Transfer of Units 8 Section ~~2.8 Payments~~ 3.6 Agreements 8 ARTICLE IV DISTRIBUTIONS AND REDEMPTIONS 8 Section ~~2.9 Cancellation 13~~ 4.1 Distributions to Record Holders 8 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 4.2 Payment of ~~Principal~~ Taxes 9 Section 4.3 Absence of Certain Other Rights 9 ARTICLE V MANAGEMENT AND OPERATION OF BUSINESS 9 Section 5.1 Power and ~~Interest; Determination~~ Authority of ~~SOFR; Benchmark Replacement 20~~ the Manager 9 Section ~~3.2 Maintenance~~ 5.2 Term and Withdrawal of ~~Office or Agency 22~~ the Manager 11 Section ~~3.3 Money for Payments To Be Held in Trust 22~~ 5.3 Determinations by the Manager 11 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate5.4 Exculpation, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, LoansIndemnification, Advances and ~~Other Liabilities 30~~ Insurance 12 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance 5.5 Duties of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission Manager and ~~Annulment 35 Section 5.3 Collection of Indebtedness~~ its Officers and ~~Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41~~ Managers 14 Section 5.6 ~~Limitation of Suits 42~~ Outside Activities 14 Section 5.7 ~~Unconditional Rights of Noteholders to Receive Principal and Interest 42~~ Reliance by Third Parties 14 Section 5.8 ~~Restoration~~ Reimbursement of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article Expenses 14 ARTICLE VI ~~THE INDENTURE TRUSTEE 46~~ BOOKS, RECORDS, ACCOUNTING AND REPORTS 15 Section 6.1 ~~Duties of Indenture Trustee 46~~ Records and Accounting 15 Section 6.2 ~~Rights of Indenture Trustee 48~~ Fiscal Year 15 Section 6.3 ~~Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6~~ Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.15

Appears in 2 contracts

Sources: Limited Liability Company Agreement (One Chestnut Realty LLC), Limited Liability Company Agreement (Solis Seattle, LLC)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I ~~DEFINITIONS AND INCORPORATION BY REFERENCE~~ DEFINITIONS; INTERPRETATION 2 Section ~~1.1~~ 1.01 Definitions 2 Section ~~1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article~~ 1.02 Interpretation 11 ARTICLE II THE ~~NOTES 3~~ MERGER 12 Section ~~2.1 Form 3~~ 2.01 The Merger 12 Section ~~2.2 Execution, Authentication~~ 2.02 Bank Merger 12 Section 2.03 Effects of the Merger 12 Section 2.04 Constituent Documents 12 Section 2.05 Directors and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation Executive Officers 13 Section 2.06 Merger Consideration 13 Section 2.07 Anti-Dilutive Adjustment 15 Section 2.08 Dissenting Shares 15 Section 2.09 Rights as Shareholders; Stock Transfers 16 Section 2.10 ~~Release of Collateral 14~~ Exchange Procedures 16 Section 2.11 ~~Book-Entry Notes 14~~ Rights of Certificate Holders after the Effective Time 17 Section 2.12 ~~Notices~~ Modification of Structure 18 ARTICLE III THE CLOSING AND THE CLOSING DATE 18 Section 3.01 Effective Time; Time and Place of the Closing and Closing Date 18 Section 3.02 Actions to ~~Clearing Agency 15~~ be Taken at the Closing by BFST 19 Section ~~2.13 Definitive Notes 15~~ 3.03 Actions to be Taken at the Closing by TCBI 19 Section ~~2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS~~ 3.04 Additional Actions 20 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BFST 20 Section ~~3.1 Payment of Principal~~ 4.01 Organization and ~~Interest~~Qualification 21 Section 4.02 Capitalization 21 Section 4.03 Execution and Delivery; ~~Determination of SOFR; Benchmark Replacement 20~~ No Violation 21 Section ~~3.2 Maintenance of Office or Agency~~ 4.04 BFST Financial Statements 22 Section ~~3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence~~ 4.05 Compliance with Laws and Regulatory Filings 23 Section ~~3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables~~ 4.06 SEC Reports 25 Section ~~3.8 Negative Covenants~~ 4.07 Consents and Approvals 25 Section 4.08 Absence of Certain Changes or Events 25 Section 4.09 Proceedings 25 Section 4.10 Undisclosed Liabilities 26 Section 4.11 BFST Contracts 26 Section 4.12 Taxes and Tax Returns 26 Section 4.13 Loans and Related Matters 27 Section ~~3.9 Annual Statement as to Compliance~~ 4.14 Employee Relationships 28 Section ~~3.10 Issuer May Consolidate, etc., Only on Certain Terms 28~~ 4.15 Regulatory Matters 29 Section ~~3.11 Successor or Transferee~~ 4.16 Employee Benefit Plans 29 Section 4.17 Brokers 30 Section ~~3.12 No Other Business~~ 4.18 Proprietary Rights 30 Section ~~3.13 No Borrowing~~ 4.19 Representations Not Misleading 30 ~~Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures~~ ARTICLE V REPRESENTATIONS AND WARRANTIES OF TCBI 31 Section ~~3.17 Restricted Payments~~ 5.01 Organization and Qualification 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 5.02 Capitalization 32 Section ~~4.1 Satisfaction~~ 5.03 Execution and ~~Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes~~ Delivery; No Violation 33 Section ~~4.3 Application of Trust Money~~ 5.04 Compliance with Laws and Regulatory Filings 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.5.05 TCBI Financial Statements 35

Appears in 2 contracts

Sources: Merger Agreement (Business First Bancshares, Inc.), Merger Agreement (Business First Bancshares, Inc.)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 ~~Article~~ ARTICLE II THE NOTES 3 4 Section 2.1 ~~Form 3~~ Form. 4 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 ~~Article~~ ARTICLE III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 ~~Article~~ ARTICLE IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 32 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 ~~Article~~ ARTICLE V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 ~~Article~~ ARTICLE VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 ~~Article~~ ARTICLE VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 ~~Article~~ ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 ~~Article~~ ARTICLE IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 62 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 ~~Article~~ ARTICLE X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 ~~Article~~ ARTICLE XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, ~~etc~~ etc. 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.72

Appears in 2 contracts

Sources: Indenture (CarMax Auto Owner Trust 2025-2), Indenture (Carmax Auto Funding LLC)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 ~~Article~~ ARTICLE II THE NOTES 3 4 Section 2.1 Form 3 4 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 ~~Article~~ ARTICLE III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 ~~Article~~ ARTICLE IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 32 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 ~~Article~~ ARTICLE V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 ~~Article~~ ARTICLE VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 ~~Article~~ ARTICLE VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 ~~Article~~ ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 ~~Article~~ ARTICLE IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 ~~Article~~ ARTICLE X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 ~~Article~~ ARTICLE XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, ~~etc~~ etc. 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.72

Appears in 2 contracts

Sources: Indenture (CarMax Auto Owner Trust 2024-2), Indenture (Carmax Auto Funding LLC)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2~~ 1 Section 1.1 Definitions 2 1 Section 1.2 ~~Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article~~ Registrable Securities 5 ARTICLE II ~~THE NOTES 3~~ REGISTRATION RIGHTS 5 Section 2.1 ~~Form 3~~ Shelf Registration 5 Section 2.2 ~~Execution, Authentication and Delivery 4~~ Piggyback Registration 7 Section 2.3 ~~Temporary Notes 5~~ Underwritten Offering 9 Section 2.4 ~~Tax Treatment 5~~ Sale Procedures 10 Section 2.5 ~~Registration; Registration of Transfer and Exchange 6~~ Cooperation by Holders 14 Section 2.6 ~~Mutilated, Destroyed, Lost or Stolen Notes 7~~ Restrictions on Public Sale by Holders of Registrable Securities 14 Section 2.7 ~~Persons Deemed Owners 8~~ Expenses 15 Section 2.8 ~~Payments 8~~ Indemnification 15 Section 2.9 ~~Cancellation 13~~ Rule 144 Reporting 18 Section 2.10 ~~Release~~ Transfer or Assignment of ~~Collateral 14~~ Registration Rights 19 Section 2.11 ~~Book-Entry Notes 14~~ Limitation on Subsequent Registration Rights 19 Section 2.12 ~~Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article~~ Amendment and Restatement 19 ARTICLE III ~~COVENANTS 20~~ MISCELLANEOUS 19 Section 3.1 ~~Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20~~ Communications 19 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 20 Section ~~11.10~~ 3.3 Assignment of Rights 20 Section 3.4 Recapitalization, Exchanges, Etc. Affecting Units 20 Section 3.5 Aggregation of Registrable Securities 21 Section 3.6 Specific Performance 21 Section 3.7 Counterparts 21 Section 3.8 Headings 21 Section 3.9 Governing Law, Submission to Jurisdiction 21 Section 3.10 Waiver of Jury Trial 21 Section 3.11 Severability 70 of Provisions 22 Section ~~11.11 Benefits of Indenture 70~~ 3.12 Entire Agreement 22 Section ~~11.12 Legal Holiday 70~~ 3.13 Amendment 22 Section ~~11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70~~ 3.14 No Presumption 22 Section ~~11.14 Counterparts~~ 3.15 Obligations Limited to Parties to Agreement 22 Section 3.16 Interpretation 23 THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated entered into as of ~~July 1~~[·], ~~2023 (as amended~~by and between ENLINK MIDSTREAM, ~~supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3~~LLC, a Delaware ~~statutory trust~~ limited liability company (the “~~Issuer~~Company”), and ~~WILMINGTON TRUST~~ENFIELD HOLDINGS, ~~NATIONAL ASSOCIATION~~L.P., a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes Delaware limited partnership (the “~~Class A-1 Notes~~Purchaser”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Preferred Restructuring Agreement (EnLink Midstream, LLC), Preferred Restructuring Agreement (EnLink Midstream Partners, LP)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 4 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 5 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 6 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 7 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 12 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 13 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power. 14 SECTION 4.4. [Reserved] 15 SECTION 4.5. Action with Respect to Bankruptcy Action 15 SECTION 4.6. Covenants and Restrictions on Conduct of Business 16 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 18 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 20 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 22 ~~Section 3.3 Money~~ SECTION 6.3. Representations and Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 24 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 26 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 27 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 29 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 33 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 34 SECTION 10.8. No Recourse 34 SECTION 10.9. Headings 34 SECTION 10.10. GOVERNING LAW 34 SECTION 10.11. Servicer 34 SECTION 10.12. Nonpetition Covenants 35 SECTION 10.13. Regulation AB 35 SECTION 10.14. Force Majeure 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 36 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 36 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~March 16, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2022, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of February 1, 2022, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (AmeriCredit Automobile Receivables Trust 2022-1), Trust Agreement (AmeriCredit Automobile Receivables Trust 2022-1)

TABLE OF CONTENTS. ~~Article I~~ ARTICLE I. DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 12 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 13 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 15 SECTION 4.5. Action with Respect to Bankruptcy Action 15 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 18 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 20 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trusts and Duties 20 SECTION 6.2. Furnishing of Documents 22 ~~Section 3.3 Money~~ SECTION 6.3. Representations and Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 24 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 26 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 27 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 29 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 33 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 34 SECTION 10.9. Headings 34 SECTION 10.10. GOVERNING LAW 34 SECTION 10.11. Servicer 34 SECTION 10.12. Nonpetition Covenants 34 SECTION 10.13. Regulation AB 35 SECTION 10.14. Force Majeure 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 36 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 36 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~November 24, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2020, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of October 14, 2020, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (AmeriCredit Automobile Receivables Trust 2020-3), Trust Agreement (AmeriCredit Automobile Receivables Trust 2020-3)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 ~~Article~~ ARTICLE II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 ~~Article~~ ARTICLE III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 ~~Article~~ ARTICLE IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 ~~Article~~ ARTICLE V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 ~~Article~~ ARTICLE VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 51 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 ~~Article~~ ARTICLE VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 ~~Article~~ ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 ~~Article~~ ARTICLE IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 ~~Article~~ ARTICLE X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 ~~Article~~ ARTICLE XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.72

Appears in 2 contracts

Sources: Indenture (CarMax Auto Owner Trust 2024-3), Indenture (Carmax Auto Funding LLC)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 5 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 11 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power. 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trusts and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 22 ~~Section 3.3 Money~~ SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 25 SECTION 7.1. Owner Trustee’s Fees and Expenses 25 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 26 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 29 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 33 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 34 SECTION 10.13. Nonpetition Covenants 34 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 36 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~April 14, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2021, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of March 3, 2021, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2021-2), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2021-2)

TABLE OF CONTENTS. ~~Article I~~ SECTION 1. DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2~~ 1 Section ~~1.1~~ 1.01. Definitions 2 1 Section ~~1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery~~ 1.02. Other Definitions 4 Section ~~2.3 Temporary Notes~~ 1.03. Interpretations 5 SECTION 2. GENERAL TERMS OF SUPPLY 5 Section ~~2.4 Tax Treatment~~ 2.01. Sale and Purchase of Product 5 Section ~~2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes~~ 2.02. Forecasts 7 Section ~~2.7 Persons Deemed Owners~~ 2.03. Ordering 7 Section 2.04. Shipments 8 Section ~~2.8 Payments~~ 2.05. Receipt of Product 8 Section ~~2.9 Cancellation~~ 2.06. Quality Control; Change in Specifications or Supplier 10 Section 2.07. Material Safety Data Sheets 12 Section 2.08. BMS Supply Contracts 12 Section 2.09. Line Extension Product and New Product 12 Section 2.10. Maintenance of Manufacturing Facility Registrations 13 Section ~~2.10 Release~~ 2.11. Maintenance of ~~Collateral~~ Product Registrations 13 Section 2.12. Promotional and Advertising Materials 14 Section ~~2.11 Book-Entry Notes~~ 2.13. Intellectual Property; License Grant 14 ~~Section 2.12 Notices to Clearing Agency~~ SECTION 3. PURCHASE PRICE FOR PRODUCT 15 Section ~~2.13 Definitive Notes~~ 3.01. Purchase Price 15 SECTION 4. PAYMENTS AND REPORTS 16 Section ~~2.14 Authenticating Agents 15~~ 4.01. Payment; Books and Records 16 Section ~~2.15 Retained Notes 16 Article III COVENANTS 20~~ 4.02. Mode of Payment 17 Section ~~3.1 Payment of Principal~~ 4.03. Taxes 17 Section 4.04. Late Payments 17 SECTION 5. COMPLIANCE WITH LAWS; REPRESENTATIONS AND WARRANTIES 17 Section 5.01. Compliance with Law; Cooperation 17 Section 5.02. BMS Representations, Warranties and ~~Interest; Determination of SOFR; Benchmark Replacement 20~~ Covenants 18 Section ~~3.2 Maintenance of Office or Agency 22~~ 5.03. The Company Representations, Warranties and Covenants 19 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 5.04. Representations and Warranties of Each Party 19 Section 5.05. Disclaimer of Warranties 20 Section 5.06. No Reliance by ~~the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32~~ Third Parties 20 SECTION 6. INDEMNIFICATION; REMEDIES FOR BREACH 20 Section ~~4.1 Satisfaction and Discharge of Indenture 32~~ 6.01. BMS Indemnity 20 Section ~~4.2 Satisfaction, Discharge and Defeasance of the Notes 33~~ 6.02. The Company Indemnity 20 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights 6.03. Limitations on Liability and Remedies 43 21 Section ~~5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11~~ 6.04. Control ~~by Noteholders~~ of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.Proceedings 21

Appears in 2 contracts

Sources: Supply Agreement (Skinmedica Inc), Supply Agreement (Skinmedica Inc)

TABLE OF CONTENTS. ~~Article I~~ ARTICLE I. DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 4 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 5 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 6 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 7 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 12 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power. 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 22 ~~Section 3.3 Money~~ SECTION 6.3. Representations and Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 34 SECTION 10.10. GOVERNING LAW 34 SECTION 10.11. Servicer 34 SECTION 10.12. Nonpetition Covenants 34 SECTION 10.13. Regulation AB 35 SECTION 10.14. Force Majeure 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~March 15, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2023, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of January 18, 2023, between the ~~“Indenture Trustee”). Each party agrees as follows for~~ Seller and the ~~benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Owner Trustee (the “~~Class A-1 Notes~~Initial Trust Agreement”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (AmeriCredit Automobile Receivables Trust 2023-1), Trust Agreement (AmeriCredit Automobile Receivables Trust 2023-1)

TABLE OF CONTENTS. Article I DEFINITIONS ~~AND INCORPORATION BY REFERENCE~~ 2 Section 1.1 Definitions 2 Section 1.2 ~~Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of~~ Construction 2 6 Article II THE ~~NOTES 3~~ OFFER 6 Section 2.1 ~~Form 3~~ The Offer 6 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Belpointe REIT Actions 9 Article III ~~COVENANTS 20~~ THE MERGER 10 Section 3.1 ~~Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20~~ The Merger 10 Section 3.2 ~~Maintenance of Office or Agency 22~~ The Closing 10 Section 3.3 ~~Money for Payments To Be Held in Trust 22~~ Effective Time 10 Section 3.4 ~~Existence 23 Section 3.5 Protection~~ Conversion of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Units 10 Section ~~6.10 Appointment~~ 3.5 Dissenter’s Rights. 10 Section 3.6 Delivery of ~~Co-Indenture Trustee~~ Consideration 11 Section 3.7 Adjustment to Consideration 11 Section 3.8 Withholding 11 Section 3.9 Fractional Class A Units 11 Section 3.10 Further Assurances 11 Section 3.11 Governing Documents 12 Section 3.12 Officers and Directors of the Surviving Entity 12 Article IV REPRESENTATIONS AND WARRANTIES OF BELPOINTE REIT 12 Section 4.1 Qualification, Organization, Subsidiaries, etc. 12 Section 4.2 Capitalization 12 Section 4.3 Corporate Authority 13 Section 4.4 Governmental Consents; No Violation 13 Section 4.5 SEC Reports and Financial Statements 14 Section 4.6 No Undisclosed Liabilities 14 Section 4.7 Absence of Certain Changes or ~~Separate Indenture Trustee 52~~ Events 14 Section ~~6.11 Eligibility~~4.8 Compliance with Law; ~~Disqualification 53~~ Permits 14 Section ~~6.12 Preferential Collection~~ 4.9 Tax Matters 15 Section 4.10 Litigation; Orders 15 Section 4.11 Information Supplied 15 Article V REPRESENTATIONS AND WARRANTIES OF BELPOINTE PREP AND THE PURCHASER 15 Section 5.1 Qualification, Organization, etc. 15 Section 5.2 Capitalization 15 Section 5.3 Corporate Authority 16 Section 5.4 Governmental Consents; No Violation 16 Section 5.5 No Undisclosed Liabilities 17 Section 5.6 Absence of ~~Claims Against Issuer 54~~ Certain Changes or Events 17 Section ~~6.13 Communications Regarding Demands to Purchase Receivables 54~~ 5.7 Compliance with Law; Permits 17 Section 5.8 Litigation; Orders 17 Section 5.9 Information Supplied 17 Section 5.10 Valid Issuance 17 Section 5.11 Stock Ownership 18 Section 5.12 No Activity 18 Article VI COVENANTS OF BELPOINTE REIT 18 Section 6.1 Conduct of Business by Belpointe REIT Pending the Closing 18 Section 6.2 Solicitation by Belpointe REIT 18 Article VII ~~NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54~~ ADDITIONAL AGREEMENTS 20 Section 7.1 ~~Issuer To Furnish Indenture Trustee Names and Addresses~~ Access; Confidentiality; Notice of ~~Noteholders 54~~ Certain Events 20 Section 7.2 ~~Preservation of Information; Communications to Noteholders 54~~ Reasonable Best Efforts. 20 Section 7.3 ~~Reports by Issuer 55~~ Publicity 21 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”)Indemnification. Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.21

Appears in 2 contracts

Sources: Merger Agreement (Belpointe REIT, Inc.), Merger Agreement (Belpointe PREP, LLC)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 4 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 5 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 6 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 7 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 12 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 22 ~~Section 3.3 Money~~ SECTION 6.3. Representations and Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 34 SECTION 10.10. GOVERNING LAW 34 SECTION 10.11. Servicer 34 SECTION 10.12. Nonpetition Covenants 34 SECTION 10.13. Regulation AB 35 SECTION 10.14. Force Majeure 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~June 22, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2022, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of May 12, 2022, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (AmeriCredit Automobile Receivables Trust 2022-2), Trust Agreement (AmeriCredit Automobile Receivables Trust 2022-2)

TABLE OF CONTENTS. ~~Article I~~ ARTICLE I. DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 4 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 5 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 6 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 7 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 12 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 20 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 22 ~~Section 3.3 Money~~ SECTION 6.3. Representations and Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 24 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 24 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 25 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 26 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 27 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 29 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 33 SECTION 10.4. Notices 33 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 34 SECTION 10.8. No Recourse 34 SECTION 10.9. Headings 34 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 35 SECTION 10.13. Nonpetition Covenants 35 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 36 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 36 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of July 119, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2023, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of May 23, 2023, between the ~~“Indenture Trustee”). Each party agrees as follows for~~ Seller and the ~~benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Owner Trustee (the “~~Class A-1 Notes~~Initial Trust Agreement”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2023-3), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2023-3)

TABLE OF CONTENTS. Article I DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES 3 4 Section 2.1 Form 3 4 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, ~~etc~~ etc. 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 67 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 74 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of ~~July~~ October 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-34, a Delaware statutory trust (the “Issuer”), and ~~WILMINGTON TRUST~~U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s ~~5.631~~5.279% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), ~~5.72~~6.08% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), ~~5.28~~6.00% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), ~~5.26~~5.96% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), ~~5.47~~6.39% Class B Asset-backed Notes (the “Class B Notes”), ~~5.61~~6.58% Class C Asset-backed Notes (the “Class C Notes”) and ~~6.44~~7.16% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Indenture (Carmax Auto Funding LLC), Indenture (Carmax Auto Funding LLC)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency ~~22 Section 3.3 Money~~ 11 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power. 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for ~~Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection~~ Reporting of ~~Trust Estate 24 Section 3.6 Opinions as~~ Repurchase Demands due to ~~Trust Estate 24 Section 3.7 Performance~~ Breaches of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties ~~by the Issuer~~ 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trusts and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 21 SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 23 SECTION 6.8. Payments from Owner Trust Estate 23 SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 25 SECTION 7.1. Owner Trustee’s Fees and Expenses 25 SECTION 7.2. Indemnification 25 SECTION 7.3. Payments to the ~~Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application~~ 26 SECTION 7.4. Non-recourse Obligations 26 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 26 SECTION 8.1. Termination of Trust ~~Money 34 Section 4.4 Repayment~~ Agreement 26 ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 27 SECTION 9.1. Eligibility Requirements for Owner Trustee 27 SECTION 9.2. Resignation or Removal of ~~Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events~~ Owner Trustee 28 SECTION 9.3. Successor Owner Trustee 28 SECTION 9.4. Merger or Consolidation of ~~Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture~~ Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 29 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~29 ARTICLE X. MISCELLANEOUS 30 SECTION 10.1. Supplements and Amendments 30 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 31 SECTION 10.3. Limitations on Rights of Others 31 SECTION 10.4. Notices 32 SECTION 10.5. Severability 32 SECTION 10.6. Separate Counterparts 32 SECTION 10.7. Assignments 32 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 33 SECTION 10.10. GOVERNING LAW 33 SECTION 10.11. Servicer 33 SECTION 10.12. Nonpetition Covenants 33 SECTION 10.13. Regulation AB 34 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 34 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 34 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 35 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 36 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~October 10, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2018, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of August 20, 2018, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2018-4), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2018-4)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 20 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust ~~Indenture Act 2 Section 1.3 Rules~~ and Duties 20 SECTION 6.2. Furnishing of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Documents 22 SECTION 6.3. Representations and ~~Delivery 4 Section 2.3 Temporary~~ Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 24 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 24 SECTION 6.7. Owner Trustee May Own Notes ~~5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8~~ 24 SECTION 6.8. Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 25 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 26 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 27 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 29 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 33 SECTION 10.4. Notices 33 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 34 SECTION 10.8. No Recourse 34 SECTION 10.9. Headings 34 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 34 SECTION 10.13. Nonpetition Covenants 35 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 36 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 36 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.Repurchase Request

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2024-3), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2024-3)

TABLE OF CONTENTS. ~~Article I~~ ARTICLE I. DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 5 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 11 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 22 ~~Section 3.3 Money~~ SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 25 SECTION 7.1. Owner Trustee’s Fees and Expenses 25 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 26 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 29 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 33 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 34 SECTION 10.13. Nonpetition Covenants 34 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 36 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~October 12, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2022, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of August 17, 2022, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2022-4), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2022-4)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 5 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 11 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power. 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 22 ~~Section 3.3 Money~~ SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 25 SECTION 7.1. Owner Trustee’s Fees and Expenses 25 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 26 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 26 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance~~ Agreement 26 ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 29 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~29 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 33 SECTION 10.10. Force Majeure 33 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 34 SECTION 10.13. Nonpetition Covenants 34 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 36 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~January 19, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2022, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of November 17, 2021, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2022-1), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2022-1)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency ~~22 Section 3.3 Money~~ 11 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power. 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 16 SECTION 5.1. General Authority 16 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for ~~Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection~~ Reporting of ~~Trust Estate 24 Section 3.6 Opinions as~~ Repurchase Demands due to ~~Trust Estate 24 Section 3.7 Performance~~ Breaches of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties ~~by the Issuer~~ 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trusts and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 21 SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 23 SECTION 6.8. Payments from Owner Trust Estate 23 SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 24 SECTION 7.1. Owner Trustee’s Fees and Expenses 24 SECTION 7.2. Indemnification 24 SECTION 7.3. Payments to the ~~Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application~~ 25 SECTION 7.4. Non-recourse Obligations 25 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 25 SECTION 8.1. Termination of Trust ~~Money 34 Section 4.4 Repayment~~ Agreement 25 ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 27 SECTION 9.1. Eligibility Requirements for Owner Trustee 27 SECTION 9.2. Resignation or Removal of ~~Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events~~ Owner Trustee 27 SECTION 9.3. Successor Owner Trustee 28 SECTION 9.4. Merger or Consolidation of ~~Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture~~ Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 28 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~28 ARTICLE X. MISCELLANEOUS 30 SECTION 10.1. Supplements and Amendments 30 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 31 SECTION 10.3. Limitations on Rights of Others 31 SECTION 10.4. Notices 31 SECTION 10.5. Severability 31 SECTION 10.6. Separate Counterparts 32 SECTION 10.7. Assignments 32 SECTION 10.8. No Recourse 32 SECTION 10.9. Headings 32 SECTION 10.10. GOVERNING LAW 32 SECTION 10.11. Servicer 32 SECTION 10.12. Nonpetition Covenants 33 SECTION 10.13. Regulation AB 34 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 34 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 34 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 34 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 35 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~April 19, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2018, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of February 28, 2018, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (AFS SenSub Corp.), Trust Agreement (AFS SenSub Corp.)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 ~~Article~~ ARTICLE II THE NOTES 3 4 Section 2.1 Form 3 4 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 ~~Article~~ ARTICLE III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 ~~Article~~ ARTICLE IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 ~~Article~~ ARTICLE V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 ~~Article~~ ARTICLE VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 ~~Article~~ ARTICLE VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 ~~Article~~ ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 ~~Article~~ ARTICLE IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 ~~Article~~ ARTICLE X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 ~~Article~~ ARTICLE XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, ~~etc~~ etc. 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 67 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.72

Appears in 2 contracts

Sources: Indenture (CarMax Auto Owner Trust 2024-1), Indenture (Carmax Auto Funding LLC)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 4 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 5 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 11 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trusts and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 22 ~~Section 3.3 Money~~ SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 25 SECTION 7.1. Owner Trustee’s Fees and Expenses 25 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 26 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 29 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 33 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 34 SECTION 10.13. Nonpetition Covenants 34 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 36 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form~~ Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~August 19, 2020, between AFS SENSUB CORP., a Nevada corporation, as depositor (the “Seller”), and WILMINGTON TRUST COMPANY, a Delaware trust company, as Owner Trustee, amends and restates in its entirety that certain Trust Agreement, dated as of July 18, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2020, between ~~CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (~~the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2020-3), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2020-3)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 5 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 11 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 22 ~~Section 3.3 Money~~ SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 25 SECTION 7.1. Owner Trustee’s Fees and Expenses 25 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 26 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 29 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 33 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 34 SECTION 10.13. Nonpetition Covenants 34 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 36 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~April 13, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2022, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of February 28, 2022, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2022-2), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2022-2)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 5 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 11 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 16 SECTION 5.1. General Authority 16 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trusts and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 21 SECTION 6.4. Reliance; Advice of Counsel 22 ~~Section 3.3 Money~~ SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 24 SECTION 6.12. Beneficial Ownership and Control of Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 25 SECTION 7.1. Owner Trustee’s Fees and Expenses 25 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 26 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 26 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance~~ Agreement 26 ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 29 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~29 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 32 SECTION 10.6. Separate Counterparts 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 33 SECTION 10.10. GOVERNING LAW 33 SECTION 10.11. Servicer 33 SECTION 10.12. Nonpetition Covenants 34 SECTION 10.13. Regulation AB 34 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 35 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 36 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~April 17, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2019, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of February 22, 2019, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2019-2), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2019-2)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trusts and Duties 20 SECTION 6.2. Furnishing of Documents 22 ~~Section 3.3 Money~~ SECTION 6.3. Representations and Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 26 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 27 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 33 SECTION 10.5. Severability 33 SECTION 10.6. Separate Counterparts 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 34 SECTION 10.10. GOVERNING LAW 34 SECTION 10.11. Servicer 34 SECTION 10.12. Nonpetition Covenants 34 SECTION 10.13. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~March 11, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2020, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of January 16, 2020, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (AmeriCredit Automobile Receivables Trust 2020-1), Trust Agreement (AmeriCredit Automobile Receivables Trust 2020-1)

TABLE OF CONTENTS. ~~Article I~~ ARTICLE I. DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 12 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 13 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power. 14 SECTION 4.4. [Reserved] 15 SECTION 4.5. Action with Respect to Bankruptcy Action 15 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trusts and Duties 20 SECTION 6.2. Furnishing of Documents 22 ~~Section 3.3 Money~~ SECTION 6.3. Representations and Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 24 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 26 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 27 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 33 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 34 SECTION 10.10. GOVERNING LAW 34 SECTION 10.11. Servicer 34 SECTION 10.12. Nonpetition Covenants 34 SECTION 10.13. Regulation AB 35 SECTION 10.14. Force Majeure 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of July 122, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2020, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of June 4, 2020, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (AmeriCredit Automobile Receivables Trust 2020-2), Trust Agreement (AmeriCredit Automobile Receivables Trust 2020-2)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 5 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 11 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 22 ~~Section 3.3 Money~~ SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 25 SECTION 7.1. Owner Trustee’s Fees and Expenses 25 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 26 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 29 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 33 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 34 SECTION 10.13. Nonpetition Covenants 34 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 36 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of July 113, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2022, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of May 20, 2022, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2022-3), Trust Agreement (Afs Sensub Corp.)

TABLE OF CONTENTS. ~~Article I~~ ARTICLE I. DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 4 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 5 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 6 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 7 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 12 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 13 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 15 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 20 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 22 ~~Section 3.3 Money~~ SECTION 6.3. Representations and Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 24 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 24 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 25 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 26 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 27 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 29 SECTION 9.1. Eligibility Requirements for Owner Trustee 29 SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 29 SECTION 9.3. Successor Owner Trustee 30 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 33 SECTION 10.4. Notices 33 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 34 SECTION 10.8. No Recourse 34 SECTION 10.9. Headings 34 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 35 SECTION 10.13. Nonpetition Covenants 35 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 36 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 36 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~January 15, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2025, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of November 27, 2024, between the ~~“Indenture Trustee”). Each party agrees as follows for~~ Seller and the ~~benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Owner Trustee (the “~~Class A-1 Notes~~Initial Trust Agreement”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2025-1), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2025-1)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 ~~Article~~ ARTICLE II THE NOTES 3 4 Section 2.1 Form 3 4 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 ~~Article~~ ARTICLE III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 ~~Article~~ ARTICLE IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 ~~Article~~ ARTICLE V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 ~~Article~~ ARTICLE VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 ~~Article~~ ARTICLE VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 ~~Article~~ ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 ~~Article~~ ARTICLE IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 ~~Article~~ ARTICLE X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 ~~Article~~ ARTICLE XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, ~~etc~~ etc. 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.72

Appears in 2 contracts

Sources: Indenture (CarMax Auto Owner Trust 2025-3), Indenture (Carmax Auto Funding LLC)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency ~~22 Section 3.3 Money~~ 11 SECTION 3.8. Disposition in Whole But Not in Part 11 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power 13 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 16 SECTION 5.1. General Authority 16 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 18 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for ~~Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection~~ Reporting of ~~Trust Estate 24 Section 3.6 Opinions as~~ Repurchase Demands due to ~~Trust Estate 24 Section 3.7 Performance~~ Breaches of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties ~~by the Issuer~~ 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 19 SECTION 6.1. Acceptance of Trusts and Duties 19 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 21 SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 22 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 23 SECTION 6.8. Payments from Owner Trust Estate 23 SECTION 6.9. Doing Business in Other Jurisdictions 23 SECTION 6.10. FATCA Information 24 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 24 SECTION 7.1. Owner Trustee’s Fees and Expenses 24 SECTION 7.2. Indemnification 24 SECTION 7.3. Payments to the ~~Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application~~ 25 SECTION 7.4. Non-recourse Obligations 25 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 25 SECTION 8.1. Termination of Trust ~~Money 34 Section 4.4 Repayment~~ Agreement 25 ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 26 SECTION 9.1. Eligibility Requirements for Owner Trustee 26 SECTION 9.2. Resignation or Removal of ~~Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events~~ Owner Trustee 27 SECTION 9.3. Successor Owner Trustee 27 SECTION 9.4. Merger or Consolidation of ~~Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture~~ Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 28 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~28 ARTICLE X. MISCELLANEOUS 29 SECTION 10.1. Supplements and Amendments 29 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 30 SECTION 10.3. Limitations on Rights of Others 30 SECTION 10.4. Notices 31 SECTION 10.5. Severability 31 SECTION 10.6. Separate Counterparts 31 SECTION 10.7. Assignments 31 SECTION 10.8. No Recourse 32 SECTION 10.9. Headings 32 SECTION 10.10. GOVERNING LAW 32 SECTION 10.11. Servicer 32 SECTION 10.12. Nonpetition Covenants 32 SECTION 10.13. Regulation AB 33 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 33 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 33 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 34 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 35 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~April 11, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2017, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of April 5, 2017, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (AFS SenSub Corp.), Trust Agreement (AFS SenSub Corp.)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 5 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency ~~22 Section 3.3 Money~~ 11 SECTION 3.8. Disposition in Whole But Not in Part 11 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power 13 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 16 SECTION 5.1. General Authority 16 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 18 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for ~~Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection~~ Reporting of ~~Trust Estate 24 Section 3.6 Opinions as~~ Repurchase Demands due to ~~Trust Estate 24 Section 3.7 Performance~~ Breaches of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties ~~by the Issuer~~ 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 19 SECTION 6.1. Acceptance of Trusts and Duties 19 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 21 SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 22 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 23 SECTION 6.8. Payments from Owner Trust Estate 23 SECTION 6.9. Doing Business in Other Jurisdictions 23 SECTION 6.10. FATCA Information 24 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 24 SECTION 7.1. Owner Trustee’s Fees and Expenses 24 SECTION 7.2. Indemnification 24 SECTION 7.3. Payments to the ~~Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application~~ 25 SECTION 7.4. Non-recourse Obligations 25 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 25 SECTION 8.1. Termination of Trust ~~Money 34 Section 4.4 Repayment~~ Agreement 25 ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 26 SECTION 9.1. Eligibility Requirements for Owner Trustee 26 SECTION 9.2. Resignation or Removal of ~~Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events~~ Owner Trustee 27 SECTION 9.3. Successor Owner Trustee 27 SECTION 9.4. Merger or Consolidation of ~~Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture~~ Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 28 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~28 ARTICLE X. MISCELLANEOUS 29 SECTION 10.1. Supplements and Amendments 29 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 30 SECTION 10.3. Limitations on Rights of Others 30 SECTION 10.4. Notices 31 SECTION 10.5. Severability 31 SECTION 10.6. Separate Counterparts 31 SECTION 10.7. Assignments 31 SECTION 10.8. No Recourse 32 SECTION 10.9. Headings 32 SECTION 10.10. GOVERNING LAW 32 SECTION 10.11. Servicer 32 SECTION 10.12. Nonpetition Covenants 32 SECTION 10.13. Regulation AB 33 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 33 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 33 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 34 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 35 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~April 11, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2018, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of January 24, 2018, between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (AFS SenSub Corp.), Trust Agreement (AFS SenSub Corp.)

TABLE OF CONTENTS. ~~Article I~~ ARTICLE I. DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 4 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 5 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 6 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 7 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 12 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 15 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 20 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 22 ~~Section 3.3 Money~~ SECTION 6.3. Representations and Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 24 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 24 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 25 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 26 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 27 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 29 SECTION 9.1. Eligibility Requirements for Owner Trustee 29 SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 29 SECTION 9.3. Successor Owner Trustee 30 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 32 SECTION 10.1. Supplements and Amendments 32 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 33 SECTION 10.3. Limitations on Rights of Others 33 SECTION 10.4. Notices 33 SECTION 10.5. Severability 34 SECTION 10.6. Counterparts and Consent to Do Business Electronically 34 SECTION 10.7. Assignments 34 SECTION 10.8. No Recourse 34 SECTION 10.9. Headings 34 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 35 SECTION 10.12. Servicer 35 SECTION 10.13. Nonpetition Covenants 35 SECTION 10.14. Regulation AB 36 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 36 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 36 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 37 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of July 116, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2025, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of May 27, 2025, between the ~~“Indenture Trustee”). Each party agrees as follows for~~ Seller and the ~~benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Owner Trustee (the “~~Class A-1 Notes~~Initial Trust Agreement”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2025-3), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2025-3)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 4 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 5 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 6 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 7 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 12 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 15 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 20 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 22 ~~Section 3.3 Money~~ SECTION 6.3. Representations and Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 24 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 24 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 25 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 26 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 27 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 29 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 33 SECTION 10.4. Notices 33 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 34 SECTION 10.8. No Recourse 34 SECTION 10.9. Headings 34 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 34 SECTION 10.13. Nonpetition Covenants 35 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 36 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 36 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~October 16, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2024, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of August 29, 2024, between the ~~“Indenture Trustee”). Each party agrees as follows for~~ Seller and the ~~benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Owner Trustee (the “~~Class A-1 Notes~~Initial Trust Agreement”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2024-4), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2024-4)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 4 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 5 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 6 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 7 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 12 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 13 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 15 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 20 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 22 ~~Section 3.3 Money~~ SECTION 6.3. Representations and Warranties 22 SECTION 6.4. Reliance; Advice of Counsel 23 SECTION 6.5. Not Acting in Individual Capacity 24 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 24 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 25 SECTION 6.10. FATCA Information 25 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 26 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 26 SECTION 7.1. Owner Trustee’s Fees and Expenses 26 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 27 SECTION 7.4. Non-recourse Obligations 27 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 29 SECTION 9.1. Eligibility Requirements for Owner Trustee 29 SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 29 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 30 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 33 SECTION 10.4. Notices 33 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 34 SECTION 10.8. No Recourse 34 SECTION 10.9. Headings 34 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 35 SECTION 10.13. Nonpetition Covenants 35 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 36 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 36 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 37 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~April 10, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2024, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of February 14, 2024, between the ~~“Indenture Trustee”). Each party agrees as follows for~~ Seller and the ~~benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Owner Trustee (the “~~Class A-1 Notes~~Initial Trust Agreement”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 2 contracts

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2024-2), Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2024-2)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I ~~DEFINITIONS~~ PURCHASE AND ~~INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2~~ SALE 1 Section 1.2 ~~Incorporation by Reference of Trust Indenture Act~~ Closing Date 2 Section 1.3 ~~Rules of Construction~~ Purchase Price 2 ~~Article~~ Section 1.4 Closing Date Payment 2 Section 1.5 Transaction to be Effected at the Closing 2 Section 1.6 Net Working Capital Adjustment 3 ARTICLE II ~~THE NOTES 3~~ REPRESENTATIONS AND WARRANTIES OF SELLERS 5 Section 2.1 ~~Form 3~~ Authorization and Enforceability 5 Section 2.2 ~~Execution, Authentication and Delivery 4~~ Conflicts; Consents of Third Parties 5 Section 2.3 ~~Temporary Notes~~ Purchased Interests 5 Section 2.4 ~~Tax Treatment 5~~ Brokers Fees 6 Section 2.5 ~~Registration; Registration of Transfer and Exchange~~ Withholding 6 ARTICLE III REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY 6 Section ~~2.6 Mutilated, Destroyed, Lost or Stolen Notes~~ 3.1 Organization and Related Matters 6 Section 3.2 Books and Records 7 Section ~~2.7 Persons Deemed Owners~~ 3.3 Capitalization 7 Section 3.4 Conflicts; Consents of Third Parties 7 Section 3.5 Financial Statements 8 Section ~~2.8 Payments~~ 3.6 No Undisclosed Liabilities 8 Section ~~2.9 Cancellation~~ 3.7 Absence of Certain Developments 8 Section 3.8 Taxes 10 Section 3.9 Real Property 12 Section 3.10 Tangible Personal Property; Title; Sufficiency of Assets 13 Section ~~2.10 Release of Collateral~~ 3.11 Intellectual Property 13 Section 3.12 Contracts 14 Section ~~2.11 Book-Entry Notes 14~~ 3.13 Employee Benefits 16 Section ~~2.12 Notices to Clearing Agency 15~~ 3.14 Labor 19 Section ~~2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS~~ 3.15 Litigation 20 Section ~~3.1 Payment of Principal and Interest~~3.16 Compliance with Laws; ~~Determination of SOFR; Benchmark Replacement~~ Permits 20 Section ~~3.2 Maintenance of Office or Agency~~ 3.17 Environmental Matters 21 Section 3.18 Insurance 22 Section ~~3.3 Money for Payments To Be Held in Trust~~ 3.19 Receivables; Payables 22 Section ~~3.4 Existence~~ 3.20 Inventory 22 Section 3.21 Customers and Suppliers 22 Section 3.22 Related Party Transactions 23 Section ~~3.5 Protection of Trust Estate 24~~ 3.23 Brokers Fees 23 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement 3.24 Absence of Certain ~~Obligations 45 Article VI THE INDENTURE TRUSTEE 46~~ Business Practices 23 Section ~~6.1 Duties~~ 3.25 Bank Accounts; Powers of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.Attorney 24

Appears in 1 contract

Sources: Membership Interest Purchase Agreement (RumbleON, Inc.)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I ~~DEFINITIONS AND INCORPORATION BY REFERENCE 2~~ GENERAL PROVISIONS 1 Section ~~1.1 Definitions 2 Section 1.2~~ A. Incorporation by Reference ~~of Trust Indenture Act~~ 1 Section B. Savings Clause 1 Section C. Ratified Agreement Distribution 1 ARTICLE II. DEFINITIONS 2 ~~Section 1.3 Rules of Construction 2 Article II THE NOTES~~ ARTICLE III. HOURS AND AMOUNTS OF WORK 3 Section ~~2.1 Form~~ A. Base Contract Year 3 Section ~~2.2 Execution, Authentication~~ B. Holidays and ~~Delivery~~ Holiday Leave 3 Section C. Teacher Duty Day 4 Section ~~2.3 Temporary Notes~~ D. Lunch Room Duty 4 Section E. After School Activity Duty 4 Section F. Planning Time 5 Section ~~2.4 Tax Treatment~~ G. Reimbursement for Substitute Teaching… 5 ~~Section 2.5 Registration; Registration of Transfer and Exchange~~ ARTICLE IV. SALARIES AND WAGES 6 Section ~~2.6 Mutilated, Destroyed, Lost or Stolen Notes~~ A. Salary Schedule 6 Section B. Extended Contract Days 7 Section ~~2.7 Persons Deemed Owners 8~~ C. Salary Schedule Placement and Advancement Procedures 7 Section ~~2.8 Payments 8~~ D. Supplemental Salary 9 Section ~~2.9 Cancellation~~ E. Payroll Deductions 10 Section F. Pay Date 10 ARTICLE V. INSURANCE BENEFITS 11 Section A. Definition 11 Section B. Special Provision 11 Section C. Section 125 Cafeteria Salary Reduction Plan 12 Section D. Employer Provided Fringe Benefit 12 Other Provisions 12 ARTICLE VI. ASSOCIATION RIGHTS AND RESPONSIBILITIES 13 Section ~~2.10 Release of Collateral~~ A. Communication 13 Section B. Access To Information 13 Section C. Access To Personnel File 13 Section D. Board Agenda 13 Section E. Board Minutes 13 Section F. Use Of School Facilities 14 Section ~~2.11 Book-Entry Notes~~ G. Use Of Equipment 14 Section ~~2.12 Notices to Clearing Agency 15~~ H. Association Leave 14 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇. ▇▇▇▇ 51 Convention Leave 15 ARTICLE VII. SICK AND OTHER LEAVE 15 Section ~~6.10 Appointment~~ A. Leaves 15 Section B. Extended Leave of ~~Co-Indenture Trustee or Separate Indenture Trustee 52~~ Absence 18 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”)C. Maternity Leave 19 ARTICLE VIII. Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.EVALUATION 20

Appears in 1 contract

Sources: Negotiated Agreement

TABLE OF CONTENTS. Article ~~I DEFINITIONS AND INCORPORATION BY REFERENCE 2~~ 1 Principal Transaction 4 Section 1.1 ~~Definitions 2~~ Sale and Purchase of Stock 4 Section 1.2 ~~Incorporation by Reference of Trust Indenture Act 2~~ Closing Cash Payment; Payments; Purchase Price. 4 Section 1.3 ~~Rules of Construction~~ Adjustments to Estimated Purchase Price 5 Section 1.4 Purchase Price Payment Allocation 7 Section 1.5 Closing 7 Section 1.6 Closing Deliverables. 8 Article 2 ~~Article II THE NOTES 3~~ Representations And Warranties Of Sellers 8 Section 2.1 ~~Form 3~~ Organization; Capitalization; Ownership. 8 Section 2.2 ~~Execution, Authentication~~ Financial Statements and ~~Delivery 4~~ Financial Matters. 9 Section 2.3 ~~Temporary Notes 5~~ Compliance with Law. 10 Section 2.4 ~~Tax Treatment 5~~ Taxes 10 Section 2.5 ~~Registration; Registration of Transfer and Exchange 6~~ Business Operations. 11 Section 2.6 ~~Mutilated, Destroyed, Lost or Stolen Notes 7~~ Employees. 12 Section 2.7 ~~Persons Deemed Owners 8~~ Employee Benefit Plans. 12 Section 2.8 ~~Payments 8~~ Real Property 13 Section 2.9 ~~Cancellation 13~~ Other Properties and Assets. 14 Section 2.10 ~~Release of Collateral~~ Litigation 14 Section 2.11 ~~Book-Entry Notes~~ Authorization and Enforceability; No Conflict. 14 Section 2.12 ~~Notices to Clearing Agency~~ Applicable Contracts. 15 Section 2.13 ~~Definitive Notes 15~~ Insurance. 16 Section 2.14 ~~Authenticating Agents 15~~ Environmental Matters. 16 Section 2.15 ~~Retained Notes 16~~ Broker’s Fees 17 Section 2.16 Books and Records. 17 Section 2.17 No Other Representations or Warranties.. 17 Article ~~III COVENANTS~~ 3 Representations And Warranties Of Buyer 17 Section 3.1 Organization and Good Standing 17 Section 3.2 Authorization and Enforceability; No Conflict. 17 Section 3.3 Investment Intent 18 Section 3.4 No Financing Condition; Solvency 18 Section 3.5 Inspection 18 Section 3.6 Broker’s Fees 18 Section 3.7 Reliance. 18 Section 3.8 No Other Representations or Warranties. 19 Article 4 Covenants And Agreements 19 Section 4.1 Conduct Pending Closing. 19 Section 4.2 Access to Information 20 Section ~~3.1 Payment of Principal and Interest~~4.3 Commercially Reasonable Efforts; ~~Determination of SOFR~~Notice; ~~Benchmark Replacement~~ Further Assurances; Certain Payments 20 Section ~~3.2 Maintenance of Office or Agency~~ 4.4 Restrictive Covenants 21 Section 4.5 Public Announcements 22 Section ~~3.3 Money for Payments To Be Held in Trust~~ 4.6 Employee Benefit Matters. 22 Section ~~3.4 Existence~~ 4.7 Assignment of Rights; Reimbursement. 23 Section ~~3.5 Protection of Trust Estate~~ 4.8 Records Retention. 24 Section ~~3.6 Opinions as to Trust Estate~~ 4.9 Certain Tax Matters. 24 Section ~~3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ 4.10 Mutual Releases 27 Section ~~3.9 Annual Statement as~~ 4.11 Sellers’ Representative. 27 Section 4.12 Termination of Shareholder Agreement. 29 Section 4.13 Real Property and Environmental Buyout Transaction Matters. 29 Article 5 Conditions To Obligation To Close 29 Section 5.1 Conditions to ~~Compliance 28~~ Obligation of Buyer 29 Section ~~3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee~~ 5.2 Conditions to Obligation of Seller 30 Article 6 Termination 30 Section ~~3.12 No Other Business~~ 6.1 Termination Events 30 Section ~~3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures~~ 6.2 Effect of Termination 31 Article 7 Indemnification 31 Section ~~3.17 Restricted Payments~~ 7.1 Indemnification and Reimbursement by Sellers 31 Section ~~3.18 Notice of Events of Default~~ 7.2 Indemnification and Reimbursement by Buyer 31 Section ~~3.19 Removal of Administrator~~ 7.3 Certain Limitations 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 7.4 Indemnification Procedures. 33 Section ~~4.3 Application~~ 7.5 Source of ~~Trust Money~~ Payment 34 Section ~~4.4 Repayment of Monies Held by Paying Agent~~ 7.6 Adjusted Purchase Price 34 Section 7.7 Exclusive Remedy 34 Article ~~V REMEDIES~~ 8 Definitions 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article ~~VI THE INDENTURE TRUSTEE~~ 9 General 46 Section ~~6.1 Duties~~ 9.1 Survival of ~~Indenture Trustee~~ Representations, Warranties, Covenants and Agreements 46 Section ~~6.2 Rights of Indenture Trustee~~ 9.2 Binding Effect; Benefits; Assignment 46 Section 9.3 Entire Agreement 46 Section 9.4 Amendment and Waiver 47 Section 9.5 Governing Law; Exclusive Jurisdiction 47 Section 9.6 Notices 47 Section 9.7 Counterparts 48 Section ~~6.3 Individual Rights~~ 9.8 Expenses 48 Section 9.9 Headings; Construction; Time of ~~Indenture Trustee~~ Essence 48 Section 9.10 Partial Invalidity 48 Section 9.11 Certain Disclosure Matters. 49 Section ~~6.4 Indenture Trustee’s Disclaimer~~ 9.12 Specific Performance 49 Section ~~6.5 Notice of Defaults 49 Section 6.6 Reports~~ 9.13 Representation by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 EligibilityLegal Counsel; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.Privileged Communications.. 50

Appears in 1 contract

Sources: Stock Purchase Agreement (Andersons, Inc.)

TABLE OF CONTENTS. ~~Article I~~ ARTICLE I. DEFINITIONS ~~AND INCORPORATION BY REFERENCE~~ 2 ~~Section 1.1~~ SECTION 1.1. Definitions 2 ~~Section 1.2 Incorporation by Reference of~~ ARTICLE II. TRUST INDENTURE ACT 5 SECTION 2.1. Trust Indenture ~~Act 2 Section 1.3 Rules~~ Act; Application 5 SECTION 2.2. List of ~~Construction 2 Article II~~ Holders 5 SECTION 2.3. Reports by the Guarantee Trustee 5 SECTION 2.4. Periodic Reports to the Guarantee Trustee 5 SECTION 2.5. Evidence of Compliance with Conditions Precedent 6 SECTION 2.6. Events of Default; Waiver 6 SECTION 2.7. Event of Default; Notice 6 SECTION 2.8. Conflicting Interests 6 ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE ~~NOTES 3 Section 2.1 Form 3 Section 2.2 Execution~~GUARANTEE TRUSTEE 7 SECTION 3.1. Powers and Duties of the Guarantee Trustee 7 SECTION 3.2. Certain Rights of Guarantee Trustee 8 SECTION 3.3. Indemnity 10 SECTION 3.4. Expenses 10 ARTICLE IV. GUARANTEE TRUSTEE 10 SECTION 4.1. Guarantee Trustee; Eligibility 10 SECTION 4.2. Appointment, ~~Authentication~~ Removal and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration~~ Resignation of ~~Transfer~~ the Guarantee Trustee 11 ARTICLE V. GUARANTEE 12 SECTION 5.1. Guarantee 12 SECTION 5.2. Waiver of Notice and ~~Exchange 6 Section 2.6 Mutilated~~Demand 12 SECTION 5.3. Obligations Not Affected 12 SECTION 5.4. Rights of Holders 13 SECTION 5.5. Guarantee of Payment 13 SECTION 5.6. Subrogation 13 SECTION 5.7. Independent Obligations 14 ARTICLE VI. COVENANTS AND SUBORDINATION 14 SECTION 6.1. Subordination 14 SECTION 6.2. Pari Passu Guarantees 14 ARTICLE VII. TERMINATION 14 SECTION 7.1. Termination 14 ARTICLE VIII. MISCELLANEOUS 15 SECTION 8.1. Successors and Assigns 15 SECTION 8.2. Amendments 15 SECTION 8.3. Notices 15 SECTION 8.4. Benefit 16 SECTION 8.5. Interpretation 17 SECTION 8.6. Governing Law 17 SECTION 8.7. Counterparts 17 THIS GUARANTEE AGREEMENT, ~~Destroyed~~dated as of [Closing Date], Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal is executed and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etcdelivered by [HOMEBANC CORP., ~~Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees~~a Georgia corporation][HOMEBANC MORTGAGE CORPORATION, ~~Loans~~a Delaware Corporation] (the “Guarantor”), Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by having its principal office at 2▇▇▇ ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTSWILMINGTON TRUST COMPANY, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinionsa Delaware banking corporation, ~~etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices~~as trustee (the “Guarantee Trustee”), etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability for the benefit of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 Holders (as ~~amended, supplemented or otherwise modified and in effect~~ defined herein) from time to ~~time, this “Indenture”), between CARMAX AUTO OWNER~~ time of the Preferred Capital Securities (as defined herein) of HMB CAPITAL TRUST ~~2023-3~~[ ], a Delaware statutory trust (the “~~Issuer~~Issuer Trust”). Pursuant to an Amended and Restated Declaration of Trust (the “Amended Declaration”), ~~and WILMINGTON TRUST~~dated of even date herewith, ~~NATIONAL ASSOCIATION~~among [HomeBanc Corp.][HomeBanc Mortgage Corporation], ~~a national banking association~~as Depositor, ~~not in its individual capacity but solely~~ Wilmington Trust Company, as ~~indenture trustee~~ Property Trustee (~~in such capacity,~~ the “~~Indenture~~ Property Trustee”)~~. Each party agrees~~ , Wilmington Trust Company, as ~~follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Delaware Trustee (the “~~Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes~~Delaware Trustee,” and together with the ~~Class A-2a Notes~~Property Trustee, collectively, the “~~Class A-2 Notes~~Issuer Trustees”), ~~5.28% Class A-3 Asset-backed Notes~~ the Administrators named therein and the Holders from time to time of undivided beneficial interests in the assets of the Issuer Trust, the Issuer Trust is issuing up to $[Amount] aggregate Liquidation Amount (as defined herein) of its Preferred Capital Securities (the “~~Class A-3 Notes~~Preferred Capital Securities”), ~~5.26% Class A-4 Asset-backed Notes~~ representing preferred undivided beneficial interests in the assets of the Issuer Trust and having the terms set forth in the Amended Declaration; The Preferred Capital Securities will be issued by the Issuer Trust and the proceeds thereof, together with the proceeds from the issuance of the Issuer Trust’s Common Securities (the “~~Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes~~Common Securities”), ~~5.47% Class B Asset-backed Notes~~ representing common undivided beneficial interests in the assets of the Issuer Trust, to the Guarantor, will be used to purchase the Junior Subordinated Debentures due [Maturity Date] (the “~~Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes~~Junior Subordinated Debentures”) of the Guarantor, which will be deposited with Wilmington Trust Company, as Property Trustee under the Amended Declaration, as trust assets; and ~~6.44% Class D Asset-backed Notes (~~As an inducement to the ~~“Class D Notes” and, collectively with~~ Holders to purchase the ~~Class A Notes~~Preferred Capital Securities, the ~~Class B Notes~~ Guarantor is willing to irrevocably and ~~the Class C Notes~~unconditionally agree, ~~the “Notes”): The Issuer hereby Grants~~ to the ~~Indenture Trustee on the Closing Date~~extent set forth herein, ~~as Indenture Trustee for the benefit of~~ to pay to the Holders of the ~~Notes, all of~~ Preferred Capital Securities the ~~Issuer’s right, title~~ Guarantee Payments (as defined herein) and ~~interest in,~~ to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any make certain other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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~~ the terms 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protectedconditions set forth herein.

Appears in 1 contract

Sources: Guarantee Agreement (HMB Capital Trust III)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS AND INCORPORATION BY REFERENCE ~~2 Section 1.1~~ 1 SECTION 1.01. Definitions ~~2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3~~ 1 SECTION 1.02. Other Definitions 32 SECTION 1.03. Rules of Construction ~~2 Article II~~ 32 ARTICLE 2. THE NOTES ~~3 Section 2.1~~ 33 SECTION 2.01. Form ~~3 Section 2.2 Execution,~~ and Dating 33 SECTION 2.02. Execution and Authentication 33 SECTION 2.03. Registrar and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of~~ Paying Agent 34 SECTION 2.04. Paying Agent to Hold Money in Trust 34 SECTION 2.05. Holder Lists 35 SECTION 2.06. Transfer and Exchange ~~6 Section 2.6 Mutilated, Destroyed, Lost or Stolen~~ 35 SECTION 2.07. Replacement Notes ~~7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9~~ 35 SECTION 2.08. Outstanding Notes 36 SECTION 2.09. Treasury Notes 36 SECTION 2.10. Temporary Notes 36 SECTION 2.11. Cancellation ~~13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12~~ 36 SECTION 2.12. Defaulted Interest 37 SECTION 2.13. CUSIP and ISIN Numbers 37 ARTICLE 3. REDEMPTION AND PREPAYMENT 37 SECTION 3.01. Notices to ~~Clearing Agency 15 Section 2.13 Definitive~~ Trustee 37 SECTION 3.02. Selection of Notes ~~15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained~~ to be Redeemed 37 SECTION 3.03. Notice of Redemption 38 SECTION 3.04. Effect of Notice of Redemption 39 SECTION 3.05. Deposit of Redemption Price 39 SECTION 3.06. Notes ~~16 Article III~~ Redeemed in Part 40 SECTION 3.07. Optional Redemption 40 SECTION 3.08. Offer to Purchase by Application of Excess Proceeds 41 SECTION 3.09. No Mandatory Sinking Fund 42 ARTICLE 4. COVENANTS ~~20 Section 3.1~~ 43 SECTION 4.01. Payment of ~~Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2~~ Notes 43 SECTION 4.02. Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances 43 SECTION 4.03. Reports 44 SECTION 4.04. Certificates and Other ~~Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17~~ Information 44 SECTION 4.05. Taxes 47 SECTION 4.06. Stay, Extension and Usury Laws 47 SECTION 4.07. Limitation on Restricted Payments ~~31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments~~ 47 SECTION 4.08. Limitation on Dividend and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Other Payment Restrictions Affecting Subsidiaries 50 SECTION 4.09. Limitation on Indebtedness and ~~Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6~~ Disqualified Stock 52 SECTION 4.10. Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by Asset Sales 54 SECTION 4.11. Limitation on Transactions with Affiliates 56 SECTION 4.12. Limitation on Liens ▇▇ ▇▇▇▇▇▇▇ ~~51 Section 6.10 Appointment~~ 4.13. Future Subsidiary Guarantees 57 SECTION 4.14. Existence 57 SECTION 4.15. Offer to Repurchase Upon Change of ~~Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection~~ Control 57 SECTION 4.16. Future Designation of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names Restricted and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate Unrestricted Subsidiaries 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders SECTION 4.17. Suspended Covenants 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 SECTION 4.18. Further Assurances 61 SECTION 4.19. Limitation on ~~Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22~~ Certain Agreements 62 SECTION 4.20. Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and ~~Servicing Agreement~~Leaseback Transactions 63 ARTICLE 5. SUCCESSORS 63 SECTION 5.01. Merger, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) 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 Consolidation, or ~~on behalf~~ Sale of the Issuer; and (x) 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 (collectively, the “Collateral”)Assets 63 SECTION 5.02. The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.Successor Substituted 66

Appears in 1 contract

Sources: Indenture (Comstock Oil & Gas GP, LLC)

TABLE OF CONTENTS. ~~Article I~~ ARTICLE I. DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1~~ 1 SECTION 1.1. Definitions ~~2 Section 1.2 Incorporation by Reference of~~ 1 ARTICLE II. TRUST INDENTURE ACT 4 SECTION 2.1. Trust Indenture ~~Act 2 Section 1.3 Rules~~ Act; Application 4 SECTION 2.2. List of ~~Construction 2 Article II~~ Holders 5 SECTION 2.3. Reports by the Guarantee Trustee 5 SECTION 2.4. Periodic Reports to the Guarantee Trustee 5 SECTION 2.5. Evidence of Compliance with Conditions Precedent 5 SECTION 2.6. Events of Default; Waiver 6 SECTION 2.7. Event of Default; Notice 6 SECTION 2.8. Conflicting Interests 6 ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE ~~NOTES 3 Section 2.1 Form 3 Section 2.2 Execution~~GUARANTEE TRUSTEE 6 SECTION 3.1. Powers and Duties of the Guarantee Trustee 6 SECTION 3.2. Certain Rights of Guarantee Trustee 8 SECTION 3.3. Indemnity 9 SECTION 3.4. Expenses 9 ARTICLE IV. GUARANTEE TRUSTEE 10 SECTION 4.1. Guarantee Trustee; Eligibility 10 SECTION 4.2. Appointment, ~~Authentication~~ Removal and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration~~ Resignation of ~~Transfer~~ the Guarantee Trustee 10 ARTICLE V. GUARANTEE 11 SECTION 5.1. Guarantee 11 SECTION 5.2. Waiver of Notice and ~~Exchange 6 Section 2.6 Mutilated~~Demand 11 SECTION 5.3. Obligations Not Affected 11 SECTION 5.4. Rights of Holders 12 SECTION 5.5. Guarantee of Payment 13 SECTION 5.6. Subrogation 13 SECTION 5.7. Independent Obligations 13 ARTICLE VI. COVENANTS AND SUBORDINATION 13 SECTION 6.1. Subordination 13 SECTION 6.2. Pari Passu Guarantees 13 ARTICLE VII. TERMINATION 14 SECTION 7.1. Termination 14 ARTICLE VIII. MISCELLANEOUS 14 SECTION 8.1. Successors and Assigns 14 SECTION 8.2. Amendments 14 SECTION 8.3. Notices 14 SECTION 8.4. Benefit 16 SECTION 8.5. Interpretation 16 SECTION 8.6. Governing Law 16 SECTION 8.7. Counterparts 17 THIS GUARANTEE AGREEMENT, ~~Destroyed~~dated as of January 13, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal 2006, is executed and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidatedelivered by GAINSCO, ~~etc~~INC., ~~Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees~~a Texas corporation (the “Guarantor”), Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by having its principal office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names ▇▇, Suite 1200, Dallas, Texas 75219, and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTSWILMINGTON TRUST COMPANY, ~~DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2~~ a Delaware banking corporation, as trustee (“Wilmington Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and OpinionsCompany”), etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability for the benefit of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 Holders (as ~~amended, supplemented or otherwise modified and in effect~~ defined herein) from time to ~~time, this “Indenture”), between CARMAX AUTO OWNER~~ time of the Capital Securities (as defined herein) of GAINSCO CAPITAL TRUST ~~2023-3~~I, a Delaware statutory trust (the “~~Issuer~~Issuer Trust”). Pursuant to an Amended and Restated Trust Agreement (the “Trust Agreement”), dated of even date herewith, among Gainsco, Inc., as Depositor, and ~~WILMINGTON TRUST~~Wilmington Trust Company, ~~NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely~~ as ~~indenture trustee (in such capacity~~Property Trustee and Delaware Trustee, the ~~“Indenture Trustee”). Each party agrees as follows for~~ Administrators named therein and the ~~benefit~~ Holders from time to time of undivided beneficial interests in the assets of the ~~other party and for~~ Issuer Trust, the ~~equal and ratable benefit~~ Issuer Trust is issuing up to $25,000,000 aggregate Liquidation Amount (as defined herein) of its Floating Rate Capital Securities, representing preferred undivided beneficial interests in the assets of the ~~holders of~~ Issuer Trust and having the ~~Issuer’s 5.631% Class A-1 Asset-backed Notes~~ terms set forth in the Trust Agreement (the “~~Class A-1 Notes~~Capital Securities”); The Capital Securities will be issued by the Issuer Trust and the proceeds thereof, together with the proceeds from the issuance of the Issuer Trust’s Common Securities (the “Common Securities”), ~~5.72% Class A-2a Asset-backed Notes~~ representing common undivided beneficial interests in the assets of the Issuer Trust, will be used to purchase the Junior Subordinated Debentures of the Guarantor due March 31, 2036 (the “~~Class A-2a Notes~~Junior Subordinated Debentures”), ~~Class A-2b Floating Rate Asset-backed Notes (~~which will be deposited with Wilmington Trust Company, as Property Trustee under the ~~“Class A-2b Notes”~~ Trust Agreement, as trust assets; and ~~together with~~ As an inducement to the ~~Class A-2a Notes~~Holders to purchase the Capital Securities, the ~~“Class A-2 Notes”)~~Guarantor is willing to irrevocably and unconditionally agree, 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the ~~Indenture Trustee on the Closing Date~~extent set forth herein, ~~as Indenture Trustee for the benefit of~~ to pay to the Holders of the ~~Notes, all of~~ Capital Securities the ~~Issuer’s right, title~~ Guarantee Payments (as defined herein) and ~~interest in,~~ to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any make certain other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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~~ the terms 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protectedconditions set forth herein.

Appears in 1 contract

Sources: Guarantee Agreement (Gainsco Inc)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE 2~~ Section ~~1.1 Definitions 2~~ Heading Page Section ~~1.2 Incorporation by Reference~~ 1. Authorization of ~~Trust Indenture Act 2~~ Notes 1 Section ~~1.3 Rules~~ 1.1. Authorization of ~~Construction 2 Article II THE NOTES 3~~ Notes 1 Section ~~2.1 Form 3~~ 1.2. Changes in Interest Rate 1 Section ~~2.2 Execution, Authentication~~ 2. Sale and ~~Delivery 4 Section 2.3 Temporary~~ Purchase of Notes 5 Section ~~2.4 Tax Treatment~~ 2.1. Sale and Purchase of Series 2025 Notes 5 Section ~~2.5~~ 2.2. Additional Series of Notes 5 Section 3. Closing 6 Section 3.1. Series 2025 Closing 6 Section 3.2. Additional Note Closings 7 Section 4. Conditions to Closing 7 Section 4.1. Representations and Warranties 7 Section 4.2. Performance; No Default 7 Section 4.3. Compliance Certificates 7 Section 4.4. Opinions of Counsel 8 Section 4.5. Purchase Permitted By Applicable Law, Etc 8 Section 4.6. Sale of Other Notes 8 Section 4.7. Payment of Special Counsel Fees 8 Section 4.8. Private Placement Number 8 Section 4.9. Changes in Legal Structure 8 Section 4.10. Funding Instructions 8 Section 4.11. Rating 9 Section 4.12. Proceedings and Documents 9 Section 4.13. Subsidiary Guaranty 9 Section 4.14. Conditions to Issuance of Additional Notes 9 Section 5. Representations and Warranties of the Company 10 Section 5.1. Organization; Power and Authority 10 Section 5.2. Authorization, Etc 10 Section 5.3. Disclosure 10 Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates 11 Section 5.5. Financial Statements; Material Liabilities 12 Section 5.6. Compliance with Laws, Other Instruments, Etc 12 BUSINESS.33079804.1 Section 5.7. Governmental Authorizations, Etc 13 Section 5.8. Litigation; Observance of Agreements, Statutes and Orders 13 Section 5.9. Taxes 13 Section 5.10. Title to Property 13 Section 5.11. Licenses, Permits, Etc. 13 Section 5.12. Compliance with Employee Benefit Plans 14 Section 5.13. Private Offering by the Company 15 Section 5.14. Use of Proceeds; Margin Regulations 15 Section 5.15. Existing Indebtedness; Future Liens 15 Section 5.16. Foreign Assets Control Regulations, Etc. 16 Section 5.17. Environmental Matters 17 Section 5.18. Investment Company Act 18 Section 5.19. Priority of Obligations 18 Section 6. Representations of the Purchasers 18 Section 6.1. Purchase for Investment 18 Section 6.2. Source of Funds 19 Section 6.3. Investment Experience; Access to Information 20 Section 6.4. Authorization 21 Section 6.5. Restricted Securities 21 Section 6.6. No Public Market 21 Section 6.7. Legends 21 Section 6.8. Reliance 22 Section 7. Information as to Company 22 Section 7.1. Financial and Business Information 22 Section 7.2. Officer’s Certificate 25 Section 7.3. Visitation 26 Section 7.4. Electronic Delivery 27 Section 8. Payment and Prepayment of the Notes 27 Section 8.1. Maturity 27 Section 8.2. Optional Prepayments with Prepayment Settlement Amount 28 Section 8.3. Allocation of Partial Prepayments 28 Section 8.4. Maturity; Surrender, Etc. 28 Section 8.5. Purchase of Notes 29 Section 8.6. Make-Whole Amount; Prepayment Settlement Amount 29 Section 8.7. Payments Due on Non-Business Days 31 Section 8.8. Change in Control 31 Section 9. Affirmative Covenants. 32 Section 9.1. Compliance with Laws 32 Section 9.2. Insurance 33 Section 9.3. Maintenance of Properties 33 -ii- BUSINESS.33079804.1 Section 9.4. Payment of Taxes and Claims 33 Section 9.5. Corporate Existence, Etc. 33 Section 9.6. Books and Records 33 Section 9.7. Subsidiary Guarantors 34 Section 9.8. Status of BDC and RIC 35 Section 9.9. Investment Policies 35 Section 9.10. Rating Confirmation 35 Section 9.11. Most Favored Lender 35 Section 10. Negative Covenants. 37 Section 10.1. Transactions with Affiliates 37 Section 10.2. Merger, Consolidation, Fundamental Changes, Etc 38 Section 10.3. Line of Business 40 Section 10.4. Economic Sanctions, Etc. 40 Section 10.5. Liens 40 Section 10.6. Restricted Payments 42 Section 10.7. Certain Financial Covenants 43 Section 11. Events of Default 44 Section 12. Remedies on Default, Etc 47 Section 12.1. Acceleration 47 Section 12.2. Holder Action 48 Section 12.3. Rescission 48 Section 12.4. No Waivers or Election of Remedies, Expenses, Etc. 48 Section 13. Registration; Exchange; Substitution of Notes 49 Section 13.1. Registration of Notes 49 Section 13.2. Transfer and Exchange 6 of Notes 49 Section ~~2.6 Mutilated~~13.3. Replacement of Notes 50 Section 14. Payments on Notes 50 Section 14.1. Place of Payment 50 Section 14.2. Payment by Wire Transfer 51 Section 14.3. Tax Forms 51 Section 15. Expenses, ~~Destroyed, Lost or Stolen Notes 7~~ Etc 52 Section ~~2.7 Persons Deemed Owners 8~~ 15.1. Transaction Expenses 52 Section ~~2.8 Payments 8~~ 15.2. Certain Taxes 53 Section ~~2.9 Cancellation 13~~ 15.3. Survival 53 Section ~~2.10 Release~~ 16. Survival of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and ~~Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32~~ Warranties; Entire Agreement 53 BUSINESS.33079804.1 Section ~~4.1 Satisfaction~~ 17. Amendment and ~~Discharge~~ Waiver 54 Section 17.1. Requirements 54 Section 17.2. Solicitation of ~~Indenture 32~~ Holders of Notes 54 Section ~~4.2 Satisfaction~~17.3. Binding Effect, ~~Discharge and Defeasance of the~~ Etc 55 Section 17.4. Notes ~~33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies~~ Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer Company, Etc 55 Section ~~7.4 Reports by Indenture Trustee 55~~ 18. Notices 56 Section ~~7.5 Noteholder Communications 55~~ 19. Reproduction of Documents 56 Section ~~7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES~~ 20. Confidential Information 57 Section ~~8.1 Collection~~ 21. Substitution of ~~Money 57 Section 8.2 Trust Accounts~~ Purchaser 58 Section ~~8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate~~ 22. Miscellaneous 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 22.1. Successors and Assigns 70 59 Section ~~11.10~~ 22.2. Accounting Terms 59 Section 22.3. Severability 70 59 Section ~~11.11 Benefits~~ 22.4. Construction, Etc 59 Section 22.5. Counterparts; Electronic Contracting 60 Section 22.6. Governing Law 60 Section 22.7. Jurisdiction and Process; Waiver of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording Jury Trial 61 BUSINESS.33079804.1 Schedule A — Defined Terms Schedule 1(a) — Form of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation 6.15% Series 2025A Senior Notes, due June 12, 2028 Schedule 1(b) — Form of ~~Liability~~ 6.50% Series 2025A Senior Notes, due June 12, 2030 Schedule 5.3 — Disclosure Materials Schedule 5.4 — Subsidiaries of the ~~Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial~~ Company and Ownership ~~73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1~~ of Subsidiary Stock Schedule 5.5 — Financial Statements Schedule 5.15 — Existing Indebtedness Schedule 10.1 — Transactions with Affiliates Schedule 10.5 — Liens Schedule 10.7 — Excluded Assets Schedule 13.2 — Eligible Assignees Exhibit S — Form of ~~Class A-1~~ Supplement to Note ~~EXHIBIT A-2a Form~~ Purchase Agreement Purchaser Schedule — Information Relating to Purchasers BUSINESS.33079804.1 $105,000,000 6.15% Series 2025A Senior Notes, due June 12, 2028 $105,000,000 6.50% Series 2025B Senior Notes, due June 12, 2030 To Each of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified the Purchasers Listed in the Purchaser Schedule Hereto: Ladies and ~~in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3~~Gentlemen: Fidelity Private Credit Fund, a Delaware statutory trust (the “~~Issuer~~Company”), ~~and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party~~ agrees ~~as follows for the benefit~~ with each of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, Purchasers as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.follows:

Appears in 1 contract

Sources: Master Note Purchase Agreement (Fidelity Private Credit Fund)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2~~ 1 Section ~~1.1~~ 1.1. Definitions 2 set forth in the Master Agreement 1 Section ~~1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article~~ 1.2. Defined Terms 1 ARTICLE II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes AUTHORITY 7 Section ~~2.7 Persons Deemed Owners~~ 2.1. Appointment 7 Section 2.2. Provision of Administrative Services Subject to Transition Services Agreement 8 Section ~~2.8 Payments~~ 2.3. Retained Services 8 Section ~~2.9 Cancellation~~ 2.4. Trademark License 8 ARTICLE III STANDARD FOR SERVICES; FACILITIES; SUBCONTRACTING; OBLIGATIONS OF COMPANY; DEFENSES 10 Section 3.1. Standard for Services 10 Section 3.2. Facilities and Personnel 11 Section 3.3. Broker-Dealer Services 11 Section 3.4. Independent Contractor 11 Section 3.5. Subcontracting 11 Section 3.6. Disaster Recovery 11 Section 3.7. Permits 12 Section 3.8. Insurance 13 Section ~~2.10 Release~~ 3.9. Defenses of ~~Collateral~~ the Administrator 13 Section 3.10. Relationship Manager 13 Section 3.11. Abandonment 13 Section 3.12. Document Retention; Information Security 13 ARTICLE IV UNDERWRITING 14 Section ~~2.11 Book-Entry Notes~~ 4.1. Underwriting Obligations 14 ARTICLE V AGREEMENTS WITH RESPECT TO ADMINISTERED CONTRACTS AND SEPARATE ACCOUNTS 16 Section ~~2.12 Notices to Clearing Agency 15~~ 5.1. Administered Contracts 16 Section ~~2.13 Definitive Notes 15~~ 5.2. Management of Separate Accounts 16 Section ~~2.14 Authenticating Agents 15~~ 5.3. Recommendations 18 Section ~~2.15 Retained Notes 16 Article III COVENANTS~~ 5.4. Nonguaranteed Elements 18 Section 5.5. Maintenance of Contracts 20 Section ~~3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2~~ 5.6. Maintenance of ~~Office or Agency~~ Separate Accounts 22 Section ~~3.3 Money for Payments To Be Held in Trust~~ 5.7. Maintenance of Investment Agreements 22 ~~Section 3.4 Existence~~ ARTICLE VI [RESERVED] 23 ARTICLE VII CLAIMS HANDLING 23 Section ~~3.5 Protection~~ 7.1. Claim Administration Services 23 Section 7.2. Description of ~~Trust Estate~~ Claim Administration Services 23 ARTICLE VIII REGULATORY AND LEGAL PROCEEDINGS 24 Section ~~3.6 Opinions as to Trust Estate~~ 8.1. Regulatory Complaints and Proceedings 24 Section ~~3.7 Performance of Obligations; Servicing of Receivables~~ 8.2. Legal Proceedings 25 Section ~~3.8 Negative Covenants~~ 8.3. Notice to Administrator 25 ARTICLE IX SEPARATE ACCOUNT ADMINISTRATIVE SERVICES 26 ARTICLE X [RESERVED] 26 ARTICLE XI NOTIFICATION TO CONTRACTHOLDERS 26 ARTICLE XII MONTHLY PREMIUM TAX AND INSOLVENCY FUND ACCOUNTINGS 26 Section 12.1. Monthly Accountings 26 Section 12.2. Adjustments Regarding Monthly Accountings 26 ARTICLE XIII CERTAIN ACTIONS BY THE COMPANIES 27 Section ~~3.9 Annual Statement as to~~ 13.1. Filings 27 Section 13.2. Governmental Inquiries 27 ARTICLE XIV REGULATORY MATTERS, REPORTING AND AUDITS 27 Section 14.1. Regulatory Compliance and Reporting 27 Section 14.2. Reporting and Accountings 27 Section 14.3. Additional Reports and Updates 28 Section ~~3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ 14.4. Audits 28 ~~Section 3.11 Successor or Transferee~~ ARTICLE XV BOOKS AND RECORDS 29 ARTICLE XVI COOPERATION 29 ARTICLE XVII PRIVACY REQUIREMENTS 30 Section ~~3.12 No Other Business~~ 17.1. Customer Information 30 ~~Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures~~ ARTICLE XVIII CONSIDERATION FOR ADMINISTRATIVE SERVICES 31 Section ~~3.17 Restricted Payments~~ 18.1. Administration Fees 31 ARTICLE XIX INDEMNIFICATION 31 Section ~~3.18 Notice~~ 19.1. Indemnification of ~~Events of Default~~ the Companies 31 Section ~~3.19 Removal~~ 19.2. Indemnification of the Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section ~~4.1 Satisfaction and Discharge of Indenture~~ 19.3. Indemnification Procedures 32 Section ~~4.2 Satisfaction, Discharge and Defeasance of the Notes~~ 19.4. Sole Remedy 32 ARTICLE XX DURATION; TERMINATION 33 Section ~~4.3 Application of Trust Money 34~~ 20.1. Duration 33 Section ~~4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34~~ 20.2. Termination 33 Section ~~5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment~~ 20.3. Termination Payments 35 ~~Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee~~ ARTICLE XXI ARBITRATION 36 Section ~~5.4~~ 21.1. Negotiation 36 Section 21.2. Resolution of Damages 37 Section 21.3. Composition of Panel 37 Section 21.4. Appointment of Arbitrators 37 Section 21.5. Failure of a Party to Appoint Arbitrator; Incapacity of Arbitrator 37 Section 21.6. Choice of Forum 38 Section 21.7. Procedure Governing Arbitration 38 Section 21.8. Arbitration Award 38 Section 21.9. Cost of Arbitration 38 Section 21.10. Limit of Authority 38 Section 21.11. Continued Provision of Administrative Services 39 ARTICLE XXII GENERAL PROVISIONS 39 Section 22.1. Headings 39 Section 22.2. Schedules 39 Section 22.3. Notices 39 Section 22.4. Binding Effect; Assignment; Assignment of Administered Contracts 41 Section 22.5. Counterparts 41 Section 22.6. Currency 41 Section 22.7. Waivers and Amendments; Non-Contractual Remedies; ~~Priorities 38 Section 5.5 Optional~~ Preservation of ~~the Receivables~~ Remedies 41 Section ~~5.6 Limitation of Suits~~ 22.8. Governing Law 42 Section ~~5.7 Unconditional Rights of Noteholders to Receive Principal and Interest~~ 22.9. Entire Agreement; Severability 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee 22.10. Parties to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibilitythis Agreement; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No ~~Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-~~Third Party Beneficiaries 72 42 Section ~~11.20 Limitation on Recourse to CarMax Funding 72~~ 22.11. Interpretation 42 Section ~~11.21 Legal~~ 22.12. No Fiduciary Duties 42 Section 22.13. Survival 43 Schedule A Disaster Recovery Plans Schedule B Hartford Brand Standards Schedule C Hartford Name and Hartford Licensed Marks Schedule D Document Retention Policy Schedule E Information Security Requirements Schedule F Administrative Services Schedule G Insurance Requirements Schedule H Relationship Managers Schedule I Nonguaranteed Elements Methodology Schedule J Investment Agreements Schedule K Reserve Methodologies Schedule L Administration Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 Schedule L-1 Initial Administrative Fee Payments This ADMINISTRATIVE SERVICES AGREEMENT (~~as amended, supplemented or otherwise modified and in effect from time to time,~~ this “~~Indenture~~Agreement”), ~~between CARMAX AUTO OWNER TRUST 2023-3~~effective as of 11:59 p.m. Eastern Time on July 14, ~~a Delaware statutory trust~~ 2012 (the “~~Issuer~~Effective Time”), is entered into by and among HARTFORD LIFE INSURANCE COMPANY, a Connecticut-domiciled stock life insurance company (“HLIC”), Hartford Life and Annuity INSURANCE Company, a Connecticut-domiciled stock life insurance company (“HLAC”) (each a “Company” and together the “Companies”), HARTFORD FIRE INSURANCE COMPANY, a Connecticut domiciled stock property and casualty insurance company (“Hartford Fire” and together with HLIC and HLAC, each a “Hartford Company” and collectively the “Hartford Companies”), and ~~WILMINGTON TRUST, NATIONAL ASSOCIATION~~PHILADELPHIA FINANCIAL ADMINISTRATION SERVICES COMPANY, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes Delaware corporation (the “~~Class A-1 Notes~~Administrator”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Administrative Services Agreement (Tiptree Financial Inc.)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE 2~~ Cross References Each of the following terms is defined in the Section ~~1.1 Definitions 2~~ set forth opposite such term: Term Section ~~1.2 Incorporation by Reference~~ Additional Miami Public Documents Section 6.8(a) ADR Section 7.24(a) ADR Facility Section 7.24(a) ADS Recitals Agent Section 3.2(a) Agent Agreement Section 3.2(a) Alternative Commitment Letter Section 7.7(a) Alternative Financing Section 7.7(a) Alternative Financing Agreements Section 7.7(b) Alternative Notice Section 7.10(b) Announcement Section 7.23(c) Approvals Section 7.6(a) Audited Financial Statements Section 7.17(a) Certificate of ~~Trust Indenture Act 2~~ Merger Section ~~1.3 Rules of Construction 2 Article II THE NOTES 3 Section 2.1 Form 3~~ 2.3 Clean-Up Spin-Off Recitals Closing Section 2.2 ~~Execution, Authentication and Delivery 4~~ Closing Date Section 2.2 Common Shares Trust Section 3.3(b) Companies Act Section 3.2(b) Competing Proposal Section 7.10(f)(i) Custodian Section 7.24(a) Data Security Requirements Section 5.20(c) Deposit Agreement Section 7.24(a) Depositary Bank Section 7.24(a) Distribution Recitals Distribution Documents Section 5.24 Distribution Fund Section 3.2(a) DOJ Section 7.6(a) Effective Time Section 2.3 ~~Temporary Notes 5~~ ERISA Section ~~2.4 Tax Treatment 5~~ 5.13(a) Excess ADSs Section ~~2.5 Registration; Registration of Transfer and~~ 3.3(a) Exchange 6 Offer Recitals FCPA Section ~~2.6 Mutilated, Destroyed, Lost or Stolen Notes 7~~ 5.10(b) Financing Section ~~2.7 Persons Deemed Owners 8~~ 7.7(a) Financing Adjustment Amount Section ~~2.8 Payments 8~~ 9.3(f)(i) Financing Agreements Section ~~2.9 Cancellation 13~~ 7.7(a) Financing Expense Reimbursement Section ~~2.10 Release of Collateral 14~~ 9.3(f)(iii) Financing Obligations Section ~~2.11 Book~~6.9(b) Form 8-~~Entry Notes 14~~ A Section ~~2.12 Notices to Clearing Agency 15~~ 7.4(a) Form F-6 Section ~~2.13 Definitive Notes 15~~ 7.4(a) FTC Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and 7.6(a) Houston Preamble 18 Table of Contents 70 Term Section ~~11.9 Successors and Assigns 70~~ Houston Audit Committee Section ~~11.10 Severability 70~~ 4.7 Houston Benefit Plan Section ~~11.11 Benefits of Indenture 70~~ 5.13(a) Houston Board Recitals Houston Non-U.S. Plan Section ~~11.12 Legal Holiday 70~~ 5.13(f) Houston Tax Opinion Section ~~11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70~~ 7.3(b)(i) Interim Period Section ~~11.14 Counterparts and Electronic Signature 71~~ 7.1 Intermediate Holdco Preamble Intermediate Holdco Common Stock Section ~~11.15 Recording of Indenture 71~~ 3.1(a)(vii) Internal Controls Section ~~11.16 Trust Obligation 71~~ 6.8(b) Lenders Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”6.9(c), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Merger Agreement

TABLE OF CONTENTS. ~~Article I~~ ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE 2 1 Section 1.1 Definitions 2 1 Section 1.2 Other Definitions 4 Section 1.3 Incorporation by Reference of Trust Indenture Act 2 5 Section ~~1.3~~ 1.4 Rules of Construction ~~2 Article II~~ 5 ARTICLE II. THE ~~NOTES 3~~ SECURITIES 5 Section 2.1 ~~Form 3~~ Issuable in Series 5 Section 2.2 ~~Execution, Authentication and Delivery 4~~ Establishment of Terms of Series of Securities 6 Section 2.3 ~~Temporary Notes 5~~ Execution and Authentication 8 Section 2.4 ~~Tax Treatment 5~~ Registrar and Paying Agent 9 Section 2.5 ~~Registration; Registration of~~ Paying Agent to Hold Money in Trust 10 Section 2.6 Securityholder Lists 10 Section 2.7 Transfer and Exchange 6 10 Section ~~2.6~~ 2.8 Mutilated, Destroyed, Lost or and Stolen ~~Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8~~ Securities 11 Section 2.9 Outstanding Securities 12 Section 2.10 Treasury Securities 12 Section 2.11 Temporary Securities 12 Section 2.12 Cancellation 13 Section ~~2.10 Release of Collateral 14~~ 2.13 Defaulted Interest 13 Section ~~2.11 Book-Entry Notes 14~~ 2.14 Global Securities 13 Section ~~2.12 Notices to Clearing Agency~~ 2.15 CUSIP Numbers 15 ARTICLE III. REDEMPTION 15 Section ~~2.13 Definitive Notes~~ 3.1 Notice to Trustee 15 Section ~~2.14 Authenticating Agents~~ 3.2 Selection of Securities to be Redeemed 15 Section ~~2.15 Retained Notes~~ 3.3 Notice of Redemption 16 ~~Article III~~ Section 3.4 Effect of Notice of Redemption 16 Section 3.5 Deposit of Redemption Price 17 Section 3.6 Securities Redeemed in Part 17 ARTICLE IV. COVENANTS 20 17 Section ~~3.1~~ 4.1 Payment of Principal and ~~Interest; Determination of SOFR; Benchmark Replacement 20~~ Interest 17 Section ~~3.2 Maintenance of Office or Agency 22~~ 4.2 SEC Reports 17 Section ~~3.3 Money for Payments To Be Held in Trust 22~~ 4.3 Compliance Certificate 18 Section ~~3.4 Existence 23~~ 4.4 Stay, Extension and Usury Laws 18 ARTICLE V. SUCCESSORS 18 Section ~~3.5 Protection of Trust Estate 24~~ 5.1 When Company May Merge, Etc 18 Section ~~3.6 Opinions as to Trust Estate 24~~ 5.2 Successor Corporation Substituted 19 ARTICLE VI. DEFAULTS AND REMEDIES 19 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of 6.1 Events of Default 31 19 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 6.2 Acceleration of Maturity; Rescission and Annulment 35 20 Section ~~5.3~~ 6.3 Collection of Indebtedness and Suits for Enforcement by ~~Indenture~~ Trustee 36 21 Section ~~5.4 Remedies; Priorities 38~~ 6.4 Trustee May File Proofs of Claim 22 Section ~~5.5 Optional Preservation~~ 6.5 Trustee May Enforce Claims Without Possession of ~~the Receivables 41~~ Securities 22 Section ~~5.6~~ 6.6 Application of Money Collected 23 Section 6.7 Limitation on Suits 23 Section 6.8 Unconditional Right of ~~Suits 42 Section 5.7 Unconditional Rights of Noteholders~~ Holders to Receive Principal and Interest 42 24 Section ~~5.8~~ 6.9 Restoration of Rights and Remedies 43 24 Section ~~5.9~~ 6.10 Rights and Remedies Cumulative 43 24 Section ~~5.10~~ 6.11 Delay or Omission Not a Waiver 43 24 Section ~~5.11~~ 6.12 Control by ~~Noteholders of the Controlling Class 43~~ Holders 24 Section ~~5.12~~ 6.13 Waiver of Past Defaults 44 25 Section ~~5.13~~ 6.14 Undertaking for Costs 44 25 ARTICLE VII. TRUSTEE 26 Section ~~5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1~~ 7.1 Duties of ~~Indenture~~ Trustee 46 26 Section ~~6.2~~ 7.2 Rights of ~~Indenture~~ Trustee 48 27 Section ~~6.3~~ 7.3 Individual Rights of ~~Indenture~~ Trustee 49 28 Section ~~6.4 Indenture~~ 7.4 Trustee’s Disclaimer 49 29 Section ~~6.5~~ 7.5 Notice of Defaults 49 29 Section ~~6.6~~ 7.6 Reports by ~~Indenture~~ Trustee to Holders 49 29 Section ~~6.7~~ 7.7 Compensation and Indemnity 50 29 Section ~~6.8~~ 7.8 Replacement of ~~Indenture~~ Trustee 50 30 Section ~~6.9~~ 7.9 Successor ~~Indenture~~ Trustee by ~~▇▇▇▇▇▇ 51~~ Merger, Etc 31 Section ~~6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11~~ 7.10 Eligibility; Disqualification 53 31 Section ~~6.12~~ 7.11 Preferential Collection of Claims Against ~~Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS~~ Company 32 ARTICLE VIII. SATISFACTION AND ~~REPORTS~~DISCHARGE; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 DEFEASANCE 32 Section 8.1 ~~Collection~~ Satisfaction and Discharge of ~~Money 57~~ Indenture 32 Section 8.2 Application of Trust ~~Accounts 58~~ Funds; Indemnification 33 Section 8.3 ~~General Provisions Regarding Accounts 58~~ Legal Defeasance of Securities of any Series 33 Section 8.4 ~~Release of Trust Estate 59~~ Covenant Defeasance 35 Section 8.5 ~~Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60~~ Repayment to Company 36 Section 8.6 Reinstatement 36 ARTICLE IX. AMENDMENTS AND WAIVERS 37 Section 9.1 ~~Supplemental Indentures~~ Without Consent of ~~Noteholders 60~~ Holders 37 Section 9.2 ~~Supplemental Indentures with~~ With Consent of ~~Noteholders 61~~ Holders 37 Section 9.3 ~~Execution of Supplemental Indentures 63~~ Limitations 38 Section 9.4 ~~Effect of Supplemental Indenture 63 Section 9.5 Conformity~~ Compliance with Trust Indenture Act 63 39 Section 9.5 Revocation and Effect of Consents 39 Section 9.6 ~~Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63~~ Notation on or Exchange of Securities 39 Section 9.7 Trustee Protected 39 ARTICLE X. MISCELLANEOUS 40 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Controls 40 Section ~~11.8 Effect~~ 10.2 Notices 40 Section 10.3 Communication by Holders with Other Holders 41 Section 10.4 Certificate and Opinion as to Conditions Precedent 41 Section 10.5 Statements Required in Certificate or Opinion 41 Section 10.6 Rules by Trustee and Agents 42 Section 10.7 Legal Holidays 42 Section 10.8 No Recourse Against Others 42 Section 10.9 Counterparts 42 Section 10.10 Governing Law; Waiver of ~~Headings and~~ Jury Trial; Consent to Jurisdiction 43 Section 10.11 No Adverse Interpretation of Other Agreements 43 Section 10.12 Successors 43 Section 10.13 Severability 43 Section 10.14 Table of ~~Contents 70~~ Contents, Headings, Etc 44 Section ~~11.9 Successors and Assigns 70~~ 10.15 Securities in a Foreign Currency 44 Section ~~11.10 Severability 70~~ 10.16 Judgment Currency 44 Section ~~11.11 Benefits~~ 10.17 Force Majeure 45 Section 10.18 U.S.A. Patriot Act 45 ARTICLE XI. SINKING FUNDS 45 Section 11.1 Applicability of ~~Indenture 70~~ Article 45 Section ~~11.12 Legal Holiday 70~~ 11.2 Satisfaction of Sinking Fund Payments with Securities 46 Section ~~11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording~~ 11.3 Redemption of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURESecurities for Sinking Fund 46 § 310(a)(1) 7.10 (a)(2) 7.10 (a)(3) Not Applicable (a)(4) Not Applicable (a)(5) 7.10 (b) 7.10 § 311(a) 7.11 (b) 7.11 (c) Not Applicable § 312(a) 2.6 (b) 10.3 (c) 10.3 § 313(a) 7.6 (b)(1) 7.6 (b)(2) 7.6 (c)(1) 7.6 (d) 7.6 § 314(a) 4.2, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.10.5

Appears in 1 contract

Sources: Indenture (American Airlines, Inc.)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE 2~~ Section ~~1.1 Definitions 2~~ Heading Page Section ~~1.2 Incorporation by Reference~~ 1. Authorization of ~~Trust Indenture Act 2~~ Notes 1 Section ~~1.3 Rules~~ 1.1. Authorization of ~~Construction 2 Article II THE NOTES 3~~ Notes 1 Section ~~2.1 Form 3~~ 1.2. Changes in Interest Rate 1 Section ~~2.2 Execution, Authentication~~ 2. Sale and ~~Delivery~~ Purchase of Notes 4 Section ~~2.3 Temporary~~ 2.1. Sale and Purchase of Series A Notes 4 Section 2.2. Additional Series of Notes 5 Section ~~2.4 Tax Treatment 5~~ 3. Closing 6 Section ~~2.5~~ 3.1. Initial Closing 6 Section 3.2. Additional Note Closings 6 Section 4. Conditions to Closing 7 Section 4.1. Representations and Warranties 7 Section 4.2. Performance; No Default 7 Section 4.3. Compliance Certificates 7 Section 4.4. Opinions of Counsel 7 Section 4.5. Purchase Permitted By Applicable Law, Etc 7 Section 4.6. Sale of Other Notes 8 Section 4.7. Payment of Special Counsel Fees 8 Section 4.8. Private Placement Number 8 Section 4.9. Changes in Corporate Structure 8 Section 4.10. Funding Instructions 8 Section 4.11. Debt Rating 9 Section 4.12. [reserved] 9 Section 4.13. Proceedings and Documents 9 Section 4.14. Conditions to Issuance of Additional Notes 9 Section 5. Representations and Warranties of the Company 10 Section 5.1. Organization; Power and Authority 10 Section 5.2. Authorization, Etc 10 Section 5.3. Disclosure 10 Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates 11 Section 5.5. Financial Statements; Material Liabilities 12 Section 5.6. Compliance with Laws, Other Instruments, Etc 12 Section 5.7. Governmental Authorizations, Etc 12 Section 5.8. Litigation; Observance of Agreements, Statutes and Orders 12 Section 5.9. Taxes 13 Section 5.10. Title to Property 13 Section 5.11. Licenses, Permits, Etc 13 Section 5.12. Compliance with Employee Benefit Plans 14 Section 5.13. Private Offering by the Company 15 Section 5.14. Use of Proceeds; Margin Regulations 15 Section 5.15. Existing Indebtedness; Future Liens 15 Section 5.16. Foreign Assets Control Regulations, Etc. 16 Section 5.17. [Reserved] 17 Section 5.18. Environmental Matters 17 Section 5.19. Investment Company Act 17 Section 5.20. Ranking of Obligations 17 Section 6. Representations of the Purchasers 18 Section 6.1. Purchase for Investment 18 Section 6.2. Source of Funds 18 Section 6.3. Legends 20 Section 6.4. Investment Experiences; Access to Information 20 Section 6.5. Authorization 21 Section 6.6. Restricted Securities 21 Section 6.7. No Public Market 21 Section 6.8. Reliance 21 Section 6.9. Acknowledgment 21 Section 7. Information as to Company 22 Section 7.1. Financial and Business Information 22 Section 7.2. Officer’s Certificate 25 Section 7.3. Visitation 25 Section 7.4. Electronic Delivery 26 Section 8. Payment and Prepayment of the Notes 27 Section 8.1. Maturity 27 Section 8.2. Optional Prepayments with Prepayment Settlement Amount 27 Section 8.3. Allocation of Partial Prepayments 28 Section 8.4. Maturity; Surrender, Etc. 28 Section 8.5. Purchase of Notes 28 Section 8.6. Make‑Whole Amount; Prepayment Settlement Amount 28 Section 8.7. Payments Due on Non‑Business Days 31 Section 8.8. Change in Control 31 Section 9. Affirmative Covenants. 32 Section 9.1. Compliance with Laws 32 Section 9.2. Insurance 33 Section 9.3. Maintenance of Properties 33 Section 9.4. Payment of Taxes and Claims 33 Section 9.5. Corporate Existence, Etc 33 Section 9.6. Books and Records 33 Section 9.7. Subsidiary Guarantors 34 Section 9.8. Rating Confirmation 35 Section 9.9. Most Favored Lender 35 Section 9.10. Ranking of Obligations 36 Section 9.11. Investment Policies 37 Section 9.12. Status of BDC and RIC 37 Section 10. Negative Covenants. 37 Section 10.1. Transactions with Affiliates 37 Section 10.2. Fundamental Changes 38 Section 10.3. Line of Business 40 Section 10.4. Economic Sanctions, Etc. 40 Section 10.5. Liens 40 Section 10.6. Restricted Payments 42 Section 10.7. Certain Financial Covenants 44 Section 10.8. SBIC Guarantee 45 Section 11. Events of Default 45 Section 12. Remedies on Default, Etc 48 Section 12.1. Acceleration 48 Section 12.2. Holder Action 48 Section 12.3. Rescission 49 Section 12.4. No Waivers or Election of Remedies, Expenses, Etc 49 Section 13. Registration; Exchange; Substitution of Notes 49 Section 13.1. Registration of Notes 49 Section 13.2. Transfer and Exchange 6 of Notes 50 Section ~~2.6 Mutilated~~13.3. Replacement of Notes 51 Section 14. Payments on Notes 51 Section 14.1. Place of Payment 51 Section 14.2. Payment by Wire Transfer 51 Section 14.3. Tax Forms 52 Section 15. Expenses, ~~Destroyed, Lost or Stolen Notes 7~~ Etc 53 Section ~~2.7 Persons Deemed Owners 8~~ 15.1. Transaction Expenses 53 Section ~~2.8 Payments 8~~ 15.2. Certain Taxes 54 Section ~~2.9 Cancellation 13~~ 15.3. Survival 54 Section ~~2.10 Release~~ 16. Survival of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and ~~Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32~~ Warranties; Entire Agreement 54 Section ~~4.1 Satisfaction~~ 17. Amendment and ~~Discharge~~ Waiver 54 Section 17.1. Requirements 54 Section 17.2. Solicitation of ~~Indenture 32~~ Holders of Notes 55 Section ~~4.2 Satisfaction~~17.3. Binding Effect, ~~Discharge and Defeasance of the~~ Etc 56 Section 17.4. Notes ~~33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies~~ Held by ~~Paying Agent 34 Article V REMEDIES 34~~ Company, Etc 56 Section ~~5.1 Events~~ 18. Notices 56 Section 19. Reproduction of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES Documents 57 Section ~~8.1 Collection of Money 57 Section 8.2 Trust Accounts~~ 20. Confidential Information 58 Section ~~8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 21. Substitution of ~~Trust Estate~~ Purchaser 59 Section ~~8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60~~ 22. Miscellaneous 59 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 22.1. Successors and Assigns 70 59 Section ~~11.10~~ 22.2. Accounting Terms 60 Section 22.3. Severability 70 60 Section ~~11.11 Benefits~~ 22.4. Construction, Etc 60 Section 22.5. Counterparts; Electronic Contracting 61 Section 22.6. Governing Law 62 Section 22.7. Jurisdiction and Process; Waiver of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX Jury Trial 62 Schedule A ~~Additional Representations and Warranties EXHIBIT A-1~~ — Defined Terms Schedule 1(A) — Form of ~~Class A-1 Note EXHIBIT A-2a~~ 7.54% Series A Senior Note, Tranche A, due October 29, 2027 Schedule 1(B) — Form of ~~Class A-2a Note EXHIBIT A-2b~~ 7.60% Series A Senior Note, Tranche B, due October 29, 2028 Schedule 1(C) — Form of ~~Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E~~ 7.66% Series A Senior Notes, Tranche C, due October 29, 2029 Schedule 4.4(a) — Form of Opinion of Special Counsel ~~EXHIBIT F~~ for the Company Schedule 4.4(b) — Form of ~~Transferor Certificate EXHIBIT G~~ Opinion of Special Counsel for the Purchasers Schedule 5.3 — Disclosure Materials Schedule 5.4 — Subsidiaries of the Company and Ownership of Subsidiary Stock Schedule 5.5 — Financial Statements Schedule 5.15 — Existing Indebtedness Schedule 10.1 — Transactions with Affiliates Schedule 10.6 — Excluded Assets Exhibit S — Form of ~~Investment Letter INDENTURE~~Supplement to Master Note Purchase Agreement Purchaser Schedule — Information Relating to Purchasers 7.54% Series A Senior Notes, ~~dated as~~ Tranche A, due October 29, 2027 7.60% Series A Senior Notes, Tranche B, due October 29, 2028 7.66% Series A Senior Notes, Tranche C, due October 29, 2029 To Each of ~~July 1~~the Purchasers Listed in the Purchaser Schedule Hereto: Ladies and Gentlemen: Trinity Capital Inc., ~~2023~~ a Maryland corporation (~~as amended, supplemented or otherwise modified and in effect from time to time, this~~ the “~~Indenture~~Company”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees ~~as follows for the benefit~~ with each of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, Purchasers as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.follows:

Appears in 1 contract

Sources: Master Note Purchase Agreement (Trinity Capital Inc.)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 4 SECTION 1.01. Defined Terms 4 SECTION 1.02. Other Defined Terms 4 ARTICLE II PLEDGE OF SECURITIES 8 SECTION 2.01. Pledge 8 SECTION 2.02. Delivery of ~~Trust Indenture Act 2 Section 1.3 Rules of Construction 2~~ the Pledged Collateral 9 SECTION 2.03. Representations, Warranties and Covenants 10 SECTION 2.04. Registration in Nominee Name; Denominations 11 SECTION 2.05. Voting Rights; Dividends and Interest 12 SECTION 2.06. Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 ~~Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral~~ Opt-In 14 ~~Section 2.11 Book-Entry Notes~~ ARTICLE III SECURITY INTERESTS IN PERSONAL PROPERTY 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 SECTION 3.01. Security Interest 14 SECTION 3.02. Representations and Warranties ~~by the Issuer to the Indenture Trustee 31 Article~~ 16 SECTION 3.03. Covenants 18 SECTION 3.04. Other Actions 20 SECTION 3.05. Covenants Regarding Patent, Trademark and Copyright Collateral 21 SECTION 3.06. Secured Swap Obligation 22 ARTICLE IV ~~SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3~~ REMEDIES 22 SECTION 4.01. Remedies upon Default 22 SECTION 4.02. Application of ~~Trust Money 34 Section 4.4 Repayment~~ Proceeds 24 SECTION 4.03. Securities Act 25 SECTION 4.04. Grant of ~~Monies Held by Paying~~ License to Use Intellectual Property 26 ARTICLE V MISCELLANEOUS 26 SECTION 5.01. Notices 26 SECTION 5.02. Waivers; Amendment 26 SECTION 5.03. Collateral Agent’s Fees and Expenses; Indemnification 27 SECTION 5.04. Successors and Assigns 28 SECTION 5.05. Survival of Agreement 28 SECTION 5.06. Counterparts; Effectiveness; Several Agreement 28 SECTION 5.07. Severability 28 SECTION 5.08. Right of Set-off 29 SECTION 5.09. Governing Law; Jurisdiction; Consent to Service of Process; Appointment of Service of Process Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 29 SECTION 5.10. Waiver of ~~Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver~~ Jury Trial 30 SECTION 5.11. Headings 30 SECTION 5.12. Security Interest Absolute 31 SECTION 5.13. Termination or Release 31 SECTION 5.14. Additional Subsidiaries 32 SECTION 5.15. Collateral Agent Appointed Attorney-in-Fact 32 SECTION 5.16. Keepwell 33 Schedule I Pledged Equity Interests; Pledged Debt Securities Schedule II Intellectual Property Schedule III Commercial Tort Claims Schedule IV Grantor Information Exhibit I Form of ~~Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement~~ Supplement Exhibit II Form of ~~Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties~~ Copyright Security Agreement Exhibit III Form of ~~Indenture Trustee 46 Section 6.2 Rights~~ Patent Security Agreement Exhibit IV Form of ~~Indenture Trustee 48 Section 6.3 Individual Rights~~ Trademark Security Agreement COLLATERAL AGREEMENT, dated as of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by September 1, 2021 (this “Agreement”), among AMERICAN PUBLIC EDUCATION, INC., a Delaware corporation (the “Borrower”), AMERICAN PUBLIC UNIVERSITY SYSTEM, INC., a West Virginia corporation (“APUS”), NATIONAL EDUCATION SEMINARS, INC., an Ohio corporation (“NESI”), ▇▇▇▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTSCOLLEGE, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and OpinionsLLC, ~~etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices~~a Delaware limited liability company (“Rasmussen”), ~~etc~~▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.▇., ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ limited liability company (“111 West Congress”), AMERICAN PUBLIC TRAINING LLC, a Delaware limited liability company (“APT”), the other GRANTORS from time to ~~Indenture Trustee~~time party hereto and MACQUARIE CAPITAL FUNDING LLC, ~~Issuer~~ as Collateral Agent (in such capacity and ~~Rating Agencies 68 Section 11.5 Notices~~ together with successors in such capacity, the “Collateral Agent”). Reference is made to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURECredit Agreement, dated as of ~~July 1, 2023~~ the date hereof (as amended, supplemented or otherwise modified ~~and in effect~~ from time to time, ~~this~~ the “~~Indenture~~Credit Agreement”), ~~between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (~~among the ~~“Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity~~Borrower, the ~~“Indenture Trustee”)~~Lenders and the Issuing Banks party thereto from time to time and Macquarie Capital Funding LLC, as Administrative Agent and as Collateral Agent. The Lenders and the Issuing Banks have agreed to extend credit to the Borrower subject to the terms and conditions set forth in the Credit Agreement. The obligations of the Lenders and the Issuing Banks to extend such credit are conditioned upon, among other things, the execution and delivery of this Agreement. Each Grantor from time to time party ~~agrees as follows for~~ hereto will derive substantial benefits from the ~~benefit~~ extension of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants credit to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors Borrower pursuant to the ~~Receivables~~ Credit Agreement and ~~any other interest of~~ are willing to execute and deliver this Agreement in order to induce the ~~Issuer in~~ Lenders and the Issuing Banks to extend such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, credit life or credit disability insurance policies relating to the Financed Vehicles or the Obligors; (v) the Receivable Files; (vi) the Collection Accountcredit. Accordingly, the Note Payment Account and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all parties hereto agree as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.follows:

Appears in 1 contract

Sources: Collateral Agreement (American Public Education Inc)

TABLE OF CONTENTS. ~~Article I~~ ARTICLE ONE DEFINITIONS AND ~~INCORPORATION BY REFERENCE 2~~ OTHER PROVISIONS OF GENERAL APPLICATION 1 Section ~~1.1~~ 1.01 Definitions 2 1 Section ~~1.2~~ 1.02 Other Definitions 12 Section 1.03 Incorporation by Reference of Trust Indenture Act 2 12 Section 1.3 Rules of Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 1.04 Form of Documents Delivered to ~~Indenture~~ Trustee 66 12 Section ~~11.3~~ 1.05 Acts of ~~Noteholders 67~~ Holders 13 Section ~~11.4~~ 1.06 Notices, ~~etc~~Etc., to ~~Indenture Trustee, Issuer~~ Trustee and ~~Rating Agencies 68~~ Company 15 Section ~~11.5 Notices~~ 1.07 Notice to ~~Noteholders~~Holders; Waiver 69 15 Section ~~11.6 Alternate Payment and Notice Provisions 69 Section 11.7~~ 1.08 Conflict with Trust Indenture Act 69 16 Section ~~11.8~~ 1.09 Effect of Headings and Table of Contents 70 16 Section ~~11.9~~ 1.10 Successors and Assigns 70 16 Section ~~11.10 Severability 70~~ 1.11 Separability Clause 16 Section ~~11.11~~ 1.12 Benefits of Indenture 70 16 Section ~~11.12 Legal Holiday 70~~ 1.13 Governing Law 16 Section ~~11.13 GOVERNING LAW~~1.14 No Recourse 16 Section 1.15 Compliance Certificates and Opinions 17 Section 1.16 Waiver of Jury Trial 17 Section 1.17 Force Majeure 17 ARTICLE TWO SECURITY FORMS 18 Section 2.01 Forms Generally 18 Section 2.02 Form of Trustee’s Certificate of Authentication 18 Section 2.03 Securities in Global Form 19 ARTICLE THREE THE SECURITIES 19 Section 3.01 Amount Unlimited; ~~SUBMISSION TO JURISDICTION~~Issuable in Series 19 Section 3.02 Denominations 22 Section 3.03 Execution, Authentication, Delivery and Dating 22 Section 3.04 Temporary Securities 24 Section 3.05 Registration, Registration of Transfer and Exchange 25 Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities 27 Section 3.07 Payment of Interest; ~~WAIVER OF RIGHT TO JURY TRIAL 70~~ Interest Rights Preserved 28 Section ~~11.14 Counterparts~~ 3.08 Persons Deemed Owners 30 Section 3.09 Cancellation 30 Section 3.10 Computation of Interest 30 Section 3.11 CUSIP Numbers 30 ARTICLE FOUR SATISFACTION, DISCHARGE AND DEFEASANCE 31 Section 4.01 Satisfaction and ~~Electronic Signature 71 Section 11.15 Recording~~ Discharge of Indenture 71 31 Section ~~11.16~~ 4.02 Application of Trust ~~Obligation 71~~ Money 32 Section ~~11.17 No Petition 72~~ 4.03 Satisfaction, Discharge and Defeasance of Securities of any Series 32 ARTICLE FIVE REMEDIES 35 Section ~~11.18 Inspection 72~~ 5.01 Events of Default 35 Section ~~11.19 Third-Party Beneficiaries 72~~ 5.02 Acceleration 36 Section ~~11.20~~ 5.03 Other Remedies 37 Section 5.04 Waiver of Past Defaults 38 Section 5.05 Control by Majority 38 Section 5.06 Limitation on ~~Recourse~~ Suits 38 Section 5.07 Rights of Holders to ~~CarMax Funding 72~~ Receive Payment 39 Section ~~11.21 Legal Fees Associated with Indemnification 73~~ 5.08 Collection Suit by Trustee 39 Section ~~11.22 Limitation~~ 5.09 Delay or Omission Not Waiver 39 Section 5.10 Trustee May File Proofs of ~~Liability~~ Claim 39 Section 5.11 Priorities 40 Section 5.12 Undertaking for Costs 40 Section 5.13 Waiver of ~~the Owner~~ Stay, Extension or Usury Laws 40 Section 5.14 Judgment Currency 41 ARTICLE SIX THE TRUSTEE 41 Section 6.01 Certain Duties and Responsibilities 41 Section 6.02 Certain Rights of Trustee 73 42 Section ~~11.23 PATRIOT Act 73~~ 6.03 Not Responsible for Recitals or Issuance of Securities 44 Section ~~11.24 Beneficial Ownership 73 APPENDIX A Additional Representations~~ 6.04 May Hold Securities 44 Section 6.05 Money Held in Trust 44 Section 6.06 Compensation and ~~Warranties EXHIBIT A-1 Form~~ Reimbursement 44 Section 6.07 Resignation and Removal; Appointment of ~~Class A-1 Note EXHIBIT A-2a Form~~ Successor 45 Section 6.08 Acceptance of ~~Class A-2a Note EXHIBIT A-2b Form~~ Appointment by Successor 46 Section 6.09 Merger, Conversion, Consolidation or Succession to Business 47 Section 6.10 Reports by Trustee 48 Section 6.11 Trustee’s Disclaimer 48 Section 6.12 Notice of ~~Class A-2b Note EXHIBIT A-3 Form~~ Defaults 48 Section 6.13 Trustee May Establish Record Dates 48 Section 6.14 Lists of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTUREHolders 48 Section 6.15 Disqualification; Conflicting Interests 49 ARTICLE SEVEN CONSOLIDATION, ~~dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023~~MERGER OR SALE 49 Section 7.01 When Twenty-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, credit life or credit disability insurance policies relating to the Financed Vehicles First Century Fox or the Obligors; (v) the Receivable Files; (vi) the Collection Account, the Note Payment Account and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in Company may Merge or ~~credited to any~~ Transfer Assets 49 Section 7.02 Successor Corporation Substituted 50 Section 7.03 Merger of ~~the foregoing and all proceeds thereof; (vii) all rights~~ a Guarantor 50 Section 7.04 Waiver 51 ARTICLE EIGHT SUPPLEMENTAL INDENTURES 51 Section 8.01 Supplemental Indentures Without Consent of ~~the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights~~ Holders 51 Section 8.02 Supplemental Indentures With Consent of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) 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 Holders 53 Section 8.03 Execution of ~~the Issuer; and (x) all present and future claims, demands, causes~~ Supplemental Indentures 54 Section 8.04 Effect 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.Supplemental Indentures 54

Appears in 1 contract

Sources: Indenture (Twenty-First Century Fox, Inc.)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE~~ SECTION 1. Escrow Agent 2 Section ~~1.1 Definitions~~ 1.01. Appointment of Escrow Agent 2 Section ~~1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES~~ 1.02. Instruction; Etc. 3 Section ~~2.1 Form 3 Section 2.2 Execution, Authentication and Delivery~~ 1.03. Initial Escrow Amount; Issuance of Escrow Receipts 4 Section ~~2.3 Temporary Notes 5~~ 1.04. Payments to Receiptholders 4 Section ~~2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6~~ 1.05. Mutilated, Destroyed, Lost or Stolen ~~Notes 7~~ Escrow Receipt 5 Section ~~2.7~~ 1.06. Additional Escrow Amounts 5 Section 1.07. Resignation or Removal of Escrow Agent 5 Section 1.08. Persons Deemed Owners 6 Section 1.09. Further Assurances 6 SECTION 2. Paying Agent 6 Section 2.01. Appointment of Paying Agent 6 Section 2.02. Establishment of Paying Agent Account 7 Section 2.03. Payments from Paying Agent Account 7 Section 2.04. Withholding Taxes 8 Section ~~2.8 Payments~~ 2.05. Resignation or Removal of Paying Agent 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 2.06. Notice of ~~Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22~~ Final Withdrawal 8 SECTION 3. Payments 9 SECTION 4. Other Actions 9 SECTION 5. Representations and Warranties ~~by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance~~ of the ~~Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying~~ Escrow Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional 9 SECTION 6. Representations and Warranties ~~EXHIBIT A-1 Form~~ of the Paying Agent 10 SECTION 7. Indemnification 11 SECTION 8. Amendment, Etc. 12 SECTION 9. Notices 12 SECTION 10. Transfer 13 SECTION 11. Entire Agreement 13 SECTION 12. Governing Law 13 SECTION 13. Waiver of Jury Trial Right 13 SECTION 14. Counterparts 13 SECTION 15. Rights of Holders 14 Exhibit A Escrow Receipt Escrow Agreement 2016-1A Exhibit B Withdrawal Certificate Escrow Agreement 2016-1A ESCROW AND PAYING AGENT AGREEMENT (Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, A) dated as of ~~July 1~~June 13, ~~2023~~ 2016, (as amended, modified or supplemented ~~or otherwise modified and in effect~~ from time to time, this “~~Indenture~~Agreement”) among U.S. BANK NATIONAL ASSOCIATION, a national banking association, as Escrow Agent (in such capacity, together with its successors in such capacity, the “Escrow Agent”); M▇▇▇▇▇ S▇▇▇▇▇▇ & CO. LLC, ~~between CARMAX AUTO OWNER TRUST 2023-3~~CREDIT SUISSE SECURITIES (USA) LLC and G▇▇▇▇▇▇, ~~a Delaware statutory trust~~ SACHS & CO. for themselves and on behalf of the several Underwriters of the Certificates referred to below (the “~~Issuer~~Underwriters” and together with their respective transferees and assigns as registered owners of the Certificates, the “Investors”~~), and~~ ) under the Underwriting Agreement referred to below; WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity except as otherwise expressly provided herein, but solely as ~~indenture~~ trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with ~~the Class A-2a Notes~~its successors in such capacity, the “~~Class A-2 Notes~~Pass Through Trustee”)) under the Pass Through Trust Agreement referred to below; and WILMINGTON TRUST, ~~5.28% Class A-3 Asset-backed Notes~~ NATIONAL ASSOCIATION, a national banking association, as paying agent hereunder (~~the “Class A-3 Notes”)~~in such capacity, ~~5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively~~ together with ~~the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes~~its successors in such capacity, the “~~Class A Notes~~Paying Agent”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Escrow and Paying Agent Agreement (United Airlines, Inc.)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2~~ 1 Section 1.1 ~~Definitions 2 Section 1.2 Incorporation by Reference~~ Definition of ~~Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES 3~~ Terms 1 ARTICLE II. APPOINTMENT OF WARRANT AGENT 4 Section 2.1 ~~Form 3 Section 2.2 Execution, Authentication and Delivery~~ Appointment 4 ~~Section 2.3 Temporary Notes~~ ARTICLE III. WARRANTS 5 Section ~~2.4 Tax Treatment~~ 3.1 Issuance of Warrants 5 Section ~~2.5 Registration~~3.2 Form of Warrant 5 Section 3.3 Execution of Global Warrant Certificates 6 Section 3.4 Registration and Countersignature 6 ARTICLE IV. TERMS AND EXERCISE OF WARRANTS 7 Section 4.1 Exercise Price 7 Section 4.2 Exercise Period and Expiration 7 Section 4.3 [Intentionally Omitted] 7 Section 4.4 Method of Exercise 7 Section 4.5 Issuance of Warrant Shares 9 Section 4.6 Taxes 9 Section 4.7 Reservation of Shares 10 Section 4.8 Listing 10 Section 4.9 Compliance with Law 10 ARTICLE V. ADJUSTMENT OF SHARES OF COMMON STOCK PURCHASABLE AND OF EXERCISE PRICE 11 Section 5.1 Stock Splits, Subdivisions, Reclassifications or Combinations 11 Section 5.2 Price Based Anti-Dilution. 11 Section 5.3 Other Distributions 13 Section 5.4 Reorganization or Reclassification 14 Section 5.5 Expiration of Rights or Options 14 Section 5.6 Rounding of Calculations; Minimum Adjustments 15 Section 5.7 Timing of Issuance of Additional Common Stock Upon Certain Adjustments 15 Section 5.8 Form of Warrant After Adjustments 16 Section 5.9 Notice to Warrant Holders 16 Section 5.10 Miscellaneous 17 ARTICLE VI. TRANSFER AND EXCHANGE OF WARRANTS AND WARRANT SHARES 17 Section 6.1 Registration of ~~Transfer~~ Transfers and ~~Exchange 6~~ Exchanges 17 Section ~~2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release~~ 6.2 Obligations with Respect to Transfers and Exchanges of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS Warrants 19 ARTICLE VII. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS 20 Section ~~3.1 Payment of Principal and Interest~~7.1 No Rights or Liability as Stockholder; ~~Determination of SOFR; Benchmark Replacement~~ Notice to Registered Holders 20 Section ~~3.2 Maintenance of Office~~ 7.2 Lost, Stolen, Mutilated or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Destroyed Global Warrant Certificates 20 Section 7.3 ~~Reports by Issuer 55~~ Restrictive Legends 20 Section 7.4 ~~Reports by Indenture Trustee 55~~ Cancellation of Warrants 20 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Mutilated or Missing Warrant Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.21

Appears in 1 contract

Sources: Common Stock Warrant Agreement (BioScrip, Inc.)

TABLE OF CONTENTS. ~~Article I~~ ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section ~~1.1~~ 1.01 Definitions 2 Section ~~1.2~~ 1.02 Other Definitions 7 Section 1.03 Incorporation by Reference of Trust Indenture Act 2 7 Section ~~1.3~~ 1.04 Rules of Construction 8 ARTICLE 2 ~~Article II~~ THE ~~NOTES 3~~ SECURITIES 8 Section ~~2.1 Form 3~~ 2.01 Issuable in Series 8 Section ~~2.2 Execution,~~ 2.02 Establishment of Terms of Series of Securities 8 Section 2.03 Execution and Authentication 11 Section 2.04 Registrar and ~~Delivery 4~~ Paying Agent 12 Section ~~2.3 Temporary Notes 5~~ 2.05 Paying Agent to Hold Money in Trust 12 Section ~~2.4 Tax Treatment 5~~ 2.06 Holder Lists 13 Section ~~2.5 Registration; Registration of~~ 2.07 Transfer and Exchange 6 13 Section ~~2.6 Mutilated, Destroyed, Lost or Stolen Notes 7~~ 2.08 Replacement Securities 13 Section ~~2.7~~ 2.09 Outstanding Securities 14 Section 2.10 Treasury Securities 14 Section 2.11 Temporary Securities 14 Section 2.12 Cancellation 15 Section 2.13 Persons Deemed Owners ~~8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes~~ 15 Section 2.14 ~~Authenticating Agents~~ Defaulted Interest 15 Section 2.15 ~~Retained Notes~~ Global Securities 16 ~~Article III~~ Section 2.16 CUSIP Numbers 17 ARTICLE 3 REDEMPTION 17 Section 3.01 Notices to Trustee 17 Section 3.02 Selection of Securities to be Redeemed 17 Section 3.03 Notice of Redemption 18 Section 3.04 Effect of Notice of Redemption 19 Section 3.05 Deposit of Redemption Price 19 Section 3.06 Securities Redeemed in Part 19 ARTICLE 4 COVENANTS 19 Section 4.01 Payment of Securities 19 Section 4.02 Reports 20 Section ~~3.1 Payment of Principal~~ 4.03 Compliance Certificate 21 Section 4.04 Stay, Extension and ~~Interest; Determination of SOFR; Benchmark Replacement 20~~ Usury Laws 21 Section ~~3.2 Maintenance of Office or Agency~~ 4.05 Corporate Existence 21 ARTICLE 5 SUCCESSORS 22 Section ~~3.3 Money for Payments To Be Held in Trust~~ 5.01 Merger, Consolidation, or Sale of Assets 22 Section ~~3.4 Existence~~ 5.02 Successor Corporation Substituted 23 ARTICLE 6 DEFAULTS AND REMEDIES 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of 6.01 Events of Default 31 23 Section ~~3.19 Removal~~ 6.02 Acceleration 24 Section 6.03 Collection of ~~Administrator 31~~ Suit by Trustee 24 Section ~~3.20 Further Instruments and Acts 31~~ 6.04 Trustee May File Proofs of Claim 25 Section ~~3.21 Sales Finance Company Licenses 31~~ 6.05 Trustee May Enforce Claims Without Possession of Securities 25 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 6.06 Application of ~~Trust~~ Money 34 Collected 25 Section ~~4.4 Repayment~~ 6.07 Limitation on Suits 26 Section 6.08 Unconditional Right of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders Holders to Receive Principal and Interest 42 26 Section ~~5.8~~ 6.09 Restoration of Rights and Remedies 43 27 Section ~~5.9~~ 6.10 Rights and Remedies Cumulative 43 27 Section ~~5.10~~ 6.11 Delay or Omission Not a Waiver 43 27 Section ~~5.11~~ 6.12 Control by ~~Noteholders of the Controlling Class 43~~ Holders 27 Section ~~5.12~~ 6.13 Waiver of Past Defaults 44 28 Section ~~5.13~~ 6.14 Undertaking for Costs 44 28 ARTICLE 7 TRUSTEE 28 Section ~~5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1~~ 7.01 Duties of ~~Indenture~~ Trustee 46 28 Section ~~6.2~~ 7.02 Rights of ~~Indenture~~ Trustee 48 29 Section ~~6.3~~ 7.03 Individual Rights of ~~Indenture~~ Trustee 49 31 Section ~~6.4 Indenture~~ 7.04 Trustee’s Disclaimer 49 31 Section ~~6.5~~ 7.05 Notice of Defaults 49 31 Section ~~6.6~~ 7.06 Reports by ~~Indenture~~ Trustee to Holders 49 of the Securities 31 Section ~~6.7~~ 7.07 Compensation and Indemnity 50 31 Section ~~6.8~~ 7.08 Replacement of ~~Indenture~~ Trustee 50 32 Section ~~6.9~~ 7.09 Successor ~~Indenture~~ Trustee by ~~▇▇▇▇▇▇ 51~~ Merger, etc. 33 Section ~~6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11~~ 7.10 Eligibility; Disqualification 53 34 Section ~~6.12~~ 7.11 Preferential Collection of Claims Against ~~Issuer 54~~ Company 34 ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE 34 Section ~~6.13 Communications Regarding Demands~~ 8.01 Option to ~~Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS~~ Effect Legal Defeasance or Covenant Defeasance 34 Section 8.02 Legal Defeasance and Discharge 34 Section 8.03 Covenant Defeasance 35 Section 8.04 Conditions to Legal or Covenant Defeasance 35 Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions 37 Section 8.06 Repayment to Company 37 Section 8.07 Reinstatement 38 ARTICLE 9 AMENDMENT, SUPPLEMENT AND ~~REPORTS; ASSET REPRESENTATIONS REVIEW 54~~ WAIVER 38 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures 9.01 Without Consent of ~~Noteholders 60~~ Holders of Securities 38 Section ~~9.2 Supplemental Indentures with~~ 9.02 With Consent of ~~Noteholders 61~~ Holders of Securities 39 Section ~~9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity~~ 9.03 Compliance with Trust Indenture Act 63 41 Section ~~9.6 Reference in Notes~~ 9.04 Revocation and Effect of Consents 41 Section 9.05 Notation on or Exchange of Securities 41 Section 9.06 Trustee to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 NoticesSign Amendments, etc~~., to Indenture Trustee, Issuer~~ . 41 ARTICLE 10 SECURITY GUARANTEES 41 Section 10.01 Security Guarantees 41 Section 10.02 Limitation on Guarantor Liability 43 Section 10.03 Execution and ~~Rating Agencies 68~~ Delivery of Security Guarantee 43 Section ~~11.5 Notices to Noteholders; Waiver 69~~ 10.04 Releases 44 ARTICLE 11 SATISFACTION AND DISCHARGE 44 Section ~~11.6 Alternate Payment~~ 11.01 Satisfaction and ~~Notice Provisions 69~~ Discharge 44 Section ~~11.7 Conflict with~~ 11.02 Application of Trust Money 45 ARTICLE 12 MISCELLANEOUS 46 Section 12.01 Trust Indenture Act 69 Controls 46 Section ~~11.8 Effect~~ 12.02 Notices 46 Section 12.03 Communication by Holders with Other Holders 47 Section 12.04 Certificate and Opinion as to Conditions Precedent 47 Section 12.05 Statements Required in Certificate or Opinion 48 Section 12.06 Rules by Trustee and Agents 48 Section 12.07 No Personal Liability of ~~Headings~~ Directors, Officers, Employees and Stockholders 48 Section 12.08 Counterparts 48 Section 12.09 Legal Holidays 48 Section 12.10 Governing Laws 48 Section 12.11 Waiver of Jury Trial 49 Section 12.12 No Adverse Interpretation of Other Agreements 49 Section 12.13 Successors 49 Section 12.14 Severability 49 Section 12.15 Table of ~~Contents 70~~ Contents, Headings, Etc. 49 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and 12.16 Securities in ~~effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3,~~ a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on Foreign Currency 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 Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions ECU 49 Section 12.17 Judgment Currency 50 Section 12.18 Force Majeure 51 Section 12.19 U.S.A. Patriot Act 51 Section 12.20 Beneficiaries of this Indenture ~~and agrees to perform its duties required in this Indenture to the best~~ 51 ARTICLE 13 SINKING FUNDS 51 Section 13.01 Applicability of ~~its ability to the end that the interests~~ Article 51 Section 13.02 Satisfaction of ~~the Holders~~ Sinking Fund Payments with Securities 51 Section 13.03 Redemption of ~~the Notes may be adequately and effectively protected.~~Securities for Sinking Fund 52 Exhibit A Form of Notation of Guarantee 310(a)(1) 7.10 (a)(2) 7.10

Appears in 1 contract

Sources: Indenture (MetroPCS Finance, Inc.)

TABLE OF CONTENTS. (This Table of Contents convenience of reference only for the Loan Agreement is for and is not intended to define, limit or describe the scope or intent of any provisions of this Loan Agreement.) Article I Section Heading Page --------------- ------- ---- ARTICLE ONE PREAMBLES, DEFINITIONS AND ~~INCORPORATION BY REFERENCE 2~~ ACCOUNTING TERMS 1 Section ~~1.1~~ 1.01 Incorporation of Preambles 1 Section 1.02 Definitions 2 1 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 1.03 Accounting Terms 7 Section ~~2.7 Persons Deemed Owners~~ 1.04 General Terms 7 ARTICLE TWO THE LOAN 8 Section ~~2.8 Payments~~ 2.01 The Loan 7 Section 2.02 Intentionally Omitted 8 Section ~~2.9 Cancellation~~ 2.03 Intentionally Omitted 8 Section 2.04 The Note 8 Section 2.05 Intentionally Omitted 8 Section 2.06 Prepayment 8 Section 2.07 Calculation of Interest; Usury Savings Clause 8 Section 2.08 Place and Manner of Payment 9 Section 2.09 Bank's Right of Set-Off 9 Section 2.10 Application of Payments 9 Section 2.11 Intentionally Omitted 9 Section 2.12 Late Charges 9 ARTICLE THREE CONDITIONS TO EFFECTIVENESS OF THIS AGREEMENT AND LENDING HEREUNDER 10 Section 3.01 Representations and Warranties 10 Section 3.02 No Default 10 Section 3.03 Loan Documents 10 Section 3.04 Opinion of Borrower's and Guarantor's Counsel 10 Section 3.05 Supporting Documents 10 Section 3.06 Proceedings 11 Section 3.07 Lessor Subordination Agreements 11 Section 3.08 Payment of Fees and Disbursements of Bank's Counsel 11 Section 3.09 Pre-Funding Audit 11 ARTICLE FOUR REPRESENTATIONS AND WARRANTIES 11 Section 4.01 Organization, Corporate Powers, etc. 11 Section 4.02 Authorization of Loans, etc. 11 Section 4.03 Consents and Approvals 12 Section 4.04 Financial Statements 12 Section 4.05 Tax Returns and Payments 12 Section 4.06 Agreements 12 Section 4.07 No Actions Pending 13 Section ~~2.10 Release of Collateral~~ 4.08 Title to Properties and Assets, Liens, etc. 13 Section 4.09 Litigation, Etc. 13 Section 4.10 Patents, Trademarks, Franchises, Etc. 13 Section 4.11 ERISA 14 Section ~~2.11 Book-Entry Notes~~ 4.12 Outstanding Debt 14 Section ~~2.12 Notices~~ 4.13 Places of Business 14 Section 4.14 Priority of Security Interest 14 Section 4.15 Subsidiaries 14 Section 4.16 Collateral to ~~Clearing Agency~~ Secure all Obligations 14 Section 4.17 Environmental Matters 14 Section 4.18 Regulation G, Etc. 14 Section 4.19 Holding Company Status 15 Section ~~2.13 Definitive Notes~~ 4.20 Investment Company Status 15 Section ~~2.14 Authenticating Agents~~ 4.21 Intentionally Omitted 15 Section ~~2.15 Retained Notes 16 Article III~~ 4.22 False or Misleading Statements 15 Section 4.23 Bank's Rights to Sell Collateral Following Event of Default 15 Section 4.24 FDA, other Regulatory Bodies 15 ARTICLE FIVE COVENANTS 15 Section 5.01 Affirmative Covenants 15 Section 5.02 Negative Covenants 20 ~~Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency~~ ARTICLE SIX EVENTS OF DEFAULT 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of 6.01 Events of Default 31 22 ARTICLE SEVEN RIGHTS UPON DEFAULT 24 Section ~~3.19 Removal~~ 7.01 Acceleration 25 Section 7.02 Right of ~~Administrator 31~~ Setoff 25 Section ~~3.20 Further Instruments~~ 7.03 Other Rights 25 Section 7.04 Uniform Commercial Code 25 ARTICLE EIGHT MISCELLANEOUS 25 Section 8.01 No Waiver, Cumulative Remedies 25 Section 8.02 Amendments, Etc. 25 Section 8.03 Addresses for Notices, Etc. 25 Section 8.04 Applicable Law and ~~Acts 31~~ Courts 26 Section ~~3.21 Sales Finance Company Licenses 31~~ 8.05 Waiver of Jury Trial 26 Section ~~3.22~~ 8.06 Survival of Representations and Warranties ~~by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32~~ 26 Section ~~4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance~~ 8.07 Time of the ~~Notes 33~~ Essence 27 Section ~~4.3 Application~~ 8.08 Headings 27 Section 8.09 Severability 27 Section 8.10 Counterparts 27 Section 8.11 Non-Waiver 27 Section 8.12 Further Assurances 27 Section 8.13 Costs and Expenses 27 Section 8.14 Indemnification regarding Environmental Matters 28 Section 8.15 No Third Party Beneficiaries 28 Section 8.16 Construction of ~~Trust Money 34~~ Loan Documents 28 Section ~~4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34~~ 8.17 Collateral to Secure all Loans 28 Section ~~5.1 Events of Default 34~~ 8.18 Entire Agreement 28 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 8.19 Successors and Assigns 70 28 Section ~~11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER~~ 8.20 Relief from Automatic Stay 28 SIGNATURES AND SEALS 29 LIST OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX EXHIBITS ---------------- EXHIBIT A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note Permitted Debt EXHIBIT B ~~Form~~ Places of ~~Class B Note~~ Business EXHIBIT C ~~Form of Class C Note~~ Employee Plans EXHIBIT D ~~Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Permitted Security Interests LOAN AGREEMENT THIS LOAN AGREEMENT (this "Agreement"), dated ~~as of July 1~~March , ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”),~~ 2000 between ~~CARMAX AUTO OWNER TRUST 2023-3~~GALAXY FOODS COMPANY, a Delaware ~~statutory trust~~ corporation (hereinafter referred to as the ~~“Issuer”),~~ "Borrower") and ~~WILMINGTON TRUST, NATIONAL ASSOCIATION~~SOUTHTRUST BANK, a national banking ~~association, not in its individual capacity but solely~~ association (hereinafter referred to as ~~indenture trustee (in such capacity,~~ the ~~“Indenture Trustee”~~"Bank"). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Term Loan Agreement (Galaxy Foods Co)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE~~ SECTION 1. Escrow Agent 2 Section ~~1.1 Definitions~~ 1.01. Appointment of Escrow Agent 2 Section ~~1.2 Incorporation by Reference of Trust Indenture Act~~ 1.02. Instruction; Etc. 2 Section ~~1.3 Rules~~ 1.03. Initial Escrow Amount; Issuance of ~~Construction 2 Article II THE NOTES~~ Escrow Receipts 3 Section ~~2.1 Form~~ 1.04. Payments to Receiptholders 3 Section ~~2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6~~ 1.05. Mutilated, Destroyed, Lost or Stolen ~~Notes 7~~ Escrow Receipt 4 Section ~~2.7~~ 1.06. Additional Escrow Amounts 4 Section 1.07. Resignation or Removal of Escrow Agent 4 Section 1.08. Persons Deemed Owners 8 5 Section ~~2.8~~ 1.09. Further Assurances 5 SECTION 2. Paying Agent 5 Section 2.01. Appointment of Paying Agent 5 Section 2.02. Establishment of Paying Agent Account 6 Section 2.03. Payments from Paying Agent Account 6 Section 2.04. Withholding Taxes 7 Section 2.05. Resignation or Removal of Paying Agent 7 Section 2.06. Notice of Final Withdrawal 7 SECTION 3. Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No SECTION 4. Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Actions 8 SECTION 5. Representations and Warranties ~~by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance~~ of the ~~Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying~~ Escrow Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional 8 SECTION 6. Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the ~~other party and for the equal and ratable benefit~~ Paying Agent 9 SECTION 7. Indemnification 10 SECTION 8. Amendment, Etc. 11 SECTION 9. Notices 11 SECTION 10. Transfer 12 SECTION 11. Entire Agreement 12 SECTION 12. Governing Law 12 SECTION 13. Waiver of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class Jury Trial Right 12 SECTION 14. Counterparts 12 Exhibit A ~~Notes”), 5.47% Class~~ Escrow Receipt Exhibit B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.Withdrawal Certificate

Appears in 1 contract

Sources: Escrow and Paying Agent Agreement (Continental Airlines Inc /De/)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1~~ 1 SECTION 1.1. Definitions ~~2 Section 1.2 Incorporation by Reference of~~ 1 ARTICLE II. TRUST INDENTURE ACT 4 SECTION 2.1. Trust Indenture ~~Act 2 Section 1.3 Rules~~ Act; Application 4 SECTION 2.2. List of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery~~ Holders 4 ~~Section 2.3 Temporary Notes~~ SECTION 2.3. Reports by the Guarantee Trustee 5 ~~Section 2.4 Tax Treatment~~ SECTION 2.4. Periodic Reports to the Guarantee Trustee 5 ~~Section 2.5 Registration; Registration~~ SECTION 2.5. Evidence of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of with Conditions Precedent 5 SECTION 2.6. Events of ~~Default 31 Section 3.19 Removal~~ Default; Waiver 5 SECTION 2.7. Event of ~~Administrator 31 Section 3.20 Further Instruments~~ Default; Notice 6 SECTION 2.8. Conflicting Interests 6 ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE 6 SECTION 3.1. Powers and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance Duties of the ~~Notes 33 Section 4.3 Application~~ Guarantee Trustee 6 SECTION 3.2. Certain Rights of ~~Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity~~Guarantee Trustee 7 SECTION 3.3. Indemnity 9 SECTION 3.4. Expenses 9 ARTICLE IV. GUARANTEE TRUSTEE 9 SECTION 4.1. Guarantee Trustee; ~~Rescission~~ Eligibility 9 SECTION 4.2. Appointment, Removal and ~~Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation~~ Resignation of the ~~Receivables 41 Section 5.6 Limitation~~ Guarantee Trustee 10 ARTICLE V. GUARANTEE 11 SECTION 5.1. Guarantee 11 SECTION 5.2. Waiver of ~~Suits 42 Section 5.7 Unconditional~~ Notice and Demand 11 SECTION 5.3. Obligations Not Affected 11 SECTION 5.4. Rights of ~~Noteholders to Receive Principal~~ Holders 12 SECTION 5.5. Guarantee of Payment 12 SECTION 5.6. Subrogation 12 SECTION 5.7. Independent Obligations 13 ARTICLE VI. COVENANTS AND SUBORDINATION 13 SECTION 6.1. Subordination 13 SECTION 6.2. Pari Passu Guarantees 13 ARTICLE VII. TERMINATION 13 SECTION 7.1. Termination 13 ARTICLE VIII. MISCELLANEOUS 14 SECTION 8.1. Successors and ~~Interest 42 Section 5.8 Restoration~~ Assigns 14 SECTION 8.2. Amendments 14 SECTION 8.3. Notices 14 SECTION 8.4. Benefit 15 SECTION 8.5. Interpretation 15 SECTION 8.6. Governing Law 16 SECTION 8.7. Counterparts 16 THIS GUARANTEE AGREEMENT, dated as of ~~Rights~~ March 30, 2004, is executed and ~~Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not~~ delivered by CCF HOLDING COMPANY, a ~~Waiver 43 Section 5.11 Control by Noteholders of~~ Georgia corporation (the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by “Guarantor”), having its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names ▇▇▇▇▇, and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTSWILMINGTON TRUST COMPANY, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinionsa Delaware banking corporation, ~~etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices~~as trustee (the “Guarantee Trustee”), etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability for the benefit of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 Holders (as ~~amended, supplemented or otherwise modified and in effect~~ defined herein) from time to ~~time, this “Indenture”), between CARMAX AUTO OWNER~~ time of the Capital Securities (as defined herein) of CCF CAPITAL TRUST ~~2023-3~~II, a Delaware statutory trust (the “~~Issuer~~Issuer Trust”). Pursuant to an Amended and Restated Trust Agreement (the “Trust Agreement”), ~~and WILMINGTON TRUST~~dated of even date herewith, ~~NATIONAL ASSOCIATION~~among CCF Holding Company, ~~a national banking association~~as Depositor, ~~not in its individual capacity but solely~~ Wilmington Trust Company, as ~~indenture trustee~~ Property Trustee (~~in such capacity,~~ the “~~Indenture~~ Property Trustee”)~~. Each party agrees~~ , Wilmington Trust Company, as ~~follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Delaware Trustee (the “~~Class A-1 Notes~~Delaware Trustee”), ~~5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes”~~ and together with the ~~Class A-2a Notes~~Property Trustee, collectively, the “~~Class A-2 Notes~~Issuer Trustees”), ~~5.28% Class A-3 Asset-backed Notes~~ the Administrators named therein and the Holders from time to time of undivided beneficial interests in the assets of the Issuer Trust, the Issuer Trust is issuing up to $4,500,000 aggregate Liquidation Amount (as defined herein) of its Floating Rate Capital Securities (the “~~Class A-3 Notes~~Capital Securities”), ~~5.26% Class A-4 Asset-backed Notes~~ representing preferred undivided beneficial interests in the assets of the Issuer Trust and having the terms set forth in the Trust Agreement; The Capital Securities will be issued by the Issuer Trust and the proceeds thereof, together with the proceeds from the issuance of the Issuer Trust’s Common Securities (the “~~Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes~~Common Securities”), ~~5.47% Class B Asset-backed Notes~~ representing common undivided beneficial interests in the assets of the Issuer Trust of the Guarantor, will be used to purchase the Junior Subordinated Debentures due March 31, 2034 (the “~~Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes~~Junior Subordinated Debentures”) of the Guarantor, which will be deposited with Wilmington Trust Company, as Property Trustee under the Trust Agreement, as trust assets; and ~~6.44% Class D Asset-backed Notes (~~As an inducement to the ~~“Class D Notes” and, collectively with~~ Holders to purchase the ~~Class A Notes~~Capital Securities, the ~~Class B Notes~~ Guarantor is willing to irrevocably and ~~the Class C Notes~~unconditionally agree, ~~the “Notes”): The Issuer hereby Grants~~ to the ~~Indenture Trustee on the Closing Date~~extent set forth herein, ~~as Indenture Trustee for the benefit of~~ to pay to the Holders of the ~~Notes, all of~~ Capital Securities the ~~Issuer’s right, title~~ Guarantee Payments (as defined herein) and ~~interest in,~~ to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any make certain other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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~~ the terms 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protectedconditions set forth herein.

Appears in 1 contract

Sources: Guarantee Agreement (CCF Holding Co)

TABLE OF CONTENTS. ~~Article I~~ ARTICLE I. DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 3 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 SECTION 2.2. Office 4 SECTION 2.3. Purposes and Powers 4 SECTION 2.4. Appointment of Owner Trustee 5 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 5 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 5 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 6 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 6 SECTION 2.10. Covenants of the Certificateholder 7 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 9 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 9 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 11 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 13 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 17 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 18 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trust and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 22 ~~Section 3.3 Money~~ SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 24 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 25 SECTION 6.12. Beneficial Ownership and Control of the Trust 25 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 25 SECTION 7.1. Owner Trustee’s Fees and Expenses 25 SECTION 7.2. Indemnification 26 SECTION 7.3. Payments to the Owner Trustee 26 SECTION 7.4. Non-recourse Obligations 26 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 27 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Agreement 27 ~~Section 3.9 Annual Statement as to Compliance~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 28 ~~Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 28 ~~Section 3.11 Successor~~ SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 28 SECTION 9.3. Successor Owner Trustee 29 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 29 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~30 ARTICLE X. MISCELLANEOUS 31 SECTION 10.1. Supplements and Amendments 31 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 32 SECTION 10.3. Limitations on Rights of Others 32 SECTION 10.4. Notices 32 SECTION 10.5. Severability 33 SECTION 10.6. Counterparts and Consent to Do Business Electronically 33 SECTION 10.7. Assignments 33 SECTION 10.8. No Recourse 33 SECTION 10.9. Headings 33 SECTION 10.10. Force Majeure 34 SECTION 10.11. GOVERNING LAW 34 SECTION 10.12. Servicer 34 SECTION 10.13. Nonpetition Covenants 34 SECTION 10.14. Regulation AB 35 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 35 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 35 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 36 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Payment 36 Exhibit A Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~April 12, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~2023, between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and WILMINGTON ~~TRUST, NATIONAL ASSOCIATION~~TRUST COMPANY, a ~~national banking association~~Delaware trust company, ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of February 28, 2023, between the ~~“Indenture Trustee”). Each party agrees as follows for~~ Seller and the ~~benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Owner Trustee (the “~~Class A-1 Notes~~Initial Trust Agreement”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Trust Agreement (GM Financial Consumer Automobile Receivables Trust 2023-2)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2~~ 1 Section 1.1 Definitions 2 1 Section 1.2 ~~Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of~~ Construction ~~2 Article~~ 3 ARTICLE II ~~THE NOTES 3~~ ORGANIZATION 4 Section 2.1 ~~Form 3~~ Formation 4 Section 2.2 ~~Execution, Authentication and Delivery~~ Name 4 Section 2.3 ~~Temporary Notes~~ Registered Office; Registered Agent; Principal Office; Other Offices 4 Section 2.4 Purposes 4 Section 2.5 Qualification in Other Jurisdictions 4 Section 2.6 Powers 4 Section 2.7 Power of Attorney 4 Section 2.8 Term 5 Section ~~2.4 Tax Treatment 5 Section 2.5 Registration; Registration~~ 2.9 Certificate of ~~Transfer and Exchange~~ Formation 6 ARTICLE III MEMBERS AND UNITS 6 Section ~~2.6 Mutilated, Destroyed, Lost or Stolen Notes~~ 3.1 Members 6 Section 3.2 Authorization to Issue Units 6 Section 3.3 Certificates 7 Section ~~2.7 Persons Deemed Owners~~ 3.4 Record Holders 7 Section 3.5 Registration and Transfer of Units 7 Section 3.6 Agreements 8 ARTICLE IV DISTRIBUTIONS AND REDEMPTIONS 8 Section ~~2.8 Payments~~ 4.1 Distributions to Record Holders 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 4.2 Payment of ~~Principal~~ Taxes 8 Section 4.3 Absence of Certain Other Rights 8 ARTICLE V MANAGEMENT AND OPERATION OF BUSINESS 9 Section 5.1 Power and ~~Interest; Determination~~ Authority of ~~SOFR; Benchmark Replacement 20~~ the Manager 9 Section ~~3.2 Maintenance~~ 5.2 Term and Withdrawal of ~~Office or Agency 22~~ the Manager 11 Section ~~3.3 Money for Payments To Be Held in Trust 22~~ 5.3 Determinations by the Manager 11 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate5.4 Exculpation, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, LoansIndemnification, Advances and ~~Other Liabilities 30~~ Insurance 11 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance 5.5 Duties of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission Manager and ~~Annulment 35 Section 5.3 Collection of Indebtedness~~ its Officers and ~~Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41~~ Managers 13 Section 5.6 ~~Limitation of Suits 42~~ Outside Activities 14 Section 5.7 ~~Unconditional Rights of Noteholders to Receive Principal and Interest 42~~ Reliance by Third Parties 14 Section 5.8 ~~Restoration~~ Reimbursement of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article Expenses 14 ARTICLE VI ~~THE INDENTURE TRUSTEE 46~~ BOOKS, RECORDS, ACCOUNTING AND REPORTS 14 Section 6.1 ~~Duties of Indenture Trustee 46~~ Records and Accounting 14 Section 6.2 ~~Rights of Indenture Trustee 48~~ Fiscal Year 14 Section 6.3 ~~Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6~~ Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.14

Appears in 1 contract

Sources: Limited Liability Company Agreement (181 High Street LLC)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS AND ~~INCORPORATION BY REFERENCE~~ CONSTRUCTION 1 1.1. Definitions 1 1.2. Accounting Terms 1 2. LOAN AND TERMS OF PAYMENT 1 2.1. Loan 1 2.2. Repayment of Loans 1 2.3. Prepayments 2 ~~Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 2.4. Interest 3 2.5. Lender Expenses 3 2.6. Payments Generally 3 3. CONDITIONS TO LOAN 3 3.1. Receipt of Loan Documents 3 3.2. Further Conditions 4 4. CREATION OF SECURITY INTEREST AND GUARANTEES 4 4.1. Grant of Security Interest 4 4.2. Pledge of Collateral 5 4.3. Perfection of Security Interest 5 4.4. Subordination Agreement 6 4.5. Guaranties and Subsidiary Pledges 6 4.6. Deposit Account Control Agreement 7 5. REPRESENTATIONS AND WARRANTIES 7 5.1. Due Organization and Qualification 7 5.2. Due Authorization; No Conflict 7 5.3. Collateral 7 5.4. Intellectual Property Collateral 8 5.5. Name; Location of Chief Executive Office 8 5.6. Litigation 8 5.7. No Material Adverse Change in Financial Statements 8 5.8. Solvency, Payment of Debts 8 5.9. Compliance with Laws and Regulations 9 5.10. Subsidiaries; Equity Interests 9 5.11. Government Consents 9 5.12. Inbound Licenses 9 5.13. Shares 9 5.14. Full Disclosure 10 5.15. ERISA Compliance 10 5.16. Intellectual Property; Licenses, Etc. 10 5.17. Trust ~~Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution~~and Deposit Accounts 11 5.18. Real Property 11 5.19. Offices 11 6. AFFIRMATIVE COVENANTS 11 6.1. Good Standing and Government Compliance 11 6.2. Financial Statements, ~~Authentication~~ Reports, Certificates 11 6.3. Inventory and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration~~Equipment; Returns 13 6.4. Taxes 13 6.5. Insurance 13 6.6. Financial Covenants 14 6.7. Registration of ~~Transfer~~ Intellectual Property Rights 18 6.8. Consent of Inbound Licensors 19 6.9. Capital, Licensing and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III Compliance Requirements; Financial Covenants 19 6.10. Further Assurances 19 7. NEGATIVE COVENANTS 20 ~~Section 3.1~~ 7.1. Dispositions 20 7.2. Change in Name, Location, Executive Office, or Executive Management; Change in Business; Change in Fiscal Year; Change in Control 20 7.3. Mergers or Acquisitions 20 7.4. Indebtedness 20 7.5. Encumbrances 20 7.6. Distributions 20 7.7. Investments 21 7.8. Transactions with Affiliates 21 7.9. Subordinated Debt 21 7.10. Inventory and Equipment 21 7.11. No Investment Company; Margin Regulation 21 7.12. Insurance Subsidiary Capital Withdrawals 21 7.13. Canadian Subsidiaries 22 7.14. NPIC of Arizona 22 8. EVENTS OF DEFAULT 22 8.1. Payment ~~of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency~~ Default 22 ~~Section 3.3 Money for Payments To Be Held in Trust~~ 8.2. Covenant Default 22 ~~Section 3.4 Existence~~ 8.3. Senior Default Debt 22 8.4. Material Adverse Change 22 8.5. Attachment 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No 8.6. Insolvency 23 8.7. Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”)Agreements 23 8.8. Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”)Judgments 23 8.9. The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this IndentureMisrepresentations 23 8.10. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.Guaranty 23

Appears in 1 contract

Sources: Credit Agreement (Trupanion Inc.)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE~~ DEFINED TERMS 1 SECTION 1.01 Definitions. 1 ARTICLE 2 ~~Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ CONTINUATION OF THE TRUST 12 SECTION 2.01 Name. 12 SECTION 2.02 Office of the Delaware Trustee; Principal Place of Business. 12 SECTION 2.03 Initial Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Property; Expenses of ~~Construction 2 Article II THE NOTES~~ the Trust. 12 SECTION 2.04 Issuance of the Trust Securities. 13 SECTION 2.05 Purchase and Exchange of Debentures. 13 SECTION 2.06 Declaration of Trust. 14 SECTION 2.07 Authorization to Enter into Certain Transactions. 14 SECTION 2.08 Assets of Trust. 19 SECTION 2.09 Title to Trust Property. 19 ARTICLE 3 ~~Section 2.1 Form 3 Section 2.2 Execution~~PAYMENT ACCOUNT 19 SECTION 3.01 Payment Account. 19 ARTICLE 4 DISTRIBUTIONS; REDEMPTION 19 SECTION 4.01 Distributions. 19 SECTION 4.02 Redemption. 21 SECTION 4.03 Subordination of Trust Common Securities. 23 SECTION 4.04 Payment Procedures. 23 SECTION 4.05 Tax Returns and Reports. 24 SECTION 4.06 Payments under Indentures. 24 SECTION 4.07 Payments of Taxes, ~~Authentication~~ Duties, Etc. of the Trust. 24 ARTICLE 5 TRUST SECURITIES CERTIFICATES 25 SECTION 5.01 Initial Ownership. 25 SECTION 5.02 The Trust Securities Certificates. 25 SECTION 5.03 Execution and Delivery ~~4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration;~~ of Trust Securities Certificates. 25 SECTION 5.04 Registration of Transfer and Exchange ~~6 Section 2.6~~ of Trust Preferred Securities Certificates. 25 SECTION 5.05 Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Trust Securities Certificates. 26 SECTION 5.06 Persons Deemed ~~Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release~~ Securityholders. 27 SECTION 5.07 Access to List of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal Securityholders’ Names and ~~Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2~~ Addresses. 27 SECTION 5.08 Maintenance of Office or ~~Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection~~ Agency. 27 SECTION 5.09 Appointment of Paying Agent. 27 SECTION 5.10 No Transfer of Trust ~~Estate 24 Section 3.6 Opinions as~~ Common Securities by Depositor. 28 SECTION 5.11 Book-Entry Trust Preferred Securities Certificates; Trust Common Securities Certificate. 28 SECTION 5.12 Definitive Trust Preferred Securities Certificates. 29 SECTION 5.13 Rights of Securityholders. 30 ARTICLE 6 ACTS OF SECURITYHOLDERS; MEETINGS; VOTING 30 SECTION 6.01 Limitations on Voting Rights. 30 SECTION 6.02 Notice of Meetings. 31 SECTION 6.03 Meetings of Trust Preferred Security Holders. 31 SECTION 6.04 Voting Rights. 31 SECTION 6.05 Proxies, etc. 32 SECTION 6.06 Securityholder Action by Written Consent. 32 SECTION 6.07 Record Date for Voting and Other Purposes. 32 SECTION 6.08 Acts of Securityholders. 32 SECTION 6.09 Inspection of Records. 33 ARTICLE 7 THE TRUSTEES 34 SECTION 7.01 Certain Duties and Responsibilities. 34 SECTION 7.02 Notice of Defaults; Direct Action by Securityholders. 35 SECTION 7.03 Certain Rights of Property Trustee. 35 SECTION 7.04 Not Responsible for Recitals or Issuance of Securities. 36 SECTION 7.05 May Hold Securities. 37 SECTION 7.06 Compensation; Indemnity; Fees. 37 SECTION 7.07 Certain Trustees Required; Eligibility of Trustees. 38 SECTION 7.08 Conflicting Interests. 38 SECTION 7.09 Co-Trustees and Separate Trustee. 38 SECTION 7.10 Resignation and Removal; Appointment of Successor. 40 SECTION 7.11 Acceptance of Appointment by Successor. 41 SECTION 7.12 Merger, Conversion, Consolidation or Succession to ~~Trust Estate 24 Section 3.7 Performance~~ Business. 42 SECTION 7.13 Preferential Collection of Claims Against Depositor or Trust. 42 SECTION 7.14 Reports by Property Trustee. 42 SECTION 7.15 Reports to the Property Trustee. 42 SECTION 7.16 Evidence of Compliance with Conditions Precedent. 43 SECTION 7.17 Statements Required in Officer’s Certificate and Opinion of Counsel. 43 SECTION 7.18 Number of Administrative Trustees. 43 SECTION 7.19 Delegation of Power. 44 SECTION 7.20 Voting. 44 ARTICLE 8 DISSOLUTION AND LIQUIDATION 44 SECTION 8.01 Dissolution Upon Expiration Date. 44 SECTION 8.02 Early Dissolution. 44 SECTION 8.03 Termination of Obligations~~; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate~~. 45 SECTION 8.04 Dissolution and Liquidation. 45 ARTICLE 9 MERGERS, ~~etc.~~ETC. 46 SECTION 9.01 Mergers, ~~Only on Certain Terms 28 Section 3.11 Successor~~ Consolidations, Conversions, Amalgamations or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance Replacements of the ~~Notes 33 Section 4.3 Application~~ Trust. 46 ARTICLE 10 MISCELLANEOUS PROVISIONS 47 SECTION 10.01 Limitation of Rights of Securityholders. 47 SECTION 10.02 Amendment. 48 SECTION 10.03 Severability. 49 SECTION 10.04 Governing Law. 49 SECTION 10.05 Successors and Assigns. 49 SECTION 10.06 Headings. 49 SECTION 10.07 Reports, Notices and Demands. 50 SECTION 10.08 Agreement Not to Petition. 50 SECTION 10.09 Trust Indenture Act; Conflict with Trust Indenture Act. 50 SECTION 10.10 Acceptance of Terms of Trust ~~Money 34 Section 4.4 Repayment~~ Agreement, Guarantees and Indentures. 51 EXHIBIT B B-1 EXHIBIT C C-1 AMENDED AND RESTATED TRUST AGREEMENT of ~~Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events~~ HECO Capital Trust III (the “Trust”), dated as of ~~Default 34 Section 5.2 Acceleration~~ March 1, 2004, among (i) Hawaiian Electric Company, Inc., a Hawaii corporation (the “Depositor” or “HECO”), (ii) The Bank of ~~Maturity; Rescission and Annulment 35 Section 5.3 Collection~~ New York, a New York banking corporation, as trustee (the “Property Trustee”), (iii) The Bank of ~~Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of~~ New York (Delaware), a Delaware banking corporation, as Delaware trustee (the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture “Delaware Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ”), (iv) T. ▇▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names ▇▇▇, ▇▇▇▇▇▇▇ ▇. von Gnechten and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ~~accepts~~ individuals whose address is c/o Hawaiian Electric Company, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Honolulu, Hawaii 96813 (the ~~trusts under this Indenture in accordance with~~ “Administrative Trustees”) (the ~~provisions of this Indenture~~ Property Trustee, the Delaware Trustee and ~~agrees~~ the Administrative Trustee are referred to ~~perform its duties required in this Indenture to~~ collectively as the ~~best of its ability to~~ “Trustees”), and (v) the ~~end that the interests of the~~ several Holders ~~of the Notes may be adequately and effectively protected~~(as defined herein).

Appears in 1 contract

Sources: Trust Agreement (Hawaiian Electric Co Inc)

TABLE OF CONTENTS. Article ~~I DEFINITIONS AND INCORPORATION BY REFERENCE~~ 1 Definitions 1 Article 2 ~~Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ Master Agreement and Statement of ~~Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES 3~~ Work 4 Section 2.1 ~~Form 3~~ Master Agreement 4 Section 2.2 ~~Execution, Authentication~~ Interpretation and ~~Delivery~~ Precedence 4 Article 3 General Scope of Services 4 Section ~~2.3 Temporary Notes~~ 3.1 Support and Maintenance Services 4 Section 3.2 System Performance and Service Levels 4 Section 3.3 Types of Services Covered by this Agreement 5 Section ~~2.4 Tax Treatment~~ 3.4 Staffing Levels 5 Section ~~2.5 Registration; Registration~~ 3.5 Contractor Employees Assigned to SA Account 5 Section 3.6 Customer Implementation Projects 5 Section 3.7 Development of ~~Transfer and Exchange~~ Enhancements 5 Article 4 Joint Responsibilities 6 Section ~~2.6 Mutilated, Destroyed, Lost or Stolen Notes~~ 4.1 Obligations 6 Section 4.2 Coordination 6 Article 5 Term and Termination 6 Section 5.1 Term 6 Subsection 5.1.1 Default by SA 6 Subsection 5.1.2 Termination for Convenience 7 Section ~~2.7 Persons Deemed Owners~~ 5.2 Post-Termination Assistance 7 Section 5.3 Effect of Termination 7 Section 5.4 Contractor Software License 7 Article 6 Compensation and Invoicing 8 Section ~~2.8 Payments~~ 6.1 Service Fees 8 Section ~~2.9 Cancellation~~ 6.2 Expenses 8 Section 6.3 Invoices 8 Section 6.4 Adjustments for Failure to Achieve Service Levels 9 Article 7 Limitations on Liability/Indemnification 9 Section 7.1 Limit on Amount of Damages Recoverable 9 Section 7.2 Mutual Indemnification 10 Section 7.3 Subrogation 10 Article 8 Intellectual Property Rights and Obligations 10 Section 8.1 SA/Contractor Software 10 Section 8.2 Use of Concepts, Know-how and Methods 10 Section 8.3 Intellectual Property Indemnification 10 Section 8.4 Trademark and Trade Name 11 Article 9 Confidentiality 11 Section 9.1 Restrictions on Use 11 Section 9.2 Exclusions 12 Section 9.3 License to Use Confidential Information 13 Section ~~2.10 Release~~ 9.4 Ownership of ~~Collateral~~ SA Data, Software and Hardware 13 Article 10 Change Orders 14 Article 11 Miscellaneous 14 Section ~~2.11 Book-Entry Notes~~ 11.1 Assignment and Delegation 14 Section ~~2.12 Notices to Clearing Agency~~ 11.2 Amendment and Waiver 14 Section 11.3 Severability 15 Section ~~2.13 Definitive Notes~~ 11.4 Non-Solicitation of Personnel 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices ~~to Noteholders; Waiver 69~~ 15 Section 11.6 ~~Alternate Payment and Notice Provisions 69~~ Independent Contractors 16 Section 11.7 ~~Conflict with Trust Indenture Act 69~~ Force Majeure 16 Section 11.8 ~~Effect of Headings and Table of Contents 70~~ Governing Law 16 Section 11.9 ~~Successors and Assigns 70~~ Equitable Remedies 16 Section 11.10 ~~Severability 70~~ Non-Solicitation 16 Section 11.11 ~~Benefits of Indenture 70~~ Entire Agreement 16 Section 11.12 ~~Legal Holiday 70~~ Survival 17 Section 11.13 ~~GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14~~ Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE17 SOURCE ATLANTIC, ~~dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3~~Inc., a Delaware ~~statutory trust~~ corporation (~~the~~ “~~Issuer~~SA”), and ~~WILMINGTON TRUST, NATIONAL ASSOCIATION~~NSK & ASSOCIATES, a ~~national banking association, not in its individual capacity but solely as indenture trustee~~ contracted service provider (~~in such capacity, the~~ “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 NotesContractor”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby ~~Grants to the Indenture Trustee on the Closing Date,~~ agree as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.follows:

Appears in 1 contract

Sources: Master Agreement for Information Technology Services (Source Atlantic, Inc.)

TABLE OF CONTENTS. ~~Article I DEFINITIONS~~ PURCHASE AND ~~INCORPORATION BY REFERENCE~~ SALE OF ASSETS 2 Section 1.1 ~~Definitions~~ Acquired Assets 2 Section 1.2 ~~Incorporation by Reference of Trust Indenture Act 2~~ Excluded Assets 5 Section 1.3 ~~Rules~~ Assumed Liabilities 7 Section 1.4 Excluded Liabilities 7 Section 1.5 Assignment of ~~Construction 2 Article~~ Assigned Contracts and Assumed Leases 9 Section 1.6 Purchase Price 10 Section 1.7 Base Purchase Price Adjustment 10 Section 1.8 Allocation of Purchase Price for Tax Purposes 10 ARTICLE II THE ~~NOTES 3~~ CLOSING 11 Section 2.1 ~~Form 3~~ Closing 11 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral Deliveries at Closing 11 ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS 14 Section ~~2.11 Book-Entry Notes~~ 3.1 Organization 14 Section ~~2.12 Notices to Clearing Agency~~ 3.2 Authority of Sellers 14 Section 3.3 Consents and Approvals 15 Section ~~2.13 Definitive Notes~~ 3.4 No Violations 15 Section ~~2.14 Authenticating Agents~~ 3.5 Books and Records 15 Section ~~2.15 Retained Notes~~ 3.6 Compliance with Laws; Permits 15 Section 3.7 Title to Acquired Assets 16 ~~Article III COVENANTS~~ Section 3.8 Absence of Certain Developments 16 Section 3.9 No Undisclosed Liabilities 16 Section 3.10 Brokers 16 Section 3.11 Litigation 17 Section 3.12 Intellectual Property 17 Section 3.13 Real Property 18 Section 3.14 Employee Benefit Matters 20 Section ~~3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20~~ 3.15 Labor Matters 21 Section ~~3.2 Maintenance of Office or Agency~~ 3.16 Contracts 22 Section ~~3.3 Money for Payments To Be Held in Trust~~ 3.17 Validity of Assigned Contracts 22 Section ~~3.4 Existence~~ 3.18 Customers and Suppliers 23 Section ~~3.5 Protection of Trust Estate~~ 3.19 Accounts Receivable 23 Section 3.20 Equipment 23 Section 3.21 Inventory 23 Section 3.22 Affiliate Transactions 23 Section 3.23 SEC Documents; Financial Statements 23 Section 3.24 Unaudited Financial Statements 24 Section ~~3.6 Opinions as to Trust Estate~~ 3.25 Eligible Administrative Claims 24 Section ~~3.7 Performance of Obligations; Servicing of Receivables 25~~ 3.26 Cure Costs 24 Section ~~3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12~~ 3.27 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”)Warranties. Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.24

Appears in 1 contract

Sources: Asset Purchase Agreement (Hartmarx Corp/De)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE 2~~ Definitions And Other Provisions Of General Application 1 Section ~~1.1~~ 1.1. Definitions 2 1 Section ~~1.2 Incorporation by Reference~~ 1.2. Compliance Certificates and Opinions 6 Section 1.3 Form of Documents Delivered to Trustee 6 Section 1.4. Acts of Holders; Record Dates 6 Section 1.5. Notices, Etc. to Trustee and Company 7 Section 1.6. Notice to Holders; Waiver 8 Section 1.7. Conflict with Trust Indenture Act 2 8 Section ~~1.3 Rules~~ 1.8. Effect of ~~Construction 2 Article~~ Headings and Table of Contents 8 Section 1.9. Successors and Assigns 8 Section 1.10. Separability Clause 8 Section 1.11. Benefits of Indenture 9 Section 1.12. Governing Law; Waiver of Jury Trial; Consent to Jurisdiction 9 Section 1.13. Legal Holidays 9 ARTICLE II ~~THE NOTES 3~~ Security Forms 9 Section ~~2.1~~ 2.1. Forms Generally 9 Section 2.2. Form 3 of Legend for Global Securities 10 Section ~~2.2~~ 2.3. Form of Trustee’s Certificate of Authentication 10 ARTICLE III The Securities 11 Section 3.1. Amount Unlimited; Issuable in Series 11 Section 3.2. Denominations 12 Section 3.3. Execution, ~~Authentication~~ Authentication, Delivery and ~~Delivery 4~~ Dating 12 Section ~~2.3~~ 3.4. Temporary ~~Notes 5~~ Securities 14 Section ~~2.4 Tax Treatment 5 Section 2.5~~ 3.5. Registration; , Registration of Transfer and Exchange 6 14 Section ~~2.6~~ 3.6. Mutilated, Destroyed, ~~Lost or~~ Lost, and Stolen ~~Notes 7~~ Securities 15 Section ~~2.7~~ 3.7. Payment of Interest; Interest Rights Preserved 16 Section 3.8. Persons Deemed Owners 8 17 Section ~~2.8 Payments 8~~ 3.9. Cancellation 17 Section ~~2.9 Cancellation 13~~ 3.10. Computation of Interest 17 Section ~~2.10 Release of Collateral 14~~ 3.11. CUSIP Numbers 17 ARTICLE IV Satisfaction and Discharge 18 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 4.1. Satisfaction and Discharge of Indenture 32 18 Section 4.2 ~~Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3~~ Application of Trust Money 34 19 ARTICLE V Remedies 19 Section ~~4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1~~ 5.1. Events of Default 34 19 Section ~~5.2~~ 5.2. Acceleration of Maturity; Rescission and Annulment 35 19 Section ~~5.3~~ 5.3. Collection of Indebtedness and Suits for Enforcement by ~~Indenture~~ Trustee 36 20 Section ~~5.4 Remedies; Priorities 38~~ 5.4. Trustee May File Proofs of Claim 21 Section ~~5.5 Optional Preservation~~ 5.5. Trustee May Enforce Claims Without Possession of ~~the Receivables 41~~ Securities 21 Section ~~5.6~~ 5.6. Application of Money Collected 21 Section 5.7. Limitation on Suits 21 Section 5.8. Unconditional Right of ~~Suits 42 Section 5.7 Unconditional Rights of Noteholders~~ Holders to Receive ~~Principal~~ Principal, Premium, and Interest 42 22 Section ~~5.8~~ 5.9. Restoration of Rights and Remedies 43 22 Section ~~5.9~~ 5.10. Rights and Remedies Cumulative 43 22 Section ~~5.10~~ 5.11. Delay or Omission Not a Waiver 43 22 Section ~~5.11~~ 5.12. Control by ~~Noteholders of the Controlling Class 43~~ Holders 23 Section ~~5.12~~ 5.13. Waiver of Past Defaults 44 23 Section ~~5.13~~ 5.14. Undertaking for Costs 44 23 ARTICLE VI The Trustee 23 Section ~~5.14 Waiver of Stay or Extension Laws 44~~ 6.1. Certain Duties and Responsibilities 23 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 6.2. Notice of Defaults 49 24 Section ~~6.6 Reports by Indenture~~ 6.3. Certain Rights of Trustee ~~to Holders 49~~ 24 Section ~~6.7~~ 6.4. Not Responsible for Recitals or Issuance of Securities 26 Section 6.5. May Hold Securities 26 Section 6.6. Money Held in Trust 26 Section 6.7. Compensation and ~~Indemnity 50~~ Reimbursement 26 Section ~~6.8 Replacement of Indenture~~ 6.8. Disqualification; Conflicting Interests 27 Section 6.9. Corporate Trustee 50 Required; Eligibility 27 Section ~~6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10~~ 6.10. Resignation and Removal; Appointment of ~~Co-Indenture Trustee~~ Successor 27 Section 6.11. Acceptance of Appointment by Successor 28 Section 6.12. Merger, Conversion, Consolidation, or ~~Separate Indenture Trustee 52~~ Succession to Business 29 Section ~~6.11 Eligibility; Disqualification 53 Section 6.12~~ 6.13. Preferential Collection of Claims Against ~~Issuer 54~~ Company 29 Section ~~6.13 Communications Regarding Demands~~ 6.14. Appointment of Authenticating Agent 30 ARTICLE VII Holder’s Lists and Reports by Trustee and Company 31 Section 7.1. Company to ~~Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To~~ Furnish ~~Indenture~~ Trustee Names and Addresses of ~~Noteholders 54~~ Holders 31 Section ~~7.2~~ 7.2. Preservation of Information; Communications to ~~Noteholders 54~~ Holders 31 Section ~~7.3~~ 7.3. Reports by ~~Issuer 55~~ Trustee 31 Section ~~7.4~~ 7.4. Reports by ~~Indenture Trustee 55~~ Company 32 ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease 32 Section ~~7.5 Noteholder Communications 55~~ 8.1. Company May Consolidate, Etc., Only on Certain Terms 32 Section ~~7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57~~ 8.2. Successor Substituted 33 ARTICLE IX Supplemental Indentures 33 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 9.1. Supplemental Indentures Without Consent of ~~Noteholders 60~~ Holders 33 Section ~~9.2~~ 9.2. Supplemental Indentures ~~with~~ With Consent of ~~Noteholders 61~~ Holders 34 Section ~~9.3~~ 9.3. Execution of Supplemental Indentures 63 34 Section ~~9.4~~ 9.4. Effect of Supplemental ~~Indenture 63~~ Indentures 34 Section ~~9.5~~ 9.5. Conformity ~~with~~ With Trust Indenture Act 63 35 Section ~~9.6~~ 9.6. Reference in ~~Notes~~ Securities to Supplemental Indentures 63 35 Section 9.7. Notice of Supplemental Indentures 35 ARTICLE X Covenants 35 Section 10.1. Payment of Principal, Premium, and Interest 35 Section 10.2. Maintenance of Office or Agency 35 Section 10.3. Money for Securities Payments to Be Held in Trust 35 Section 10.4. Statement by Officers as to Default 36 Section 10.5. Existence 36 Section 10.6. Maintenance of Properties 36 Section 10.7. Payment of Taxes and Other Claims 37 Section 10.8. Waiver of Certain Covenants 37 Section 10.9. Calculation of Original Issue Discount 37 Section 10.10. Tax Payment and Tax Withholding Obligations 37 ARTICLE XI Redemption of Securities 38 Section 11.1. Applicability of Article ~~X REDEMPTION OF NOTES 63~~ 38 Section ~~10.1 Redemption 63~~ 11.2. Election to Redeem; Notice to Trustee 38 Section ~~10.2 Form~~ 11.3. Selection by Trustee of Securities to Be Redeemed 38 Section 11.4. Notice of Redemption ~~Notice 64~~ 38 Section ~~10.3 Notes~~ 11.5. Deposit of Redemption Price 39 Section 11.6. Securities Payable on Redemption Date 64 39 Section 11.7. Securities Redeemed in Part 39 ARTICLE XII Sinking Funds 40 Section 12.1. Applicability of Article ~~XI MISCELLANEOUS 65~~ 40 Section ~~11.1 Compliance Certificates~~ 12.2. Satisfaction of Sinking Fund Payments with Securities 40 Section 12.3. Redemption of Securities for Sinking Fund 40 ARTICLE XIII Defeasance and ~~Opinions, etc 65~~ Covenant Defeasance 40 Section ~~11.2 Form~~ 13.1. Applicability of ~~Documents Delivered~~ Article; Company’s Option to ~~Indenture~~ Effect Defeasance or Covenant Defeasance 40 Section 13.2. Defeasance and Discharge 41 Section 13.3. Covenant Defeasance 41 Section 13.4. Conditions to Defeasance or Covenant Defeasance 41 Section 13.5. Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions 43 Section 13.6. Reinstatement 43 ARTICLE XIV Subordination Of Securities 43 Section 14.1. Securities Subordinate to Senior Debt 43 Section 14.2. No Payment When Senior Debt in Default 45 Section 14.3. Trustee 66 and Holders of Securities May Rely on Certificate of Liquidating Agent; Trustee May Require Further Evidence as to Ownership of Senior Debt; Trustee Not Fiduciary to Holders of Senior Debt 45 Section ~~11.3~~ 14.4. Payment Permitted If No Default 46 Section 14.5. Trustee Not Charged with Knowledge of Prohibition 46 Section 14.6. Trustee to Effectuate Subordination 47 Section 14.7. Rights of Trustee as Holder of Senior Debt 47 Section 14.8. Article Applicable to Paying Agents 47 Section 14.9. Subordination Rights Not Impaired by Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability or Omissions of the ~~Owner Trustee 73~~ Company or Holders of Senior Debt 47 Section ~~11.23 PATRIOT Act 73~~ 14.10. Trustee’s Rights to Compensation, Reimbursement of Expenses and Indemnification 47 Section ~~11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form~~ 14.11. Modification of ~~Class A-1 Note EXHIBIT A-2a Form~~ Subordination Provisions 47 NOTE: This table of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTUREcontents shall not, ~~dated as of July 1~~for any purpose, ~~2023 (as amended, supplemented or otherwise modified and in effect from time~~ be deemed to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit be part of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Indenture (Valley National Bancorp)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE~~ 2 ~~Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ SECTION 1.Definitions and Explanations of Terms 4 3 SECTION 2.Representations. 18 4 SECTION 3. Sale and Purchase 23 5 SECTION 4. AMP Undertakings. 25 6 SECTION 5. Rates and Charges; Method of Payment 28 7 SECTION 6. Scheduling of Deliveries, Dispatching 37 8 SECTION 7. Electric Characteristics; Point of Delivery; Measurement of Electric Capacity and 9 Energy Furnished 38 10 SECTION 8. Metering 39 11 SECTION 9. [Reserved]. 40 12 SECTION 10. [Reserved] Error! Bookmark not defined. 13 SECTION 11. Force Majeure 42 14 SECTION 12. Insurance 43 15 SECTION 13. Accounting 44 16 SECTION 14. Access to Information 45 17 SECTION 15. Bonds; Trust ~~Indenture Act 2 Section 1.3 Rules~~ Indenture; Power Sales Contract 47 18 SECTION 16. Disposition or Termination of ~~Construction 2 Article~~ AMP Solar Project II ~~THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution~~After a Purchase Option 19 Exercise 48 20 SECTION 17. Additional Covenants of Participant. 49 21 SECTION 18. Default. 53 22 SECTION 19. Waiver of Default. 58 23 SECTION 20. Relationship to and Compliance with Other Instruments. 59 24 SECTION 21. Tax Matters, ~~Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration~~ Disclosure 62 25 SECTION 22. Modification or Amendment of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 this Contract. 66 26 SECTION 23. Opinions as to ~~Trust Estate 24 Section 3.7 Performance~~ Validity 67 27 SECTION 24. Notices and Computation of Time 68 28 SECTION 25. Governing Law 69 29 SECTION 26. Severability 70 30 SECTION 27. Assignment of Contract. 71 1 SECTION 28. Beneficiaries 73 2 SECTION 29. Survivorship of Obligations~~; Servicing~~ . 74 3 SECTION 30. Dispute Resolution 75 4 SECTION 31. Liability 77 5 SECTION 32. Term of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Contract. 78 6 SECTION 33. Additional Sites and Small Sites and Systems. 80 7 SECTION 34. Additional Host Member Provisions 81 8 SECTION 35. Counterparts. 83 9 SECTION 36. Other ~~Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances~~ Agencies 84 10 SECTION 37. Project Share Allocation 85 1 Appendices 2 Appendix A – Schedule of Participants and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance Project Shares (Preliminary) 3 Appendix B - Solar Project II Rate Schedules 4 Appendix B-1 – Solar Project II Rate Schedule 5 Appendix B-2 – Example of the ~~Notes 33 Section 4.3 Application~~ Calculation of ~~Trust Money 34 Section 4.4 Repayment~~ Project Aggregate LMP 6 Appendix B-3 – Sample Monthly Invoice Calculation (Solar Sites 200 kW or less and 7 greater than 200 kW) 8 Appendix C – Points of ~~Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events~~ Delivery (Preliminary) 9 Appendix C-1- Secondary Points of ~~Default 34 Section 5.2 Acceleration~~ Delivery 10 Appendix D – Project Description (As of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for December 31, 2015) 11 Appendix E – Development Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with 12 Appendix F – Related Agreements 13 Appendix G – Trust Indenture ~~Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2~~ 14 Appendix H – Form of ~~Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates~~ Legal Counsel Opinion 15 Appendix I – Special Provisions – Scheduling and ~~Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer~~ Dispatching 16 Appendix J – Notices 17 Appendix K - Disclosures 18 Appendix L - Solar Project II Participants Meetings and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Participants Committee Regulations 19 Appendix M – AMP / NextEra Power Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Power Sales Contract

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE~~ Escrow Agent. 2 Section ~~1.1 Definitions~~ 1.01. Appointment of Escrow Agent. 2 Section ~~1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES~~ 1.02. Instruction; Etc. 3 Section ~~2.1 Form 3 Section 2.2 Execution, Authentication and Delivery~~ 1.03. Initial Escrow Amount; Issuance of Escrow Receipts. 4 Section ~~2.3 Temporary Notes 5~~ 1.04. Payments to Receiptholders. 4 Section ~~2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6~~ 1.05. Mutilated, Destroyed, Lost or Stolen ~~Notes~~ Escrow Receipt. 5 Section 1.06. Additional Escrow Amounts. 5 Section 1.07. Resignation or Removal of Escrow Agent. 5 Section 1.08. Persons Deemed Owners. 6 Section 1.09. Further Assurances. 6 SECTION 2. Paying Agent. 6 Section 2.01. Appointment of Paying Agent. 6 Section 2.02. Establishment of Paying Agent Account. 7 Section ~~2.7 Persons Deemed Owners~~ 2.03. Payments from Paying Agent Account. 7 Section 2.04. Withholding Taxes. 8 Section ~~2.8 Payments~~ 2.05. Resignation or Removal of Paying Agent. 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 2.06. Notice of ~~Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22~~ Final Withdrawal. 8 SECTION 3. Payments. 9 SECTION 4. Other Actions. 9 SECTION 5. Representations and Warranties ~~by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance~~ of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Escrow Agent. 9 SECTION 6. Representations and Warranties ~~EXHIBIT A-1 Form~~ of the Paying Agent. 10 SECTION 7. Indemnification. 11 SECTION 8. Amendment, Etc. 12 SECTION 9. Notices. 12 SECTION 10. Transfer. 13 SECTION 11. Entire Agreement. 13 SECTION 12. Governing Law. 13 SECTION 13. Waiver of Jury Trial Right. 13 SECTION 14. Counterparts. 13 SECTION 15. Rights of Holders. 14 Escrow Agreement 2014-1B Exhibit A Escrow Receipt Exhibit B Withdrawal Certificate Escrow Agreement 2014-1B ESCROW AND PAYING AGENT AGREEMENT (Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, B) dated as of ~~July 1~~April 7, ~~2023~~ 2014, (as amended, modified or supplemented ~~or otherwise modified and in effect~~ from time to time, this “~~Indenture~~Agreement”) among U.S. BANK NATIONAL ASSOCIATION, a national banking association, as Escrow Agent (in such capacity, together with its successors in such capacity, the “Escrow Agent”); M▇▇▇▇▇ S▇▇▇▇▇▇ & CO. LLC and CREDIT SUISSE SECURITIES (USA) LLC, ~~between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust~~ for themselves and on behalf of the several Underwriters of the Certificates referred to below (the “~~Issuer~~Underwriters” and together with their respective transferees and assigns as registered owners of the Certificates, the “Investors”~~), and~~ ) under the Underwriting Agreement referred to below; WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity except as otherwise expressly provided herein, but solely as ~~indenture~~ trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with ~~the Class A-2a Notes~~its successors in such capacity, the “~~Class A-2 Notes~~Pass Through Trustee”)) under the Pass Through Trust Agreement referred to below; and WILMINGTON TRUST, ~~5.28% Class A-3 Asset-backed Notes~~ NATIONAL ASSOCIATION, a national banking association, as paying agent hereunder (~~the “Class A-3 Notes”)~~in such capacity, ~~5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively~~ together with ~~the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes~~its successors in such capacity, the “~~Class A Notes~~Paying Agent”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Escrow and Paying Agent Agreement (United Airlines, Inc.)

TABLE OF CONTENTS. ~~Article~~ (This Table of Contents is not a part of this Indenture of Trust and is only for convenience of reference.) ARTICLE I DEFINITIONS AND ~~INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2~~ OTHER MATTERS 5 Section 1.2 ~~Incorporation by Reference of Trust Indenture Act 2~~ Definitions 5 Section 1.3 ~~Rules~~ Enforceability of ~~Construction 2 Article~~ this Indenture 10 ARTICLE II ~~THE NOTES 3~~ AUTHORIZATION, TERMS, EXECUTION AND DELIVERY OF CERTIFICATES 11 Section 2.1 ~~Form 3~~ Authorized Amount of Certificates 11 Section 2.2 ~~Execution, Authentication~~ Execution and Delivery 4 of 2025 Certificates 11 Section 2.3 ~~Temporary Notes 5~~ 2025 Certificate Details 11 Section 2.4 ~~Tax Treatment 5~~ Payment of Certificates. 12 Section 2.5 ~~Registration;~~ Limited Obligation 13 Section 2.6 Execution of Certificates 13 Section 2.7 Effect of Execution 14 Section 2.8 Form of Certificates 14 Section 2.9 Delivery of the Certificates 14 Section 2.10 Mutilated, Lost, Stolen or Destroyed Certificates 14 Section 2.11 Registration of Certificates; Persons Treated as Owners; Transfer and Exchange ~~6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release~~ of ~~Collateral 14 Section 2.11 Book-Entry Notes~~ Certificates 14 Section 2.12 ~~Notices to Clearing Agency~~ Required Information in 2025 Certificate Form 15 Section 2.13 ~~Definitive Notes~~ Cancellation of Certificates 15 Section 2.14 ~~Authenticating Agents~~ Execution and Delivery of Additional Certificates 15 Section 2.15 ~~Retained Notes 16 Article~~ Negotiability 17 Section 2.16 Book Entry. 17 Section 2.17 Payments and Notices to Cede & Co 18 ARTICLE III ~~COVENANTS~~ REVENUES AND FUNDS 20 Section 3.1 Source of Payment of ~~Principal and Interest; Determination of SOFR; Benchmark Replacement~~ Certificates 20 Section 3.2 ~~Maintenance~~ Base Rentals Fund 20 Section 3.3 Reserved 21 Section 3.4 Project Fund 21 Section 3.5 Creation of ~~Office or Agency~~ the Extraordinary Revenue Fund 21 Section 3.6 Escrow Account 22 Section ~~3.3 Money for Payments To Be~~ 3.7 Nonpresentment of Certificates 22 Section 3.8 Moneys to be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer Repayment to the ~~Indenture~~ District from the Trustee ~~31 Article~~ 22 ARTICLE IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.CERTIFICATES 23

Appears in 1 contract

Sources: Indenture of Trust

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2~~ 1 Section ~~1.1 Definitions 2~~ 1.01 Credit Agreement 1 Section ~~1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article~~ 1.02 Other Defined Terms 1 ARTICLE II ~~THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery~~ SECURITY INTERESTS 4 Section ~~2.3 Temporary Notes 5~~ 2.01 Security Interest 4 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 2.02 Representations and Warranties by 5 Section 2.03 Covenants 7 Section 2.04 As to Intellectual Property Collateral 8 ARTICLE III REMEDIES 10 Section 3.01 Remedies Upon Default 10 Section 3.02 Application of Proceeds 11 Section 3.03 Grant of License to Use Intellectual Property 11 ARTICLE IV INDEMNITY, SUBROGATION AND SUBORDINATION 12 Section 4.01 Indemnity 12 Section 4.02 Contribution and Subrogation 12 Section 4.03 Subordination 12 ARTICLE V MISCELLANEOUS 12 Section 5.01 Notices 13 Section 5.02 Waivers; Amendment 13 Section 5.03 Collateral Agent’s Fees and Expenses; Indemnification 13 Section 5.04 Successors and Assigns 14 Section 5.05 Survival of Agreement 14 Section 5.06 Counterparts; Effectiveness; Several Agreement 14 Section 5.07 Severability 15 Section 5.08 Right of Set-Off 15 Section 5.09 Governing Law; Jurisdiction; Consent to Service of Process 15 Section 5.10 WAIVER OF JURY TRIAL 16 Section 5.11 Headings 16 Section 5.12 Security Interest Absolute 16 Section 5.13 Termination or Release 17 Section 5.14 Additional Restricted Subsidiaries 17 Section 5.15 General Authority of the ~~Issuer~~ Collateral Agent 18 Section 5.16 Collateral Agent Appointed Attorney-in-Fact 18 Schedule I Subsidiary Parties Schedule II Intellectual Property Exhibit I Form of Supplement Exhibit II Form of Perfection Certificate INTELLECTUAL PROPERTY SECURITY AGREEMENT dated as of April 2, 2007, among PEAK FINANCE LLC (“Finance Sub” and, prior to the ~~Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction~~ Merger, the “Borrower”), a Delaware limited liability company to be merged with and ~~Discharge~~ into PINNACLE FOODS FINANCE LLC, a Delaware limited liability company (“New Crunch” and, after the Merger, the “Borrower”), PEAK FINANCE HOLDINGS LLC, a Delaware limited liability company (“Holdings”), certain subsidiaries of ~~Indenture 32 Section 4.2 Satisfaction, Discharge~~ Borrower and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission Holdings from time to time party hereto and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands COMMERCIAL PAPER INC. (“LCPI”), as Collateral Agent for the Secured Parties (as defined below). Reference is made to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, Credit Agreement dated as of ~~July 1~~April 2, ~~2023~~ 2007 (as amended, supplemented or otherwise modified ~~and in effect~~ from time to time, ~~this~~ the “~~Indenture~~Credit Agreement”), ~~between CARMAX AUTO OWNER TRUST 2023~~among the Borrower, Holdings, LCPI, as Administrative Agent and Collateral Agent, ▇▇▇▇▇▇▇ Sachs Credit Partners L.P., as Syndication Agent, Mizuho Corporate Bank, Ltd. and General Electric Capital Corporation, as Co-~~3, a Delaware statutory trust (the “Issuer”)~~Documentation Agents, and ~~WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each~~ each lender from time to time party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 thereto (collectively, the “~~Collateral~~Lenders” and individually, a “Lender”). The ~~foregoing Grant is made~~ Lenders have agreed to extend credit to the Borrower subject to the terms and conditions set forth in ~~trust~~ the Credit Agreement. The obligations of the Lenders to ~~secure the payment of principal of and interest on~~extend such credit are conditioned upon, ~~and any~~ among other ~~amounts owing in respect of~~things, the ~~Notes, equally~~ execution and ~~ratably without prejudice, priority or distinction, and to secure compliance with the provisions~~ delivery of this ~~Indenture, all~~ Agreement. Holdings and the other Grantors (as ~~provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf~~ defined below) (other than Borrower) are affiliates of the ~~Holders~~ Borrower, will derive substantial benefits from the extension of ~~the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture~~ credit to the ~~best of its ability~~ Borrower pursuant to the ~~end that~~ Credit Agreement and are willing to execute and deliver this Agreement in order to induce the ~~interests of~~ Lenders to extend such credit. Accordingly, the ~~Holders of the Notes may be adequately and effectively protected.~~parties hereto agree as follows:

Appears in 1 contract

Sources: Intellectual Property Security Agreement (Pinnacle Foods Finance LLC)

TABLE OF CONTENTS. ~~Article~~ (This Table of Contents is not part of this Loan Agreement and is for convenience of reference only) PREAMBLE 1 ARTICLE I DEFINITIONS ~~AND INCORPORATION BY REFERENCE~~ 2 ~~Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article~~ ARTICLE II ~~THE NOTES~~ REPRESENTATIONS 3 Section ~~2.1 Form~~ 2.01. Representations by Authority 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 2.02. Representations and Warranties by ~~the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32~~ Corporation 3 ARTICLE III ISSUANCE OF BONDS 6 Section ~~4.1 Satisfaction~~ 3.01. Issuance of Bonds and ~~Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3~~ Application of ~~Trust Money 34~~ Proceeds 6 Section ~~4.4 Repayment~~ 3.02. Security for Bonds 6 Section 3.03. Investment of ~~Monies Held by Paying Agent 34 Article~~ Funds; Arbitrage; Tax Regulatory Agreement 7 Section 3.04. Payment of Bonds 7 Section 3.05. Official Statement 8 Section 3.06. Right of Bond Trustee to Enforce this Loan Agreement 8 ARTICLE IV OPERATION OF PRIOR PROJECT 9 Section 4.01. Use of Prior Project 9 Section 4.02. Rates and Charges 9 Section 4.03. Insurance 9 Section 4.04. Maintenance and Repair 9 Section 4.05. Compliance with Laws; Environmental Laws 10 Section 4.06. Effecting Changes in Prior Project 10 ARTICLE V ~~REMEDIES 34~~ COLLECTION AND APPLICATION OF REVENUES 10 Section ~~5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3~~ 5.01. Collection of ~~Indebtedness~~ Revenues 10 Section 5.02. TIF Revenues; TIF Revenue Fund 11 Section 5.03. Metro Revenues; Metro Revenue Fund 11 Section 5.04. Arena Revenues; Arena Revenue Fund 11 Section 5.05. Operation and ~~Suits for Enforcement by Indenture Trustee 36~~ Maintenance Account 12 Section ~~5.4 Remedies~~5.06. Renovation and Replacement Fund 12 Section 5.07. Excess Net Cash Flow Fund 13 Section 5.08. Deposit and Investment of Operation and Maintenance Account 13 ARTICLE VI PAYMENTS UNDER LOAN AGREEMENT 13 Section 6.01. General Covenant 13 Section 6.02. Credits on Payments 14 Section 6.03. Redemption of Bonds; ~~Priorities 38~~ Payment of Additional Moneys Not Constituting Arena Revenues 14 Section ~~5.5~~ 6.04. Directions regarding Optional ~~Preservation of the Receivables 41~~ Redemptions 15 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 6.05. Effect of ~~Supplemental Indenture 63~~ Partial Payment 15 Section ~~9.5 Conformity with Trust Indenture Act 63~~ 6.06. Principal Schedules 15 Section ~~9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63~~ 6.07. Additional Payments 15 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”)6.08. ~~Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer~~Corporation’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.Obligations Unconditional 16

Appears in 1 contract

Sources: Loan Agreement

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1~~ 1 SECTION 1.1. Definitions ~~2 Section 1.2 Incorporation by Reference of~~ 1 ARTICLE II. TRUST INDENTURE ACT 4 SECTION 2.1. Trust Indenture ~~Act 2 Section 1.3 Rules~~ Act; Application 4 SECTION 2.2. List of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery~~ Holders 4 ~~Section 2.3 Temporary Notes~~ SECTION 2.3. Reports by the Guarantee Trustee 5 ~~Section 2.4 Tax Treatment~~ SECTION 2.4. Periodic Reports to the Guarantee Trustee 5 ~~Section 2.5 Registration; Registration~~ SECTION 2.5. Evidence of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of with Conditions Precedent 5 SECTION 2.6. Events of ~~Default 31 Section 3.19 Removal~~ Default; Waiver 5 SECTION 2.7. Event of ~~Administrator 31 Section 3.20 Further Instruments~~ Default; Notice 5 SECTION 2.8. Conflicting Interests 6 ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE 6 SECTION 3.1. Powers and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance Duties of the ~~Notes 33 Section 4.3 Application~~ Guarantee Trustee 6 SECTION 3.2. Certain Rights of ~~Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity~~Guarantee Trustee 7 SECTION 3.3. Indemnity 9 SECTION 3.4. Expenses 9 ARTICLE IV. GUARANTEE TRUSTEE 9 SECTION 4.1. Guarantee Trustee; ~~Rescission~~ Eligibility 9 SECTION 4.2. Appointment, Removal and ~~Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation~~ Resignation of the ~~Receivables 41 Section 5.6 Limitation~~ Guarantee Trustee 10 ARTICLE V. GUARANTEE 10 SECTION 5.1. Guarantee 10 SECTION 5.2. Waiver of ~~Suits 42 Section 5.7 Unconditional~~ Notice and Demand 11 SECTION 5.3. Obligations Not Affected 11 SECTION 5.4. Rights of ~~Noteholders to Receive Principal~~ Holders 12 SECTION 5.5. Guarantee of Payment 12 SECTION 5.6. Subrogation 12 SECTION 5.7. Independent Obligations 12 ARTICLE VI. COVENANTS AND SUBORDINATION 12 SECTION 6.1. Subordination 12 SECTION 6.2. Pari Passu Guarantees 13 ARTICLE VII. TERMINATION 13 SECTION 7.1. Termination 13 ARTICLE VIII. MISCELLANEOUS 13 SECTION 8.1. Successors and ~~Interest 42 Section 5.8 Restoration~~ Assigns 13 SECTION 8.2. Amendments 13 SECTION 8.3. Notices 14 SECTION 8.4. Benefit 15 SECTION 8.5. Interpretation 15 SECTION 8.6. Governing Law 15 SECTION 8.7. Counterparts 15 THIS GUARANTEE AGREEMENT, dated as of ~~Rights~~ December 20, 2002, is executed and ~~Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not~~ delivered by THE PB FINANCIAL SERVICES CORPORATION, a ~~Waiver 43 Section 5.11 Control by Noteholders of~~ Georgia corporation (the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by “Guarantor”), having its principal office at ▇▇▇▇ ▇▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names ▇▇▇▇▇▇ Road, Duluth, Georgia 30096, and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTSWILMINGTON TRUST COMPANY, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinionsa Delaware banking corporation, ~~etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices~~as trustee (the “Guarantee Trustee”), etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability for the benefit of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 Holders (as ~~amended, supplemented or otherwise modified and in effect~~ defined herein) from time to ~~time, this “Indenture”), between CARMAX AUTO OWNER~~ time of the Capital Securities (as defined herein) of PB CAPITAL TRUST ~~2023-3~~I, a Delaware statutory trust (the “~~Issuer~~Issuer Trust”). Pursuant to an Amended and Restated Trust Agreement (the “Trust Agreement”), ~~and WILMINGTON TRUST~~dated of even date herewith, ~~NATIONAL ASSOCIATION~~among The PB Financial Services Corporation, ~~a national banking association~~as Depositor, ~~not in its individual capacity but solely~~ Wilmington Trust Company, as ~~indenture trustee~~ Property Trustee (~~in such capacity,~~ the “~~Indenture~~ Property Trustee”)~~. Each party agrees~~ , Wilmington Trust Company, as ~~follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Delaware Trustee (the “~~Class A-1 Notes~~Delaware Trustee”), ~~5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes”~~ and together with the ~~Class A-2a Notes~~Property Trustee, collectively, the “~~Class A-2 Notes~~Issuer Trustees”), ~~5.28% Class A-3 Asset-backed Notes~~ the Administrators named therein and the Holders from time to time of undivided beneficial interests in the assets of the Issuer Trust, the Issuer Trust is issuing up to $4,000,000 aggregate Liquidation Amount (as defined herein) of its Floating Rate Capital Securities (the “~~Class A-3 Notes~~Capital Securities”), ~~5.26% Class A-4 Asset-backed Notes~~ representing preferred undivided beneficial interests in the assets of the Issuer Trust and having the terms set forth in the Trust Agreement; The Capital Securities will be issued by the Issuer Trust and the proceeds thereof, together with the proceeds from the issuance of the Issuer Trust’s Common Securities (the “~~Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes~~Common Securities”), ~~5.47% Class B Asset-backed Notes~~ representing common undivided beneficial interests in the assets of the Issuer Trust of the Guarantor, will be used to purchase the Junior Subordinated Debentures due December 31, 2032 (the “~~Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes~~Junior Subordinated Debentures”) of the Guarantor, which will be deposited with Wilmington Trust Company, as Property Trustee under the Trust Agreement, as trust assets; and ~~6.44% Class D Asset-backed Notes (~~As an inducement to the ~~“Class D Notes” and, collectively with~~ Holders to purchase the ~~Class A Notes~~Capital Securities, the ~~Class B Notes~~ Guarantor is willing to irrevocably and ~~the Class C Notes~~unconditionally agree, ~~the “Notes”): The Issuer hereby Grants~~ to the ~~Indenture Trustee on the Closing Date~~extent set forth herein, ~~as Indenture Trustee for the benefit of~~ to pay to the Holders of the ~~Notes, all of~~ Capital Securities the ~~Issuer’s right, title~~ Guarantee Payments (as defined herein) and ~~interest in,~~ to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any make certain other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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~~ the terms 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protectedconditions set forth herein.

Appears in 1 contract

Sources: Guarantee Agreement (Alabama National Bancorporation)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS AND ~~INCORPORATION BY REFERENCE 2 Section 1.1~~ OTHER PROVISIONS OF GENERAL APPLICATION 1 SECTION 1.1. Definitions ~~2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.2. Compliance Certificate and Opinions 11 SECTION 1.3. Forms of Documents Delivered to Trustee 11 SECTION 1.4. Acts of Holders 12 SECTION 1.5. Notices, Etc. to Trustee and Company 14 SECTION 1.6. Notice to Holders; Waiver 14 SECTION 1.7. Conflict with Trust Indenture Act ~~2 Section 1.3 Rules~~ 15 SECTION 1.8. Effect of ~~Construction 2 Article~~ Headings and Table of Contents 15 SECTION 1.9. Successors and Assigns 15 SECTION 1.10. Separability Clause 15 SECTION 1.11. Benefits of Indenture 15 SECTION 1.12. Governing Law 15 SECTION 1.13. Non-Business Days 16 ARTICLE II SECURITY FORMS 16 SECTION 2.1. Forms Generally 16 SECTION 2.2. Form of Face of Security 17 SECTION 2.3. Additional Provisions Required in Global Security 17 SECTION 2.4. Form of Trustee’s Certificate of Authentication 17 ARTICLE III THE ~~NOTES 3 Section 2.1 Form 3 Section 2.2~~ SECURITIES 18 SECTION 3.1. Title and Terms 18 SECTION 3.2. Denominations 21 SECTION 3.3. Execution, ~~Authentication~~ Authentication, Delivery and ~~Delivery 4 Section 2.3~~ Dating 21 SECTION 3.4. Temporary ~~Notes 5 Section 2.4 Tax Treatment 5 Section 2.5~~ Securities 22 SECTION 3.5. Global Securities 23 SECTION 3.6. Registration~~; Registration of~~ , Transfer and Exchange ~~6 Section 2.6~~ Generally; Certain Transfers and Exchanges 24 SECTION 3.7. Mutilated, ~~Destroyed,~~ Lost or and Stolen ~~Notes 7 Section 2.7~~ Securities 26 SECTION 3.8. Payment of Interest and Additional Interest; Interest Rights Preserved 27 SECTION 3.9. Persons Deemed Owners ~~8 Section 2.8 Payments 8 Section 2.9~~ 28 SECTION 3.10. Cancellation ~~13 Section 2.10 Release~~ 29 SECTION 3.11. Computation of ~~Collateral 14 Section 2.11 Book~~Interest 29 SECTION 3.12. Deferrals of Interest Payment Dates 29 SECTION 3.13. Right of Set-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment Off 31 SECTION 3.14. Agreed Tax Treatment 31 SECTION 3.15. Shortening or Extension of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures Stated Maturity 31 ~~Section 3.17 Restricted Payments~~ SECTION 3.16. CUSIP Numbers 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article ARTICLE IV SATISFACTION AND DISCHARGE ~~32 Section 4.1~~ 31 SECTION 4.1. Satisfaction and Discharge of Indenture ~~32 Section~~ 31 SECTION 4.2 ~~Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3~~ Application of Trust Money ~~34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article~~ 33 ARTICLE V REMEDIES ~~34 Section 5.1~~ 33 SECTION 5.1. Events of Default ~~34 Section 5.2~~ 33 SECTION 5.2. Acceleration of Maturity; Rescission and Annulment ~~35 Section 5.3~~ 34 SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by ~~Indenture~~ Trustee 36 ~~Section 5.4 Remedies; Priorities~~ SECTION 5.4. Trustee May File Proofs of Claim 36 SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities 37 SECTION 5.6 Application of Money Collected 37 SECTION 5.7 Limitation on Suits 38 ~~Section 5.5 Optional Preservation~~ SECTION 5.8. Unconditional Right of ~~the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders~~ Holders to Receive ~~Principal~~ Principal, Premium and ~~Interest 42 Section 5.8~~ Interest; Direct Action by Holders of Capital Securities 39 SECTION 5.9. Restoration of Rights and Remedies ~~43 Section 5.9~~ 39 SECTION 5.10. Rights and Remedies Cumulative ~~43 Section 5.10~~ 39 SECTION 5.11. Delay or Omission Not a Waiver ~~43 Section 5.11~~ 39 SECTION 5.12. Control by ~~Noteholders of the Controlling Class 43 Section 5.12~~ Holders 40 SECTION 5.13. Waiver of Past Defaults ~~44 Section 5.13~~ 40 SECTION 5.14. Undertaking for Costs ~~44 Section 5.14~~ 41 SECTION 5.15. Waiver of Usury, Stay or Extension Laws ~~44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article~~ 41 ARTICLE VI THE ~~INDENTURE~~ TRUSTEE ~~46 Section 6.1~~ 42 SECTION 6.1. Certain Duties ~~of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5~~ and Responsibilities 42 SECTION 6.2. Notice of Defaults 43 SECTION 6.3. Certain Rights of Trustee 43 SECTION 6.4. Not Responsible for Recitals or Issuance of Securities 44 SECTION 6.5. May Hold Securities 44 SECTION 6.6. Money Held in Trust 44 SECTION 6.7. Compensation and Reimbursement 44 SECTION 6.8. Disqualification; Conflicting Interests 45 SECTION 6.9. Corporate Trustee Required; Eligibility 46 SECTION 6.10. Resignation and Removal; Appointment of Successor 46 SECTION 6.11. Acceptance of Appointment by Successor 48 SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business 49 ~~Section 6.6~~ SECTION 6.13. Preferential Collection of Claims Against Company 49 SECTION 6.14. Appointment of Authenticating Agent 49 ARTICLE VII HOLDER’S LISTS AND REPORTS BY TRUSTEE, PAYING AGENT AND COMPANY 51 SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders 51 SECTION 7.2. Preservation of Information; Communications to Holders 51 SECTION 7.3. Reports by Trustee and Paying Agent 52 SECTION 7.4. Reports by Company 52 ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE 53 SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms 53 SECTION 8.2. Successor Company Substituted 53 ARTICLE IX SUPPLEMENTAL INDENTURES 54 SECTION 9.1. Supplemental Indentures Without Consent of Holders 54 SECTION 9.2. Supplemental Indentures with Consent of Holders 55 SECTION 9.3. Execution of Supplemental Indentures 57 SECTION 9.4. Effect of Supplemental Indentures 57 SECTION 9.5. Conformity with Trust Indenture Act 57 SECTION 9.6. Reference in Securities to Supplemental Indentures 57 ARTICLE X COVENANTS 57 SECTION 10.1. Payment of Principal, Premium and Interest 57 SECTION 10.2. Maintenance of Office or Agency 58 SECTION 10.3. Money for Security Payments to be Held in Trust 58 SECTION 10.4. Statement as to Compliance 59 SECTION 10.5. Waiver of Certain Covenants 60 SECTION 10.6. Additional Sums 60 SECTION 10.7. Additional Covenants 60 SECTION 10.8. Furnishing Information 62 ARTICLE XI REDEMPTION OF SECURITIES 62 SECTION 11.1. Applicability of This Article 62 SECTION 11.2. Election to Redeem; Notice to Trustee 62 SECTION 11.3. Selection of Securities to be Redeemed 63 SECTION 11.4. Notice of Redemption 63 SECTION 11.5. Deposit of Redemption Price 64 SECTION 11.6. Payment of Securities Called for Redemption 64 SECTION 11.7. Right of Redemption of Securities Initially Issued to an Issuer Trust 65 ARTICLE XII SINKING FUNDS 65 ARTICLE XIII SUBORDINATION OF SECURITIES 66 SECTION 13.1. Securities Subordinate to Senior Indebtedness 66 SECTION 13.2. No Payment When Senior Indebtedness in Default; Payment Over of Proceeds Upon Dissolution, Etc. 66 SECTION 13.3. Payment Permitted If No Default 68 SECTION 13.4. Subrogation to Rights of Holders of Senior Indebtedness; Etc. 68 SECTION 13.5. Provisions Solely to Define Relative Rights 69 SECTION 13.6. Trustee to Effectuate Subordination 69 SECTION 13.7. No Waiver of Subordination Provisions 69 SECTION 13.8. Notice to Trustee 70 SECTION 13.9. Reliance on Judicial Order or Certificate of Liquidating Agent 71 SECTION 13.10. Trustee Not Fiduciary for Holders ~~49 Section 6.7 Compensation~~ of Senior Indebtedness 71 SECTION 13.11. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights 71 SECTION 13.12. Article Applicable to Paying Agents 71 SECTION 13.13. Certain Conversions or Exchanges Deemed Payment 72 EXHIBIT A. FORM OF DEBENTURE A-1 EXHIBIT B. FORM OF RESTRICTED SECURITIES CERTIFICATE B-1 THIS JUNIOR SUBORDINATED INDENTURE, dated as of December 21, 2006, is between GAINSCO, INC., a Texas corporation, having its principal office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, Suite 1200, Dallas, Texas 75219, and ~~Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by~~ U.S. BANK NATIONAL ASSOCIATION, as Trustee, having its principal office at ▇▇▇ ▇▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇▇, ~~accepts~~ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected“Trustee”).

Appears in 1 contract

Sources: Junior Subordinated Indenture (Gainsco Inc)

TABLE OF CONTENTS. This Table of Contents is not part of the Loan Agreement, and is for convenience only. The captions herein are of no legal effect and do not vary the meaning or legal effect of any part of the Loan Agreement. Recitals 1 Article I ~~DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section 1.1~~ Definitions ~~2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction~~ 2 Article II ~~THE NOTES 3~~ 2 Section ~~2.1 Form 3~~ 2.01. Representations, Warranties and Agreements of Issuer 2 Section ~~2.2 Execution~~2.02. Representations, ~~Authentication~~ Warranties and ~~Delivery~~ Agreements of Company 4 ~~Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration~~Article III Issuance of the Bonds; ~~Registration~~ The Loan; Disposition of ~~Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes~~ Proceeds of the Bonds; The Project 7 Section ~~2.7 Persons Deemed Owners~~ 3.01. Issuance of Bonds 7 Section 3.02. Issuance of Other Obligations 7 Section 3.03. The Loan; Disposition of Bond Proceeds 8 Section ~~2.8~~ 3.04. Project Changes 9 Article IV Loan Payments; Payments 8 to Remarketing Agent and Trustee; Standby Purchase Agreement and Alternate Liquidity Facilities; First Mortgage Bonds and Substitute Collateral; Other Obligations 9 Section ~~2.9 Cancellation 13~~ 4.01. Loan Payments 9 Section ~~2.10 Release~~ 4.02. Payments of Purchase Price 10 Section 4.03. Standby Purchase Agreement; Alternate Liquidity Facility 10 Section 4.04. Issuance, Delivery and Surrender of First Mortgage Bonds and Substitute Collateral 11 Section 4.05. Payments Assigned; Obligation Absolute 14 Section ~~2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency~~ 4.06. Payment of Expenses 15 Section ~~2.13 Definitive Notes~~ 4.07. Indemnification 15 Section ~~2.14 Authenticating Agents~~ 4.08. Payment of Taxes and Charges in Lieu Thereof 15 Section ~~2.15 Retained Notes~~ 4.09. Compliance with Prior Agreements 16 Article ~~III COVENANTS~~ V Special Covenants 16 Section 5.01. Maintenance of Existence; Conditions Under Which 16 Exceptions Permitted 17 Section 5.02. Permits or Licenses 17 Section 5.03. Arbitrage Covenant 17 Section 5.04. Financing Statements 18 Section 5.05. Covenants With Respect to Tax-Exempt Status of the Bonds 18 Section 5.06. Indemnification of Issuer 18 Section 5.07. Records of Company; Maintenance and Operation of the Project 19 Section 5.08. Right of Access to the Project 20 Section ~~3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement~~ 5.09. Remarketing Agent 20 Section ~~3.2 Maintenance of Office or Agency 22~~ 5.10. Insurance Policy 20 Article VI Assignment 21 Section ~~3.3 Money for Payments To Be Held in Trust 22~~ 6.01. Conditions 21 Section ~~3.4 Existence 23~~ 6.02. Documents Furnished to Trustee 21 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of 6.03. Limitation 21 Article VII Events of Default 31 and Remedies 22 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 7.01. Events of Default 34 22 Section ~~5.2 Acceleration~~ 7.02. Force Majeure 23 Section 7.03. Remedies 23 Section 7.04. No Remedy Exclusive 24 Section 7.05. Reimbursement of ~~Maturity; Rescission~~ Attorneys' Fees 24 Section 7.06. Waiver of Breach 24 Section 7.07. No Liability of Issuer 24 Article VIII Purchase or Redemption of Bonds 25 Section 8.01. Redemption of Bonds 25 Section 8.02. Purchase of Bonds 25 Section 8.03. Obligation to Prepay 25 Section 8.04. Compliance With Indenture 26 Article IX Miscellaneous 27 Section 9.01. Term of Agreement 27 Section 9.02. Notices 27 Section 9.03. Parties in Interest 28 Section 9.04. Amendments 28 Section 9.05. Counterparts 28 Section 9.06. Severability 29 Section 9.07. Governing Law 29 Section 9.08. Payments From Bond Fund 30 Testimonium 31 Signatures and ~~Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation~~ Seals 31 Exhibit A - Description of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTUREFacilities 31 -ii- Loan Agreement This Loan Agreement, dated as of ~~July~~ October 1, ~~2023 (as amended~~2006, ~~supplemented or otherwise modified and in effect from time to time~~is between Sweetwater County, ~~this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3~~Wyoming, a ~~Delaware statutory trust (~~political subdivision duly organized and existing under the ~~“Issuer”)~~Constitution and laws of the State of Wyoming, and ~~WILMINGTON TRUST, NATIONAL ASSOCIATION~~Idaho Power Company, a ~~national banking association, not in its individual capacity but solely as indenture trustee (in such capacity,~~ corporation duly organized under the ~~“Indenture Trustee”). Each party agrees as follows for the benefit~~ laws of the ~~other party~~ State of Idaho, and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants duly qualified to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests conduct business in the ~~Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest~~ State of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protectedWyoming.

Appears in 1 contract

Sources: Loan Agreement (Idaho Power Co)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES 3~~ 4 SECTION 2. RECIPIENT RESPONSIBILITIES 7 Section 2.1 ~~Form 3~~ General Grant Requirements 7 Section 2.2 ~~Execution~~Administrative Responsibilities 8 C. PARTICIPATE IN ACTIVITIES EOHHS DEEMS NECESSARY TO MONITOR THE RESPONSE TO GRANT SOLICITATION IMPLEMENTATION AND STATUS DURING THE TERM OF THE GRANT AGREEMENT TERM, ~~Authentication and Delivery 4~~ AND TO SUPPORT THE GRANT OBJECTIVES. 8 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners Reporting Requirements 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 SECTION 3. EOHHS RESPONSIBILITIES 9 Section 3.1 ~~Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20~~ Grant Agreement Management 9 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Payment 10 SECTION 4. PAYMENT 10 Section 4.1 ~~Satisfaction and Discharge of Indenture 32~~ Payment 10 Section 4.2 ~~Satisfaction, Discharge and Defeasance of the Notes 33~~ Supporting Documentation 10 Section 4.3 ~~Application~~ Return or Recoupment of ~~Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34~~ Funds 10 SECTION 5. ADDITIONAL TERMS AND CONDITIONS 10 Section 5.1 ~~Events of Default 34~~ Grant Agreement Term 10 Section 5.2 ~~Acceleration of Maturity; Rescission and Annulment 35~~ Assignment 10 Section 5.3 ~~Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36~~ Independent Contractors 10 Section 5.4 ~~Remedies; Priorities 38~~ Publications Regarding or Derived from this Grant Agreement 11 Section 5.5 ~~Optional Preservation~~ Prohibited Activities and Conflict of ~~the Receivables 41~~ Interest 11 Section 5.6 ~~Limitation of Suits 42~~ Insurance for Recipient’s Employees 11 Section 5.7 ~~Unconditional Rights of Noteholders to Receive Principal and Interest 42~~ Waiver 11 Section 5.8 ~~Restoration of Rights and Remedies 43~~ Indemnification 12 Section 5.9 ~~Rights and Remedies Cumulative 43~~ Compliance with Laws 12 Section 5.10 ~~Delay or Omission Not a Waiver 43~~ Counterparts 12 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No ~~Petition 72 Section 11.18 Inspection 72 Section 11.19~~ Third-Party ~~Beneficiaries 72~~ Enforcement 12 Section ~~11.20 Limitation~~ 5.12 Section Headings 12 Section 5.13 Administrative Procedures Not Covered 12 Section 5.14 Effect of Invalidity Clauses 12 Section 5.15 Corrective Action Plan 12 Section 5.16 EOHHS’ Option to Modify Scope of Work 13 Section 5.17 Authorizations 13 Section 5.18 Amendments 13 Section 5.19 Notification of Administrative Change 13 Section 5.20 Termination 13 Section 5.21 Record Keeping, Audit and Inspection of Records 14 Section 5.22 Use and Disclosure of Data 14 Section 5.23 Equal Employment Opportunity 14 Section 5.24 Restrictions on ~~Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability~~ the Use of the ~~Owner Trustee 73~~ Commonwealth Seal 14 Section ~~11.23 PATRIOT Act 73~~ 5.25 Grant Program Officer 14 Section ~~11.24 Beneficial Ownership 73 APPENDIX A Additional Representations~~ 5.26 Order of Precedence/Entire Agreement 15 Section 5.27 Notices 15 Definitions The following terms appearing capitalized throughout this Grant Agreement and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (appendices have the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protectedfollowing meanings.

Appears in 1 contract

Sources: Grant Agreement

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section~~ SECTION 1.1 ~~Definitions 2 Section~~ Certain Defined Terms 1 SECTION 1.2 ~~Incorporation by Reference of Trust Indenture Act 2 Section~~ Accounting Terms and Determinations 8 SECTION 1.3 Rules of Construction ~~2 Article~~ 9 ARTICLE II ~~THE NOTES 3 Section~~ LETTER OF CREDIT, ADVANCES AND LOANS 9 SECTION 2.1 ~~Form 3 Section~~ Issuance of Letter of Credit and Advances 9 SECTION 2.2 ~~Execution, Authentication and Delivery 4 Section~~ Term Loan. 10 SECTION 2.3 ~~Temporary Notes 5 Section~~ Interest on Overdue Amounts 11 SECTION 2.4 ~~Tax Treatment 5 Section~~ Interest Rate Adjustment 11 SECTION 2.5 ~~Registration; Registration~~ Prepayments of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and ~~Other~~ Loans 12 SECTION 2.6 Termination or Reduction of Available Amount 13 SECTION 2.7 Increased Costs/Change in Laws 13 SECTION 2.8 Reserved 15 SECTION 2.9 Payments and Computations 15 SECTION 2.10 Payment on Non-Business Days 16 SECTION 2.11 Book Entries 16 SECTION 2.12 Taxes. 16 ARTICLE III CONDITIONS PRECEDENT 17 SECTION 3.1 Conditions Precedent to Issuance of Letter of Credit 17 SECTION 3.2 Conditions Precedent to Each Drawing or Advance 19 SECTION 3.3 Conditions Precedent to Term Loan 19 ARTICLE IV FEES 20 SECTION 4.1 Fee Agreement 20 ARTICLE V OBLIGATIONS ABSOLUTE 20 ARTICLE VI REPRESENTATIONS AND WARRANTIES 21 SECTION 6.1 Due Existence 21 SECTION 6.2 Authorization; No Conflict 21 SECTION 6.3 Valid and Binding Nature 21 SECTION 6.4 Litigation and Contingent Liabilities ~~30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice~~ 21 SECTION 6.5 Governmental Approvals 22 SECTION 6.6 Offering Memorandum 22 SECTION 6.7 No Default 22 SECTION 6.8 Full Disclosure 22 SECTION 6.9 Compliance of Agreement and Transaction Documents; No Defaults or Events of Default ~~31 Section 3.19 Removal~~ 22 SECTION 6.10 Compliance with Law and Related Documents 23 SECTION 6.11 Accuracy and Completeness of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22~~ Other Information 23 SECTION 6.12 Representations and Warranties by Contained in the ~~Issuer~~ Transaction Documents 23 SECTION 6.13 Pending Legislation and Decisions 23 SECTION 6.14 Federal Reserve Board Regulations 23 SECTION 6.15 Interest 23 SECTION 6.16 Tax-Exempt Status 23 SECTION 6.17 Fiscal Biennium 23 SECTION 6.18 Commercial Paper Notes 24 SECTION 6.19 Parity Obligation 24 SECTION 6.20 Environmental Matters 24 ARTICLE VII COVENANTS 24 SECTION 7.1 Reporting Requirements 24 SECTION 7.2 Accounting Records 25 SECTION 7.3 Reserved 25 SECTION 7.4 Payments 25 SECTION 7.5 Security and Pledge 25 SECTION 7.6 Punctual Payment 26 SECTION 7.7 Use of Proceeds 26 SECTION 7.8 Other Bank Facilities 26 SECTION 7.9 Notices to ~~the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction~~ Rating Agencies 26 SECTION 7.10 Performance of Transaction Documents 26 SECTION 7.11 Notice of Certain Events 26 SECTION 7.12 Maintenance of Issuing and ~~Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by~~ Paying Agent ~~34 Article V~~ and Dealer 26 SECTION 7.13 No Conflicting Agreements 27 SECTION 7.14 Amendments to Transaction Documents 27 SECTION 7.15 Total Outstanding 27 SECTION 7.16 Tax Exemption 27 SECTION 7.17 Offering Memorandum 27 SECTION 7.18 Further Assurance 27 SECTION 7.19 Ratings 27 SECTION 7.20 Most Favored Nations Clause 27 SECTION 7.21 Acceleration Remedy 28 SECTION 7.22 Notices 28 SECTION 7.23 Inspection of Books 28 SECTION 7.24 Compliance with Laws, Etc 28 SECTION 7.25 Covenants Contained in the Transaction Documents 28 SECTION 7.26 Alternate Agreement 28 SECTION 7.27 Federal Reserve Board Regulations 28 SECTION 7.28 Remarketing 29 ARTICLE VIII EVENTS OF DEFAULT, REMEDIES ~~34 Section 5.1~~ 29 SECTION 8.1 Events of Default 29 SECTION 8.2 Remedies. 32 SECTION 8.3 No Remedy Exclusive. 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of ARTICLE IX MISCELLANEOUS 34 SECTION 9.1 Payments to the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section Bank 34 SECTION 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the ~~Owner Trustee 73 Section 11.23 PATRIOT~~ Bank 34 SECTION 9.3 Indemnification 35 SECTION 9.4 Costs and Expenses 36 SECTION 9.5 Participants 37 SECTION 9.6 Successors and Assigns. 37 SECTION 9.7 Modification or Waiver of This Agreement 38 SECTION 9.8 No Waiver of Rights by the Bank; Cumulative Rights. 38 SECTION 9.9 Notices 38 SECTION 9.10 Counterparts 39 SECTION 9.11 Certificates, Etc 39 SECTION 9.12 Term of Agreement 39 SECTION 9.13 Severability 40 SECTION 9.14 WAIVER OF IMMUNITY 40 SECTION 9.15 WAIVER OF JURY TRIAL 41 SECTION 9.16 Governing Law 41 SECTION 9.17 Consents 41 SECTION 9.18 Source of Funds 41 SECTION 9.19 Survival 41 SECTION 9.20 Headings 41 SECTION 9.21 Beneficiaries 41 SECTION 9.22 Patriot Act ~~73 Section 11.24 Beneficial Ownership 73 APPENDIX~~ 42 EXHIBIT A ~~Additional Representations and Warranties EXHIBIT~~ – FORM OF REVOLVING NOTE ................................................................ A-1 ~~Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note~~ EXHIBIT B ~~Form of Class B Note~~ – FORM OF TERM NOTE ............................................................................ B-1 EXHIBIT C ~~Form of Class C Note~~ – FORM OF REQUEST FOR EXTENSION ................................................. C-1 EXHIBIT D ~~Form of Class D Note~~ – FORM OF NON-ISSUANCE NOTICE ...................................................... D-1 EXHIBIT E ~~Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~– CERTIFICATE RE: CONDITIONS PRECEDENT TO TERM LOAN......E-1 APPENDIX I – FORM OF STANDBY LETTER OF CREDIT............................................ A-I-1 AGREEMENT, dated as of ~~July~~ November 1, ~~2023 (as amended~~2011, ~~supplemented or otherwise modified~~ is entered into by and ~~in effect from time to time, this “Indenture”),~~ between ~~CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust~~ TEXAS PUBLIC FINANCE AUTHORITY (the “~~Issuer~~Authority”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.SUMITOMO MITSUI BANKING

Appears in 1 contract

Sources: Standby Letter of Credit and Reimbursement Agreement

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1~~ 1 SECTION 1.1. Definitions ~~2 Section 1.2 Incorporation by Reference of~~ 1 ARTICLE II. TRUST INDENTURE ACT 4 SECTION 2.1. Trust Indenture ~~Act 2 Section 1.3 Rules~~ Act; Application 4 SECTION 2.2. List of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery~~ Holders 4 ~~Section 2.3 Temporary Notes~~ SECTION 2.3. Reports by the Guarantee Trustee 5 ~~Section 2.4 Tax Treatment~~ SECTION 2.4. Periodic Reports to the Guarantee Trustee 5 ~~Section 2.5 Registration; Registration~~ SECTION 2.5. Evidence of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of with Conditions Precedent 5 SECTION 2.6. Events of ~~Default 31 Section 3.19 Removal~~ Default; Waiver 5 SECTION 2.7. Event of ~~Administrator 31 Section 3.20 Further Instruments~~ Default; Notice 6 SECTION 2.8. Conflicting Interests 6 ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE 6 SECTION 3.1. Powers and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance Duties of the ~~Notes 33 Section 4.3 Application~~ Guarantee Trustee 6 SECTION 3.2. Certain Rights of ~~Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity~~Guarantee Trustee 8 SECTION 3.3. Indemnity 9 SECTION 3.4. Expenses 9 ARTICLE IV. GUARANTEE TRUSTEE 9 SECTION 4.1. Guarantee Trustee; ~~Rescission~~ Eligibility 9 SECTION 4.2. Appointment, Removal and ~~Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation~~ Resignation of the ~~Receivables 41 Section 5.6 Limitation~~ Guarantee Trustee 10 ARTICLE V. GUARANTEE 11 SECTION 5.1. Guarantee 11 SECTION 5.2. Waiver of ~~Suits 42 Section 5.7 Unconditional~~ Notice and Demand 11 SECTION 5.3. Obligations Not Affected 11 SECTION 5.4. Rights of ~~Noteholders to Receive Principal~~ Holders 12 SECTION 5.5. Guarantee of Payment 12 SECTION 5.6. Subrogation 12 SECTION 5.7. Independent Obligations 13 ARTICLE VI. COVENANTS AND SUBORDINATION 13 SECTION 6.1. Subordination 13 SECTION 6.2. Pari Passu Guarantees 13 ARTICLE VII. TERMINATION 13 SECTION 7.1. Termination 13 ARTICLE VIII. MISCELLANEOUS 14 SECTION 8.1. Successors and ~~Interest 42 Section 5.8 Restoration~~ Assigns 14 SECTION 8.2. Amendments 14 SECTION 8.3. Notices 14 SECTION 8.4. Benefit 15 SECTION 8.5. Interpretation 15 SECTION 8.6. Governing Law 16 SECTION 8.7. Counterparts 16 THIS GUARANTEE AGREEMENT, dated as of ~~Rights~~ November 7, 2003, is executed and ~~Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not~~ delivered by Mountain National Bancshares, Inc., a ~~Waiver 43 Section 5.11 Control by Noteholders of~~ Tennessee corporation (the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by “Guarantor”), having its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names ▇▇▇▇▇, and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTSWILMINGTON TRUST COMPANY, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinionsa Delaware banking corporation, ~~etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices~~as trustee (the “Guarantee Trustee”), etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability for the benefit of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 Holders (as ~~amended, supplemented or otherwise modified and in effect~~ defined herein) from time to ~~time, this “Indenture”), between CARMAX AUTO OWNER~~ time of the Capital Securities (as defined herein) of MNB CAPITAL TRUST ~~2023-3~~I, a Delaware statutory trust (the “~~Issuer~~Issuer Trust”). Pursuant to an Amended and Restated Trust Agreement (the “Trust Agreement”), ~~and WILMINGTON TRUST~~dated of even date herewith, ~~NATIONAL ASSOCIATION~~among Mountain National Bancshares, ~~a national banking association~~Inc., ~~not in its individual capacity but solely~~ as ~~indenture trustee~~ Depositor, Wilmington Trust Company, as Property Trustee (~~in such capacity,~~ the “~~Indenture~~ Property Trustee”)~~. Each party agrees~~ , Wilmington Trust Company, as ~~follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Delaware Trustee (the “~~Class A-1 Notes~~Delaware Trustee”), ~~5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes”~~ and together with the ~~Class A-2a Notes~~Property Trustee, collectively, the “~~Class A-2 Notes~~Issuer Trustees”), ~~5.28% Class A-3 Asset-backed Notes~~ the Administrators named therein and the Holders from time to time of undivided beneficial interests in the assets of the Issuer Trust, the Issuer Trust is issuing up to $5,500,000 aggregate Liquidation Amount (as defined herein) of its Floating Rate Capital Securities (the “~~Class A-3 Notes~~Capital Securities”), ~~5.26% Class A-4 Asset-backed Notes~~ representing preferred undivided beneficial interests in the assets of the Issuer Trust and having the terms set forth in the Trust Agreement; The Capital Securities will be issued by the Issuer Trust and the proceeds thereof, together with the proceeds from the issuance of the Issuer Trust’s Common Securities (the “~~Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes~~Common Securities”), ~~5.47% Class B Asset-backed Notes~~ representing common undivided beneficial interests in the assets of the Issuer Trust of the Guarantor, will be used to purchase the Junior Subordinated Debentures due December 31, 2033 (the “~~Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes~~Junior Subordinated Debentures”) of the Guarantor, which will be deposited with Wilmington Trust Company, as Property Trustee under the Trust Agreement, as trust assets; and ~~6.44% Class D Asset-backed Notes (~~As an inducement to the ~~“Class D Notes” and, collectively with~~ Holders to purchase the ~~Class A Notes~~Capital Securities, the ~~Class B Notes~~ Guarantor is willing to irrevocably and ~~the Class C Notes~~unconditionally agree, ~~the “Notes”): The Issuer hereby Grants~~ to the ~~Indenture Trustee on the Closing Date~~extent set forth herein, ~~as Indenture Trustee for the benefit of~~ to pay to the Holders of the ~~Notes, all of~~ Capital Securities the ~~Issuer’s right, title~~ Guarantee Payments (as defined herein) and ~~interest in,~~ to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any make certain other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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~~ the terms 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protectedconditions set forth herein.

Appears in 1 contract

Sources: Guarantee Agreement (Mountain National Bancshares Inc)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE~~ The Merger 2 Section 1.1 ~~Definitions~~ The Merger 2 Section 1.2 ~~Incorporation by Reference of Trust Indenture Act~~ Closing 2 Section 1.3 ~~Rules of Construction 2 Article II THE NOTES~~ Effective Time 3 Section ~~2.1 Form~~ 1.4 Effect of the Merger 3 Section ~~2.2 Execution, Authentication~~ 1.5 Organizational Documents 3 Section 1.6 Directors and ~~Delivery~~ Officers of the Surviving Entity 4 Section ~~2.3 Temporary Notes 5~~ 1.7 Subsequent Actions 4 Section ~~2.4 Tax Treatment 5~~ 1.8 Consideration; Effect on Capital Stock. 4 Section ~~2.5 Registration; Registration~~ 1.9 Plan of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Reorganization. 18 ARTICLE II Representations and Warranties of the Company 18 Section 2.1 Organization and Standing; Subsidiaries 18 Section 2.2 Authority; No Conflicts 19 Section 2.3 Capitalization 20 Section 2.4 Financial Statements; Undisclosed Liabilities 21 Section 2.5 Absence of Certain Changes 22 Section 2.6 Compliance with Laws 23 Section 2.7 Permits 23 Section 2.8 Litigation 23 Section 2.9 Benefit Plans 24 Section 2.10 Labor Matters 26 Section 2.11 Tax Matters. 27 Section 2.12 Intellectual Property. 29 Section 2.13 Material Contracts 33 Section 2.14 Governmental Consents and Approvals 36 Section 2.15 Environmental Matters 36 Section 2.16 Leased Real Property 36 Section 2.17 Interested Party Transactions 37 Section 2.18 Suppliers, Customers and Partners 37 Section 2.19 Accounts, Powers of Attorney 37 Section 2.20 Insurance 37 Section 2.21 Tangible Assets; Title to Property 38 Section 2.22 Minute Books 38 Section 2.23 Broker’s or Finder’s Fees; Transaction Expenses 38 Section 2.24 State Takeover Statutes. 38 Section 2.25 Full Disclosure 38 Section 2.26 No Additional Representations or Warranties 38 ARTICLE III Company Stockholders Release 39 Section 3.1 Waiver and Release 39 Section 3.2 Ownerhip of Company Capital Stock 39 Section 3.3 Absense of Claims by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.Company Stockholders 41

Appears in 1 contract

Sources: Merger Agreement (Attunity LTD)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE 2~~ Overtime Payments: 10 Section ~~1.1 Definitions 2~~ 3. Shift Differential: 11 Section ~~1.2 Incorporation by Reference~~ 4. Boiler License Premium: 11 Section 5. Pay Dates 11 Section 6. Attendance Incentive: 11 Section 7. Uniform Allowance: 11 Section 8. Food Service Certification Pay: 11 Section 9. Employees Substituting for Other Bargaining Unit Employees: 12 Section 10. Training for Education paraprofessionals: 12 Section 11. Building Checks: 12 Section 12. Minimum Callback Pay: 12 Section 13. Death of ~~Trust Indenture Act 2~~ Employee: 12 Section ~~1.3 Rules~~ 14. Longevity: 12 Section 15. Kids Company 13 ARTICLE VII 13 GROUP INSURANCE Section 1. Selection of Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation Carrier 13 Section ~~2.10 Release of Collateral~~ 2. Health and Hospitalization Insurance 13 Section 3. Disability Insurance 14 Section ~~2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency~~ 4. Term Life Insurance 15 Section ~~2.13 Definitive Notes~~ 5. Claims Against the School District 15 Section ~~2.14 Authenticating Agents~~ 6. Duration of Insurance Contribution 15 Section ~~2.15 Retained Notes 16 Article III COVENANTS 20~~ 7. Establishment of a Variable Employee Beneficiary Association 15 (VEBA)with Health Reimbursements Arrangements (HRAs) for Active Employees Section ~~3.1~~ 8. Payment of ~~Principal and Interest; Determination of SOFR; Benchmark Replacement 20~~ Administrative Fee 15 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer 9. Employer Contributions to the ~~Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32~~ HRA for Active Participants 16 ARTICLE VIII SEVERANCE PAY 16 Section ~~4.1 Satisfaction and Discharge of Indenture 32~~ 1. Eligibility 16 Section ~~4.2 Satisfaction, Discharge and Defeasance of the Notes 33~~ 2. Severance Payment 16 ARTICLE IX 17 SCHOOL DISTRICT MATCH 403(B) TAX DEFFERED ANNUITY Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article 1. Eligibility 17 ARTICLE X ~~REDEMPTION~~ 17 LEAVES OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.ABSENCE

Appears in 1 contract

Sources: Master Agreement

TABLE OF CONTENTS. ~~Article I DEFINITIONS~~ LIEN SUBORDINATION AND ~~INCORPORATION BY REFERENCE~~ INTERCREDITOR AGREEMENT 1 RECITALS 1 Section 1. Definitions. 2 1.1 Defined Terms 2 1.2 Terms Generally 10 Section ~~1.1 Definitions 2~~ 2. Payment Subordination and Payment Block. 11 2.1 Subordination of Junior Lien Obligations to Senior Lien Obligations 11 2.2 Junior Lien Obligations Payment Restrictions. 11 2.3 Junior Lien Obligations Standstill Provisions. 12 2.4 Liquidation, Dissolution, Bankruptcy. 12 Section ~~1.2 Incorporation by Reference~~ 3. Lien Priorities. 13 3.1 Relative Priorities 13 3.2 Prohibition on Contesting Liens; No Marshaling 13 3.3 No New Liens 14 3.4 Perfection of ~~Trust Indenture Act 2 Section 1.3 Rules~~ Liens 15 3.5 Nature of Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency Senior Lien Obligations 15 Section ~~2.13 Definitive Notes~~ 4. Enforcement. 15 4.1 Exercise of Remedies. 15 4.2 Actions Upon Breach; Specific Performance 18 Section ~~2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS~~ 5. Payments. 19 5.1 Application of Proceeds 19 5.2 Payments Over. 19 5.3 Releases. 20 ~~Section 3.1 Payment~~ 5.4 Insurance 21 5.5 Amendments to Senior Lien Documents and Junior Lien Documents. 21 5.6 Confirmation of ~~Principal~~ Subordination in Junior Lien Collateral Documents 22 5.7 Gratuitous Bailee/Agent for Perfection; Rights of Initial Senior Collateral Agent and ~~Interest; Determination~~ Initial Senior Lien Representative. 23 5.8 When Discharge of ~~SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate~~ Obligations Deemed to Not Have Occurred 24 Section ~~3.6 Opinions as to Trust Estate~~ 6. Insolvency or Liquidation Proceedings. 24 ~~Section 3.7 Performance~~ 6.1 Finance and Sale Issues 24 6.2 Relief from the Automatic Stay 25 6.3 Adequate Protection. 25 6.4 No Waiver 26 6.5 Avoidance Issues 27 6.6 Reorganization Securities 27 6.7 Post-Petition Interest. 27 6.8 Waiver 27 6.9 Separate Grants of ~~Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants~~ Security and Separate Classification 27 ~~Section 3.9 Annual Statement as to Compliance~~ 6.10 Effectiveness in Insolvency or Liquidation Proceedings 28 Section ~~3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ 7. Reliance; Waivers. 28 ~~Section 3.11 Successor~~ 7.1 Reliance 28 7.2 No Warranties or ~~Transferee~~ Liability 28 7.3 No Waiver of Lien Priorities. 29 7.4 Obligations Unconditional 30 Section ~~3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures~~ 8. Miscellaneous. 31 ~~Section 3.17 Restricted Payments~~ 8.1 Integration/Conflicts 31 ~~Section 3.18 Notice~~ 8.2 Effectiveness; Continuing Nature of ~~Events of Default~~ this Agreement; Severability 31 ~~Section 3.19 Removal of Administrator~~ 8.3 Amendments; Waivers. 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance 8.4 Information Concerning Financial Condition of the ~~Notes 33 Section 4.3~~ Company and its Subsidiaries 32 8.5 Subrogation 32 8.6 Application of ~~Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission~~ Payments 32 8.7 Additional Senior Lien Claims and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”)Junior Debt. Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.33

Appears in 1 contract

Sources: Supplemental Indenture (Centrus Energy Corp)

TABLE OF CONTENTS. ~~Article~~ (This Table of Contents is not a part of the Indenture and is only for convenience of reference.) SECTION PAGE Recitals 1 ARTICLE I DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2~~ 3 Section ~~1.1~~ 1.01. Definitions 2 3 Section ~~1.2 Incorporation by Reference of Trust Indenture Act 2~~ 1.02. Authorization 8 Section ~~1.3 Rules of Construction 2 Article~~ 1.03. Interpretation 8 ARTICLE II THE ~~NOTES 3~~ CERTIFICATES OF PARTICIPATION 8 Section ~~2.1~~ 2.01. Authorization 8 Section 2.02. Date 9 Section 2.03. Maturity; Interest Rates 9 Section 2.04. Form 3 of Certificates 10 Section ~~2.2 Execution~~2.05. Payment of Interest 10 Section 2.06. Execution 10 Section 2.07. Application of Proceeds 10 Section 2.08. Registration, ~~Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of~~ Transfer and Exchange 6 of Certificates 10 Section ~~2.6~~ 2.09. Mutilated, ~~Destroyed~~Lost, ~~Lost or~~ Destroyed and Stolen ~~Notes 7~~ Certificates 11 Section ~~2.7 Persons Deemed Owners 8~~ 2.10. Payment 11 Section ~~2.8 Payments 8~~ 2.11. Execution of Documents and Proof of Ownership 12 Section ~~2.9 Cancellation 13~~ 2.12. Certificate Register 12 Section ~~2.10 Release of Collateral~~ 2.13. Global Book Entry 12 ARTICLE III ACQUISITION FUND 14 Section ~~2.11 Book-Entry Notes~~ 3.01. Acquisition Fund 14 Section ~~2.12 Notices to Clearing Agency~~ 3.02. Disbursements 14 ARTICLE IV REDEMPTION OF CERTIFICATES 14 Section 4.01. Redemption upon Event of Nonappropriation and Termination of Purchase Contract 14 Section 4.02. Optional Redemption 15 Section ~~2.13 Definitive Notes~~ 4.03. Mandatory Sinking Fund Redemption 15 Section ~~2.14 Authenticating Agents 15~~ 4.04. Effect of Call for Redemption 16 Section ~~2.15 Retained Notes~~ 4.05. Notice of Redemption 16 ~~Article III COVENANTS 20~~ Section ~~3.1~~ 4.06. Partial Redemption 17 ARTICLE V INSTALLMENT PAYMENTS; ADDITIONAL PAYMENTS; INSTALLMENT PAYMENT FUND 17 Section 5.01. Rights in Purchase Contract 17 Section 5.02. Establishment of Installment Payment Fund 17 Section 5.03. Deposits 18 Section 5.04. Application of ~~Principal and Interest~~Moneys 18 Section 5.05. Surplus 18 ARTICLE VI FORM OF THE CERTIFICATES 18 ARTICLE VII MONEYS IN FUNDS; ~~Determination of SOFR; Benchmark Replacement 20~~ INVESTMENT 23 Section ~~3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be~~ 7.01. Held in Trust ~~22 Section 3.4 Existence~~ 23 Section ~~3.5 Protection of Trust Estate~~ 7.02. Investments Authorized 23 Section 7.03. Investment Earnings 24 Section ~~3.6 Opinions as to Trust Estate 24 Section 3.7 Performance~~ 7.04. Liability of ~~Obligations; Servicing of Receivables~~ Trustee for Investments 25 Section ~~3.8 Negative Covenants~~ 7.05. Tax Agreement; Creation of Rebate Fund 25 Section 7.06. Arbitrage Covenant 25 ARTICLE VIII THE TRUSTEE 26 Section 8.01. Certain Duties and Responsibilities 26 Section 8.02. Certain Rights of Trustee 27 Section ~~3.9 Annual Statement as~~ 8.03. Employment of Experts 29 Section 8.04. Enforcement of Performance by Others 29 Section 8.05. Right to ~~Compliance 28~~ Deal in Certificates and Take Other Actions 29 Section ~~3.10 Issuer May Consolidate, etc., Only on Certain Terms 28~~ 8.06. Removal and Resignation of the Trustee 29 Section ~~3.11 Successor or Transferee~~ 8.07. Proof of Claim 30 Section ~~3.12 No Other Business~~ 8.08. Trustee’s Fees and Expenses 30 Section ~~3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures~~ 8.09. Intervention by Trustee 31 Section ~~3.17 Restricted Payments~~ 8.10. Reports 31 Section ~~3.18 Notice of Events of Default~~ 8.11. Separate or Co-Trustee 31 Section ~~3.19 Removal of Administrator 31 Section 3.20 Further Instruments~~ 8.12. Recitals and ~~Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22~~ Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 ~~Section 4.3 Application of Trust Money~~ ARTICLE IX MODIFICATION OR AMENDMENT OF AGREEMENTS 34 Section ~~4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES~~ 9.01. Amendments Permitted 34 Section ~~5.1 Events~~ 9.02. Procedure for Amendment with Written Consent of ~~Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment~~ Certificate Owners 35 Section ~~5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee~~ 9.03. Disqualified Certificates 36 Section ~~5.4 Remedies~~9.04. Effect of Supplemental Agreement 36 ARTICLE X COVENANTS; ~~Priorities 38~~ NOTICE 36 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance 10.01. Compliance with and Enforcement of ~~Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46~~ Purchase Contract 36 Section ~~6.1 Duties~~ 10.02. Observance of ~~Indenture~~ Laws and Regulations 37 Section 10.03. Prosecution and Defense of Suits 37 Section 10.04. Filing 37 Section 10.05. Payments Due on Non-Business Days 37 Section 10.06. Further Assurances 37 Section 10.07. Parties Interested Herein 37 ARTICLE XI LIMITATION OF LIABILITY 38 Section 11.01. Limited Liability of Board 38 Section 11.02. No Liability of the Board for Trustee 46 Performance 38 Section ~~6.2~~ 11.03. Limitation of Rights to Parties and Certificate Owners 38 Section 11.04. No Liability of ~~Indenture~~ the Trustee 48 for Payment of Installment Payments by Board 38 ARTICLE XII EVENTS OF DEFAULT AND REMEDIES OF CERTIFICATE OWNERS 39 Section ~~6.3 Individual Rights~~ 12.01. Remedies 39 Section 12.02. Institution of ~~Indenture Trustee 49~~ Legal Proceedings 39 Section ~~6.4 Indenture Trustee’s Disclaimer 49~~ 12.03. Application of Funds 39 Section ~~6.5 Notice~~ 12.04. Non-waiver 40 Section 12.05. Remedies Not Exclusive 40 Section 12.06. Power of ~~Defaults 49 Section 6.6 Reports by Indenture~~ Trustee to ~~Holders 49~~ Control Proceedings 40 Section ~~6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇~~12.07. Limitation on Certificate Owners’ Right to ▇▇▇ 51 40 ARTICLE XIII MISCELLANEOUS 41 Section ~~6.10 Appointment~~ 13.01. Defeasance 41 Section 13.02. Notices 42 Section 13.03. Governing Law 43 Section 13.04. Binding Effect; Successors 43 Section 13.05. Execution in Counterparts 43 Section 13.06. Destruction of ~~Co-Indenture Trustee or Separate Indenture Trustee 52~~ Cancelled Certificates 43 Section ~~6.11 Eligibility; Disqualification 53~~ 13.07. Waiver of Notice 43 Section ~~6.12 Preferential Collection~~ 13.08. Separability of ~~Claims Against Issuer 54~~ Invalid Provisions 43 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses 13.09. Bills of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Sale 44 Signatures 45 EXHIBIT A – Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER Requisition – Acquisition Fund ACKNOWLEDGMENTS INDENTURE OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 TRUST THIS INDENTURE OF TRUST (~~as amended, supplemented or otherwise modified and in effect from time to time,~~ this “Indenture”), made and entered into as of this 1st day of April, 2014, by and between ~~CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST,~~ U.S. BANK NATIONAL ASSOCIATION, a national banking ~~association~~association duly organized and existing under the laws of the United States of America, ~~not in its individual capacity but solely~~ as ~~indenture~~ trustee (~~in such capacity,~~ the “~~Indenture~~ Trustee”)~~. Each party agrees as follows for~~ , and the ~~benefit~~ BOARD OF TRUSTEES OF ILLINOIS STATE UNIVERSITY, a body corporate and politic of the ~~other party and for the equal and ratable benefit~~ State of ~~the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Illinois (the “~~Class A-1 Notes~~Board”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.,

Appears in 1 contract

Sources: Acquisition Agreement

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE 2~~ Certain Definitions. 1 Section ~~1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 2. Appointment of ~~Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes~~ the Document Custodian. 5 Section ~~2.4 Tax Treatment~~ 3. Delivery of Collateral Files 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 4. Release of Collateral Files 6 Section 5. Further Obligations of the Document Custodian 6 Section 6. Proper Instructions 7 Section 7. Transmission of Collateral Files 8 Section 8. Fees of the Document Custodian 8 Section 9. Resignation or Removal of Document Custodian; Termination of Agreement 9 Section 10. Representations 10 Section 11. Notices 10 Section 12. Concerning the Document Custodian. 11 Section 13. Force Majeure 13 Section 14. Indemnification. 13 Section 15. Amendments 14 Section ~~2.11 Book-Entry Notes~~ 16. Effective Waiver 14 Section ~~2.12 Notices to Clearing Agency~~ 17. Severability 14 Section 18. Binding Effect; Governing Law 14 Section 19. Successors and Assigns; Third Party Benefit 14 Section 20. Entire Agreement; Counterparts. 15 Section ~~2.13 Definitive Notes~~ 21. Other Business 15 Section ~~2.14 Authenticating Agents~~ 22. Reproduction of Documents 15 Section ~~2.15 Retained Notes~~ 23. Confidentiality. 16 ~~Article III COVENANTS 20~~ Section ~~3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20~~ 24. Actions Necessary to Preserve Rights under Collateral Documents 16 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; 25. SUBMISSION TO JURISDICTION; ~~WAIVER OF RIGHT TO JURY TRIAL 70~~ WAIVERS. 16 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated 26. Compliance with ~~Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX~~ Applicable Law. 17 SCHEDULE I RECOMMENDED DATA FILE CRITERIA EXHIBIT A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note AUTHORIZED REPRESENTATIVES EXHIBIT B ~~Form of Class B Note~~ FORM OF REQUEST FOR RELEASE EXHIBIT C ~~Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated~~ FORM OF COMPANY JOINDER This DOCUMENT CUSTODY AGREEMENT is made and entered into as of July 114, ~~2023~~ 2025 by and between Fortress Private Lending Fund (~~as amended, supplemented or otherwise modified and in effect from time to time, this~~ the “~~Indenture~~Company”)~~, between CARMAX AUTO OWNER TRUST 2023-3~~, a Delaware statutory ~~trust (the “Issuer”)~~trust, and ~~WILMINGTON TRUST, NATIONAL ASSOCIATION~~U.S. Bank National Association, a national banking association, ~~not in its individual capacity but solely as indenture trustee (in such capacity,~~ organized under the ~~“Indenture Trustee”). Each party agrees as follows for the benefit~~ laws of the ~~other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ United States, as document custodian (the “~~Class A-1 Notes~~Document Custodian”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Document Custody Agreement (Fortress Private Lending Fund)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE~~ CONTRACT FORMAT INDEXING SYSTEM ix ARTICLE 1 – PARTIES TO THE AGREEMENT 1 ARTICLE 2 ~~Section 1.1 Definitions~~ – RECOGNITION 2 ~~Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES~~ ARTICLE 3 ~~Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery~~ – TERM OF AGREEMENT 4 Section ~~2.3 Temporary Notes~~ 1. Effective Date. 4 Section 2. Notice to Negotiate. 4 Section 3. Commencing Negotiations. 4 Section 4. Scheduling Negotiations. 4 Section 5. Mediation and Binding Arbitration. 4 Section 6. Agreement Extension. 5 Section ~~2.4 Tax Treatment~~ 7. Process to Open Agreement During Term 5 ARTICLE 4 – COMPLETE AGREEMENT 6 ARTICLE 5 – SEPARABILITY 7 ARTICLE 6 – NO STRIKE/NO LOCKOUT 8 ARTICLE 7 – UNION RIGHTS 9 Section ~~2.5 Registration; Registration~~ 1. Centralized State Payment System. 9 Section 2. Bulletin Boards. 9 Section 3. 9 Section 4. Union Presentations at OHCC Trainings. 10 Section 5. Union Rights Related to CareWell 503 10 Section 6. Union Representation – Provider Recruitment at OHCC Events Orientation. 10 Section 7. Employer Indemnity. 10 Section 8. Service Period and Deductions. 11 Section 9. List of ~~Transfer~~ Representatives. 11 Section 10. List and ~~Exchange 6~~ Information. 11 Section ~~2.6 Mutilated, Destroyed, Lost or Stolen Notes 7~~ 11. New Provider List Information. 12 Section ~~2.7 Persons Deemed Owners 8~~ 12. Dues Deduction. 12 Section ~~2.8 Payments 8 Section 2.9 Cancellation~~ 13. Associated Costs 13 Section ~~2.10 Release of Collateral~~ 14. Other Deductions. 13 Section 15. Service Period and Deductions. 13 Section 16. Personal Support Workers in the Independent Choices Program (ICP). 14 Section ~~2.11 Book-Entry Notes~~ 17. Paycheck Remittance Advice. 14 Section ~~2.12 Notices to Clearing Agency~~ 18. Quarterly Provider number Termination Report 15 ARTICLE 8 – PAYROLL SYSTEMS 16 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”)Time Submission. The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.16

Appears in 1 contract

Sources: Collective Bargaining Agreement

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE~~ Escrow Agent. 2 Section ~~1.1 Definitions~~ 1.01. Appointment of Escrow Agent. 2 Section ~~1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES~~ 1.02. Instruction; Etc. 3 Section ~~2.1 Form 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes~~ 1.03. Initial Escrow Amount; Issuance of Escrow Receipts. 5 Section ~~2.4 Tax Treatment~~ 1.04. Payments to Receiptholders. 5 Section ~~2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6~~ 1.05. Mutilated, Destroyed, Lost or Stolen ~~Notes~~ Escrow Receipt. 5 Section 1.06. Additional Escrow Amounts. 6 Section 1.07. Resignation or Removal of Escrow Agent. 6 Section 1.08. Persons Deemed Owners. 6 Section 1.09. Further Assurances. 7 SECTION 2. Paying Agent. 7 Section ~~2.7 Persons Deemed Owners~~ 2.01. Appointment of Paying Agent. 7 Section 2.02. Establishment of Paying Agent Account. 7 Section 2.03. Payments from Paying Agent Account. 7 Section 2.04. Withholding Taxes. 8 Section ~~2.8 Payments~~ 2.05. Resignation or Removal of Paying Agent. 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 2.06. Notice of ~~Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22~~ Final Withdrawal. 9 SECTION 3. Payments. 9 SECTION 4. Other Actions. 10 SECTION 5. Representations and Warranties ~~by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance~~ of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Escrow Agent. 10 SECTION 6. Representations and Warranties ~~EXHIBIT A-1 Form~~ of the Paying Agent. 11 SECTION 7. Indemnification. 12 SECTION 8. Amendment, Etc. 12 SECTION 9. Notices. 13 SECTION 10. Transfer. 13 SECTION 11. Entire Agreement. 14 SECTION 12. Governing Law. 14 SECTION 13. Waiver of Jury Trial Right. 14 SECTION 14. Counterparts. 14 SECTION 15. Rights of Holders. 14 Escrow Agreement 2014-2B Exhibit A Escrow Receipt Exhibit B Withdrawal Certificate Escrow Agreement 2014-2B ESCROW AND PAYING AGENT AGREEMENT (Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, B) dated as of ~~July 1~~August 11, ~~2023~~ 2014, (as amended, modified or supplemented ~~or otherwise modified and in effect~~ from time to time, this “~~Indenture~~Agreement”) among U.S. BANK NATIONAL ASSOCIATION, a national banking association, as Escrow Agent (in such capacity, together with its successors in such capacity, the “Escrow Agent”); CREDIT SUISSE SECURITIES (USA) LLC and M▇▇▇▇▇ S▇▇▇▇▇▇ & CO. LLC, ~~between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust~~ for themselves and on behalf of the several Underwriters of the Certificates referred to below (the “~~Issuer~~Underwriters” and together with their respective transferees and assigns as registered owners of the Certificates, the “Investors”~~), and~~ ) under the Underwriting Agreement referred to below; WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity except as otherwise expressly provided herein, but solely as ~~indenture~~ trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with ~~the Class A-2a Notes~~its successors in such capacity, the “~~Class A-2 Notes~~Pass Through Trustee”)) under the Pass Through Trust Agreement referred to below; and WILMINGTON TRUST, ~~5.28% Class A-3 Asset-backed Notes~~ NATIONAL ASSOCIATION, a national banking association, as paying agent hereunder (~~the “Class A-3 Notes”)~~in such capacity, ~~5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively~~ together with ~~the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes~~its successors in such capacity, the “~~Class A Notes~~Paying Agent”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Escrow and Paying Agent Agreement (United Airlines, Inc.)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 5 ARTICLE II. ORGANIZATION 5 SECTION 2.1. Name 5 SECTION 2.2. Office 5 SECTION 2.3. Purposes and Powers 6 SECTION 2.4. Appointment of Owner Trustee 7 SECTION 2.5. Initial Capital Contribution of Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 7 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 7 SECTION 2.7. Title to Trust Property 7 SECTION 2.8. Situs of Trust 8 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 8 SECTION 2.10. Covenants of the Certificateholder[s] 9 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 9 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 11 SECTION 3.1. Initial Ownership 11 SECTION 3.2. The Certificate[s] 11 SECTION 3.3. Authentication of Certificate 12 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate[s] 12 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 14 SECTION 3.6. Persons Deemed ~~Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral~~ Certificateholders 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 SECTION 3.7. Maintenance of Office or Agency ~~22 Section 3.3 Money~~ 14 SECTION 3.8. [Disposition in Whole But Not in Part 15 SECTION 3.9. ERISA Restrictions 18 SECTION 3.10. Appointment of Certificate Paying Agent 18 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 23 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 23 SECTION 4.2. Action by Certificateholder[s] with Respect to Certain Matters 24 SECTION 4.3. Restrictions on Certificateholder’s Power 24 SECTION 4.4. [Reserved] 24 SECTION 4.5. Action with Respect to Bankruptcy Action 24 SECTION 4.6. Covenants and Restrictions on Conduct of Business 25 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 27 SECTION 5.1. General Authority 27 SECTION 5.2. General Duties 27 SECTION 5.3. Action upon Instruction 28 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 29 SECTION 5.5. No Action Except under Specified Documents or Instructions 29 SECTION 5.6. Restrictions 29 SECTION 5.7. Covenants for ~~Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection~~ Reporting of ~~Trust Estate 24 Section 3.6 Opinions as~~ Repurchase Demands due to ~~Trust Estate 24 Section 3.7 Performance~~ Breaches of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by 30 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 30 SECTION 6.1. Acceptance of Trust and Duties 30 SECTION 6.2. Furnishing of Documents 32 SECTION 6.3. Representations and Warranties 32 SECTION 6.4. Reliance; Advice of Counsel 33 SECTION 6.5. Not Acting in Individual Capacity 34 SECTION 6.6. Owner Trustee Not Liable for Certificate[s] or Receivables 34 SECTION 6.7. Owner Trustee May Own Notes 34 SECTION 6.8. Payments from Owner Trust Estate 35 SECTION 6.9. Doing Business in Other Jurisdictions 35 SECTION 6.10. FATCA Information 35 SECTION 6.11. Financial Crimes Enforcement Network’s Customer Due Diligence 35 SECTION 6.12. Beneficial Ownership and Control of the ~~Issuer~~ Trust 36 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 36 SECTION 7.1. Owner Trustee’s Fees and Expenses 36 SECTION 7.2. Indemnification 37 SECTION 7.3. Payments to the ~~Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application~~ 37 SECTION 7.4. Non-recourse Obligations 37 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 37 SECTION 8.1. Termination of Trust ~~Money 34 Section 4.4 Repayment~~ Agreement 37 ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 39 SECTION 9.1. Eligibility Requirements for Owner Trustee 39 SECTION 9.2. Resignation or Removal of ~~Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events~~ Owner Trustee 39 SECTION 9.3. Successor Owner Trustee 40 SECTION 9.4. Merger or Consolidation of ~~Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture~~ Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 40 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands~~ 41 ARTICLE X. MISCELLANEOUS 42 SECTION 10.1. Supplements and Amendments 42 SECTION 10.2. No Legal Title to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Owner Trust Estate ~~59 Section 8.5 Opinion~~ in Certificateholder[s] 43 SECTION 10.3. Limitations on Rights of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Others 43 SECTION 10.4. Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 43 SECTION 10.5. Severability ~~70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14~~ 44 SECTION 10.6. Counterparts and ~~Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17~~ Consent to Do Business Electronically 44 SECTION 10.7. Assignments 44 SECTION 10.8. No ~~Petition 72 Section 11.18 Inspection 72 Section 11.19~~ Recourse 44 SECTION 10.9. Headings 45 SECTION 10.10. Force Majeure 45 SECTION 10.11. GOVERNING LAW 45 SECTION 10.12. Servicer 45 SECTION 10.13. Nonpetition Covenants 46 SECTION 10.14. [Third-Party ~~Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation~~ Beneficiary] 46 SECTION 10.15. Regulation AB 46 ARTICLE XI. APPLICATION OF TRUST FUNDS; CERTAIN DUTIES 47 SECTION 11.1. Establishment of ~~Liability~~ Trust Accounts 47 SECTION 11.2. Application of ~~the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX~~ Trust Funds 47 SECTION 11.3. Method of Payment 48 Exhibit A ~~Additional Representations and Warranties EXHIBIT A-1~~ Form of ~~Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT~~ Certificate Exhibit B Form of ~~Class B Note EXHIBIT~~ Certificate of Trust Exhibit C Form of ~~Class C Note EXHIBIT D Form~~ Notice of ~~Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~Repurchase Request This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~, ~~2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”)~~20 , between ~~CARMAX AUTO OWNER TRUST 2023-3~~AFS SENSUB CORP., a ~~Delaware statutory trust~~ Nevada corporation, as depositor (the “~~Issuer~~Seller”), and ~~WILMINGTON TRUST, NATIONAL ASSOCIATION~~[OWNER TRUSTEE], a ~~national banking association~~[entity type], ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of , 20 , between the ~~“Indenture Trustee”). Each party agrees as follows for~~ Seller and the ~~benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes~~ Owner Trustee (the “~~Class A-1 Notes~~Initial Trust Agreement”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Trust Agreement (Afs Sensub Corp.)

TABLE OF CONTENTS. ~~Article I~~ CERTAIN DEFINITIONS ~~AND INCORPORATION BY REFERENCE~~ 1 Section 1.1. Certain Definitions 1 ARTICLE 2 JAC MEMBERSHIP CONTRIBUTION 10 Section ~~1.1 Definitions 2~~ 2.1. JAC Initial Capital Contribution. 10 Section ~~1.2 Incorporation by Reference~~ 2.2. JAC Additional Capital Contribution. 10 Section 2.3. Amendment and Restatement of ~~Trust Indenture Act 2~~ Operating Agreement. 10 Section ~~1.3 Rules~~ 2.4. Issuance of ~~Construction 2 Article II THE NOTES 3~~ Units. 10 Section ~~2.1 Form 3~~ 2.5. [reserved] 10 Section ~~2.2 Execution, Authentication and Delivery 4~~ 2.6. The Closing. 10 Section ~~2.3 Temporary Notes 5~~ 2.7. Deliveries at the Closing. 10 Section ~~2.4 Tax Treatment 5~~ 2.8. Adjustments to Unit Ownership. 10 Section ~~2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation~~ 2.9. Additional Units Subject to Earnout 13 Section ~~2.10 Release~~ 2.10. Payment of ~~Collateral~~ JAC Obligations 13 Section 2.11. Payment of Existing Members Expenses. 13 ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY 13 Section 3.1. Organization and Qualification; Subsidiaries. 13 Section 3.2. Capitalization of the Group Companies. 14 Section ~~2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency~~ 3.3. Authority 15 Section ~~2.13 Definitive Notes~~ 3.4. [intentionally omitted] 15 Section ~~2.14 Authenticating Agents~~ 3.5. Consents and Approvals; No Violations 15 Section ~~2.15 Retained Notes 16 Article III COVENANTS~~ 3.6. Material Contracts. 15 Section 3.7. Absence of Changes 17 Section 3.8. Litigation. 17 Section 3.9. Compliance with Applicable Law 17 Section 3.10. Employee Benefit Plans. 17 Section 3.11. Environmental Matters. 18 Section 3.12. Intellectual Property. 19 Section 3.13. Labor Matters. 20 Section ~~3.1 Payment~~ 3.14. Insurance. 20 Section 3.15. Tax Matters. 20 Section 3.16. Brokers 21 Section 3.17. Real and Personal Property. 21 Section 3.18. Transactions with Related Parties. 22 Section 3.19. Absence of ~~Principal~~ Certain Payments. 22 Section 3.20. Customers and Suppliers. 22 Section 3.21. Company Information. 22 Section 3.22. State Takeover Statutes. 23 ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF EXISTING MEMBERS 23 Section 4.1. Authority. 23 Section 4.2. Consents and Approval; No Violations. 23 Section 4.3. Title to the Membership Interest; ~~Determination~~ Ownership of ~~SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence~~ Existing Member. 23 Section ~~3.5 Protection of Trust Estate~~ 4.4. Litigation. 24 Section ~~3.6 Opinions as to Trust Estate~~ 4.5. Brokers. 24 ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF JAC 24 Section ~~3.7 Performance of Obligations~~5.1. Organization. 24 Section 5.2. Authority. 24 Section 5.3. Consents and Approvals; ~~Servicing of Receivables~~ No Violations. 25 Section ~~3.8 Negative Covenants 27~~ 5.4. Absence of Changes. 25 Section ~~3.9 Annual Statement as to Compliance 28~~ 5.5. Brokers. 25 Section ~~3.10 Issuer May Consolidate, etc., Only on Certain Terms 28~~ 5.6. Transactions with Related Parties. 25 Section ~~3.11 Successor or Transferee 30~~ 5.7. JAC Information. 25 Section ~~3.12 No Other Business 30~~ 5.8. Trust Account. 26 Section ~~3.13 No Borrowing 30~~ 5.9. Listing. 26 Section ~~3.14 Servicer’s Obligations 30~~ 5.10. [Reserved] 26 Section ~~3.15 Guarantees, Loans, Advances~~ 5.11. JAC SEC Documents and ~~Other Liabilities 30~~ Financial Statements 26 Section ~~3.16 Capital Expenditures 31~~ 5.12. Litigation. 26 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement 5.13. Absence of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”)Payments. Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.27

Appears in 1 contract

Sources: Membership Interest Purchase Agreement (Jensyn Acquisition Corp.)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS AND INCORPORATION BY REFERENCE 2 1 Section ~~1.1~~ 1.01 Definitions 2 1 Section ~~1.2~~ 1.02 Other Definitions 5 Section 1.03 Incorporation by Reference of Trust Indenture Act 2 5 Section ~~1.3~~ 1.04 Rules of Construction 6 ARTICLE 2 ~~Article II~~ THE ~~NOTES 3~~ SECURITIES 6 Section ~~2.1~~ 2.01 Form 3 and Dating 6 Section ~~2.2 Execution,~~ 2.02 Execution and Authentication 6 Section 2.03 Amount Unlimited; Issuable in Series 8 Section 2.04 Denomination and ~~Delivery 4~~ Date of Securities; Payments of Interest 11 Section ~~2.3 Temporary Notes 5~~ 2.05 Registrar and Paying Agent; Agents Generally 11 Section ~~2.4 Tax Treatment 5~~ 2.06 Paying Agent to Hold Money in Trust 12 Section ~~2.5 Registration; Registration of~~ 2.07 Transfer and Exchange 6 12 Section ~~2.6 Mutilated, Destroyed, Lost or Stolen Notes 7~~ 2.08 Replacement Securities 15 Section ~~2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13~~ 2.09 Outstanding Securities 16 Section 2.10 ~~Release of Collateral 14~~ Temporary Securities 17 Section 2.11 ~~Book-Entry Notes 14~~ Cancellation 17 Section 2.12 ~~Notices to Clearing Agency 15~~ CUSIP Numbers 17 Section 2.13 ~~Definitive Notes 15~~ Defaulted Interest 18 Section 2.14 ~~Authenticating Agents 15~~ Series May Include Tranches 18 ARTICLE 3 REDEMPTION 18 Section ~~2.15 Retained Notes 16~~ 3.01 Applicability of Article ~~III COVENANTS 20~~ 18 Section ~~3.1~~ 3.02 Notice of Redemption; Partial Redemptions 18 Section 3.03 Payment of ~~Principal and Interest; Determination~~ Securities Called for Redemption 21 ARTICLE 4 COVENANTS 22 Section 4.01 Payment of ~~SOFR; Benchmark Replacement 20~~ Securities 22 Section ~~3.2~~ 4.02 Maintenance of Office or Agency 22 Section ~~3.3 Money for Payments To Be Held in Trust 22 Section 3.4~~ 4.03 Corporate Existence 23 Section ~~3.5 Protection of Trust Estate~~ 4.04 Certificate to Trustee 23 Section 4.05 Reports by the Company 23 ARTICLE 5 SUCCESSOR CORPORATION 24 Section ~~3.6 Opinions as to Trust Estate~~ 5.01 Merger, Consolidation or Sale of Assets 24 Section ~~3.7 Performance of Obligations; Servicing of Receivables~~ 5.02 Successor Substituted 24 ARTICLE 6 DEFAULT AND REMEDIES 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of 6.01 Events of Default 31 25 Section ~~3.19 Removal~~ 6.02 Acceleration 25 Section 6.03 Other Remedies 26 Section 6.04 Waiver of ~~Administrator 31~~ Past Defaults 26 Section ~~3.20 Further Instruments and Acts 31~~ 6.05 Control by Majority 26 Section ~~3.21 Sales Finance Company Licenses 31~~ 6.06 Limitation on Suits 27 Section ~~3.22 Representations and Warranties~~ 6.07 Rights of Holders to Receive Payment 27 Section 6.08 Collection Suit by ~~the Issuer to the Indenture~~ Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32~~ 27 Section ~~4.1 Satisfaction and Discharge~~ 6.09 Trustee May File Proofs of ~~Indenture 32~~ Claim 28 Section ~~4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3~~ 6.10 Application of ~~Trust Money 34~~ Proceeds 28 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 6.11 Restoration of Rights and Remedies 43 29 Section ~~5.9~~ 6.12 Undertaking for Costs 29 Section 6.13 Rights and Remedies Cumulative 43 29 Section ~~5.10~~ 6.14 Delay or Omission ~~Not a~~ not Waiver 43 29 ARTICLE 7 TRUSTEE 30 Section ~~5.11 Control by Noteholders of the Controlling Class 43~~ 7.01 General 30 Section ~~5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of~~ 7.02 Certain ~~Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2~~ Rights of ~~Indenture~~ Trustee 48 30 Section ~~6.3~~ 7.03 Individual Rights of ~~Indenture~~ Trustee 49 33 Section ~~6.4 Indenture~~ 7.04 Trustee’s Disclaimer 49 33 Section ~~6.5~~ 7.05 Notice of ~~Defaults 49~~ Default 33 Section ~~6.6~~ 7.06 Reports by ~~Indenture~~ Trustee to Holders 49 34 Section ~~6.7~~ 7.07 Compensation and Indemnity 50 34 Section ~~6.8~~ 7.08 Replacement of ~~Indenture~~ Trustee 50 35 Section ~~6.9~~ 7.09 Acceptance of Appointment by Successor ~~Indenture~~ 36 Section 7.10 Successor Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such M▇▇▇▇▇, ~~accepts the trusts under this~~ Etc. 37 Section 7.11 Eligibility 37 Section 7.12 Money Held in Trust 37 ARTICLE 8 SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS 37 Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance 37 Section 8.02 Satisfaction and Discharge of Indenture 37 Section 8.03 Application by Trustee of Funds Deposited for Payment of Securities 38 Section 8.04 Repayment of Moneys Held by Paying Agent 38 Section 8.05 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years 38 Section 8.06 Defeasance and Discharge of Indenture 38 Section 8.07 Defeasance of Certain Obligations 39 Section 8.08 Conditions to Legal or Covenant Defeasance 39 ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS 40 Section 9.01 Without Consent of Holders 40 Section 9.02 With Consent of Holders 41 Section 9.03 Revocation and Effect of Consent 42 Section 9.04 Notation on or Exchange of Securities 43 Section 9.05 Trustee to Sign Amendments, Etc. 43 Section 9.06 Conformity with Trust Indenture Act 43 ARTICLE 10 MISCELLANEOUS 43 Section 10.01 Trust Indenture Act of 1939 43 Section 10.02 Notices 43 Section 10.03 Certificate and Opinion as to Conditions Precedent 45 Section 10.04 Statements Required in ~~accordance with the provisions~~ Certificate or Opinion 45 Section 10.05 Evidence of ~~this~~ Ownership 45 Section 10.06 Rules by Trustee, Paying Agent or Registrar 46 Section 10.07 Payment Date Other Than a Business Day 46 Section 10.08 Governing Law; Waiver of Jury Trial 46 Section 10.09 No Adverse Interpretation of Other Agreements 46 Section 10.10 Successors 46 Section 10.11 Duplicate Originals 46 Section 10.12 Separability 47 Section 10.13 Table of Contents, Headings, Etc. 47 Section 10.14 Incorporators, Stockholders, Officers and Directors of Company Exempt From Individual Liability 47 Section 10.15 Judgment Currency 47 Section 10.16 Force Majeure 48 Section 10.17 U.S.A. Patriot Act 48 TIA Section Indenture ~~and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.~~Section 310 (a) 7.11 (b) 7.08; 7.11 (c) N.A. 311 (a) 7.03 (b) 7.03 (c) N.A. 312 (a) N.A. (b) 10.02 (c) 10.02 313 (a) 7.06 (b) 7.06 (c) 7.06 (d) N.A. 314 (a) 4.05; 4.04 (b) N.A. (c) N.A. (d) N.A. (e) N.A. (f) N.A. 315 (a) N.A. (b) N.A. (c) N.A. (d) N.A. (e) 1 N.A. 316 (a) (last sentence) N.A.

Appears in 1 contract

Sources: Indenture (Tapestry, Inc.)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I ~~DEFINITIONS~~ PURCHASE AND ~~INCORPORATION BY REFERENCE 2~~ SALE 1 Section 1.1 ~~Definitions 2~~ Purchase and Sale 1 Section 1.2 ~~Incorporation by Reference of Trust Indenture Act 2~~ Transaction Consideration 7 Section 1.3 ~~Rules~~ Closing Date 7 Section 1.4 Closing Date Payments 7 Section 1.5 Earnout Consideration 9 Section 1.6 Net Working Capital Adjustment 10 Section 1.7 Allocation of ~~Construction 2 Article~~ Transaction Consideration 11 ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE ~~NOTES 3~~ COMPANIES AND THE ACTIVE EQUITY HOLDERS 12 Section 2.1 ~~Form 3~~ Organization and Related Matters 12 Section 2.2 ~~Execution, Authentication~~ Authorization and ~~Delivery 4~~ Enforceability 12 Section 2.3 ~~Temporary Notes 5~~ Books and Records 13 Section 2.4 ~~Tax Treatment 5~~ Capitalization 13 Section 2.5 ~~Registration~~Conflicts; ~~Registration~~ Consents of ~~Transfer and Exchange 6~~ Third Parties 13 Section 2.6 ~~Mutilated, Destroyed, Lost or Stolen Notes 7~~ Financial Statements; Occupancy Reports 14 Section 2.7 ~~Persons Deemed Owners 8~~ No Undisclosed Liabilities 14 Section 2.8 ~~Payments 8~~ Absence of Certain Developments 14 Section 2.9 ~~Cancellation 13~~ Taxes 17 Section 2.10 ~~Release of Collateral 14~~ Real Property 19 Section 2.11 ~~Book-Entry Notes 14~~ Tangible Personal Property; Title; Sufficiency of Assets 22 Section 2.12 ~~Notices to Clearing Agency 15~~ Intellectual Property 22 Section 2.13 ~~Definitive Notes 15~~ Contracts 23 Section 2.14 ~~Authenticating Agents 15~~ Employee Benefits 23 Section 2.15 ~~Retained Notes 16 Article III COVENANTS 20~~ Labor 26 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 2.16 Litigation 28 Section ~~3.10 Issuer May Consolidate, etc., Only on Certain Terms~~ 2.17 Compliance with Laws; Permits 28 Section ~~3.11 Successor or Transferee~~ 2.18 Environmental Matters 30 Section ~~3.12 No Other Business 30~~ 2.19 Insurance 31 Section ~~3.13 No Borrowing 30~~ 2.20 Receivables; Payables 31 Section ~~3.14 Servicer’s Obligations 30~~ 2.21 Customers and Suppliers 31 Section ~~3.15 Guarantees, Loans, Advances~~ 2.22 Related Party Transactions 32 Section 2.23 Brokers Fees and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE Arrangements 32 Section ~~4.1 Satisfaction and Discharge~~ 2.24 Absence of ~~Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes~~ Certain Business Practices 33 Section ~~4.3 Application~~ 2.25 Business Continuity 33 Section 2.26 Bulk Sales; Solvency 33 Section 2.27 Bank Accounts; Powers of ~~Trust Money 34~~ Attorney 33 Section ~~4.4 Repayment~~ 2.28 Activities of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such & ▇▇▇▇▇▇▇▇, ~~accepts~~ P.A 33 Section 2.29 No Other Representations, Disclaimer 34 ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER 34 Section 3.1 Organization 34 Section 3.2 Authorization and Enforceability 34 Section 3.3 Conflicts; Consent of Third Parties 34 Section 3.4 Brokers Fees 35 Section 3.5 No Proceedings 35 Section 3.6 Sufficient Transaction Consideration 35 Section 3.7 No Other Representations 35 ARTICLE IV COVENANTS 35 Section 4.1 Commercially Reasonable Efforts; Notices and Consents 35 Section 4.2 Access to Information; Financial Statements 36 Section 4.3 Operation of Business 37 Section 4.4 Further Assurances; Litigation Support 39 Section 4.5 Names and Logos 40 Section 4.6 Mail; Payments; Receivables; Bank Accounts 40 Section 4.7 Public Announcements; Confidentiality 41 Section 4.8 Tax Covenants 41 Section 4.9 Exclusive Dealing 42 Section 4.10 Non-Competition; Non-Solicitation 42 Section 4.11 Employees and Employee Benefits 45 Section 4.12 Tangible Property; Payment of Excluded Liabilities 46 Section 4.13 Employee Restrictive Covenant Agreements 46 Section 4.14 Novation 47 Section 4.15 Title: Survey 47 ARTICLE V CLOSING CONDITIONS 49 Section 5.1 Conditions to Obligation of Purchaser 49 Section 5.2 Conditions to Obligation of Seller Parties 52 ARTICLE VI INDEMNIFICATION 53 Section 6.1 Indemnity Obligations of Seller Parties 53 Section 6.2 Indemnity Obligations of Purchaser 54 Section 6.3 Indemnification Procedures 54 Section 6.4 Expiration of Representations and Warranties 55 Section 6.5 Certain Limitations 56 Section 6.6 Indemnification Payments to Purchaser Indemnitees; Right of Set-Off 56 Section 6.7 Treatment of Indemnification Payments 57 Section 6.8 Right to Indemnification Not Affected by Knowledge or Waiver 57 Section 6.9 Exclusive Remedies 57 Section 6.10 Insurance 57 Section 6.11 Title Policies and Other Insurance 57 Section 6.12 Damages Limitation 58 ARTICLE VII TERMINATION 58 Section 7.1 Termination of Agreement 58 Section 7.2 Effect of Termination 59 ARTICLE VIII MISCELLANEOUS 59 Section 8.1 Certain Definitions 59 Section 8.2 Expenses 66 Section 8.3 Governing Law; Jurisdiction; Venue 66 Section 8.4 Entire Agreement; Amendments and Waivers 67 Section 8.5 Section Headings 67 Section 8.6 Notices 67 Section 8.7 Severability 68 Section 8.8 Binding Effect; Assignment; Third-Party Beneficiaries 68 Section 8.9 Counterparts 69 Section 8.10 Remedies Cumulative 69 Section 8.11 Exhibits and Schedules 69 Section 8.12 Interpretation 69 Section 8.13 Arm’s Length Negotiations 70 Section 8.14 Construction 70 Section 8.15 Specific Performance 70 Section 8.16 Waiver of Jury Trial 70 Section 8.17 Time of Essence 70 Section 8.18 Appointment of the ~~trusts under~~ Representative 70 SCHEDULES: Schedule 1: Companies and Company Equityholders Schedule 2: Closing Date Payment Allocation EXHIBITS: Exhibit A: Forms of Bills of Sale, Assignment and Assumption Agreements and Warranty Deeds Exhibit B: Allocation Schedule Exhibit C: Form of Loan Payoff Letters Exhibit D: Form of Consulting Agreement Exhibit E: Forms of Novation Agreement Exhibit F: Form of Management Agreement THIS ASSET PURCHASE AGREEMENT (this ~~Indenture~~ “Agreement”), dated as of January 25, 2015, is by and among LCS Corrections Services, Inc., a Louisiana corporation (“LCS”), LCS-Basile, LLC, a Nevada limited liability company (“Basile”), LCS-▇▇▇▇▇▇, LLC, a Nevada limited liability company (“▇▇▇▇▇▇”), LCS-▇▇▇▇▇▇▇▇, LLC, a Nevada limited liability company (“▇▇▇▇▇▇▇▇”), LCS-▇▇▇▇▇▇▇, LLC, a Nevada limited liability company (“▇▇▇▇▇▇▇”), LCS-Nueces, LLC, a Nevada limited liability company (“Nueces”), LCS-Pine Prairie, LLC, a Nevada limited liability company (“Pine Prairie”), LCS-Tensas, LLC, a Nevada limited liability company (“Tensas”), Perry Detention Services, LLC, a Nevada limited liability company (“Perry”) (each of LCS, Basile, Brooks, Caldwell, Hidalgo, Nueces, Pine Prairie, Tensas and Perry, a “Company” and, collectively, the “Companies”), the equity holders of the Companies set forth in Schedule 1 hereto (each, a “Company Equityholder” and collectively, the “Company Equityholders”), the GEO Group, Inc., a Florida corporation (“GEO”), and Correctional Properties, LLC, a Delaware limited liability company (together with GEO, “Purchaser”). The Companies and the Company Equityholders are sometimes referred to herein collectively as the “Seller Parties” and each individually as a “Seller Party.” Basile, Brooks, Caldwell, Hidalgo, Nueces, Pine Prairie, Tensas and Perry are sometimes herein referred to as the “Facility Entities.” ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ are sometimes herein referred to as the “Active Equityholders.” ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall act as the representative of each Seller Party in accordance with the ~~provisions~~ terms of ~~this Indenture~~ Section 8.18 and ~~agrees~~ are herein referred to ~~perform its duties required in this Indenture~~ as the “Seller Parties’ Representative.” The Seller Parties and Purchaser are sometimes herein referred to collectively as the ~~best of its ability to the end that the interests of the Holders of the Notes may be adequately~~ “Parties” and ~~effectively protected~~each individually as a “Party.”

Appears in 1 contract

Sources: Asset Purchase Agreement (Geo Group Inc)

TABLE OF CONTENTS. SECTION 1.01. Purpose of this Agreement 4 SECTION 1.02. General Undertakings 4 SECTION 3.01. Number of directors 10 SECTION 3.02. Nomination and Appointment of directors 10 SECTION 3.03. Election of the Company Board 10 SECTION 3.04. Removal and vacancies of directors 11 SECTION 3.05. Board meetings 11 SECTION 3.06. Charter Documents 12 SECTION 4.01. Company shareholders’ meetings 12 SECTION 4.02. Ownership Matters 12 SECTION 4.03. Key Operational Matters 15 SECTION 4.04. Other Operational Matters 15 SECTION 4.05. Order of Alternating Casting Votes 16 SECTION 4.06. Shares directly held by EPS, EPS Participations, Rayvax and BRC or other Holders 16 SECTION 5.01. Transfer restrictions relating to Class A Certificates 17 SECTION 5.02. Transfer restrictions relating to Class B Certificates 18 SECTION 5.03. Procedures Relating to the Transfer of Certificates 20 SECTION 5.04. Sanction in case of violation of Article ~~I DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ V 20 SECTION 5.05. Free Transfers 20 SECTION 5.06. Certificate Transfers 21 SECTION 5.07. Stop Transfer. Legend 21 SECTION 5.08. Restrictions on Acquisition of ~~Trust Indenture Act 2 Section 1.3 Rules~~ AmBev shares 21 SECTION 5.09. Call Option 22 SECTION 5.10. General Undertaking 23 SECTION 6.01. Pledge of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ certificated Shares and/or corresponding Certificates 23 SECTION 6.02. Formalities and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration~~ other rules 26 SECTION 7.01. De-certifications in connection with prepayment or reimbursement of ~~Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release~~ Financing Arrangement(s) 26 SECTION 7.02. De-certification of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment Shares in case of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events Event of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.27

Appears in 1 contract

Sources: Shareholder Agreements (BRC S.a.R.L.)

TABLE OF CONTENTS. ~~Article I~~ Page ARTICLE I. DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2~~ 1 Section 1.1 Definitions ~~2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES 3~~ 1 ARTICLE II. BASIS OF REINSURANCE AND BUSINESS REINSURED 16 Section 2.1 ~~Form 3~~ Reinsurance 16 Section 2.2 ~~Execution, Authentication and Delivery 4~~ Separate Accounts 17 Section 2.3 ~~Temporary Notes 5~~ Existing Reinsurance 17 Section 2.4 ~~Tax Treatment 5~~ Non-Guaranteed Elements 20 Section 2.5 ~~Registration; Registration of Transfer~~ Reserves and ~~Exchange 6~~ Liabilities Reporting 21 Section 2.6 ~~Mutilated, Destroyed, Lost or Stolen Notes 7~~ Insurance Contract Changes 21 Section 2.7 ~~Persons Deemed Owners 8~~ Liability 22 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Internal Replacements 22 ARTICLE III. TRANSFER OF ASSETS; PAYMENTS; SETTLEMENTS; ADMINISTRATION AND ACCOUNTING 22 Section 3.1 ~~Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20~~ Payments by the Ceding Company 22 Section 3.2 ~~Maintenance of Office or Agency 22~~ Payments by the Reinsurer 25 Section 3.3 ~~Money for Payments To Be Held in Trust 22~~ Defenses 25 Section 3.4 ~~Existence 23~~ Guaranty Association Assessments and Premium Taxes 25 Section 3.5 ~~Protection of Trust Estate 24~~ Delayed Payments 25 Section 3.6 ~~Opinions as to Trust Estate 24~~ Offset and Recoupment Rights 25 Section 3.7 ~~Performance of Obligations; Servicing of Receivables 25~~ Administration and Accounting 26 Section 3.8 ~~Negative Covenants~~ Termination of Administrative Services Agreement 26 Section 3.9 Certain Reports 27 Section ~~3.9 Annual Statement as to Compliance 28 Section~~ 3.10 ~~Issuer May Consolidate, etc., Only on Certain Terms~~ Books and Records 28 Section 3.11 ~~Successor or Transferee~~ Bank Accounts 28 Section 3.12 Novation of Specified BOLI/COLI Policies; Replacement of Group Covered Insurance Policies 29 ARTICLE IV. LICENSES; RESERVE CREDIT; SECURITY 30 Section ~~3.12 No Other Business~~ 4.1 Licenses; Reserve Credit 30 Section ~~3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures~~ 4.2 Security 31 Section ~~3.17 Restricted Payments~~ 4.3 Trust Account and Settlements 31 Section ~~3.18~~ 4.4 Eligible Assets 31 Section 4.5 Deposit or Transfer of Trust Assets 32 Section 4.6 Modifications Upon Occurrence of a Triggering Event 32 Section 4.7 Withdrawals of Assets from the Trust Account or Draws on Qualifying LOCs 33 Section 4.8 Adjustments of Security and Withdrawals 35 ARTICLE V. OVERSIGHTS; COOPERATION; REGULATORY MATTERS 37 Section 5.1 Oversights 37 Section 5.2 Cooperation 38 41446562.7 Section 5.3 Regulatory Matters 38 ARTICLE VI. DAC TAX 38 Section 6.1 Election 38 Section 6.2 Definitions 38 Section 6.3 Exchange of Information 38 Section 6.4 Effectiveness 39 Section 6.5 United States Tax Status Representation 39 Section 6.6 Breach of Representation 39 Section 6.7 DAC Tax Reimbursement 39 ARTICLE VII. INSOLVENCY 40 Section 7.1 Insolvency of the Ceding Company 40 ARTICLE VIII. DURATION; RECAPTURE 41 Section 8.1 Duration 41 Section 8.2 Survival 41 Section 8.3 Recapture; Termination 41 Section 8.4 Recapture Payments 42 ARTICLE IX. INDEMNIFICATION; DISCLAIMER 42 Section 9.1 Reinsurer’s Obligation to Indemnify 42 Section 9.2 Ceding Company’s Obligation to Indemnify 42 Section 9.3 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of MaturityClaim; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies Defense 43 Section ~~5.9 Rights and Remedies Cumulative 43~~ 9.4 No Duplication; Exclusive Remedy 44 Section ~~5.10 Delay or Omission Not a Waiver 43~~ 9.5 Mitigation 44 Section ~~5.11 Control~~ 9.6 Recovery by ~~Noteholders of the Controlling Class 43~~ Indemnified Party 44 Section ~~5.12~~ 9.7 Waiver of ~~Past Defaults 44~~ Duty of Utmost Good Faith 45 ARTICLE X. MISCELLANEOUS 45 Section ~~5.13 Undertaking for Costs 44~~ 10.1 Notices 45 Section ~~5.14~~ 10.2 Entire Agreement; Amendments 46 Section 10.3 Governing Law and Jurisdiction 46 Section 10.4 No Third Party Beneficiaries 47 Section 10.5 Expenses 47 Section 10.6 Counterparts 47 Section 10.7 Severability 47 Section 10.8 Waiver of ~~Stay or Extension Laws 44~~ Jury Trial; Multiplied and Punitive Damages. 47 Section ~~5.15 Action on Notes 45 Section 5.16 Performance and Enforcement~~ 10.9 Treatment of ~~Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee~~ Confidential Information. 48 Section ~~6.3 Individual Rights of Indenture Trustee~~ 10.10 Assignment 48 Section 10.11 Waivers 48 Section 10.12 Specific Performance 49 Section ~~6.4 Indenture Trustee’s Disclaimer~~ 10.13 Interpretation 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of 41446562.7 SCHEDULE 1.1(A) Covered Insurance Policies SCHEDULE 1.1(B) Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.Guidelines

Appears in 1 contract

Sources: Reinsurance Agreement (COLI VUL-2 Series Account of Great-West Life & Annuity Insurance Co of New York)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE 2~~ Definitions And Other Provisions Of General Application 1 Section ~~1.1~~ 1.01. Definitions 2 1 Section ~~1.2~~ 1.02. Other Definitions 23 Section 1.03. Rules of Construction 23 Section 1.04. Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate TIA 24 Section ~~3.6 Opinions as to Trust Estate~~ 1.05. Conflict with TIA 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 1.06. Compliance Certificates and ~~Opinions, etc 65~~ Opinions 24 Section ~~11.2~~ 1.07. Form of Documents Delivered to ~~Indenture~~ Trustee 66 25 Section ~~11.3~~ 1.08. Acts of ~~Noteholders 67~~ Noteholders; Record Dates 25 Section ~~11.4~~ 1.09. Notices, ~~etc~~Etc., to ~~Indenture Trustee, Issuer~~ Trustee and ~~Rating Agencies 68~~ Company 27 Section ~~11.5~~ 1.10. Notices to ~~Noteholders~~Holders; ~~Waiver 69~~ Waivers 27 Section ~~11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8~~ 1.11. Effect of Headings and Table of Contents 70 27 Section ~~11.9~~ 1.12. Successors and Assigns 27 Section 1.13. Severability Clause 27 Section 1.14. Benefits of Indenture 28 Section 1.15. Governing Law 28 Section 1.16. Legal Holidays 28 Section 1.17. No Personal Liability of Directors, Officers, Employees, Incorporators and Stockholders 28 Section 1.18. Exhibits and Schedules 28 Section 1.19. Counterparts 28 ARTICLE 2 Note Forms 28 Section 2.01. Forms Generally 28 Section 2.02. Form of Trustee’s Certificate of Authentication 29 ARTICLE 3 The Notes 29 Section 3.01. Title and Terms 29 Section 3.02. Denominations 30 Section 3.03. Execution, Authentication and Delivery and Dating 30 Section 3.04. Temporary Notes 31 Section 3.05. Registration, Registration of Transfer and Exchange 31 Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes 31 Section 3.07. Payment of Interest Rights Preserved 32 Section 3.08. Persons Deemed Owners 33 Section 3.09. Cancellation 33 Section 3.10. Computation of Interest 33 Section 3.11. [Reserved] 33 Section 3.12. CUSIP Numbers 33 Section 3.13. Book-entry Provisions for Global Notes 33 ARTICLE 4 Covenants 34 Section 4.01. Payment of Principal, Premium and Interest 34 Section 4.02. Maintenance of Office or Agency 34 Section 4.03. Money for Payments to Be Held in Trust 35 Section 4.04. SEC Reports 35 Section 4.05. Certificates to Trustee 36 Section 4.06. Limitation on Indebtedness 36 Section 4.07. Limitation on Restricted Payments 40 Section 4.08. Limitation on Dividend and other Payment Restrictions Affecting Restricted Subsidiaries and Joint Ventures 44 Section 4.09. Limitation on Sales of Assets 47 Section 4.10. Limitation on Affiliate Transactions 49 Section 4.11. Limitation on Liens 50 Section 4.12. [Reserved.] 51 Section 4.13. [Reserved.] 51 Section 4.14. Repurchase of Notes upon a Change in Control 51 Section 4.15. Limitation on Sale and Leaseback Transactions 51 Section 4.16. Limitation on Line of Business 52 Section 4.17. Limitation on Accounts Receivable Facilities 52 Section 4.18. Limited Applicability of Covenants when Notes are Rated Investment-Grade 52 Section 4.19. Existence 52 Section 4.20. Payment of Taxes and Other Claims 52 Section 4.21. Maintenance of Properties and insurance 52 Section 4.22. Limitation on Issuance of Guarantees by Restricted Subsidiaries 52 Section 4.23. Payments for Consents 53 ARTICLE 5 Consolidation, Merger or Sale of Assets 53 Section 5.01. Consolidation, Merger or Sale of Assets by the Company 53 Section 5.02. Successor Company Substituted 54 Section 5.03. Consolidation, Merger or Sale of Assets by a Subsidiary Guarantor 55 Section 5.04. Opinion of Counsel to Trustee 55 ARTICLE 6 Remedies 55 Section 6.01. Events of Default 55 Section 6.02. Acceleration 56 Section 6.03. Other Remedies 56 Section 6.04. Waiver of Past Defaults 57 Section 6.05. Control by Majority 57 Section 6.06. Limitation on Suits 57 Section 6.07. Rights of Holders to Receive Payment 57 Section 6.08. Collection Suit by Trustee 57 Section 6.09. Trustee May File Proofs of Claim 58 Section 6.10. Priorities 58 Section 6.11. Undertaking for Costs 58 Section 6.12. Restoration of Rights and Remedies 58 Section 6.13. Rights and Remedies Cumulative 58 Section 6.14. Waiver of Stay, Extension or Usury Laws 59 ARTICLE 7 The Trustee 59 Section 7.01. Certain Duties and Responsibilities 59 Section 7.02. Notice of Defaults 60 Section 7.03. Certain Rights of Trustee 60 Section 7.04. Not Responsible for Recitals or Issuance of Notes 61 Section 7.05. Trustee’s Disclaimer 61 Section 7.06. May Hold Notes 61 Section 7.07. Money Held in Trust 61 Section 7.08. Compensation and Reimbursement 61 Section 7.09. Conflicting Interests 62 Section 7.10. Corporate Trustee Required; Eligibility 62 Section 7.11. Resignation and Removal; Appointment of Successor 62 Section 7.12. Acceptance of Appointment by Successor 63 Section 7.13. Merger, Conversion, Consolidation or Succession to Business 63 Section 7.14. Preferential Collection of Claims Against the Company 64 Section 7.15. Appointment of Authenticating Agent 64 ARTICLE 8 Holders’ List and Reports by Trustee and the Company 64 Section 8.01. The Company to Furnish Trustee Names and Addresses of Holders; Stock Exchange Listing 64 Section 8.02. Preservation of Information; Communications to Holders 64 Section 8.03. Reports by Trustee 65 ARTICLE 9 Amendment, Supplement or Waiver 65 Section 9.01. Without Consent of the Holders 65 Section 9.02. With Consent of Holders 65 Section 9.03. Execution of Amendments, Supplements or Waivers 66 Section 9.04. Revocation and Effect of Consents 67 Section 9.05. Conformity with TIA 67 Section 9.06. Notation on or Exchange of Notes 67 ARTICLE 10 Redemption of Notes 67 Section 10.01. Right of Redemption 67 Section 10.02. Applicability of Article 68 Section 10.03. Election to Redeem; Notice to Trustee 68 Section 10.04. Selection by Trustee of Notes to Be Redeemed 68 Section 10.05. Notice of Redemption 69 Section 10.06. Deposit of Redemption Price 69 Section 10.07. Notes Payable on Redemption Date 69 Section 10.08. Notes Redeemed in Part 70 ARTICLE 11 Satisfaction and Discharge 70 Section ~~11.10 Severability 70 Section 11.11 Benefits~~ 11.01. Satisfaction and Discharge of Indenture 70 Section ~~11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts~~ 11.02. Application of Trust Money 71 ARTICLE 12 Defeasance and ~~Electronic Signature~~ Covenant Defeasance 71 Section ~~11.15 Recording~~ 12.01. Option of ~~Indenture~~ the Company to Effect Defeasance or Covenant Defeasance 71 Section ~~11.16 Trust Obligation~~ 12.02. Legal Defeasance and Discharge 71 Section ~~11.17 No Petition~~ 12.03. Covenant Defeasance 72 Section ~~11.18 Inspection~~ 12.04. Conditions to Legal or Covenant Defeasance 72 Section ~~11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse~~ 12.05. Deposited Money and Government Securities to ~~CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification~~ Be Held in Trust; Other Miscellaneous Provisions 73 Section ~~11.22 Limitation of Liability of the Owner Trustee~~ 12.06. Repayment to Company 73 Section ~~11.23 PATRIOT Act 73~~ 12.07. Reinstatement 74 ARTICLE 13 Subsidiary Guarantees 74 Section ~~11.24 Beneficial Ownership 73 APPENDIX~~ 13.01. The Guarantees 74 Section 13.02. Guarantee Unconditional 74 Section 13.03. Discharge; Reinstatement 75 Section 13.04. Waiver by the Subsidiary Guarantors 75 Section 13.05. Subrogation and Contribution 75 Section 13.06. Stay of Acceleration 75 Section 13.07. Limits of Guarantees 75 Section 13.08. Execution and Delivery of Note Guarantee 75 EXHIBIT A ~~Additional Representations and Warranties EXHIBIT A-1~~ – Form of ~~Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4~~ Note EXHIBIT B – Form of ~~Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter~~ Supplemental Indenture INDENTURE, dated as of ~~July 1, 2023~~ [ ] (as amended, supplemented or otherwise modified ~~and in effect~~ from time to time, ~~this~~ the “Indenture”), ~~between CARMAX AUTO OWNER TRUST 2023-3~~among LYONDELL CHEMICAL COMPANY, a Delaware ~~statutory trust~~ corporation (as further defined below, the “Company”), the Subsidiary Guarantors party hereto and THE BANK OF NEW YORK, a New York banking corporation, as trustee (the “~~Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture~~ Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Indenture (Lyondell Houston Refinery Inc.)

TABLE OF CONTENTS. ~~Article I DEFINITIONS AND INCORPORATION BY REFERENCE~~ Escrow Agent. 2 Section ~~1.1 Definitions~~ 1.01. Appointment of Escrow Agent. 2 Section ~~1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES~~ 1.02. Instruction; Etc. 3 Section ~~2.1 Form 3 Section 2.2 Execution, Authentication and Delivery~~ 1.03. Initial Escrow Amount; Issuance of Escrow Receipts. 4 Section ~~2.3 Temporary Notes 5~~ 1.04. Payments to Receiptholders. 4 Section ~~2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6~~ 1.05. Mutilated, Destroyed, Lost or Stolen ~~Notes~~ Escrow Receipt. 5 Section 1.06. Additional Escrow Amounts. 5 Section 1.07. Resignation or Removal of Escrow Agent. 5 Section 1.08. Persons Deemed Owners. 6 Section 1.09. Further Assurances. 6 SECTION 2. Paying Agent. 6 Section 2.01. Appointment of Paying Agent. 6 Section 2.02. Establishment of Paying Agent Account. 7 Section ~~2.7 Persons Deemed Owners~~ 2.03. Payments from Paying Agent Account. 7 Section 2.04. Withholding Taxes. 8 Section ~~2.8 Payments~~ 2.05. Resignation or Removal of Paying Agent. 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 2.06. Notice of ~~Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22~~ Final Withdrawal. 8 SECTION 3. Payments. 9 SECTION 4. Other Actions. 9 SECTION 5. Representations and Warranties ~~by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance~~ of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Escrow Agent. 9 SECTION 6. Representations and Warranties ~~EXHIBIT A-1 Form~~ of the Paying Agent. 10 SECTION 7. Indemnification. 11 SECTION 8. Amendment, Etc. 12 SECTION 9. Notices. 12 SECTION 10. Transfer. 13 SECTION 11. Entire Agreement. 13 SECTION 12. Governing Law. 13 SECTION 13. Waiver of Jury Trial Right. 13 SECTION 14. Counterparts. 13 SECTION 15. Rights of Holders. 14 Escrow Agreement 2014-1A Exhibit A Escrow Receipt Exhibit B Withdrawal Certificate Escrow Agreement 2014-1A ESCROW AND PAYING AGENT AGREEMENT (Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, A) dated as of ~~July 1~~April 7, ~~2023~~ 2014, (as amended, modified or supplemented ~~or otherwise modified and in effect~~ from time to time, this “~~Indenture~~Agreement”) among U.S. BANK NATIONAL ASSOCIATION, a national banking association, as Escrow Agent (in such capacity, together with its successors in such capacity, the “Escrow Agent”); M▇▇▇▇▇ S▇▇▇▇▇▇ & CO. LLC and CREDIT SUISSE SECURITIES (USA) LLC, ~~between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust~~ for themselves and on behalf of the several Underwriters of the Certificates referred to below (the “~~Issuer~~Underwriters” and together with their respective transferees and assigns as registered owners of the Certificates, the “Investors”~~), and~~ ) under the Underwriting Agreement referred to below; WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity except as otherwise expressly provided herein, but solely as ~~indenture~~ trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with ~~the Class A-2a Notes~~its successors in such capacity, the “~~Class A-2 Notes~~Pass Through Trustee”)) under the Pass Through Trust Agreement referred to below; and WILMINGTON TRUST, ~~5.28% Class A-3 Asset-backed Notes~~ NATIONAL ASSOCIATION, a national banking association, as paying agent hereunder (~~the “Class A-3 Notes”)~~in such capacity, ~~5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively~~ together with ~~the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes~~its successors in such capacity, the “~~Class A Notes~~Paying Agent”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Escrow and Paying Agent Agreement (United Airlines, Inc.)

TABLE OF CONTENTS. ~~Article I DEFINITIONS~~ ARTICLE I. RECOGNITION 4 A. Recognition 4 B. General Principle of Negotiations 4 ARTICLE II. BOARD, TEACHER AND ~~INCORPORATION BY REFERENCE 2 Section 1.1~~ ASSOCIATION RIGHTS 5 A. Board of Education 5 B. Professional Teaching Personnel 5 C. Teacher Obligations 5 D. Association Meetings 5 E. Placement of Items in Teacherʹs Personnel File 5 F. Information to Association 6 G. Use of Mailboxes by Association 6 H. Use of Bulletin Board 6 I. School Calendar 6 ARTICLE III. NEGOTIATIONS PROCEDURE 7 A. Representation 7 B. Commencement of Negotiations 7 C. AUTHORITY 7 D. Agreements 7 E. Ratification 7 F. Printing of Agreement 7 ARTICLE IV. WORKING CONDITIONS 7 A. Assignments 7 B. MEETINGS 8 C. TRANSFERS 8 D. Hours of Work 8 E. Homebound/Hospitalized Student Support Assignments 9 F. Access to Building 9 G. Planning Time 9 H. Internal Substitution During Preparation Period 10 I. Additional Load Compensation 10 J. Full‐Time Teacher 10 K. Reduction in Force 11 L. Notification of Vacancies 11 M. Travel Between Buildings 12 ARTICLE V. ASSOCIATION DUES DEDUCTION 12 A. Teacher Authorization 12 B. Months of Deduction 12 C. Remittance to Association 12 D. Legal Protection for Board 12 E. FAIR SHARE 12 ARTICLE VI. NO STRIKES AND DISRUPTIONS 13 A. General Teacher and Association Responsibilities 13 B. Association Responsibilities and Board Prerogatives 13 C. Association Communication Responsibilities 13 ARTICLE VII. INDIVIDUAL GRIEVANCE PROCEDURE 13 A. Definitions 2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication and Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4 Tax Treatment 5 Section 2.5 Registration; Registration of Transfer and Exchange 6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 ~~Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices~~ B. Right to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Maintenance of Office or Agency 22 Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Representation 13 C. PROCEDURE 13 D. Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.Conditions 14

Appears in 1 contract

Sources: Collective Bargaining Agreement

TABLE OF CONTENTS. ~~Article I~~ ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 2 Section ~~1.1~~ 1.01 Definitions 2 Section ~~1.2~~ 1.02 Other Definitions 7 Section 1.03 Incorporation by Reference of Trust Indenture Act 2 7 Section ~~1.3~~ 1.04 Rules of Construction 7 ARTICLE 2 ~~Article II~~ THE ~~NOTES 3~~ SECURITIES 8 Section ~~2.1 Form 3~~ 2.01 Issuable in Series 8 Section ~~2.2 Execution,~~ 2.02 Establishment of Terms of Series of Securities 8 Section 2.03 Execution and Authentication 11 Section 2.04 Registrar and ~~Delivery 4~~ Paying Agent 11 Section ~~2.3 Temporary Notes 5~~ 2.05 Paying Agent to Hold Money in Trust 12 Section ~~2.4 Tax Treatment 5~~ 2.06 Holder Lists 12 Section ~~2.5 Registration; Registration of~~ 2.07 Transfer and Exchange 6 13 Section ~~2.6 Mutilated, Destroyed, Lost or Stolen Notes 7~~ 2.08 Replacement Securities 13 Section ~~2.7~~ 2.09 Outstanding Securities 13 Section 2.10 Treasury Securities 14 Section 2.11 Temporary Securities 14 Section 2.12 Cancellation 14 Section 2.13 Persons Deemed Owners ~~8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes~~ 15 Section 2.14 ~~Authenticating Agents~~ Defaulted Interest 15 Section 2.15 ~~Retained Notes~~ Global Securities 15 Section 2.16 CUSIP Numbers 16 ~~Article III~~ ARTICLE 3 REDEMPTION 17 Section 3.01 Notices to Trustee 17 Section 3.02 Selection of Securities to be Redeemed 17 Section 3.03 Notice of Redemption 18 Section 3.04 Effect of Notice of Redemption 18 Section 3.05 Deposit of Redemption Price 19 Section 3.06 Securities Redeemed in Part 19 ARTICLE 4 COVENANTS 19 Section 4.01 Payment of Securities 19 Section 4.02 Reports 19 Section 4.03 Compliance Certificate 20 Section ~~3.1 Payment~~ 4.04 Stay, Extension and Usury Laws 21 Section 4.05 Corporate Existence 21 ARTICLE 5 SUCCESSORS 21 Section 5.01 Merger, Consolidation, or Sale of ~~Principal and Interest; Determination of SOFR; Benchmark Replacement 20~~ Assets 21 Section ~~3.2 Maintenance of Office or Agency~~ 5.02 Successor Corporation Substituted 22 ~~Section 3.3 Money for Payments To Be Held in Trust 22 Section 3.4 Existence~~ ARTICLE 6 DEFAULTS AND REMEDIES 23 Section 3.5 Protection of Trust Estate 24 Section 3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of 6.01 Events of Default 31 23 Section ~~3.19 Removal~~ 6.02 Acceleration 24 Section 6.03 Collection of ~~Administrator 31~~ Suit by Trustee 24 Section ~~3.20 Further Instruments and Acts 31~~ 6.04 Trustee May File Proofs of Claim 24 Section ~~3.21 Sales Finance Company Licenses 31~~ 6.05 Trustee May Enforce Claims Without Possession of Securities 25 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 6.06 Application of ~~Trust~~ Money 34 Collected 25 Section ~~4.4 Repayment~~ 6.07 Limitation on Suits 25 Section 6.08 Unconditional Right of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders Holders to Receive Principal and Interest 42 26 Section ~~5.8~~ 6.09 Restoration of Rights and Remedies 43 26 Section ~~5.9~~ 6.10 Rights and Remedies Cumulative 43 26 Section ~~5.10~~ 6.11 Delay or Omission Not a Waiver 43 27 Section ~~5.11~~ 6.12 Control by ~~Noteholders of the Controlling Class 43~~ Holders 27 Section ~~5.12~~ 6.13 Waiver of Past Defaults 44 27 Section ~~5.13~~ 6.14 Undertaking for Costs 44 27 ARTICLE 7 TRUSTEE 28 Section ~~5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1~~ 7.01 Duties of ~~Indenture~~ Trustee 46 28 Section ~~6.2~~ 7.02 Rights of ~~Indenture~~ Trustee 48 29 Section ~~6.3~~ 7.03 Individual Rights of ~~Indenture~~ Trustee 49 30 Section ~~6.4 Indenture~~ 7.04 Trustee’s Disclaimer 49 30 Section ~~6.5~~ 7.05 Notice of Defaults 49 31 Section ~~6.6~~ 7.06 Reports by ~~Indenture~~ Trustee to Holders 49 of the Securities 31 Section ~~6.7~~ 7.07 Compensation and Indemnity 50 31 Section ~~6.8~~ 7.08 Replacement of ~~Indenture~~ Trustee 50 32 Section ~~6.9~~ 7.09 Successor ~~Indenture~~ Trustee by ~~▇▇▇▇▇▇ 51~~ Merger, etc. 33 Section ~~6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11~~ 7.10 Eligibility; Disqualification 53 33 Section ~~6.12~~ 7.11 Preferential Collection of Claims Against ~~Issuer 54~~ Company 33 ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE 33 Section ~~6.13 Communications Regarding Demands~~ 8.01 Option to ~~Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS~~ Effect Legal Defeasance or Covenant Defeasance 33 Section 8.02 Legal Defeasance and Discharge 34 Section 8.03 Covenant Defeasance 34 Section 8.04 Conditions to Legal or Covenant Defeasance 35 Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions 36 Section 8.06 Repayment to Company 37 Section 8.07 Reinstatement 37 ARTICLE 9 AMENDMENT, SUPPLEMENT AND ~~REPORTS; ASSET REPRESENTATIONS REVIEW 54~~ WAIVER 38 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures 9.01 Without Consent of ~~Noteholders 60~~ Holders of Securities 38 Section ~~9.2 Supplemental Indentures with~~ 9.02 With Consent of ~~Noteholders 61~~ Holders of Securities 39 Section ~~9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity~~ 9.03 Compliance with Trust Indenture Act 63 40 Section ~~9.6 Reference in Notes~~ 9.04 Revocation and Effect of Consents 40 Section 9.05 Notation on or Exchange of Securities 41 Section 9.06 Trustee to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 NoticesSign Amendments, etc~~., to Indenture Trustee, Issuer~~ . 41 ARTICLE 10 SECURITY GUARANTEES 41 Section 10.01 Security Guarantees 41 Section 10.02 Limitation on Guarantor Liability 42 Section 10.03 Execution and ~~Rating Agencies 68~~ Delivery of Security Guarantee 43 Section ~~11.5 Notices to Noteholders; Waiver 69~~ 10.04 Releases 43 ARTICLE 11 SATISFACTION AND DISCHARGE 44 Section ~~11.6 Alternate Payment~~ 11.01 Satisfaction and ~~Notice Provisions 69~~ Discharge 44 Section ~~11.7 Conflict with~~ 11.02 Application of Trust Money 45 ARTICLE 12 MISCELLANEOUS 45 Section 12.01 Trust Indenture Act 69 Controls 45 Section ~~11.8 Effect~~ 12.02 Notices 45 Section 12.03 Communication by Holders with Other Holders 47 Section 12.04 Certificate and Opinion as to Conditions Precedent 47 Section 12.05 Statements Required in Certificate or Opinion 47 Section 12.06 Rules by Trustee and Agents 47 Section 12.07 No Personal Liability of ~~Headings~~ Directors, Officers, Employees and Stockholders 48 Section 12.08 Counterparts 48 Section 12.09 Legal Holidays 48 Section 12.10 Governing Laws 48 Section 12.11 Waiver of Jury Trial 48 Section 12.12 No Adverse Interpretation of Other Agreements 48 Section 12.13 Successors 48 Section 12.14 Severability 49 Section 12.15 Table of ~~Contents 70~~ Contents, Headings, Etc. 49 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 (as amended, supplemented or otherwise modified and 12.16 Securities in ~~effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3,~~ a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on Foreign Currency 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 Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions ECU 49 Section 12.17 Judgment Currency 50 Section 12.18 Force Majeure 50 Section 12.19 U.S.A. Patriot Act 50 Section 12.20 Beneficiaries of this Indenture ~~and agrees to perform its duties required in this Indenture to the best~~ 51 ARTICLE 13 SINKING FUNDS 51 Section 13.01 Applicability of ~~its ability to the end that the interests~~ Article 51 Section 13.02 Satisfaction of ~~the Holders~~ Sinking Fund Payments with Securities 51 Section 13.03 Redemption of ~~the Notes may be adequately and effectively protected.~~Securities for Sinking Fund 52 Exhibit A Form of Notation of Guarantee 310(a)(1) 7.10 (a)(2) 7.10

Appears in 1 contract

Sources: Indenture (MetroPCS Finance, Inc.)

TABLE OF CONTENTS. ~~Article I~~ DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2 Section 1.1 Definitions 2 Section 1.2 Incorporation by Reference~~ 1 SECTION 1.1. Capitalized Terms 1 SECTION 1.2. Other Definitional Provisions 4 ARTICLE II. ORGANIZATION 4 SECTION 2.1. Name 4 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 Trust ~~Indenture Act 2 Section 1.3 Rules~~ Estate 6 SECTION 2.6. Declaration of ~~Construction 2 Article II THE NOTES 3 Section 2.1 Form 3 Section 2.2 Execution, Authentication~~ Trust 6 SECTION 2.7. Title to Trust Property 6 SECTION 2.8. Situs of Trust 7 SECTION 2.9. Representations and ~~Delivery 4 Section 2.3 Temporary Notes 5 Section 2.4~~ Warranties of the Depositor 7 SECTION 2.10. Covenants of the Certificateholder 8 SECTION 2.11. Federal Income Tax Treatment ~~5 Section 2.5 Registration;~~ of the Trust 8 ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST 9 SECTION 3.1. Initial Ownership 9 SECTION 3.2. The Certificate 9 SECTION 3.3. Authentication of Certificate 10 SECTION 3.4. Registration of Transfer and Exchange ~~6 Section 2.6~~ of Certificate 10 SECTION 3.5. Mutilated, Destroyed, Lost or Stolen ~~Notes 7 Section 2.7~~ Certificates 11 SECTION 3.6. Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release of Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency 15 Section 2.13 Definitive Notes 15 Section 2.14 Authenticating Agents 15 Section 2.15 Retained Notes 16 Article III COVENANTS 20 Section 3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement 20 Section 3.2 Certificateholders 11 SECTION 3.7. Maintenance of Office or Agency 12 SECTION 3.8. Disposition in Whole But Not in Part 12 SECTION 3.9. ERISA Restrictions 12 SECTION 3.10. Appointment of Certificate Paying Agent 12 ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS 13 SECTION 4.1. Prior Notice to Holder with Respect to Certain Matters 13 SECTION 4.2. Action by Certificateholder with Respect to Certain Matters 14 SECTION 4.3. Restrictions on Certificateholder’s Power 14 SECTION 4.4. [Reserved] 14 SECTION 4.5. Action with Respect to Bankruptcy Action 14 SECTION 4.6. Covenants and Restrictions on Conduct of Business 15 ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE 17 SECTION 5.1. General Authority 17 SECTION 5.2. General Duties 17 SECTION 5.3. Action upon Instruction 18 SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions 19 SECTION 5.5. No Action Except under Specified Documents or Instructions 19 SECTION 5.6. Restrictions 19 SECTION 5.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties 19 ARTICLE VI. CONCERNING THE OWNER TRUSTEE 20 SECTION 6.1. Acceptance of Trusts and Duties 20 SECTION 6.2. Furnishing of Documents 21 SECTION 6.3. Representations and Warranties 22 ~~Section 3.3 Money~~ SECTION 6.4. Reliance; Advice of Counsel 22 SECTION 6.5. Not Acting in Individual Capacity 23 SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables 23 SECTION 6.7. Owner Trustee May Own Notes 23 SECTION 6.8. Payments ~~To Be Held in Trust 22 Section 3.4 Existence 23 Section 3.5 Protection of~~ from Owner Trust Estate 24 ~~Section 3.6 Opinions as~~ SECTION 6.9. Doing Business in Other Jurisdictions 24 SECTION 6.10. FATCA Information 24 ARTICLE VII. COMPENSATION OF OWNER TRUSTEE 24 SECTION 7.1. Owner Trustee’s Fees and Expenses 24 SECTION 7.2. Indemnification 25 SECTION 7.3. Payments to the Owner Trustee 25 SECTION 7.4. Non-recourse Obligations 25 ARTICLE VIII. TERMINATION OF TRUST AGREEMENT 25 SECTION 8.1. Termination of Trust ~~Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables~~ Agreement 25 ~~Section 3.8 Negative Covenants~~ ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 27 ~~Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor~~ SECTION 9.1. Eligibility Requirements for Owner Trustee 27 SECTION 9.2. Resignation or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of ~~Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture~~ Owner Trustee ~~31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge~~ 27 SECTION 9.3. Successor Owner Trustee 28 SECTION 9.4. Merger or Consolidation of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Owner Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement of Certain Obligations 45 Article VI THE INDENTURE TRUSTEE 46 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 28 SECTION 9.5. Appointment of Co-~~Indenture~~ Trustee or Separate ~~Indenture~~ Trustee ~~52 Section 6.11 Eligibility~~28 ARTICLE X. MISCELLANEOUS 30 SECTION 10.1. Supplements and Amendments 30 SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder 31 SECTION 10.3. Limitations on Rights of Others 31 SECTION 10.4. Notices 31 SECTION 10.5. Severability 32 SECTION 10.6. Separate Counterparts 32 SECTION 10.7. Assignments 32 SECTION 10.8. No Recourse 32 SECTION 10.9. Headings 32 SECTION 10.10. GOVERNING LAW 32 SECTION 10.11. WAIVER OF JURY TRIAL 32 SECTION 10.12. Servicer 33 SECTION 10.13. Nonpetition Covenants 33 SECTION 10.14. [Third Party Beneficiary] 33 SECTION 10.15. Regulation AB 34 ARTICLE XI. APPLICATION OF TRUST FUNDS; ~~Disqualification 53 Section 6.12 Preferential Collection~~ CERTAIN DUTIES 34 SECTION 11.1. Establishment of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts ~~58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release~~ 34 SECTION 11.2. Application of Trust ~~Estate 59 Section 8.5 Opinion~~ Funds 34 SECTION 11.3. Method of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION Payment 35 EXHIBIT A FORM OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note CERTIFICATE EXHIBIT B ~~Form of Class B Note~~ FORM OF CERTIFICATE OF TRUST EXHIBIT C ~~Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE~~FORM OF NOTICE OF REPURCHASE REQUEST This AMENDED AND RESTATED TRUST AGREEMENT, dated as of ~~July 1~~, ~~2023 (as amended~~20 between EFCAR, ~~supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3~~LLC, a Delaware ~~statutory trust~~ limited liability company, as depositor (the “~~Issuer~~Seller”), and ~~WILMINGTON TRUST, NATIONAL ASSOCIATION~~[OWNER TRUSTEE], a ~~national banking association~~[entity type], ~~not~~ as Owner Trustee, amends and restates in its ~~individual capacity but solely~~ entirety that certain Trust Agreement, dated as ~~indenture trustee (in such capacity~~of , 20 between the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes Seller and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Owner Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.

Appears in 1 contract

Sources: Trust Agreement (Efcar, LLC)

TABLE OF CONTENTS. ~~Article~~ ARTICLE I DEFINITIONS ~~AND INCORPORATION BY REFERENCE 2~~ 1 Section 1.1 Definitions ~~2 Section 1.2 Incorporation by Reference of Trust Indenture Act 2 Section 1.3 Rules of Construction 2 Article~~ 1 ARTICLE II THE ~~NOTES 3~~ MERGER 11 Section 2.1 ~~Form 3~~ The Company Merger 11 Section 2.2 ~~Execution, Authentication and Delivery 4~~ The Bank Merger 11 Section 2.3 ~~Temporary Notes 5~~ Closing 11 Section 2.4 ~~Tax Treatment 5~~ Company Merger Effective Time 11 Section 2.5 ~~Registration~~Bank Merger Effective Time 11 Section 2.6 Effect of the Company Merger 12 Section 2.7 Effect of the Bank Merger 12 Section 2.8 Articles of Incorporation of the Surviving Corporation After Company Merger 12 Section 2.9 Articles of Incorporation of the Surviving Corporation After Bank Merger 12 Section 2.10 Bylaws of the Surviving Corporation After Company Merger 12 Section 2.11 Bylaws of the Surviving Corporation After Bank Merger 12 Section 2.12 Directors and Officers of the Surviving Corporation 12 Section 2.13 Alternative Structure 13 ARTICLE III CONSIDERATION; ~~Registration~~ CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES 13 Section 3.1 Conversion of ~~Transfer~~ Securities 13 Section 3.2 Fractional Shares 14 Section 3.3 Shares of Dissenting Holders 14 Section 3.4 Surrender and Exchange ~~6 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 7 Section 2.7 Persons Deemed Owners 8 Section 2.8 Payments 8 Section 2.9 Cancellation 13 Section 2.10 Release~~ of ~~Collateral 14 Section 2.11 Book-Entry Notes 14 Section 2.12 Notices to Clearing Agency~~ Certificates 15 Section ~~2.13 Definitive Notes 15~~ 3.5 Stock Options 17 Section ~~2.14 Authenticating Agents 15~~ 3.6 Adjustment Resulting from BWC Real Estate Sale. 18 Section ~~2.15 Retained Notes 16 Article III COVENANTS~~ 3.7 Cancellation of Bank Capital Stock 18 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND BANK 18 Section 4.1 Organization and Qualification of Company and Subsidiaries 18 Section 4.2 Certificate of Incorporation and Bylaws; Corporate Books and Records 19 Section 4.3 Capitalization 19 Section 4.4 Subsidiaries 20 Section ~~3.1 Payment of Principal and Interest; Determination of SOFR; Benchmark Replacement~~ 4.5 Authority. 20 Section ~~3.2 Maintenance of Office or Agency~~ 4.6 No Conflict; Required Filings and Consents 22 Section ~~3.3 Money for Payments To Be Held in Trust~~ 4.7 Permits; Compliance with Law. 22 Section ~~3.4 Existence 23 Section 3.5 Protection of Trust Estate~~ 4.8 SEC Filings; Financial Statements 24 Section ~~3.6 Opinions as to Trust Estate 24 Section 3.7 Performance of Obligations; Servicing of Receivables~~ 4.9 Regulatory Matters 25 Section 3.8 Negative Covenants 27 Section 3.9 Annual Statement as to Compliance 28 Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms 28 Section 3.11 Successor or Transferee 30 Section 3.12 No Other Business 30 Section 3.13 No Borrowing 30 Section 3.14 Servicer’s Obligations 30 Section 3.15 Guarantees, Loans, Advances and Other Liabilities 30 Section 3.16 Capital Expenditures 31 Section 3.17 Restricted Payments 31 Section 3.18 Notice of Events of Default 31 Section 3.19 Removal of Administrator 31 Section 3.20 Further Instruments and Acts 31 Section 3.21 Sales Finance Company Licenses 31 Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee 31 Article IV SATISFACTION AND DISCHARGE 32 Section 4.1 Satisfaction and Discharge of Indenture 32 Section 4.2 Satisfaction, Discharge and Defeasance of the Notes 33 Section 4.3 Application of Trust Money 34 Section 4.4 Repayment of Monies Held by Paying Agent 34 Article V REMEDIES 34 Section 5.1 Events of Default 34 Section 5.2 Acceleration of Maturity; Rescission and Annulment 35 Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee 36 Section 5.4 Remedies; Priorities 38 Section 5.5 Optional Preservation of the Receivables 41 Section 5.6 Limitation of Suits 42 Section 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest 42 Section 5.8 Restoration of Rights and Remedies 43 Section 5.9 Rights and Remedies Cumulative 43 Section 5.10 Delay or Omission Not a Waiver 43 Section 5.11 Control by Noteholders of the Controlling Class 43 Section 5.12 Waiver of Past Defaults 44 Section 5.13 Undertaking for Costs 44 Section 5.14 Waiver of Stay or Extension Laws 44 Section 5.15 Action on Notes 45 Section 5.16 Performance and Enforcement 4.10 Absence of Certain ~~Obligations 45 Article VI THE INDENTURE TRUSTEE 46~~ Changes or Events 26 Section 6.1 Duties of Indenture Trustee 46 Section 6.2 Rights of Indenture Trustee 48 Section 6.3 Individual Rights of Indenture Trustee 49 Section 6.4 Indenture Trustee’s Disclaimer 49 Section 6.5 Notice of Defaults 49 Section 6.6 Reports by Indenture Trustee to Holders 49 Section 6.7 Compensation and Indemnity 50 Section 6.8 Replacement of Indenture Trustee 50 Section 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇ 51 Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee 52 Section 6.11 Eligibility; Disqualification 53 Section 6.12 Preferential Collection of Claims Against Issuer 54 Section 6.13 Communications Regarding Demands to Purchase Receivables 54 Article VII NOTEHOLDERS’ LISTS AND REPORTS; ASSET REPRESENTATIONS REVIEW 54 Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders 54 Section 7.2 Preservation of Information; Communications to Noteholders 54 Section 7.3 Reports by Issuer 55 Section 7.4 Reports by Indenture Trustee 55 Section 7.5 Noteholder Communications 55 Section 7.6 Asset Representations Review 56 Article VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 57 Section 8.1 Collection of Money 57 Section 8.2 Trust Accounts 58 Section 8.3 General Provisions Regarding Accounts 58 Section 8.4 Release of Trust Estate 59 Section 8.5 Opinion of Counsel 60 Article IX SUPPLEMENTAL INDENTURES 60 Section 9.1 Supplemental Indentures Without Consent of Noteholders 60 Section 9.2 Supplemental Indentures with Consent of Noteholders 61 Section 9.3 Execution of Supplemental Indentures 63 Section 9.4 Effect of Supplemental Indenture 63 Section 9.5 Conformity with Trust Indenture Act 63 Section 9.6 Reference in Notes to Supplemental Indentures 63 Article X REDEMPTION OF NOTES 63 Section 10.1 Redemption 63 Section 10.2 Form of Redemption Notice 64 Section 10.3 Notes Payable on Redemption Date 64 Article XI MISCELLANEOUS 65 Section 11.1 Compliance Certificates and Opinions, etc 65 Section 11.2 Form of Documents Delivered to Indenture Trustee 66 Section 11.3 Acts of Noteholders 67 Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies 68 Section 11.5 Notices to Noteholders; Waiver 69 Section 11.6 Alternate Payment and Notice Provisions 69 Section 11.7 Conflict with Trust Indenture Act 69 Section 11.8 Effect of Headings and Table of Contents 70 Section 11.9 Successors and Assigns 70 Section 11.10 Severability 70 Section 11.11 Benefits of Indenture 70 Section 11.12 Legal Holiday 70 Section 11.13 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF RIGHT TO JURY TRIAL 70 Section 11.14 Counterparts and Electronic Signature 71 Section 11.15 Recording of Indenture 71 Section 11.16 Trust Obligation 71 Section 11.17 No Petition 72 Section 11.18 Inspection 72 Section 11.19 Third-Party Beneficiaries 72 Section 11.20 Limitation on Recourse to CarMax Funding 72 Section 11.21 Legal Fees Associated with Indemnification 73 Section 11.22 Limitation of Liability of the Owner Trustee 73 Section 11.23 PATRIOT Act 73 Section 11.24 Beneficial Ownership 73 APPENDIX A Additional Representations and Warranties EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2a Form of Class A-2a Note EXHIBIT A-2b Form of Class A-2b Note EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note EXHIBIT B Form of Class B Note EXHIBIT C Form of Class C Note EXHIBIT D Form of Class D Note EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Transferor Certificate EXHIBIT G Form of Investment Letter INDENTURE, dated as of July 1, 2023 4.11 Employee Benefit Plans 26 PALOALTO 66463 v1 (as amended, supplemented or otherwise modified and in effect from time to time, this “Indenture”), between CARMAX AUTO OWNER TRUST 2023-3, a Delaware statutory trust (the “Issuer”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as indenture trustee (in such capacity, the “Indenture Trustee”). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the holders of the Issuer’s 5.631% Class A-1 Asset-backed Notes (the “Class A-1 Notes”), 5.72% Class A-2a Asset-backed Notes (the “Class A-2a Notes”), Class A-2b Floating Rate Asset-backed Notes (the “Class A-2b Notes” and together with the Class A-2a Notes, the “Class A-2 Notes”), 5.28% Class A-3 Asset-backed Notes (the “Class A-3 Notes”), 5.26% Class A-4 Asset-backed Notes (the “Class A-4 Notes” and, collectively with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), 5.47% Class B Asset-backed Notes (the “Class B Notes”), 5.61% Class C Asset-backed Notes (the “Class C Notes”2K) and 6.44% Class D Asset-backed Notes (the “Class D Notes” and, collectively with the Class A Notes, the Class B Notes and the Class C Notes, the “Notes”): The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising (i) the Receivables; (ii) all amounts received on or in respect of the Receivables after the Cutoff Date; (iii) the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any other interest of the Issuer in such Financed Vehicles; (iv) all proceeds from claims on or refunds of premiums with respect to any physical damage, theft, GAP, 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 and the Reserve Account and all amounts, securities, financial assets, investments and other property deposited in or credited to any of the foregoing and all proceeds thereof; (vii) all rights of the Depositor under the Receivables Purchase Agreement, including the right to require the Seller to repurchase Receivables from the Depositor; (viii) all rights of the Issuer under the Sale and Servicing Agreement, including the right to require the Servicer to purchase Receivables from the Issuer; (ix) the right to realize upon any property (including the right to receive future Liquidation Proceeds) that shall have secured a Receivable and have been repossessed by or on behalf of the Issuer; and (x) 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 (collectively, the “Collateral”). The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such ▇▇▇▇▇, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.-1-

Appears in 1 contract

Sources: Merger Agreement (BWC Financial Corp)

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