Attached files
Exhibit 33.1 – REPORT ON ASSESSMENT OF COMPLIANCE WITH APPLICABLE SERVICING CRITERIA
Report on Assessment of Compliance with Applicable Servicing Criteria
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1.
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CarMax Business Services, LLC ("CarMax") is responsible for assessing compliance with the servicing criteria applicable to it under paragraph (d) of Item 1122 of Regulation AB, as of February 28, 2011 and for the fiscal year ended February 28, 2011 (the "Reporting Period"), as set forth in Appendix A hereto. The transactions covered by this report consist of all asset-backed securities transactions sponsored by CarMax involving motor vehicle retail installment sale contracts that were commenced with an initial bona fide offer after December 31, 2005 where the related asset-backed securities were outstanding during the Reporting Period (the "Platform"), as identified in Appendix B hereto.
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2.
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CarMax has engaged certain vendors (the "Vendors") that are not servicers as defined in Item 1101(j) of Regulation AB to perform specific, limited or scripted activities, and CarMax elects to take responsibility for assessing compliance with the serving criteria or portion of the servicing criteria applicable to such Vendors' activities as set forth in Appendix A hereto. CarMax has policies and procedures in place to provide reasonable assurance that each Vendor's activities comply in all material respects with the servicing criteria or portion of the servicing criteria applicable to such Vendor.
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3.
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Except as set forth in paragraph 4 below, CarMax used the criteria set forth in paragraph (d) of Item 1122 of Regulation AB to assess the compliance with the applicable servicing criteria as of February 28, 2011 and for the Reporting Period with respect to the Platform taken as a whole.
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4.
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The criteria listed in the column titled "Inapplicable Servicing Criteria" on Appendix A hereto are inapplicable to CarMax based on the activities it performs, directly or through its Vendors, with respect to the Platform.
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5.
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CarMax has complied, in all material respects, with the applicable servicing criteria as of February 28, 2011 and for the Reporting Period with respect to the Platform taken as a whole.
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6.
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CarMax has not identified and is not aware of any material instance of noncompliance by the Vendors with the applicable servicing criteria as of February 28, 2011 and for the Reporting Period with respect to the Platform taken as a whole.
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7.
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CarMax has not identified any material deficiency in its policies and procedures to monitor compliance by the Vendors with the applicable servicing criteria as of February 28, 2011 and for the Reporting Period with respect to the Platform taken as a whole.
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8.
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KPMG LLP, an independent registered public accounting firm, has issued an attestation report on CarMax's assessment of compliance with the applicable servicing criteria as of February 28, 2011 and for the Reporting Period.
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May 25, 2011
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CARMAX BUSINESS SERVICES, LLC
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By:
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/s/ Keith D. Browning
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Name:
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Keith D. Browning
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Title:
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Executive Vice President
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APPENDIX A
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SERVICING CRITERIA
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APPLICABLE
SERVICING CRITERIA
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INAPPLICABLE
SERVICING
CRITERIA
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Reference
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Criteria
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Performed
Directly
by
CarMax
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Performed
by Vendor(s)
for which CarMax
is the
Responsible Party
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NOT performed by CarMax or by
subservicer(s) or
vendor(s) retained by CarMax
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General Servicing Conditions
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1122(d)(1)(i)
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Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction
agreements.
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X
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1122(d)(1)(ii)
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If any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
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X
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1122(d)(1)(iii)
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Any requirements in the transaction agreements to maintain a back-up
servicer for the pool assets are maintained.
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X
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1122(d)(1)(iv)
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A fidelity bond and errors and omissions policy is in effect on the
party participating in the servicing function throughout the reporting
period in the amount of coverage required by and otherwise in
accordance with the terms of the transaction agreements.
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X
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Cash Collection and Administration
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1122(d)(2)(i)
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Payments on pool assets are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no more
than two business days following receipt, or such other number of days specified in the transaction agreements.
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X(1)
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X(1)
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1122(d)(2)(ii)
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Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel.
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X(2)
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1122(d)(2)(iii)
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Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the
transaction agreements.
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X
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1122(d)(2)(iv)
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The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of overcollateralization,
are separately maintained (e.g., with respect to commingling of cash)
as set forth in the transaction agreements.
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X
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1122(d)(2)(v)
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Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction agreements. For
purposes of this criterion, “federally insured depository institution”
with respect to a foreign financial institution means a foreign
financial institution that meets the requirements of Rule 13k-l(b)(I)
of the Securities Exchange Act.
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X
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1122(d)(2)(vi)
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Unissued checks are safeguarded so as to prevent unauthorized
access.
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X
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(1)
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Certain payments received from obligors with respect to certain pool assets are deposited into the applicable accounts by a third party lockbox provider. As permitted by Interpretation 17.06 of the SEC Division of Corporation Finance Manual of Publicly Available Telephone Interpretations (Regulation AB and Related Rules) ("Interpretation 17.06"), CarMax has elected to take responsibility for assessing compliance by that vendor with that portion of the servicing criteria under Item 1122(d)(2)(i) of Regulation AB that relates to that vendor's activities.
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(2)
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Disbursements made via wire transfer to investors are made by a third party paying agent. As permitted by Interpretation 17.06, CarMax has elected to take responsibility for assessing compliance by that vendor with that portion of the servicing criteria under Item 1122(d)(2)(ii) of Regulation AB that relates to that vendor's activities.
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SERVICING CRITERIA
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APPLICABLE
SERVICING CRITERIA
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INAPPLICABLE
SERVICING
CRITERIA
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Reference
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Criteria
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Performed
Directly
by
CarMax
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Performed
by Vendor(s) for which CarMax is the Responsible Party
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NOT performed by CarMax or by subservicer(s) or vendor(s) retained by CarMax
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1122(d)(2)(vii)
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Reconciliations are prepared on a monthly basis for all asset-backed
securities related bank accounts, including custodial accounts and
related bank clearing accounts. These reconciliations are (A)
mathematically accurate; (B) prepared within 30 calendar days after
the bank statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed and approved
by someone other than the person who prepared the reconciliation;
and (D) contain explanations for reconciling items. These reconciling
items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the
transaction agreements.
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X
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Investor Remittances and Reporting
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1122(d)(3)(i)
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Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports (A) are prepared in accordance with timeframes and
other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of pool assets serviced by the Servicer.
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X
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1122(d)(3)(ii)
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Amounts due to investors are allocated and remitted in accordance
with timeframes, distribution priority and other terms set forth in the
transaction agreements.
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X
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1122(d)(3)(iii)
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Disbursements made to an investor are posted within two business
days to the Servicer’s investor records, or such other number of days
specified in the transaction agreements.
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X
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1122(d)(3)(iv)
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Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank statements.
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X
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Pool Asset Administration
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1122(d)(4)(i)
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Collateral or security on pool assets is maintained as required by
the transaction agreements or related pool asset documents.
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X
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1122(d)(4)(ii)
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Pool asset and related documents are safeguarded as required by
the transaction agreements
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X
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X(3)
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1122(d)(4)(iii)
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Any additions, removals or substitutions to the asset pool are made,
reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
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X
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1122(d)(4)(iv)
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Payments on pool assets, including any payoffs, made in
accordance with the related pool asset documents are posted to
the Servicer’s obligor records maintained no more than two business
days after receipt, or such other number of days specified in the
transaction agreements, and allocated to principal, interest or other
items (e.g., escrow) in accordance with the related pool asset documents.
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X
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1122(d)(4)(v)
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The Servicer’s records regarding the pool assets agree with the
Servicer’s records with respect to an obligor’s unpaid principal balance.
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X
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1122(d)(4)(vi)
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Changes with respect to the terms or status of an obligor’s pool asset (e.g., loan modifications or re-agings) are made, reviewed and
approved by authorized personnel in accordance with the transaction
agreements and related pool asset documents.
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X
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(3)
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Safeguarding and storage of original motor vehicle retail installment sale contracts are provided by a third party vendor. As permitted by Interpretation 17.06, CarMax has elected to take responsibility for assessing compliance by that vendor with that portion of the servicing criteria under Item 1122(d)(4)(ii) of Regulation AB that relates to that vendor's activities.
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SERVICING CRITERIA
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APPLICABLE
SERVICING CRITERIA
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INAPPLICABLE
SERVICING
CRITERIA
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Reference
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Criteria
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Performed
Directly
by
CarMax
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Performed
by Vendor(s) for which CarMax is the Responsible Party
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NOT performed by CarMax or by subservicer(s) or vendor(s) retained by CarMax
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1122(d)(4)(vii)
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Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and concluded
in accordance with the tirneframes or other requirements established
by the transaction agreements.
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X(4)
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X(4)
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1122(d)(4)(viii)
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Records documenting collection efforts are maintained during the
period a pool asset is delinquent in accordance with the
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction
agreements, and describe the entity’s activities in monitoring
delinquent pool assets including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is
deemed temporary (e.g., illness or unemployment).
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X
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1122(d)(4)(ix)
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Adjustments to interest rates or rates of return for pool assets with variable rates are computed based on the related pool asset
documents.
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X
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1122(d)(4)(x)
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Regarding any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor’s pool asset documents, on at least an annual basis, or
such other period specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in accordance with
applicable pool asset documents and state laws; and (C) such
funds are returned to the obligor within 30 calendar days of full
repayment of the related pool assets, or such other number of
days specified in the transaction agreements.
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X
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1122(d)(4)(xi)
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Payments made on behalf of an obligor (such as tax or insurance
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such other
number of days specified in the transaction agreements.
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X
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1122(d)(4)(xii)
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Any late payment penalties in connection with any payment to be
made on behalf of an obligor are paid from the Servicer’s funds and
not charged to the obligor, unless the late payment was due to the
obligor’s error or omission.
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X
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1122(d)(4)(xiii)
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Disbursements made on behalf of an obligor are posted within two
business days to the obligor’s records maintained by the Servicer, or
such other number of days specified in the transaction agreements.
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X
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1122(d)(4)(xiv)
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Delinquencies, charge-offs and uncollectible accounts are recognized
and recorded in accordance with the transaction agreements.
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X
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1122(d)(4)(xv)
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Any external enhancement or other support, identified in Item
1114(a)(I) through (3) or Item 1115 of Regulation AB, is maintained
as set forth in the transaction agreements.
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X
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(4)
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Certain recovery actions are conducted by third party vendors on behalf of CarMax. As permitted by Interpretation 17.06, CarMax has elected to take responsibility for assessing compliance by such vendors with that portion of the servicing criteria under Item 1122(d)(4)(vii) of Regulation AB that relates to such vendors' activities.
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APPENDIX B
CarMax Auto Owner Trust 2007-1
CarMax Auto Owner Trust 2007-2
CarMax Auto Owner Trust 2007-3
CarMax Auto Owner Trust 2008-1
CarMax Auto Owner Trust 2008-A
CarMax Auto Owner Trust 2008-2
CarMax Auto Owner Trust 2009-1
CarMax Auto Owner Trust 2009-A
CarMax Auto Owner Trust 2009-2
CarMax Auto Owner Trust 2010-1
CarMax Auto Owner Trust 2010-2
CarMax Auto Owner Trust 2010-3